DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Election/Restrictions
Applicant’s election without traverse of Group I, Claims 1-30 in the reply filed on 07/16/2025 is acknowledged.
Claims 31-67 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to nonelected Groups II and III, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 07/16/2025.
The following elections of species are acknowledged:
A single specific species for the second liquid component: a second liquid comprising both an oil and a wax or fat in a form of micro-particles, wherein the oil is sunflower oil and the wax or fat is carnauba wax.
A single specific species of hydrophilic polymer: alginate.
A single specific species of solid particle: micro-particle and/or nano particle containing silica.
Examiner extends searches to ascertain thorough examination when single species elected above does not yield prior art results.
Status of Claims
Preliminary amendment filed on 02/03/2023 is acknowledged.
Claims 1-67 are amended. Claims 31-67 are withdrawn as being drawn to nonelected groups.
Claims 1-30 are pending and being examined on merits herein.
Priority
This instant application 18019512, filed on 02/03/2023, is a 371 of PCT/IB2021/057097, filed on 08/03/2021, which claims foreign priority to Netherlands 2026204, filed on 08/03/2020.
Information Disclosure Statement
The information disclosure statement (IDS), filed on is in compliance with the
provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the
Examiner.
Objection to Specification
Applicant is reminded of the proper language and format for an abstract of the disclosure.
Abstract recites “said” in many sentences. The language should avoid using phrases which can be implied, such as, “The disclosure concerns,” “The disclosure defined by this invention,” “The disclosure describes,” etc. In addition, the form and legal phraseology often used in patent claims, such as “means” and “said,” should be avoided. See 37 C.F.R. 1.72 Title and abstract, MPEP 608.01 (b) I. F. 6.16.
Claim Objections
Claims 9, 13-14, 17-18, 20, 23, and 27 are objected to because of the following informalities:
Claim 9 recites “selected from a group consisting of”. The “a” should be changed to “the”.
Claim 13 recites “all of these as naturally derived” in line 9. There is a punctuation missing in front of this phrase, e.g., “;” or “,”.
Claim 17 recites “wherein a electrostatically”. The “a” should be changed to “an”. It also recites “carageenan”, which should be corrected to “carrageenan”.
Claim 18 recites “selected from a group of particles containing”. The “a” should be changed to “the”.
Claim 20 needs to delete the extra space in front of “ Si(CH3)2Cl2”.
Claim 27 recites “flagrances”, which should be corrected to “fragrances”.
Claims 13-14 and 23 recite “aliginate”. This word needs to be corrected to “alginate”.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-30 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 recites “said active compound is brought in a liquid” in line 2, and also recites “said active compound is brought in a first liquid” in line 4 and “a second liquid” in line 5. It is unclear and confusing whether firstly mentioned “a liquid” contains both “a first liquid” and “a second liquid”, or it means one of them or neither of them. This unclarity also leads to indefiniteness of what “is encapsulated by a surrounding shell layer” in line 2, whether it contains active compound and first liquid, or the same emulsion as “emulsion is encapsulated by a solid shell layer” indicated in line 7-8. For the purpose of prior art examination, the claim is interpreted as a method of preservation of an active compound, is brought in a hydrophilic liquid (as first liquid), then brought in a hydrophobic liquid (as second liquid), an emulsion is formed and encapsulated by a surrounding hydrophilic solid shell layer.
The following claims in b.- f. are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims. A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c).
Claim 2 recites the broad recitation “first liquid comprises water or a water-free hydrophilic solvent”, and the claim also recites “particularly glycerine, glycerol or poly(ethylene glycol)”, which is the narrower statement of the range/limitation.
Claim 3 recites the broad recitation “at least one of organic oils”, and the claim also put “vegetable or animal” in parentheses, which is the narrower statement of the range/limitation if it is interpreted as organic vegetable or animal oils, however, the parentheses also makes it unclear whether “vegetable or animal” is meant to be part of the claim or not.
Claim 4 recites the broad recitation “second liquid comprises a fat or wax”, and the claim also recites “preferably having a size smaller than 1 millimetre”, which is the narrower statement of the range/limitation.
Claim 5 recites the broad recitation “solidify below 40 C”, and the claim also recites “particularly between room temperature and human body temperature”, which is the narrower statement of the range/limitation.
Similarly, Claims 9, 10-22, 24-25, 29-30 all recite a broad recitation with the word “particularly” or “preferably”, which is a narrower statement of the range/limitation. For purpose of prior art examination, these claims are interpreted as broad ranges/limitations, while narrower ranges/limitations are considered as optional examples.
