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 .
CONTINUING DATA
This application is a 371 of PCT/EP2021/074914 09/10/2021
PCT/EP2021/074914 has PRO 63/076,529 09/10/2020
FOREIGN APPLICATIONS
EP 20202294.3 10/16/2020
This office action is in response to Applicant’s amendment submitted August 5, 2026. Claims 1-11 and 16-17 are pending.
The rejection of claims 6, 9-11, 13-15 under 35 U.S.C. 112(b) is withdrawn because claims 6 and 10 were amended to remove the broad limitations followed by narrow limitations. Claim 9 no longer recites “several.” Claim 10 no longer recites “the rinse-off composition.”
The rejection of claim(s) 1-6 and 11-15 rejected under 35 U.S.C. 102(a)(1) as being anticipated by Chadwick is withdrawn because Chadwick does not explicitly state that the skin is non-facial body skin. The rejection of claim(s) 7-10 under 35 U.S.C. 103 as being unpatentable over Chadwick is withdrawn for the same reason.
Claim Interpretation
The claims recite increasing the differential abundance of P. marcusii in the skin microbiome by administering to a body in need thereof. The specification does not define who the subject in need actually is, but the specification states that carotenoids exert benefits of skin homeostasis, and that P. marcusii produces carotenoids and is a hydrocarbons degrader. Thus, the subjects in need thereof are interpreted to at least include subjects which need the skin benefits exerted by carotenoids and subjects which need protection from environmental pollution. It is not clear which subjects would be excluded, so any subject is considered to be in need of skin homeostasis or protection from pollution.
The following new rejections were necessitated by Applicant’s amendment.
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.
Claim(s) 1-6, 11, and 16-17 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Clark (US 9,399,009 B1, 2016).
Clark teaches topical treatment of skin which has disorders or dryness. See abstract. Skin is dry on the arms and lower legs and treatment of patients over the age of 50 is contemplated. Column 1, lines 57-67 – column 2, lines 1-6. An exemplary formulation contains 4% saccharide isomerate as Pentavitin and a carrier such as water. Column 6, Table 1. Tables 2 and 3 also recite formulations which contain 4% saccharide isomerate. Treatment of arms, legs, knees and elbows is contemplated (column 7, last paragraph).
Mature subjects are in need of increased differential abundance of P. marcusil because aging skin is dry and lacks elasticity.
Pentavitin inherently meets the limitations of claims 16-17 because it is the same composition used in the current application.
The limitations of claims 2-4 and 11 are inherent in administration of 4% pentavitin.
Claim(s) 1-8 and 10-11 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Cho (US 7,138,129 B2, 2006).
Cho teaches a skin care composition which provides moisture retention. Column 2, first paragraph. Example 2 is a body cleanser which comprises 0.2% saccharide isomerate, water, and disodium oleamido MIPA sulfosuccinate and cocamidopropyl betaine, a surfactant.
The subject in need of moisture retention is inherently in need of increased differential abundance of P. marcusil because P. marcusil provides carotenoids and carotenoids are moisturizing.
The limitations of claims 2-4 and 11 are inherent in administration of 0.2% pentavitin.
The limitations of claim 10 are inherent in the composition as a body cleanser because the normal and usual operation of a body cleanser is to be topically applied and rinsed off. MPEP 2112.02 states that if a prior art device, in its normal and usual operation, would necessarily perform the method claimed, then the method claimed will be considered to be anticipated by the prior art device.
Conclusion
Claim 9 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims. The closest prior art for claim 9 is Chadwick, discussed in the previous office action. Chadwick teaches topical administration of a saccharide isomerase composition which can be a rinse-off composition containing a pH adjuster, moisturizing agent, surfactant, and chelating agent. Chadwick teaches administration to the area around the eyes, but does not teach administration to non-facial skin. As explained on page 22 of the current specification, the saccharide isomerate composition shows a different result when applied to the facial skin versus non-facial skin.
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.
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/LAYLA D BERRY/ Primary Examiner, Art Unit 1693
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