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 .
Status of Application
The Amendments and Remarks filed on 11/06/25 are acknowledged.
Claim 18 was amended.
New claim 37 was added.
Claims 21-36 were previously withdrawn from consideration.
Claims 1-20 and 37 are included in the prosecution.
Maintained Objection to the Specification
The disclosure is again objected to because of the following informalities:
On Page 10 ([0048], line 2), Page 21 (line 16), and Page 22 ([0076], line 26), the terms “ethyhexyglycerin, hydoxyethyl …” should be corrected to recite “ethylhexylglycerin, hydroxyethyl …”
Appropriate correction is required.
Response to Amendments/Arguments
Although Applicant amended the Specification on 11/06/25, Applicant did not correct the terms as “ethylhexylglycerin” and “hydroxyethyl …” Therefore, the objection to the Specification is maintained.
Claim Objections
Claim 18 is again objected to because of the following informalities:
In claim 18, lines 2-3, the terms “ethyhexyglycerin, hydoxyethyl …” should be corrected to recite “ethylhexylglycerin, hydroxyethyl …”
Appropriate correction is required.
Response to Amendments/Arguments
Although Applicant amended claim 18 on 11/06/25, Applicant did not correct the terms as “ethylhexylglycerin” and “hydroxyethyl …” Therefore, the objection to claim 18 is maintained.
New Rejection necessitated by Amendment
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.
Claim 37 is 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 pre-AIA the applicant regards as the invention.
Claim 37, line 1, recites the transitional phrase “consisting of,” which is considered closed language (MPEP 2111.03 (II)). However, claim 37, line 4, recites “further comprising,” which is considered open language (MPEP 2111.03 (I)). It is unclear how an anti-aging cream formulation consisting of from about 0.03 to about 0.07 w/w% of tretinoin and from about 3.5 to about 4.5 w/w% of niacinamide can further comprise additional components. By using the term “consisting of” following the preamble the claim is closed and cannot have “further comprising.” Clarification and amendment are required.
Notice for all US Patent Applications filed on or after March 16, 2013
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 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.
Updated - 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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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.
Claims 1-17 and 19-20 are again rejected and new claim 37 is also rejected under 35 U.S.C. 103 as being unpatentable over Florence et al. (US 2017/0252290 A1 – “Florence”) in view of Vivier (US 2021/0275495 A1).
Instant claim 1 is drawn to an anti-aging cream formulation comprising:
from about 0.03 to about 0.07 w/w% of tretinoin;
from about 3.5 to about 4.5 w/w% of niacinamide;
from about 0.2 to about 0.7 w/w% of hyaluronic acid;
from about 0.04 to about 0.065 w/w% of collagen;
from about 1.5 to about 2.5 w/w% of red wine extract;
from about 0.05 to about 0.4 w/w% of a-tocopheryl acetate; and
a remainder in w/w% of suspendisse cream.
Florence teaches topical skin compositions for treating wrinkles (Title and Abstract and claims 60-72). The compositions include tretinoin ([0042]); niacinamide ([0052]); hyaluronic acid (Abstract, [0008], [0038], [0041], [0052], [0056], [0057], [0088] – Tables 2 and 3, claims 60, 61, and 63); collagen ([0057]); and 0.2% by weight tocopheryl acetate ([0057], [0059], [0088] – Table 2). The composition can be a cream ([0009], [0012], [0016], [0023], [0028], [0047], [0049], and claim 66) and cosmetic vehicles include creams ([0015]). The compositions include any of the actives or any combination thereof and comprise, in their final form, amounts that range from at least about 0.0001% to 99% or any range derivable therein, and a person of ordinary skill in the art would understand that the concentrations can vary depending on the addition, substitution, and/or subtraction of ingredients in a given composition ([0045]). Florence also teaches the inclusion of an antioxidant ranging from 0.0001% to 99.9% by weight of the composition ([0017]). Shea butter is also disclosed as a moisturizing agent ([0055] and [0057]).
