DETAILED ACTION
1. The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
2. The amendment filed December 19, 2025 has been received and entered. The text of those sections of Title 35, U.S. Code, not included in this action can be found in a prior Office action. Any rejection set forth in a previous Office action that is not specifically set forth below is withdrawn.
3. Claims 1-5 and 8-12 are pending.
Claim Rejections - 35 USC § 103
4. Claim(s) 1-5 and 8-12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bockmuhl (US 2006/0182708) in view of Hou (KR 20170032019 A – English translation) and Nguyen (KR 20150145992 A – English translation) for the reasons set forth in the previous Office action.
All of applicant’s arguments regarding this ground of rejection have been fully considered but are not persuasive. Applicant argues that the claimed invention is patentable over the prior art due to the presence of synergistic results demonstrated in Tables 1 and 2 in the specification. However, the results shown in the specification are not commensurate in scope with the claimed invention. The specification shows the results for one specific ginseng extract and one specific ginseng antibacterial agent. The ginseng extract is a water extract from red ginseng (see paragraph 56). The ginseng antibacterial agent is obtained by the method of paragraph 58 which is:
…red ginseng was combined with a 5.5x volume of 70%(v/v) ethanol and was extracted 3 times at 70°C over 8 hours. Using a rotary evaporator on the resulting extract, a red ginseng alcohol-extract concentrate having a water content of 40% was obtained in an amount of 50 g or more. The red ginseng alcohol-extract concentrate was combined and diluted with a 3x volume of purified water, and 150 g of the resulting diluted solution was passed through a column filled with 100 g of HP- 20 ion-exchange polymer. After rinsing the column with purified water of a volume 5 times the volume of the diluted solution passed, an aqueous ethanol solution (95% (v/v)) was passed through the column, and an active ingredient fraction attached to the ion-exchange polymer column was collected.
In addition, applicant’s specification defines “red ginseng” as ginseng which is prepared by steaming and dry raw ginseng (see paragraph 27). Applicant’s claims are not limited to these specific ginseng extracts and there is no evidence or reason to expect that the results shown in the specification would be seen over the broadly claimed scope of applicant’s claims (see MPEP section 716.02(d)). Thus, applicant claim for patentability based on unexpected results is not persuasive.
Applicant also argues Bockmuhl does not teach the use of 1,2-hexanediol, that Hou does not teach hexanediol, and Nguyen does not teach a ginseng-derived antimicrobial agent. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Applicant also argues that Bockmuhl does not teach the same inhibition of harmful bacterial growth claimed by applicant. In addition, applicant argues that Hou does not teach promotion of beneficial skin bacteria, and Nguyen does not teach promotion of beneficial bacterial growth or inhibiting harmful bacterial growth. However, as discussed in the previous Office action, the references are considered to provide motivation for combining each of the three ingredients into a single composition. The composition resulting from the combination of the prior art is structurally the same as applicant’s broadly claimed composition and should be capable of performing the claimed intended uses if applicant’s invention functions as claimed. Therefore, applicant’s arguments are not persuasive.
5. 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 Susan Hoffman whose telephone number is (571)272-0963. The examiner can normally be reached M-Th 8:30am - 5:00pm.
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/SUSAN HOFFMAN/Primary Examiner, Art Unit 1655