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 .
Election/Restrictions
Applicant’s election without traverse of Group I, claim(s) 1-2 in the reply filed on February 11, 2026 is acknowledged.
Claim 3 is withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.
Claim(s) 1-2 are examined on the merits.
Claim Objections
Claim 1-2 are objected to because of the following informalities:
In claim 1, “a lactobacillus lysate formed by fermenting strains belonging the lactobacillus” should read “a lactobacillus lysate formed by fermenting strains belonging to the lactobacillus”
In claim 2, “a lactobacillus lysate formed by fermenting strains belonging the lactobacillus” should read “a lactobacillus lysate formed by fermenting strains belonging to the lactobacillus”
Appropriate correction is required.
Specification
The disclosure is objected to because of the following informalities:
Throughout the disclosure, the following should be corrected: “a lactobacillus lysate formed by fermenting strains belonging the lactobacillus” should read “a lactobacillus lysate formed by fermenting strains belonging to the lactobacillus”
Appropriate correction is required.
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.
Claim(s) 1-2 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 1 is indefinite because it is unclear what “transfersome” means; the specification does not list the exact meaning of the phase. Applicant’s claims state a “transfersome” cosmetic composition which would be considered a different type of cosmetic composition. Thus, the metes and bounds of the claim are unclear. In addition, it is unclear what “first composite” means; the specification does not list the exact meaning of the phrase. Thus, the metes and bounds of the claim are unclear. Furthermore, it is unclear what “second composite” means; the specification does not list the exact meaning of the phrase. Thus, the metes and bounds of the claim are unclear. In addition, it is unclear what is meant by “Ceramide NP.” It is unclear how ceramide “NP” differs from ceramide in general.
Claim 2 is rejected because it is dependent on claim 1 and does not clarify the indefinite language.
Claim Rejections - 35 USC § 103
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.
Claim(s) 1-2 are rejected under 35 U.S.C. 103 as being unpatentable over Kim (KR 20210114787 A – English translation provided) in view of Shibuya (CA Pub. No. 2895387 A1), Yoon (KR 20220069132 A – English translation provided), Burnham (WO 2016204959 A1), Cheng (CN 114366695 A), Romagnoli (IT 102020000017188 B1 – English translation provided), Dong (CN 109431963 A – English translation provided), Lee (KR 102403309 B1 – English translation provided), Hikozo (JP 3902015 B2 – English translation provided), Hong (KR 102330465 B1 – English translation provided) and Hirt (WO 2012131623 A2).
Kim teaches a cosmetic composition that is a moisturizer (claim 1, page 3). Kim teaches that the cosmetic composition can include centella asiatica extract, arnica montana flower extract, chamomile flower extract, spanish licorice root extract and aloe vera leaf extract (claim 5, page 5).
Kim does not teach the cosmetic composition that includes the other ingredients as stated within claims 1 and 2 of the present invention (e.g. a Scutellaria baicalensis extract, a Paeonia suffruticosa root extract, a Saccharina japonica extract, a licorice root extract, a lactobacillus lysate formed by fermenting strains belonging the lactobacillus genus, a rice bran fermentation filtrate formed by fermenting rice bran using a first composite strain including strains belonging to the bacillus genus, strains belonging to the lactobacillus genus, and yeast, a green tea fermentation extract formed by fermenting green tea using a second composite strain including strains belonging to the Aspergillus genus and strains belonging to the Lactobacillus genus, a grape seed oil, an jojoba seed oil, hydroxyacetophenone, Bifidobacterium, arginine, betaine, trehalose, sodium hyaluronate, hydrolyzed elastin, Ceramide NP, resveratrol, Genistein, tocopheryl acetate, glycerin, and purified water) and Kim does not teach all of the ingredients at the specified concentrations that are stated by the applicant within the present invention.
Shibuya teaches the dermal composition ([or cosmetic lotion]) of the present invention can be used as a moisturizing cream (page 125, paragraph 25). Shibuya teaches that the cosmetic lotion [can include] paeonia suffruticosa root extract, scutellaria baicalensis extract, jojoba oil, arginine, trimethylglycine (e.g. betaine), trehalose, sodium hyaluronate (pages 245-246, example 21), hydrolyzed elastin, grape seed oil, glycerin and resveratrol (page 139-line 21, page 60-line 13, page 41-line 22).
Yoon teaches a cosmetic composition that can include a Saccharina japonica extract and has excellent moisturizing effects (abstract and page 2, under ‘Technical-Field’).
