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 .
Claim Rejections - 35 USC § 102/103
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.
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.
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) 1, 3, 5-6, 25, 26, 31, 33, 34 is/are rejected under 35 U.S.C. 102(a)(1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over He et al., (CN 106963658, cited in IDS).
He et al. teaches cosmetic compositions comprising Nano platinum (p. 1, para. [0002]), where “cosmetics include but are not limited to lotions, skin lotions, skin creams, facial masks, essences, cleansing creams, facial cleansers, and cleansing gels, cleansing foam, cleansing oil, foundation, powder, lipstick and more” (p. 2, para. [0008]).
The prior art teaches a specific embodiment of a facial mask comprising 9.5g (9.5 w/w %)olive oil (natural oil), 0.45g β-glucan, 3.0g sodium lactate, 0.45g triethanolamine, and ionic water to 100 g (52.86%) (Example 9, paras. [0114]-[0116]). Note: sodium lactate is the sodium salt of lactic acid, which is recognized in the instant specification as a suitable form of lactic acid (see p. 3, lines 11-12).
The prior art formulation suffices as an oil-in-water emulsion, as per claim 5, insofar as it comprises oil in a continuous phase of water. The triethanolamine suffices as emulsifier. As a facial mask, the embodiment anticipates administration to a patient in need thereof, as per claim 31.
The prior art is anticipatory insofar as it teaches a skin care composition comprising beta-glucan, a natural oil, and lactic acid, where the concentration of oil falls within the range of 3 to 15% w/w, and the concentration of beta-glucan falls within the range of 0.3 to 20% w/w. If the teaching of the prior art is not described sufficiently to give rise to anticipation, it would have been obvious to provide a skin-care composition comprising beta glucan, a natural oil, and lactic acid, within the claimed ranges, in view of He et al.
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.
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.
1) Claim(s) 2, 4, 7, 18-23, 27-30 is/are rejected under 35 U.S.C. 103 as being unpatentable over He et al., (CN 106963658, cited in IDS) as applied to claims 1, 3, 5-6, 18, 25, 26, 31, 33, 34 above, and further in view of Shibuya et al., (CN 104918603).
He et al., which is taught above, differs from claims 2, 4, 7, 18-23, 27-30 insofar as it does not teach hydrogen peroxide, rape seed oil, claimed thickeners, a disinfectant, a fragrance, nor a pH range.
“The selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945)” (see MPEP 2144.07).
Shibuya et al. teaches external anti-aging compositions for skin and methods of producing the same (2nd page, 1st paragraph). Suitable compositions include facial masks (31st page, Example 13).
The compositions may comprise hydrogen peroxide, as an antibacterial agent (14th page, 3rd paragraph) and as a whitening agent (16th page, 5th paragraph); rapeseed oil, as softening agent (9th page, last paragraph); xanthan gum as thickener (18th page, 2nd paragraph), chlorine, as antibacterial agent (14th page, 3rd paragraph); and fragrances such as cinnamaldehyde (13th page, 3rd paragraph), which has antibacterial properties, as per claim 23. The fragrances, preservatives and bactericides may be present from 0.00001% by mass or more (13th page, 2nd paragraph). Moisturizing ingredients may be in and amount of 0.0001% by mass or more”(17th page, 4th paragraph).
The compositions further comprise “lactic acid” as “cell activator” or transdermal absorption enhancer (18th page, 7-8th paragraph), “keratolytic agent” (19th page, 2nd paragraph); improving skin transformation (6th page, last paragraph), which may be present from 0.00001 mass parts or more (7th page, 2nd paragraph).
The pH of the compositions may fall within the range of 3-11 (20th page, 3rd paragraph), as per claim 30.
Generally, it is prima facie obvious to select a known material based on its suitability for its intended use (see MPEP 2144.07). Also, established precedent holds that it is generally obvious to add known ingredients to known compositions with the expectation of obtaining their known function (see 2144.06).
It would have been obvious to a person having ordinary skill in the art at the time of applicant’s filing to add hydrogen peroxide, rapeseed oil, xanthan gum, chlorine, fragrances, and a pH in the range of 2-6 to the cosmetic of He et al. based on their suitability for their intended use in cosmetic compositions, as taught by Shibuya et al.
2) Claim(s) 8-17 is/are rejected under 35 U.S.C. 103 as being unpatentable over He et al., (CN 106963658, cited in IDS) as applied to claims 1, 3, 5-6, 25, 26, 31, 33, 34 above, and further in view of USDA (Oat Beta Glucan, 2015).
He et al., differs from claim 8-17, insofar as it does not teach where the beta-glucan is a processed cereal.
USDA teaches “PromOat® β-glucan” as a source of beta glucan (p. 3), derived from cell walls of oat cereal kernels (p. 14, 2nd paragraph), as per claim 8-10.
The reference provides many facts concerning PromOat® β-glucan such as “the oat grain is dehulled” and milled to remove flour (starch) and bran (protein)(p. 9), as per claim 11. Below is the nutritional analysis of PromOat:
PNG
media_image1.png
200
400
media_image1.png
Greyscale
PNG
media_image2.png
200
400
media_image2.png
Greyscale
(p. 12-13). Note that the nutritional information includes 4% proteins, as per claim 12; fat, carbohydrates, fibers, sugar, protein, as per claim 13.
Table 2 below comprises further analytical results of the PromOat® β-glucan:
PNG
media_image3.png
200
400
media_image3.png
Greyscale
(p. 12). From the chart above, it can be appreciated that the concentration of nutrients is expected to vary from lot to lot. Ingredients such as fats, minerals, sugars, moisture, as per claim 17, are present but variable; See also physical and chemical data below (from the 81st page):
PNG
media_image4.png
200
400
media_image4.png
Greyscale
Note the β-D-glucan content of 33-36%, as per claims 14-15.
It should also be noted here that the nutritional information of claims 8-17 is derived from PromOat® β-glucan (see Specification at p. 10) and is the source of beta glucan.
Accordingly, it would have been obvious to a person having ordinary skill in the art at the time of applicant’s filing to utilize known sources of beta-glucan, such as PromOat® β-glucan, for use in cosmetic compositions of He et al. since the compositions of He et al. comprise beta glucan.
Technological Background
The prior art made of record is considered pertinent to applicant's disclosure Tate&Lyle (www.tateandlyle.com, published online 2013). Tate&Lyle is pertinent for teaching “oat beta glucan under the brand name PromOatTM for use in the food, beverage and supplement markets, and under the brand name AvenacareTM for use in the cosmetics industry” (2nd paragraph).
Conclusion
Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to WALTER E WEBB whose telephone number is (571)270-3287 and fax number is (571) 270-4287. The examiner can normally be reached from Mon-Fri 7-3:30.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sahana Kaup can be reached (571) 272-6897. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Walter E. Webb
/WALTER E WEBB/Primary Examiner, Art Unit 1612