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 .
Priority
Acknowledgment is made of applicant’s claim for foreign priority under 35 U.S.C. 119 (a)-(d). The certified copy has been filed in parent Application No. KR10-2022-0048315, filed on April 19, 2022.
Acknowledgment is made of applicant’s claim for foreign priority under 35 U.S.C. 119 (a)-(d). The certified copy has been filed in parent Application No. KR10-2023-0050414, filed on April 18, 2023.
Response to Amendment
In the amendment filed on August 3, 2026, the following has occurred: claim(s) 1, 11 have been amended, claim(s) 32-33 have been added, and claim(s) 20-31 have been cancelled. Now, claim(s) 1, 11, 19, 32-33 are pending.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claim(s) 1, 11, 19, 32-33 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Claim 1: Step 2A Prong One
Claim 1 recite(s):
derive key skin factors corresponding to the user's skin condition, the key skin factors comprising elasticity, skin tone, oil amount, moisture loss amount, nasolabial folds, and pores by weighting a key skin factor, among the key skin factors, for which the subjective survey information and the objective survey information match each other, and
based on the survey information,
select the user's skin type among four skin types by using a pre-learned skin type selection algorithm based on the key skin factors, the user's skin type being selected by giving a score to each of the key skin factors based on the survey information and adding up scores of key skin factors affecting oil and moisture and scores of key skin factors affecting color and elasticity,
analyze the user's skin microbiome distribution,
derive information about a plurality of microbiomes corresponding to the user's skin condition with respect to a skin microbiome distribution analyzed by age, and
provide information on cosmetic products according to a mixing ratio of each microbiome for the plurality of microbiomes including five microbiomes corresponding to the user's skin condition based on the selected skin type and the analyzed skin microbiome distribution
These limitations, as drafted given the broadest reasonable interpretation, but for the recitation of generic computer components, encompass managing interactions between people, including following rules or instructions, which is a subgrouping of Certain Methods of Organizing Human Activity. For example, but for the generic computer components of “a communication circuit comprising at least one of a wireless local area network chipset, a Wi-Fi chipset, a Bluetooth chipset, and a near field communication chipset, the communication circuit forming a network connection with an external device;”, “a user interface comprising an input device including at least one of a touch screen, a physical button, a camera, and a microphone, and an output device including at least one of a display panel and a speaker;”, “a processor;” “a memory storing instructions executable by the processor, wherein the processor is configured to, by executing the instructions”, “by using a pre-learned skin type selection algorithm based on the key skin factors”, “by using a pre-learned skin microbiome analysis algorithm based on the survey information” the claim recites a Certain Method of Organizing Human Activity. For example, the claim encompasses a user following instructions to determine key skin factors by identifying a match between the subjective survey information and the objective survey information, and applying a weight to the identified match. Similarly, the claim encompasses a user following instructions to select the user's skin type among four skin types. Similarly, the claim encompasses a user following instructions to determine information about a plurality of microbiomes corresponding to the user's skin condition with respect to a skin microbiome distribution analyzed by age. Finally, the claim encompasses a user following instructions to determine and provide information on cosmetic products according to a mixing ratio of each microbiome for the plurality of microbiomes including five microbiomes. These steps could be accomplished by a user following rules or instructions.
Claim 1: Step 2A Prong Two
This judicial exception is not integrated into a practical application because the remaining
elements amount to no more than general purpose computer components programmed to perform
the abstract idea and insignificant extra-solution activity.
Claim 1, directly or indirectly, recites the following generic computer components
configured to implement the abstract idea: “a communication circuit comprising at least one of a wireless local area network chipset, a Wi-Fi chipset, a Bluetooth chipset, and a near field communication chipset, the communication circuit forming a network connection with an external device;”, “a user interface comprising an input device including at least one of a touch screen, a physical button, a camera, and a microphone, and an output device including at least one of a display panel and a speaker;”, “a processor;” “a memory storing instructions executable by the processor, wherein the processor is configured to, by executing the instructions”. As set forth in the 2019 Eligibility Guidance, 84 Fed. Reg. at 55 “merely including instructions to implement an abstract idea on a computer” is an example of when an abstract idea has not been integrated into a practical application.
Additionally, the claim recites “obtain survey information related to a user's skin condition including subjective survey information including a user's subjective response in relation to the user's skin condition and objective survey information including clinical data, microbiome data, human genome data, or metabolite data in relation to the user's skin condition,” at a high degree of generality, amount no more than storing and retrieving information in memory. As set forth in MPEP 2106.05(d)(II), computer functions as well‐understood, routine, and conventional functions when they are claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity, is an example of when an abstract idea has not been integrated into a practical application.
Additionally, the claim recites “by using a pre-learned skin type selection algorithm based on the key skin factors”, “by using a pre-learned skin microbiome analysis algorithm based on the survey information”, “wherein the key skin factors are used in both the pre-learned skin type selection algorithm and the pre-learned skin microbiome analysis algorithm” at a high degree of generality, amount no more than generally linking the abstract idea to a particular technical environment. The recitations are also similar to adding the words “apply it” to the abstract idea. As set forth in MPEP 2106.05(f), merely reciting the words “apply it” or an equivalent, is an example of when an abstract idea has not been integrated into a practical application.
