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 .
Summary
Claims 1-11 are pending in this office action. All pending claims are under examination in this application.
Priority
The current application filed on February 16, 2024 is a 371 of PCT/US2022/075116 filed August 18, 2022, which in turn claims domestic priority to provisional patent application 63/234,745 filed August 19, 2021.
Information Disclosure Statement
Receipt of the Information Disclosure Statement filed on August 11, 2025 is acknowledged. A signed copy of the document is attached to this office action.
Claim Objections
Claims 3 and 8-10 are objected to because of the following informalities:
Claim 3 has the text, “…or remain over the skin providing a barrier.” This should be amended to, “…or remains over the skin providing a barrier.”
Claim 8 has the text BVOSC. Please define this acronym. Thereafter, BVOSC can be used within the claims.
Claim 9 should have the following items in lowercase (chamomile extract and amiporine).
Claim 10 should have the following items in lowercase (niacinamide and panthenol).
Appropriate correction is required.
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 9-10 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.
Claims 9-10 contains the trademark/trade names Senestem (9), Bonicell (9), Phytami (9), Dismutin PF (9), and SDA (10). Where a trademark or trade name is used in a claim as a limitation to identify or describe a particular material or product, the claim does not comply with the requirements of 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph. See Ex parte Simpson, 218 USPQ 1020 (Bd. App. 1982). The claim scope is uncertain since the trademark or trade name cannot be used properly to identify any particular material or product. A trademark or trade name is used to identify a source of goods, and not the goods themselves. Thus, a trademark or trade name does not identify or describe the goods associated with the trademark or trade name. In the present case, the trademark/trade name is used to identify/describe components of the aqueous (9) or alcohol (10) phases and, accordingly, the identification/description is indefinite.
Claim Rejections - 35 USC § 102
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 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.
[The Examiner is going to present two distinct 35 U.S.C. 102(a)(1) rejections.]
1.
Claims 1-6 and 11 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Dahms et al. (CA2106566).
Dahms et al. is considered the closest prior art to the present application as it teaches stable multiple emulsions (see title). Furthermore, Dahms et al. disclose stable multiple emulsions, containing an emulsifier mixture comprising - a first, hydrophobic emulsifier (emulsifier A), or a mixture of several such emulsifiers, having the following properties: - it must be very readily soluble in the oil phase of the emulsion at the preparation temperature of the emulsion - it must not be soluble in water to give an isotropic solution below approximately 50.degree. - it must be soluble in water to give an isotropic solution in the temperature range between approximately 50.degree. to the preparation temperature of the emulsion and - it must act primarily as a w/o emulsifier in the temperature range between approximately 50.degree. to the preparation temperature of the emulsion - and a second, hydrophilic emulsifier (emulsifier B), or a mixture of several such emulsifiers, having the following properties: - it must be soluble in water to give an isotropic solution - its solubility in the temperature range between approximately 50.degree. to the preparation temperature of the emulsion must be essentially stable (see abstract).
Regarding instant claim 1, Dahms et al. teach a system for application of an active ingredient to a skin surface. The necessary citations of Dahms et al. that pertain to instant claim 1 are presented in Table I.
Table I
Instant Claim 1
Dahms et al. Citations
A system for application of an active ingredient to a skin surface, the system comprising:
Dahms et al. disclose a system for application of an active ingredient to a skin surface (see page 1, lines 1-24)
a base formulation of at least two phases and in addition, a lipid phase, an aqueous phase, and an alcohol phases that are co-solubilizable with each other and the base formulation, at least one active ingredient soluble in the lipid phase, the aqueous phase, or the alcohol phase,
Dahms et al. disclose the system comprising: a base formulation of at least two phases (skin care composition comprising a first hydrophobic emulsifier A and a second hydrophilic emulsifier B, see abstract within Dahms et al.); and in addition, a lipid phase, an aqueous phase, and an alcohol phases that are co-solubilizable with each other and the base formulation [combining oil phase with hydrophobic emulsifier A, combining water and alcohol phase with hydrophilic emulsifier B, and combining the two phases at the optimal processing temperatures when the phases are co-soluble forming stable multiple emulsions (see claim 1 and Examples 2, 5-14)], at least one active ingredient soluble in the lipid phase (oil), the aqueous phase, or the alcohol phase [composition comprising active ingredients such as vitamins, proteins, light stabilizers, stabilizers, antioxidants, preservatives, alcohol, water, salts, proteolytically or keratolytically active substances (soluble in the lipid phase, the aqueous phase, or the alcohol phase); see page 17 lines 10-24)],
wherein the lipid phase, aqueous phase, and alcohol phase are combined in a sequential specific manner to optimize the bioavailability of the active and release the active uniformly upon application of the system to an epidermal layer of skin.
