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 .
DETAILED ACTION
Claim Status
The amended claim set of 01 Jul 2024 has been entered and reviewed
Claims 1-17 have been amended.
Claims 1-17 are pending.
Election/Restrictions
Applicant's election with traverse of Group I, claims 1-13, drawn to a cosmetic active agent, in the reply filed on 30 Jul 2026 is acknowledged. Applicants also elected that the copper ion is copper sulphate, the first amino acid is lysine, the second amino acid is proline, the third (another) amino acid is hydroxyproline, and the acid is lactic acid, in response to the species election requirement. The traversal is on the ground(s) that the review of any of the groups of claims would entail a search and examination with the claims and not impart an undue burden on the Office. This is not found persuasive as such arguments do not apply when the restriction is required under 35 U.S.C. 121 and 372, as in the instantly filed application. Thus, when the Office considers international applications as an International Searching Authority, as an International Preliminary Examining Authority, and during the national stage as a Designated or Elected Office under 35 U.S.C. 371, PCT Rule 13.1 and 13.2 will be followed when considering unity of invention of claims of different categories without regard to the practice in national applications filed under 35 U.S.C. 111. As detailed in the Requirement for Restriction/Election dated 04 Jun 2026, unity of invention is lacking a posteriori, that is, after taking the prior art into consideration. Auriol et al. (WO 2020/201185, published 08 Oct 2020) and Yoshiko et al. (JPH11292751A, published 26 Oct 1999) renders obvious the technical feature of the instantly filed application..
The requirement is still deemed proper and is therefore made FINAL.
Claims 14-17 are withdrawn from further consideration by the examiner, 37 CFR 1.142(b), as being drawn to a non-elected invention.
Claims 1-13 are under consideration to the extent of the elected species, i.e., that the copper ion is copper sulphate, the first amino acid is lysine, the second amino acid is proline, the third (another) amino acid is hydroxyproline, and the acid is lactic acid.
Priority
Acknowledgment is made of applicant’s claim for foreign priority under 35 U.S.C. 119 (a)-(d).
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 01 Jul 2024 is in compliance with the provisions of 37 CFR 1.97, except where noted. Accordingly, the information disclosure statement is being considered by the examiner.
Specification
The disclosure is objected to because of the following informalities:
The specification is lacking a brief description of drawings. See MPEP 608.01(f).
Page 16 refers to figures 3 and 4 but there are no figures 3 or 4 included in the disclosure.
The use of the term Tween, which is a trade name or a mark used in commerce, has been noted in this application at page 15. The term should be accompanied by the generic terminology; furthermore the term should be capitalized wherever it appears or, where appropriate, include a proper symbol indicating use in commerce such as ™, SM , or ® following the term.
Although the use of trade names and marks used in commerce (i.e., trademarks, service marks, certification marks, and collective marks) are permissible in patent applications, the proprietary nature of the marks should be respected and every effort made to prevent their use in any manner which might adversely affect their validity as commercial marks.
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.
Claim 10 is 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 10 recites “wherein the amino acid is selected from.” “The amino acid” lacks proper antecedent basis. Claim 1 recites to a “first amino acid” and a “second amino acid” and claim 10 recites “another amino acid” and it is unclear whether “the amino acid” is intended to refer to the first, second or other amino acid.
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 1-13 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a natural phenomenon without significantly more.
Claim interpretation: Under the broadest reasonable interpretation, the terms of the claim are presumed to have their plain meaning consistent with the specification as it would be interpreted by one of ordinary skill in the art. See MPEP 2111.
Claim 1 is directed to a cosmetic active agent comprising mannose-6-phosphate and mannose in a ratio of 3:1 to 0.3:1, copper ions, a first and second amino acid, and an acid such as lactic acid.
The composition of claim 1 requires, at minimum, mannose-6-phosphate and mannose in a ratio of 3:1 to 0.3:1, copper ions, a first and second amino acid, and an acid such as lactic acid. Since the claim states ‘comprising’ language which is open language, allowing for the incorporation of unclaimed/undisclosed subject matter, the composition may include additional components not recited.
Claim 2 further limits the mannose ratio. Claims 3 and 4 require ranges of amounts of mannose-6-phosphate and mannose. Claim 5 recites specific sources of copper ions such as copper sulphate. Claim 6 recites a range of amounts of copper ions. Claim 7 recites a lysine and proline amino acids. Claim 8 recites a range of ratios for the first and second amino acids. Claim 9 recites an amount of acid to provide a pH of 3.8-6.0. Claim 10 recites another amino acid. Claim 11 recites additional components including natural component such as glycerol. Claim 12 recites narrowed ranges of percentages of mannose-6-phosphate, mannose, lysine, proline, copper sulphate, and lactic acid. Claim 13 recites a cosmetic excipient.