Florence does not expressly teach red wine extract.
Vivier teaches topical compositions for the effective delivery of active ingredients into the skin (Title, Abstract, claim 1), wherein the topical composition contains at least one antioxidant (claim 28), the antioxidant includes resveratrol which is a red wine extract ([0052], [0068], [0116], claim 34) and tretinoin ([0068]). Resveratrol is also disclosed as an active ingredient ([0067]). The composition also includes shea butter extract (Butyrospermum parkii) as an active ingredient at 2.00% w/w ([0025], Table 2 - # 13).Table 6 discloses hydroxyresveratrol at 1.0-3.0% (Table 6 - # 28). Antioxidant concentration in the composition ranges from about 0.01% w/w to about 10% w/w ([0052]). The composition provides anti-wrinkle actions ([0045]). The composition is in a cream form ([0070] and Table 6).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the instant invention to prepare a topical skin composition for treating wrinkles wherein the composition is in the form of a cream and comprises tretinoin; niacinamide; hyaluronic acid; collagen, 0.2% by weight tocopheryl acetate; and an antioxidant, and wherein any of the actives or any combination thereof comprise, in their final form, amounts that range from at least about 0.0001% to 99% ranging from 0.0001% to 99.9% by weight of the composition, as taught by Florence, in view of the topical compositions for anti-wrinkle actions which comprises tretinoin and an anti-oxidant such as resveratrol in an amount ranging from 0.01% w/w to about 10% w/w, as taught by Vivier, and produce the instant invention.
One of ordinary skill in the art would have been motivated to do this because both Florence and Vivier teach topical compositions for treating wrinkles and contain tretinoin and anti-oxidants. It is obvious to combine prior art elements according to known methods to yield predictable results. Please see MPEP 2141(III)(A). One of ordinary skill in the art would have found it obvious to use the anti-oxidant resveratrol taught by Vivier as the anti-oxidant in the topical composition of Florence and have a reasonable expectation of success in producing a functional topical composition that treats wrinkles.
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, as evidenced by the references, especially in the absence of evidence to the contrary.
Regarding instant claims 1 and 37, the limitations of an anti-aging cream formulation would have been obvious over the topical skin compositions for treating wrinkles (Title and Abstract and claims 60-72), as taught by Florence, and the topical compositions (Title, Abstract, claim 1) that provides anti-wrinkle actions ([0045]), as taught by Vivier.
Regarding instant claims 1, 2, 6, 7, and 37, the limitations of (i) from about 0.03 to about 0.07 w/w% of tretinoin (instant claims 1 and 37), about 0.055 w/w% of tretinoin (instant claims 2 and 6), and about 0.04 to about 0.06 w/w% of tretinoin (instant claim 7) would have been obvious over the compositions which include tretinoin as an active ingredient ([0042]) in amounts that range from at least about 0.0001% to 99% or any range derivable therein, by weight of the composition ([0045]), as taught by Florence, and by the tretinoin ([0068]), as taught by Vivier. The claimed concentration range lies within the range taught by Florence. According to MPEP 2144.05, “In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists.”
Regarding instant claims 1, 2, 6, 7, and 37, the limitations of (ii) from about 3.5 to about 4.5 w/w% of niacinamide (instant claims 1 and 37), about 4.0 w/w% of niacinamide (instant claims 2 and 6), and about 3.8 to about 4.2 w/w% of niacinamide (instant claim 7) would have been obvious over the niacinamide as an active ingredient ([0052]) in amounts that range from at least about 0.0001% to 99% or any range derivable therein, by weight of the composition ([0045]), as taught by Florence. Please see MPEP 2144.05.
