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 .
Election/Restrictions
Applicant’s election without traverse of Group I in the reply filed on 07/01/2026 is acknowledged.
Claims 15, 16, 18 and 19 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.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 07/01/2026.
Claims 9-14, 17 and 20 are being examined on the merits.
Information Disclosure Statement
The information disclosure statements (IDSs) submitted on 06/02/2026, 03/06/2026, 09/10/2025, 01/13/2025, 10/28/2024, and 10/28/2024 are being considered by the examiner. The signed IDS forms are attached with the instant office action.
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 10-11 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. Claim 10 recites “wherein the probiotic composition comprises a C. acnes fermentation product comprising lyophilized powder of purified C. acnes roxP fermentation media” and it is unclear as to what “C. acnes roxP fermentation media” is or what the metes and bounds to this limitation meaning would be. C. acnes is a species of bacterium and roxP is a protein from such bacterium. Does the limitation mean the protein is fermented, or does it mean a media is fermented, or does it mean a ferment being made from the C. acnes and into a medium? Does the ferment need to contain the protein in any form or does the media just need a bacterium which comprises of the protein? This limitation is confusing and indefinite.
All other claims depend directly or indirectly from the rejected claims and are, therefore, also rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, for the reasons set forth above.
Claims 13-14 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.
Claim 13 contains the trademark/trade name PRODEW® 500. Where a trademark or trade name is used in a claim as a limitation to identify or describe a particular material or product, the claim does not comply with the requirements of 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph. See Ex parte Simpson, 218 USPQ 1020 (Bd. App. 1982). The claim scope is uncertain since the trademark or trade name cannot be used properly to identify any particular material or product. A trademark or trade name is used to identify a source of goods, and not the goods themselves. Thus, a trademark or trade name does not identify or describe the goods associated with the trademark or trade name. In the present case, the trademark/trade name is used to identify/describe a paraben-free amino acid–PCA blend and, accordingly, the identification/description is indefinite.
All other claims depend directly or indirectly from the rejected claims and are, therefore, also rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, for the reasons set forth above.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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 9-12, 17 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Rolf Lood (from IDS filed on 10/28/2024, WO2020099663A).
Regarding claims 9-10, 17 and 20, Lood teaches a cosmetic use of a composition comprising a live Cutibacterium acnes strain secreting RoxP (radical oxygenase of Propionibacterium acnes ) for preventing or reducing skin ageing in a subject (see claim 1) and teaches that the RoxP-containing C. acnes supernatant was prepared as follows. A Hl strain was grown in a 20L fermentor at 37°C for 3 days in a suitable medium (see page 94, active ingredient). Lood teaches formulations for reconstruction of C. acnes lyophilized bacteria (see page 111). Lood teaches “In certain embodiments, the live Cutibacterium acnes strain or strains secreting RoxP may be in a lyophilised form” (see page 14, lines 18-19). Lood teaches Aqueous, powder or oily bases, or thickeners may also be used in preparations for topical administration to the skin” (see page 45, lines 26-27).
Regarding claim 11, Lood teaches a purified form (see page 32, lines 13-14, 21) and teaches “the main RoxP variant was purified from stationary phase C. acnes KP A 1 71202 culture media” (see page 87, line 16) and teaches filtration (see page 64, line 12).
Regarding claim 12, Lood teaches the composition to comprise humectant (see page 48, line 6), solvent (see page 47, line 7), moisturizers (see page 45, line 29), preservatives (see page 45, line 21), citric acid which can act as pH modifier and rheology modifier and glycerol which can act as a film former (see page 111).
Lood does not specifically teach the composition to have the instantly claimed ranges of active components such as about 0.1% to about 5% mass of probiotic and about 95% to about 99.9% by mass of one or more dermatologically acceptable excipients comprising one or more humectants, moisturizers, rheology modifiers, pH modifiers, preservatives, or solvents, however given the prior art this would have been an optimization well within the purview of any skilled artisan. The art teaches compositions comprising C. acnes RoxP or a biologically active variant or fragment thereof for treating or preventing oxidative stress-associated skin diseases or for preventing or reducing skin ageing and in effective amounts.
Conclusion
Currently no claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JACOB ANDREW BOECKELMAN whose telephone number is (571)272-0043. The examiner can normally be reached Monday-Friday 8am-5pm.
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JACOB A BOECKELMANExaminer, Art Unit 1655
/ANAND U DESAI/Supervisory Patent Examiner, Art Unit 1655
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