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 .
Formal Matters
This office action is issued in response to the claim set filed on 14 March 2024. Claims 1-10 are pending. Claims 1-10 are under consideration in the instant office action.
Priority
Acknowledgment is made of applicant’s claim for foreign priority under 35 U.S.C. 119 (a)-(d). Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Information Disclosure Statement
The information disclosure statement (IDSs) submitted on 02 January 2026, 30 October 2025, 30 April 2024, and 14 March 2024 are noted and the submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the examiner has considered the information disclosure statement. Signed copies are attached herein.
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.
Claim(s) 1-10 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Dan et al. (US 2014/0363520, IDS reference 03/14/24).
Applicant claims in claim 1 an anti-aging agent comprising K₁₁H[(VO)₃(SbW9O₃₃)₂] and/or Na₉[SbW₉O₃₃]. Instant claims 2-7 recite intended effects of the antiaging agent. Claims 8-10 recite cosmetic product containing the anti-aging agent of claim 1 in the form of a wet towel and a hygiene product.
Dan et al. disclose a substrate contains a composition including VOSO4, K11H[(VO)3(SbW9O33)2], Na9[SbW9O33], oxacillin and 5-chloro-2-(2,4-dichlorophenoxy)phenol (see abstract). Dan et al. disclose a wet hand towel, having a substrate containing a composition comprising VOSO4, K11H[(VO)3 (SbW9O33)2], Na9[SbW9O33], oxacillin and 5-chloro-2-(2,4-dichlorophenoxy)phenol (see claim 1). Dan et al. disclose here, the MPM composition is formulated from VOSO4, K11H[(VO)3(SbW9O33)2], Na9[SbW9O33], oxacillin and irgasan (systematic name: 5-chloro-2-(2,4-dichlorophenoxy)phenol) at a predetermined ratio. Here, the compounding ratio of these compounds is not particularly limited, but in the MPM composition are included VOSO4 of preferably 0.1 to 20 mol, more preferably 4 to 8 mol, Na9[SbW9O33] of preferably 0.1 to 30 mol, more preferably 10 to 20 mol, oxacillin of preferably 0.1 to 30 mol, more preferably 5 to 15 mol, and irgasan of preferably 1 mol or less, more preferably 0.2 mol or less, with respect to [(VO)3(SbW9O33)2] of 1 mol (see paragraph 0023). Dan et al. further disclose that also, in each of the above-mentioned embodiments, the wet hand towel is allowed to contain the MPM composition, but soap such as hand soap, or a sanitary product such as a mask and cotton swab may be allowed to contain the MPM composition. In addition, detergents such as for residence, kitchen and cloth, which are for use in a lavatory, bath, kitchen, tableware, cloth or the like, may be allowed to contain the MPM composition. Moreover, a cosmetic product such as lotion or emulsion may be allowed to contain the MPM composition. Furthermore, a filter for exhaust of a car may be allowed to contain the MPM composition, and a filter of an air-conditioner may be allowed to contain the MPM composition (see paragraph 0054). The examiner noted that Applicant uses the transitional phrase “comprising” in claim 1. The inclusion of other agents is not excluded by the claim language. The transitional term "comprising", which is synonymous with "including," "containing," or "characterized by," is inclusive or open-ended and does not exclude additional, unrecited elements or method steps. See, e.g., Mars Inc. v. H.J. Heinz Co., 377 F.3d 1369, 1376, 71 USPQ2d 1837, 1843 (Fed. Cir. 2004).
Instant claim 2 recites “The anti-aging agent according to claim 1, wherein the anti-aging agent has an anti-glycation action.” Instant claim 3 recites “The anti-aging agent according to claim 2, which accelerates expression of at least one of FEEL-1, FEEL-2, CD36, AGE-R1, and AGE-R3.” Instant claim 4 recites “The anti-aging agent according to claim 2, which accelerates expression of at least one of Hsp104, gp96, Hsp90, Hsp70, Hsp60, and Hsp32.” Instant claim 5 recites “The anti-aging agent according to claim 1, wherein the anti-aging
agent has an anti-oxidative stress action.” Instant claim 6 recites “The anti-aging agent according to claim 1, wherein the anti-aging agent has a skin moisturizing effect. Instant claim 7 recites “The anti-aging agent according to claim 6, wherein the anti-aging agent has the skin moisturizing effect by at least one of expression of AQP-1, expression of AQP-3, secretion of hyaluronic acid, and generation of Elastin.”
