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 .
Continued Examination Under 37 CFR 1.114
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 5/27/2026 has been entered.
Status of the Claims
Claims 21-26, 28-31, 33-34, and 36-43 are pending and under current examination. Claims 27, 32, and 35 are cancelled.
Withdrawn Claim Rejections
All rejections pertaining to claims 27, 32, and 35 are moot because the claims are cancelled in the amendments to the claims filed 5/27/2026.
All rejections not reiterated have been withdrawn.
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.
Claims 25, 33-34, and 36-40 are 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 applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 25 recites the limitation “comprising a whole lysate in a complete fermentation medium”. This renders the claim indefinite because it is not clear how the lysate that is isolated from the fermentation medium, as recited by claim 22, may be a whole lysate in a complete fermentation medium.
Claim 33 recites the limitation “further comprising water and at least one electrolyte”. This renders the claim indefinite because it is not clear if the water recited by claim 33 is in addition to the water required by the independent claim 21.
Claim 36 recites the limitation “desalified salt water and….water other than desalified seawater”. As presented in the instant claim, “desalified salt water” encompasses any kind of water that has had the salt removed, such as distilled water or drinking water. This renders the claim indefinite because it is no clear definition in the instant claims or specification as to how “desalified salt water” is distinct from “water other than desalified seawater”.
Claim 37 recites the limitations “(iv) optionally, at least one electrolyte” and “….wherein at least one electrolyte is present”. This renders the claim indefinite because it is not clear if the electrolyte is required by the claim.
Claims 38-40 recite the limitation “wherein the cleansing composition further comprises water and at least one electrolyte”. This renders the claims indefinite because claim 37, from which claims 38-40 depend, recites “in a physiologically acceptable aqueous solution” and “wherein at least one electrolyte is present”. It is unclear if the water and electrolyte recited by claims 38-40 refers to the water and electrolyte recited by claim 37 or if the limitation refers to water and at least one electrolyte that are present in addition to those recited by claim 37.
Regarding claim 34, claims depending from rejected claims have also been rejected because they incorporate all of the limitations of the claims from which they depend, but fail to resolve the indefiniteness concerns outlined above.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 22, 25-26, and 42 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 22 recites the limitation “wherein the at least one lysate is isolated from the fermentation medium” and claim 42 recites the limitation “at least one lysate derived from at least one Vitreoscilla filiformis fermentation medium”. Claim 21, from which claims 22 and 42 depend, recites the limitation “at least one lysate derived from a Vitreoscilla filiformis fermentation medium”. Therefore, the limitations recited by claims 22 and 42 fail to further limit the subject matter of claim 21.
Regarding claims 25-26, claims depending from rejected claims have also been rejected because they incorporate all of the limitations of the claims from which they depend, but fail to resolve the dependency concerns outlined above.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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 21-26, 28-31, 33-34, and 41-42 are rejected under 35 U.S.C. 103 as being unpatentable over Breton (WO2006095098A2, publication year: 2006, citations refer to machine translation) in view of Tournier-Couturier (WO2018/108973, publication date: 6/21/2018, cited in the IDS filed 1/30/2024, of record), as evidenced by Cargill (Satiagel VPC 512, publication year: 2015, of record).
Determination of the scope and the content of the prior art
(MPEP §2141.01)
Regarding claims 21-26, 28-30, and 42, Breton teaches a cleansing or makeup-removing product for the skin, hair, eyebrows or eyelashes [0051] that may contain the extract of Vitreoscilla filiformis (strain ATCC 15551), it’s metabolites, and its fractions [0027]. Extract of the bacteria includes the culture supernatant [0029]. The composition may comprise a tensing agent such as carrageenans [0109] and a moisturizing agent such as glycerol [0074]. The composition may also include electrolytes [0066] and other active ingredients such as soothing agents [0055], fruit extracts [0060], vegetable oils [0062], and amino acids [0068]. The additional active ingredients can represent from 0.001% to 30% of the total weight of the composition according to the invention [0075]. Exemplary compositions may contain water [0149, 0158, 0170]. Cargill teaches that carrageenans are extracted from red seaweeds (pg. 1 Nature Within).