Regarding instant claims 1, 2, 6, 7, and 37, the limitations of (iii) from about 0.2 to about 0.7 w/w% of hyaluronic acid (instant claims 1 and 37), about 0.5 w/w% of hyaluronic acid (instant claims 2 and 6), and about 0.3 to about 0.6 w/w% of hyaluronic acid (instant claim 7) would have been obvious over the hyaluronic acid as an active ingredient (Abstract, [0008], [0038], [0041], [0052], [0056], [0057], [0088] – Tables 2 and 3, claims 60, 61, and 63) in amounts that range from at least about 0.0001% to 99% or any range derivable therein, by weight of the composition ([0045]), as taught by Florence. Please see MPEP 2144.05.
Regarding instant claims 1, 2, 6, 7, and 37, the limitations of (iv) from about 0.04 to about 0.065 w/w% of collagen (instant claims 1 and 37), about 0.05 w/w% of collagen (instant claim 2), about 0.5 w/w% of the 1% collagen solution (instant claim 6), and about 4.5 to about 6 w/w% of the 1% collagen solution (instant claim 7) would have been obvious over the collagen as an active ingredient ([0057]) in amounts that range from at least about 0.0001% to 99% or any range derivable therein, by weight of the composition ([0045]), as taught by Florence. Please see MPEP 2144.05.
Regarding instant claims 1, 2, 6, 7, and 37, the limitations of (v) from about 1.5 to about 2.5 w/w% of red wine extract (instant claims 1 and 37), about 2.0 w/w% of red wine extract (instant claims 2 and 6), and about 1.7 to about 2.3 w/w% of red wine extract (instant claim 7) would have been obvious over the antioxidant ranging from 0.0001% to 99.9% by weight of the composition ([0017]), as taught by Florence, in view of the resveratrol as an active ingredient ([0067]) in a concentration in the composition ranging from about 0.01% w/w to about 10% w/w ([0052]), as taught by Vivier. Please see MPEP 2144.05.
Regarding instant claims 1, 2, 6, 7, and 37, the limitations of (vi) from about 0.05 to about 0.4 w/w% of α-tocopheryl acetate (instant claims 1 and 37), about 0.2 w/w% of α-tocopheryl acetate (instant claims 2 and 6), and about 0.1 to about 0.3 w/w% of α-tocopheryl acetate (instant claim 7) would have been obvious over the 0.2% by weight tocopheryl acetate ([0057], [0059], [0088] – Table 2), as taught by Florence. Please see MPEP 2144.05.
Regarding instant claims 1, 2, 6, 7, and 37, the limitations of (vii) a remainder in w/w% of suspendisse cream (instant claims 1, 2, and 37), about 86.245 w/w% of suspendisse cream (instant claim 6), and about 85 to about 87 w/w% of suspendisse cream (instant claim 7), would have been obvious over the cream compositions ([0009], [0012], [0016], [0023], [0028], [0047], [0049], and claim 66) and cosmetic vehicles which include creams ([0015]), as taught by Florence, and the cream compositions ([0070] and Table 6), as taught by Vivier.
Regarding instant claims 2, 6, and 7, the limitations of about 2.0 w/w% (instant claims 2 and 6) and about 1.7 to about 2.3 w/w% (instant claim 7) of shea butter extract (Butyrospermum parkii) would have been obvious over the shea butter disclosed as a moisturizing agent ([0055] and [0057]) by Florence, in view of the composition also including shea butter extract (Butyrospermum parkii) as an active ingredient at 2.00% w/w ([0025], Table 2 - # 13), as taught by Vivier. Please see MPEP 2144.05.
Regarding instant claim 3, the limitation of hyaluronic acid sodium salt would have been obvious over the sodium hyaluronate ([0009], [0013], [0048], [0057], Example 1 – [0084] and Table 1), as taught by Florence.
Regarding instant claim 4, the limitation of the Butyrospermum parkii (shea butter) extract being preservative free would have been obvious over the shea butter extract (Butyrospermum parkii) ([0025], Table 2 - # 13), as taught by Vivier, since no preservatives in this particular extract are disclosed.
