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 Group I, claims 1-17 and 19, drawn to a topical aftercare composition for tattooed skin, in the reply filed on March 26th, 2026 is acknowledged. Claims 1 withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.
The requirement is deemed proper and is therefore made FINAL.
Claims 1-17 and 19 are pending and were examined on the merits.
Information Disclosure Statement
The information disclosure statement filed June 26th, 2024 fails to comply with 37 CFR 1.98(a)(2) and 1.98(d), which requires a legible copy of each cited foreign patent document; each non-patent literature publication or that portion which caused it to be listed; and all other information or that portion which caused it to be listed. It has been placed in the application file, but the information referred to therein has not been considered.
Drawings
The drawings were received on March 25th, 2024. These drawings are acceptable.
Specification
The use of the term Aquaphor, which is a trade name or a mark used in commerce, has been noted in this application. The term should be accompanied by the generic terminology; furthermore, the term should be capitalized wherever it appears or, where appropriate, include a proper symbol indicating use in commerce such as ™, SM , or ® following the term.
Although the use of trade names and marks used in commerce (i.e., trademarks, service marks, certification marks, and collective marks) are permissible in patent applications, the proprietary nature of the marks should be respected and every effort made to prevent their use in any manner which might adversely affect their validity as commercial marks.
Claim Objections
Claims 6, 7, 10 and 11 are objected to because of the following informalities: the. Appropriate correction is suggested.
Claim 17 is objected to because of the following informalities: the term "stable" should be amended for clarity. Appropriate correction is suggested.
Claim Interpretation
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. Claim 17 is interpreted to imply that the composition contains ingredients that minimize chemical degradation from heat and light (both visible and ultraviolet). The natural waxes and butters (claims 6 and 7); though each is recited in plural; are interpreted to be satisfied by at least one natural wax and one natural butter (specification paragraphs [0034] and [0035]). The emollients, emulsifiers, and stabilizers (claims 10 and 11); though each is recited in plural; are interpreted to be satisfied by at least one emollient, one emulsifier, and one stabilizer per an exemplary embodiment (specification paragraphs [0039] and [0040]).
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-7 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-4 and 6-8 of U.S. Patent No. 12303585. Although the claims at issue are not identical, they are not patentably distinct from each other because the instant and reference claims are drawn to overlapping compositions.
Both compositions are topical compositions for use after tattooing (reference claim 1; instant claim 1).
Both compositions comprise medicinal mushroom extracts, aloe vera gel, and non-comedogenic carrier oils (reference claims 1-4 and 6-8, reference specification paragraph (39); instant claim 1).
Both compositions include Chaga, Lion’s Mane, and Reishi, as medicinal mushrooms (reference claims 3, 4, and 6-8; instant claims 2 and 3). Although Chaga extract weight percent ranges do not overlap (reference claim 13; instant claim 3); this weight percentage is obvious over routine optimization, through the use of a scale instrument to adjust the weights of components; and comparing the effects of different formulations on inflamed skin, comparing skin appearance at set time points through photography.
Both compositions include grapeseed oil and tea tree oil (reference claim 4; instant claims 4 and 5).
Both compositions comprise natural butters (reference claims 1, 2, and 4; instant claim 6), specifically shea butter (reference claims 1, 2, and 4; instant claim 7).
Both compositions comprise beeswax, either “synthetic” (reference claims 1, 2, and 4) or natural (instant claim 7).
Claims 1-3, 6, 7, and 14 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-3 of copending Application No. 19186852 (reference application, document ID: US 20250248923 A1). Although the claims at issue are not identical, they are not patentably distinct from each other because the instant and reference claims are drawn to overlapping compositions.
Both compositions are topical compositions for tattoo care (reference claim 1; instant claim 1).
Both compositions comprise medicinal or therapeutic (overlapping terms) mushroom extracts (reference claim 1; instant claim 1).
Both compositions comprise non-comedogenic carrier oils (reference claim 3; instant claim 1).
Both compositions comprise aloe vera gel (reference claim 3; instant claim 1).
Both compositions include Chaga, Lion’s Mane, and Reishi, as medicinal mushrooms (reference claim 1; instant claims 2 and 3), where Chaga and Reishi are present in the same weight percentage ranges (reference claim 2; instant claim 3).
Both compositions comprise natural butters (reference claim 3; instant claim 6), specifically shea butter (reference claim 3; instant claim 7).
Both compositions comprise beeswax (reference claim 3; instant claim 7).
Both compositions are formulated as a cream, lotion, gel, or balm; as recited (instant claim 14) or implied by the carrier medium (reference claims 1 and 3).
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
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.
Claims 17 and 19 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.
The term “range” in claim 17 is a relative term which renders the claim indefinite. The term “range” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. The range of temperatures under which the composition is stable is rendered indefinite by the use of the term "range" without reciting the limits of the range.
The term “resistant” in claim 17 is a relative term which renders the claim indefinite. The term “resistant” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. The effect of light on the chemical profile of the composition is rendered indefinite by the term "resistant".
Claim 19 recites the limitation "the active ingredients" in the end of the claim. There is insufficient antecedent basis for this limitation in the claim. Claim 1 does not recite an active ingredient. It is also unclear what the active ingredient is referring to. The healing of tattooed skin or UV radiation protection.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-17 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a product of nature without significantly more. The claims recites a composition comprising naturally occurring vitamins, materials derived from plants and fungi, and naturally occurring butters and oils (including beeswax. This judicial exception is not integrated into a practical application because the instantly claimed combination of products of nature are not claimed to have markedly different characteristics from their natural counterparts. The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the instantly claimed composition merely combines the properties of its individual naturally .
