DETAILED ACTIONStatus of Application
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claims 1-10 and 18 are pending.
Claim Interpretation
Regarding claims 2-3, the claimed hair growth agents are drawn to product claims and therefore the intended use of the agent, “for use in combination with …” other agents does not carry patentable weight over the teachings of the prior art. Regarding claims 4-8 and 10, the claimed hair grown agent according to claim 1, “for use in …” or “used for …” does not carry patentable weight over the teachings of the prior art.
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 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.
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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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 1-10 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Garland et al. (US20190209557A1) hereinafter Garland in view of Fagot et al. (US6184252B1) hereinafter Fagot.
Regarding claims 1-10 and 18, Garland is drawn to compositions as well as methods of treating patients using such compositions; wherein the composition is a in liquid form and comprises water and/or a non-aqueous solvent (abstract and claims).
Garland discloses palmitoyl dipeptide-5 diaminobutyloyl hydroxythreonine, palmitoyl dipeptide-5 diaminohydroxybutyrate [0194].
Garland does not explicitly disclose the presence of phytosphingosine in the composition.
However, Fagot is drawn to topically applicable hair growth-/hair loss-affecting cosmetic/pharmaceutical compositions for treating mammalian subjects with hair or scalp disorders (abstract and claims 1-21).
Fagot discloses among these sphingolipids, N-acylated derivatives based
on sphinganine (2S,3R)-2-amino-1 (col. 2, ln 20-22). It is also known that
compounds based on sphingenine can also be generated by activation of acyl-CoA: sphinganine (sphingosine) (col. 2, ln 60-62). Fagot discloses N-palmitoylsphingenine (col. 9, ln 62). Fagot discloses a method for inducing or stimulating hair growth on a mammalian subject in need of said treatment comprising topically applying to the hair
and/or skin an effective amount of a cosmetic or pharmaceutical composition (claim 1).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the composition of Garland, to incorporate sphingosine, as previously disclosed by Fagot, and arrive at the instant invention.
One of ordinary skill in the art would have been motivated to do so because both Garland and Fagot are in the field of palmitoyl containing compositions, topically applicable hair growth-/hair loss-affecting cosmetic/pharmaceutical compositions for treating mammalian subjects with hair or scalp disorders (Fagot: abstract), thus combining prior art elements according to known methods to yield predictable results, see MPEP 2141.
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, as evidenced by the references, especially in the absence of evidence to the contrary.
Conclusion
No claims are allowed.
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/QUANGLONG N TRUONG/Examiner, Art Unit 1615