Claim 1: Step 2B
The claim(s) does/do not include additional elements that are sufficient to amount to
significantly more than the judicial exception. As discussed above with respect to integration of
the abstract idea into a practical application, the additional elements of using a computer
configured to perform above identified functions amounts to no more than mere instructions to
apply the exception using generic computer components. Mere instructions to apply an exception
using a generic computer component cannot provide an inventive concept. See Alice 573 U.S. at
223 (“mere recitation of a generic computer cannot transform a patent-ineligible abstract idea
into a patent-eligible invention.”)
Insignificant, extra solution, data gathering activity has been found to not amount to
significantly more than an abstract idea (See MPEP 2106.05(g)). Therefore, whether considered
alone or in combination, the additional elements do not amount to significantly more than the abstract idea. The claims are not patent eligible.
Additionally, generally linking the abstract idea to a particular technological environment does not amount to significantly more than the abstract idea (See MPEP 2106.05(h) and Affinity Labs of Texas v. DirectTV, LLC, 838 F.3d 1253, 120 USP12d 1201 (Fed. Cir. 2016)).
Claim 32 incorporates the abstract idea identified above and describes skin condition measurement information and skin microbiome analysis information. Therefore, these claims recite limitations that fall into the Certain Methods of Organizing Human Activity grouping of abstract ideas.
Dependent claim 32 recites additional subject matter which amount to limitations consisted with the additional elements in independent claim 1 (such as claim 32 recites additional limitations that amount to generally linking the abstract idea to a particular technical environment).
Looking at the limitations as an ordered combination adds nothing that is not already present when looking at the elements taken individually. There is no indication that the combination of elements improves the functioning of a computer or improves any other technology. Their collective functions merely provide conventional computer implementation and do not impose a meaningful limit to integrate the abstract idea into a practical application. The claims are not patent eligible.
Claims 11 and 33 recite the same functions as claims 1 and 32, but in method form. Claim 11 does not describe the generic computer components “a communication circuit comprising at least one of a wireless local area network chipset, a Wi-Fi chipset, a Bluetooth chipset, and a near field communication chipset, the communication circuit forming a network connection with an external device;”, “a user interface comprising an input device including at least one of a touch screen, a physical button, a camera, and a microphone, and an output device including at least one of a display panel and a speaker;”, “a processor;” “a memory storing instructions executable by the processor, wherein the processor is configured to, by executing the instructions”.
Claim 19 recites the same functions as claim 1, but in computer-readable non-transitory recording medium form.
Therefore, whether considered alone or in combination, the additional elements do not
amount to significantly more than the abstract idea. The claim is not patent eligible.
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.
Claims 1, 11, 19, 32-33 are rejected under 35 U.S.C. 103 as being unpatentable over Salem (U.S. Patent Pre-Grant Publication No. 2018/0316781) in view of Eder (U.S. Patent Pre-Grant Publication No. 2015/0235143) in view of Prior (U.S. Patent Pre-Grant Publication No. 2014/0096078) in further view of Kovarik et al. (U.S. Patent Pre-Grant Publication No. 2019/0307813).
As per independent claim 1, Salem discloses a device for providing skin information, the device comprising:
a communication circuit comprising at least one of a wireless local area network chipset, a Wi-Fi chipset, a Bluetooth chipset, and a near field communication chipset, the communication circuit forming a network connection with an external device (See [0037], [0055]: The present design may take the form of a device including a reflective surface and at least one sensor and in certain instances more than one sensor, such as a camera and an audio collection device, where the device has processing and communication capability, and the connections to modules or the main device may be connected by Bluetooth ([0055]));
a user interface comprising an input device including at least one of a touch screen, a physical button, a camera, and a microphone, and an output device including at least one of a display panel and a speaker (See [0008], [0037], [0043]: A personal care display device comprising a plurality of sensors configured to sense attributes of a patient, wherein the plurality of sensors comprises a video image collection device and an audio collection device, and a remote central server device arrangement connected to the personal care device);
a processor (See [0006]: The apparatus comprising a sensor configured to optically detect blood distribution analysis and spread at least two external regions of a user via at least one of skin color, skin tone, skin temperature, skin condition, and capillary refill, and a processor configured to determine an image based on the optical detection of the sensor, the image indicating a first blood distribution and spread for a first region of the user and a second image indicating a second blood distribution and spread for a second region); and
a memory storing instructions executable by the processor, wherein the processor is configured to, by executing the instructions (See [0049]: A general view of the electronics employed in the present design is shown in FIG. 3, device 200 includes a processor 301 connected to a storage device, such as a memory device),