Burnham teaches a petrolatum-based composition that has use in cosmetic and dermatological applications (paragraphs 0002-0003). Burnham teaches the composition also contains one or more active ingredients [such as] genistein, purified water and tocopheryl acetate (paragraphs 0012 and 0019). Burnham teaches that the total amount of active ingredient in the composition generally constitutes less than about 1% by weight (paragraph 0012).
Cheng teaches a moisturizing composition that can contain ceramide NP [and] p-hydroxyacetophenone (e.g. hydroxyacetophenone) (page 3).
Romagnoli teaches a dermatological composition that can increase the degree of hydration of the skin (page 1, under ‘Field of technology’). Romagnoli teaches that the dermatological composition can comprise Lactobacillus casei ferment lysate (page 3).
Dong teaches that the rice bran fermentation product [was obtained] using rice as raw material by yeast fermenting to obtain filtrate (page 2). Dong teaches a skin care product (page 2). Dong teaches that the product has moisturizing effects for the skin (page 3).
Lee teaches a cosmetic composition that comprises a rice bran ferment filtrate product [that was obtained through using Lactobacillus] (page 2).
Hikozo teaches a product that contains rice bran juice can be inoculated with Bacillus subtilis, fermented and filtered in order to obtain a filtrate (paragraphs 0024-0025). Hikozo also teaches that skin lotions can be created based on the health and nutrition food stock solutions (paragraph 0041).
Hong teaches a composition for skin that comprises a green tea fermented extract (abstract), composition is prepared in cosmetic form such as a body lotion [or] body cream (page 3). Hong teaches the green tea fermented extract is obtained by using the two strains (Aspergillus and Lactobacillus) (page 4).
Hirt teaches a cosmetic composition that [serves to moisturize the dermal area] (page 22, line 17). Hirt teaches that the cosmetic composition can comprise one or more probiotic mircoorganisms of the genus Bifidobacterium or Lactobacillus, or a lysate or a fraction derived from the said microorganisms (page 17, lines 0005-0006).
The cosmetic composition as taught by Kim can be modified to include further ingredients such as: Scutellaria baicalensis extract, Paeonia suffruticosa root extract, jojoba oil (jojoba oil in general is obtained from the seed), arginine, trimethylglycine (e.g. betaine), trehalose, sodium hyaluronate, hydrolyzed elastin, grape seed oil, glycerin and resveratrol as taught by Shibuya, a Saccharina japonica extract as taught by Yoon, genistein, purified water and tocopheryl acetate as taught by Burnham, ceramide NP and p-hydroxyacetophenone (e.g. hydroxyacetophenone) as taught by Cheng, Lactobacillus casei ferment lysate (e.g. a lactobacillus lysate) as taught by Romagnoli, rice bran fermentation filtrate formed by using yeast as taught by Dong, using Lactobacillus as taught by Lee, and using Bacillus as taught by Hikozo; in addition, the cosmetic composition can also include a green tea fermented extract using the Aspergillus and Lactobacillus strains as taught by Hong and Bifidobacterium as taught by Hirt. Although Hikozo teaches a rice bran juice, the method for obtaining the fermented filtrate using the Bacillus bacterium can be applied to Kim’s cosmetic composition for the rice bran fermentation filtrate. Thus, one would reasonably expect that the combination of these ingredients would create an effective skin moisturizing composition.
It is well known that it is prima facie obvious to combine two or more ingredients each of which is taught by the prior art to be useful for the same purpose in order to form a third composition which is useful for the same purpose. The idea for combining them flows logically from their having been used individually in the prior art. See MPEP section 2144.06, In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980), Ex parte Quadranti, 25 USPQ2d 1071 (Bd. Pat. App. & Inter. 1992).
In addition, the references do not specifically teach adding the ingredients together in the amounts claimed by applicant. However, as discussed in MPEP section 2144.05(II)(A), “Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. ‘[W]here 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, 456, 105 USPQ 233, 235 (CCPA 1955).” The references teach the use of each of the ingredients in a cosmetic composition. Varying the concentration of ingredients within a cosmetic composition is not considered to be inventive unless the concentration is demonstrated as critical. In this particular case, there is no evidence that the claimed concentration of the ingredients produces an unexpected result. Thus, absent some demonstration of unexpected results from the claimed parameter, this optimization of ingredient concentration would have been obvious before the effective filing date of applicant’s claimed invention.
Conclusion
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NASHARA L MOREAUExaminer, Art Unit 1655
/SUSAN HOFFMAN/Primary Examiner, Art Unit 1655
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