Dahms et al. disclose wherein the lipid phase (oil), aqueous phase, and alcohol phase are combined in a sequential specific manner to optimize the bioavailability of the active and release the active uniformly upon application of the system to an epidermal layer of skin [combining oil phase with hydrophobic emulsifier A, combining water and alcohol phase with hydrophilic emulsifier B, and combining the two phases at optimal temperatures forming stable multiple emulsions applied topically (optimized bioavailability of the active and releases the active uniformly upon the application) as a moisturizing, cream, lotion, or sunscreen skin care compositions; see claims 1-15, also see page 17, lines 25-30)].
Regarding instant claim 2, Dahms et al. teach the system of instant claim 1, and further discloses wherein the active penetrates the epidermis of the skin or remains over the skin providing a barrier. Dahms et al. disclose moisturizing, cream, or lotions that penetrates the epidermis, or sunscreen compositions providing a barrier (see page 17, lines 25-30; see Examples 1-17; also see page 1, lines 1-24).
Regarding instant claim 3, Dahms et al. teach the system of instant claim 1, and further discloses wherein the active is an antiseptic, a germicide, an acne treating agent, an anesthetic, and anti-infective, and anti-rosacea agent, an antibiotic, an antifungal, an antihistamine, an antineoplastic, and anti-psoriatic, an antiviral, an astringent, a debriding agent, a depigmenting agent, an emollient, a keratolytic, an anti-inflammatory, a non-steroidal anti-inflammatory, a photochemotherapeutic, a rubefacient, a steroid or a combination thereof. Dahms et al. disclose a composition comprising keratolytically active substances (see page 17, lines 18-24). Many of the listed active substances within Dahms et al. have characteristics of those listed within instant claim 3 such as an alcohol (antiseptic, astringent, or germicide).
Regarding instant claim 4, Dahms et al. teach the system of instant claim 1, and further discloses wherein the lipid phase comprises at least one low HLB gelling agents (emulsifier; see PTO-892 NPL 2U). Dahms et al. disclose a composition comprising a hydrophilic emulsifier B having low HLB values (see page 3, lines 27-30 and abstract).
Regarding instant claim 5, Dahms et al. teach the system of instant claim 1, and further discloses wherein the alcohol phase comprises at least one high HLB gelling agent (emulsifier; see PTO-892 NPL 2U). Dahms et al. disclose a composition comprising a hydrophobic emulsifier A having high HLB values (see page 3, lines 27-30 and abstract).
Regarding instant claim 6, Dahms et al. teach the system of instant claim 1, and further discloses wherein the base formulation, a lipid phase, an aqueous phase, and an alcohol phase are first each independently formulated followed by: combining the lipid phase and base to form a first reaction mixture [combining oil phase with a hydrophobic emulsifier A (first reaction mixture); see claim 15], combining the aqueous phase and alcohol phase to form a second reaction mixture [combining water phase with a hydrophilic emulsifier B, wherein water phase comprises water and alcohol (second reaction mixture); see claim 15], combining the first and second rection mixtures to obtain the system (combining the two phases at optimal temperatures; see claim 15; see page 16, lines 33-38 and page 17, lines 1-17; and page 2, lines 20-24).