Regarding claims 31 and 33, Breton teaches that the composition may include electrolytes and in particular an aqueous mixture comprising 30 to 35% magnesium chloride, 20 to 28% potassium chloride, 3 to 10% sodium chloride, 0.2 to 1% calcium chloride, 0.1 to 6.0% magnesium bromide and 0.1 to 0.5% insolubles [0066].
Regarding claim 34, Breton teaches that that composition may contain a cosmetically acceptable medium [0001].
Regarding claim 41, Breton teaches that the composition may comprise a tensing agent such as carrageenans [0109] and a moisturizing agent such as glycerol [0074].
Ascertainment of the Difference Between Scope of the Prior Art and the Claims
(MPEP §2141.02)
Regarding claims 21-26 and 28 and 42, Breton does not teach the inclusion of an oligopeptide fraction isolated from at least one lysate derived from a Vitreoscilla filiformis strain fermentation medium. However, this deficiency is cured by Tournier-Couturier.
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 biomass obtained by fermentation of V. filiformis (ATCC strain 15551) is separated from the culture supernatant and the supernatant undergoes enzymatic digestion with a carbohydrase to isolate the oligopeptide fraction (pg. 20 line 15-pg. 21 line 4). The composition is intended to be applied topically to the skin or as hair care (pg. 16 lines 15-16). The oligopeptide fraction according to the invention provides superior moisturization of the stratum corneum when compared an extract of Vitreoscilla filiformis outside the invention (pg. 24 lines 6-7 and Table pages 23-24).
Regarding claim 30, Breton does not teach that the cosmetic composition may contain a mucopolysaccharide in a specific weight ratio relative to a moisturizer.
Regarding claim 34, Breton does not teach an aqueous medium in any particular weight percentage. However, this deficiency is cured by Tournier-Couturier.
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).
Finding of a Prima Facie Obviousness Rationale and Motivation
(MPEP §2142-2143)
Regarding claims 21-26, it would have been prima facie obvious to include the oligopeptide fraction of Tournier-Couturier in the cleansing composition taught by Breton. One would have understood in view of Tournier-Couturier that an oligopeptide fraction isolated from the culture medium of Vitreoscilla filiformis is more effective at moisturizing the stratum corneum when compared an extract of Vitreoscilla filiformis outside the invention (pg. 24 lines 6-7 and Table pages 23-24). It would have been obvious to utilize the oligopeptide fraction in the cleansing composition taught by Breton. One of ordinary skill in the art of filing would have been motivated to utilize the oligopeptide fraction isolated from the fermentation medium of Vitreoscilla filiformis in order to utilize the superior moisturization renders by the isolated oligopeptide fraction. The artisan of ordinary skill in the art of filing would have had reasonable expectation of success because Breton teaches that the extract of Vitreoscilla filiformis includes the culture supernatant [0029].
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 cosmetic 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, Breton teaches that carrageenan may act as a tightening agent that is capable of exerting traction on the skin, which has the effect of temporarily smoothing out irregularities on the skin’s surface, such as wrinkles and fine lines [0106] and that the moisturizing agent may act on the barrier function in order to maintain the hydration of the stratum corneum [0074].. 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 have a direct effect on the tightening and moisturizing properties of the cosmetic formulation and therefore be an optimizable variable.
Regarding claim 34, it would have been prima facie obvious to one of ordinary skill in the art of filing to utilize an aqueous medium for the composition of Breton. One would have understood in view of Tournier-Couturier that an aqueous medium may be utilized for a cosmetic composition comprising Vitreoscilla filiformis extract intended for external topical administration (pg. 17 line 2). 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 aqueous medium used in topical cosmetic compositions comprising Vitreoscilla filiformis extract. It would follow that the recited claims define prima facie obvious subject matter. See MPEP 2144.06.
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.
Claim 36 is rejected under 35 U.S.C. 103 as being unpatentable over Breton (WO2006095098A2, publication year: 2006, citations refer to machine translation) in view of Tournier-Couturier (WO2018/108973, publication date: 6/21/2018, cited in the IDS filed 1/30/2024, of record), as applied to claims 21-26, 28-31, 33-34, and 41-42 above, and further in view of Gleick (Scientific American, published 7/23/2008, of record), as evidenced by Cargill (Satiagel VPC 512, publication year: 2015, of record).