The first step of the eligibility analysis evaluates whether the claim falls within a statutory category (see MPEP 2106.03). Since claims 1-17 are directed to a composition, the claims are directed to a composition.
Effective January 7, 2019, subject matter eligibility determinations under 35 U.S.C. § 101 follow
the procedure explained in the Federal Register notice titled 2019 Revised Patent Subject Matter Eligibility Guidance (Federal Register, Vol. 84, No.4, 50-57), which is found at:
https://www.govinfo.gov/content/pkg/FR-2019-01-07/pdf/2018-28282.pdf. Applicants are kindly asked to review this guidance as well as MPEP 2106.
The statutory categories of invention under 35 U.S.C. 101 are processes, machines,
manufactures, and compositions of matter. However, certain members of these categories constitute judicial exceptions, i.e., the courts have determined that these entities are not patentable subject matter. These judicial exceptions include abstract ideas, laws of nature, and natural phenomena. The Office released guidance on December 16, 2014 for the examination of claims reciting natural products under 35 U.S.C. 101 in light of the recent Supreme Court decisions in Association for Molecular Pathology v. Myriad Genetics, Inc. (569 U.S. ___, 133 S. Ct. 2107, 2116, 106 USPQ2d 1972 (2013)) and Mayo Collaborative Services v. Prometheus Laboratories (566 U.S. ___, 132 S. Ct. 1289, 101 USPQ2d 1961 (2012)), Diamond v. Chakrabarty, 447 U.S. 303 (1980)) and Funk Brothers Seed Co. v. Kalo Inoculant Co. - 333 U.S. 127 (1948)). (inter alia). See eg. MPEP 2106.04(b)
The Supreme Court has explained that the judicial exceptions reflect the Court’s view
that abstract ideas, laws of nature, and natural phenomena are "the basic tools of scientific and
technological work", and are thus excluded from patentability because "monopolization of those
tools through the grant of a patent might tend to impede innovation more than it would tend to
promote it." Alice Corp., 134 S. Ct. at 2354, 110 USPQ2d at 1980 (quoting Myriad, 133 S. Ct. at
2116, 106 USPQ2d at 1978 and Mayo Collaborative Servs. v. Prometheus Labs. Inc., 566 U.S.
66, 71, 101 USPQ2d 1961, 1965 (2012)). The Supreme Court’s concern that drives this
"exclusionary principle" is pre-emption. Alice Corp., 134 S. Ct. at 2354, 110 USPQ2d at 1980.
The Court has held that a claim may not preempt abstract ideas, laws of nature, or natural
phenomena; i.e., one may not patent every "substantial practical application" of an abstract
idea, law of nature, or natural phenomenon, even if the judicial exception is narrow.
While preemption is the concern underlying the judicial exceptions, it is not a standalone
test for determining eligibility. Rapid Litig. Mgmt. v. CellzDirect, Inc., 827 F.3d 1042, 1052, 119
USPQ2d 1370, 1376 (Fed. Cir. 2016). Instead, questions of preemption are inherent in and
resolved by the two-part framework from Alice Corp. and Mayo (the Alice/Mayo test referred to
by the Office as Steps 2A and 2B). It is necessary to evaluate eligibility using the Alice/Mayo
test, because while a preemptive claim may be ineligible, the absence of complete preemption
does not demonstrate that a claim is eligible.
Products of Nature: When a law of nature or natural phenomenon is claimed as a
physical product, the courts have often referred to the exception as a "product of nature".
Products of nature are considered to be an exception because they tie up the use of naturally
occurring things, but they have been labeled as both laws of nature and natural phenomena.
See Myriad 133 S. Ct. at 2116-17, 106 USPQ2d at 1979 (claims to isolated DNA held ineligible because they "claim naturally occurring phenomena" and are "squarely within the law of nature
exception"); Funk Bros. Seed Co. v. Kalo Inoculant Co., 333 U.S. 127, 130, 76 USPQ 280, 281
(1948) (claims to bacterial mixtures held ineligible as "manifestations of laws of nature" and
"phenomena of nature"). Step 2A of the Office’s eligibility analysis uses the terms "law of
nature" and "natural phenomenon" as inclusive of "products of nature".
It is important to keep in mind that product of nature exceptions include both naturally
occurring products and non-naturally occurring products that lack markedly different
characteristics from any naturally occurring counterpart. Instead, the key to the eligibility of all
non-naturally occurring products is whether they possess markedly different characteristics from
its closest naturally occurring counterpart.
When a claim recites a nature-based product limitation, examiners 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. Nature-based products, as used herein,
include both eligible and ineligible products and merely refer to the types of products subject to
the markedly different characteristics analysis used to identify product of nature exceptions.
The Markedly Different Characteristics Analysis
The markedly different characteristics analysis is part of Step 2A, because the courts use this analysis to identify product of nature exceptions. If the claim includes a nature-based product that has markedly different characteristics, then the claim does not recite a product of nature exception and is eligible. If the claim includes a nature-based product that does not exhibit markedly different characteristics from its closest naturally occurring counterpart in its natural state, then the claim is directed to a "product of nature" exception (Step 2A: YES), and requires further analysis in Step 2B to determine whether any additional elements in the claim add significantly more to the exception.
