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 .
Claims
Claim Objections
Claim 1 is objected to because of the following informalities: the claim is missing an “and” immediately following “wax stabilizer;”. Appropriate correction is required.
Claim Rejections - 35 USC § 112 - Indefiniteness
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 3-4 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.
Claims 3-4 recited “wherein the carrier oil is in the form of a combination”. It is not clear what is meant by “form of”. Form indicates a physical property such as a solid. It would appear that a carrier oil would “comprise a combination”.
Claim Rejections - 35 USC § 103 - Obviousness
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.
1) Claims 1-5 and 7-9 are rejected under 35 U.S.C. 103 as being unpatentable over Fung (WO 2006010214).
Fung discloses a natural sunscreen composition comprising a synergistically effective amounts of zinc oxide and a plant-derived oil. The composition allows for the provision of a natural sunscreen which is water resistant and has a high SPF rating (Abstract). The sunscreen has a dermatologically acceptable level of SPF of greater than 30+ (page 4, lines 23-26) (encompassing at least 40 SPF). The plant-derived oil includes rice bran oil, which meets rice bran extract. The zinc oxide comprises 5 to 25% by weight of the composition. The plant derived oil comprises 1.5 to 68% of the composition. Other plant-derived oil includes sunflower seed oil, jojoba oil, coconut oil and safflower oil. (page 8, lines 1-5). The sunscreen composition further comprises one or more natural waxes such as candelilla wax, carnauba wax or beeswax (wax stabilizer). The compositions comprise green tea extract. A composition comprises 50.77% rice bran oil, 20% micronized zinc oxide, aloe vera, 0.1% ascorbic acid, 0.1% shea butter, 5% beeswax, 4% sunflower oil, 1.5% calendula oil, 4% jojoba oil, 1% sesame oil, 2% vitamin E (phenolic antioxidant), and 1% soy lecithin. The composition does not comprise water.
Rice bran oil may be added in amounts of 1.5 to 68% of the sunscreen, which overlaps that of the instant claims. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists. MPEP 2144.05 A. Therefore it would have been obvious to use amounts within the overlap.
The plant derived oils are used in mixtures and comprise up to 68% of the composition. Therefore, It would also have been obvious to have adjusted the other plant derived oils to higher amount when using lower amounts of rice bran oil.
2) Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Fung (WO 2006010214) in view of Grune (US 2008/0219938).
Fung is discussed above and differs from the instant claims insofar as it does not disclose bee pollen.
Grune discloses SPF compositions comprising at least one emollient including but not limited to chitosan, and aloe vera gel, individually or in any combination; an oil component with SPF boosting agents (Abstract). SPF boosting components include bee pollen and propolis (paragraph 0115). One current measure of effectiveness of a sun protective product is indicated by its sun protection factor (SPF). The sun protection factor is the ratio of the amount of exposure (dose) required to produce a minimal erythema reaction in protected skin to the amount required to produce the same reaction in unprotected skin. Relatively recent public awareness of the problems of exposure to sunlight has led to a demand for sun-block products with high SPF values, i.e., at or above SPF 8 (paragraph 0006). The composition may comprise beeswax, orange wax and/o synthetic wax (paragraph 0114).
It would have been obvious to one of ordinary skill in the art prior to filing the instant application to have added bee pollen to the composition of Fung motivated by the desire to boost the SPF of the compositions.
3) Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Fung (WO 2006010214) in view of Zickerman (WO 2019157181).
Fung is discussed above and differs from the instant claims insofar as it does not disclose polyhydroxystearic acid.
Zickerman discloses sunscreen compositions comprising a non-nano zinc oxide, a carrier, and a component selected from the group consisting of a humectant, a thickener, a dispersing agent, an emulsifier, an emollient, a preservative, an antioxidant, an odorant, and combinations thereof (paragraph 006). Thickeners include polyhydroxystearic acid. It comprises 1.5 to 2.5 wt% of the composition (paragraph 0020).
Generally, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use. See MPEP 2144.07. It would have been obvious to one of ordinary skill in the art prior to filing the instant application to have used polyhydroxystearic acid in the composition of Fung to obtain its thickening function.
Claims 1-10 are rejected.
No claims allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LEZAH ROBERTS whose telephone number is (571)272-1071. The examiner can normally be reached Monday-Friday 11:00-7:30.
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/LEZAH ROBERTS/Primary Examiner, Art Unit 1612