Claims 8, 18, 27-30 recites “selected from a group”, the “a” makes it indefinite as to whether other groups could also be selected from, i.e. claim 28, what group of vitamins, anti-oxidants, proteins could the active compound be selected from? Or does it mean active compound can be selected from “vitamins, anti-oxidants, proteins and/or derivatives thereof” as alternatives constituting “the group” that active compound can be selected from? MPEP2111.03.II states that “[a] claim element defined by selection from a group of alternatives requires selection from a closed group "consisting of" (rather than "comprising" or "including") the alternative members. Abbott Labs. v. Baxter Pharmaceutical Products Inc., 334 F.3d 1274, 1280, 67 USPQ2d 1191, 1196-97 (Fed. Cir. 2003). If the claim element is intended to encompass combinations or mixtures of the alternatives set forth in the Markush grouping, the claim may include qualifying language preceding the recited alternatives (such as "at least one member" selected from the group), or within the list of alternatives (such as "or mixtures thereof"). Id. In the absence of such qualifying language there is a presumption that the Markush group is closed to combinations or mixtures. Cf. Multilayer Stretch Cling Film Holdings, Inc. v. Berry Plastics Corp., 831 F.3d 1350, 1363-64, 119 USPQ2d 1773, 1784-85 (Fed. Cir. 2016)”.
Claim 13 recites “including recombinant proteins and /or derivatives of these materials” at the end of the claim. MPEP 2111.03. I. states that, “The transitional term "comprising", which is synonymous with "including," "containing," or "characterized by," is inclusive or open-ended and does not exclude additional, unrecited elements or method steps. See, e.g., Mars Inc. v. H.J. Heinz Co., 377 F.3d 1369, 1376, 71 USPQ2d 1837, 1843 (Fed. Cir. 2004) ("[L]ike the term ‘comprising,' the terms ‘containing' and ‘mixture' are open-ended."). Invitrogen Corp. v. Biocrest Manufacturing, L.P., 327 F.3d 1364, 1368, 66 USPQ2d 1631, 1634 (Fed. Cir. 2003) ("The transition ‘comprising' in a method claim indicates that the claim is open-ended and allows for additional steps."); Genentech, Inc. v. Chiron Corp., 112 F.3d 495, 501, 42 USPQ2d 1608, 1613 (Fed. Cir. 1997) ("Comprising" is a term of art used in claim language which means that the named elements are essential, but other elements may be added and still form a construct within the scope of the claim.); Moleculon Research Corp. v. CBS, Inc., 793 F.2d 1261, 229 USPQ 805 (Fed. Cir. 1986).
If “including” means “comprising”, it is unclear whether all of the claimed materials have to include recombinant proteins and/or derivatives of these materials or if only synthetically derived materials comprise/include recombinant proteins and/or derivatives of these materials or what is meant by applicant’s including recombinant proteins and/or derivatives of these materials language as it is written.
Claim 18 recites “including any of the oxidized forms of these materials”. Same as above regarding claim 13, if “including” means “comprising”, it is unclear whether all of these materials have to include oxidized forms. See claim 13 above of MPEP 2111.03.II.
Claim 18 recites “such as silicon dioxide or silica” at the end of the claim. The phrase "such as" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Claim 22 recites “a compound from a group of ”. The language of “from a group of” is not closed and it renders indefinite because it is unclear what else is in the group and/or what is excluded from the group.
Claim 23 recites “such as particles containing …”. The phrase "such as" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Claim 24 recites “at a predetermined level”. It is unclear what the predetermined level is and how it is determined.
All other claims are rejected accordingly because they are directly or indirectly depending on claim 1, and they do not further clarify the issues in claim 1.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-5, 9-13 and 25-29 are rejected under 35 U.S.C. 102 as being anticipated by Yasue et al. (Lion Corp, JP H10174861, 06/30/1998, IDS of 02/03/2023, English copy of machine translation uploaded, PTO-892).