Nature-based Product Claim Analysis
Where the claim is to a nature-based product by itself, the markedly different
characteristics analysis should be applied to the entire product. Where the claim is to a nature-
based product produced by combining multiple components, the markedly different
characteristics analysis should be applied to the resultant nature-based combination, rather than
its component parts. Where the claim is to a nature-based product in combination with non-
nature based elements, the markedly different characteristics analysis should be applied only to
the nature-based product limitation. For a product-by-process claims, the analysis turns on whether the nature-based product in the claim has markedly different characteristics from its
naturally occurring counterpart.
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, and are evaluated based on what is recited in the claim on a case-by-case basis. If the analysis indicates that a nature-based product limitation does not exhibit markedly different characteristics, then that limitation is a product of nature exception. If the analysis indicates that a nature-based product limitation does have markedly different characteristics, then that limitation is not a product of nature exception. Because the markedly different characteristics analysis compares the nature-based product limitation to its naturally occurring counterpart in its natural state, the first step in the analysis is to select the appropriate counterpart(s) to the nature-based product. When there are multiple counterparts to the nature-based product, the comparison should be made to the closest naturally occurring counterpart. When the nature-based product is a combination produced from multiple components, the closest counterpart may be the individual nature-based components of the combination. Because there is no counterpart mixture in nature, the closest counterparts to the claimed mixture are the individual components of the mixture, i.e., each naturally occurring species by itself. See, e.g., Funk Bros., 333 U.S. at 130, 76 USPQ at 281 (comparing claimed mixture of bacterial species to each species as it occurs in nature).
Markedly changed characteristics can include structural, functional, chemical changes.
In order to show a marked difference, a characteristic must be changed as compared to nature,
and cannot be an inherent or innate characteristic of the naturally occurring counterpart or an
incidental change in a characteristic of the naturally occurring counterpart. Myriad, 133 S. Ct. at
2111, 106 USPQ2d at 1974-75. Thus, in order to be markedly different, applicant must have
caused the claimed product to possess at least one characteristic that is different from that of
the counterpart. If there is no change in any characteristic, the claimed product lacks markedly
different characteristics, and is a product of nature exception.
Step 1: Determine if the claims are directed to one of the four statutory categories of patentable subject matter identified by 35 U.S.C. 101: a process, machine, manufacture or composition of matter. YES, the claims are directed to a composition of matter, which is a statutory category within at least one of the four categories of patent eligible subject matter.
Step 2A: PRONG ONE: Evaluate whether the claim recites a Judicial Exception (e.g., law of nature, natural phenomenon, or an abstract idea; see MPEP 2106.04). YES, the claims are product claims reciting something that appears to be a nature-based product (i.e., naturally occurring vitamins, materials derived from plants and fungi and animals which is not markedly different from the closest naturally-occurring counterpart (i.e., the individual nature-based products).
Because the claims state the nature-based products; which are plant, fungal, and animal extracts; the markedly different characteristics is performed by comparing the nature-based product limitation to its natural counterpart.
The claim recites the naturally occurring components from plants, fungi, and animals (instant claims 1-13). This equates to a product of natural biological materials, including extracts of plants, fungi, and animals. The process of creating a plant, fungal, or animal extract is by partitioning the starting plant or fungal material into separate compositions based upon some property. The closest naturally occurring counterparts of extracted components are those same components when found existing in the plant, fugus, or animal in an unseparated form, even when purified and/or concentrated because they are chemically identical to the extracted compounds/components. All of these are naturally occurring in nature and are not markedly different from its naturally occurring counterpart in its natural state. The properties of the nature-based product as claimed are not markedly different than the properties of these naturally occurring counterparts found in nature as these activities would inherently be found in the plant, fungus, or animal they come from. The components which would give the activities claimed in the instant invention would inherently do the same in nature as there has been nothing done in the instant invention that would make them act in any different way.
Step 2A: prong two evaluates whether the claim as a whole integrates the recited judicial exception into a practical application (see MPEP 2106.04(d)). This evaluation is performed by (a) identifying whether there are any additional recited elements in the claim beyond the judicial exception and (b) evaluating those additional elements individually and in combination to determine whether the claim as a whole integrates the exception into a practical application.
This judicial exception is not integrated into a practical application because the plant, fungus, and animal extract composition are only comprising the nature-based components. The claims do not integrate the judicial exceptions into a practical application because in this context, such integration for a claimed product would be a physical form of the specific practical application instead of a more general composition that is not so limited.
The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because these components and their activity are already found naturally occurring in nature and the addition of an intended use does not impart any added benefit to the compounds or integrate the composition into a practical application.
Step 2B evaluates whether the claim as a whole, amounts to significantly more than the recited exception, i.e., whether any additional element, or combination of additional elements, adds an inventive concept to the claim (see MPEP § 2106.05(b)).
The claims as a whole do not amount to more than the recited exceptions because there aren’t any other additional elements to consider, which does not add an inventive concept to the claims. Thus, the claims are not eligible subject matter under current 35 U.S.C. 101 standards.
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 (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.
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.
Claims 1-3, 6, 7, and 14-16 are rejected under 35 U.S.C. 103 as being unpatentable over Tan and Tan (CN 109172436 A), abbreviated "Tan"; and further in view of Wasser et al. (WO 2022195581 A1), abbreviated "Wasser"; Jin et al. (KR 20230025241 A), abbreviated "Jin"; and Henke and Heuser (US 20200188649 A1), abbreviated "Henke".
