DETAILED ACTION
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 . 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 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.
Election/Restrictions
Applicant’s election without traverse of Group I (claims 1-4) in the reply filed on 25 December 2025 is acknowledged. Claim 5 is withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-4 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
The analysis set forth for evaluating subject matter eligibility under section 101 is discussed in MPEP 2106. Step 1 is to determine if the claim is to a process, machine, manufacture, or a composition of matter. For the instantly recited invention, this is true. The claims are directed to a cosmetic composition comprising exosomes derived from beluga caviar, and thus are directed to a composition of matter. Thus, the analysis continues to step 2A.
Step 2A consists of two prongs. The first prong of step 2A is if the claim recites an abstract idea, a law of nature, or a natural phenomenon. The claims are directed to a natural phenomenon. More specifically, the exosomes derived from beluga caviar. As stated by the instant specification, exosomes are secreted from all cells (paragraph [3]), and thus the exosomes from beluga caviar are products of nature. Thus, the claims are drawn to a natural phenomenon, and the analysis continues to the second prong of step 2A.
The second prong of step 2A is does the claim recite additional elements that integrate the judicial exception into a practical application. The claims are directed to a cosmetic composition comprising exosomes derived from beluga caviar, and there is no elements recited as limitations which integrate the exosomes into a practical application. Thus, as there is nothing else in the claim other than the judicial exception, the analysis continues to step 2B.
Step 2B is does the claim recite additional elements that amount to significantly more than the judicial exception. And the instant claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the only components listed are the naturally occurring ingredients. The only additional limitations are that the composition is a cosmetic composition. But there is no limitation to the claimed invention requiring anything which is not drawn to a judicial exception. And there is nothing in the specification to indicate that exosome compositions have any additional functionality beyond that which it has individually. Example 1 prepares exosomes, which are dispersed in water, and the water dispersed exosomes alone are a cosmetic composition (experiment example 1). Thus, the claims are considered to not be drawn to eligible subject matter under 35 USC 101.
Comment Regarding Subject Matter
The composition of claim 1 is free of the prior art. The claimed invention recites a cosmetic composition comprising exosomes derived from beluga caviar. The closest prior art is considered US Patent Application Publication 2017/0152484. This document discloses exosomes for treating the skin to address wrinkles (abstract & paragraph [2]), so it does disclose exosomes for a cosmetic composition. However, this reference does not disclose preparing exosomes from the same source as in the claimed invention (beluga caviar). And there is no suggestion to use caviar for the preparation of exosomes for cosmetic compositions.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Brian Gulledge whose telephone number is (571) 270-5756. The examiner can normally be reached Monday - Friday 7am - 4pm.
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/Brian Gulledge/Primary Examiner, Art Unit 1699