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 .
Status of Claims
Claims 1-20 are pending. This is the first office action on the merits.
Information Disclosure Statement
The IDS filed 8/21/2024 has been reviewed.
Election/Restrictions
Applicant’s election of Group I (claims 1-17) without traverse in the reply dated June 3, 2026 is noted.
Claim 18-20 are withdrawn as being drawn to a non-elected invention or species, there being no linking or generic claim.
Claims 1-17 are examined on their merits.
Claim Objection
Claim 7 is objected to because of the following informalities: The claim appears to repeat “salicylic acid” although this term has already been recited in claim 1, the claim from which claim 7 depends. 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 of this title, 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.
Claims 1 and 3-17 are rejected under 35 U.S.C. 103 as being unpatentable over Hines et al. US 2011/0044920 (2/24/2011) in view of Harris et al. US 2017/0156999 (6/8/2017) and Graban et al. US 2018/0296464 (10/18/2018).
Hines et al. (Hines) teaches a topical skin care composition that includes water, silmymarin, pomegranate extract, shea butter, glyceryl stearate, cetyl alcohol, stearyl alcohol and polysorbate 80, among other ingredients. (See Abstract and [0076]). This topical skin care composition can be a cleanser and can be applied to human skin to cleanse the skin. (See Table 8, [0022], [0067], [0105]). Hines also teaches a method of washing the skin to clean it by topically applying the cleanser composition to the skin and subsequently rinsing the cleanser from the skin. (See [0022]).
Hines teaches that the composition can also include additional ingredients including shea butter (which is also known as butyrospermum parkii (see [0076]) as called for in instant claim 7, cetyl alcohol as called for in instant claim 7 (see [80]), stearyl alcohol as called for in instant claim 7 (see [0080]), cetearyl alcohol as called for in instant claim 7 (see [0116]), sorbitan oleate as called for in instant claim 7 (see [0076]), sorbitan palmitate as called for in instant claim 7 (see [0076]), salicylic acid as called for in instant claims 1 and 7 (see [0076]), cetyl palmitate as called for in instant claims 5 and 7 (see [0076]), vegetable oil as called for in instant claim 7 (see [0076]), orange oil as called for in claims 3 and 7 (see [0076]), potassium sorbate as called for in claim 6 (see [0076]), and sweet almond oil (which is also known as prunus amygdalus dulcis (see [0076]) as called for in instant claim 7. Hines teaches that additional ingredients can include citric acid as called for in instant claim 1. (See [0013], [0014]).
Hines also teaches that the composition can also include additional ingredients including glycerin (see [0015]) as called for in claim 1, glyceryl stearate (see [0076]) as called for in instant claim 7, betaine as called for in instant claims 4 and 7 (see [0014]), bergamot oil as called for in instant claim 7 (see [0088]) and kaolin as called for in instant claim 1. (See [0071]). Hines also teaches that additional ingredients can include avocado oil (Persea gratissimia) oil as called for in instant claim 7. (See [0076]).
Hines teaches that the composition can be a cleanser in the form of an emulsion as called for in instant claim 17. (See [0105]). Hines also teaches a preservative as called for in instant claim 15. (See [0019]). Hines teaches that humectants are among the cosmetic ingredients that can be used in its composition. (See [0071]).
Hines does not teach Myrothamnus flabellifolia extract or the application to dull skin. These deficiencies are made up for with the teachings of Harris et al. and Graban et al.
Harris et al. (Harris) teaches a personal care cleansing device. (See Abstract). The personal care cleansing device dissolves to deposit a personal cleansing composition on the skin. (See [0017-0018]). The cleansing composition can comprise Myrothamnus flabellifolia extract, which is described as a humectant. (See [0030]). Myrothamnus flabellifolia extract is called for in instant claim 1.
Harris teaches that the cleanser removes dead skin cells from the skin and this reads on the removal of fine particles as called for in instant claim 9. This is also skin that is in need of cleansing as called for in instant claim 8.
Graban et al. (Graban) teaches a topical composition for applying to human skin that contains extract of Myrothamnus flabellifolius. (See Abstract and [0046]). The topical composition is applied to dull human skin and it revives and hydrates the dull skin and reduces dullness. (See [0068]). The reviving of dull skin that is in need of revivial is called for in instant claim 12.