Claim 1 recites “A topical aftercare composition for tattooed skin, comprising: a mixture of medicinal mushroom extracts; aloe vera gel; non-comedogenic carrier oils; wherein the composition is formulated to promote healing of tattooed skin and provide UV radiation protection”. Claim 2 recites “The topical aftercare composition of claim 1, wherein the medicinal mushroom extracts include Chaga, Lion’s Mane, and Reishi”. Claim 3 recites “The topical aftercare composition of claim 2, wherein the Chaga Extract is present in a weight percentage of 5-10%, the Lion’s Mane Extract is present in a weight percentage of 3-7%, and the Reishi Extract is present in a weight percentage of 3-7%”. Claim 6 recites “The topical aftercare composition of claim 1, further comprising natural waxes and butters”. Claim 7 recites “The topical aftercare composition of claim 6, wherein the natural waxes and butters include beeswax and shea butter, with beeswax present in a weight percentage of 1-5% and shea butter present in a weight percentage of 2-8%”. Claim 14 recites “The topical aftercare composition of claim 1, wherein the composition is formulated as a cream, lotion, gel, or balm”. Claim 15 recites “The topical aftercare composition of claim 1, wherein the composition is formulated to be applied to tattooed skin approximately 48-72 hours after tattooing and to be used for ongoing maintenance of the tattooed skin”. Claim 16 recites “The topical aftercare composition of claim 1, wherein the composition is hypoallergenic and non-irritating, suitable for all skin types”.
Tan summarizes an invention “To solve the above how to achieve and improving skin, make skin tender, fair, and complicated cosmetic component existing in the market, many synthetic chemical components, it is easy to cause side effect to the skin, and using cost is expensive, and cannot give attention to effect economic expense and other existing problems, the present invention provides a cosmetic containing lucid[um] ganoderma extract” (Description, Summary of the Invention). Although Tan does not explicitly recite a composition for tattoo aftercare, Tan recites certain materials as having properties relevant to tattoo aftercare. Therefore, Tan is art relevant to the instantly claimed invention. Tan further recites the pharmacological functions of Ganoderma lucidum (Reishi) and aloe:
“this invention has pharmacological functions: ganoderma lucidum and ganoderma lucidum spore extract: generation of collagen and promote cerebral amide, enhancing the metabolism of skin cells, combined with its oxidation resistance, anti-wrinkle anti-aging effect, extract also can be used as antiinflammatory agents, allergy inhibitors, pilatory, acne control agent, fat-reducing agent, humectant and skin whitening; … aloe: wet beautifying function, aloe polysaccharide and vitamin skin of the human body with good nutrition, moistening and whitening effect” (machine translation page 3 of 8, lines 6-10, 16, and 17 from the top; instant claims 1-3).
Tattooing inherently involves penetrating part of the skin, an action which would create small wounds in the skin. It would be obvious to one of skill in the art to use Reishi, to promote collagen generation, and aloe to provide the moisture necessary to prevent skin dessication, to promote wound healing after tattooing (instant claims 1-3). Direct support for using Aloe vera as an active ingredient for wound healing is recited by Henke (paragraph [0011]; instant claim 1). One of skill in the art would have had a reasonable expectation of success using the aqueous gel portion of the aloe vera plant, to provide moisture to tattooed skin to promote skin healing (instant claim 1).
Although Tan does not recite properties of Lion’s Mane mushroom (Hericium erinaceus) useful for healing tattooed skin, Wasser recites relevant properties of this fungus: “Hericium erinaceus is one of the well-studied edible/medicinal mushrooms which is a great source of structurally diverse compounds, and about seventy different secondary metabolites. … Bioactive compounds extracted from its fruiting body or mycelium have been demonstrated to possess antioxidative, antidiabetic, anticancer, anti-inflammatory, antimicrobial, antihyperglycemic, anti-fatigue, immunostimulatory and hypolipidemic properties (Chong et al, 2020)” (paragraphs [0089] and [0090]). It would be obvious to one of skill in the art to include a Lion’s Mane mushroom extract in a composition for healing tattooed skin because of its anti-inflammatory, antimicrobial, and immunostimulatory properties which would help avert infection of the wounded area and calm skin inflammation (instant claims 1-3).
Although Tan does not recite properties of Chaga (Inonotus obliquus) useful for healing tattooed skin, Wasser recites relevant properties of this fungus: “Inonotus obliquus (Ach. ex Pers.) Pilat
[0093] Description. In many countries such as China, Japan, Korea, Russia, and the Baltic countries, extracts of I. obliquus mushrooms were used due to their beneficial effects on the plasma lipid system and heart function as well as antibacterial, anti inflammatory, anti-fatigue and anti-cancer activity … I. obliquus is a source of various bioactive substances: antioxidants, triterpenoids, ergosterol and its peroxide, sesquiterpenes, benzoic acid derivatives, hispidin analogues, and melanins ”(paragraph [0093] and the previous line). It would be obvious to one of skill in the art to include a Chaga extract in a composition for healing tattooed skin because of its antibacterial and anti-inflammatory properties which would help avert infection of the wounded area and calm skin inflammation (instant claims 1-3). It would also be obvious to one of skill in the art that a Chaga extract could be used to protect against UV radiation because of its melanin content (instant claim 1). Jin further supports the utility of a Chaga extract for protecting against UV radiation: “The present invention relates to a cosmetic composition containing a fermented Inonotus obliquus extract as an active ingredient. The cosmetic composition has an excellent antioxidant effect, and is effective in improving skin whitening, reducing wrinkles, blocking UV rays, and blocking blue light, by containing the fermented Inonotus obliquus extract as an active ingredient” (Abstract; instant claim 1).