Regarding instant claim 5, the limitation of a 1% collagen solution would have been obvious over the collagen as an active ingredient ([0057]) in amounts that range from at least about 0.0001% to 99% or any range derivable therein, by weight of the composition ([0045]), and the cosmetic vehicles which include solutions (e.g., aqueous or hydro-alcoholic solutions) ([0015]), as taught by Florence. Please see MPEP 2144.05. One of ordinary skill in the art would have found it obvious to prepare solutions to deliver different cosmetically active ingredients, such as the collagen taught by Florence, in various concentrations in order to prepare the final topical composition. The recited limitation of a 1% would have been an obvious variant based on the teaching of Florence unless there is evidence of criticality or unexpected results.
Regarding instant claims 8-15, the limitations of no degradation in a potency of tretinoin and niacinamide after different storage periods and temperature/humidity conditions are properties associated with the formulation and inseparable from it. Since the prior art references teach the claimed formulation, the recited properties are intrinsically also taught by the prior art. One of ordinary skill in the art would have expected the same properties based on the combined teachings of Florence and Vivier.
Regarding instant claims 16 and 17, the limitations of the formulation having a pH of about 5 (instant claim 16) and a pH ranging from about 4.8 to about 6.0 (instant claim 17) would have been obvious over the pH of the composition that can be 5 ([0016]), as taught by Florence.
Regarding instant claim 19, the limitation of a kit would have been obvious over the kits that include the composition in a container ([0022]), as taught by Florence.
Regarding instant claim 20, the limitation of the kit further comprising an applicator and/or instructions for use would have been obvious over the kits that include instructions for use ([0082]), and the containers that can have spray pump or squeeze mechanisms (applicators) ([0082]), as taught by Florence.
Response to Arguments
Applicant’s arguments (Pages 12-14, filed 11/06/25) regarding the rejection of claims 1-17 and 19-20 under 35 U.S.C. 103 as being unpatentable over Florence in view of Vivier have been fully considered but are not persuasive.
Applicant argues (Page 13, filed 11/06/25) that the instant application relates to improved anti-aging cream formulations that rely on the unique benefits provided by using tretinoin and niacinamide together, and each embodiment as taught in the specification and claims of the instant application include both tretinoin and niacinamide together.
This is not persuasive because the “unique benefits” of using tretinoin and niacinamide together, as argued by Applicant, would have been expected by the formulation taught by Florence in view of Vivier. In particular, since Florence teaches vitamins e.g., A, B, C, D, E, and K ([0052]) as cosmetic ingredients. This disclosure includes a combination of vitamins A and B. Florence clearly teaches tretinoin ([0042]) and niacinamide ([0052]). Florence also teaches that their compositions can include any of the actives or any combination thereof, as well as any number of combinations of additional ingredients ([0045]). Therefore, one of ordinary skill in the art would have found it obvious to combine the actives and additional ingredients taught by Florence and prepare a functional topical skin composition for treating wrinkles and use it as an anti-aging composition.
Applicant argues (Page 13, filed 11/06/25) that: “To the contrary, as taught at least in the abstract of Florence, the compositions of Florence include “an effective amount of ornithine, retinol, Commiphora mukul resin or an extract thereof, and hyaluronic acid …” That is, these five ingredients are necessary in each embodiment of the composition of Florence, with various additional ingredients optionally being included as indicated …” (emphasis original). Applicant argues that all of the Examples provided by Florence include encapsulated retinol, not tretinoin or retinoic acid, which are structurally distinct. Applicant argues that niacinamide would only optionally or possible be included in the composition as an additional ingredient.
This is not persuasive because the teaching of Florence is not limited to the abstract or the examples. As discussed above, Florence clearly teaches tretinoin ([0042]) and niacinamide ([0052]), and that their compositions can include any of the actives or any combination thereof, as well as any number of combinations of additional ingredients ([0045]). Florence teaches that “other forms of vitamin A can also be used in the alternative or in addition to retinol. For example, compositions of the present invention can comprise tretinoin” ([0042]).
