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 .
Response to Election/Restrictions
Applicant's election with traverse of Group I in the reply filed on June 1, 2026 is acknowledged. The traversal is on the ground(s) that the invention have unity and restriction between the groups is improper. Further there is not serious burden to search all the inventions. This is not found persuasive because the claims lack unity because the special technical feature has been found to be not special as discussed in the Restriction Requirement mailed April 1, 2026. In regards to no serious burden, burden consists not only of specific searching of classes and subclasses, but also of searching multiple databases for foreign references and literature searches. Burden also resides in the examination of independent claim set for clarity, enablement and double patenting issues. Further, a reference that would anticipate the invention of one group would not necessarily anticipate or even make obvious another group. Finally, the consideration for patentability is different in each case. Thus, it would be an undue burden to examine all of the above inventions in one application and the restriction for examination purposes as indicated above is deemed proper.
The requirement is still deemed proper and is therefore made FINAL.
Claims 60-66 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on June 1, 2026.
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 50-51 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.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 50 recites the broad recitation zinc ion source, and the claim also recites “e.g., zinc chloride or zinc gluconate” which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 51 recites the broad recitation Larix europaea wood extract, and the claim also recites “e.g., taxifolin or DHQG” which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
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.
1) Claims 47-55 and 57-59 are rejected under 35 U.S.C. 103 as being unpatentable over Strothmann (EP 3090727).
Strothmann discloses hair growth compositions. The compositions may be formulated into lotions. The compositions may comprise arginine (amino acid), caffeine (circulation enhancer, instant claim 55), panthenol and aloe vera (an anti-inflammatory agent, instant claim 51), rosemary extract (prostaglandin balancing agent), green tea (androgen balancing agent), hyaluronic acid (collagen modulator, instant claim 52), zinc salts (antimicrobial agents) and water (a cosmetically acceptable carrier). The compositions also comprise superfatting agents may be selected from substances such as for example, lanolin and lecithin. Sun protectors may be used and include cysteine (instant claim 57), cystine and glutathione. Antiaging agents include peptides. The composition may also include isoflavonoides and soy extracts (instant claim 58). The carrier comprises diols, water, ethanol or mixtures thereof. Hair growth extracts include licorice extract.
An example comprises ethanol (35 to 45%), propylene glycol (diol, 5%), sodium thiocyanate, Arginine (amino acid), citric acid (monohydrate), allantoin, caffeine (circulation enhancer), D-panthenol, menthyl lactate and water (about 55%) to 100%.
Strothmann differs from the instant claims insofar as it does not exemplify all the components together. However, they suggest using each one of the components in the same compositions. It would have been obvious to one of ordinary skill in the art prior to filing the instant application to have formulated a hair growth composition by adding an androgen balancing agent, a prostaglandin balancing agent, an antimicrobial, and anti-inflammatory agent, a collagen enhancer and an amino acid in the carrier of Example 1 of Strothmann et al. because it is suggested by Strothmann. Since this modification of the prior art represents nothing more than “the predictable use of prior art elements according to their established functions” a prima facie case of obviousness exists.
In regards to the amount of ethanol, it is a carrier that would affect the rheological properties of the composition, such as viscosity. Alcohol is also may be an irritant. It would have taken no more than the relative skill of the one of ordinary skill in the art to have adjusted/lowered the ethanol to achieve the desired rheology and feel. See MPEP 2144.05.
2) Claim 56 is rejected under 35 U.S.C. 103 as being unpatentable over Strothmann (EP 3090727) in view of Sung (KR101907902).
Strothmann is discussed above and disclose peptides may be added to the compositions.
Strothmann differs from the instant claim insofar as it does not disclose the specific peptide such as copper-tripeptide-1.
Sung et al. disclose a composition comprising a copper tripeptide. Cu-tripeptide-1 binds to albumin in the blood. The peptide removes damaged collagen and elastin, inhibits scarring, and produces stem cells to help regenerate the skin. It also promotes hair growth and reduces hair loss. It would have been obvious to one of ordinary skill in the art prior to filing the instant application to have added copper tripeptide to the composition of Strothmann et al. motivated by the desire to use a peptide that promotes hair growth and reduces hair loss.
Claims 47-59 are rejected.
Claim 60-66 are withdrawn.
No claims allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LEZAH ROBERTS whose telephone number is (571)272-1071. The examiner can normally be reached Monday-Friday 11:00-7:30.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sahana Kaup can be reached at 571-272-6897. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/LEZAH ROBERTS/ Primary Examiner, Art Unit 1612
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