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 without traverse of Invention I in the reply filed on May 4, 2026 is acknowledged.
Claims 13-19 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected Invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on May 4, 2026.
Claims
Claim Objections
Claims 1-7 are objected to because of the following informalities: the claims should start with “A” in the case of an independent claims and “The” in regards to the dependent claims. Appropriate correction is required.
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.
1) Claims 1-3 and 5-7 are rejected under 35 U.S.C. 103 as being unpatentable over Yellin et al. (US 20220287935).
Yellin et al. disclose a cosmetic or cosmeceutical formulation comprising cannabidiol (CBD), an isolated cannabigerol (CBG) and pomegranate seed oil (PSO). The composition may be in the form of a cream, an ointment, a paste, a gel, a lotion, a milk, an oil, a suspension, a solution, an aerosol, a spray, a foam, a powder (e.g., a pressed powder or a loose powder), a serum or a mousse. Creams are emulsions, which would comprise water and an emulsifier/oil. Make up products formulated include eye shadows and lipstick. The cosmetically acceptable carrier includes water (paragraph 0112). Additives include colorants and penetration enhancers. Suitable penetration enhancers include polyethylene glycol monolaurate (PEGML), and propyleneglycol monolaurate (PGML) (paragraph 0144). Natural substances include tocopherol (instant claim 3).
Yellin et al. differ from the instant claims insofar as they do not exemplify a composition comprising a cannabinoid, water and a colorant.
Generally, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use. See MPEP 2144.07. It would have been obvious for one of ordinary skill in the art prior to filing the instant application to have used water and a pigment in the formulations of Yellin et al. because it is suggested by Yellin in order make the different formulations disclosed therein and to add the components for their suitability.
2) Claim(s) 1-3, 5 and 7 are rejected under 35 U.S.C. 103 as being unpatentable over McElvany (WO 2017011785).
McElvany discloses topical formulations such as lipsticks, lip glosses and lip balms. Compositions comprise one or more cannabinoid compounds and are formulated into lip-balms, creams and ointments. A specific embodiment provides a topical composition formulated as a lip-balm. Cannabinoids include tetrahydrocannabinol (THC) and cannabidiol (CBD). The topical antiviral compositions can optionally include one or more sweeteners, and/or flavors, and/or coloring agents. Flavors may be added and include cinnamaldehyde (instant claim 3). The composition may further comprise optional additional ingredients selected from one or more of a penetration enhancer, oil, waxy compound, surfactant, stabilizer, gelling agent, moisturizer, water, or a preservative.
A topical formulation may consist essentially of at least one cannabinoid and at least one component selected from the group consisting of an astringent, a moisturizer, a sweetener, a flavor, a coloring agent, a sunscreen, a penetration enhancer, a thickening agent, a surfactant, a stabilizer, a gelling agent, and a preservative; wherein the formulation is obtained by dispersing an extract of cannabis plant in a water-in-oil emulsion, an oil-in-water emulsion, a wax-in-oil base, or an oil-in-wax base (Reference claims).
McElvany differs from the instant claims insofar as it does not exemplify a composition comprising a cannabinoid water and a colorant.
However, generally, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use. See MPEP 2144.07. It would have been obvious to one of ordinary skill in the art prior to filing the instant application to have made a topical formulation into a water-in-oil or oil-in-water emulsion comprising the cannabinoid, a flavor such as cinnamaldehyde, a coloring agent and a penetration enhancer; because this is suggested by McElvany.
When the coloring agent is used, color cosmetic is formed.
3) Claims 1-2 and 4 are rejected under 35 U.S.C. 103 as being unpatentable over Zuccolo et al. (FR 2978659).
Zuccolo et al. disclose non-therapeutic cosmetic use of at least one cannabinoid compound for its use in the treatment of vitiligo or pityriasis versicolor, non-therapeutic cosmetic methods of skin coloring or treatment (Abstract). This cannabinoid compound is preferably chosen from anandamide (AEA) and its analogues. The composition may also comprise all the usual cosmetic additives such as water, solvents, oils, waxes, pigments, fillers, surfactants, cosmetic or dermatological active agents, UV filters, polymers, gelling agents, preservatives and perfumes. The cannabinoid compound may be present at a concentration of from 0.00001 to 10% by weight based on the total weight of the composition.
Zuccolo et al. differ from the instant claims insofar as they do not exemplify a composition comprising anandamide, water and a colorant.
However, generally, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use. See MPEP 2144.07. It would have been obvious to one of ordinary skill in the art prior to filing the instant application to have added a coloring agent to the exemplified compositions because they are suggested by Zuccolo et al.
When the coloring agent is used, color cosmetic is formed.
Claims 1-7 are rejected.
Claims 13-19 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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/LEZAH ROBERTS/ Primary Examiner, Art Unit 1612