Determination of the scope and the content of the prior art
(MPEP §2141.01)
Breton, in view of Tournier-Couturier, renders obvious the relevant limitations of claims 21 and 34 above.
Ascertainment of the Difference Between Scope of the Prior Art and the Claims
(MPEP §2141.02)
Breton does not teach the inclusion of desalified salt water or water other than desalified seawater. However, this deficiency is cured by Tournier-Couturier and Gleick.
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). 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 Breton 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.
Claims 21-26, 28-30, and 37-42 are rejected under 35 U.S.C. 103 as being unpatentable over Simonnet (U.S. Patent No. 9,636,297, issue year: 2017) in view of Tournier-Couturier (WO2018/108973, publication date: 6/21/2018, cited in the IDS filed 1/30/2024, of record), as evidenced by Cargill (Satiagel VPC 512, publication year: 2015, of record).
Determination of the scope and the content of the prior art
(MPEP §2141.01)
Regarding claims 21-26, 28-29, 37, and 42, Simonnet teaches a method for the cosmetic treatment of keratin material comprising at least the steps of having available a lyophilizate containing at least one live or inactivated, physiologically acceptable microorganism, one of its metabolites or one of its fractions and at least one surfactant with an HLB greater than or equal to 12, have available a physiologically acceptable medium, separate from the said lyophilizate, bringing the said lyophilizate extemporaneously into contact with the said medium under conditions favorable for the solubilization and/or dispersion of the said lyophilizate in the said medium, and bringing the mixture obtained the preceding step into contact with the said keratin material (col. 2 lines 12-29). The composition may be provided in the form of a cleansing treatment or care composition for the face, hands, feet, large anatomical folds or for the body (col. 23 lines 14-17). The lyophilizate may comprise any active fraction of the supernatant obtained by filtration of the stabilized cellular extract of Vitreoscilla filiformis (col. 6 line 36 and lines 57-58), carrageenans as a lyophilization additive (col. 13 line 41), and glycerol as a cryoprotectant (col. 14 line 49). The amount of lyophilization additives may be present from 0.5 to 20% by weight (col. 14 line 31) and the cryoprotectant may be present from 1 to 80% by weight (col. 14 line 67). Cargill teaches that carrageenans are extracted from red seaweeds (pg. 1 Nature Within). With regards to the “moisturizing agent” limitations of instant claims 21 and 37, the prior art teaches the same glycerol as claimed and therefore, the moisturizing agent 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.”
Regarding claim 30, Simonnet teaches that the lyophilizate may comprise any active fraction of the supernatant obtained by filtration of the stabilized cellular extract of Vitreoscilla filiformis (col. 6 line 36 and lines 57-58), carrageenans as a lyophilization additive (col. 13 line 41), and glycerol as a cryoprotectant (col. 14 line 49). The amount of lyophilization additives may be present from 0.5 to 20% by weight (col. 14 line 31) and the cryoprotectant may be present from 1 to 80% by weight (col. 14 line 67).
Regarding claim 33, Simonnet teaches that the physiologically acceptable medium is represented by water (col. 24 line 4) and that the formula comprising water prior to lyophilization (col. 27, Example 2). The compositions may comprise an inorganic filler such as magnesium carbonate (col. 22 line 11).
Regarding claim 34, Simonnet teaches the relevant limitations of claims 21 and 33 above.
Regarding claim 38, Simonnet teaches that the composition may be removed by rinsing with water (col. 23 line 38). Simonnet also teaches that the physiologically acceptable medium is represented by water (col. 24 line 4) and that the formula comprising water prior to lyophilization (col. 27, Example 2). The compositions may comprise an inorganic filler such as magnesium carbonate (col. 22 line 11).
