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 .
DETAILED ACTION
The Examiner of your application in the PTO has changed. All correspondence regarding this application should be directed to Examiner Lori Mattison in Group Art Unit 1619.
Claims Status
Applicant’s claim amendments and arguments in the response filed 24 January 2026 are acknowledged.
Claims 1-20 are pending
Claims 17-20 are new.
Claims 1-6, & 9 are amended.
Claims 7 and 12-16 are withdrawn.
Claims 1-6, 8-11 & 17-20 are under current examination.
Withdrawn Rejections
The rejection of claims 2-6 under 35 USC 112 (b) is withdrawn due to the removal of the parenthesis from the unit of measure, indicating that weight percent is required by the claim.
The rejection of claim 5 under 35 USC 112 (b) is withdrawn due to deletion of the indefinite language, “such as”.
The rejection of claim 6 under 35 USC 112 (b) is withdrawn due to deletion of improper Markush language.
The rejection of claims 5-6 under 35 USC 112 (b) is withdrawn due to claim 5 & 6 amendments to recite “the at least one sunscreen active agent”
The rejection of claim 9 under 35 USC 112 (b) is withdrawn due to changing the dependency of the claim to correct a lack of antecedent basis.
New & Maintained Rejections
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-6, 8-11 and 17-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a natural phenomenon without significantly more.
In accordance with MPEP § 2106, claims found to recite statutory subject matter (Step 1: YES) are then analyzed to determine if the claims recite any concepts that equate to an abstract idea, law of nature, or natural phenomenon (Step 2A, Prong One). In the instant application, the claims recite the following limitations:
A cosmetic composition comprising: a cosmetic formulation comprising at least one sunscreen active agent; and benthic pennate diatom frustules. Claims 2-4 recite the amount of the benthic pennate diatom frustules, and claim 5 recites the amount of sunscreen active. Claims 6 & 17 recites the type of the inorganic sunscreen active (e.g. titanium dioxide). Claim 18 recites the cosmetic composition comprises a preservative. Claim 19 recites the biomass of the benthic pennate frustules has been removed and claim 20 recites the frustules are whole.
The claims are directed to a judicial exception such as a natural phenomenon (e.g., product of nature) as the only compositional requirement set forth in the instant claims is that the composition comprises a combination of naturally occurring ingredients of a preservative, titanium dioxide and benthic pennate diatom frustules. The ordinary artisan before the effective filing date knew that sodium chloride is naturally occurring and is a preservative. Anderson et al. (previously cited) teach that titanium dioxide is formed naturally in the environment, see page 2.
Allert et al. (WO2017211892; previously cited) teach that benthic pennate diatoms may grow on stones in the bottom sediment or on other surfaces that are covered with water, see page 5, lines 4-10. Lavaud et al. teach that diatoms are unicellular microalgae organisms, see definition. There are two groups of diatoms, centris and pennate, see diversity and evolution. Pennate diatoms are benthic and dominate biofilm forming communities that colonize intertidal and well-lit subtidal sediments, see introduction, diversity and evolution sections. The silicified cell wall of diatoms is a frustule, see siliceous cell wall. Accordingly, sodium chloride, titanium dioxide and benthic pennate diatom frustules are found in nature. Claim 9 recites that the carrier is water which does not add an element beyond the judicial expectation as water is naturally occurring. The fact that the water can be removed to render the frustules in powdered form (i.e. a dry product) does not add an element beyond the judicial exception because removal of water by removing from sediment in water does not change the structure of diatom frustules as the dry product is still composed of naturally occurring benthic pennate diatom frustules.
MPEP 2106.04(c) states that the markedly different characteristics analysis is part of Step 2A Prong One: “Where the claim is to a nature-based product produced by combining multiple components (e.g., a claim to "a probiotic composition comprising a mixture of Lactobacillus and milk"), the markedly different characteristics analysis should be applied to the resultant nature-based combination, rather than its component parts. For instance, for the probiotic composition example, the mixture of Lactobacillus and milk should be analyzed for markedly different characteristics, rather than the Lactobacillus separately and the milk separately. See subsection II, below, for further guidance on the markedly different characteristic analysis.”
Further, from MPEP 2106.04(c): “The markedly different characteristics analysis compares the nature-based product limitation to its naturally occurring counterpart in its natural state. Markedly different characteristics can be expressed as the product’s structure, function, and/or other properties, and are evaluated based on what is recited in the claim on a case-by-case basis. If the analysis indicates that a nature-based product limitation does not exhibit markedly different characteristics, then that limitation is a product of nature exception. If the analysis indicates that a nature-based product limitation does have markedly different characteristics, then that limitation is not a product of nature exception.”