Although Tan does not explicitly recite non-comedogenic carrier oils as having properties useful for healing tattooed skin, Tan recites a cosmetic composition comprising Vaseline® (petrolatum) (claim 1). Petrolatum would provide a hydrophobic barrier that inhibits skin desiccation through water evaporation; therefore, petrolatum reasonably assists skin healing. A non-comedogenic carrier oil would improve the composition by not clogging pores in the skin, as clogged pores could contribute to the development of acne lesions (instant claim 1).
Although Tan does not recite beeswax or shea butter as having properties useful for healing tattooed skin, Henke recites each of these substances as suitable active ingredients for would healing (paragraph [0011]; instant claims 6 and 7). It would also be obvious to one of skill in the art that natural waxes and butters such as beeswax and shea butter would provide a hydrophobic barrier that helps to keep moisture in the skin as it heals from tattooing (instant claims 6 and 7).
It would have been obvious to one of ordinary skill in the art at the time the claimed invention was made to combine the instant ingredients for their known benefit since each is well known in the art for the same purpose and for the following reasons: all of the components of the claimed composition are individually thought to possess activities that contribute to the healing of tattooed skin. In KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398 (2007), the Supreme Court reaffirmed "the conclusion that when a patent 'simply arranges old elements with each performing the same function it had been known to perform' and yields no more than one would expect from such an arrangement, the combination is obvious." Id. at 417 (quoting Sakraida v. Ag Pro, Inc., 425 U.S. 273,282 (1976)). The Supreme Court also emphasized a flexible approach to the obviousness question, stating that the analysis under 35 U.S.C. § 103 "need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ." Id. at 418; see also id. at 421 ("A person of ordinary skill is... a person of ordinary creativity, not an automaton."). The Supreme Court thus implicitly endorsed the principle, stated in In re Kerkhoven, 626 F.2d 846, 850 (CCPA 1980) (citations omitted), that: “It is prima facie obvious to combine two compositions 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 to be used for the very same purpose .... [T]he idea of combining them flows logically from their having been individually taught in the prior art”.
Although Tan does not recite preparing a topical composition for wound healing as a gel, Henke suggests incorporating the active ingredient for wound healing into a gel “Furthermore, the active ingredient for wound healing can be incorporated into a formulation comprising customary additives and auxiliary substances, and in particular into a liquid or a gel” (paragraph [0013]; instant claim 14). One of skill in the art would have had a reasonable expectation of success at incorporating the active ingredients for wound healing into Aloe vera gel, producing a gel composition with wound healing activity (instant claims 1 and 14).
One of skill in the art would have had the motivation to make the instantly claimed composition hypoallergenic and non-irritating, to avoid further irritating skin that has been irritated by the tattooing process (instant claim 16) . One of skill in the art would have been motivated to make the composition suitable for all skin types to maximize the marketability of the product to consumers (instant claim 16). One of skill in the art would have had a reasonable expectation of success at producing a non-irritating composition by excluding ingredients that would dry the skin, such as ethanol and isopropanol (instant claim 16). Even if a liquid alcohol, such as ethanol or isopropanol, is used as a solvent to prepare fungal extractions, one of skill in the art could remove the alcoholic solvent through evaporation under nitrogen gas flow, before incorporating the extract into a topical composition (instant claim 16). One of skill in the art would have had a reasonable expectation of success at producing a non-irritating and hypoallergenic composition by only using the oil fractions of plant seeds, to avoid including allergenic proteins; and by filtering and/or centrifuging fungal extracts, to separate the liquid extract from fungal spores that could cause an allergic reaction (instant claim 16). One of skill in the art would have had a reasonable expectation of success at preparing the instantly claimed composition for all skin types both by making it hypoallergenic, as described above, and by incorporating a non-comedogenic oil that would help moisturize dry skin and avoid comedogenics in oily skin (instant claim 16).
Although the cited references do not explicitly recite the weight percentage limitations of instant claim 2, these weight percentages of fungal extracts are obvious to one of skill in the art over routine optimization. One of skill in the art could weigh the different extracts using a scale instrument, and therefore adjust these weight percentages. Compositions comprising different weight percentages of an extract could be applied to skin at a consistent time after tattooing. The skin could be photographed at consistent time points following tattooing, both before and after the treatment, to observe the effect of the composition on skin inflammation, and to observe any other signs of skin irritation, wounding, or infection. The effects of different compositions on skin healing after tattooing could then be compared, to experimentally optimize the weight percentage of a given fungal extract in the composition (instant claim 2).
Although the cited references do not explicitly recite the weight percentage limitations of instant claim 7, these weight percentages of fungal extracts are obvious to one of skill in the art over routine optimization. One of skill in the art could weigh the beeswax and shea butter using a scale instrument, and therefore adjust these weight percentages. Compositions comprising different weight percentages of shea butter or beeswax could be applied to skin at a consistent time after tattooing. The skin could be photographed at consistent time points following tattooing, both before and after the treatment, to observe the effect of the composition on skin inflammation, and to observe any other signs of skin irritation, wounding, or infection. The effects of different compositions on skin healing after tattooing could then be compared, to experimentally optimize the weight percentages of beeswax and shea butter (instant claim 7).
Although the cited references do not explicitly recite the application times for the composition of claim 15, the times at which one applies the instantly claimed composition, after tattooing, are obvious to one of skill in the art over routine optimization. One of skill in the art could use a timer or clock to measure the time duration after skin has been tattooed; therefore, the time duration between tattooing and applying the composition is adjustable. The instantly claimed composition could be applied to skin at different times after tattooing in different subjects, including repeated administration for ongoing maintenance in some cases. The skin could be photographed at consistent time points following tattooing, both before and after the treatment, to observe the effect of the composition on skin inflammation, and to observe any other signs of skin irritation, wounding, or infection. The effects of different admiration schedules on skin healing after tattooing could then be compared, to experimentally optimize the times at which the instantly claimed composition is administered (instant claim 15).
