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 .
Election/Restrictions
Applicant’s election without traverse of invention group I, claims 1-8, in the reply filed on 04/17/2026 is acknowledged.
Claims 9-20 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 04/17/2026.
Applicants failed to elect a specific microalgae or cyanobacterial biomass, and this is non-compliant. For compact prosecution purpose, the non-compliant notice is not issued and the election of species requirement is withdrawn.
Claims 1-20 are pending, claims 1-8 are under examination.
Priority
Acknowledge is made for priority claiming from US provisional application 63/453,728, filed on 03/21/2023.
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 of this title, 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.
Claims 1-6 are rejected under 35 U.S.C. 103 as being unpatentable over Tanojo et al. (US20060182770) in view of Ragusa et al. (“Spirulina for Skin Care: A Bright Blue Future”, Cosmetics 2021, 8, 7. https://doi.org/10.3390/cosmetics8010007, January 2021).
Determination of the scope and content of the prior art
(MPEP 2141.01)
Tanojo et al. teaches Compositions, kits and methods are provided for restoring skin barrier function to skin exposed to environmental elements and/or in a pathological condition. In general, divalent cations such as calcium ions and/or magnesium ions are included in a physiologically acceptable medium. In some embodiments, divalent cations are balanced with monovalent cations such as sodium and potassium ions at appropriate ratios in order to maintain the homeostasis of skin barrier. The compositions, kits and methods can be used as cosmetics, cosmeceuticals or pharmaceuticals for improving skin condition, and preventing or treating dermatological diseases and skin disorders (abstract). In one aspect of the invention, a composition for skin care is provided. In one embodiment the composition comprises about 0.01-8% w/w divalent calcium ion and/or divalent magnesium ion based on the total weight of the composition in a physiologically acceptable medium. Optionally, the ratio of divalent calcium ion to divalent magnesium ion ranges from 5:1 to 1:5, from 3:1 to 1:3, from 2:1 to 1:2, or from 3:2 to 2:3. The physiologically acceptable medium is preferably a cosmetically or pharmaceutically acceptable carrier. Preferably, calcium ions are provided in the form of calcium chloride; and magnesium ions are provided in the form of magnesium chloride ([0020]). The aqueous phase (water and optionally the water-miscible organic solvent) may be present in a content ranging from 1% to 98% by weight, relative to the total weight of the composition, optionally from 3% to 96%, from 40% to 95%, from 50% to 90%, from 60% to 90%, or from 70% to 85% ([0025]). In known fashion, the compositions of the invention may also contain additives and adjuvants that are common in cosmetics, such as hydrophilic or lipophilic gelling agents, preservatives, antioxidants, solvents, fragrances, fillers, pigments, odor absorbers and dyestuffs. The amounts of these various additives and adjuvants are those conventionally employed in the field under consideration, and range, for example, from 0.01% to 20% of the total weight of the composition. Depending on their nature, these additives and adjuvants may be introduced into the fatty phase or into the aqueous phase ([0039]). Thus invention also features cosmetic compositions containing, in a physiologically acceptable medium therefor (vehicle, diluent or carrier), 0.01-15% w/w divalent calcium ion, and at least one other active agent compound selected from among: a desquamating agent, a moisturizer, a depigmenting or propigmenting agent, an anti-glycation agent, an NO-synthase inhibitor, a 5α-reductase inhibitor, a lysyl and/or prolyl hydroxylase inhibitor, an agent for stimulating the synthesis of dermal or epidermal macromolecules and/or for preventing their degradation, an agent for stimulating the proliferation of fibroblasts and keratinocytes and/or keratinocyte differentiation, a muscle relaxant, a compound for reducing irritation, an antimicrobial agent, a tensioning agent, an anti-pollution agent or a free-radical scavenger ([0048]).
Various compounds that may be formulated into the compositions according to the invention will now be more fully described. Desquamating Agents and Moisturizers. By the term “desquamating agent” is intended any compound capable of acting either directly on desquamation by promoting exfoliation, such as β-hydroxy acids, in particular salicylic acid and derivatives thereof (including 5-n-octanoylsalicylic acid); α-hydroxy acids, such as glycolic acid, citric acid, lactic acid, tartaric acid, malic acid or mandelic acid; urea; gentisic acid; oligofucoses; cinnamic acid; extract of Saphora japonica; hydroxystilbenes including, in particular, resveratrol ([0052-0055]). These compounds advantageously constitute from 0.001% to 30% and preferably from 0.01% to 20% of the total weight of the composition according to the invention ([0061]). Exemplary optionally coated inorganic pigments include nanopigments of titanium dioxide, of iron oxide, of zinc oxide, of zirconium oxide or of cerium oxide optionally coated with alumina and/or with aluminum stearate ([0162]). The composition is in the form of a care cream, a milk, tonic, a cleansing or make-up-removing product, a mask, an erasing product, an exfoliant, a sunscreen product, a foundation, a tinted cream, or a lipstick (claims 1 and 30).