In accordance with the 2019 Revised Patent Subject Mater Eligibility Guidance (aka 2019 PEG), the following analysis is based on the flowchart found in MPEP §2106(III) and is used when considering whether or not a claimed invention recites eligible subject matter.
Step 1: Is the claim to a process, machine, manufacture or composition of matter?
Yes, claims 1-13 are directed to a composition of matter.
Step 2A: Is the claim directed to a judicial exception (i.e. a law of nature, a natural phenomenon (product of nature) or an abstract idea)?
Analysis of Step 2A is divided into two prongs.
Step 2A Prong One: Does the claim recite an abstract idea, law of nature or natural phenomenon?
This part of the eligibility analysis evaluates whether the claim recites a judicial exception. As explained in MPEP 2106.04(II), a claim “recites” a judicial exception when the judicial exception is “set forth” or “described” in the claim.
Claim 1 is directed to a cosmetic active agent comprising mannose-6-phosphate, mannose, copper ions, a first and second amino acid, and an acid such as lactic acid. These are all naturally occurring compounds. Claims 2-13 further limit specific types of amino acid and acid and provide more narrowed ranges for including the components, but the claims all include natural components. Claim 13 recites an excipient which is broad and open to natural excipients such as water. Thus, each of the components of the cosmetic active agent as recited in claims 1-13 are natural in origin.
Since the composition contains products which are naturally-occurring, the claim is ‘directed to’ a nature-based product. Since the claims recite a nature-based product limitation, the markedly different characteristics analysis is used to determine if the nature-based product limitation is a product of nature exception. MPEP 2106.04(c)(I). The markedly different characteristics analysis is performed by comparing the nature-based product limitation in the claim to its naturally occurring counterpart to determine if it has markedly different characteristics from the counterpart. MPEP 2106.04(c)(II). Here, the closest natural counterpart is naturally occurring mannose-6-phosphate, mannose, copper ions from copper sulfate, first amino acid such as lysine, second amino acid such as proline, an acid such as lactic acid, another acid such as hydroxyproline, glycerol, and excipient such as water as they occur separately in nature. There is no indication that mixing the mannose-6-phosphate, mannose, copper ions from copper sulfate, first amino acid such as lysine, second amino acid such as proline, an acid such as lactic acid, another acid such as hydroxyproline, glycerol, and excipient such as water would change the structure, function or other characteristics of the individual components in any way. Rather, when mixed, each of the individual components would retain its naturally-occurring structure and function.
Even when considering the distinct percentages and ratios of each component as recited throughout the claims, the percentages and ratios do not impart any markedly different qualities or characteristics to the components. Thus, by combining the claimed natural components the applicants have not altered the components in any way.
Therefore, claims 1-13 recite a product of nature exception. Association for Molecular Pathology v. Myriad Genetics Inc., 569 U.S. 576, 589-90 (2013) (naturally occurring things are “products of nature” which cannot be patented). Accordingly, the claim recites a judicial exception, and the analysis must therefore proceed to Step 2A Prong Two.
Step 2A Prong Two: Does the claim recite additional elements that integrate the judicial exception into a practical application?
This part of the eligibility analysis evaluates whether the claim as a whole integrates the recited judicial exception into a practical application of the exception. This evaluation is performed by (1) identifying whether there are any additional elements recited in the claim beyond the judicial exception, and (2) evaluating those additional elements individually and in combination to determine whether the claim as a whole integrates the exception into a practical application. MPEP 2106.04(d)II.
Claims 1-13 do not recite an additional element beyond the natural components including mannose-6-phosphate, mannose, copper ions, a first and second amino acid, and an acid such as lactic acid. As described above, the only additional element is the inclusion of percentage and ratio amounts for specific components in the composition. However, as discussed above, there is no indication that the percentage or ratio of each component in the composition imparts any markedly different qualities or characteristics to the components. Thus, claims 1-13 do not present elements or components in addition to the judicial exception that could be interpreted as imposing a meaningful limitation over the claim scope. Accordingly, claims 1-13 do not integrate the recited judicial exception into a practical application and the claims are therefore directed to the judicial exception.
Step 2B: Does the claim recite additional elements that amount to significantly more than the judicial exception?