The guidelines for performing the markedly different characteristics analysis, include (a) selecting the appropriate naturally occurring counterpart(s) to the nature-based product limitation, (b) identifying appropriate characteristics for analysis, and (c) evaluating characteristics to determine whether they are "markedly different".
Regarding (a), MPEP 2106.04(c) recites: “When the nature-based product is a combination produced from multiple components, the closest counterpart may be the individual nature-based components of the combination. For example, assume that applicant claims an inoculant comprising a mixture of bacteria from different species, e.g., some bacteria of species E and some bacteria of species F. Because there is no counterpart mixture in nature, the closest counterparts to the claimed mixture are the individual components of the mixture, i.e., each naturally occurring species by itself. See, e.g., Funk Bros., 333 U.S. at 130, 76 USPQ at 281 (comparing claimed mixture of bacterial species to each species as it occurs in nature); Ambry Genetics, 774 F.3d at 760, 113 USPQ2d at 1244 (although claimed as a pair, individual primer molecules were compared to corresponding segments of naturally occurring gene sequence); In re Bhagat, 726 Fed. Appx. 772, 778-79 (Fed. Cir. 2018) (non-precedential) (comparing claimed mixture of lipids with particular lipid profile to "naturally occurring lipid profiles of walnut oil and olive oil").”
In the instant case, the closest counterparts to the claimed mixture are the individual components of the mixture: a preservative (sodium chloride), a sunscreen active (titanium dioxide) and benthic pennate diatom frustules.
Regarding (b), MPEP 2106.04(c) recites: “Appropriate characteristics must be possessed by the claimed product, because it is the claim that must define the invention to be patented. Cf. Roslin, 750 F.3d at 1338, 110 USPQ2d at 1673 (unclaimed characteristics could not contribute to eligibility). Examiners can identify the characteristics possessed by the claimed product by looking at what is recited in the claim language and encompassed within the broadest reasonable interpretation of the nature-based product. In some claims, a characteristic may be explicitly recited.”
In the instant case, the appropriate characteristic for the preservative, sunscreen active and benthic pennate diatom frustules for its intended use as a cosmetic.
Regarding (c), MPEP 2106.04(c)recites: “The final step in the markedly different characteristics analysis is to compare the characteristics of the claimed nature-based product to its naturally occurring counterpart in its natural state, in order to determine whether the characteristics of the claimed product are markedly different. The courts have emphasized that to show a marked difference, a characteristic must be changed as compared to nature, and cannot be an inherent or innate characteristic of the naturally occurring counterpart or an incidental change in a characteristic of the naturally occurring counterpart. Myriad, 569 U.S. at 580, 106 USPQ2d at 1974-75. Thus, in order to be markedly different, the inventor must have caused the claimed product to possess at least one characteristic that is different from that of the counterpart.
If there is no change in any characteristic, the claimed product lacks markedly different characteristics, and is a product of nature exception. If there is a change in at least one characteristic as compared to the counterpart, and the change came about or was produced by the inventor’s efforts or influences, then the change will generally be considered a markedly different characteristic such that the claimed product is not a product of nature exception.”
Here, the specification does not indicate what the preservative does. However, preservatives preserve by definition. The ordinary skilled artisan knew of natural preservatives, including sodium chloride, preserve. The specification indicates that the frustules claimed boosts SPF. Kuehnle teaches that biomineralized products boost SPF and/or UVA-PF protection provided in sunscreens with silica in frustules being combined with titanium dioxide having the advantages of scattering UV radiation, see paragraphs [0131] and [0220]. Thus Kuehnle suggests that diatom frustules with a sunscreen active (titanium dioxide) boost SPF properties. As discussed above, benthic pennate diatoms and titanium dioxide are both found in nature.
Consequently, the claimed composition lacks markedly different characteristics and is a product of nature exception (Step 2A, Prong 1: YES)
Claims found to recite a judicial exception under Step 2A, Prong 1 are then further analyzed to determine if the claims as a whole integrate the recited judicial exception into a practical application or not (Step 2A, Prong 2).