Instant claim 1 recites the transitional phrase “comprising” which is considered open language and allows the inclusion of additional components, such as the retinol taught by Florence ([0042]). Please see MPEP 2111.03 (I). Regarding new claim 37, even though the preamble is followed by the transitional phrase “consisting of,” line 3 of claim 37 recites “further comprising,” which allows the inclusion of additional components, including the retinol taught by Florence ([0042]).
Moreover, according to MPEP § 2123, “a reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including nonpreferred embodiments” and “disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure of preferred embodiments.” One of ordinary skill in the art would have ample guidance from the teaching of Florence to combine actives and additional ingredients, based on the desired attributes and benefits of the actives and additional ingredients, and produce a functional topical skin composition for treating wrinkles.
Applicant argues (¶ bridging Pages 13-14, filed 11/06/25) that niacinamide would only optionally or possibly be included in the composition as an additional ingredient, and not necessarily be included.
This is not persuasive because even though niacinamide is disclosed as an optional or additional ingredient, teaches that their compositions can include any of the actives or any combination thereof, as well as any number of combinations of additional ingredients ([0045]), which include niacinamide ([0052]). A disclosure of an optional inclusion in the prior art is still a disclosure of inclusion since the option includes compositions that contain the component. Please see Upsher-Smith Labs. v. Pamlab, LLC, 412 F.3d 1319, 1323, 75 USPQ2d 1213, 1215 (Fed. Cir. 2005) (reference disclosing optional inclusion of a particular component teaches compositions that both do and do not contain that component) see MPEP 2123 (I).
Applicant argues (Page 14, filed 11/06/25) that in looking to the Examples presented by Florence, namely those taught in Tables 1-3, Florence is silent to the inclusion of niacinamide, hyaluronic acid, collagen, red wine extract, and α-tocopheryl acetate let alone in the concentration ranges recited in instant claims.
This is not persuasive because:
The limitations of from about 0.03 to about 0.07 w/w% of tretinoin (instant claims 1 and 37), about 0.055 w/w% of tretinoin (instant claims 2 and 6), and about 0.04 to about 0.06 w/w% of tretinoin (instant claim 7) would have been obvious over the compositions which include tretinoin as an active ingredient ([0042]) in amounts that range from at least about 0.0001% to 99% or any range derivable therein, by weight of the composition ([0045]), as taught by Florence, and by the tretinoin ([0068]), as taught by Vivier. The claimed concentration range lies within the range taught by Florence. According to MPEP 2144.05, “In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists.”
Regarding instant claims 1, 2, 6, 7, and 37, the limitations of (ii) from about 3.5 to about 4.5 w/w% of niacinamide (instant claims 1 and 37), about 4.0 w/w% of niacinamide (instant claims 2 and 6), and about 3.8 to about 4.2 w/w% of niacinamide (instant claim 7) would have been obvious over the niacinamide as an active ingredient ([0052]) in amounts that range from at least about 0.0001% to 99% or any range derivable therein, by weight of the composition ([0045]), as taught by Florence. Please see MPEP 2144.05. Florence clearly teaches that “the compositions of the present invention can include any of the actives or any combination thereof described throughout this specification … the actives can be combined … The compositions can include any number of combinations of additional ingredients … The concentrations of the any ingredient within the compositions can vary … A person of ordinary skill in the art would understand that the concentrations can vary depending on the addition, substitution, and/or subtraction of ingredients in a given composition” ([0045]).