derive key skin factors corresponding to the user's skin condition, the key skin factors comprising elasticity, skin tone, oil amount, moisture loss amount, nasolabial folds, and pores (See [0043], [0068], [0080], [0087]-[0089]: Skin category may be assessed, including determining consumer inputs, oil content of skin, and reflexive skin properties, and providing a graph of skin, oily to dry, recommended moisturizing and cleansing creams, which the Examiner is interpreting reflexive skin properties and skin elasticity ([0087]-[0088]) to encompass elasticity and nasolabial folds, interpreting assessing tone and pigmentation to encompass skin tone, interpreting oil content of skin ([0087]) to encompass oil amount, interpreting a graph of skin, oily to dry ([0087]) to encompass moisture loss amount, and interpreting evaluate pores ([0087]) to encompass pores) by weighting a key skin factor, among the key skin factors, for which the subjective survey information and the objective survey information match each other (See [0145]-[0146], [0155], [0164], [0173]-[0174]: The present design thus provides a personal care module that is configured to receive, from a sensor configured to detect blood distribution analysis and spread at two or more regions of a user via user skin color, tone, temperature, condition (dry/soft/firm/swollen/sunken), and capillary refill, which the Examiner is interpreting the system may also generate at least one second PMI from the MCL based on a differential weighting, or the MCL components relevant to the vital sign or interest to encompass weighting a key skin factor, among the key skin factors, for which the subjective survey information and the objective survey information match each other as skin color may have high importance in assessing and may be assigned a value of, for example, 50%, while in another assessment skin color may have an assessment value of 1%, and user interactive sessions can identify correlations between objective survey information (measurements ([0174]: user/patient's temperature)) and subjective survey information (user speech ([0174]))) and,
based on the survey information,
select the user's skin type among four skin types by using a pre-learned skin type selection algorithm based on the key skin factors, the user's skin type being selected by giving a score to each of the key skin factors based on the survey information and adding up scores of key skin factors affecting oil and moisture and scores of key skin factors affecting color and elasticity (See [0067], [0080], [0087]-[0088], [0150]: Skin health may be assessed according to skin turgor, color, skin breakdown, and degree of edema, which the Examiner is interpreting the different algorithms and training sets to encompass a pre-learned skin type selection algorithm, and the skin health to encompass the user's skin type among four skin types when combined with Prior as the Applicant’s Specification describes the four skin types as “select 4 skin types by adding up the scores for each key skin factor that affects oil/moisture and color/elasticity” in Paragraph [0079] the broadest reasonable interpretation of this claimed portion is the calculation of skin factors and that multiple skin types could be selected),
analyze the user's skin microbiome distribution by using a pre-learned skin microbiome analysis algorithm based on the survey information (See [0067], [0087]: Different readings and different algorithms can be employed for different parts of the body, e.g. bumps and lumps on the skin surface, different angles of inclination, joint range of movement, and so forth, which the Examiner is interpreting the different algorithms to encompass a pre-learned skin microbiome analysis algorithm based on the survey information, and interpreting skin category may be assessed, including determining consumer inputs, oil content of skin, and reflexive skin properties, and providing a graph of skin, oily to dry, recommended moisturizing and cleansing creams and the system may also evaluate pores, determining distribution and spread measured by number per square centimeter and measure color and size of pores to encompass analyze the user's skin microbiome distribution), and
provide information on cosmetic products according to a mixing ratio of each microbiome for the plurality of microbiomes including five microbiomes corresponding to the user's skin condition based on the selected skin type and the analyzed skin microbiome distribution, wherein the key skin factors are used in both the pre-learned skin type selection algorithm and the pre-learned skin microbiome analysis algorithm (See [0042], [0067]-[0068]: Different readings and different algorithms can be employed for different parts of the body, e.g. bumps and lumps on the skin surface, different angles of inclination, joint range of movement, and so forth, and determining skin tone and making a recommendation for particular skin care and/or cosmetic purchases.)
While Salem discloses the device wherein the key skin factors are used in both the pre-learned skin type selection algorithm and the pre-learned skin microbiome analysis algorithm as described above, Salem may not explicitly teach derive information about a plurality of microbiomes corresponding to the user's skin condition with respect to a skin microbiome distribution analyzed by age,
and provide information on cosmetic products according to a mixing ratio of each microbiome for the plurality of microbiomes including five microbiomes corresponding to the user's skin condition based on the selected skin type and the analyzed skin microbiome distribution, wherein the key skin factors are used in both the pre-learned skin type selection algorithm and the pre-learned skin microbiome analysis algorithm.
