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 .
Information Disclosure Statement
The information disclosure statement filed February 13, 2024 fails to comply with 37 CFR 1.98(a)(2), which requires a legible copy of each cited foreign patent document; each non-patent literature publication or that portion which caused it to be listed; and all other information or that portion which caused it to be listed. It has been placed in the application file, but the information referred to therein has not been considered.
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.
Claims 1-5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Fevola et al.
(WO 2023022899 A1) (hereinafter “Fevola”), in view of Therre et al. (EP 4414360 A1) (hereinafter “Therre”).
Regarding claim 1, Fevola teaches a composition wherein the formulation is or is a component of a personal care product ([0024-0025]). The composition includes a medium chain terminal diol that is selected from the group consisting of: glyceryl monolaurate, glyceryl monocaprate, glyceryl monopelargonate, glyceryl monocaprylate, glyceryl monoheptanoate, and glyceryl monoundecylenate ([0030], [0101], [0119], claim 4). Furthermore, Fevola teaches at least one other ingredient (anti-inflammatory medicaments, microbiocides, antifungals, antiseptics, antioxidants, UV absorbers, dyes and pigments, preservatives, sunscreen active agents, antiperspirant active agents, etc.) that read on personal care ingredients ([0062], [0097], [0107], [0122], claim 4).
Regarding claim 2, Fevola teaches a formulation where the composition that includes glyceryl monoundecylenate is present in a range from about 0.25 wt% to about 5.0 wt%, or from about 0.50 wt% to about 2.5 wt% ([0041], [0110], claim 4). This reads on the claimed range of glyceryl monoundecylenate is 0.5 to 2.0 wt% of the personal care composition.
Regarding claim 3, Fevola teaches a formulation wherein a 2% aqueous solution of the composition has a pH value about 9 or less ([0038], [0111]). This pH range reads on the claimed range 3.0 to 7.0.
Regarding claim 4, Fevola teaches a formulation that is or is a component of a personal care product selected from the group consisting of: a cosmetic product, a conditioner of hair, nails, skin or textiles, shampoo, a hair styling product, an oil or wax for grooming facial hair, a permanent wave liquid, a hair colorant, a face or body wash, a makeup removal product, a cleansing lotion, an emollient lotion or cream, a bar soap, a liquid soap, a shaving cream, foam, or gel, a sunscreen, a gel, lotion or cream for treating sunburn, a deodorant or anti-perspirant, a moisturizing gel, a shaving foam, a face powder, foundation, lipstick, blush, eyeliner, wrinkle or anti-aging cream, eye shadow, an eyebrow pencil, mascara, a mouthwash, a toothpaste, an oral care product, a skin cleansing product, a textile cleansing product, a dish cleaning product, a hair or fur cleansing product, and a skin lotion or moisturizer (claims 12-13, [0024-0025], [0043-0044], [0080], [0097], [0127]). It is noted that a hair styling product meets the claimed “hair serum,” bar soap meets the claimed “syndet bar,” and a skin cleansing product meets the claimed “hygiene wash.”
Regarding claim 5, Fevola teaches that in addition to the water of the aqueous solution [0018], the formulation can include optionally, at least one other ingredient for combining in the process herein can additionally or alternatively include additional components or ingredients such as surfactants, emollients, humectants, conditioning agents, active agents, beaching or whitening agents, fragrances, colorants, exfoliating agents, antioxidants, botanical ingredients, mica, smectite, thickeners, cannabinoids, oils, dyes, waxes, amino acids, nucleic acids, vitamins, hydrolyzed proteins and derivatives thereof, glycerin derivatives (e.g. glyceride esters), enzymes, anti-inflammatory and other medicaments, microbiocides, antifungals, antiseptics, antioxidants, UV absorbers, dyes and pigments, preservatives, sunscreen active agents, antiperspirant active agents, oxidizers, pH balancing agents, moisturizers, peptides and derivatives thereof, anti-aging actives, hair growth promoters, anti-cellulite actives, and combinations thereof ([0062], [0097], [0107], [0122], claim 4). The at least one other ingredient can also comprise a chelating agent, a polyol, or combinations thereof ([0117]). In some embodiments, the present invention is directed to compositions and/or formulations having antimicrobial properties. ([0073], claim 4). Additionally, examples 4 and 8 use the emulsifier “Polysorbate 20” ([0133], [0141], Table 3), example 6 uses the pearlizer lauryl glucoside ([0137], [Table 5), and example 10 teaches a natural lotion formulation comprising xanthan gum. It is noted that xanthan gum also meets the claimed “rheology modifiers” and “polymeric rheology modifiers.” Furthermore, sunscreen active agents meet the claimed “UV blockers,” mica meets the claimed “opacifiers,” active agents meet the claimed “anti-acne agents,” and waxes meet the claimed “silicones” and “film formers.” Anti-aging and anti-cellulite agents both meet the claimed “skin care active.”
