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 .
112(b) Rejections Withdrawn
The rejection of claims 3-10 and 12-17 under 35 USC 112(b) or 35 USC 112 (pre-AIA ), second paragraph, outlined in the previous Office Action, has been overcome by inventor’s amendment. The amendment clarifies the claims as appropriate.
The rejection of claim 19 under 35 USC 112(b) or 35 USC 112 (pre-AIA ), second paragraph, outlined in the previous Office Action, has been overcome by inventor’s amendment. The amendment clarifies the claim as appropriate.
Claim Rejections - 35 USC § 112(b), MAINTAINED and NEW
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 10 remains 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.
Inventor’s amendment has been carefully considered, but there is still insufficient antecedent basis for the reformulated limitation “…the one or more monosaccharides…” in the claim. Claim 10 immediately depends from independent claim 1. Independent claim one does not recite a limitation with respect to monosaccharides. (A monosaccharide limitation is recited in dependent claim 8, not claim 1.)
Clarification remains in order.
Claim 11 remains rejected, and claim 12 newly 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.
Claims 11 and 12 depend from an indefinite claim yet do not relieve the indefiniteness. Dependent claims 11 and 12 are also, therefore, indefinite.
Claim Rejections - 35 USC § 112(d), NEW
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.
Claim 17 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, fourth 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. In the present instance, the claim fails to further limit the subject matter of the claim upon which it depends.
Independent claim 1, the claim from which claim 17 immediately depends, already explicitly teaches that the composition is applied to the scalp and/or the hair.
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 § 102, NEW
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 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.
Claims 1, 3-5 and 15-19 are rejected under 35 U.S.C. 102(a)(1) as being clearly anticipated by US 2009/0060962 A1, prior art of record.
The reference teaches a method for treating or preventing dryness of and/or associated disorders of a keratinous substance with a lysate of Bifidobacterium species (abstract).
An exemplified milk for care of the scalp comprises 5 wgt. % of a lysate of Bifidobacterium longum; 0.05 wgt. % antioxidant; 1 wgt. % each of glycerol stearate and cetyl alcohol (nonionic surfactants); and a calculated amount of water as 79.65 wgt. % (page 7, Example 4).
The antioxidant in the compositions comprises Vitamin C (i.e. ascorbic acid) (page 5, [0114]).
The reference explicitly teaches that the compositions may be formulated as creams, gels, serums, lotions etc. for application to the keratinous substance, such as dry skin or hair (i.e. compositions which are not washed off) and well as shampoos (i.e. compositions which are washed off) (page 6, [0130]).
Claim Rejections - 35 USC § 103, NEW
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.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over US 2009/0060962 A1 and further in view of US 2002/0042380 A1, both prior art of record.
Inventor teaches a method for the cosmetic treatment of the scalp and/or hair comprising application of a composition comprising (a) one or more of ascorbic acid and its derivatives, and (b) one or more microorganisms of the genus Bifidobacterium species, one of its fractions, one of its metabolites, or mixtures thereof, the microorganism(s) being in the lysate form and the total water content of the composition ranging between 60-98 wgt. %, where the ascorbic acid derivative is ascorbyl glucoside.
US 2009/0060962 A1 teaches a method for treating or preventing dryness of and/or associated disorders of a keratinous substance with a lysate of Bifidobacterium species (abstract).
An exemplified milk for care of the scalp comprises 5 wgt. % of a lysate of Bifidobacterium longum; 0.05 wgt. % antioxidant; 1 wgt. % each of glycerol stearate and cetyl alcohol (nonionic surfactants); and a calculated amount of water as 79.65 wgt. % (page 7, Example 4).
The antioxidant in the compositions comprises Vitamin C (i.e. ascorbic acid) (page 5, [0114]).
US 2002/0042380 A1 teaches the topical application of ascorbic acid compounds which improve the barrier function of the skin, its moisture content and/or suppleness/surface appearance, etc. (abstract). Ascorbyl glucoside is an exemplified derivative (page 4, Examples 1 and 3).