Regarding claim 39, Simonnet teaches that the mixture of the lyophilized form and of the physiologically acceptable medium may be applied by any means allowing uniform distribution and in particular with the aid of cotton wool, a stick, a brush, a gauze, a spatula or a pad (col. 23 lines 32-37). The instant specification defines scrubbing the skin to comprise the application of the composition to said skin (pg. 6 lines 1-2), therefore the Examiner considers the term “any means allowing uniform distribution” to read on the “scrubbing” limitation of the instant claim. ). Simonnet also teaches that the physiologically acceptable medium is represented by water (col. 24 line 4) and that the formula comprising water prior to lyophilization (col. 27, Example 2). The compositions may comprise an inorganic filler such as magnesium carbonate (col. 22 line 11).
Regarding claim 40, Simonnet teaches that the composition may be in the form a makeup-removing cream (col. 23 line 17). ). Simonnet also teaches that the physiologically acceptable medium is represented by water (col. 24 line 4) and that the formula comprising water prior to lyophilization (col. 27, Example 2). The compositions may comprise an inorganic filler such as magnesium carbonate (col. 22 line 11).
Regarding claim 41, Simonnet teaches that the lyophilizate may comprise any active fraction of the supernatant obtained by filtration of the stabilized cellular extract of Vitreoscilla filiformis (col. 6 line 36 and lines 57-58), carrageenans as a lyophilization additive (col. 13 line 41), and glycerol as a cryoprotectant (col. 14 line 49). With regards to the “moisturizing agent” limitations of instant claims 41, the prior art teaches the same glycerol as claimed and therefore, the moisturizing agent 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.”
Ascertainment of the Difference Between Scope of the Prior Art and the Claims
(MPEP §2141.02)
Regarding claims 21-26 and 37 and 42, Simonnet does not teach the inclusion of an oligopeptide fraction isolated from at least one lysate derived from a Vitreoscilla filiformis strain fermentation medium. However, this deficiency is cured by Tournier-Couturier.
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 biomass obtained by fermentation of V. filiformis (ATCC strain 15551) is separated from the culture supernatant and the supernatant undergoes enzymatic digestion to isolate the oligopeptide fraction (pg. 20 line 15-pg. 21 line 4). The composition is intended to be applied topically to the skin or as hair care (pg. 16 lines 15-16). The oligopeptide fraction according to the invention provides superior moisturization of the stratum corneum when compared an extract of Vitreoscilla filiformis outside the invention (pg. 24 lines 6-7 and Table pages 23-24).
Regarding claim 34, Simonnet does not teach a weight percentage of aqueous medium present in the composition.
Finding of a Prima Facie Obviousness Rationale and Motivation
(MPEP §2142-2143)
Regarding claim 37, it would have been prima facie obvious to include the oligopeptide fraction of Tournier-Couturier in the cleansing composition taught by Simonnet. One would have understood in view of Tournier-Couturier that an oligopeptide fraction isolated from the culture medium of Vitreoscilla filiformis is more effective at moisturizing the stratum corneum when compared an extract of Vitreoscilla filiformis outside the invention (pg. 24 lines 6-7 and Table pages 23-24). It would have been obvious to utilize the oligopeptide fraction in the cleansing composition taught by Simonnet. One of ordinary skill in the art of filing would have been motivated to utilize the oligopeptide fraction isolated from the fermentation medium of Vitreoscilla filiformis in order to utilize the superior moisturization renders by the isolated oligopeptide fraction. The artisan of ordinary skill in the art of filing would have had reasonable expectation of success because Simonnet teaches that the lyophilizate may comprise any active fraction of the supernatant obtained by filtration of the stabilized cellular extract of Vitreoscilla filiformis (col. 6 line 36 and lines 57-58).
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, Simonnet 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 the concentration of the active ingredients and therefore be an optimizable variable.
Claim 43 is rejected under 35 U.S.C. 103 as being unpatentable over Simonnet (U.S. Patent No. 9,636,297, issue year: 2017) in view of Tournier-Couturier (WO2018/108973, publication date: 6/21/2018, cited in the IDS filed 1/30/2024, of record), as applied to claims 21-26, 28-30, and 37-42 above, and further in view of Adu et. al. (Pharmaceutics, pg. 1099, publication date: 11/16/2020) and ICI Americas (The HLB System, publication year: 1980), as evidenced by Cargill (Satiagel VPC 512, publication year: 2015, of record).