Tan, Wasser, Jin, and Henke are relied upon for the reasons discussed above. If not expressly taught thereby, based upon the overall beneficial teachings provided by the references with respect to providing the ingredients or a topical aftercare composition for tattooed skin, the adjustments of particular conventional working conditions (e.g., the selection from among known components and determining one or more suitable ranges (amounts, proportions, ratios thereof) in which to provide the topical aftercare composition), is deemed merely a matter of judicious selection and routine optimization which is well within the purview of the skilled artisan.
From the teachings of Tan in view of Wasser, Jin, and Henke; the invention as a whole, drawn to a topical composition as described in Claims 1-3, 6, 7, and 14-16; would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention; and one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention; as evidenced by the references; especially in the absence of evidence to the contrary.
Please note, since the Office does not have the facilities for examining and comparing
Applicants’ composition with the composition of the prior art, the burden is on applicant to show
a novel or unobvious difference between the claimed product and the product of the prior art. See In re Best, 562 F.2d 1252, 195 USPQ 430 (CCPA 1977) and In re Fitzgerald, 619 F.2d 67, 205 USPQ 594 (CCPA 1980), and “as a practical matter, the Patent Office is not equipped to manufacture products by the myriad of processes put before it and then obtain prior art products and make physical comparisons therewith.” In re Brown, 459 F.2d 531, 535, 173 USPQ 685, 688 (CCPA 1972).
Claims 1-7 and 12-16 are rejected under 35 U.S.C. 103 as being unpatentable over Tan (CN 109172436 A); and further in view of Wasser (WO 2022195581 A1); Jin (KR 20230025241 A); and Henke (US 20200188649 A1) as applied to claims 1-3, 6, 7, and 14-16 above, and further in view of Campbell and Parker (US 20110256249 A1), abbreviated "Campbell"; Seidel (US 20220016047 A1); and Xu et al. (CN 111733471 A), abbreviated "Xu".
The claims and the teachings of the cited references are of record above. Knowledge broadly known in the art, relevant to the instantly claimed invention, is also of record above.
Claim 4 recites “The topical aftercare composition of claim 1, wherein the non-comedogenic carrier oils include grapeseed oil and tea tree oil”. Claim 5 recites “The topical aftercare composition of claim 4, wherein the grapeseed oil is present in a weight percentage of 5-10% and the tea tree oil is present in a weight percentage of 0.5-2%”. Claim 12 recites “The topical aftercare composition of claim 1, further comprising essential oils”. Claim 13 recites “The topical aftercare composition of claim 12, wherein the essential oils include lavender and chamomile, with the essential oils present in a weight percentage of 0.1-1%”.
As of record above, there is utility in a non-comedogenic oil for avoiding clogged pores and resulting acne lesions while providing a hydrophobic barrier to avoid skin desiccation. Seidel recites grapeseed oil as a non-comedogenic oil (paragraph [0022]; instant claim 4). Campbell recites tea tree oil as a non-comedogenic oil (paragraph [0022]; instant claim 4). Therefore, grapeseed oil and tea tree oil are among the finite number of known non-comedogenic oils. One of skill in the art would have had a reasonable expectation of success at using these oils to provide a hydrophobic barrier to keep moisture in the skin while avoiding clogged pores and resulting acne. One of skill in the art could mix these oils with the other components of the instantly claimed composition to deliver them to the skin of a subject.
One of skill in the art would have been motivated to prepare composition for healing tattooed skin having anti-bacterial and/or wound healing properties, to heal the wounds caused by the tattooing process, and avoid their infection. Xu recites certain antibacterial essential oils that can inhibit the growth of bacteria and/or promote wound healing
“In a specific embodiment, the skin care component can enumerate antibacterial components, the antibacterial component can inhibit the growth of bacteria and/or promote wound healing. specific examples can list chitosan, amygdalic acid, salicylic acid, triclosan, propolis, tea tree, rosemary, grapefruit seed, orange extract, bamboo carbon fibre, aloe fibre, lavender oil, citronellol, grape seed oil, jojoba oil, lemon grass oil, rose oil, bergamot oil, terpinol-4-alcohol, sage oil, calendula seed oil, sunflower oil, camellia oil, malua oil, rose seed oil, avocado oil, sweet almond oil, nut oil, wild orange oil, grapefruit oil, chamomile oil, cinnamon oil, ginger oil, rat tail grass oil, thousand-layer oil, eucalyptus oil, rosemary oil, cypress oil and tea tree oil, lavender oil, rose oil, terpinol-4-alcohol, calendula oil[,] lavender oil, terpinol-4-alcohol, calendula oil[,] and other essential oil” (Description, Specific implementation examples, Skin care household textile, paragraph 6; emphasis made by the examiner).
In view of Xu, one of skill in the art would have a reasonable expectation of success at using the essential oils of grapeseed, tea tree, lavender, and chamomile for wound healing and/or avoiding bacterial infection. Therefore, it would have been obvious to one of skill in the art to incorporate these oils into a composition for healing tattooed skin (instant claims 4, 5, 12, and 13).
