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 .
Status of the Claims
Claims 21-40 are pending and under current examination.
Withdrawn Claim Objections and Rejections
All objections pertaining to claims 35 and 36 are withdrawn in view of the amendments to the claims filed 11/10/2025.
All rejections pertaining to claims 26 and 36 under 35 U.S.C. 112(b) are withdrawn in view of the amendments to the claims filed 11/10/2025.
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.
Claims 21, 22, 24, 26-30, and 32 are rejected under 35 U.S.C. 103 as being unpatentable over Tournier-Couturier (WO2018/108973, publication date: 6/21/2018, cited in the IDS filed 1/30/2024, of record), in view of Gracioso (WO2019/016212, publication date: 1/24/2019, cited in the IDS filed 1/30/2024, of record), cited in the IDS filed 1/30/2024), as evidenced by UniProt (Taxonomy-Vitreoscilla filiformis, available 2/26/2018, of record), Gamache et. al. (Journal of Neurosurgery, pg. 679-685, publication year: 1986, of record), and Cargill (Satiagel VPC 512, publication year: 2015, of record).
Applicant’s Invention
Applicant’s claim 21 is drawn to a composition for the care of keratin materials, comprising: (i) all or part of at least one lysate derived from at least one non-pathogenic, aerobic proteobacterium fermentation medium, optionally wherein the composition comprises a (glyco)oligopeptide fraction isolated from the at least one lysate; (ii) at least one mucopolysaccharide; (iii) at least one moisturizing agent distinct from (i) and from (ii); (iv) optionally, at least one electrolyte; and (v) optionally, at least one cosmetically active ingredient distinct from (i)-(vi).
Determination of the scope and the content of the prior art
(MPEP §2141.01)
Regarding claim 21, Tournier-Couturier teaches a cosmetic and/or dermatological composition comprising an oligopeptide fraction isolated from a biomass of a bacterium or bacteria belonging to the genus Vitreoscilla sp. (pg. 15 lines 23-25). The composition is intended to be applied topically to the skin or as hair care (pg. 16 lines 15-16). The composition may also contain adjuvants that are common in the cosmetic field, such as hydrophilic or lipophilic gelling agents, hydrophilic or lipophilic active agents other than the oligopeptide fraction according to the invention, preservatives, antioxidants, solvents, fragrances, fillers, screening agents, odor absorbers and colorants (pg. 18 lines 1-5). UniProt teaches that Vitreoscilla sp. is a proteobacterium (pg. 1, Lineage).
Regarding claim 22, Tournier-Couturier teaches that the oligopeptide fraction is obtained via a process consisting of the culture of at least one bacterium belonging to the genus Vitreoscilla sp. on a fermentation medium, a centrifugation step, an optional pH adjustment, and the enzymatic digestion of the residue derived from the centrifugation of said bacteria in said fermentation medium (pg. 8 lines 1-7). The Examiner interprets the centrifugation step to mean that the fermentation medium is separated from the biomass of bacteria and therefore reads on the limitation “isolated from the fermentation medium” embraced by the instant claim 22.
Regarding claim 24, Tournier-Couturier teaches a cosmetic and/or dermatological composition comprising an oligopeptide fraction isolated from a biomass of a bacterium or bacteria belonging to the genus Vitreoscilla sp. (pg. 15 lines 23-25).
Regarding claim 26, Tournier-Couturier teaches that the oligopeptide fraction may be obtained from the biomass of Vitreoscilla filiformis by centrifugation, optional pH adjustment, followed by enzymatic digestion of the residue derived from the centrifugation of said bacteria in said fermentation medium (pg. 8 lines 1-7). The double enzymatic digestion is preferably done sequentially using first a carbohydrase and then a protease (pg. 16 lines 15-18).
Regarding claims 27 and 28, Tournier-Couturier teaches that the bacterium used for extraction is the Vitreoscilla filiformis strain, preferably the Vitreoscilla filiformis strain ATCC 15551 (pg. 6 lines 10-11).
Regarding claims 29 and 30, Tournier-Couturier teaches the relevant limitations of claim 21 as described above.