This judicial exception is not integrated into a practical application because there are no additional elements recited in the claims beyond the judicial exception. From MPEP 2106.04(d): “Because a judicial exception alone is not eligible subject matter, if there are no additional claim elements besides the judicial exception, or if the additional claim elements merely recite another judicial exception, that is insufficient to integrate the judicial exception into a practical application.” (Step 2A, Prong 2: NO).
Claims found to be directed to a judicial exception are then further evaluated to determine if the claims recite an inventive concept that provides significantly more than the judicial exception itself (Step 2B).
As noted above, there are no additional elements recited in the claims beyond the judicial exception, and a judicial exception alone is not eligible subject matter (Step 2B: NO). The claims do not recite anything else, compositionally or structurally, which provides an inventive concept that departs from merely reciting a composition containing all naturally occurring components. The amounts recited in the dependent claims not appear to add significantly more. Furthermore, the claimed amounts for the titanium dioxide sunscreen active and benthic pennate diatoms are known for use in cosmetic products. Corinaldesi et al. teach that inorganic UV filters including titanium dioxide are often used in sunscreen due to their broad UV protection and limited penetration into skin, see abstract and entire document. The maximum concentration for sunscreen products in the U.S. includes 12%, see section 2.2. Antoine et al. teach cosmetic compositions which comprise diatom frustules. The cosmetic composition is used for the protection against UV radiation, see claim 1 and 8.The diatom frustules can be present from 0.1-10% weight. The fact that the natural product is cultured does not add anything more beyond the judicial exception. The fact that the frustules are whole and have had the biomass removed (which would occur through the natural process of decay) does not add anything more beyond the judicial exception.
Therefore, simply combining the naturally occurring ingredients for cosmetic use would not provide significantly more than the judicial exception.
Therefore, the claims are not patent eligible subject matter under 35 USC § 101.
Response to Arguments
Applicant argues the claim is no longer rejectable under 35 USC 101 because it recites a cosmetic sunscreen formulation which is a “non-natural/manmade component” and that this component comprises a naturally occurring inorganic sunscreen active agent and another naturally occurring component which is the benthic pennate diatom frustules (reply, pg. 5 & 6).
This is not persuasive. Applicant appears to be arguing a feature to be more than what is. All claim 1 requires is a cosmetic sunscreen formulation and benthic pennate diatom frustules. The cosmetic sunscreen formulation is only required to have at least one sunscreen active ingredient (e.g. titanium dioxide, which is naturally occurring). The only other compositionally required element is the benthic pennate diatom frustules. As such, only two reagents are required by instant claim 1 and they are both natural products.
Applicant argues titanium dioxide and benthic pennate diatom frustules do not occur together in nature and the admixture of benthic pennate diatom frustules resulted in a remarkable increase in SPF (reply, pg. 6).
This is not persuasive. The fact that two nature based products do not occur together in nature is not basis for patent eligibility. The basis for patent eligibility is inventive application. In the instant case, the frustules and titanium are natural products that remain unchanged.
With regard to Applicant’s argument that the admixture of pennate diatom frustules and at least one sunscreen resulted in a remarkable increase in SPF, Kuehnle teaches that biomineralized products boost SPF and/or UVA-PF protection provided in sunscreens with silica in frustules being combined with titanium dioxide having the advantages of scattering UV radiation, see paragraphs [0131] and [0220]. Thus Kuehnle suggests that diatom frustules with a sunscreen active (titanium dioxide) boost SPF properties. As discussed above, benthic pennate diatoms and titanium dioxide are both found in nature. Similar to Funk Bros. Seed Company, it appears that Applicant has simply found that the combination of benthic pennate diatoms and titanium dioxide scatter light. The benthic pennate diatoms and titanium dioxide are unchanged and the property of light scattering is a work of nature. The combination of two reagents recognized to scatter ultraviolet light (i.e. boost SPF) does not create a new product with new properties. Applicant has not argued synergism. It is noted that synergism is a greater than additive effect. However, a formulation of benthic pennate diatoms alone was not evaluated for their effect on SPF. As such, synergism cannot be established from the results in the as-filed specification.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 19 & 20 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. This new matter.
Claim 19 requires the organic biomass of the benthic pennate frustules to be removed. The reply filed 11/17/2025 states support is found at page 5, ll. 10-11 and Table 2. This is not persuasive. Page 5, ll. 10-11 are directed to one sunscreen active agent being an organic or inorganic active agent but does not teach frustules, let alone the biomass of the frustules being removed. Table 2 does not teach inclusion of frustules and only lists other ingredients in the composition. No proper antecedent basis or description appears to be provided within the instant specification for the newly added limitation of the organic biomass of the benthic pennate frustules being removed. Thus, the claim amendments broaden the scope of the disclosure; thereby, constituting new matter.