Although the cited references do not explicitly recite the weight percentage limitations of instant claim 5 and 13, these weight percentages of grapeseed oil, tea tree oil, and essential oils, are obvious to one of skill in the art over routine optimization. One of skill in the art could weigh the oils, or combinations thereof, using a scale instrument, and therefore adjust these weight percentages. Compositions comprising different weight percentages of a specific oil or oil combination could be applied to skin at a consistent time after tattooing. The skin could be photographed at consistent time points following tattooing, both before and after the treatment, to observe the effect of the composition on skin inflammation, and to observe any other signs of skin irritation, wounding, or infection. The effects of different compositions on skin healing after tattooing could then be compared, to experimentally optimize the weight percentage of a specific oil or oil combination in the composition (instant claims 5 and 13).
Tan, Wasser, Jin, Henke, Campbell, Seidel, and Xu are relied upon for the reasons discussed above. If not expressly taught thereby, based upon the overall beneficial teachings provided by the references with respect to providing the ingredients or a topical aftercare composition for tattooed skin, the adjustments of particular conventional working conditions (e.g., the selection from among known components and determining one or more suitable ranges (amounts, proportions, ratios thereof) in which to provide the topical aftercare composition), is deemed merely a matter of judicious selection and routine optimization which is well within the purview of the skilled artisan.
From the teachings of Tan in view of Wasser, Jin, Henke, and further in view of Campbell, Seidel, and Xu; the invention as a whole, drawn to a topical composition as described in Claims 1-7 and 12-16; would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention; and one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention; as evidenced by the references disclosure of skin care components; especially in the absence of evidence to the contrary.
Please note, since the Office does not have the facilities for examining and comparing
Applicants’ composition with the composition of the prior art, the burden is on applicant to show
a novel or unobvious difference between the claimed product and the product of the prior art. See In re Best, 562 F.2d 1252, 195 USPQ 430 (CCPA 1977) and In re Fitzgerald, 619 F.2d 67, 205 USPQ 594 (CCPA 1980), and “as a practical matter, the Patent Office is not equipped to manufacture products by the myriad of processes put before it and then obtain prior art products and make physical comparisons therewith.” In re Brown, 459 F.2d 531, 535, 173 USPQ 685, 688 (CCPA 1972).
Claims 1-3, 6-11, 14-17, and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Tan (CN 109172436 A); and further in view of Wasser (WO 2022195581 A1); Jin (KR 20230025241 A); and Henke (US 20200188649 A1) as applied to claims 1-3, 6, 7, and 14-16 above, and further in view of Henke (US 20200188649 A1); Petkoska (US 20220387534 A1); and Ennamany et al. (WO 2023021317 A1), abbreviated "Ennamany".
The claims and the teachings of the cited references are of record above. Knowledge broadly known in the art, relevant to the instantly claimed invention, is also of record above.
Claim 8 recites “The topical aftercare composition of claim 1, further comprising vitamins”.
Claim 9 recites: “The topical aftercare composition of claim 8, wherein the vitamins include Vitamin A and Vitamin C, with Vitamin A present in a weight percentage of 0.1-0.5% and Vitamin C present in a weight percentage of 0.1-0.5%”. Claim 10 recites “The topical aftercare composition of claim 1, further comprising emollients, emulsifiers, and stabilizers”. Claim 11 recites “The topical aftercare composition of claim 10, wherein the emollients, emulsifiers, and stabilizers include glycerin, lecithin, and xanthan gum, with glycerin present in a weight percentage of 2-5%, lecithin present in a weight percentage of 0.5-2%, and xanthan gum present in a weight percentage of 0.1-1%”. Claim 17 recites “The topical aftercare composition of claim 1, wherein the composition is stable under a range of temperatures and resistant to photodegradation”. Claim 19 recites “The topical aftercare composition of claim 1, wherein the composition includes a controlled-release mechanism for sustained delivery of the active ingredients”.
Henke recites Vitamin A as an active ingredient for wound healing (Henke, paragraph [0011]), and it is within the knowledge of one of skill in the art that Vitamin A is an antioxidant compound that would inhibit free radical damage to the skin as it heals (instant claims 8 and 9). Therefore, vitamin A is considered to have an activity useful for healing tattooed skin. Vitamin C also has wound healing activity, as recited by Petkoska: “Vitamin C is a water-soluble antioxidant acting as scavenger of the superoxide radical anion, hydrogen peroxide, hydroxyl radical and the singlet oxygen. It contributes to the formation of skin barrier function by enhancing epidermal differentiation. Vitamin C is also required for the production of collagen fibers to maintain connective tissue in its normal state, as necessary for efficient wound healing. It is the most known for its role in preventing scurvy, and has anti-inflammatory activities, as well” (paragraph [0141]; instant claims 8 and 9). Considering the wound healing activities recited by Petkoska, Vitamin C has activity useful for healing tattooed skin (instant claims 8 and 9).
Although the cited references do not explicitly recite the weight percentage limitations of instant claim 9, these weight percentages of vitamins A and C are obvious to one of skill in the art over routine optimization. One of skill in the art could weigh the vitamin A or C using a scale instrument, and therefore adjust these weight percentages. Compositions comprising different weight percentages of vitamin A or C could be applied to skin at a consistent time after tattooing. The skin could be photographed at consistent time points following tattooing, both before and after the treatment, to observe the effect of the composition on skin inflammation, and to observe any other signs of skin irritation, wounding, or infection. The effects of different compositions on skin healing after tattooing could then be compared, to experimentally optimize the weight percentages of vitamins A and C (instant claim 9).
An emollient would be obvious to one of skill in the art to incorporate into a topical tattoo aftercare composition, such that the composition has a soft sensation against the skin, to avoid further irritation (instant claim 10). One of skill in the art would have a reasonable expectation of success using glycerin as an emollient because of its smooth, viscous, consistency, and because it is broadly known in the art as a common ingredient in soaps intended for topical application (instant claim 11).