Regarding claim 32, Tournier-Couturier teaches that the Vitreoscilla filiformis extract may be spray dried (pg. 14 line 21) and used in a suspension or emulsion of soft, semi-solid, or solid consistency (pg. 17 line 5).
Ascertainment of the Difference Between Scope of the Prior Art and the Claims
(MPEP §2141.02)
Regarding claims 21 and 29, Tournier-Couturier does not teach that the cosmetic composition may contain a mucopolysaccharide. However, this deficiency is cured by Gracioso.
Gracioso teaches a serum and an exfoliant cream that contains carrageenan as a rheology modifier and an active ingredient composed of an intracellular extract of Salinicoccus hispanicus (pg. 16 and 17 Examples and pg. 3 lines 25-27). Gamache teaches that carrageenan is a mucopolysaccharide (pg. 679, Abstract) and Cargill teaches that carrageenans are extracted from red seaweeds (pg. 1 Nature Within).
Regarding claim 30, Tournier-Couturier does not teach that the cosmetic composition may contain a mucopolysaccharide in a specific weight ratio relative to a moisturizer. However, this deficiency is cured by Gracioso.
Gracioso teaches a serum and an exfoliant cream that contains carrageenan as a rheology modifier and an active ingredient composed of an intracellular extract of Salinicoccus hispanicus (pg. 16 and 17 Examples and pg. 3 lines 25-27). The serum contains 8% by weight of glycerin, a humectant, and 0.7% by weight carrageenan (pg. 16 example 3).
Finding of a Prima Facie Obviousness Rationale and Motivation
(MPEP §2142-2143)
Regarding claims 21 and 29, the idea for combining compounds each of which is known to be useful for the same purpose, in order to form a composition which is to be used for the same purpose, flows logically from their having been used individually in the prior art. See In re Kerkhoven 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). As shown by the recited teachings, the instant claims define nothing more than the concomitant use of conventional thickeners such as carrageenan used in cosmetic compositions containing a bacterial extract as an active ingredient. It would follow that the recited claims define prima facie obvious subject matter. See MPEP 2144.06.
Regarding claim 30, the weight ratio of mucopolysaccharide and moisturizing agent present in the composition is clearly a result effective parameter that a person of ordinary skill in the art would routinely optimize. Optimization of parameters is a routine practice that would be obvious for a person of ordinary skill in the art to employ and would reasonably expect success. It would have been customary for an artisan of ordinary skill to determine the optimal weight percentage of mucopolysaccharide and moisturizer in order to best achieve the desired results as such would provide advantageous formulation effect. It would have been prima facie obvious to one of ordinary skill in the art at the time of the invention to engage in routine experimentation to determine optimal or workable ranges that produce expected results. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F. 2d 454, 105 USPQ 233 (CCPA 1955). In the instant case, Gracioso teaches that a cosmetic composition utilizing a bacterial extract as the active ingredient may include carrageenan as a rheology modifier and glycerin as a moisturizer in a weight ratio that is close to the range embraced by the instant claim. The Examiner considers it prima facie obvious to optimize the weight ratio of carrageenan to moisturizing agent , absent unexpectedly superior properties of the claimed invention. In the instant case, one of ordinary skill in the art would have recognized that the amount of carrageenan and moisturizing agent present would dictate the rheological and moisturizing properties of the cosmetic formulation and therefore be an optimizable variable.
Claims 23 and 25 are rejected under 35 U.S.C. 103 as being unpatentable over Tournier-Couturier (WO2018/108973, publication date: 6/21/2018, cited in the IDS filed 1/30/2024, of record), in view of Gracioso (WO2019/016212, publication date: 1/24/2019, cited in the IDS filed 1/30/2024, of record), as applied to claims 21, 22, 24, 26-30, and 32 above, and further in view of Gueniche et. al. (British Journal of Dermatology, pg. 1357-1363, publication year: 2008, of record), as evidenced by UniProt (Taxonomy-Vitreoscilla filiformis, available 2/26/2018, of record), Gamache et. al. (Journal of Neurosurgery, pg. 679-685, publication year: 1986, of record), and Cargill (Satiagel VPC 512, publication year: 2015, of record).
