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 .
Status of claim
Claims 1-22 are pending and under examination in this office action.
Information Disclosure Statement
Receipt is acknowledged of the Information Disclosure Statement filed 3/28/24. The Examiner has considered the references cited therein to the extent that each is a proper citation. Please see the attached USPTO Form 1449.
Claim Rejections - 35 USC § 103
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) 1-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Zickerman (WO 2019/157181 or US 20200397674) in view of Cornell et al. (US 20200352174) and Schlossman et al. (US 2019/0183767) and further in view of Xu et al. (WO 2021/102873) and Groom et al. (US 2021/0059924), Mulcahy et al. (US 2021/0137825) and Wolf (US 2019/0021961) and as evidenced by Maderazzo (US 2012/0321684)
Zickerman teaches with regards to instant claims 1 and 20, sunscreen composition comprising non-nano zinc oxide (see abstract, para 0007) thickener, dispersing agent, emulsifier, emollient, antioxidant, (see abstract) wherein the amount of non-nano zinc oxide is equal to 30% (see para 0010-0011), thickener ie.,xanthan from 0.05-0.15wt% (see 0018), dispersing agent ie., isostearic acid, polyglyceryl-2 dipolyhydroxystearate from about 1 wt.% to about 3 wt.% (see 0056), emulsifier ie., glyceryl caprylate from 5 wt %-10% (see 0024, 0057), emollient ie., jojoba oil from 0.5wt% to 40% (see 0009; 0058), antioxidant ie., tocopherol mixture from 0.5 wt. % to less than or equal to about 3 wt. % (see 0009, 0017). With regards to instant claim 2, Zickerman also teaches the composition further comprising humectant from 0.5-5% (see 0009, 0054) and includes glycerin, red raspberry (see same 0054), caprylic /capric triglyceride from 0.5-40 wt% (see 0024,0058, as required by instant claim 3), titanium dioxide from 5 wt% to 12% (as required by instant claim 7, see 0025), Jojoba esters (see 0024, 0058 as required by instant claim 9), C15-C19 from 0.5-40 wt% (as required by instant claim 10, see 0009, 0058), odorant from 0.01-2 wt% (see 0009, 0063, as required by instant claim 19).
However Zickerman fails to teach the sunscreen composition comprises lactobacillus ferment and Coco Nuifera and its concentration.
Cornell teaches a sunscreen composition (see 0076) comprising lactobacillus at 1% and Coco Nucifera at 1% (see abstract, as required by claim 1 in part)
Schlossman teaches a sunscreen composition comprising non-nano zinc oxide (see abstract), xanthan gum (Table I), emulsifier (see 0059), antioxidant (see 0060) silica (see 0029, as required by instant claim 4), iron oxide (see 0052, as required in part by instant claim 5 and as evidenced by Maderazzo Iron oxide is CL 77491, see Table I) and hectorite (see Table 1 as required by instant claim 18). Because all these agent are taught in a sunscreen the amounts can be easily be determined by the skilled artisan through experimentation the workable range hence the reference, makes it obvious to do so and as stated MPEP 2143 states "when there is motivation to solve a problem and there are a finite number of identified, predictable solutions, a person of ordinary skill has good reason to pursue the known options within his or her technical grasp. If this leads to anticipated success, it is likely the product not of innovation but of ordinary skill and common sense" Therefore the skilled artisan would have had reason to try these methods with the reasonable expectation that at least one would be successful.
Xu teaches a sun screen composition comprising glycerin (a humectant), caprylol glycerin/Sebacic acid (as required by instant claim 20), xanthan (as required by instant claim 1 (see pg 10, lines 17+).
Groom teaches a cosmetic composition comprising sodium chloride (see table 4ie., a sunscreen composition (see Ex. 15, as required by instnt claimn 17) comprising zinc oxide (see 0310) and glyceryl undecylenate at 0.1 wt % (see Tables 5 and 7, as required by instant claims 13).
Mulcahy teaches a skin care composition comprising Sambucus Nigra fruit extract at 1 wt% (see 0011, as required by instant claim 6), Rubus Idaeus (Raspberry) Seed Oil (see 0042), silica at 1wt% (see 0036), lecithin at 0.01 wt % (see 0023, 0033, as required by instant claim 14), citric acid of at least 0.000001 (see 0064-0065, as required by instant claim 16).
Wolf teaches the incorporation of polyglycery-3-polyricioleate in a sunscreen composition at 2 wt% (see claim 7, para 0019 as required by instant claim 15)
It would have been obvious to one of ordinary skill in the art to have combined the recited prior art to result in the instant claimed invention with a reasonable expectation of success because all of the agents either individually or in combination of more than two of the actives have been known to be used in a sunscreen composition and therefore it would have been obvious to one of ordinary skill in the art to which the claimed subject matter pertains would, of necessity have the capability of understanding the scientific and engineering principles applicable to the pertinent art.” Ex parte Hiyamizu, 10 USPQ2d 1393, 1394 (Bd. Pat. App. & Inter. 1988).
One would have been motivated to combine these references and make the modification because they are drawn to same technical fields (constituted with same ingredients and share common utilities, and pertinent to the problem which applicant concerns about. MPEP 2141.01(a). With regards to the dosage amounts, it is within the purview of the skilled artisan to determine the optimum therapeutic index is well within the level of the ordinary skill in the art, and the artisan would be motivated to determine the optimum amounts to get the maximum effect of the actives in the sunscreen composition, hence the reference makes obvious the instant invention.
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SHIRLEY V GEMBEH whose telephone number is (571)272-8504. The examiner can normally be reached M-F 9am-6pm.
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/SHIRLEY V GEMBEH/Primary Examiner, Art Unit 1615 2/2/26