Regarding instant claims 1, 2, 6, 7, and 37, the limitations of (iii) from about 0.2 to about 0.7 w/w% of hyaluronic acid (instant claims 1 and 37), about 0.5 w/w% of hyaluronic acid (instant claims 2 and 6), and about 0.3 to about 0.6 w/w% of hyaluronic acid (instant claim 7) would have been obvious over the hyaluronic acid as an active ingredient (Abstract, [0008], [0038], [0041], [0052], [0056], [0057], [0088] – Tables 2 and 3, claims 60, 61, and 63) in amounts that range from at least about 0.0001% to 99% or any range derivable therein, by weight of the composition ([0045]), as taught by Florence. Please see MPEP 2144.05.
Regarding instant claims 1, 2, 6, 7, and 37, the limitations of (iv) from about 0.04 to about 0.065 w/w% of collagen (instant claims 1 and 37), about 0.05 w/w% of collagen (instant claim 2), about 0.5 w/w% of the 1% collagen solution (instant claim 6), and about 4.5 to about 6 w/w% of the 1% collagen solution (instant claim 7) would have been obvious over the collagen as an active ingredient ([0057]) in amounts that range from at least about 0.0001% to 99% or any range derivable therein, by weight of the composition ([0045]), as taught by Florence. Please see MPEP 2144.05.
Regarding instant claims 1, 2, 6, 7, and 37, the limitations of (v) from about 1.5 to about 2.5 w/w% of red wine extract (instant claims 1 and 37), about 2.0 w/w% of red wine extract (instant claims 2 and 6), and about 1.7 to about 2.3 w/w% of red wine extract (instant claim 7) would have been obvious over the antioxidant ranging from 0.0001% to 99.9% by weight of the composition ([0017]), as taught by Florence, in view of the resveratrol as an active ingredient ([0067]) in a concentration in the composition ranging from about 0.01% w/w to about 10% w/w ([0052]), as taught by Vivier. Please see MPEP 2144.05.
Regarding instant claims 1, 2, 6, 7, and 37, the limitations of (vi) from about 0.05 to about 0.4 w/w% of α-tocopheryl acetate (instant claims 1 and 37), about 0.2 w/w% of α-tocopheryl acetate (instant claims 2 and 6), and about 0.1 to about 0.3 w/w% of α-tocopheryl acetate (instant claim 7) would have been obvious over the 0.2% by weight tocopheryl acetate ([0057], [0059], [0088] – Table 2), as taught by Florence. Please see MPEP 2144.05.
Regarding instant claims 1, 2, 6, 7, and 37, the limitations of (vii) a remainder in w/w% of suspendisse cream (instant claims 1, 2, and 37), about 86.245 w/w% of suspendisse cream (instant claim 6), and about 85 to about 87 w/w% of suspendisse cream (instant claim 7), would have been obvious over the cream compositions ([0009], [0012], [0016], [0023], [0028], [0047], [0049], and claim 66) and cosmetic vehicles which include creams ([0015]), as taught by Florence, and the cream compositions ([0070] and Table 6), as taught by Vivier.
Applicant argues (Page 14, filed 11/06/25) that even in teaching resveratrol, Vivier in combination with Florence, remains silent with respect to a composition that includes tretinoin, niacinamide, hyaluronic acid, collagen, red wine extract, α-tocopheryl acetate, and suspendisse cream let alone at the concentrations specified in the instant claims.
This is not persuasive because, each of the components tretinoin, niacinamide, hyaluronic acid, collagen, α-tocopheryl acetate, and suspendisse cream, and their corresponding concentrations are taught by Florence, as explained in detail for each component above.
The deficiency in Florence regarding the red wine extract is cured by Vivier. One of ordinary skill in the art would have been motivated to combine the teachings of Florence and Vivier because both references teach topical compositions for treating wrinkles and contain tretinoin and anti-oxidants. One of ordinary skill in the art would have found it obvious to use the anti-oxidant resveratrol taught by Vivier as the anti-oxidant in the topical composition of Florence and have a reasonable expectation of success in producing a functional topical composition that treats wrinkles. It is obvious to combine prior art elements according to known methods to yield predictable results. Please see MPEP 2141(III)(A). Furthermore, one of ordinary skill in the art would have found it obvious to substitute the anti-oxidant of Florence with the anti-oxidant resveratrol of Vivier because the simple substitution of one known element for another to obtain predictable results is obvious. Please see MPEP 2141(III)(B).