Applicant’s Invention
Tournier-Couturier renders obvious the relevant limitations of claims 21 and 22 above. Applicant’s claim 23 further adds the limitation of the composition according to claim 21, wherein the at least one lysate is a whole lysate. Applicant’s claim 25 further adds the limitation of the composition according to claim 22, comprising a whole lysate in a complete fermentation medium.
Determination of the scope and the content of the prior art
(MPEP §2141.01)
Regarding claims 23 and 25, Tournier-Couturier teaches the relevant limitations of claim 21 as described above.
Ascertainment of the Difference Between Scope of the Prior Art and the Claims
(MPEP §2141.02)
Regarding claims 23 and 25, Tournier-Couturier does not teach the use of the whole lysate of the bacteria. However, this deficiency is cured by Gueniche.
Gueniche teaches that the whole lysate of the nonpathogenic Vitreoscilla filiformis bacteria may be used in a topical cream as an effective treatment for atopic dermatitis (pg. 1357, Summary).
Finding of a Prima Facie Obviousness Rationale and Motivation
(MPEP §2142-2143)
Regarding claims 23 and 25, it would have been prima facie obvious to one of ordinary skill in the art of filing to use the whole lysate of Vitreoscilla filiformis in the cosmetic composition embraced by Tournier-Couturier. One would have understood in view of Gueniche that the whole lysate of Vitreoscilla filiformis in a skin treatment composition significantly improves the skin condition in patients with atopic dermatitis. It would have been obvious to include the same whole lysate in the composition embraced by Tournier-Couturier. One of ordinary skill in the art of filing would have been motivated to include the whole lysate of Vitreoscilla filiformis in the composition embraced by Tournier-Couturier in order to utilize the beneficial effects demonstrated by the whole lysate present in the cream taught by Gueniche. The artisan of ordinary skill would have had reasonable expectation of success because Gueniche teaches that the whole lysate of Vitreoscilla filiformis may be included in a cream meant for topical treatment of the skin. See MPEP 2144.07.
Claims 31, 33-35, and 37-40 are rejected under 35 U.S.C. 103 as being unpatentable over Tournier-Couturier (WO2018/108973, publication date: 6/21/2018, cited in the IDS filed 1/30/2024, of record), in view of Gracioso (WO2019/016212, publication date: 1/24/2019, cited in the IDS filed 1/30/2024, of record), as applied to claims 21, 22, 24, 26-30, and 32 above, and further in view of Vittel Mineral Water (Water Life, available 8/14/2020, of record) , as evidenced by UniProt (Taxonomy-Vitreoscilla filiformis, available 2/26/2018, of record), Gamache et. al. (Journal of Neurosurgery, pg. 679-685, publication year: 1986, of record), and Cargill (Satiagel VPC 512, publication year: 2015, of record).
Applicant’s Invention
Tournier-Couturier, in view of Gracioso, renders obvious the relevant limitations of claim 21 as described above. Applicant’s claim 31 further adds the limitation of the composition according to claim 21, further comprising a mixture of electrolytes chosen from 1) alkaline earth metal salts; or 2) magnesium or manganese salts, carbonates, bicarbonates, sulfates, phosphates, bromides, chlorides or fluorides. Applicant’s claim 33 further adds the limitation of the composition according to claim 21, further comprising water and at least one electrolyte. Applicant’s claim 37 is drawn to a method for the care of keratin materials, comprising: a) dissolving a composition for the care of keratin materials in a physiologically acceptable aqueous solution, wherein the composition for the care of keratin materials comprises:(i) all or part of at least one lysate derived from at least one non-pathogenic, aerobic proteobacterium fermentation medium, optionally wherein the composition comprises a (glyco)oligopeptide fraction isolated from the at least one lysate; (ii) at least one mucopolysaccharide; (iii) at least one moisturizing agent distinct from (i) and from (ii); (iv) optionally, at least one electrolyte; and (v) optionally, at least one cosmetically active ingredient distinct from (i)-(vi). b) applying dissolved composition a) to the keratin materials wherein at least one electrolyte is present in the dissolved composition.