With regard to the limitations of claims 2-7, the claims are drawn to the properties of the anti-aging agent or the effects of the anti-aging agent. It should be noticed that Applicant is claiming a product not a method of use. Dan et al. disclose an identical composition as described above. Therefore, the properties of the anti-aging agent or the effects of the anti-aging agent up on use are inherent properties of the composition. Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). "Products of identical chemical composition cannot have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. Id. (Applicant argued that the claimed composition was a pressure sensitive adhesive containing a tacky polymer while the product of the reference was hard and abrasion resistant. "The Board correctly found that the virtual identity of monomers and procedures sufficed to support a prima facie case of unpatentability of Spada’s polymer latexes for lack of novelty."). Furthermore, "[T]he discovery of a previously unappreciated property of a prior art composition, or of a scientific explanation for the prior art’s functioning, does not render the old composition patentably new to the discoverer." Atlas Powder Co. v. IRECO Inc., 190 F.3d 1342, 1347, 51 USPQ2d 1943, 1947 (Fed. Cir. 1999). Thus the claiming of a new use, new function or unknown property which is inherently present in the prior art does not necessarily make the claim patentable. In re Best, 562 F.2d 1252, 1254, 195 USPQ 430, 433 (CCPA 1977). In In re Crish, 393 F.3d 1253, 1258, 73 USPQ2d 1364, 1368 (Fed. Cir. 2004), the court held that the claimed promoter sequence obtained by sequencing a prior art plasmid that was not previously sequenced was anticipated by the prior art plasmid which necessarily possessed the same DNA sequence as the claimed oligonucleotides. The court stated that "just as the discovery of properties of a known material does not make it novel, the identification and characterization of a prior art material also does not make it novel." Id. See also MPEP § 2112.01 with regard to inherency and product-by-process claims and MPEP § 2141.02 with regard to inherency and rejections under 35 U.S.C. 103. With regard to the recitation in the preamble “An anti-aging agent”, a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim.
Claim(s) 1-10 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Dan et al. (JPWO2019230210, published on June 11, 2020, machine English translation attached, newly cited).
Applicant claims in claim 1 an anti-aging agent comprising K₁₁H[(VO)₃(SbW9O₃₃)₂] and/or Na₉[SbW₉O₃₃]. Instant claims 2-7 recite intended effects of the antiaging agent. Claims 8-10 recite cosmetic product containing the anti-aging agent of claim 1 in the form of a wet towel and a hygiene product.
Dan et al. disclose antibacterial/antivirus composition containing at least one of VOSO4, K11H[(VO)3(SbW9O33)2], Na9[SbW9O33], and polyhexamethylene biguanide or a salt thereof (see claim 1). An aqueous solution containing the antibacterial/antiviral composition according to claim 1(see claim 2). In addition, the antibacterial / antiviral composition of the present invention or the aqueous solution containing this composition may be contained in known hand towels such as paper towels, nonwoven towels and cloth towels, or in cosmetics such as lotions and emulsions. You may make it contain. Moreover, you may make it contain in soaps, such as hand soap, and may make it contain in sanitary goods, such as a mask and a cotton swab. Furthermore, you may make it contain in the detergent for dwellings used for a toilet, a bathtub, a kitchen, tableware, clothes, a detergent for kitchens, a detergent for clothes, etc. Further, the antibacterial / antiviral composition of the present invention may be contained in an automobile exhaust filter, or the antibacterial / antiviral composition of the present invention or an aqueous solution containing the composition may be contained in an air conditioner filter (see descriptions section). Next, the case where the antibacterial / antiviral composition and the aqueous solution of the present invention are applied to a towel will be described. When the antibacterial / antiviral composition and the aqueous solution of the present invention are applied to a wet towel, for example, the antibacterial / antiviral composition or the aqueous solution of the present invention can be contained in a wet towel substrate. Here, a towel, a nonwoven fabric, paper, etc. can be used as a base material for a wet towel. Cotton or the like is used as the towel material. Moreover, it can be made into a hand towel by including a predetermined amount or more of water in the base material (see descriptions section).
