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
Claims 1-20 are pending. Claims 1-20 are examined on the merits.
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 1-14 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.
First, the claimed invention must be to one of the four statutory categories. 35 U.S.C. 101 defines the four categories of invention that Congress deemed to be the appropriate subject matter of a patent: processes, machines, manufactures and compositions of matter. The latter three categories define "things" or "products" while the first category defines "actions" (i.e., inventions that consist of a series of steps or acts to be performed). See 35 U.S.C. 100(b) ("The term ‘process’ means process, art, or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material."). See MPEP § 2106.03 for detailed information on the four categories.
Second, the claimed invention also must qualify as patent-eligible subject matter, i.e., the claim must not be directed to a judicial exception unless the claim as a whole includes additional limitations amounting to significantly more than the exception. The judicial exceptions (also called "judicially recognized exceptions" or simply "exceptions") are subject matter that the courts have found to be outside of, or exceptions to, the four statutory categories of invention, and are limited to abstract ideas, laws of nature and natural phenomena (including products of nature). Alice Corp. Pty. Ltd. v. CLS Bank Int'l, 573 U.S. 208, 216, 110 USPQ2d 1976, 1980 (2014) (citing Ass'n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 589, 106 USPQ2d 1972, 1979 (2013). See MPEP § 2106.04 for detailed information on the judicial exceptions.
Claim(s) 1-14 is/are directed to a topical composition comprising an active component and an essential oil component, the active component comprising at least one oil selected from the group consisting of camellia oil, safflower oil, jojoba oil, vitamin E oil, coconut oil, rose hip oil, moringa oil, grapeseed oil, marula oil, Jamaican black castor oil, olive oil, avocado oil, neem oil, brahmi infused sesame oil, and bhringraj infused sesame oil, and combinations thereof; and the essential oil component comprising at least one essential oil.
Analysis of the flowchart:
Step 1, is the claim directed to a process, machine, manufacture or composition of matter?
Yes. The claim is directed to a composition of matter.
Step 2A. Prong one: Is the claim directed to a law of nature, a natural phenomenon (product of nature), or an abstract idea?
Yes, the claims are directed to nature based components, an extract (oil) of coconut, an extract (oil) of peppermint oil, for example, because there is no indication that extraction has caused the oils of coconut and peppermint oil that comprise the claimed compositions to have any characteristics that are different from the naturally occurring components in coconut and peppermint.
Step 2A. Prong two: Does the claims recite additional elements that amount to significantly more than the judicial exception?
No. The claim(s) of 1-14 does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception. Regarding claims 1, 2, 11, and 12, since there is no absolute amounts of the active ingredients are claimed as compared to the whole composition, the claimed composition encompasses embodiments where the active ingredients are in such small amounts that none of them impart any characteristic or markedly different characteristic. Also, this is a product claim and since there are no claimed method steps, there are no additional elements that apply, rely on, or use the judicial exception in a manner that imposes a meaningful limit on the judicial exception themselves. Therefore, the claims do not recite something significantly more than a judicial exception and are thus deemed patent ineligible subject matter.
Claims 3-10, 13, and 14 require certain amounts of components being present in the composition. However, there is no indication that the amounts claimed in the compositions result in a markedly different characteristic for the composition as compared to the components that occur in the nature.
Regarding claims 1-14, a topical composition does not result in a markedly different characteristic because plant harvest and plant extraction already encompass contact of the plant extract with human skin.
Step 2B. If additional elements of the claim provide an inventive concept (Step 2B) (also called "significantly more" than the recited judicial exception).
No, no non-nature based components were recited in the claims.
For the reasons described above, the claimed compositions are not markedly different from their closest naturally occurring counterparts and thus are product of nature judicial exceptions.
The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the claims do not recite any additional elements beyond the claimed compositions themselves. Also, this is a product claim and since there are no claimed method steps, there are no additional elements that apply, rely on, or use the judicial exception in a manner that imposes a meaningful limit on the judicial exception themselves. Therefore, the claims do not recite something significantly more than a judicial exception and are thus deemed patent ineligible subject matter.
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1, 2, 11, and 15 are rejected under 35 U.S.C. 102 (a)(1) as being anticipated by Vernon (US 4999187 A).