Determination of the scope and the content of the prior art
(MPEP §2141.01)
Regarding claims 31, 33, and 37, Tournier-Couturier teaches that the composition may contain a spring and/or mineral water, chosen especially from Vittel water, the waters from the Vichy Basin, and Roche Posay water (pg. 18 lines 19-21).
Regarding claim 34, Tournier-Couturier teaches that the composition comprises a physiologically acceptable medium compatible with human keratin materials and adapted to the form in which the composition is intended to be packaged, in particular solid or fluid at room temperature and atmospheric pressure (pg. 15 line 26-pg. 16 line 2). The medium may be an odorless, colorless, medium without unpleasant appearance, and that does not generate discomfort for the user (pg. 16 lines 5-6). The compositions intended for external topical administration may be aqueous (pg. 17 line 2).
Regarding claim 35, Tournier-Couturier teaches the relevant limitations of claims 21, 33, and 34 above.
Regarding claim 37, Tournier-Couturier teaches the relevant limitations of the instant claim 21 as described above. Tournier-Couturier also teaches that the compositions may be used in cosmetic processes for treating a keratin material, wherein treating a keratin material means the topical application of the composition for caring for the skin, mucous membranes, lips, nails, scalp, and hair (pg. 19 lines 1-7). Tournier-Couturier also teaches that the vitreoscilla ferment extract may be spray dried (pg. 14 line 21) and used in an aqueous solution for external topical administration (pg. 17 line 2).
Regarding claims 38-40, Tournier-Couturier teaches that the compositions may especially constitute cleansing, protective, treatment or care creams, lotions, gels, or mousses for caring for keratin materials such as the skin the mucous membranes and the scalp (pg. 17 lines 9-11). The Examiner considers the term “cleansing” embraced by Tournier-Couturier to encompass the limitations “scrubbing” and “removing make-up” of the instant claims 39 and 40.
Ascertainment of the Difference Between Scope of the Prior Art and the Claims
(MPEP §2141.02)
Regarding claims 31, 33, and 37, Tournier-Couturier does not teach that the composition may contain a mixture of electrolytes. However, this deficiency is cured by Vittel Mineral Water.
Vittel Mineral Water is a natural mineral water with a mineral salt composition that includes calcium, magnesium, bicarbonate, and sulfates (pg. 4 Total Mineral Content and A unique mineral composition).
Regarding claim 34, Tournier-Couturier does not teach that the aqueous medium may be present in an amount of at least 50% by weight.
Regarding claim 35, Tournier-Couturier does not teach a weight percentage range of mucopolysaccharides present in the composition. However, this deficiency is cured by Gracioso.
Gracioso teaches that carrageenan is present at 0.7% by weight (pg. 16 Example 3).
Regarding claim 37, all the limitations of the instant claim have been rendered obvious as set forth above in the obviousness rejection of claim 21 except for the dissolution of the composition in an acceptable aqueous solution, the method step of applying the dissolved composition to the keratin materials, and the electrolyte present in the dissolved composition.
Finding of a Prima Facie Obviousness Rationale and Motivation
(MPEP §2142-2143)
Regarding claims 31, 33, and 37, it would have been prima facie obvious to one of ordinary skill in the art of filing that the composition embraced by Tournier-Couturier may contain a mixture of electrolytes. One would have understood in view of Tournier-Couturier that the composition may contain a mineral water such as Vittel water and in view of Vittel Mineral Water that Vittel water contains a mixture of mineral salts including calcium, magnesium, bicarbonate, and sulfates. It would have been obvious to include Vittel water in the composition embraced by Tournier-Couturier, thus adding the mixture of electrolytes contained within Vittel water to the cosmetic composition. The artisan of ordinary skill would have had reasonable expectation of success because Tournier-Couturier teaches that a mineral water such as Vittel water may be added to the composition.