Ragusa et al. teaches Spirulina stands out as a sustainable bioactive microalga with health-promoting properties, and an important active ingredient of natural cosmetics products. Currently, Spirulina has been incorporated in topical skin-care formulations, such as a moisturizing, antiwrinkles, antiaging and antiacne agent. Furthermore, this microalga is used by cosmetic formulators to promote healthy sunscreen protection, to treat skin pigmentation disorders and to heal wounds. Most of commercial cosmetics claim a large range of Spirulina properties, including antioxidant, revitalizing, remineralizing, moisturizing, protecting alongside cleansing and shining action, both for hair and for skin. In this review, recent cosmetic applications of Spirulina are revised, by highlighting its ability in improving skin appearance and health. Additionally, the analysis of the Spirulina cosmetic benchmark is discussed. Looking at the current emergence of the beauty industry, many Spirulina extracts and dry powder/flakes, both the starting ingredient and final Spirulina-based cosmetic products, are available on the market. In this industrial field, Spirulina—mainly Spirulina platensis and Spirulina maxima—is used either as a powder, like in the case of cheaper products, or as a phycocyanin-rich blue extract, particularly in the luxury market. It is likely that, in the coming years, diversity, quality and topical applications of Spirulina will rapidly increase (abstract).
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02)
The difference between the instant application and Tanojo et al. is that Tanojo et al. do not expressly teach Spirulina biomass. This deficiency in Tanojo et al. is cured by the teachings of Ragusa et al.
Finding of prima facie obviousness
Rational and Motivation (MPEP 2142-2143)
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to xxx, as suggested by Ragusa et al., and produce the instant invention.
Tanojo et al. teaches a skin cosmetic comprising antioxidant at 0.01 to 20%, nanoparticle titanium deoxidant at 0.01 to 20%, calcium chloride at 0.01 to 8%, α-hydroxy acids at 0.01 to 20%, water (carrier medium) at from 50% to 90%. Tanojo et al. is silent about Spirulina biomass.
One of ordinary skill in the art would have been motivated to include Spirulina biomass in the skin cosmetic composition because Spirulina biomass is a known ingredient in skin cosmetic. Under guidance from Tanojo et al. teaching a skin cosmetic comprising antioxidant at 0.01 to 20%, Ragusa et al. teaching Spirulina powder (biomass) as antioxidant in skin care formulation, it is obvious for one of ordinary skill in the art to include 0.01 to 20% of Spirulina biomass in the skin cosmetic composition and produce instant claimed invention with reasonable expectation of success.
Regarding claims 1-5, prior art teaches a skin cosmetic comprising Spirulina biomass as antioxidant at 0.01 to 20%, nanoparticle titanium deoxidant at 0.01 to 20%, calcium chloride at 0.01 to 8%, α-hydroxy acids at 0.01 to 20%, water (carrier medium) at from 50% to 90%.
Regarding claim 6, since Tanojo et al. teaches nano titanium dioxide, and nanoparticle is generally on the range of 100nm to 200nm, inside or overlapped with claimed range of 1 nm to 500nm in the absence of evidence to the contrary.
In light of the forgoing discussion, the Examiner concludes that the subject matter defined by the instant claims would have been obvious within the meaning of 35 USC 103.
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 was 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.
Claims 7-8 are rejected under 35 U.S.C. 103 as being unpatentable over Tanojo et al. (US20060182770) in view of Ragusa et al. (“Spirulina for Skin Care: A Bright Blue Future”, Cosmetics 2021, 8, 7. https://doi.org/10.3390/cosmetics8010007, January 2021), as applied for the above 103 rejection for claims 1-6, further in view of Belmar et al. (US20060093569)
Determination of the scope and content of the prior art
(MPEP 2141.01)
Tanojo et al. and Ragusa et al. teaching have already been discussed in the above 103 rejection and is inoculated herein by reference.
Belmar et al. teaches a method for preparing a topical base composition, preferably a cosmetic composition such as a skin cream. Such compositions include but are not limited to skin creams, lotions, vanishing creams and the like. Preferably the composition can be easily spread on the skin ([0023]). Hence a preferred composition is characterised by an apparent viscosity of from 0.1 to 10000 Pas at a shear rate of 10 s-1 to 100 s-1 or a yield stress of from 0.1 to 10.000 Pa, preferably from 1 to 10.000 Pa, more preferred from 10 to 1.000 Pa ([0025]).
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02)
The difference between the instant application and Tanojo et al. is that Tanojo et al. do not expressly teach viscosity and yield strength. This deficiency in Tanojo et al. is cured by the teachings of Belmar et al.
Finding of prima facie obviousness
Rational and Motivation (MPEP 2142-2143)
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 invention of Tanojo et al., as suggested by Belmar et al., and produce the instant invention.
One of ordinary skill in the art would have been motivated to have viscosity of 0.00561 Pa to 1770 Pa and yield strength 0.18 Pa to 2390 Pa because this is optimization through routing experimentation or under prior art condition. MPEP 2144.05. Under guidance from Belmar et al. teaching skin care cosmetic having viscosity of from 0.1 to 10000 Pas at a shear rate of 10 s-1 to 100 s-1 or a yield stress (strength) of from 0.1 to 10.000 Pa, preferably from 1 to 10.000 Pa, more preferred from 10 to 1.000 Pa, it is obvious for one of ordinary skill in the art to have viscosity of 0.00561 Pa to 1770 Pa and yield strength 0.18 Pa to 2390 Pa and produce instant claimed invention with reasonable expectation of success.
In light of the forgoing discussion, the Examiner concludes that the subject matter defined by the instant claims would have been obvious within the meaning of 35 USC 103.
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 was 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 claim is allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JIANFENG SONG. Ph.D. whose telephone number is (571)270-1978. The examiner can normally be reached M-F 8-5.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Brian-Yong Kwon can be reached at (571)272-0581. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/JIANFENG SONG/Primary Examiner, Art Unit 1613
Prosecution Insights