The examiner noted that Applicant uses the transitional phrase “comprising” in claim 1. The inclusion of other agents is not excluded by the claim language. The transitional term "comprising", which is synonymous with "including," "containing," or "characterized by," is inclusive or open-ended and does not exclude additional, unrecited elements or method steps. See, e.g., Mars Inc. v. H.J. Heinz Co., 377 F.3d 1369, 1376, 71 USPQ2d 1837, 1843 (Fed. Cir. 2004).
Instant claim 2 recites “The anti-aging agent according to claim 1, wherein the anti-aging agent has an anti-glycation action.” Instant claim 3 recites “The anti-aging agent according to claim 2, which accelerates expression of at least one of FEEL-1, FEEL-2, CD36, AGE-R1, and AGE-R3.” Instant claim 4 recites “The anti-aging agent according to claim 2, which accelerates expression of at least one of Hsp104, gp96, Hsp90, Hsp70, Hsp60, and Hsp32.” Instant claim 5 recites “The anti-aging agent according to claim 1, wherein the anti-aging
agent has an anti-oxidative stress action.” Instant claim 6 recites “The anti-aging agent according to claim 1, wherein the anti-aging agent has a skin moisturizing effect. Instant claim 7 recites “The anti-aging agent according to claim 6, wherein the anti-aging agent has the skin moisturizing effect by at least one of expression of AQP-1, expression of AQP-3, secretion of hyaluronic acid, and generation of Elastin.”
With regard to the limitations of claims 2-7, the claims are drawn to the properties of the anti-aging agent or the effects of the anti-aging agent. It should be noticed that Applicant is claiming a product not a method of use. Dan et al. disclose an identical composition as described above. Therefore, the properties of the anti-aging agent or the effects of the anti-aging agent up on use are inherent properties of the composition. Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). "Products of identical chemical composition cannot have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. Id. (Applicant argued that the claimed composition was a pressure sensitive adhesive containing a tacky polymer while the product of the reference was hard and abrasion resistant. "The Board correctly found that the virtual identity of monomers and procedures sufficed to support a prima facie case of unpatentability of Spada’s polymer latexes for lack of novelty."). Furthermore, "[T]he discovery of a previously unappreciated property of a prior art composition, or of a scientific explanation for the prior art’s functioning, does not render the old composition patentably new to the discoverer." Atlas Powder Co. v. IRECO Inc., 190 F.3d 1342, 1347, 51 USPQ2d 1943, 1947 (Fed. Cir. 1999). Thus the claiming of a new use, new function or unknown property which is inherently present in the prior art does not necessarily make the claim patentable. In re Best, 562 F.2d 1252, 1254, 195 USPQ 430, 433 (CCPA 1977). In In re Crish, 393 F.3d 1253, 1258, 73 USPQ2d 1364, 1368 (Fed. Cir. 2004), the court held that the claimed promoter sequence obtained by sequencing a prior art plasmid that was not previously sequenced was anticipated by the prior art plasmid which necessarily possessed the same DNA sequence as the claimed oligonucleotides. The court stated that "just as the discovery of properties of a known material does not make it novel, the identification and characterization of a prior art material also does not make it novel." Id. See also MPEP § 2112.01 with regard to inherency and product-by-process claims and MPEP § 2141.02 with regard to inherency and rejections under 35 U.S.C. 103. With regard to the recitation in the preamble “An anti-aging agent”, a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim.
Conclusion
No claim is allowed.
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/TIGABU KASSA/Primary Examiner, Art Unit 1619