Regarding instant claim 11, Dahms et al. teach a method of applying skin beneficial agents to an epidermal layer of skin [Dahms et al. disclose moisturizing, cream, or lotions that penetrates the epidermis, or sunscreen compositions providing a barrier (see page 17, lines 25-30; see Examples 1-17; also see page 1, lines 1-24)], the method comprising: providing a system that is comprised of a base formulation, a lipid phase, an aqueous phase, and an alcohol phases that are co-solubilizable with each other and the base formulation [(combining the two phases at optimal temperatures; see claim 15; see page 16, lines 33-38 and page 17, lines 1-17; and page 2, lines 20-24)]. at least one active ingredient soluble in the lipid phase, the aqueous phase, or the alcohol phase [composition comprising active ingredients such as vitamins, proteins, light stabilizers, stabilizers, antioxidants, preservatives, alcohol, water, salts, proteolytically or keratolytically active substances (soluble in the lipid phase, the aqueous phase, or the alcohol phase); see page 17 lines 10-24)] applying the system to an epidermal surface [topically applying skin care compositions; see page 17, lines 25-30)], wherein the system has the characteristic of optimized bioavailability of the active and releases the active uniformly upon the application of the system to the epidermal layer of skin [Dahms et al. disclose wherein the lipid phase (oil), aqueous phase, and alcohol phase are combined in a sequential specific manner to optimize the bioavailability of the active and release the active uniformly upon application of the system to an epidermal layer of skin (combining oil phase with hydrophobic emulsifier A, combining water and alcohol phase with hydrophilic emulsifier B, and combining the two phases at optimal temperatures forming stable multiple emulsions applied topically (optimized bioavailability of the active and releases the active uniformly upon the application) as a moisturizing, cream, lotion, or sunscreen skin care compositions; see claims 1-15, also see page 17, lines 25-30)].
Claims 1-3, 6, and 11 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Elliott et al. (US2016/0081895A1).
Elliott et al. teach novel formulations (see title). Additionally, Elliott et al. disclose that the invention provides for a topical o/w emulsion having moisturizing, and protecting, repairing or restoring the skin lipid barrier of the lips of a mammal, and is a topical oil-in-water emulsion composition comprising:
(a) a discontinuous oil phase;
(b) a continuous aqueous phase comprising water and glycerin,
wherein glycerin is present in an amount greater than about 12% w/w;
(c) a thickening agent; and
(d) at least one lamellar membrane structure; and wherein the composition is a lip protectant composition (see abstract).
Regarding instant claim 1, Elliott et al. teach a system for application of an active ingredient to a skin surface. The necessary citations of Elliott et al. that pertain to instant claim 1 are presented in Table I.
Table II
Instant Claim 1
Elliott et al. Citations
A system for application of an active ingredient to a skin surface, the system comprising:
Ellioitt et al. disclose a system for application of an active ingredient to a skin surface, the system comprising (see title and abstract).
a base formulation of at least two phases and in addition, a lipid phase, an aqueous phase, and an alcohol phases that are co-solubilizable with each other and the base formulation, at least one active ingredient soluble in the lipid phase, the aqueous phase, or the alcohol phase,
Ellioitt et al. disclose a base formulation of at least two phases [lip care composition comprising an oil phase and an aqueous phase based on glycerin (base formulation of two phases), active ingredients and agents; see paragraphs [0211]-[0216]; claim 1] and in addition, a lipid phase, an aqueous phase, and an alcohol phases that are co-solubilizable with each other and the base formulation (combining aqueous phase comprising 12-90 wt.% of glycerin base, water, water-soluble compounds, and 1-20 wt.% of alcohol, with the oil phase comprising 5-70 wt% of oil base and oil-soluble compounds (see paragraphs [0090], [0102]-[0107]), at least one active ingredient soluble in the lipid phase, the aqueous phase, or the alcohol phase (composition comprising UV filter active ingredient soluble in the lipid phase; see paragraph [0392]), wherein the lipid phase, aqueous phase, and alcohol phase are combined in a sequential specific manner (the oil phase, aqueous phase, and alcohol are combined in sequential steps; see paragraph [0361])
wherein the lipid phase, aqueous phase, and alcohol phase are combined in a sequential specific manner to optimize the bioavailability of the active and release the active uniformly upon application of the system to an epidermal layer of skin.
Elliott et al. disclose to optimize the bioavailability of the active and release the active uniformly upon application of the system to an epidermal layer of skin (topical composition applied to the skin of the lips comprises UV filter well-mixed in the oil phase providing optimal sun protection, and characterized by an enhanced effectiveness resulting from an improved solubility profile of the pharmaceutically active agent (optimized bioavailability of the active and releases the active uniformly); see paragraphs [0010], [0201], [0308], [0392]-[0393]).
Regarding instant claim 2, Elliiott et al. teach the system of instant claim 1, and further discloses wherein the active penetrates the epidermis of the skin or remains over the skin providing a barrier. Elliott et al. disclose the composition provides moisturizing and protection barrier when applied to the skin of the lips (see paragraphs [0010], [0308]-[0310]).
