DETAILED ACTION
Applicants’ arguments, filed 11 August 2026, have been fully considered. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
Claim Interpretation
As best understood by the examiner, claim 1 requires that (e) be one or more of a polyhydric alcohol, trimethylglycine, lactic acid, a salt of lactic acid, pyrrolidonecarboxylic acid, a salt of pyrrolidonecarboxylic acid, an amino acid, or a salt of an amino acid. As such, a prior art reference teaching only a single polyhydric alcohol is understood to meet the requirement of claim 1.
Claim 25 is understood by the examiner to further limit claim 1 to require that more than one of the above-indicated ingredients are required. As such, prior art that teaches two different polyhydric alcohols (e.g. both ethylene glycol and glycerol) is understood to meet the requirements of part (e) of claim 25 and of part (e) of claim 1. Prior art that teaches a single polyhydric alcohol and trimethylglycine is also understood to meet the requirements of part (e) of claim 25. However, prior art that teaches only glycerol but no other polyhydric alcohol and does not teach trimethylglycine, does not teach lactic acid or a salt thereof, does not teach pyrrolidonecarboxylic acid or a salt thereof, and does not teach an amino acid or a salt thereof is understood to meet the requirements of part (e) of claim 1 but is not understood to meet the requirements of part (e) of claim 25.
Claim Interpretation – Part 2
The instant claims recite polyaspartic acid and a salt thereof. This term is not understood to encompass amide conjugates of polyaspartic acid. The examiner notes that the specification discloses the following on page 8, relevant text reproduced below.
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While the specification discloses various amide conjugates of polyaspartic acid, the specification is not understood to redefine the phrase “polyaspartic acid” to include said amide conjugates. It is improper to import claim limitations from the specification. See MPEP 2111.01(II).
The examiner takes the position that this claim interpretation is consistent with the claim interpretation applied by the examiner in the prior office action mailed on 12 May 2026.
Claim Objections – Substantial Duplicates
Applicant is advised that should claim 25 be found allowable, claim26 will be objected to under 37 CFR 1.75 as being a substantial duplicate thereof. When two claims in an application are duplicates or else are so close in content that they both cover the same thing, despite a slight difference in wording, it is proper after allowing one claim to object to the other as being a substantial duplicate of the allowed claim. See MPEP § 608.01(m).
The examiner notes that at first glance, claim 26 appears to be worded differently than claim 25 in that claim 26 recites acidic amino acids and a salt thereof, basic amino acids and a salt thereof, and neutral amino acids and a salt thereof. However, this encompasses all amino acids because all amino acids are either basic, neutral, or acidic. As such, prior art that teaches one amino acid along with another element that is within the scope of part (e) of the claim is understood to meet the requirements of both claims 25 and 26, and there does not appear to be subject matter that meets the requirements of claim 25 but not claim 26 or vice versa.
Claim 27 is not a substantial duplicate of claims 25 and 26 because claim 27 appears to exclude cysteine. As such, a mixture of cysteine and a polyhydric alcohol would appear to meet the requirements of claims 25-26 but not claim 27.
Claim Rejections - 35 USC § 103 – Obviousness
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 1 and 22-27 is/are rejected under 35 U.S.C. 103 as being unpatentable over Umeda et al. (JP 2006-89420 A) in view of Omura et al. (US 2008/0299068 A1).
As an initial matter, Umeda et al. (JP 2006-89420 A) was written in Japanese. Nevertheless, an English translation was provided with the information disclosure statement (IDS) filing on 6 August 2024. All page and paragraph citations are to the English translation; however, the material cited therein is understood to have been present in the original Japanese document.
Umeda et al. (hereafter referred to as Umeda) is drawn to a skin cosmetic, as of Umeda, page 1, abstract. The skin cosmetic of Umeda comprises the following materials, as of Umeda, page 1, abstract, relevant text reproduced below.
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As to claim 1, the claim requires an emulsion. Umeda teaches this in the above-reproduced text.
As to claim 1(a), the claim requires an amino acid based oil agent that is an ester of an N-acylamino acid. The amino acid-based oiling solution discussed above as well as N-lauroyl-L-glutamic acid diester and/or N-lauroyl-L-glutamic acid di(phytosteryl, 2-octyldodecyl) read on this claim requirement.
As to claim 1(b), Umeda teaches lecithin in the above-reproduced paragraph. Umeda also suggests hydrogenated lecithin as of page 4, paragraph 0007.
As to claim 1(c), Umeda teaches the following polyglycerol fatty acid esters on page 4, bottom paragraph, relevant text reproduced below.