Eder teaches a device for derive information about a plurality of microbiomes corresponding to the user's skin condition with respect to a skin microbiome distribution analyzed by age (See [0051]-[0053], [0131]-[0134], [0250]: If the nextgen sequence data comprises bacteria data from the subject entity microbiome, then the software in this block will also compare the data to the reference enterotypes in order to identify the enterotype of each microbiome population, which the Examiner is interpreting identify the enterotype of each microbiome population to encompass a skin microbiome distribution analyzed by age (See [0051])),
and provide information on cosmetic products according to a mixing ratio of each microbiome for the plurality of microbiomes including five microbiomes (See [0250]-[0251]: Variation from the mix of bacteria found in the identified reference enterotype is also be calculated and saved, and the software may compare the data to the reference enterotypes in order to identify the enterotype of each microbiome population, which the Examiner is interpreting the enterotype of each microbiome population to encompass a mixing ratio of each microbiome, and interpreting each microbiome population to encompass the plurality of microbiomes including five microbiomes as Eder describes in [0250] that each microbiome population and since the recitation of each microbiome population is not limited to a certain number the Examiner is interpreting the recitation of each microbiome population to encompass five microbiomes when combined with Kovarik) corresponding to the user's skin condition based on the selected skin type and the analyzed skin microbiome distribution (See [0032], [0250]-[0251]: The subject entity genomic variants by module and gene, the enterotype classification of the subject's microbiome, the subject's microbiome mix of bacteria, the variation in the subject's microbiome mix from the enterotype mix, which the Examiner is interpreting the subject's microbiome mix of bacteria to encompass provide information on cosmetic products based on the user's skin type and skin microbiome distribution, and edgetic individualized medicine software (900) controls the performance of the central processing unit (137) as it completes the data processing used for developing and/or providing medical advice, medical diagnoses and/or medical treatments that are appropriate to the resilient context of the subject entity to encompass cosmetic products (when combined with Salem as Salem describes in [0042]: “As may be understood, any type of interaction between the user, user device 102b, and processing and storage site 101 may be employed as desirable, such as determining the user's body type and recommending clothing for the user, determining skin tone and making a recommendation for particular skin care and/or cosmetic purchases, and so forth.”), wherein the key skin factors are used in both the pre-learned skin type selection algorithm and the pre-learned skin microbiome analysis algorithm.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed to modify the device of Salem to include derive information about a plurality of microbiomes corresponding to the user's skin condition with respect to a skin microbiome distribution analyzed by age, and provide information on cosmetic products according to a mixing ratio of each microbiome for the plurality of microbiomes including five microbiomes corresponding to the user's skin condition based on the selected skin type and the analyzed skin microbiome distribution as taught by Eder. One of ordinary skill in the art before the effective filing date of the claimed invention would have been motivated to modify Salem with Eder with the motivation of improve the health of the subject entity (See Detailed Description of the Invention of Eder in Paragraph [0363]).
While Salem/Eder discloses the device as described above, Salem/Eder may not explicitly teach obtain survey information related to a user's skin condition including subjective survey information including a user's subjective response in relation to the user's skin condition and objective survey information including clinical data, microbiome data, human genome data, or metabolite data in relation to the user's skin condition.
Prior teaches a device for obtain survey information related to a user's skin condition including subjective survey information including a user's subjective response in relation to the user's skin condition (See Table 3 and [0074]-[0075]: Information is obtained through a subject's self-evaluation as prompted by a questionnaire containing various questions related to a few general categories or factors including age, body, skin, and lifestyle) and objective survey information including clinical data, microbiome data, human genome data, or metabolite data in relation to the user's skin condition (See Table 3 and [0074]-[0075]: Information is obtained through a subject's self-evaluation as prompted by a questionnaire containing various questions related to a few general categories or factors including age, body, skin, and lifestyle, which the Examiner is interpreting the "biological information" may include physiological data that represents distinctive features or characteristics of an individual, including, but not limited to, age, cheek color, skin condition and complexion, and level of physical fitness, associated with a particular skin composition to encompass objective survey information including clinical data, microbiome data, human genome data, or metabolite data in relation to the user's skin condition.)
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed to modify the device of Salem/Eder to include obtain survey information related to a user's skin condition including subjective survey information including a user's subjective response in relation to the user's skin condition and objective survey information including clinical data, microbiome data, human genome data, or metabolite data in relation to the user's skin condition as taught by Prior. One of ordinary skill in the art before the effective filing date of the claimed invention would have been motivated to modify Salem/Eder with Prior with the motivation of provide a more highly customized service experience (See Background of the Invention of Prior in Paragraph [0004]).
While Salem/Eder/Prior discloses the device provide information on cosmetic products according to a mixing ratio of each microbiome for the plurality of microbiomes corresponding to the user's skin condition based on the selected skin type and the analyzed skin microbiome distribution, wherein the key skin factors are used in both the pre-learned skin type selection algorithm and the pre-learned skin microbiome analysis algorithm, Salem/Eder/Prior may not explicitly teach a mixing ratio of each microbiome for the plurality of microbiomes including five microbiomes.
Kovarik teaches a device for provide information on cosmetic products according to a mixing ratio of each microbiome for the plurality of microbiomes including five microbiomes corresponding to the user's skin condition (See [0017], [0024]-[0025], [0053]: A method for treating cancer cachexia involves the administering to the microbiome of a subject in need thereof an effective amount of a bacterial combination that expresses p53 protein and tomatidine, in certain embodiments, the cancer is a metastatic cancer; and the microbiome is one or more of the gut microbiome, the oral microbiome or the skin microbiome, which the Examiner is interpreting an effective amount of a bacterial combination to encompass a mixing ratio of five microbiomes corresponding to the user’s current skin condition as the use of the “skin microbiome” and differing microbes that can be selected) based on the selected skin type and the analyzed skin microbiome distribution, wherein the key skin factors are used in both the pre-learned skin type selection algorithm and the pre-learned skin microbiome analysis algorithm.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed to modify the device of Salem/Eder/Prior to include provides information on cosmetic products including a mixing ratio of five microbiomes corresponding to the user’s current skin condition as taught by Kovarik. One of ordinary skill in the art before the effective filing date of the claimed invention would have been motivated to modify Salem/Eder/Prior with Kovarik with the motivation of extend the healthspan and lifespan of humans (See Background of the Invention of Kovarik in Paragraph [0013]).
