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 .
Claims
Claim Rejections - 35 USC § 112 - Indefiniteness
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 16-30 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. Claim 16 and 24 recite Indian gooseberry (Phyllanthus emblica) extract and a barley sprout (Hordeum vulgare). It appears the name in parenthesis is the same as the name it follows. Therefore, the recitation in parenthesis appears to be redundant making the claims indefinite.
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.
1) Claims 16, 19-21, 24-25 and 27-30 are rejected under 35 U.S.C. 103 as being unpatentable over Kang et al. (KR 20170076147, already of record) in view of Han et al. (KR 20080087617).
Kang et al. disclose a cosmetic composition comprising Indian gooseberry extract. The composition comprising the Indian gooseberry promotes collagen synthesis of fibroblasts of skin to improve wrinkles, promote elasticity, eliminate free radicals and exhibits antioxidative effects, and removes the stratum corneum outside the skin (Abstract) (meeting the methods of the instant claims). Indian gooseberry fruit contains 20 times more vitamin C than oranges, and it is very stable in heat. Therefore, even if exposed to high temperatures for a long time, vitamins are hardly destroyed like freshly harvested from trees. This durability and heat resistance of vitamin C contained in Indian gooseberry is believed to be derived from the tannins contained in it. It is also known that vitamin C is abundant and has excellent whitening and antioxidant effect. The Indian gooseberry extract comprises 0.01 to 50.0% by weight based on the total weight of the cosmetic composition. If the content of the Indian gooseberry extract is less than 0.01% by weight, the skin improvement effect is insignificant.
Kang et al. differ from the instant claims insofar as they do not disclose barley sprout.
However, Han et al. disclose a beverage product for treatment of atopic dermatitis containing a seed oil plant such as barley sprouts (Abstract). barley sprout, a plant containing a large amount of Super Oxide Dismutase (SOD) among representative antioxidant proteins that removes free radicals that cause arteriosclerosis and various cancers and aging diseases including atopy in the human body. Barley sprouts can accumulate special protein enzymes such as SOD to maintain robust vitality even in severe winter. Barley sprouts contain a large amount of SOD (Super Oxide Dismutase), which removes free radicals. Barley sprouts have become famous since they have been found to correlate with the body's SOD content and longevity. The main culprit of aging is free radicals, and barley sprouts contain SOD, which is thought to have a direct effect on anti-aging and longevity by replacing superoxide, one of the active oxygen in our body, with harmless oxygen. In addition, barley sprouts contain special ingredients such as sodium, potassium, calcium, iron, vitamin A, vitamin B1, vitamin B2, vitamin C, vitamin E, and niacin evenly. The efficacy of barley sprouts is generally known to promote growth hormone distribution in the body to help growth, strengthen immune function, and have a strong antioxidant activity. The barley sprouts may undergo extraction with water or a crushing process (encompassing juicing) (see Examples).
It would have been obvious to one of ordinary skill in the art prior to filing the instant application to have added barley sprout or its extract to the compositions of Kang et al. because it comprises a large amount of SOD, which removes free radicals and leads to anti-aging effects, as disclosed by Han et al.
In regards to the amount of barley sprout extract, the extract has a direct effect on anti-aging and remove free radicals making it a result effective variable. It would have taken no more than the relative skill of one of ordinary skill in the art to have adjusted the amount of barley sprout extract to form a 1:1 ratio with Indian gooseberry motivated by the desire to arrive at the desired therapeutic effect.
In regards to claims 21 and 29, the combination of references would lead to a complex of Indian gooseberry extract and barley sprout extract. Therefore the combination would have DPPH scavenging activity, elastase inhibition activity, MMP-1 inhibition activity and a hyaluronic acid content increasing effect.
2) Claims 16-17, 19-25 and 27-30 are rejected under 35 U.S.C. 103 as being unpatentable over Aitani et al. (JP 2013040117) in view of Han et al. (KR 20080087617).