Claim 20 requires the frustules be whole frustules. The reply filed 11/17/2025 states support is found at page 5, ll. 10-11 and Table 2. This is not persuasive. Page 5, ll. 10-11 are directed to one sunscreen active agent being an organic or inorganic active agent but does not teach whole frustules. Table 2 does not teach whole frustule but lists other ingredients in the composition including preservatives. No proper antecedent basis or description appears to be provided within the instant specification for the newly added limitation of “whole frustules". Thus, the claim amendments broaden the scope of the disclosure; thereby, constituting new matter. Applicant is invited to indicate by page and line number where support may be found.
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 17, 19 & 20 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 17 recites the limitation "the at least one inorganic sunscreen active agent" in lines 1-2. There is insufficient antecedent basis for this limitation in the claim.
Applicant may wish to consider whether an amendment to change the dependency of claim 17 to claim 6 would obviate the rejection.
Claim 19 recites the limitation “the organic biomass” in line 1. There is insufficient antecedent basis for this limitation in the claim.
Claim 20 is rejected under 35 USC 112(b) because it depends from indefinite claim 19 and does not clarify the issue.
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 1-4, 6, 8-11, & 17-20 are rejected under 35 U.S.C. 103 as being unpatentable over Antoine et al. (FR3054128; previously cited) in view of Allert et al. (WO2017211892; previously cited) and Kuehnle et al. (United States Patent 20200232003; previously cited).
Antoine et al. teach cosmetic compositions which comprise diatom frustules, see abstract, pages 2-5 and 7-10. The cosmetic composition is used for the protection against UV radiation, see abstract, pages 2-4, 5-8 and claims 1 and 8.The diatom frustules can be present from 0.1-10% weight in the purified state, however since the biomineral compounds are taught to be present in either the native or alternative state for the cosmetic composition, it would have been obvious to provide the diatom frustules within this amount in the native state for a cosmetic composition. Antoine et al. teaches a basic cream which comprises phenoxy ethanol (i.e. a preservative; pg. 9).
Antoine does not expressly teach the presence of an inorganic sunscreen active or that the diatom frustules comprise benthic pennate diatom frustules in a dry powder state.
Allert et al. teach frustules extracted from benthic pennate diatoms that are provided as a powder or liquid solution, see abstract, page 2, lines 10-28, page, 3, lines 10-20, page 9, lines 8-33. The frustules traps energy of ultraviolet range light. Benthic pennate diatoms may have thicker frustules than other diatoms which makes them more durable than frustules from other diatoms. In other words, the benthic pennate diatoms are more heavily silicified than other diatoms, see page 4, lines 21-32. Compared to centric diatoms, pennate diatoms are also easier to cultivate industrially in larger scale, see page 4, lines 23-25. The benthic pennate diatoms can be provided as a dry powder mixed with titanium dioxide, see page 14, lines 29-31 and page 16, lines 12-16. Furthermore, the frustules can be provided as a solution, see pages 4-5. The frustules can absorb ultraviolet energy, see page 17, lines 1-4. Albert et al teaches the frustules are separated from organic biomass comprised in said benthic pennate diatoms (abstract). Figure 1b shows the frustules are whole.
Kuehnle et al. teach that for sunscreens, frustules which contain silica when combined with titanium dioxide scatters light including UV radiation and contributes to the opacity of the formulation, see paragraph [0220]. The sunscreen powders can further comprise inorganic UV blocking compound, see paragraphs [0110] and [0305].
It would have been prima facie obvious to substitute the diatom frustules of Antione for benthic pennate diatom frustules in powder or aqueous form which are whole and separated from the organic biomass of benthic pennate diatoms as taught by Albert because Antione and Albert are both directed to frustules and their impact on UV radiation. One of ordinary skill in the art would have been motivated to do so, with an expectation of success, because Allert teaches that these diatoms are more durable than other diatoms and easier to cultivate.
It would have been further obvious to include a sunscreen active of titanium dioxide with benthic pennate diatoms because frustules which contain silica when combined with titanium dioxide scatters UV light.