Vernon teaches the present invention more particularly accomplishes its desired objects by more particularly providing a hair and scalp treatment composition comprising from about 60.0 wt. % to about 85.0 wt. % petrolatum; from about 5.0 wt. % to about 17.0 wt. % sulfur; from about 0.5 wt. % to about 5.0 wt. % 1,2,3-propanetriol; from about 0.5 wt. % to about 5.0 wt. % methyl salicylate; from about 0.5 wt. % to about 10.0 wt. % bergamot oil; from about 0.25 wt. % to about 5.0 wt. % sandalwood oil; from about 0.5 wt. % to about 10.0 wt. % cinnamon oil; from about 0.5 wt. % to about 10.0 wt. % coconut oil (thus an active component, thus ); from about 0.5 wt. % to about 10.0 wt. % olive oil; from about 0.5 wt. % to about 15.0 wt. % mineral oil; from about 0.5 wt. % to about 10.0 wt. % peppermint oil (thus an essential oil) (thus claims 1, 2, and 11 are met); from about 0.01 wt. % to about 5.0 wt. % clove oil; from about 0.5 wt. % to about 5.0 wt. % mustard oil; from about 0.25 wt. % to about 5.0 wt. % citronella oil; almond oil. The hair and scalp treatment composition is topically (thus a topical composition) applied to the hair and scalp to remove dandruff (thus a method for reducing dandruff, thus claim 15 is met) and/or to bring life to hair and/or to cause hair to grow in areas on the scalp where hair has stopped growing (thus a method for stimulating hair follicles for hair regrowth, thus claim 15 is met) (col 1, lines 37-60).
Therefore, the reference is deemed to anticipate the instant claim above.
Claims 1, 9, 11, and 12 are rejected under 35 U.S.C. 102 (a)(1) as being anticipated by Shang (CN 109745282 A).
Shang teaches a moisture restoration lotion (thus a topical composition), wherein according to weight percent, comprising the following components: A phase: white pool flower seed oil (thus an essential oil), 8 %-12 % polydimethylsiloxane, 5 %-8 % 2-diethylhexyl 3 %-5 % cetearyl alcohol, 1 %-3 % 1 %-3 % stearate, PEG-100 stearate, 1 %-2 % of glycerol stearate, 1 %-2 % cetearyl olivate 1 %-2 %, sorbitan olivate 1 %-2 %. coenzyme Q10 0.1 %-0.3 % of B phase, milk shea oil 0.5 %-1 % oil, safflower oil 0.1 %-0.3 % (thus an active component, thus claim 1 is met), coconut oil 0.1 %-0.3 % (thus an active component, thus claim 9 is met, thus no nut based oil, thus claims 11 and 12 are met)), 0.1%-0.3 % of vitamin E (thus an active component), C phase: Disodium EDTA 0.01 %-0.1 % glycerol, 8 %-15 %, 0.02 %-0.1 % of sodium hyaluronate, allantoin, carbomer 0.2 0.05 %-0.2 % %-0.5 % D phase: de-ionized water for the rest; 1, 2-glycol 1 %-1.5 %, ethylhexyl glycerin, 0.1 %-0.3 % E phase: triethanolamine 0.2 %-0.5 % of F phase, metal button flower/leaf/stem extract 0.1 %-0.3 %, film capsule astragalus root extract 0.1 %-0.3 % of propolis extract, 0.1 %-0.3 % of oak extract, 0.1 %-0.3 % of daily essence 0.01 %-0.1 % (see claim 1).
Therefore, the reference is deemed to anticipate the instant claim above.
Claim Rejections –35 USC § 103
The following is a quotation of 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained through the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.
Claims 1, 2, 5-9, 11, and 15 are rejected under 35 U.S.C. 103(a) as being unpatentable over Vernon as applied to claims 1, 2, 11, and 15 above.
The teachings of Vernon are set forth above and applied as before.
The teachings of Vernon do not specifically teach the claimed amount or ratio of the component in claim 5-9, or the claimed amount of the product in claims 16, 17, frequency in claim 18, the temperature in claim 19, or the hair increasing density in claim 20.
It would have been prima facie obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to vary the amount of the component, amount of the product, the temperature of application, or application frequency according to the hair loss condition of the subject. For example, when hair loss condition is severe, you may want to increase the percentage of the active component, decrease the percentage of the essential oil, increase the amount of the product volume for each application, increase the application frequency, and to increase the application temperature for quick absorption so as to increase the hair density. Regarding the ratio of the two components in claim 9, determining an appropriate ratio of the components within the 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 the references, it is apparent that one of the ordinary skills in the art would have had a reasonable expectation of success in producing the claimed invention.
Thus, the invention as a whole is prima facie obvious over the references, especially in the absence of evidence to the contrary.
Conclusion
No claim is allowed (claims 3, 4, 10, 13, and 14 are free of art).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to QIUWEN MI whose telephone number is (571)272-5984. The examiner can normally be reached on Monday-Friday 9:00 am to 5:00 pm.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Anand Desai can be reached on 571-272-0947. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Qiuwen Mi/
Primary Examiner, Art Unit 1655