Claim(s) 11, 19 mirror claim 1 only within different statutory categories, and are rejected for the same reason as claim 1.
As per claim 32, Salem/Eder/Prior/Kovarik discloses the device of claim 1 as described above. Salem further teaches wherein the pre-learned skin type selection algorithm and the pre-learned skin microbiome analysis algorithm are trained based on skin condition measurement information and skin microbiome analysis information collected from a plurality of subjects across an age range (See [0067], [0071]-[0073], [0147]-[0151], [0155]: This additional data set may include a training set, used for training the system and including either hypothetical or actual attributes, a test set using test information, wherein test information may be used to evaluate hypotheses or models created and typically include previously determined or available data, and the system may employ attributes of a patient, including attributes retrieved, calculated, and/or predicted, with other patients by matching attributes between patients, including but not limited to genetic and physical attributes of individuals, which the Examiner is interpreting matching attributes between patients to encompass a plurality of subjects across an age range as age can be collected ([0071]).)
Claim 33 mirrors claim 32 only within different statutory category, and is rejected for the same reason as claim 32.
Response to Arguments
In the Remarks filed on August 3, 2026, the Applicant argues that the newly amended and/or added claims overcome the Claim Objection(s), Claim Interpretation(s), 35 U.S.C. 101 rejection(s), and 35 U.S.C. 103 rejection(s). The Examiner acknowledges that the newly added and/or amended claims overcome the Claim Objection(s) and Claim Interpretation(s). However, the Examiner does not acknowledge that the newly added and/or amended claims overcome the 35 U.S.C. 101 rejection(s) and 35 U.S.C. 103 rejection(s).
The Applicant argues that:
(1) claim 1 recites no such interpersonal interaction. It recites a single device deriving information about a single user's own physiological skin condition from that user's own survey, clinical, microbiome, genome, and metabolite data. There is no second party with whom any interaction, relationship, or behavior is being organized or managed. The Office Action does not identify what interpersonal interaction is purportedly being organized, because the claim does not recite one. The "following rules or instructions" basis the Office Action invokes is a sub-basis within the "managing personal behavior or relationships or interactions between people" subgrouping of Certain Methods of Organizing Human Activity. The case law underlying that subgrouping (e.g., rules for playing a game, arbitration procedures, tax-avoidance strategies) addresses rules that a person actually and customarily carries out by hand, without the aid of a computer performing the substantive determination. Claim 1 recites no such kind of rule. Human genome data and microbiome distribution data do not exist in a form a person can hold in mind or manipulate by hand. Rather, they are inherently machine-generated, sequencing-derived data, and the algorithms applied to them are trained models, not customary rules of human conduct. Because the claimed determination is not the type of humanly-followed rule the "following rules or instructions" basis is meant to capture, it does not support characterizing claim 1 as directed to Certain Methods of Organizing Human Activity. Claim 1 recites a "pre-learned skin type selection algorithm" and a "pre-learned skin microbiome analysis algorithm." As described in the specification, these are trained machine learning models whose weights are adjusted through a training process using annotation information. See, e.g., paragraphs [0100]-[0102] of the originally filed specification. A person does not "pre-learn" the way a model is trained on annotated data across a large population. This is a computational artifact of a training process, not a step a person performs or an organizational rule a person follows. The Office Action's characterization that the claim "encompasses a user following instructions to determine key skin factors" does not contend with the fact that the claim recites the output of a trained model applied to fused, multi-source physiological data, not a human decision procedure. Applicant's claims are also not directed to a mental process or mathematical concept. Nor are they alleged to be. Accordingly, for at least the above-noted reasons, the Office has not established that Applicant's independent claim 1 falls within the "certain methods of organizing human activity" grouping, or any other enumerated abstract-idea grouping. Applicant respectfully submits that independent claim 1 (and, for similar reasons, independent claim 11 and their respective dependent claims) do not recite an abstract idea under Step 2A, Prong One. For these reasons, the Office has not established that the claims recite an abstract idea under Step 2A, Prong One, and Applicant respectfully requests withdrawal of the rejection on this basis;