Regarding instant claim 3, Elliott et al. teach the system of instant claim 1, and further discloses wherein the active is an antiseptic, a germicide, an acne treating agent, an anesthetic, and anti-infective, and anti-rosacea agent, an antibiotic, an antifungal, an antihistamine, an antineoplastic, and anti-psoriatic, an antiviral, an astringent, a debriding agent, a depigmenting agent, an emollient, a keratolytic, an anti-inflammatory, a non-steroidal anti-inflammatory, a photochemotherapeutic, a rubefacient, a steroid or a combination thereof. Elliott et al. disclose a pharmaceutically active ingredient comprising anti-inflammatory agent, an antibacterial agent, an antiviral agent, an antioxidant, a sunscreen and a sun-blocking agent, and mixtures thereof; see paragraph [0200]).
Regarding instant claim 6, Elliott et al. teach the system of instant claim 1, and further discloses wherein the base formulation, a lipid phase, an aqueous phase, and an alcohol phase are first each independently formulated (using individual chemicals such as oils, glycerol, water, alcohol; see paragraph [0337]) followed by: combining the lipid phase and base to form a first reaction mixture (forming an oil phase comprising 5-70 wt% of oil base and oil-soluble compounds; see paragraphs [0089]-[0102]), combining the aqueous phase and alcohol phase to form a second reaction mixture system (combining alcohol and water phase into aqueous phase; see paragraphs [0106]-[0107]); combining the first and second rection mixtures to obtain the system (combining oil and aqueous phases to form the composition; see paragraph [0361]).
Regarding instant claim 11, Elliott et al. teach a method of applying skin beneficial agents to an epidermal layer of skin (moisturizing or sunscreen compositions applied to the skin of the lips; see paragraphs [0010], [0308]-[0309]), the method comprising: providing a system that is comprised of a base formulation, a lipid phase, an aqueous phase, and an alcohol phases that are co-solubilizable with each other and the base formulation (combining aqueous phase comprising 12-90 wt.% of glycerin base, water, water-soluble compounds, and 1-20 wt.% of alcohol, with the oil phase comprising 5-70 wt% of oil base and oil-soluble compounds (see paragraphs [0090], [0102]-[0107]), at least one active ingredient soluble in the lipid phase, the aqueous phase, or the alcohol phase (composition comprising UV filter active ingredient soluble in the lipid phase; see paragraph [0392]), applying the system to an epidermal surface, wherein the system has the characteristic of optimized bioavailability of the active and releases the active uniformly upon the application of the system to the epidermal layer of skin (topical composition applied to the skin of the lips comprises UV filter well-mixed in the oil phase providing optimal sun protection, and characterized by an enhanced effectiveness resulting from an improved solubility profile of the pharmaceutically active agent (optimized bioavailability of the active and releases the active uniformly); see paragraphs [0010], [0201], [0308], [0392]-[0393]).
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 non-obviousness.
Claims 1 and 7-10 are rejected under 35 U.S.C. 103 as being unpatentable over Dahms et al. in view of Elliott et al., Mendoza (US2016/0008263A1), Steinfleld et al. (WO2012/059158A1), Novoseletsky (Cosmetics & Toiletries, 2017), Duo et al. (CN111329808A), and Lin (109260038A).
[The Examiner is going to introduce each new reference and then combine them where appropriate to reject the instant claims.]
1. Mendoza
Mendoza teaches cosmetic compositions (see title). Furthermore, Mendoza discloses that described herein are lipstick compositions that are substantive,
aesthetically appealing, do not pool on the lips, are easy to spread, and moisturize the lips. The compositions comprise cosmetic ingredients such as conditioning agents, moisturizing agents, antioxidants, structuring agents, emulsifiers, silicone
containing compounds, essential oils, thickening agents, preservatives, and colorants, for example (see abstract).
2. Steinfled et al.
Streinfled et al. teach composition and drug containing omega-3 fatty acids, and a modulator (see title). In addition, Steinfled et al. disclose that the invention relates to a composition, which contains at least one fatty acid and at least one inhibitor of the NF-KB transcription factor. Said composition is suitable as a drug or pharmaceutical basis formulation, in particular for preventing or treating inflammation. Preferably, the drug is suitable for topical application or inhalation for the fields of ophthalmology and ear, nose and throat (ENT) and for the areas of the mouth and the pharynx and the area of the lungs for prevention and therapy (see abstract).
3. Novoseletsky
Novoseletsky teaches seeing double: Alban Muller launches moisturizing actives (see title). Additionally, Novoseletsky discloses that consumer demand for natural ingredients in personal care continues to rise—as a reponse, Alban Muller launched its Amiporine ER (INCI: Glycerin (and) Punica Granatum Fruit Extract) and Padinami (INCI: Simmondsia Chinensis (Jojoba) Seed Oil (and) Padina Pavonica Thallus Extract) (see abstract).