Determination of the scope and the content of the prior art
(MPEP §2141.01)
Simonnet, in view of Tournier-Couturier, renders obvious the relevant limitations of claim 21 above. Simonnet also teaches that the composition may comprise an ionic, nonionic or mixed ionic and nonionic surfactant with an HLB greater than or equal to 12 (col. 8 line 36).
Ascertainment of the Difference Between Scope of the Prior Art and the Claims
(MPEP §2141.02)
Simonnet does not teach the inclusion of a cleansing surfactant of microbial origin. However, this deficiency is cured by Adu.
Adu teaches that biosurfactants are surfactants of biological origin, mainly produced by bacteria, yeast or filamentous fungi and have several potential advantages over their synthetic counterparts in addition to their wetting, emulsification, surface tension reduction and detergency functions. These potential advantages include lower toxicity, biodegradability, compatibility with the human skin, stability at extreme conditions (pH, temperature and salinity) and production from cheaper and renewable resources (pg. 2, second paragraph). ICI Americas teaches that by blending two emulsifiers, you can arrive at the exact HLB you need, instead of trying to “make do” with a single emulsifier having an HLB that’s “close but not quite right.” An HLB of 12 will be best for any chemical type you might try (pg. 9, Chapter 4).
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 to utilize a biosurfactant in the cleansing composition of Simonnet. One would have understood in view of Adu that biosurfactants have several advantages over synthetic surfactants, such as lower toxicity and higher biodegradability, compatibility with human skin, and stability at extreme temperatures as well as production from cheaper and renewable resources and in view of ICI America that HLB is an optimizable variable that can be adjusted based on the blend of emulsifiers present. It would have been obvious to utilize a biosurfactant in an emulsifier system with an HLB of 12 in the cleansing composition of Simonnet. One of ordinary skill would have been motivated to utilize a biosurfactant in order to utilize a surfactant with lower toxicity and higher biodegradability, compatibility with human skin, and stability at extreme temperatures as well as production from cheaper and renewable resources. The artisan of ordinary skill would have had reasonable expectation of success because Simonnet teaches that the composition may comprise an ionic, nonionic or mixed ionic and nonionic surfactant with an HLB greater than or equal to 12 (col. 8 line 36).
Response to Arguments
Applicant's arguments filed 5/27/2026 have been fully considered but they are not persuasive.
Applicant’s arguments with respect to the rejections of under 35 U.S.C. 103 over Tournier-Couturier in view of Gracioso have been considered but are moot because the new ground of rejection does not rely on Gracioso. The rejection does not rely on Tournier-Couturier for the teachings of carrageenan specifically challenged in the argument.
On page 11, Applicant argues that the inventions as claimed provide unexpected benefits in effectiveness in cleansing. This is not found persuasive. In response, 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 increased stain removal and improved sensory experience rendered by the inventive composition compared to water alone or to a control micellar solution. These results are unexpected and unobvious over the prior art.
Differences are of both practical and statistical significance: The evidence of unexpected results are of practical and statistical significance.
Evidence of unexpected properties must be in commensurate scope with the claims: The instant claim 21 embraces a composition for the care of keratin materials comprising a moisturizing agent chosen from glycerol, aminoglycerol, urea, salts thereof, or mixtures thereof and any concentration of oligopeptide fraction isolated from at least one lysate derived from a Vitreoscilla filiformis strain fermentation medium. In order to be in commensurate scope with the claims, the evidence of unexpected results must demonstrate increased cleansing efficiency and sensory feel for each and every moisturizing agent claimed and at every concentration of oligopeptide fraction. However, the evidence of unexpected results pertains only to an inventive composition comprising glycerol and a single concentration of oligopeptide fraction. Therefore, the evidence of unexpected results 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.
Conclusion
No claims are allowed.
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ELIZABETH ANNE MEYERSExaminer, Art Unit 1617 /ALI SOROUSH/Supervisory Patent Examiner, Art Unit 1614
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