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 Application
Receipt of Applicant’s arguments and amended claims filed on April 6, 2026 is acknowledge.
Claims 40 and 49, 51, 55, 57, 61, 63-64 are pending in this application.
Claims 1-39, 41-48, 50, 52-54, 56, 58-60, 62, and 65 have been cancelled.
Claims 40, 49, 51, 55, 57, and 63-64 have been amended.
All pending claims are under examination in this application.
Withdrawn Objections/Rejections
Claim Objections
The objection to the claims for not being in accordance with 37 CFR 1.126 which requires the original numbering of the claims to be preserved throughout the prosecution has been withdrawn in view of the corrected claim set submitted.
Claim Rejections - 35 USC § 112
The rejection of claims 40 and 49-65 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 because:
claim 40 recites (iiib) at least one binder/stabilizer and (iiid) includes a binder in the Markush group and since (iiif) is any combination of at least two of any iiia-iiie, it is unclear if the recitation of a “binder” in (iiib) and (iiid) is intended to represent different components or the same component has been withdrawn in view of the amendment to claim 40 to delete the “binder” from (iiid); and
claim 50 recites the broad recitation the “polyamine is putrescine or dansylcadaverine”, and the claim also recites “preferably putrescine” which is the narrower statement of the range/limitation has been withdrawn in view of the cancellation of the claim.
Claim Rejections - 35 USC § 102
The rejection of claims 40, 49-51, 57-58, 61, and 63-64 under 35 U.S.C. 102(a)(1) as being anticipated by Lovaas (US 2008/0124312) has been withdrawn in view of the amendment to claim 40 to recite pH, magnesium aluminum silicate, xanthan gum, squalene, or a blend of glyceryl stearate and PEG-100 stearate.
Claim Rejections - 35 USC § 103
The rejection of claims 40, 49-52, 57-58, 61, and 63-64 under 35 U.S.C. 103 as being unpatentable over Lovaas (US 2008/0124312) has been withdrawn in view of the amendment to claim 40 to recite pH, magnesium aluminum silicate, xanthan gum, squalene, or a blend of glyceryl stearate and PEG-100 stearate.
The rejection of claims 40, 49-53, 57-58, 61, and 63-65 under 35 U.S.C. 103 as being unpatentable over Lovaas (US 2008/0124312) in view of Hahn et al. (US 7,404,967) has been withdrawn in view of the amendment to claim 40 to recite pH, magnesium aluminum silicate, xanthan gum, squalene, or a blend of glyceryl stearate and PEG-100 stearate.
The rejection of claims 40, 49-52, 54, 57-58, 61, and 63-64 under 35 U.S.C. 103 as being unpatentable over Lovaas (US 2008/0124312) in view of Gordon et al. (US 5,977,039) has been withdrawn in view of the amendment to claim 40 to recite pH, magnesium aluminum silicate, xanthan gum, squalene, or a blend of glyceryl stearate and PEG-100 stearate.
The rejection of claims 40, 49-52, 55, 57-58, 61, and 63-64 under 35 U.S.C. 103 as being unpatentable over Lovaas (US 2008/0124312) in view of Bosko et al. (WO 2012/013418A2) has been withdrawn in view of the amendment to claim 40 to recite pH, magnesium aluminum silicate, xanthan gum, squalene, or a blend of glyceryl stearate and PEG-100 stearate.
The rejection of claims 40, 49-52, 57-58, 61, and 63-64 under 35 U.S.C. 103 as being unpatentable over Lovaas (US 2008/0124312) in view of Singleton et al. (US 2005/0209131) amendment to claim 40 to recite pH, magnesium aluminum silicate, xanthan gum, squalene, or a blend of glyceryl stearate and PEG-100 stearate.
The rejection of claims 40, 49-52, 57-61, and 63-64 under 35 U.S.C. 103 as being unpatentable over Lovaas (US 2008/0124312) in view of Mitra et al. (USA 8,409,154) amendment to claim 40 to recite pH, magnesium aluminum silicate, xanthan gum, squalene, or a blend of glyceryl stearate and PEG-100 stearate.
Newly Applied Objections/Rejections
Claim Objections
Claims 40 and 49 are objected to because of the following informalities:
Regarding claim 40, in line 4 the claim recites “at least one of Vitamin C”, additional species of the first Markush Group have been deleted. Claim 49, however, recites Vitamin C derivatives. The specification on page 2 defines a distinction between vitamin C and vitamin c derivatives. Therefore, it is suggested claim 40 be amended to recite “at least one of Vitamin C or Vitamin C derivative”. Appropriate correction is required.
Regarding claim 49, it is suggested line 5 be amended to recite “the concentration of the vitamin C or Vitamin C derivative is…” as explained above.
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 57 and 63 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.
Regarding claim 57, the claim recites “further comprising at least one antioxidant”. However, it is noted that claim 40, from which 57 depends, recites “at least one Vitamin C and/or at least one peptide”. Vitamin C is a known antioxidant. Therefore, it is unclear if this antioxidant is in addition to the Vitamin C or if the “further antioxidant” is only present if the Vitamin C is not present.
Regarding claim 63, the claim recites “wherein the aqueous topical composition comprises at least 5 active ingredients, or at least 10 active ingredients, or at least 12 active ingredients”. The claim depends from claim 40, which only recites 7 active ingredients possible, if all were selected. It is unclear what additional components would be considered active ingredients. It appears critical elements of the claim are missing.
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 MELISSA S MERCIER whose telephone number is (571)272-9039. The examiner can normally be reached M-F 5:30 am to 4 pm EST.
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/MELISSA S MERCIER/ Primary Examiner, Art Unit 1615
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