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Umeda teaches a polyglycerol fatty acid with an HLB of 10 or more, as of Umeda, page 4, bottom paragraph. This overlaps with the requirement of a HLB value of 14 to 17. While the prior art does not disclose the exact claimed values, but does overlap: in such instances even a slight overlap in range establishes a prima facie case of obviousness. See MPEP 2144.05(I).
As to claim 1 part (e), Umeda teaches glycerin, 1,3-butylene glycol, and 1,2-pentanediol, along with other diols, as of the abstract of Umeda. While it is unclear as to whether Umeda intended these as conditioning agents, these are understood to read on the requirements of part (e) of claim 1 because they are polyhydric alcohols.
Umeda is silent as to polyaspartic acid and is silent as to the pH.
Omura et al. (hereafter referred to as Omura) is drawn to a skin cosmetic, as of Omura, title and abstract. Omura teaches polyaspartic acid for having a good moisturizing effect, as of Omura, paragraph 0030.
Omura does not teach an amino acid-based oil.
It would have been prima facie obvious for one of ordinary skill in the art to have combined the polyaspartic acid of Omura with the composition of Umeda. Umeda is drawn to a skin cosmetic composition that may be used for moisturizing, as of Umeda, abstract. Omura teaches that polyaspartic acid is useful for moisturizing. As such, the skilled artisan would have been motivated to have added the polyaspartic acid of Omura to the composition of Umeda to have predictably improved the moisturizing effect of the composition of Umeda with a reasonable expectation of success. Generally, it is prima facie obvious to select a known material (i.e. polyaspartic acid, as of Omura) for incorporation into a composition (that of Umeda), based on its recognized suitability for its intended use (as a moisturizer, which is taught by Omura). See MPEP 2144.07.
As to claim 1(d), Omura teaches polyaspartic acid, as of paragraph 0030.
As to claim 1, Omura teaches a pH of 6 to 7.5, as of paragraph 0053. This overlaps with the claimed pH range. While the prior art does not disclose the exact claimed values, but does overlap: in such instances even a slight overlap in range establishes a prima facie case of obviousness. See MPEP 2144.05(I).
As to claim 22, Umeda teaches the following, as of the bottom of page 2, relevant text reproduced below.
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As to part (a) of claim 22, Umeda teaches most preferably from 5% to 10% of amino acid based oil.
As to part (b) of claim 22, Umeda teaches 0.5% to 5% lecithin; this overlaps with the range of 0.1% to 1.2% lecithin. While the prior art does not disclose the exact claimed values, but does overlap: in such instances even a slight overlap in range establishes a prima facie case of obviousness. See MPEP 2144.05(I).
As to part (c) of claim 22, Umeda appears to be silent regarding the amount of polyglycerol fatty acid ester. Nevertheless, generally, differences in concentration between the prior art and claimed invention will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration is critical. See MPEP 2144.05(II)(A). In this case, there does not appear to be evidence that the amount of polyglycerol fatty acid ester is critical. Additionally, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. See MPEP 2144.05(II)(A). In this case, the general conditions of a composition comprising an amino acid based oil agent, lecithin, polyglycerin fatty acid ester, and polyhydric alcohol for cosmetic use has been taught by the prior art. As such, it would not have been inventive for the skilled artisan to have discovered the optimum or workable range of polyglycerol fatty acid ester via routine experimentation.
As to claim 22, part (d), Omura teaches 2.5% polyaspartic acid, as of page 6, Table 2. This is a larger amount than what is required by the instant claims. Nevertheless, generally, differences in concentration between the prior art and claimed invention will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration is critical. See MPEP 2144.05(II)(A). In this case, there does not appear to be evidence that the amount of polyaspartic acid is critical. Additionally, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. See MPEP 2144.05(II)(A). In this case, the general conditions of a composition comprising polyaspartic acid for cosmetic use has been taught by the prior art. As such, it would not have been inventive for the skilled artisan to have discovered the optimum or workable range of polyglycerol fatty acid ester via routine experimentation.
As to claim 22, part (e), Umeda teaches 0.5-5% of a polyhydric alcohol in the abstract. This overlaps with the claim requirements. While the prior art does not disclose the exact claimed values, but does overlap: in such instances even a slight overlap in range establishes a prima facie case of obviousness. See MPEP 2144.05(I).
As to claim 23, Umeda teaches N-lauroyl-L-glutamic acid di(phytosteryl, 2-octyldodecyl) in the abstract; this is understood to read on the claimed requirement.
As to claim 24, Umeda teaches N-lauroyl-L-glutamic acid di(phytosteryl, 2-octyldodecyl) in the abstract; this is understood to read on the claimed requirement of di(phytosteryl/2-octyldodecyl) N-lauoryl-L-glutamate.
