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 .
This office action is in response to the reply filed 1/29/2026.
Election/Restrictions
Claims 21-26 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected group and/or species, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 7/28/2025.
Response to Arguments
All of Applicant’s arguments filed 1/29/2026 have been fully considered and are not persuasive.
In summary, Applicant argues that the cited references do not disclose the added features of amended claim 17.
This is not persuasive. As discussed in the modified rejection below, Akatsuka makes obvious component (D) as recited by the claim.
Modified/Maintained Claim Rejections - 35 USC § 103
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 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.
Claim(s) 17-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Akatsuka (US 2010/0172964) and Guala (EP1002525) as evidenced by SciFinder (Pellicer L-30).
Akatsuka discloses a vesicle comprising an α,Є-bis(Υ-N-(C10-30)acylglutamyl) lysine; a ceramide and a glycerin fatty acid ester. The acyl group of the α,Є-bis(Υ-N-(C10-30)acylglutamyl) lysine is preferably a lauroyl group. The vesicle can be contained in external preparations for the skin (Abs). The vesicle is taught to comprise 1-50% of the α,Є-bis(Υ-N-(C10-30)acylglutamyl) lysine [0036] and the vesicle makes up 0.1-10% of the external skin preparation [0057], thus α,Є-bis(Υ-N-(C10-30)acylglutamyl) lysine is calculated to be present in the external composition in amounts of .001-5%.
Regarding claims 17-18 and component (A): Akatsuka teaches that a preferred lysine is α,Є-bis(Υ-N-(C10-30)acylglutamyl) lysine, which is the commercially available product “Pellicer L-30” [0036], as evidenced by SciFinder Pellicer L-30 satisfies the structure of component A wherein R1 and R2 are a lauroyl group (i.e. 11 carbon); M1, M2 and M3 are sodium; n1 and n2 are 0 and 2; and n3 and n4 are 2 and 0.
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Regarding claim 17 and Component (D): Akatsuka teaches that the external skin preparation can comprise optional ingredients such as fatty acids, surfactants and moisture ingredients including sodium pyrrolidone carboxylate. Suitable fatty acids include oleic acid, this reads on formula D wherein R5 is a unsaturated linear hydrocarbon group and M7 is H [0059]. It would have been prima facie obvious to include oleic acid as an ingredient in the composition of Akatsuka as this is specifically contemplated to be a suitable ingredient for use.
However, Akatsuka does not teach the inclusion of component B as elected.
Regarding claims 17-18 and component (B): Guala discloses the use of N-acylate derivatives of pyrrolidone carboxylic acid (PCA) as surfactants or hydrating agents for use in cosmetics for topical use. The derivatives have the formula
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, wherein R is a saturated or unsaturated, linear or branched C3-C22 acyl and salts thereof (Abs). Suitable salt forms include sodium salts and R is preferably an acyl of C12-C18 fatty acid, such as lauric acid [0008]. In view of these teachings the use of component (B) as claimed wherein R3 has 11 carbons and M4 is sodium is prima facie obvious. This component is taught by Guala to be used in amounts ranging from 0.1-30% [0016]. Guala teaches that these derivatives of PCA have excellent properties as surfactants together with hydrating properties which make their use advantageous in cosmetics or composition intended to make contact with the skin [0007].
It would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify the teachings of Akatsuka with those of Guala. One of skill in the art would have been motivated to add 0.1-30% of the N-acylate derivatives of PCA as taught by Guala as these are taught to be effective surfactants and hydrating agents. One of skill in the art would have a reasonable expectation of success as both Guala and Akatsuka teaches external skin preparations and Akatsuka further teaches that surfactants and moisturizing agents such as pyrrolidone carboxylates can be added.
Regarding claim 20: As discussed above the prior art makes obvious an external skin preparation comprising .001-5% of component A and 0.1-30% of component B, this results is a proportion of component B to component A of .02-30,000 which falls within the claimed .004% or more.
Regarding the preamble “starting material for fragrances and cosmetics,” per MPEP 2111.02: If the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states, for example, the purpose or intended use of the invention, rather than any distinct definition of any of the claimed invention’s limitations, then the preamble is not considered a limitation and is of no significance to claim construction. As the prior art makes obvious the claimed structure, then the prior art structure is capable of performing the intended use as recited in the preamble, as such it meets the limitations of the claim.
Conclusion
No claims are allowable.
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 Jennifer A Berrios whose telephone number is (571)270-7679. The examiner can normally be reached Monday-Thursday from 9am-4pm and Friday 9am-3:30pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Brian Kwon can be reached at (571) 272-0581. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JENNIFER A BERRIOS/ Primary Examiner, Art Unit 1613
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