4. Duo et al.
Duo et al. teach cosmetic compositions with anti-glycosylation and anti-aging effects and application thereof (see title). Also, Duo et al. disclose that the invention provides a cosmetic composition with the anti-glycosylation and anti-aging effects and an application thereof, and belongs to the technical field of functional compositions. The cosmetic composition comprises 0.5-4 parts of vitamin C, 0.5-4 parts of SOD-containing yeast powder, 0.2-5 parts of haematococcus pluvialis, 0.5-10 parts of rooibos tea, 0.5-8 parts of licorice extract, 0.1-6 parts of waxberry extract, 0.5-8 parts of longan fruit shell extract, 0.1-8 parts of burdock polyphenol, 0.5-8 parts of cinnamon extract, 0.1-5 parts of kudzu root extract, 1-10 parts of purslane extract, 2-40 parts of carbohydrates, 2-30 parts of proteins and 0.5-5 parts of lipids. The cosmetic composition can achieve the melanogenesis-blocking and full-whitening effects, and the comprehensive anti-aging and whitening effects are achieved by a basic prescription (see abstract).
5. Lin
Lin teaches hair-growing, hair-fixing and hair-care nutrient solution and preparation process thereof (see title). In addition, Lin discloses that the invention discloses a hair growth, hair fixation and hair care nutrient solution, the composition and mass fraction of which are as follows: SD ethanol 40-B 9-15 parts, butanediol 5-10 parts, azelaic diglycine potassium 3-8 parts, purslane extract 5-7 parts, camphor 4-9 parts, zinc sulfate 3-10 parts, pyridoxine hydrochloride 2-6 parts, panthenol 5-7 parts, sawn leaf palm fruit extract 4-8 parts, glycerin 6-9 parts, nicotinamide 4-8 parts, allantoin 6-9 parts, biotin 3-10 parts, PEG-60 hydrogenate castor oil 7-9 parts, hydrolyzed yeast protein 3-8 parts, polysorbate-20 2-6 parts, phenoxyethanol 6-10 parts, menthol 1-5 parts, hydroxybenzyl methyl ester 1-3 parts, folium Camelliae sinensis extract 8-13 parts, root extract of Glycyrrhiza glabra 11-13 parts, propolis extract 9-14 parts, azelaic diglycine potassium 7-5 parts, tripeptide-1 copper 5-8 parts, tocopherol acetate 1-3 parts, water 80-100 parts. The hair growth, hair fixation and hair care nutrient solution provided by the invention has excellent hair care effect, in particular, obvious effect on damaged hair quality, can effectively improve damaged hair quality, and can keep the hair soft and elastic (see abstract).
The teachings of Dahms et al. and Elliott et al. are described in full within the 35 U.S.C. §102 Section.
Combination of Dahms et al., Elliott et al., and Mendoza
Regarding instant claim 7, Dahms et al., Elliott et al., and Mendoza teach the system of instant claim 1, and further discloses wherein the base formulation further comprises two phases, phase A and phase B (forming an aqueous phase 1 and an oil phase 2; see paragraphs [0339]-[0350]; claim 1 within Elliott et al.), wherein phase A comprises safflower oil, di-alpha-tocopheryl acetate, shea butter, hydrogenated lecithin, squalene [oil phase comprising tocopheryl acetate (synonymous with di-alpha-tocopheryl acetate], vegetable oil, such as safflower oil, shea butter, hydrogenated lecithin, squalene; see paragraphs [0100], [0179], and [0286] within Elliott et al., and polyethylene glyceryl laurate (oil phase comprising PEG-12 glyceryl laurate; see paragraph [0096] within Elliott et al.), and wherein phase B comprises glycerin (aqueous phase comprising glycerol; see claim 1 within Elliott et al.), and wherein the base formulation is formed by heating phase A and phase B, and adding phase B to phase A while mixing (phase 1 and phase 2 are first heated to 80 °C, phase 2 then slowly added to Phase 1 while the temperature was maintained at 80 °C and the mixture is continuously stirred; see paragraph [0361]). Elliott et al. does not disclose oligopeptides, glyceryl behenate, laureth-4. and polyethylene glyceryl behenate.