As to claim 25, Umeda teaches glycerol, 1,3-gutylene glycol, 1,2-pentanediol, 1,2-hexanediol, or 1,2-hepantediol as of the last three lines of the abstract, these are more than one kind of polyhydric alcohol being used in combination. Omura also teaches trimethyl glycine as of page 8, right column, table at top right of page, item (22), lactic acid as of at least paragraph 0054, and various amino acids in paragraph 0028. Umeda also teaches pyrrolidone carboxylic acid as of page 5, 6th line from bottom of English translation.
As to claim 26, this claim is understood to be rejected for essentially the same reason that claim 25 is rejected.
As to claim 27, Omura teaches aspartic acid and glutamic acid in paragraph 0028; these are not in the form of a polymer.
Response to Arguments
Applicant has provided arguments regarding the previously applied rejection, as of applicant’s response on 11 August 2026. These arguments are addressed below.
As an initial matter, applicant has presented various arguments relating to rejections which have been withdrawn. These arguments are understood to be moot and have not been addressed substantively by the examiner. The relevant arguments have been addressed below.
Applicant makes the following argument on page 9, last paragraph.
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This is not persuasive because applicant appears to be arguing subject matter not actually recited by the claims. The instant claims do not exclude crosslinked polyaspartic acid. As such, applicant’s arguments that Omura’s teaching of polyaspartic acid is outside the claim scope is not persuasive. Arguments regarding unclaimed limitations are not persuasive; see MPEP 2145(VI).
Applicant then proceeds with arguments related to comparative testing, as of applicant’s response, page 12, relevant paragraph reproduced below.
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The data underlying these arguments has been presented on table 1 of the instant specification, which is set forth across pages 27-29 of the instant specification. Also see the pre-grant publication of the instant application, which is US 2024/0307284 A1, on pages 8-10, wherein the data is presented more clearly. Relevant portions of table 1, taken from US 2024/0307284 A1, are reproduced below.
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The above-reproduced table lists data regarding inventive compositions and comparative compositions. The above-listed data also includes stability measurements regarding the compositions after storage at 50°C for 2 months, and includes data for pH stability and emulsion stability. The evaluation criteria is the following, as of page 25 of the instant specification as filed, relevant text reproduced below.
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As such, the circle symbol refers to desirable results, the triangle symbol to mildly undesired results, and the x symbol to extremely undesired results.
The data in the instant specification appears to indicate that all of the inventive examples, all of which include poly(sodium L-aspartate), achieve desired pH and emulsion stability. However, the comparative examples, which do not include poly(sodium-L-aspartate), do not appear to achieve the desired stability. The examiner further notes here that comparative example 7 includes poly(sodium-L-glutamate) and comparative example 9 includes polyalginate, both of which are polymers comprising repeating carboxylate groups similar to poly(sodium-L-aspartate).
In order to overcome a prima facie case of obviousness based upon unexpected results, applicant must compare the claimed invention to the closest subject matter that actually exists in the prior art. See MPEP 716.02(e). In this case, the closest subject matter to actually exist in the prior art is that of Umeda, which comprises all of the required ingredients except the polyaspartic acid or salt thereof. As such, comparative examples 3-6 appear to be as close as that of the prior art. Additionally, the claimed invention may be compared with prior art that is closer than that applied by the examiner. See MPEP 716.02(e)(I). Comparative examples 7-8 appear to meet this because these comparative examples include a polymer with repeating carboxylic acid groups (e.g. a polyglutamic acid salt and an alginic acid salt) that differ from the polyaspartic acid salt in the inventive examples. These appear to be closer to the claimed invention than the composition of Umeda. As such, applicant appears to have succeeded in comparing the claimed invention to the closest subject matter that actually exists in the prior art.
Additionally, the evidence must show unexpected results. In this case, the examples appear to show that compositions containing a salt of polyaspartic acid performed better than compositions containing a salt of polyglutamic acid or a salt of alginic acid. This improvement would not have been expected by one of ordinary skill in the art. In contrast, the skilled artisan would have expected that the polyaspartic acid salt, the polyglutamic acid salt, and the alginic acid salt would have provided similar results due to their similarity in chemical structure in that they all have repeating carboxylic acid groups. As such, the data appear to show an unexpected improvement.
Unexpected results must be commensurate in scope with the claimed invention. See MPEP 716.02(d). In this case, the results presented by applicant do not appear to be commensurate in scope with the invention of instant claim 1. This is because of the following reason.
Claim 1, part (d), recites polyaspartic acid or a salt thereof. Neither claim 1 nor the dependent claims specify whether the polyaspartic acid or salt thereof is crosslinked. However, applicant makes the following arguments on page 9, bottom paragraph.
