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 .
DETAILED ACTION
The Amendments filed on 3/26/2026 has been received and entered.
Claims 1-2 and 7-12 are pending and examined on the merits.
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Any rejection not reiterated below are hereby withdrawn.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 3/26/2026 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Response to Amendment
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 2 is 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.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, Claim 1 recites the broad recitation 1.5 to 4.5:4 to 8 weight ratio of lavender oil to lemongrass oil, and Claim 2 also recites 1:1.3 to 2.7 weight ratio of lavender oil to lemongrass oil which is the narrower statement of the range/limitation but not within the same range in Claim 1. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
Please amend.
Claim Rejections - 35 USC § 101
Claims 1-2 and 8-12 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more. Claim(s) 1-2 are directed to a composition comprising natural products. The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception.
MPEP § 2106 sets forth the Subject Matter Eligibility Test to determine if a claim is directed to patent eligible subject matter. Step 1 asks if a claim is directed to a statutory category of invention. Applicant’s claims are directed to a product; thus, the answer to Step 1 is Yes.
Step 2A, Prong One, asks if a claim recites to a product of nature. In this case, applicant’s claims lemongrass oil, lavender oil, and ylang ylang oil, which are from the plants lemongrass, lavender, and ylang ylang, respectively. Thus, the claims do recite products of nature. MPEP § 2106.04(b) states that “When a claim recites a nature-based product limitation, examiners should use the markedly different characteristics analysis discussed in MPEP § 2106.04(c) to evaluate the nature-based product limitation and determine the answer to Step 2A.”
MPEP § 2106.04(c)(I) states that “if the nature-based product limitation is not naturally occurring, for example due to some human intervention, then the markedly different characteristics analysis must be performed to determine whether the claimed product limitation is a product of nature exception…”. To perform the markedly different characteristic analysis, MPEP § 2106.04(c)(II) states “The markedly different characteristics analysis compares the nature-based product limitation to its naturally occurring counterpart in its natural state. Markedly different characteristics can be expressed as the product’s structure, function, and/or other properties…”.
In this case, in claims 1-2, the oils form the ingredients mixed together would still be a product of nature because as long as there are nature-based molecules found in the composition, the composition contains a mixture of products that are found in nature (the individual natural molecules) and thus must be evaluated as per the described analysis. Mixing together various natural molecules doesn’t change those molecules per se; they are simply mixed together and thus would have the same characteristics as the same molecules prior to being mixed together.
Therefore, the answer to Step 2A, Prong One, is Yes.
Thus, the analysis must move to Step 2A, Prong Two, which asks if the claim recites additional elements that integrate the judicial exception into a practical application. As discussed in MPEP § 2106.04(d)(2) this evaluation is performed by identifying whether there are additional elements recited in the claim beyond the judicial exception and evaluating these additional elements to determine whether the claim as a whole integrates the exception into a practical application.
The oil composition of the different plants together are non-natural. However, a composition can be used in many different ways and thus not integrate the judicial exception into a practical application. Thus, the answer to Step 2A, Prong Two, is No.
The analysis must then move to Step 2B which asks if claims recite additional elements that amount to significantly more than the judicial exception. MPEP § 2106.05 states that this evaluation is performed by “Evaluating additional elements to determine whether they amount to an inventive concept requires considering them both individually and in combination to ensure that they amount to significantly more than the judicial exception itself.” In this case, the amounts of Claims 1-2 and 11-12 are amounts of weight ratios of oils from the plants. The mixing of oils from plants are well understood, routine, and conventional method of making a product (see Claims 1, 2, Roostaee et al., KR 20210145122 A). Thus, the answer to Step 2B is No. Therefore, the claims are not directed to patent eligible subject matter.
Claim Rejections - 35 USC § 103
Claim(s) 1-2 and 7-12 are rejected under 35 U.S.C. 103 as being unpatentable over Roostaee et al. (KR 20210145122 A). This is not a new rejection.
Roostaee et al. teaches a formulation comprising from about 0.05-55 weight percent of an oil, wherein the antibacterial oil is any combination from lavender oil, lemongrass oil, and ylang ylang (Claims 1, 2), for use as a disinfectant, pesticide or fungicides (Claim 30). The disinfectant inherently would have activities against Staphylococcus aureus because the same ingredient would have the same activity.
However, Roostaee et al. does not teach the weight ratios of ylang ylang oil, lavender oil, and lemongrass oil as 1:1.5-4.5:4-8.
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to make a composition comprising weight ratios of ylang ylang oil, lavender oil, and lemongrass oil as 1:1.5-4.5:4-8 of the active agent combination for the following reasons. The reference does teach the composition for antibacterial use. Roostaee et al. teaches a formulation comprising from about 0.05-55 weight percent of an oil, wherein the antibacterial oil is any combination from lavender oil, lemongrass oil, and ylang ylang (Claims 1, 2), for use as a disinfectant, pesticide or fungicides (Claim 30). Thus, it would have been obvious to make a concentrated composition containing ylang ylang oil, lavender oil, and lemongrass oil for use as antibacterial. Additionally, the amount of a specific ingredient in a composition that is used for a particular purpose (the composition itself or that particular ingredient) is clearly a result effective parameter that a person of ordinary skill in the art would routinely optimize. "[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). Thus, optimization of general conditions is a routine practice that would be obvious for a person of ordinary skill in the art to employ. It would have been customary for an artisan of ordinary skill to determine the optimal amount of each ingredient to add in order to best achieve the desired results, especially within the ranges taught by the reference. Thus, absent some demonstration of unexpected results from the claimed parameters, this optimization of ingredient amount would have been obvious at the time of applicant’s invention.
Response to Arguments
Applicant argues that there is synergistic effect in preventing or treating hair loss, acne and dandruff.
In response to Applicant’s argument, the results in the Specification do not exhibit proper controls and the result of synergistic effect is not commensurate in scope with the claimed amounts. Please provide proper controls and results with amounts in the claimed range.
Applicant argues that the amounts are not obvious to adjust.
In response to Applicant’s argument, Roostaee et al. teaches a formulation comprising from about 0.05-55 weight percent of an oil, wherein the antibacterial oil is any combination from lavender oil, lemongrass oil, and ylang ylang (Claims 1, 2), for use as a disinfectant, pesticide or fungicides (Claim 30). The amount of 0.05-55 weight precent can be adjusted according to desired effects. Therefore, the amounts for adjusting are obvious for one in the ordinary skill in the art to try.
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 CATHERYNE CHEN whose telephone number is (571)272-9947. The examiner can normally be reached Monday-Friday 9-5:30 PM.
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Catheryne Chen Examiner Art Unit 1655
/ANAND U DESAI/Supervisory Patent Examiner, Art Unit 1655
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