It would have been prima facie obvious for one of ordinary skill in the art before the earliest effective filing date following the Hines method of cleansing the skin by topically applying its emulsion containing water, pomegranate extract, shea butter, glyceryl stearate, cetyl alcohol, stearyl alcohol, cetearyl alcohol, sorbitan oleate, sorbitan palmitate, salicylic acid, cetyl palmitate, vegetable oil, orange oil, potassium sorbate and sweet almond oil to add Myrothamnus flabellifolia extract as a humectant in order to have a humectant in its cleansing composition.
It would be obvious to add a known humectant to a composition that teaches that humectants are desirable components, since combining known elements that serve the same purpose is prima facie obvious. It is prima facie obvious to combine two or more components, each of which is recognized by the art as equivalents for the same purpose. Thus, it would have been obvious at the time of the invention to combine two or more known humectants based on a common function. (See MPEP 2144.06). “It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art.” In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) (citations omitted).
It would have been prima facie obvious for one of ordinary skill in the art before the earliest effective filing date following the Hines method of cleansing the skin by topically applying its emulsion containing water, pomegranate extract, shea butter, glyceryl stearate, cetyl alcohol, stearyl alcohol, cetearyl alcohol, sorbitan oleate, sorbitan palmitate, salicylic acid, cetyl palmitate, vegetable oil, orange oil, potassium sorbate and sweet almond oil to add Myrothamnus flabellifolia extract as a humectant in order to have a humectant in its cleansing composition and to apply the composition to dull skin that is in need of revival as taught by Graban since Graban teaches that topically applied compositions containing Myrothamnus flabellifolia extract can revive dull skin.
With respect to claim 10-14, the radiance and luminosity increase of the skin and reduction of dullness would be the natural result of applying a combination of Myrothamnus flabellifolia extract, citric acid, salicylic acid, kaolin glcyerin, water, water, pomegranate extract, shea butter, glyceryl stearate, cetyl alcohol, stearyl alcohol, cetearyl alcohol, sorbitan oleate, sorbitan palmitate, salicylic acid, cetyl palmitate, vegetable oil, orange oil, potassium sorbate and sweet almond oil to dull skin. Id. at 1195-96, 112 USPQ2d at 1952. But see, Persion Pharms. LLC v. Alvogen Malta Operations LTD., 945 F.3d 1184, 1191, 2019 USPQ2d 494084 (Fed. Cir. 2019), where the court stated that a proper finding of inherency does not require that all limitations are taught in a single reference, and that inherency may meet a missing claim limitation when the limitation is "the natural result of the combination of prior art elements. Therefore, the properties of revival of dull skin and reduction in the dullness of that skin would necessarily follow.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Hines et al. US 2011/0044920 (2/24/2011) in view of Harris et al. US 2017/0156999 (12/3/2015) and Graban et al. US 2018/0296464 (10/18/2018) as applied to claims 1 and 3-17 and further in view of Banziger et al. Skin Stabilisation for Fast Regeneration – Lessons from Resurrection Plants, Cosmetic Science Technology 2014, Rahn ai_Layout 1 .
The teachings of Hines in view of Harris and Graban are described supra. Hines in view of Harris and Graban do not teach Myrothamnus flabellifolia extract obtained from leaves. This deficiency is made up for with the teachings of Banziger et al.
Banziger et al. (Banziger) teaches that the leaves of Myrothamnus flabllifolia have high amounts of polyphenols which form the bioactive principle of Myrothamnus flabllifolia. (See page 2). The ability of Myrothamnus flabllifolia to protect against the dessication of the plant itself can also protect against dessication of the skin by protecting against oxidative damage. (See page 3).
It would have been prima facie obvious for one of ordinary skill in the art before the earliest effective filing date following the Hines in view of Harris and Graban method of cleansing the skin by topically applying its emulsion containing water, pomegranate extract, shea butter, glyceryl stearate, cetyl alcohol, stearyl alcohol, cetearyl alcohol, sorbitan oleate, sorbitan palmitate, salicylic acid, cetyl palmitate, vegetable oil, orange oil, potassium sorbate and sweet almond oil and Myrothamnus flabellifolia extract to have the Myrothamnus flabellifolia extract be an extract obtained from leaves in light of Banziger’s teaching that the leaves of Myrothamnus flabllifolia have high amounts of polyphenols which form the bioactive principle of Myrothamnus flabllifolia.
Conclusion
No claims are allowed.
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SARAH CHICKOS
Examiner
Art Unit 1619
/SARAH ALAWADI/Primary Examiner, Art Unit 1619
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