DETAILED ACTION
Claims 1-17 are pending. Of these, claims 16-17 are withdrawn as directed to a nonelected invention. Therefore, claims 1-15 are under consideration on the merits.
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 .
Election/Restriction
Applicant’s election of sodium oleyl sulfate as the species of alkenyl sulfate ester and Corynebacterium minutissimum as the species of bacteria, is acknowledged. Since Applicant did not point to any alleged deficiencies in the restriction requirement, the election has been treated as having been made without traverse. The restriction requirement is still considered proper and is made FINAL.
Although Applicant states that claims 1-17 are drawn to the elected invention, claims 16-17 are directed to the treatment of Cutibacterium acnes, which is not the elected species of bacteria. Therefore, claims 16-17 are withdrawn as directed to a nonelected invention.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 5/18/2025 was filed prior to the mailing date of a first Action on the merits. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, it was considered by the Examiner.
Claim Objections
Claim 14 is objected to because of the following informalities:
The phrase “wherein the composition” is unnecessary and should be deleted. 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.
Claims 1-17 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as 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 1 recites “Escherichia coli at a pH up to or equal to about 4 in solution.” The meaning of this limitation is unclear. The preamble states that the bacteria are on “human skin,” so how can the bacteria be in a solution having a pH up to or equal to about 4? Since dependent claims 2-17 do not clarify the point of confusion, they are also rejected.
Claim 2 recites formula (I), but the symbol “M” in the formula is not defined. Clarification is required. Dependent claim 3 does not clarify the confusion so is also indefinite.
Claims 3-7 recite “the salt of the alkenyl sulfate ester,” but base claim 1 recites that the salt of an alkenyl sulfate ester may be “an isomer thereof,” and it is unclear whether the limitations of claims 3-7 apply to an isomer of the alkenyl sulfate ester or only to the alkenyl sulfate ester. Clarification is required.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-8 and 13-15 are rejected under 35 U.S.C. 102(a)(1) as anticipated by Koch et al. (WO 2022/122137; published 6.16.22)
As to claims 1-8 and 14-15, Koch discloses a method of cleansing the skin comprising topically applying to human skin such as facial skin (claim 17) a personal cleansing composition comprising an alkanediol and a surfactant such as sodium oleyl sulfate (the elected species of alkenyl sulfate ester of claims 1-3 and 5-8)(paragraphs 263-264, 210, 282, 299). Koch teaches that the method inhibits bacteria from the genus Corynebacterium which encompasses the elected species, Corynebacterium minutissimum of claims 1 and 14 (paragraphs 34)
Regarding claims 4 and 8, the surfactant may be present in the amount of 1-40 wt%, which overlaps the recited ranges to such an extent that the skilled artisan immediately could have envisaged the claimed range from the prior art range, such that Koch teaches the claimed range with sufficient specificity to be anticipating (paragraphs 139, 271).
Regarding claim 13, the topical personal cleansing composition may comprise dermatologically acceptable carriers (paragraph 246).
As to claims 14-15, the skin may be underarm skin (“axillary skin”)(paragraph 298). The Koch method will treat axillary malodors as recited by claim 14 and minimize malodors caused by interaction of sebum, perspiration, and Corynebacterium minutissimum as recited by claim 15 because Koch expressly teaches that the composition taught therein inhibits Corynebacterium and because the Koch method comprises the topical administration of a composition comprising the same ingredients recited by the claims, and a composition cannot be separated from its properties.
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 1-15 are rejected under 35 U.S.C. 103 as unpatentable over Koch et al. (WO 2022/122137; of record in IDS) in view of Ren et al. (Tenside Surfact. Det. 2023; 60(2): 170-181; published 2.16.23).
The teachings of Koch are relied upon as discussed above but they do not further expressly disclose that the sodium oleyl sulfate comprises a cis-isomer (claim 9) as well as a trans-isomer in the weight ratios of claims 10-12.
Ren discloses that sodium oleyl sulfate (a surfactant comprising an unsaturated C18 hydrocarbon chain having a bend in the cis isomer caused by the double bond) has stronger surface active properties that that of the analogous saturated surfactant sodium octadecyl sulfate (comprising a saturated C18 hydrocarbon chain which does not comprise a bend in the hydrocarbon chain), because the change in shape results in a polar head conformation that allows for tighter molecular packing (Abstract; Scheme 1; last paragraph of left column of page 173). Ren concludes that sodium oleyl sulfate has large potential for use as a detergent (Conclusion section on page 179).
As to claims 9-12, it would have been prima facie obvious to one of ordinary skill in the art at the effective filing date of the present invention to modify the Koch method by selecting a mixture of cis and trans isomers as the sodium oleyl sulfate and with a weight ratio within the ranges of claims 10-12 with a reasonable expectation of success, because Ren teaches that the change in conformation induced by the cis unsaturated bond in cis sodium oleyl sulfate improves molecular packing, thereby improving its surface active properties, thereby providing evidence that the amount of cis isomer is a result effective variable that will enhance the surfactant properties of the sodium oleyl sulfate, such that the skilled artisan would have been motivated to use a large excess of the cis isomer relative to the trans isomer as indicated by the ratios of claims 10-12. Generally, differences in amounts will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. “[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).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to GAREN GOTFREDSON whose telephone number is (571)270-3468. The examiner can normally be reached on M-F 9AM-6PM.
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/GAREN GOTFREDSON/Examiner, Art Unit 1619
/ANNA R FALKOWITZ/ Primary Examiner, Art Unit 1600
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