Regarding claim 34, the weight percentage of aqueous medium present in the composition is clearly a result effective parameter that a person of ordinary skill in the art would routinely optimize. Optimization of parameters is a routine practice that would be obvious for a person of ordinary skill in the art to employ and would reasonably expect success. It would have been customary for an artisan of ordinary skill to determine the optimal weight percentage of aqueous medium in order to best achieve the desired results as such would provide advantageous formulation effect. It would have been prima facie obvious to one of ordinary skill in the art at the time of the invention to engage in routine experimentation to determine optimal or workable ranges that produce expected results. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F. 2d 454, 105 USPQ 233 (CCPA 1955). In the instant case, Tournier-Couturier teaches that the composition may be present in an aqueous medium. The Examiner considers it prima facie obvious to optimize weight percentage of aqueous medium present in the composition, absent unexpectedly superior properties of the claimed invention. In the instant case, one of ordinary skill in the art would have recognized that the amount of aqueous medium would directly affect both the concentration of the active ingredients and the textural properties of the formulation and therefore be an optimizable variable.
Regarding claim 35, the weight percentage of mucopolysaccharide present in the composition is clearly a result effective parameter that a person of ordinary skill in the art would routinely optimize. Optimization of parameters is a routine practice that would be obvious for a person of ordinary skill in the art to employ and would reasonably expect success. It would have been customary for an artisan of ordinary skill to determine the optimal weight percentage aqueous medium in order to best achieve the desired results as such would provide advantageous formulation effect. It would have been prima facie obvious to one of ordinary skill in the art at the time of the invention to engage in routine experimentation to determine optimal or workable ranges that produce expected results. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F. 2d 454, 105 USPQ 233 (CCPA 1955). In the instant case, Gracioso teaches a cosmetic serum composition utilizing a bacterial extract as the active ingredient and carrageenan, a mucopolysaccharide, as a rheology modifier, present at 0.7% by weight. The Examiner considers it prima facie obvious to optimize weight percentage of mucopolysaccharide present in the composition, absent unexpectedly superior properties of the claimed invention. In the instant case, one of ordinary skill in the art would have recognized that the amount of mucopolysaccharide present would modify the rheological properties of the formulation and therefore be an optimizable variable.
Claim 36 is rejected under 35 U.S.C. 103 as being unpatentable over Tournier-Couturier (WO2018/108973, publication date: 6/21/2018, cited in the IDS filed 1/30/2024, of record), in view of Gracioso (WO2019/016212, publication date: 1/24/2019, cited in the IDS filed 1/30/2024, of record), as applied to claims 21, 22, 24, 26-30, and 32 above and Vittel Mineral Water (Water Life, available 8/14/2020, of record), as applied to claims 31, 33-35, and 37-40 above, and further in view of Gleick (Scientific American, published 7/23/2008, of record), as evidenced by UniProt (Taxonomy-Vitreoscilla filiformis, available 2/26/2018, of record), Gamache et. al. (Journal of Neurosurgery, pg. 679-685, publication year: 1986, of record), and Cargill (Satiagel VPC 512, publication year: 2015, of record).
Applicant’s Invention
Tournier-Couturier, in view of Gracioso and Vittel Mineral Water, renders obvious the relevant limitations of claims 21, 33, and 34 as described above. Applicant’s claim 36 further adds the limitation of the composition according to claim 34, comprising: (i) at least one oligopeptide fraction isolated from at least one lysate, wherein the at least one lysate is derived from at least one Vitreoscilla filiformis fermentation medium, (ii) at least one mucopolysaccharide in an amount ranging from 0.02% to 0.1% by weight, relative to the total weight of the composition; (iii) at least one moisturizing agent chosen from glycerol, aminoglycerol, urea, their salts thereof, or mixtures of two or more thereof wherein the total amount (iii) moisturizing agent(s) ranges from 5% to 20%, relative to the total weight of the composition; - desalified seawater; and - water, distinct from the seawater, in an amount of at least 10% by weight, relative to the total weight of the composition.