Yasue directs to hydrophilic core substance-containing polynuclear microcapsules for cosmetics, pharmaceuticals or foods, which are prepared by microencapsulating hydrophilic core substances that are chemically or physically unstable (corresponding to reactive active compound in instant claim 1) or have a bitter taste or an unpleasant odor, and to a method for producing microcapsules which can stably and efficiently prepare hydrophilic core substance-containing polynuclear microcapsules by utilizing a W/O/W type composite emulsion [0001]. Yasue describes the emulsion preparation method in detail, including the following steps: emulsifying an inner aqueous phase containing a hydrophilic core substance (corresponding to active compound in hydrophilic liquid, the first liquid, in instant claims 1-2 and 11) in an oil phase containing an oil (corresponding to hydrophobic liquid, the second liquid, in instant claims 1 and 11) and an emulsifier to form a W/O type emulsion (corresponding to forming an emulsion in instant claim 1), and then dispersing and emulsifying the W/O type emulsion in an outer aqueous phase containing a hydrophilic membrane-forming substance of a water-soluble polymer compound that gels upon temperature change, to form a W/O/W emulsion having the W/O type emulsion particles as dispersoids, and then changing the temperature to solidify the hydrophilic film-forming substance in the outer aqueous phase of the W/O/W composite emulsion particles, thereby forming a microcapsule membrane of the hydrophilic film-forming substance that covers the W/O emulsion particles (corresponding to emulsion is encapsulated by a solid hydrophilic shell layer as recited in instant claim 1) ([0010]; Claim 1).
Yasue teaches that hydrophilic core substance is dissolved in water to prepare the aqueous phase [0025], as well as the film-forming substance is dissolved in aqueous solvent such as water [0022] (corresponding to instant claim 2). Yasue teaches suitable oils including vegetable oils such as corn oil, soybean oil, peanut oil, cottonseed oil, etc.; animal oils such as beef tallow (a specific type of fat), lard (fat from pig), squid oil, whale oil, etc.; and synthetic oils such as medium-chain triglycerides, being used alone or in appropriate combination of two or more [0014] (corresponding to instant claims 3 and 9, and second liquid comprising fat in instant claim 4). Yasue exemplified the preparation of W/O emulsion in Example 2, wherein an oil phase (80.0% by weight of corn oil, 20.0% by weight of oleic acid monoglyceride) were mixed and stirred for 2 minutes at 35 C [0046] (corresponding to instant claim 5). As shown in Example 1, Yasue teaches active compound ascorbic acid (vitamin C) is dissolved in purified water before being brought to oil phase for preparing the W/O/W microcapsule emulsion [0044] (corresponding to instant claims 10 and 27-29). Yasue teaches the microcapsule diameter is 50 to 3000 um for the emulsion ([0010]; Claim 2) (maximum volume for the microcapsule would be 27 mm3 = 0.027 ml, which is less than 1 ml, corresponding to instant claim 26). Yasue teaches the ratio of average particle diameter of the encapsulated emulsion to the microcapsule diameter would be greater than 0 and under 1/10 (implying that the emulsion particles inside the microcapsule would maximum have a size of 300 um, corresponding to second liquid comprising fat in a form of micro-particles in instant claim 4), and particle diameter of the internal aqueous phase particles would have a ratio of below 1/10 when compared to the emulsion particle size, which would result in maximum size at 30 um ([0010]; Claim 2), corresponding to active compound particle size in instant composition. When ascorbic acid is used in Yasue’s formulation, it is anticipated that its particle size would be microsized as being defined at maximum size at 30 um as the internal aqueous phase particles (corresponding to instant claim 25). Yasue specifies that a water-soluble polymer as film-forming substance to generate microcapsules for the composition can be one or more of gelatin, agar, carrageenan, gellan gum, polyvinyl alcohol, methylcellulose, glucomannan, curdlan, and furcellaran [0020] (corresponding to instant claims 12-13).
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-30 are rejected under 35 U.S.C. 103 as being unpatentable over Yasue et al. (Lion Corp, JP H10174861, 06/30/1998, IDS of 02/03/2023, English copy of machine translation uploaded, PTO-892) as applied to claims instant claims 1-5, 9-13 and 25-29 above and further in view of Postma et al (WO2018053356, 03/22/2018, PTO-892).
As discussed above in detail and incorporated herein regarding instant claims 1-5, 9-13 and 25-29, in brief summary, Yasue teaches a method for preserving active ingredient, e.g., ascorbic acid, to allow it dissolve in a hydrophilic liquid such as water (as first liquid) and then bring it to an oil phase like vegetable oil or fat (as second liquid), to form a O/W emulsion, while the hydrophilic polymer network in the aqueous phase forms a microcapsule shell around the emulsion, and thus stabilizes the active ingredient in the core.