Therefore, the rejection based on the combination of Florence and Vivier of 08/06/25 is maintained and applied to new claim 37.
Maintained - Claim Rejections - 35 USC § 103
Claim 18 is again rejected under 35 U.S.C. 103 as being unpatentable over Florence et al. (US 2017/0252290 A1 – “Florence”) in view of Vivier (US 2021/0275495 A1), as applied to claims 1-17 and 19-20 above, further in view of Zheng et al. (CA 2 803 590 A1 – “Zheng”) and Pillai et al. (US 2006/0275229 A1 – “Pillai”).
Instant claim 18 is drawn to the anti-aging cream formulation of claim 1, wherein the suspendisse cream comprises a mixture of:
cetearyl alcohol,
cyclopentasiloxane,
dimethicone,
ethylhexylglycerin,
hydroxyethyl acrylate/sodium acryloyldimethyl taurate copolymer,
paraffine liquidum,
phenoxyethanol,
polysorbate 60,
sodium hyaluronate,
sorbitan isostearate,
squalane, and
purified water.
The teachings of Florence and Vivier are discussed above.
Florence and Vivier do not expressly teach the constituents of the cream as recited in instant claim 18.
Zheng teaches a method for improving the appearance of skin, particularly improving one or more signs of aging by topically applying compositions comprising a plant extract (Abstract). The method includes treating wrinkles (claim 1). The plant extract is formulated in a variety of product forms including cream ([0047]), and cosmetically acceptable vehicles include those having the appearance of creams ([0048]). Cosmetically acceptable vehicles including cetearyl alcohol ([0023], [0092], [00110], [00115]), cyclopentasiloxane ([0083] and [00115]), dimethicone ([0023], [0083], [00115]), ethylhexylglycerin ([00110]), liquid paraffins ([0054]), phenoxyethanol ([0026], [00110], [00115]), polysorbate 60 ([00115]), sodium hyaluronate ([0072], [00107]), sorbitan isostearate ([00107], [00110]), and water ([0023], [0048], [00115]).
Pillai teaches a skin cream to prevent age-induced wrinkle formation in the skin ([0089] – Example 10D, claims 20 and 23). The anti-aging cream contains hydroxyethyl acrylate/sodium acryloyldimethyl taurate copolymer and squalane and polysorbate 60, inter alia ([0089] – Example 10D).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the instant invention to prepare a topical skin composition for treating wrinkles wherein the composition is in the form of a cream and comprises tretinoin; niacinamide; hyaluronic acid; collagen, 0.2% by weight tocopheryl acetate; and an antioxidant, and wherein any of the actives or any combination thereof comprise, in their final form, amounts that range from at least about 0.0001% to 99% ranging from 0.0001% to 99.9% by weight of the composition, as taught by Florence, in view of the topical compositions for anti-wrinkle actions which comprises tretinoin and an anti-oxidant such as resveratrol in an amount ranging from 0.01% w/w to about 10% w/w, as taught by Vivier, further in view of the cream improving one or more signs of aging including cosmetically acceptable vehicles such as cetearyl alcohol, cyclopentasiloxane, dimethicone, ethylhexylglycerin, liquid paraffins, phenoxyethanol, polysorbate 60, sodium hyaluronate, sorbitan isostearate, and water, as taught by Zheng, and the skin cream to prevent age-induced wrinkle formation in the skin which contains hydroxyethyl acrylate/sodium acryloyldimethyl taurate copolymer and squalane and polysorbate 60, as taught by Pillai, and produce the instant invention.
