DETAILED ACTION
Continued Examination
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 2/27/2026 has been entered.
Previous Rejections
Applicant’s arguments, filed February 27, 2026, have been fully considered. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
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 1-17 are rejected under 35 U.S.C. 103 as being as being obvious over Bockmuehl et al. (CN 1925840 A).
Examiner’s Note: The composition, as claimed, does not require a non-phospholipid-based surfactant as claims 1 and 14 recite, “the surfactant includes any one or more of a phospholipid-based surfactant or a non-phospholipid-based surfactant”.
Regarding claims 1 and 14, Bockmuehl discloses compositions for the skin which promote the growth of the beneficial skin bacteria, Staphlyococcus epidermidis (abstract; English translation, pg. 3, paragraphs 4-5). The compositions include an emulsifier, such as lecithin (pg. 8, line 5) and an oil (pg. 7, paragraph 6; pg. 5, paragraph 12). The compositions are applied to the skin of a subject (abstract; claim 1).
Bockmuehl is not believed to be anticipatory because Bockmuehl could be construed as not clearly and unequivocally disclosing the claimed invention or directing those skilled in the art to the claimed invention without any need for picking, choosing and combining various disclosures not directly related to each other by the teachings of the cited reference. Namely, one skilled in the art would need to choose lecithin (pg. 8, line 5) and an oil (pg. 7, paragraph 6; pg. 5, paragraph 12).
Nevertheless, claims 1 and 14 are rendered prima facie obvious over the teachings of Bockmuehl, because it is prima facie obvious to combine prior art elements according to known methods, to yield predictable results. In the instant case, all the claimed elements (e.g., lecithin and an oil) were known in the prior art (e.g., Bockmuehl) and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielding nothing more than predictable results (e.g., a composition to enhance beneficial skin bacterial) to one of ordinary skill in the art. MPEP 2143.A.
Claims 2, 10, and 15 are rendered prima facie obvious because Bockmuehl discloses the composition further includes a fatty acid, such as myristic acid (pg. 6, paragraphs 8-9).
Claims 3 and 16-17 are rendered prima facie obvious because Bockmuehl discloses that the compositions promote the growth of the beneficial skin bacteria, Staphlyococcus epidermidis (pg. 3, paragraphs 4-5).
Claims 4-5 are rendered prima facie obvious because Bockmuehl discloses the compositions further include a fatty alcohol, such as stearyl alcohol (pg. 6, paragraph 10).
Claims 6-7 are rendered prima facie obvious because Bockmuehl discloses oils such as isopropyl myristate (pg. 5, paragraph 12), isohexadecane, dimethicone, and sunflower oil (pg. 7, paragraph 6).
Claims 8-9 are rendered prima facie obvious because Bockmuehl does not require the use of diethoxyethyl succinate, bis-ethoxydiglycol cyclohexane 1,4-dicarboxylate, or heptyl undecylenate, as recited in claim 8, nor Olea europaea fruit oil or Persea gratissima oil, as recited in claim 9 (whole document).
Claims 11 and 12 are rendered prima facie obvious because Bockmuehl discloses the composition further includes a thickener, such as xanthan gum (pg. 13, paragraph 5) and a vitamin, such as panthenol (pg. 12, 3rd paragraph from bottom).
Claim 13 is rendered prima facie obvious because Bockmuehl discloses lecithin as an emulsifier which is present in the compositions in an amount of 0.1-25% by weight (pg. 8, line 5; pg. 8, paragraph 7) and the oil, isopropyl myristate, in compositions in an amount of 1 wt.% (pg. 15-16). In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. See MPEP 2144.05 A.
Response to Applicant’s Arguments
Applicant’s arguments with respect to claims 1-17 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Ashlee E Wertz whose telephone number is (571)270-7663. The examiner can normally be reached Monday - Friday, 8 AM - 5 PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sahana Kaup can be reached at 571-272-6897. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ASHLEE E WERTZ/Examiner, Art Unit 1612
/SAHANA S KAUP/Supervisory Primary Examiner, Art Unit 1612
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