Aitani et al. disclose food compositions to promote collagen production to maintain collagen content, promote the prevention/improvement of wrinkles and sagging, and are effective for the improvement of various symptoms caused by dissatisfying collagen production. The collagen production promoter contains a solvent extract of a fruit of Indian gooseberry (Phyllanthus emblica or Emblica officinale), and a solvent extract of coffee beans (Abstract). The Indian gooseberry is also known as amla, Phyllanthus emblica or Emblica officinale. Amla may be used in the form of San Amla PD, which is a water extract in the form of a powder. The collagen production promoter of the present invention has excellent collagen production promotion ability. Therefore, the collagen production promoter of the present invention is suitable as a pharmaceutical composition (for example, an external preparation for skin, an internal medicine), a quasi-drug, a cosmetic material (meeting claim 30), and a food composition such as a supplement or a beverage (meeting claim 22).
Aitani et al. differ from the instant claims insofar as they do not disclose barley sprout.
However, Han et al. disclose a beverage product for treatment of atopic dermatitis containing a seed oil plant such as barley sprouts (Abstract). barley sprout, a plant containing a large amount of Super Oxide Dismutase (SOD) among representative antioxidant proteins that removes free radicals that cause arteriosclerosis and various cancers and aging diseases including atopy in the human body. Barley sprouts can accumulate special protein enzymes such as SOD to maintain robust vitality even in severe winter. Barley sprouts contain a large amount of SOD (Super Oxide Dismutase), which removes free radicals. Barley sprouts have become famous since they have been found to correlate with the body's SOD content and longevity. The main culprit of aging is free radicals, and barley sprouts contain SOD, which is thought to have a direct effect on anti-aging and longevity by replacing superoxide, one of the active oxygen in our body, with harmless oxygen. In addition, barley sprouts contain special ingredients such as sodium, potassium, calcium, iron, vitamin A, vitamin B1, vitamin B2, vitamin C, vitamin E, and niacin. The efficacy of barley sprouts is generally known to promote growth hormone distribution in the body to help growth, strengthen immune function, and have a strong antioxidant activity. The barley sprouts may undergo extraction with water or a crushing process (encompassing juicing) (see Examples).
It would have been obvious to one of ordinary skill in the art prior to filing the instant application to have added barley sprout or its extract to the compositions of Aitani et al. because it comprises a large amount of SOD, which removes free radicals and leads to anti-aging effects, as disclosed by Han et al.
In regards to claims 21 and 29, the combination of references would lead to a complex of Indian gooseberry extract and barley sprout extract. Therefore the combination would have DPPH scavenging activity, elastase inhibition activity, MMP-1 inhibition activity and a hyaluronic acid content increasing effect.
In regards to the amount of barley sprout extract, the extract has a direct effect on anti-aging and remove free radicals making it a result effective variable. It would have taken no more than the relative skill of one of ordinary skill in the art to have adjusted the amount of barley sprout extract to form a 1:1 ratio with Indian gooseberry motivated by the desire to arrive at the desired therapeutic effect.
3) Claims 18 and 26 are rejected under 35 U.S.C. 103 as being unpatentable over Aitani et al. (JP 2013040117) in view of Han et al. (KR 20080087617) in further view of Easy Ayurveda Hospital.
Aitani et al. in view of Han et al. is discussed above and differ from the instant claims insofar as it does not disclose Indian gooseberry extract is obtained from by juicing.
Easy Ayurveda Hospital discloses amla juice benefits. The amla juice may be prepared by crushing the fruit and then pressing it to extract the juice. The juice improves the complexion of skin.
Generally, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use. See MPEP 2144.07. It would have been obvious to one of ordinary skill in the art prior to filing the instant application to have used cold press to obtain Indian gooseberry extract because it is a method of art to obtain the extract.
Claims 16-30 are rejected.
No claims allowed.
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/LEZAH ROBERTS/ Primary Examiner, Art Unit 1612