One of ordinary skill in the art would have been motivated to do this because all the references teach topical compositions for treating age-induced wrinkles, and it is obvious to combine prior art elements according to known methods to yield predictable results. Please see MPEP 2141(III)(A). One of ordinary skill in the art would have found it obvious to use the cosmetically acceptable components of the topical cream compositions taught by Zheng and Pillai in the topical formulation taught by Florence and have a reasonable expectation of success in producing a functional topical composition that treats wrinkles.
Regarding instant claim 18, the limitation of the cream that contains (i) cetearyl alcohol would have been obvious over the cetearyl alcohol ([0023], [0092], [00110], [00115]), as taught by Zheng.
Regarding instant claim 18, the limitation of (ii) cyclopentasiloxane would have been obvious over the cyclopentasiloxane ([0083] and [00115]), as taught by Zheng.
Regarding instant claim 18, the limitation of (iii) dimethicone would have been obvious over the dimethicone ([0023], [0083], [00115]), as taught by Zheng.
Regarding instant claim 18, the limitation of (iv) ethylhexylglycerin would have been obvious over the ethylhexylglycerin ([00110]), as taught by Zheng.
Regarding instant claim 18, the limitation of (v) hydroxyethyl acrylate/sodium acryloyldimethyl taurate copolymer would have been obvious over the hydroxyethyl acrylate/sodium acryloyldimethyl taurate copolymer ([0089] – Example 10D), as taught by Pillai.
Regarding instant claim 18, the limitation of (vi) paraffine liquidum would have been obvious over the liquid paraffins ([0054]), as taught by Zheng.
Regarding instant claim 18, the limitation of (vii) phenoxyethanol would have been obvious over the phenoxyethanol ([0026], [00110], [00115]), as taught by Zheng.
Regarding instant claim 18, the limitation of (viii) polysorbate 60 would have been obvious over the polysorbate 60 ([00115]), as taught by Zheng and by Pillai ([0089] – Example 10D).
Regarding instant claim 18, the limitation of (ix) sodium hyaluronate would have been obvious over the sodium hyaluronate ([0072], [00107]), as taught by Zheng.
Regarding instant claim 18, the limitation of (x) sorbitan isostearate would have been obvious over the sorbitan isostearate ([00107], [00110]), as taught by Zheng.
Regarding instant claim 18, the limitation of (xi) squalane would have been obvious over the squalane ([0089] – Example 10D), as taught by Pillai.
Regarding instant claim 18, the limitation of (xii) purified water would have been obvious over the water ([0023], [0048], [00115]), as taught by Zheng.
Response to Arguments
Applicant’s arguments (Page 15, filed 11/06/25) regarding the rejection of claim 18 under 35 U.S.C. 103 as being unpatentable over Florence in view of Vivier, Zheng, and Pillai have been fully considered but are not persuasive.
Applicant argues that Zhen in view of Pillai do not cure the deficiencies of Florence and Vivier.
This is not persuasive because the deficiency in Florence and Vivier regarding the components recited in instant claim 18 are cured by Zheng and Pillai. One of ordinary skill in the art would have found it obvious to combine the teachings of Florence, Vivier, Zheng, and Pillai because all the references teach topical compositions for treating age-induced wrinkles, and it is obvious to combine prior art elements according to known methods to yield predictable results. Please see MPEP 2141(III)(A). One of ordinary skill in the art would have found it obvious to use the cosmetically acceptable components of the topical cream compositions taught by Zheng and Pillai in the topical formulation taught by Florence and have a reasonable expectation of success in producing a functional topical composition that treats wrinkles. The limitations of each of the components recited in claim 18 are discussed in detail above.
Therefore, the rejection based on the combination of Florence in view of Vivier, Zheng, and Pillai is maintained.
Conclusion
No claims are allowed.
Applicant's amendment (addition of new claim 37) 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 extension fee 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 date of this final action.
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/ARADHANA SASAN/Primary Examiner, Art Unit 1615