Yasue does not teach second liquid comprising a solid wax or fat is added in the form of solid micro-particles and subjected to a heat treatment to at least partly melted as recited in instant claim 6, wax or fat melting point below 90 C as recited in instant claim 7, wax or fat species as recited in instant claim 8. Yasue also does not explicitly teach the polymer network comprises a cross-linked or inter-penetrating alginate network as recited in instant claim 14, and Yasue does not teach bivalent cations being added to first liquid as recited in instant claim 15, emulsion being stabilized by solid particles absorbing onto interphase of the two liquids as recited in instant claim 16, solid particles in claim 16 being charged and an electrostatically charged agent with same polarity being added to first liquid as recited in instant claim 17, solid particle species as recited in instant claim 18, solid particles being hydrophobized as recited in instant claim 19, solid particles comprising fumed silica nano-particles as recited in instant claim 20, solid particles comprising bio-compatible micro-particles and/or nano particles as recited in instant claim 21, solid particles comprising a biodegradable compound or being hydrophobized by functionalizing or coating with a biodegradable compound as recited in instant claim 22, solid particles comprising food grade stabilizers as recited in instant claim 23, pH adjusting agent being added to first liquid as recited in instant claim 24, active compound comprising at least one anti-oxidant as recited in instant claim 30.
Postma directs to consumer products containing microcapsule compositions each comprising a microcapsule suspended in an aqueous phase and a viscosity control agent, wherein the viscosity control agent is an acrylate copolymer, a cationic acrylamide copolymer, or a polysaccharide (Abstract), and many types of active agents can be encapsulated including vitamins, e.g., vitamin C (ascorbic acid) (Pg. 32, (iv) section, Lines 15-20) and antioxidants such as diphenyl compounds, phenolic compounds and others (Pg. 32, (vii) section, Lines 27-30) (corresponding to instant claim 30). Postma teaches that the composition can be used to produce personal care products including cosmetic or pharmaceutical preparations, particularly preferred as O/W type or W/O/W emulsion (Pg. 55, top, g) section), with an example of wax-based deodorant containing paraffin wax (corresponding to instant claim 8), hydrocarbon wax, in addition to mineral oil (corresponding to second liquid in instant claims 1 and 3), and the formulation is prepared by mixing the wax-based ingredients, heating the resultant composition to 75 °C until melted (corresponding to instant claim 6), with stirring, adding 4% cryogenically ground polymer containing a fragrance while maintaining the temperature 75 °C (corresponding to melting point below 90 C in instant claim 7), and stirring the resulting mixture in order to ensure a uniform suspension while a composition of this invention is added to the formulation (Pg. 55, x. section).
Postma teaches that microcapsule in the composition is an core-shell microcapsule having a microcapsule wall and a microcapsule core encapsulated by the microcapsule wall; the microcapsule wall is formed of an encapsulating polymer selected from the group consisting of a polyacrylate, polyurea, polyurethane, polyacrylamide, polyester, polyether, polyamide, poly(acrylate-coacrylamide), starch, silica, gelatin and gum Arabic, alginate, chitosan, polylactide, poly(melamine-formaldehyde), poly(urea-formaldehyde), and combination thereof (Pg. 67, Claim 3). "Products of identical chemical composition cannot have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable, as indicated in MPEP 2112.01.II. When alginate polymer is used in microcapsule preparation, inter-penetrating network is inherent property of alginate as in instant claims 13-14. Postma also specifies that the encapsulating polymer can be a polyurea or polyurethane, while polyurethane can be generated using a cross-linking agent such as polyfunctional alcohol reacting with polyfunctional isocyanate (Pg. 67, Claim 4), corresponding to a cross-linked polymer network in instant claim 14.
Postma indicates that viscosity control agent is added to stabilize the microcapsule composition (Pg. 5, 10-14), and the viscosity control agent is not part of the microcapsule wall, it is dispersed homogenously in the aqueous (corresponding to first liquid in instant claims) phase and stays outside the microcapsule wall (Pg. 6, Lines 1-2). Postma teaches that suitable viscosity control agents include acrylate copolymer, cationic acrylamide copolymer, polysaccharide (Pg. 6, Lines 21-22), fine clay particles having net negative electrostatic charge and being balanced by presence of charge balancing ions, such as calcium or magnesium (bivalent cations)(Pg. 9, Lines 16-21). Postma teaches that preferred negatively charged clays are 2:1 phyllosilicates, e.g., smectite clays having general formula of Al2(Si2O5)2(OH)2.nH2O or Mg3(Si2O5)2(OH)2.nH2O (Pg. 9, Lines 22-25) (corresponding to instant claims 15 and 17). Postma indicates gum Arabic, xanthan, agar, alginate salts, cellulose derivatives such as carboxymethyl cellulose, carrageenan, polyacrylic and methacrylic acid are suitable non-protein polymers that can be negatively charged (Pg. 25, Lines 26-29), and Postma teaches that the capsule and the polymer need to be compatible with the chemistry, e.g., polarity of the desired interface (Pg. 40, Lines 15-16). Postma exemplifies anionic acrylate copolymer such as ACULYNTM 33 used as viscosity control agent together with anionic surfactant Morwet D-425 (sodium salt, a solid particle) as microcapsule formation aid (Pg. 26, Lines 14-19) in aqueous phase in Example 1 (Pg. 61, Lines 1-24) (corresponding to instant claim 17).