This part of the eligibility analysis evaluates whether the claim as a whole amounts to significantly more than the recited exception, i.e., whether any additional element, or combination of additional elements, adds an inventive concept to the claim. MPEP 2106.05. As discussed with respect to Step 2A Prong Two, claims 1-13 do not recite an additional element beyond the natural components of the composition and that a selection of the components have specific ranges of percentages and ratios. The presence of each of the components in a single composition would necessarily require distinct percentages and ratio of each component in the composition and there is nothing to indicate that the percentage of each component as recited offers a distinct or inventive concept to the claim. Therefore, claims 1-13 do not include any additional element which would amount to ‘significantly more’ than the judicial exception itself and thus the claims as a whole do not amount to significantly more than the judicial exception.
Conclusion: Claims 1-13 which are directed toward a composition comprising the natural components of mannose-6-phosphate, mannose, copper ions from copper sulfate, first amino acid such as lysine, second amino acid such as proline, an acid such as lactic acid, another acid such as hydroxyproline, glycerol, and excipient such as water, are not markedly different in structure or function as compared to the closest naturally-occurring counterpart. Subsequently, claims 1-13 are directed toward a judicial exception under 35 USC 101. Claims 1-9 do not recite any element which would be considered to provide ‘significantly more’ than the judicial exception.
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.
Claims 1-13 are rejected under 35 U.S.C. 103 as being unpatentable over Auriol et al. (WO 2020/201185, published 08 Oct 2020) in view of Yoshiko et al. (JPH11292751A, published 26 Oct 1999) and Kim et al. (US 2011/0130039, 02 Jun 2011).
Auriol teaches an anti-aging cosmetic composition comprising a mixture of mannose-6-phosphate and mannose (title, abstract). Auriol teaches the invention relates to active ingredients and methods useful to reduce the visible signs of aging on human skin and is used for reducing wrinkles and age spots and for structuring collagen fibers (page 1 lines 2-5) and that the active agent improves collagen density and organization (page 7 lines 4-11). Auriol teaches that the physical signs of skin aging are a reflection of the condition of the skin matrix where the weaker and less regular the matrix, the more wrinkles, roughness and sag the skin tends to have (page 1 lines 19-21). Auriol teaches that a mixture of mannose-6-phosphate and mannose in a specific molar ratio shows an enhanced effect on the reduction of the signs of skin aging (page 2 lines 26-28) and teaches a cosmetic active agent with mannose-6-phosphate and mannose in a molar ratio from 3:1 to 0.3:1 (page 3 lines 1-3) or from 2:1 to 1:1 (page 1 lines 29-30), rendering obvious the ratios of claims 1 and 2. Auriol teaches that the mannose-6-phosphate may be from 30-220 mM (page 4 lines 5-7) or from 0.5-6.0 wt% (page 4 lines 8-10), and that the mannose may be from 0.5 to 5.0 wt% (page 4 lines 13-15), rendering obvious claims 3 and 4 and the percentage of mannose-6-phosphate and mannose of claim 12. Auriol teaches that the mannose-6-phosphate may be a salt and teaches counterions such as sodium (page 3 lines 16-20), rendering obvious the mannose-6-phosphate sodium salt of claim 12. Auriol teaches copper ions in the cosmetic active agent (page 3 lines 18-20). Auriol teaches mixing the mannose-6-phosphate with one or more amino acids including lysine (page 3 lines 21-22), rendering obvious the elected species of first amino acid. Auriol teaches that the pH of the active agent is from 3.0 to 6.5 (page 4 lines 27-29). Auriol teaches that the cosmetic active agent may include 1,2-propanediol (page 4 lines 18-20), rendering obvious claim 11. Auriol teaches a cosmetic composition comprising the cosmetic active agent and a cosmetically acceptable excipient (page 5 lines 3-5), rendering obvious claim 13. Auriol teaches that the cosmetic active agent may further contain other cosmetically active ingredients commonly used in the preparation of cosmetic preparations for use on the human skin (page 8 lines 16-19).
Auriol does not teach the elected species of second amino acid (proline), the third amino acid (hydroxyproline), the copper ion (copper sulfate), or the acid lactic acid. These deficiencies are made up for in the teachings of Yoshiko and Kim.
