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 .
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 (i.e., changing from AIA to pre-AIA ) 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.
Claim Rejections - 35 USC § 102
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.
Claim(s) 1-4, 6, 7, 13, 17-26 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by “Simultaneous transfer of noble metals and three-dimensional micro- and nanopatterns onto zein for fabrication of nanophotonic platforms” published by Gezer et al. (cited by applicant via PCT written opinion)
Regarding claims 1-3, Gezer teaches nanophotonic platforms comprising a plurality of substantially uniform zein particles (Zein film with a plurality of nanostructures including positive and inverted pyramids, nanopillars, and nanopores thereon, see Introduction).
Regarding claim 4, Gezer further teaches the zein film is with a metal (gold) coating (Fig. 4).
Regarding claims 6, 7, Gezer further teaches that the pillar structures are 150 nm in diameter (see “Materials and Methods”).
Regarding claim 13, Gezer further teaches zein film with a successful transfer of silver can impart a blue color (see color photograph of Fig. 1b, in which blue and green colors are imparted on the right side of the zein film).
Regarding claims 17-21 and with respect the limitations of what the zein composition is employed to do, a claim containing a “recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus” if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987)
Regarding claim 22, Gezer further teaches assembling a plurality of substantially uniform zein particles into one or more ordered and periodic structures that generate structural color, thereby fabricating the photonic crystal (the area in a dotted square (5 mm × 5 mm) in Fig. 1 is where the pyramid patterns are and the reason for the color difference is the reflection of light at different wavelengths in the visible spectrum between 500 and 700 nm due to these patterns, see “Results and discussion”).
Regarding claim 23, Gezer further teaches steps of a) providing a mixture comprising a plurality of substantially uniform zein particles in a liquid (preparing a zein solution by dissolving zein powder in ethanol); b) applying the mixture to a surface (pouring solution over a polymer mold); and c) evaporating the liquid (drying in a vacuum desiccator), thereby assembling the plurality of substantially uniform zein particles into one or more ordered and periodic structures that generate structural color, thereby fabricating a photonic crystal (see Fig. 1 and “Fabrication of protein films with nanophotonic structures” for schematic diagram and description of the procedure).
Regarding claim 24, Gezer further teaches coating a surface, or a portion thereof (of a “parent substrate”), with the zein solution.
Regarding claim 25, Gezer further teaches a method comprising: a) providing a mixture comprising a plurality of substantially uniform zein particles in a liquid (preparing a zein solution by dissolving zein powder in ethanol); b) applying the mixture to a surface (pouring solution over a polymer mold); and c) evaporating the liquid (drying in a vacuum desiccator), thereby assembling the plurality of substantially uniform zein particles into one or more ordered and periodic structures that generate structural color, thereby fabricating a photonic crystal (see Fig. 1 and “Fabrication of protein films with nanophotonic structures” for schematic diagram and description of the procedure).
Regarding claim 26, Gezer further teaches using 75% ethanol, i.e., 25% water.
Claim(s) 1, 14, 16 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by U.S. PGPub 2018/0228736 by Weissmueller et al.
Regarding claim 1, Weissmueller teaches a composition of comprising a plurality of substantially uniform zein particles (see Fig. 3(d) indicating a substantially regular zein size distribution).
Regarding claims 14, 16, Weissmueller further teaches dye encapsulation in zein ( ¶[0065]).
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.
Claim(s) 5, 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gezer et al. as applied to claim 1 above, and further in view of U.S. PGPub 2013/0116261 A1 by Agüeros Bazo et al. Gezer teaches the zein nanoparticle photonic platform but not its polydispersity index of about 0.2 or less, or a mean zeta potential of about 20 – 60 mV. Agüeros Bazo teaches a zein nanoparticles compound having a similar size (e.g., approximately 150nm in Table 4) and its PDI, Zeta potential in the claimed ranges. Since both inventions disclose a process of making by dissolving zein in ethanol, it would have been obvious to one having ordinary skill in the art, before the effective filing date of the claimed invention, to perform routine experimentation and determine the optimal or workable ranges of PDI and Zeta potential, respectively, as guided by Agüeros Bazo’s invention, with a reasonable expectation of the outcome that provides a suitable stability during the compound’s storage and after the compound’s administration as stated.
Claim(s) 8, 9, 11, 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gezer et al. as applied to claim 1 above, and further in view of U.S. PGPub 2019/0353975 A1 by Didomenico. Gezer teaches the zein nanoparticle photonic platform but not a volume fraction of the nanoparticle within a photonic crystal. Didomenico’s invention is drawn to a nanoparticle composition that forms a photonic crystal (¶[0611], [0783], [0798]) with dynamically controlled refractive index distribution by controlling particle distribution in a colloid, wherein changing the local volume fraction of nanoparticles within the colloid the point-to-point effective refractive index may be changed dynamically in time. It would have been obvious to one having ordinary skill in the art, before the effective filing date of the claimed invention, to perform routine experimentations on the volume fraction or packing density (packing density is interpreted herein as a volumetric percentage of the zein nanoparticles within the photonic crystal and therefore is considered a same quantity as volume fraction) of the nanoparticles, e.g., examining the effect on refractive indices by packing density ranging from 10%-90% by 20% steps as illustrated in Fig. 21 in Didomenico, in order to change and control the refractive index for the photonic platforms in Gezer’s invention.
Claim(s) 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Weissmueller et al. as applied to claim 14 above, and further in view of JP 2000264827 A patent publication. Weissmueller teaches a zine nanoparticle composition including an additive encapsulated by a shell comprising zein, wherein the additive may be a cosmetic composition (see claims 1-7 and ¶[0039] of Weissmueller). Weissmueller does not specify the type of additive to be a xanthommatin pigment. The ‘827 publication discloses using xanthommatin pigments in a cosmetic application for its advantages: decreasing drabness, and increasing transparent feeling and is capable of exerting effect of the sunburn skin which looks healthy and is desirable from an overall point of view. It thus would have been obvious to one having ordinary skill in the art, before the effective filing date of the claimed invention, to select xanthommatin pigment as the cosmetic composition of choice in Weissmueller’s invention, as suggested in the ‘827 publication, for the same advantages.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. US20100004398 discloses a nanoparticle composition for photonic crystals.
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/CHARLIE Y PENG/ Primary Examiner, Art Unit 2874