An emulsifier would be obvious to one of skill in the art to incorporate into a topical tattoo aftercare composition, such that hydrophobic compounds useful for wound healing (such as Vitamin A, of record above), can be suspended and mixed with water soluble ingredients useful for wound healing (such as Vitamin C and Aloe vera gel) (instant claim 10). One of skill in the art would have had a reasonable expectation of success at using Lecithin as an emulsifier because it comprises phospholipids, amphiphilic compounds able to encapsulate hydrophobic compounds in micelles, forming an emulsion (instant claims 10 and 11). Lecithin phospholipids could also improve the chemical stability of the composition, by encapsulating ingredients in vesicles, protecting them from oxidative damage from radical species in the bulk solvent (instant claims 10 and 11).
A stabilizer would be obvious to one of skill in the art to incorporate into a topical tattoo aftercare composition to increase the viscosity so that the composition can be more easily controlled when spread over the skin (instant claim 10). One of skill in the art would have had a reasonable expectation of success at using Xanthan gum as a stabilizer because its complex carbohydrate structure would increase the viscosity of a liquid composition it is mixed with (instant claims 10 and 11).
One of skill in the art would have been motivated to maximize the thermal stability and minimize the photodegradation of the instantly claimed composition to maximize its shelf life (instant claim 17). One of skill in the art would have had a reasonable expectation of success at maximizing thermal stability and minimizing photodegradation through the incorporation of antioxidant vitamins (Vitamins A, C, and E) to stop the propagation of radical species generated through the exposure of the composition to heat or light (instant claims 8, 9, and 17). One of skill in the art would have also had a reasonable expectation of success at minimizing photodegradation through the incorporation of Chaga extract having the property of protecting against UV rays, of record above from Wasser and Jin (instant claim 17).
One of skill in the art would be motivated to make a composition for healing tattooed skin with controlled-release mechanism for sustained delivery of the active ingredients, to decrease the need for re-application of the composition to the skin over time, a practical benefit to the user. One of skill in the art would have had a reasonable expectation of success at implementing a controlled-release mechanism for sustained delivery by embedding active ingredients in lecithin containing structures (Ennamany, Abstract, Advantage; instant claims 10, 11, and 19). One of skill in the art would have a reasonable expectation of success embedding both hydrophobic and hydrophilic ingredients in different types of lecithin-containing structures (instant claims 10, 11, and 19). Hydrophobic active ingredients could be embedded in a micelle-type vesicle composed of a lecithin monolayer membrane, where the hydrophobic active ingredient interfaces with the non-polar fatty-acid tails of lecithin phospholipids. Hydrophilic active ingredients could be embedded in a vesicle composed of a lecithin bi-layer membrane, analogous in structure to a liposome, where the hydrophilic active ingredient interfaces with the polar head groups of phospholipids comprising the inner layer of the membrane. The lecithin vesicles would release embedded active ingredients upon vesicle fusion with the phospholipid-composed cell membrane (instant claims 10, 11, and 19).
Although the cited references do not explicitly recite the weight percentage limitations of instant claim 11, these weight percentages of glycerin, lecithin, and xanthan gum, are obvious to one of skill in the art over routine optimization. One of skill in the art could weigh these materials using a scale instrument, and therefore adjust their weight percentages. Compositions comprising different weight percentages of glycerin, lecithin, or xanthan gum could be applied to skin at a consistent time after tattooing. The skin could be photographed at consistent time points following tattooing, both before and after the treatment, to observe the effect of the composition on skin inflammation, and to observe any other signs of skin irritation, wounding, or infection. The effects of different compositions on skin healing after tattooing could then be compared, to experimentally optimize the weight percentages of glycerin, lecithin, and xanthan gum in the composition (instant claim 11).
Tan, Wasser, Jin, Henke, Petkoska, and Ennamany are relied upon for the reasons discussed above. If not expressly taught thereby, based upon the overall beneficial teachings provided by the references with respect to providing the ingredients or a topical aftercare composition for tattooed skin, the adjustments of particular conventional working conditions (e.g., the selection from among known components and determining one or more suitable ranges (amounts, proportions, ratios thereof) in which to provide the topical aftercare composition), is deemed merely a matter of judicious selection and routine optimization which is well within the purview of the skilled artisan.
From the teachings of Tan in view of Wasser, Jin, Henke, and further in view of Henke, Petkoska, and Ennamany; the invention as a whole, drawn to a topical composition as described in Claims 1-3, 6-11, 14-17, and 19; would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention; and one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention; as evidenced by the references; especially in the absence of evidence to the contrary.
Please note, since the Office does not have the facilities for examining and comparing
Applicants’ composition with the composition of the prior art, the burden is on applicant to show
a novel or unobvious difference between the claimed product and the product of the prior art. See In re Best, 562 F.2d 1252, 195 USPQ 430 (CCPA 1977) and In re Fitzgerald, 619 F.2d 67, 205 USPQ 594 (CCPA 1980), and “as a practical matter, the Patent Office is not equipped to manufacture products by the myriad of processes put before it and then obtain prior art products and make physical comparisons therewith.” In re Brown, 459 F.2d 531, 535, 173 USPQ 685, 688 (CCPA 1972).
Conclusion
No claims are allowed.
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/R.F.S./Examiner, Art Unit 1655
/ANAND U DESAI/Supervisory Patent Examiner, Art Unit 1655
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