Yoshiko teaches a skin cosmetic having the effect of improving and maintaining a water-retaining function and improving rough skin and irritating skin ([0001], [0008]). Yoshiko teaches that rough skin is associated with aged and dry skin ([0003]). Yoshiko teaches the skin cosmetic includes ethyl glucoside, an amino acid, an organic acid and a saccharide ([0009]). Yoshiko teaches including two or more kinds of amino acids and teaches the amino acids lysine, proline, and hydroxyproline ([0014]). Yoshiko teaches the organic acid may be lactic acid ([0015]). Yoshiko teaches that the total amino acid is from 0.001 to 10.0% by weight and that the organic acid is from 0.001 to 10.0 wt% in order to effectively exhibit the characteristics of ethyl glucoside ([0017]).
Kim teaches cosmetic compositions which mimic the extracellular matrix to stimulate the regeneration of skin cells and to repair damage to the skin ([0008]). Kim teaches that both intrinsic and extrinsic aging result in structural changes in the skin and consequently the skin becomes dry, loses elasticity and develops wrinkles ([0002]). Kim teaches cosmetic compositions that inhibit skin aging of a reduction in elasticity or the formation of wrinkles ([0010]). Kim teaches that the compositions include a mineral component ([0009]) such as copper sulfate ([0023]). Kim teaches that mineral components such as copper sulfate are known to be required for cell homeostasis and skin penetration ([0024]). Kim teaches that the mineral component is present in an amount of 0.001-3 wt% and that less than 0.001wt% has an insignificant effect and that more than 3 wt% can impair skin homeostasis ([0025]).
Therefore, 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 have included in the anti-aging cosmetic composition of Auriol the amino acids proline and hydroxy proline and the organic acid lactic acid, ethyl glucoside, and the mineral copper sulfate from 0.001-3 wt%. It is known from Auriol to include one or more amino acids such as lysine with the mannose-6-phosphate and it is known from Yoshiko to include two or more amino acids such as lysine, proline, and hydroxyproline as well as organic acids such as lactic acid in a skin cosmetic composition. It thus would have been obvious to include amino acids lysine, proline, and hydroxyproline and the organic acid lactic acid in the cosmetic composition with a reasonable expectation of success as anti-aging cosmetic compositions that are used to treat visible signs of aging and reducing wrinkles and that include multiple amino acids, such as lysine, are known from Auriol and it is known from Yoshiko that multiple amino acids such as lysine, proline, and hydroxyproline and organic acids such as lactic acid are suitable for including in cosmetic compositions that improve rough and irritating skin associated with aged and dry skin. The inclusion of amino acids such as lysine, proline, and hydroxyproline and the organic acid lactic acid thus merely represents the inclusion of known prior art elements in similar compositions that are designed for cosmetic treatments of aging. Similarly, cosmetic compositions that inhibit skin aging of a reduction in elasticity or the formation of wrinkles are known from Kim to include mineral components such as copper sulfate, which is required for cell homeostasis and skin penetration. Thus, it would have been obvious to include copper sulfate as it is a known component for cosmetic compositions for repairing skin damage and inhibiting aging conditions such as wrinkles and is known to be required for cell homeostasis and skin penetration. The inclusion of copper sulfate thus merely represents the inclusion of a prior art element known for use in similar cosmetic compositions. It would have been obvious to have the copper sulfate from 0.001-3 wt% (i.e. approximately 0.06-188 mM copper ion) as amounts less than 0.001wt% have an insignificant effect and amounts more than 3 wt% can impair skin homeostasis, thus rendering obvious the percentage of copper sulfate in claim 12 and the copper ion concentration of claim 6.
It is known from Yoshiko that organic acids are to be included in cosmetic compositions from 0.001-10 wt% indicating this a suitable amount for cosmetic compositions and rendering obvious the percentage of lactic acid in claim 12. Regarding claim 9 and “comprising the acid in an amount for the cosmetic active agent to have a pH of about 3.8 to about 6.0,” it is obvious from Auriol to have the pH from 3.0 to 6.5 which overlaps with the claimed pH range and it is obvious to include lactic acid and it is understood that having the composition in that pH range would provide lactic acid in an amount overlapping with an amount needed to have a pH in the claimed range. Regarding the percentage and ratio of lysine and proline as in claims 8 and 12, these amounts would be obvious as a matter of routine experimentation. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). It is obvious from Auriol and Yoshiko to include lysine and proline and it is obvious from Yoshiko to keep the total amount of amino acids from 0.001 to 10.0% by weight. It is further known from Yoshiko that the amino acid helps control properties such as allowing ethyl glucoside to effectively exhibit its effects. Thus it would have been obvious to one of ordinary skill to adjust the amount of proline and lysine within the range of 0.001-10.0% in order to optimize the performance of the cosmetic for anti-aging properties such as inhibiting wrinkles, thus rendering obvious the percentage and ratios of claims 8 and 12.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-13 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-9, 15, and 16 of U.S. Patent No. 12,290,587 in view of Auriol et al. (WO 2020/201185, published 08 Oct 2020), Yoshiko et al. (JPH11292751A, published 26 Oct 1999) and Kim et al. (US 2011/0130039, 02 Jun 2011).