(2) the specification identifies the problem the claimed invention addresses: as the cosmetics market and available product information have grown, consumers face an unmanageable volume of information and "there is an emerging need to provide customized information to consumers of cosmetic products." See, e.g., paragraph [0006] of the originally filed specification. Rather than requiring a person to sort through that information, or relying on a single, subjective data source, the claimed device derives key skin factors by weighting only those factors for which independently-obtained subjective survey data and objective clinical, microbiome, genome, and metabolite data corroborate one another (paragraphs [0072], [0088], [0092], [0096]), applies a trained, pre-learned algorithm to score and sum those factors along two defined axes to select among four skin types (paragraphs [0090]-[0091]), and separately derives a mixing ratio across five microbiomes drawn from stored, age-stratified population data (paragraphs [0094]-[0099]). This is directly analogous to the claims held eligible in McRO, Inc. v. Bandai Namco Games America Inc., 837 F.3d 1299 (Fed. Cir. 2016), where the Federal Circuit found that the incorporation of specific, claimed rules (in place of a prior subjective, manual technique (there, an animator's manual keyframing)) improved an existing technological process rather than merely automating it. As in McRO, the claimed ordered combination of weighting-by-correspondence, dual-axis scoring, and age-stratified microbiome analysis is itself the improvement. It replaces a subjective, ad hoc approach to skin assessment with an objective, repeatable, data-driven technique for classifying skin type and formulating individualized microbiome-based cosmetic recommendations, consistent with Enfish, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016) (claims directed to a self-referential table were patent-eligible because they improved the computer's own functioning), and with the more general principle, reflected in MPEP § 2106.05(a), that an improvement need not be to the functioning of the computer itself but may be to any underlying technology or technical field. The Office's characterization of the recited components as merely "apply[ing]" the exception does not account for this improvement, and its citation to the 2019 Guidance's generic "apply it" example does not address the specific, ordered technical process the claim actually recites. Moreover, Applicant respectfully submits that the Office's reliance on TLI Communications LLC v. AV Automotive, LLC, 823 F.3d 607 (Fed. Cir. 2016) is misplaced. In TLI, the claims recited only generic computer components (e.g., a telephone unit and a server) performing their ordinary, well-understood functions of recording, storing, and transmitting digital images, with no specific rules or improved technique for accomplishing those functions. As amended, the recited communication circuit of claim 1 is not a generic, unspecified network component. Rather, the claims recite a specific technical architecture, i.e., a communication circuit including at least one of a wireless local area network chipset, a Wi-Fi chipset, a Bluetooth chipset, and a near field communication chipset, and a user interface comprising specific enumerated input devices (touch screen, physical button, camera, microphone) and output devices (display panel, speaker). Under MPEP § 2106.05(b), the use of a particular machine that is integral to the claim, and that is more than a generic computer performing generic functions, supports a finding that a judicial exception has been integrated into a practical application. See, e.g., SiRF Technology, Inc. v. International Trade Commission, 601 F.3d 1319 (Fed. Cir. 2010) (a GPS receiver comprising specifically-recited components was a particular machine sufficient to satisfy the machine prong). The specifically-enumerated chipset and input/output hardware recited in claim 1, operating in combination with the ordered algorithmic rules discussed above, likewise confine the claim to a particular machine rather than any general-purpose computer, distinguishing this case from TLI, in which the claims recited only a generic telephone unit and server performing their ordinary, well-understood functions of recording, storing, and transmitting digital images, with no comparably specific hardware or improved technique. With respect to the Office's characterization of "obtain survey information..." as no more than "storing and retrieving information in memory" under MPEP § 2106.05(d)(II), Applicant respectfully submits that this overlooks that the obtained subjective and objective survey information is not appended to, or merely gathered for, the claimed determination. Rather, it is the specific, dual-category input that the remainder of the claim operates on, including the correspondence-based weighting step that depends on comparing the subjective and objective streams against one another. Data-gathering limitations that are functionally integrated with, and required by, the specific technique the claim performs (as opposed to a generic, severable pre-processing step) are not insignificant extra-solution activity. See, e.g., MPEP 2106.05(g); see also CardioNet, LLC v. InfoBionic, Inc., 955 F.3d 1358 (Fed. Cir. 2020) (sustaining the eligibility of claims reciting a specific technical improvement to arrhythmia detection in which the claimed data acquisition and analysis were integrated with, rather than merely appended to, that improvement). The same is true here. The two-category survey information obtained in claim 1 is the necessary predicate for, and is directly consumed by, the correspondence-weighting, scoring, and microbiome-derivation steps that follow, rather than being generic data collection incidental to those steps. Accordingly, Applicant respectfully submits that the independent claims satisfy at least Prong Two of the Step 2A analysis because the additional elements of the claim integrate the alleged abstract idea into a practical application and apply, rely on, and/or use the alleged judicial exception in a manner that imposes a meaningful limit on the alleged judicial exception. For at least the foregoing reasons, Applicant respectfully submits that the instant claims are not "directed to" the abstract concept described in the Office Action;