Inventor distinguishes over US 2009/0060962 A1 in that ascorbyl glucoside is taught as the antioxidant. However, one of ordinary skill in the art, before the effective filing date of the instant invention, would have found it obvious to substitute ascorbyl glucoside for the ascorbic acid of the prior art, and with a reasonable expectation of success, in order to take advantage of this ascorbic acid derivative’s enhanced benefits for the skin as taught by US 2002/0042380.
Claims 6, 7 and 10-14 are rejected under 35 U.S.C. 103 as being unpatentable over US 2009/0060962 A1, prior art or record.
Inventor teaches a method for the cosmetic treatment of the scalp and/or hair comprising application of a composition comprising (a) one or more of ascorbic acid and its derivatives, and (b) one or more microorganisms of the genus Bifidobacterium species, one of its fractions, one of its metabolites, or mixtures thereof, the microorganism(s) being in the lysate form and the total water content of the composition ranging between 60-98 wgt. %, and further comprising one or more extracts of yeast of the genus Saccharomyces chosen from the species Saccharomyces bailii,…cerevisiae…,etc. (claim 6). Claim 7 (from claim 6) teaches ranges of wgt. % of the Saccharomyces species.
Inventor further teaches a method for the cosmetic treatment of the scalp and/or hair comprising application of a composition comprising (a) one or more of ascorbic acid and its derivatives, and (b) one or more microorganisms of the genus Bifidobacterium species, one of its fractions, one of its metabolites, or mixtures thereof, the microorganism(s) being in the lysate form and the total water content of the composition ranging between 60-98 wgt. %, and further comprising one or more oligosaccharides, polysaccharides and mixtures (claim 10). Claim 11 (from claim 10) teaches a mixture comprising at least one fructooligosaccharide and at least one glucooligosaccharide. Claim 12 (from claim 10) teaches ranges of wgt. % of the saccharides.
Inventor further teaches a method for the cosmetic treatment of the scalp and/or hair comprising application of a composition comprising (a) one or more of ascorbic acid and its derivatives, and (b) one or more microorganisms of the genus Bifidobacterium species, one of its fractions, one of its metabolites, or mixtures thereof, the microorganism(s) being in the lysate form and the total water content of the composition ranging between 60-98 wgt. %, and further comprising one or more probiotic microorganisms, different from Bifidobacterium species, chosen from lactic acid bacteria such as Lactobacillus acidophilus, etc. (claim 13). Claim 14 (from claim 13) teaches ranges of wgt. % of the lactic acid bacteria.
US 2009/0060962 A1 teaches a method for treating or preventing dryness of and/or associated disorders of a keratinous substance with a lysate of Bifidobacterium species (abstract).
An exemplified milk for care of the scalp comprises 5 wgt. % of a lysate of Bifidobacterium longum; 0.05 wgt. % antioxidant; 1 wgt. % each of glycerol stearate and cetyl alcohol (nonionic surfactants); and a calculated amount of water as 79.65 wgt. % (page 7, Example 4).
The antioxidant in the compositions comprises Vitamin C (i.e. ascorbic acid) (page 5, [0114]).
The reference explicitly teaches that additional microorganisms may be added to the composition, in particular, Saccharomyces species such as Saccharomyces cerevisiae, (page 3, [0079]; page 4, [0083]). The additional microorganisms may be added in the ranges of 0.0001-30 wgt. %, 0.001-15 wgt. %, and 0.1-10 wgt. % (page 4, [0088]).
The reference also explicitly teaches that other actives such as fructo-oligosaccharide and prebiotics such as oligosaccharides produced starting from glucose, etc., may be added (page 5, [0115]).
The reference also explicitly teaches that additional probiotic microorganisms may be added to the composition such as Lactobacillus acidophilus, etc. (page 4, [0084]). These additional probiotic microorganisms may be added in ranges of 0.0001-30 wgt. %, 0.001-15 wgt. %, and 0.1-10 wgt. % (page 4, [0088]).
With respect to claims 6 and 7, inventor distinguishes over the exemplified compositions of the cited art in that Saccharomyces species have been added to the composition. However, one of ordinary skill, before the effective filing date of the instant invention, would have found such an addition obvious (and a significant portion of the prior art range of such an addition would yield a composition which satisfies the instant limitation with respect to water content) and done so with a reasonable expectation of success, given that the reference explicitly teaches that this may be done.