Determination of the scope and the content of the prior art
(MPEP §2141.01)
Tournier-Couturier teaches that the composition comprises a physiologically acceptable medium compatible with human keratin materials and adapted to the form in which the composition is intended to be packaged, in particular solid or fluid at room temperature and atmospheric pressure (pg. 15 line 26-pg. 16 line 2). The medium may be an odorless, colorless, medium without unpleasant appearance, and that does not generate discomfort for the user (pg. 16 lines 5-6). The compositions intended for external topical administration may be aqueous (pg. 17 line 2). Tournier-Couturier also teaches that the composition may contain a spring and/or mineral water, chosen especially from Vittel water, the waters from the Vichy Basin, and Roche Posay water (pg. 18 lines 19-21).
Ascertainment of the Difference Between Scope of the Prior Art and the Claims
(MPEP §2141.02)
Tournier-Couturier does not teach the inclusion of desalified seawater in the composition. However, this deficiency is cured by Gleick.
Gleick teaches that desalinating seawater removes salt from water to render fresh water from seawater (pg. 3 third paragraph). The Examiner interprets the term “desalified seawater” to encompass any fresh water originating from the ocean that then has any dissolved salts and impurities removed.
Finding of a Prima Facie Obviousness Rationale and Motivation
(MPEP §2142-2143)
It would have been prima facie obvious to one of ordinary skill in the art of filing that the composition embraced by Tournier-Couturier could contain desalified seawater. One would have understood in view of Gleick that the term desalinated seawater encompasses any water that originates from the ocean and has salts and other impurities removed. It would have been obvious that the aqueous medium embraced by Tournier-Couturier encompasses any water of any origin, including desalified seawater. One of ordinary skill in the art of filing would have been motivated to included desalified seawater in addition to the spring and/or mineral water in order to adjust the concentration of active ingredient present or to adjust the consistency and characteristics of the aqueous formulation. The artisan of ordinary skill would have had reasonable expectation of success because Tournier-Couturier teaches that the composition may be an aqueous formulation.
Furthermore, the weight percentage of aqueous medium present in the composition is clearly a result effective parameter that a person of ordinary skill in the art would routinely optimize. Optimization of parameters is a routine practice that would be obvious for a person of ordinary skill in the art to employ and would reasonably expect success. It would have been customary for an artisan of ordinary skill to determine the optimal weight percentage of aqueous medium in order to best achieve the desired results as such would provide advantageous formulation effect. It would have been prima facie obvious to one of ordinary skill in the art at the time of the invention to engage in routine experimentation to determine optimal or workable ranges that produce expected results. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F. 2d 454, 105 USPQ 233 (CCPA 1955). In the instant case, Tournier-Couturier teaches that the composition may be present in an aqueous medium. The Examiner considers it prima facie obvious to optimize weight percentage of aqueous medium present in the composition, absent unexpectedly superior properties of the claimed invention. In the instant case, one of ordinary skill in the art would have recognized that the amount of aqueous medium would directly affect both the concentration of the active ingredients and the textural properties of the formulation and therefore be an optimizable variable.
Response to Arguments
Applicant's arguments filed 11/10/2025 have been fully considered but they are not persuasive.
On page 9, Applicant argues that the mixture of a specific extract of one non-pathogenic, aerobic proteobacterium together with a mucopolysaccharide is not contemplated or suggested by the cited references, alone or in combination because Tournier-Couturier does not disclose mucopolysaccharide and does not suggest the possibility to obtain the specific effects of compositions according to the claims and because Gracioso does not contemplate a proteobacterium and does not suggest the possibility to obtain the specific effects of compositions according to the claims. This is not found persuasive. In response, the Examiner respectfully draws attention to MPEP 2144.06 (I), which states: “‘It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose…[T]he idea of combining them flows logically from their having been individually taught in the prior art’ In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980)”. Tournier-Couturier teaches that the composition may contain adjuvants that are common in the cosmetic field (pg. 18 lines 1-2). Therefore, as described in the obviousness rejection above, the instant claims define nothing more than the concomitant use of conventional thickeners such as carrageenan used in cosmetic compositions containing a bacterial extract as an active ingredient.