(3) the claimed combination (deriving key skin factors through a matching-based
weighting scheme; feeding those factors into a dual-axis (oil/moisture and color/elasticity) scoring process to select among four skin types; separately analyzing an age-correlated skin microbiome distribution to identify five microbiomes; and generating cosmetic-product information based on a mixing ratio derived from both the selected skin type and the microbiome analysis, using the same key skin factors as inputs to both algorithms) is a specific, ordered technical arrangement that is not well-understood, routine, or conventional. Significantly, under Berkheimer v. HP Inc., 881 F.3d 1360 (Fed. Cir. 2018), and MPEP §2106.05(d), whether a claim limitation (or combination of limitations) is well-understood, routine, or conventional is a factual determination that must be supported by evidence, and cannot rest on unsupported assertion. The Office Action contains no such evidentiary showing. Instead, the Office's own analysis confirms the opposite conclusion: in order to reject claim 1 under 35 U.S.C. §103 (discussed in more detail below), the Office found it necessary to combine four separate references (i.e., Salem, Eder, Prior, and Kovarik) with none of the four, alone, disclosing or suggesting the claimed ordered combination. The Office Action's own reliance on four references to assemble the elements of claim 1 is itself an indication that the claimed ordered combination of elements is not well-understood, routine, or conventional activity previously known in the industry, but instead represents a non-conventional and non-generic arrangement of elements sufficient to supply an inventive concept under Step 2B. Accordingly, for at least the reasons above, Applicant submits that claim 1, and independent claims 11 and 19 (which recite substantially the same limitations in method and computer-readable-medium form, respectively), together with their dependent claims 32 and 33, are patent-eligible under 35 U.S.C. §101, whether analyzed under Step 2A, Prong One, Step 2A, Prong Two, or Step 2B. As such, withdrawal of the §101 rejection is respectfully requested;
(4) Applicant respectfully submits that Salem, Eder and Prior do not disclose or suggest at least the above-noted features of independent claim 1. On pages 14 and 15 of the Office Action, the Office relies on Salem alone for both of these recitations, citing paragraphs [0124] and [0164] for the Weighting Limitation and paragraphs [0067], [0080], and [0150] for the Skin Type Selection Limitation. Applicant respectfully disagrees. Salem's paragraph [0164] discloses only that a personal care module is "configured to receive, from a sensor configured to detect blood distribution analysis and spread at two or more regions of a user via user skin color, tone, temperature, condition (dry/soft/firm/swollen/sunken), and capillary refill." This passage describes the receipt and classification of skin attributes as raw sensor data. It says nothing about comparing a subjective value against an objective value, and nothing about weighting any factor based on whether the two values match. The Weighting Limitation, by contrast, requires deriving key skin factors specifically by weighting a key skin factor ... for which the subjective survey information and the objective survey information match each other. Paragraph [0164] of Salem discloses no such subjective category, no such objective category, and no comparison between them. Paragraph [0124] of Salem, also cited by the Office discloses only that "the present system compiles the information using the interactive diary, either passively ... or actively ... and makes recommendations or provides information to the user, or solicits additional specific information," giving as its sole examples displaying a target heart rate during exercise and remarking that a brown blouse "generally does not match her skin tone." Paragraph [0124] does not disclose or suggest key skin factors, weighting, or any comparison between subjective and objective data. It is directed to Salem's general interactive-diary recommendation feature, not to any skin-factor derivation process, let alone one involving a subjective/objective match. Regardless of whether Salem may disclose a form of "weighting," it is a different weighting entirely, and it is found elsewhere in the reference (at paragraph [0152]), which the Office does not cite for this limitation. There, Salem discloses that "the system may generate at least one PMI from the MCL using individual MCL components as variables" with "differential weighting," giving as an example that "criticality of white blood cell count may be zero, in another 20 weighting, in another 50 weighting, and in another 81.3 weighting." This is a statistical weighting of variables within an organ-vital-sign prediction model based on their predictive importance. It is not a weighting of a skin factor based on agreement between a subjective response and an objective measurement. Salem's weighting and the claimed weighting operate on entirely different criteria. Salem weights by predictive criticality to a model, whereas claim 1 weights by whether two independently sourced values for the same factor agree with one another. Paragraph [0087] of Salem discloses only a general oily-to-dry categorization and does not disclose scoring six factors and summing along two axes to select one of four skin types.