With respect to claims 10-12, inventor distinguishes over the exemplified compositions of the cited art in that oligosaccharides, polysaccharides, or mixtures thereof have been added to the compositions. However, one of ordinary skill, before the effective filing date of the instant invention, would have found such an addition obvious, and done so with a reasonable expectation of success, given that the reference explicitly teaches that this may be done. One of ordinary skill would have found it obvious as well, before the effective filing date of the instant invention, to choose the appropriate wgt. % of such additional conventional ingredients as well, motivated and guided by the ordinary practitioner’s skill in formulating compositions for application to the scalp or hair.
With respect to claims 13 and 14, inventor distinguishes over the exemplified compositions of the cited art in that lactic acid bacteria have been added to the composition. However, one of ordinary skill, before the effective filing date of the instant invention would have found such an addition obvious (and a significant portion of the prior art range of such an addition would yield a composition which satisfies the instant limitation with respect to water content) and done so with a reasonable expectation of success, given that the reference explicitly teaches that this may be done.
Claims 8-12 are rejected under 35 U.S.C. 103 as being unpatentable over US 2009/0060962 A1 and further in view of DE 29804154U1, whose corresponding English language machine translation has been relied upon for purposes of this rejection, all of which are prior art of record.
Inventor teaches a method for the cosmetic treatment of the scalp and/or hair comprising application of a composition comprising (a) one or more of ascorbic acid and its derivatives, and (b) one or more microorganisms of the genus Bifidobacterium species, one of its fractions, one of its metabolites, or mixtures thereof, the microorganism(s) being in the lysate form and the total water content of the composition ranging between 60-98 wgt. %, and further comprising one or more one or more monosaccharides, preferably mannose or rhamnose (claim 8). Claim 9 (from claim 8) teaches ranges of the wgt. % of the monosaccharides.
Inventor further teaches a method for the cosmetic treatment of the scalp and/or hair comprising application of a composition comprising (a) one or more of ascorbic acid and its derivatives, and (b) one or more microorganisms of the genus Bifidobacterium species, one of its fractions, one of its metabolites, or mixtures thereof, the microorganism(s) being in the lysate form and the total water content of the composition ranging between 60-98 wgt. %, and further comprising one or more oligosaccharides, polysaccharides and mixtures (claim 10). Claim 11 (from claim 10) teaches a mixture comprising at least one fructooligosaccharide and at least one glucooligosaccharide. Claim 12 (from claim 10) teaches ranges of wgt. % of the saccharides.
US 2009/0060962 A1 has been outlined in the 103 rejection immediately above.
The English language machine translation of DE 29804154U1 teaches a hair conditioning product which improves the properties of the hair when topically applied and comprises an aqueous mixture of at least one mono- and/or oligosaccharide (page 1, Hair treatment products, last paragraph). Mannose and rhamnose are among the preferred mono- and/or oligosaccharides (page 1, A-11/98 -2-, first paragraph). Ranges of wgt. % in the composition are approximately 0.1-20 wgt. %, 0.25-10 wgt. %, and 0.5-5 wgt. % (page 1, A-11/98 -2-, last two text lines).
Inventor principally distinguishes over the exemplified composition of US 2009/0060962 A1, with respect to claims 8 and 9, in that a monosaccharide, preferably mannose or rhamnose, has been added to the mixture. However, one of ordinary skill in the art, before the effective filing date of the instant invention, would have found it obvious to add such monosaccharides (and a significant portion of the prior art range of such an addition would yield a composition which satisfies the instant limitation with respect to water content) and done so with a reasonable expectation of success, in order to take advantage of the improved properties imparted to hair by the monosaccharides, as taught by DE 2980415U1. Likewise, the addition of oligosaccharides (claims 10-12).
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRIAN J DAVIS whose telephone number is (571)272-0638. The examiner can normally be reached M-F 8:30-5:00 PM EDT.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Ali Soroush, can be reached at 571-272-9925. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/BRIAN J DAVIS/Primary Examiner, Art Unit 1614 10/4/2026