On page 10, Applicant argues that the skilled person would not have been motivated to combine Tournier-Couturier’s proteobacterium extract with Gracioso’s teaching of carrageenan because Gracioso using a completely different type of bacterium. This is not found persuasive. In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, Tournier-Couturier teaches that the claimed oligopeptide fraction promotes moisturization of the stratum corneum and consequently skin moisturization and increases anti-age activity (pg. 3 lines 10-13) and Gracioso teaches that the Firmicute extract may be combined with other active ingredients at effective concentrations that can act synergistically or in a reinforcing manner achieve the desired effects, including acting on the stratum corneum (pg. 6 lines 18-24). Therefore, a person of ordinary skill in the art of filing would have had reasonable expectation of success in combining the active ingredient of Tournier-Couturier that acts on the stratum corneum with the composition taught by Gracioso, despite the different phyla of the bacteria used to obtain the extracts claimed by Tournier-Couturier and Gracioso, because Gracioso embraces additional active ingredients that may work together to act on the stratum corneum.
On page 10, Applicant argues that at the time the application was filed, the skilled person could not have reasonably expected these specific effects on the sole basis of the teaching of the recited documents. This is not found persuasive. Please refer to MPEP 716.02 (b) which details the burden on Applicant to establish that results in a side-by-side comparison to the closest prior art are unexpected and significant. Specifically, Applicant must establish that differences in results are in fact unexpected and unobvious and are of both practical and statistical significance. Additionally, evidence of unexpected properties must be commensurate in scope with the claims.
Differences in results are in fact unexpected and unobvious: The evidence of unexpected results amounts to a moisturizing effect together with improved effectiveness of cleansing and of sensory quality. Tournier-Couturier teaches that the claimed oligopeptide fraction promotes moisturization of the stratum corneum and consequently skin moisturization and increases anti-age activity (pg. 3 lines 10-13). Gracioso teaches that the claimed composition is intended to work in the treatment of dry skin by limiting transepidermal water loss, the reinforcement of the cutaneous battier, and the osmolytes responsible for hydration (pg. 3 lines 19-22). While both Tournier-Couturier and Gracioso are silent with regard to the efficacy of cleansing and sensory feel of the composition, the combined teachings of the prior art teach the same composition as claimed and therefore, the cleansing and sensory feel properties are necessarily present; the Examiner directs attention to MPEP 2112.01 (II) which states: “A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present.” Therefore, the unexpected results are not unexpected and unobvious.
Differences are of both practical and statistical significance: The evidence of unexpected results amounts to an improved effectiveness of cleansing and of sensory quality, therefore the differences are of practical significance. However, while the significance of the amount of stain recovered during the cleansing operation is easily calculated from the values provided, the effectiveness of the cleansing and sensory experience are merely subjective ratings and do not provide any numerical data or statistical analysis. Therefore, while the amount of stain recovered does provide statistical significance, the evidence regarding the effectiveness of the cleansing and sensory experience is not statistically significant.
Evidence of unexpected properties must be in commensurate scope with the claims: The evidence of unexpected properties amounts to an improved effectiveness of cleansing and of sensory quality. The claims are silent with regards to the cleansing effectiveness and sensory quality of the compositions; therefore, the evidence of unexpected properties is not in commensurate scope with the claims.
Additionally, no side-by-side comparison to the closest prior art is provided to establish unexpectedly superior performance. There is no nexus between the purportedly unexpected property and the differences between the instant invention, as claimed, and the closest prior art. Thus, the Applicant’s argument is not persuasive and the rejection is maintained.
Response to Exhibit
Applicant’s Exhibit A filed 11/10/2025 has been considered. For the reasons described in the response to arguments above, a person of ordinary skill in the art of filing would have had reasonable expectation of success in combining the active ingredient of Tournier-Couturier that acts on the stratum corneum with the composition taught by Gracioso, despite the different phyla of the bacteria used to obtain the extracts claimed by Tournier-Couturier and Gracioso, because Gracioso embraces additional active ingredients that may work together to act on the stratum corneum.
Conclusion
No claims are allowed.
THIS ACTION IS MADE FINAL. 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.
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ELIZABETH ANNE MEYERSExaminer, Art Unit 1617
/ALI SOROUSH/Supervisory Patent Examiner, Art Unit 1614