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To the extent that the above-reproduced paragraph accurately represents the state of the art, this would appear to indicate that desirable results obtained with cross-linked polyaspartic acid or a salt thereof would not apply to non-crosslinked polyaspartic acid or a salt thereof and vice versa.
The instant claims recite polyaspartic acid or a salt thereof, and the scope of the claims appears to include both crosslinked and non-crosslinked polyaspartic acid or a salt thereof. The above-reproduced arguments would appear to indicate that the desirable results would not have been applicable to crosslinked polyaspartic acid or a salt thereof. As such, applicant’s results do not appear to be commensurate in scope with the claimed invention.
The examiner further takes the position that the above two paragraphs should not be construed as the examiner taking the position that a claim amendment to exclude crosslinked polyaspartic acid (or a salt thereof) would be adequately supported in the manner required by 35 U.S.C. 112(a). With that being said, the examiner notes that the instant specification does disclose polyaspartic acid molecular weights on page 8, lines 27-32, and it is possible that some of the lower molecular weights disclosed here would be lower than the molecular weight of the crosslinked polyaspartic acid of Umeda.
The examiner additionally notes that all of the examples have 0.3% poly(sodium-L-aspartate). However, instant claim 1 does not appear to limit the concentration of polyaspartic acid or a salt thereof. It is unclear if the results obtained in the instant application would have been commensurate in scope with the full range of concentrations. In the case of a higher concentration of polyaspartic acid or a salt thereof, the skilled artisan would have expected that the polyaspartic acid or salt thereof, containing repeating carboxylic acid units, would have influenced pH due to the acidic nature of protonated carboxylic acid groups or the weak basic nature of deprotonated carboxylate groups, and may therefore have contributed to pH instability. As such, it is unclear as to whether the data presented by applicant is commensurate with the full scope of claim 1, which does not limit the concentration of polyaspartic acid or a salt thereof.
As such, the instant claims do not appear to be in condition for allowance.
Additional Note Regarding Claims 25-27
Although applicant did not make arguments specific to claims 25-27, the examiner provides the following additional notes regarding these claims.
The examiner suspects that in claim 25, applicant may have intended to draft the claim require all of
a polyhydric alcohol,
trimethylglycine,
lactic acid or a salt thereof,
pyrrolidonecarboxylic acid or a salt thereof, and
an amino acid.
Similarly, the examiner suspects that applicant may have intended to draft claim 26 to require all of polyhydric alcohol, trimethylglycine, lactic acid or a salt thereof, pyrrolidonecarboxylic acid or a salt thereof, an acidic amino acid or salt thereof, a basic amino acid or salt thereof, and a neutral amino acid or salt thereof. Similarly, the examiner suspects that applicant may have intended to draft claim 27 to require all of polyhydric alcohol, trimethylglycine, lactic acid or a salt thereof, pyrrolidonecarboxylic acid or a salt thereof, an acidic amino acid or salt thereof selected from the recited group, a basic amino acid or salt thereof selected from the recited group, and a neutral amino acid or salt thereof selected from the recited group.
To the extent that applicant did intend to claim this, it is the examiner’s position that a prima facie case of obviousness still applies to claims 25-27. See the explanation below.
Polyhydric alcohol: Umeda teaches a polyhydric alcohol on page 5 of translation, second full paragraph.
Trimethylglycine: Omura teaches trimethylglycine as of page 8, table at top right of page, item #22.
Lactic Acid: Omura teaches lactic acid in paragraph 0054.
Pyrrolidonecarboxylic Acid: Umeda also teaches pyrrolidone carboxylic acid as of page 5, 6th line from bottom of English translation.
Amino Acids: Omura teaches multiple amino acids as of paragraph 0028. These include neutral, non-polar amino acids such as alanine, and leucine, neutral, polar amino acids such as glycine and serine, amino acids with positive charges (e.g. basic amino acids) such as lysine and arginine, and amino acids with negative charge (e.g. acidic amino acids) of aspartic acid and glutamic acid.
As such, even if, purely en arguendo, applicant were to amend claims 25-27 to recite all of the above-indicated ingredients, this would not be sufficient to overcome the applied prima facie case of obviousness.
Conclusion
No claim is allowed.
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ISAAC SHOMER whose telephone number is (571)270-7671. The examiner can normally be reached 7:30 AM to 5:00 PM Monday Through Friday.
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, Sahana Kaup can be reached at (571)272-6897. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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ISAAC . SHOMER
Primary Examiner
Art Unit 1612
/ISAAC SHOMER/ Primary Examiner, Art Unit 1612
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