There would have been a reasonable expectation of success because the benthic pennate diatoms are taught in Allert to be more silicified than other diatoms and per the teachings of Kuehnle, sunscreens comprising frustules with silica work advantageously with titanium dioxide to scatter light. Furthermore, both Antoine and Kuehnle teach formulations which protect against UV radiation with Antione teaching the use of diatom frustules and Allert suggests that diatoms including benthic pennate diatom frustules absorb ultraviolet energy.
Regarding instant claim 11 in that the frustules are extracted from cultured and harvested benthic pennate diatoms, the patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (citations omitted). Here, the modified Antione arrives at the claimed benthic pennate diatom frustules and thus meets the claim.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Antoine et al. in view of Allert et al. and Kuehnle et al. as applied to claims 1-4, 6, 8-11 & 17-20 above, and further in view of Corinaldesi et al. (Impact of inorganic UV filters contained in sunscreen products on tropical stony corals (Acropora spp.; previously cited).
The teachings of the modified Antione et al. are discussed above. Titanium dioxide is taught to be combined with frustules having silica to hep scatter light in sunscreen products.
However, the modified Antione does not expressly teach that the titanium dioxide is present in amounts from 01.-75% by weight or 1-50% by weight.
Corinaldesi et al. teach that inorganic UV filters including titanium dioxide are often used in sunscreen due to their broad UV protection and limited penetration into skin, see abstract and introduction. The maximum concentration for sunscreen products in the U.S. includes 12%, see section 2.2. A modified titanium dioxide Optisol® offers the same advantages as untreated titanium dioxide without bleaching of the coral reefs, see abstracts, section 2.1, results and discussion.
It would have been prima facie obvious to provide the titanium dioxide of the modified Antione with Optisol® (titanium dioxide) present at up to 12% by weight.
One of ordinary skill in the art would have been motivated to do so because both Kuehnle and Corinaldesi teach the use of titanium dioxide in sunscreens, with Corinaldesi suggesting that Optisol® titanium dioxide offers superior ecological advantages over unmodified zinc oxide. Furthermore, Corinaldesi teaches that the amount of titanium dioxide that can be utilized in sunscreens can be up to 12% by weight. There would have been a reasonable expectation of success because Antione’s cosmetic formulations are taught to protect against UV radiation.
Response to Arguments
Applicant argues Antoine fails to show a UV protective effect (pg. 7).
Applicant’s argument is not commensurate with the scope of the claims. The claims are directed to a cosmetic composition comprising just two reagents: a) at least one sunscreen active agent and b) benthic pennate diatom frustules.
Applicant argues Allert is in a different field of endeavor and that field is directed to use of frustules to enhance the efficiency of solar cells (reply, pg. 7). Applicant argues Allert teaches away from using benthic pennate diatoms because Allert teaches improvement in the efficiency of solar cells by enhancing contact with sunlight (reply, pg. 7).
This is not persuasive. In KSR International Co. v. Teleflex Inc. an exemplary rationale set forth by The Supreme Court for obviousness was: known work in one field of endeavor may prompt variations of it for use in either the same field or a different one based on design incentives or other market forces if the variations are predictable to one of ordinary skill in the art. In the instant case, Antoine teaches cosmetics comprising diatom frustules. Allert teaches benthic pennate diatoms may have thicker frustules than other diatoms which makes them more durable than frustules from other diatoms and are easier to cultivate. It would have been prima facie obvious to the ordinary skilled artisan before the effective filing date to substitute Antoine’s diatom frustules with Allert’s benthic pennate diatoms in order to provide a cosmetic with more durable frustules which have the added benefit of being easier to culture.
Applicant argues Kuehnle reference individually, citing that Kuehnle relates to subterranean diatoms and not benthic pennate diatom frustules (reply, pg. 8).
This is not persuasive. Allert teaches benthic pennate diatom frustules are heavily silicified (i.e. they contain silica). Kuehnle teaches in sunscreen art, frustules which contain silica when combined with titanium dioxide, were known to scatter light including UV radiation.
In the traverse of the rejection of claim 5, Applicant argues Corinaldesi does not remedy the deficiencies of Antoine, Allert, and Kuehnle (reply, pg. 8 & 9).
This is not persuasive. Discussion as to how Antoine, Allert, and Kuehnle render the instant claims obvious is presented in the 35 USC 103 rejection and Response to Arguments above.
Conclusion
No claims are allowed.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LORI K MATTISON whose telephone number is (571)270-5866. The examiner can normally be reached 9-7 (M-F).
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/LORI K MATTISON/Examiner, Art Unit 1619
/NICOLE P BABSON/Primary Examiner, Art Unit 1619