Postma teaches that adjunct materials can be incorporated into the microcapsule composition including emollients, and core modifier materials in the core encapsulated by the capsule wall (interface between oil and water phases). Other adjunct materials are solubility modifiers, density modifiers, stabilizers, viscosity modifiers, pH modifiers, or any combination thereof. These modifiers can be present in the wall or core of the capsules, or outside the capsules in the microcapsule compositions (Pg. 35, Lines 10-14). Nanoscale solid particulate materials including metal or metallic particles, metal alloys, polymer particles, wax particles, inorganic particulates, minerals and clay particles, can be incorporated into the core as adjunct materials (Pg. 36, Lines 1-3) (corresponding to instant claim 16), and metal particles can be selected from a non-limiting list of main group elements, transition metal and post-transition metal elements including aluminum (Al), silica (Si), Titanium (Ti), chromium (Cr), manganese (Mn), iron (Fe), nickel (Ni), cobalt (Co), copper (Cu), gold (Au), silver (Ag), platinum (Pt) and palladium (Pd) (Pg. 36, Lines 5-9) (corresponding to instant claim 18). Postma points out that a free flow agent (anticaking agent) of silicas which can be hydrophobic (i.e. silanol surface treated with halogen silanes, alkoxysilanes, silasanes, siloxanes, etc.) (Pg. 46, Lines 32-35) (Corresponding to instant claims 19 and 20).
Postma also teaches that microcapsule formation aids are used as dispersants (namely emulsifiers or surfactants) to facilitate the formation of stable emulsions containing nano- and micro-sized oil drops to be encapsulated (Pg. 26, Lines 1-3). Preferred microcapsule formation aids include alginate, hyaluronic acid, sodium salt of naphthalene sulfonate condensate (same as Morwet D425, Pg. 28, Lines9-10), and many others (Pg. 26, Lines 14-19), and natural dispersants include carrageenan, chitosan, cellulose gum, gum Arabic, silk protein, and many others (Pg. 28, Lines 18-20), which are biodegradable (corresponding to instant claims 21-22). Postma teaches that food-grade dispersants, natural or non-natural products, can be used for the formulation (Pg. 28, Lines 11-14), and natural dispersants include lecithins, gum Arabic, pectin, carrageenan, chitosan, cellulose gum, modified starch, whey protein, pea protein, egg white protein, silk protein, gelatin of fish, fatty acids and others (Pg. 28, Lines 18-21), which are also biodegradable and biocompatible compounds (corresponding to instant claims 22-23). Postma specifies that pH modifiers including carboxylic acids, amino acids, metal carbonates and bicarbonates and others can be added to the capsule composition (Pg. 39, Lines 25-32) (corresponding to instant claim 24).
It would have been prima facie obvious for one with ordinary skills in the art prior to filing date to incorporate Postma’s teaching of the disclosed stabilizing components into the method taught by Yasue to arrive at current invention to preserve active compound, e.g., ascorbic acid, in microcapsulated emulsion. Because Yasue specifically teaches that the microcapsulated emulsion method allows unstable compounds to dissolve in water phase and then be emulsified with oil phase and encapsulated in hydrophilic shell, and therefore stably and efficiently encapsulating the hydrophilic active material in the core, while Postma teaches stabilizing agents for microcapsule compositions comprising hydrophilic core, it follows the logic flow for an artisan in the field to take opportunities to elect the stabilizing agents taught by Postma and incorporate into Yasue’s method for reasonable expectation of success. This renders obviousness as “use of known technique to improve similar devices (methods, or products) in the same way” or as “applying a known technique to a known device (method, or product) ready for improvement to yield predictable results”. See MPEP §2143. (I)(C) and (I)(D). Moreover, it is well settled that it is a matter of obviousness for one of ordinary skill in the art to select a particular component from among many disclosed by the prior art as long as it is taught that the selection will result in the disclosed effect. Merck & Co., Inc. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989); In re Corkill, 771 F.2d 1496, 1500 (Fed. Cir. 1985).
Conclusion
No claim is allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DONGXIU ZHANG SPIERING whose telephone number is (703)756-4796. The examiner can normally be reached 7:30am-5:00pm (Except for Fridays).
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/DX.Z./Examiner, Art Unit 1616
/ERIN E HIRT/Primary Examiner, Art Unit 1617