However, Mendoza discloses oligopeptides, glyceryl behenate (conditioning agents comprising hyaluronic acid (oligopeptides), glyceryl behenate/eicosadioate, shea butter, safflower oil, PEG-18 glyceryl oleate/cocoate; see paragraph [0099] within Mendoza), laureth-7 (laureth-7; see paragraph [0092] within Mendoza). It would have been obvious to one of ordinary skill in the art, at the time the invention was made, to have modified the system, as previously disclosed by within Elliott et al., in order to have provided for oligopeptides, glyceryl behenate, as disclosed by Mendoza, so as use conditioning agents such as hyaluronic acid and glyceryl behenate to improve texture and feel of the dermatological or cosmetic composition. Dahms et al. discloses laureth-4 (emulsifiers A and B include laureth-4; see page 9, line 18 within Dahms et al.), glyceryl behenate and polyethylene behenate (hydrophilic emulsifiers B comprising glyceryl ethers, in particular fatty alcohol ethers having alkyl chain C15-C25 (glyceryl behenate, C21), and polyoxyethylene fatty alcohol ethers having alkyl chain C10-C30 (polyethylene behenate, C21); see claims 4-7 within Dahms et al.). It would have been obvious to one of ordinary skill in the art, at the time the invention was made, to have modified the system, as previously disclosed by Elliott et al., in order to have provided for laureth-4, as disclosed by Dahms et al., so as use well-known surfactant and emulsifier, such as laureth-4, to improve consistency of the topical composition. Where Elliott et al. discloses behenic acid and polyethylene glyceryl laurate (see paragraphs [0091], [0096] within Elliott et al.), and where Dahms et al. discloses glyceryl behenate and polyethylene behenate (see claims 4-6 within Dahms et al.), the modification of providing for polyethylene glyceryl behenate would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, provided the previous disclosures of Elliott et al. and Dahms et al. for the benefit of using polyethylene glyceryl ether of a behenic fatty acid with emollient properties.
Combination of Elliott et al., Steinfold et al., and Novoseletsky
Regarding instant claim 8, Elliott et al., Steinfold et al., and Novoseletsky teach the system of instant claim 1, and further discloses wherein the lipid phase comprises a chamomile sauvage, a lavender oil, a rose oil (essential oils include primrose oil, rose oil, chamomile oil, lavender oil, and mixtures thereof; paragraph [0132] within Elliott et al.). Elliott et al. does not disclose vitamin A, a Coenzyme Q10, BVOSC.
However, Steinfold et al. disclose a vitamin A, a Coenzyme Q10, BVOSC, a rosemary oil (composition comprising lipophilic components such as coenzyme Q10, Vitamin A, Vitamin C (oil soluble Vitamin C or BVOSC), rosemary oil; abstract; see paragraphs [0042], [0104], [0154] and claim 1 within Steinfold et al.). It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified the system, as previously disclosed by Elliott et al., in order to have provided for a vitamin A, a Coenzyme 010, BVOSC, a rosemary oil, as disclosed by Steinfold et al., so as to obtain a formulation comprising a mixture of oils, vitamins to prophylactically or therapeutically prevent inflammation, moisturize, nourish or protect epithelia (see paragraphs [0042]-[0045] within Steinfold et al.). Novoseletsky discloses a padinami solution (composition comprising Padinami purified brown seaweed extract; first page, first page, third paragraphs within Novoseletsky). It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified the system, as previously disclosed by Elliott et al., in order to have provided for a padinami solution, as disclosed by Novoseletsky, so as to use a purified brown seaweed extract as an active cosmetic ingredient to improve skin quality (see first page, third paragraph within Novoseletsky).
Combination of Dahms et al., Elliott et al., and Duo et al.
Regarding instant claim 9, Dahms et al., Elliott et al., and Duo et al. teach the system of instant claim 1, and further discloses wherein the aqueous phase comprises a green tea extract (water-miscible antioxidant such as green tea extract; see paragraphs [0107] and [0179] within Elliott et al.). Elliott et al. does not disclose an anti-aging, a fermentation process product, chamomile extract, a pomegranate extract, a White Tea extract, and a superoxide dismutase.