However, Fevola does not teach a personal care composition comprising N-capryloyl L-glutamine in claims 1-5. Fevola also does not teach the inclusion of N-capryloyl L-glutamine in the 0.5 to 2.0 weight percent of the personal care composition of claim 2.
Regarding the personal care composition comprising N-capryloyl L-glutamine of claims 1-5, Fevola does teach a surfactant as at least one other ingredient ([0062], [0097], [0107], [0122], claim 4). With respect to claim 2, Fevola also teaches the surfactant can be present in the composition that is in a range from about 0.25 wt% to about 5.0 wt%, or from about 0.50 wt% to about 2.5 wt% in the formulation ([0041], [0110], claim 4). Therre further teaches that amino acid surfactants are regarded as biocompatible and biodegradable surfactants that are found to be useful in a variety of applications such as personal care applications. Specifically, common applications for amino acid surfactants include skin care, hair cleaning, dental products including shampoos, body washes, shower gels, cosmetics, toothpaste and toiletries ([0002]). Therre specifies that N-capryloyl L-glutamine is an amino acid surfactant ([0048-0049]).
It would have been obvious to one of ordinary skill in the art to select N-capryloyl L-glutamine as the surfactant in the personal care composition of Fevola wherein in the weight percentage is about 0.25 wt% to about 5.0 wt%, or from about 0.50 wt% to about 2.5 wt% of the formulation to produce the claimed personal care composition. One of ordinary skill in the art would have been motivated to do so because Therre and Fevola are commonly drawn to personal care applications, and Therre provides guidance to do so by teaching that amino acid surfactants have specific applications in personal care compositions and by identifying N-capryloyl L-glutamine as an amino acid surfactant. Thus, [t]he selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945). "Reading a list and selecting a known compound to meet known requirements is no more ingenious than selecting the last piece to put in the last opening in a jig-saw puzzle." 325 U.S. at 335, 65 USPQ at 301.).
Claims 1-5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Fevola et al.
(WO 2023022899 A1) (hereinafter “Fevola”), in view of Therre et al. (EP 4414360 A1) (hereinafter “Therre”), in further view of Chen et al. (CN 104739734 A) (English machine translation is provided, hereinafter “Chen”).
The modified teaching of Fevola is discussed above, said discussion will be incorporated in its entirety.
Regarding claims 1-5, Fevola teaches a personal care composition that includes a surfactant and a medium chain terminal diol, where the medium chain terminal diol selected from a group consisting of glyceryl monoundecylenate is about 10 wt% to about 80 wt% of the composition ([0028], claim 4).
However, Fevola does not teach a composition wherein the ratio of N-capryloyl L-glutamine and glyceryl monoundecylenate is from 1:2 to 2:1 by weight of claims 1-5.
Regarding the ratio of the N-capryloyl L-glutamine and the glycerol monoundecylenate is from 1:2 to 2:1 by weight of claims 1-5, Chen teaches a whitening skin care facial cleanser characterized by consisting of the following components in parts by weight: 2-10% of pearl liquid, 3-10% of aloe vera gel, 2-10% of cucumber extract, and 3-10% of cetyl alcohol, glycerin is 5.0 to 15%, isopropanol is 1.0 to 5.0%, triethanolamine is 0.3 to 1.5%, amino acid surfactant is 15 to 25%, and the balance is deionized water (abstract, claim 1).
It also would have been obvious for one of ordinary skill in the art to optimize the amount of the surfactant to 15-25 wt% in the composition of Fevola with about 10 wt% to about 80 wt% of glyceryl monoundecylenate to achieve the weight ratio of 1:2 to 2:1 and produce the claimed invention. One of ordinary skill in the art would have been motivated to do so because Fevola and Chen provide the guidance to do so by teaching compositions with a medium chain terminal diol in the amount of about 10 wt% to about 80 wt% and an amino acid surfactant in the amount of 15-25% that would read on the claimed weight ratios. Thus, it is noted that the courts have stated where the claimed ranges “overlap or lie inside the ranges disclosed by the prior art” and even when the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have similar properties, a prima facie case of obviousness exists (see In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990); Titanium Metals Corp. of America v. Banner, 778 F2d 775. 227 USPQ 773 (Fed. Cir. 1985). Absent some demonstration of unexpected results showing criticality from the claimed parameters, the optimization of the weight ratio of the N-capryloyl L-glutamine and the glycerol monoundecylenate in the composition would have been obvious before the effective filing date of Applicant’s invention. See MPEP §2144.05 (I)-(II).
Conclusion
No claim allowable.
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/E.L.K./Examiner, Art Unit 1614
/ALI SOROUSH/Supervisory Patent Examiner, Art Unit 1614
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