The patent recites
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Claims 2-5, 7, 15, and 16 further limit the ratio and percentage of mannose-6-phosphate and mannose. Claim 6 includes glycerol. Claim 8 recites an excipient. Claim 9 reictes an anti-agining skin car composition comprising the active agent.
The reference patent does not recite including a first, second, and another amino acid, an acid such as lactic acid, copper ions from copper sulphate. These deficiencies are made up for in the teachings of Yoshiko and Kim.
The teachings of Yoshiko and Kim are described supra.
Therefore, 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 have included in the active agent of the reference patent the amino acids proline and hydroxy proline and the organic acid lactic acid, ethyl glucoside, and the mineral copper sulfate from 0.001-3 wt%. It is known from Auriol to include one or more amino acids such as lysine with mannose-6-phosphate and it is known from Yoshiko to include two or more amino acids such as lysine, proline, and hydroxyproline as well as organic acids such as lactic acid in a skin cosmetic composition. It thus would have been obvious to include amino acids lysine, proline, and hydroxyproline and the organic acid lactic acid in the cosmetic composition with a reasonable expectation of success as anti-aging cosmetic compositions that are used to treat visible signs of aging and reducing wrinkles and that include multiple amino acids, such as lysine, are known from Auriol and it is known from Yoshiko that multiple amino acids such as lysine, proline, and hydroxyproline and organic acids such as lactic acid are suitable for including in cosmetic compositions that improve rough and irritating skin associated with aged and dry skin. The inclusion of amino acids such as lysine, proline, and hydroxyproline and the organic acid lactic acid thus merely represents the inclusion of known prior art elements in similar compositions that are designed for cosmetic treatments of aging. Similarly, cosmetic compositions that inhibit skin aging of a reduction in elasticity or the formation of wrinkles are known from Kim to include mineral components such as copper sulfate, which is required for cell homeostasis and skin penetration. Thus, it would have been obvious to include copper sulfate as it is a known component for cosmetic compositions for repairing skin damage and inhibiting aging conditions such as wrinkles and is known to be required for cell homeostasis and skin penetration. The inclusion of copper sulfate thus merely represents the inclusion of a prior art element known for use in similar cosmetic compositions. It would have been obvious to have the copper sulfate from 0.001-3 wt% (i.e. approximately 0.06-188 mM copper ion) as amounts less than 0.001wt% have an insignificant effect and amounts more than 3 wt% can impair skin homeostasis, thus rendering obvious the percentage of copper sulfate in claim 12 and the copper ion concentration of claim 6.
It is known from Yoshiko that organic acids are to be included in cosmetic compositions from 0.001-10 wt% indicating this a suitable amount for cosmetic compositions and rendering obvious the percentage of lactic acid. Regarding claim 9 and “comprising the acid in an amount for the cosmetic active agent to have a pH of about 3.8 to about 6.0,” it is obvious from Auriol to have the pH from 3.0 to 6.5 which overlaps with the claimed pH range and it is obvious to include lactic acid and it is understood that having the composition in that pH range would provide lactic acid in an amount overlapping with an amount needed to have a pH in the claimed range. Regarding the percentage and ratio of lysine and proline as in claims 8 and 12, these amounts would be obvious as a matter of routine experimentation. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). It is obvious from Auriol and Yoshiko to include lysine and proline and it is obvious from Yoshiko to keep the total amount of amino acids from 0.001 to 10.0% by weight. It is further known from Yoshiko that the amino acid helps control properties such as allowing ethyl glucoside to effectively exhibit its effects. Thus it would have been obvious to one of ordinary skill to adjust the amount of proline and lysine within the range of 0.001-10.0% in order to optimize the performance of the cosmetic for anti-aging properties such as inhibiting wrinkles, thus rendering obvious the percentage and ratios of claims 8 and 12.
Conclusion
No claim is allowed.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to EDWIN C MITCHELL whose telephone number is (571)272-7007. The examiner can normally be reached Mon-Fri 8:00-5:00.
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/EDWIN COLEMAN MITCHELL/Examiner, Art Unit 1619