However, Duo et al. disclose chamomile extract (chamomile extract; see paragraph [0089] within Duo et al., an anti-aging, a pomegranate extract, a While Tea extract (white tea extract, pomegranate extract, acai berry extract, ginkgo biloba extract, schisandra chinensis (known anti-aging); see claim 3; paragraph [0013] within Duo et al.), a fermentation process product. and a superoxide dismutase (superoxide dismutase SOD yeast powder, yeast fermentation lysate filtrate; see claim 9; paragraphs [0027] and [0086] within Duo et al.). It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified the system, as previously disclosed by Elliott et al., in order to have provided for an anti-aging, a fermentation process product, chamomile extract, a pomegranate extract, a White Tea extract, and a superoxide dismutase, as disclosed by Duo et al., so as to obtain a formulation comprising a mixture of water-soluble plant and fruit extracts, and fermentation products that have natural anti-oxidant and anti-aging properties to protect skin from damage, improve skin elasticity and appearance (see paragraphs [0103] and [0160]-[0166] within Duo et al.).
Combination of Dahms et al., Elliott et al., and Lin
Regarding instant claim 10, Dahms et al., Elliott et al., and Lin teach the system of instant claim 1, and further discloses wherein the alcohol phase comprises niacin amide (water-miscible antioxidant such as niacinamide; paragraphs [0107], [0179]) and panthenol (panthenol; paragraph [0191] all within Elliott et al.). Elliiott et al. does not disclose SDA 40-B, and Panthenol.
However, Lin discloses SDA 40-B, and Panthenol (composition comprising 9-15 parts of SD ethanol 40-B, 5-7 parts of panthenol; abstract; paragraph [0008] within Lin). It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified the system, as previously disclosed by Elliott et al., in order to have provided for SDA 40-B, and Panthenol, as disclosed by Nanjing, so as to obtain a solution of panthenol in a specially denatured ethanol that could be used in a personal care compositions (see paragraph [0042] within Lin).
Analogous Art
The Dahms et al., Elliott et al., Mendoza, Steinfleld et al., Novoseletsky, Duo et al., and Lin references are directed to the same field of endeavor as the instant claims, that is, a system for application of an active ingredient to a skin surface, the system comprising: a base formulation of at least two phases and in addition, a lipid phase, an aqueous phase, and an alcohol phases that are co-solubilizable with each other and the base formulation, at least one active ingredient soluble in the lipid phase, the aqueous phase, or the alcohol phase, wherein the lipid phase, aqueous phase, and alcohol phase are combined in a sequential specific manner to optimize the bioavailability of the active and release the active uniformly upon application of the system to an epidermal layer of skin.
Obviousness
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the cosmetic emulsion disclosed by Dahms et al., using the teachings of Elliott et al., Mendoza, Steinfleld et al., Novoseletsky, Duo et al., and Lin to incorporate the necessary claim limitations.
The motivation to combine the Dahms et al., Elliott et al., Mendoza, Steinfleld et al., Novoseletsky, Duo et al., and Lin references relies on the fact that they all have considerable overlap for the preparation of a cosmetic emulsion. In this instance, Dahms et al. and Elliott et al. both teach all the elements of instant claim 1 for a cosmetic emulsion. Furthermore, Mendoza, Novoseletsky, and Duo et al. support the primary references within the cosmetic arts. Finally, Steinfeld et al. and Lin both begin the encompass both pharmaceutical and cosmetic agents. All of the references are therefore, analogous art and would be combined by a skilled artisan (POSITA; person having ordinary skill in the art).
Starting with Dahms et al., the skilled person only had to try the necessary claim limitations disclosed by Elliott et al., Mendoza, Steinfleld et al., Novoseletsky, Duo et al., and Lin. The combination of Dahms et al., Elliott et al., Mendoza, Steinfleld et al., Novoseletsky, Duo et al., and Lin would allow one to arrive at the present application without employing inventive skill. This combination of the cosmetic emulsion taught by Dahms et al. along with the use of the necessary claim limitations taught by Elliott et al., Mendoza, Steinfleld et al., Novoseletsky, Duo et al., and Lin would allow a research and development scientist (POSITA) to develop the invention taught in the instant application.
It would have only required routine experimentation to modify the cosmetic emulsion disclosed by Dahms et al. with the use of the necessary claim limitations taught by Elliott et al., Mendoza, Steinfleld et al., Novoseletsky, Duo et al., and Lin. This combined modification would have led to an enhanced cosmetic emulsion for skincare that would be beneficial for consumers and patients.
Conclusion
No claims are allowed.
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/JOHN W LIPPERT III/Examiner, Art Unit 1615
/Robert A Wax/Supervisory Patent Examiner, Art Unit 1615