Salem's microbiome teaching is confined to the gut ([0160]-[0161]), not a skin microbiome distribution analyzed by age. Accordingly, for at least the reasons set forth above, Applicant respectfully submits that Salem fails to disclose or suggest features (1) and (2) above. Turning to Eder, this document concerns transfer learning for predictive-model development. Eder's weighting is a statistical weighting and selection of data points and input variables, not a subjective-objective match-based weighting, so Eder does not cure the deficiency of Salem as to limitation (1). The Office relies upon Eder, citing paragraphs [0250]-[025 l ], for "deriving a plurality of microbiomes by age" and the "mixing ratio." Those paragraphs compute, for diagnostic purposes, the variance of a subject's bacterial composition from a reference gut enterotype mixing ratio. That teaching is (a) directed to the gut rather than the skin, (b) a deviation from a reference value rather than a mixing ratio of microbiomes for cosmetic recommendation, and (c) devoid of any cosmetic-information purpose. Eder, paragraph [0051], records age merely as a characteristic tag and does not analyze a skin microbiome distribution by age to derive five microbiomes. Applicant further notes that Eder, paragraph [0032], cited for the mixing ratio, in fact addresses central-processing-unit control of software and is unrelated to a mixing ratio or to cosmetic information. Turning to Prior, this document pertains to a diagnostic system that visualizes factors contributing to skin conditions on a radial map. The Office relies on Prior, Table 3 and paragraphs [0074]-[0075], for obtaining subjective and objective survey information. Prior collects self-assessment data (subjective) and instrument and photo-grading data (objective) as separate data points and converts them to numerical values. The document does not compare subjective and objective values for a match or weight a factor based on such a match. Prior's "relative importance" is a fixed, subject-independent weight assigned per question and per response, which is distinct from the claimed per-subject, match-based weighting. Prior is silent as to a skin microbiome and therefore also fails to disclose or suggest limitations (1) and (2). Turning to Kovarik, which was previously applied against dependent claim 20 (cancelled herein, the subject matter having been incorporated into the independent claims), this document is directed to treating and preventing cancer and other age-related diseases by modifying an individual's microbiome, via CRISPR-Cas, to produce therapeutic compounds such as tomatidine, rapamycin, and p53 protein. The Office relies on Kovarik, paragraph [0017], for the "five microbiomes mixing ratio." Paragraph [0017] of Kovarik addresses cancer-cachexia treatment by administering a bacterial combination that expresses p53 and tomatidine and recites a group of bacterial species selected for genetic modification to express such therapeutics. That group is a selection list of candidate bacteria for modification; it recites no "five" microbiomes, no quantitative mixing ratio, and no analysis of an existing skin microbiome distribution by age, and Kovarik discloses no provision of cosmetic-product information. Kovarik therefore does not disclose the recited limitation, and the references at most place skin and gut microbiomes in a list of administration sites for an unrelated therapeutic purpose. Moreover, because none of Salem, Eder, Prior, and Kovarik discloses limitations (1) and (2), and Kovarik does not disclose the "five microbiomes" limitation now recited in claim 1 for the reasons discussed above, their combination cannot supply them. Even further, the motivations identified by the Office are generic: Eder [0363] (general improvement of entity health), Prior [0004] (general need for personalized service), and Kovarik [0013] (extending healthspan). None of these suggests the specific claimed skin-type-based cosmetic recommendation. In particular, Prior teaches away from the claimed automated classification. Prior criticizes assigning subjects to a small number of fixed skin-type categories such as oily, dry, or sensitive ([0029]-[0030]), and instead requires a trained consultant to draw a virtually unlimited number of inferences rather than to apply a single formula or algorithm ([0043]). A person of ordinary skill, reading Prior, would thus have been led away from the claimed multi-axis scoring and automated four-type selection. Further, combining a cancer-therapy reference such as Kovarik with the skin-diagnosis references to arrive at the claimed cosmetic-recommendation invention reflects impermissible hindsight reconstruction. See, e.g., KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398,421 (2007) (cautioning that "a factfinder should be aware ... of the distortion caused by hindsight bias"); In re Gorman, 933 F.2d 982, 987 (Fed. Cir. 1991) (it is "impermissible ... simply to engage in a hindsight reconstruction of the claimed invention, using the applicant's structure as a template and selecting elements from the references to fill the gaps"). Accordingly, for at least the reasons set forth above, Applicant respectfully submits that the prior art of record does not disclose or suggest the subject matter of Applicant's independent claim 1. As such, independent claim 1 is patentably distinct from the prior art of record and, thus, the rejection under 35 U.S.C. §103 should be withdrawn. Independent claim 11, although different in scope, recites at least some of the same distinguishing features discussed above with respect to claim 1. Therefore, for reasons similar to those presented above with respect to claim 1, the prior art of record fails to disclose or suggest the recited features of claim 11. Thus, the rejection should be withdrawn. Dependent claim 19 is also patentably distinct from the prior art of record at least due to its dependence from an allowable base claim;
(5) new claims 32 and 33 depend from claims 1 and 11, respectively, and are allowable at least due to their respective dependencies. They further recite training the algorithms on skin condition measurement information and skin microbiome analysis information collected from a plurality of subjects across an age range, which is not taught or suggested by the cited art.
In response to argument (1), the Examiner does not find the Applicant’s argument(s) persuasive. The Examiner maintains that the limitations, as drafted given the broadest reasonable interpretation, but for the recitation of generic computer components, encompass managing interactions between people, including following rules or instructions, which is a subgrouping of Certain Methods of Organizing Human Activity. The Applicant’s claims are similar to “iii. a mental process that a neurologist should follow when testing a patient for nervous system malfunctions, In re Meyer, 688 F.2d 789, 791-93, 215 USPQ 193, 194-96 (CCPA 1982)” (See MPEP 2106.04(a)(2)(II)(C)). The Applicant’s claimed limitations recite steps that could be accomplished a person following rules or instructions could follow while utilizing additional elements as tools. Applicant’s recitations of the additional elements of "pre-learned skin type selection algorithm" and a "pre-learned skin microbiome analysis algorithm" are recited at a high level of generality and amount to “apply it” as discussed below in the response to arguments (2)-(3). The 35 U.S.C. 101 rejection(s) stand.
In response to argument (2), the Examiner does not find the Applicant’s argument(s) persuasive. The Examiner does not acknowledge that the Applicant’s claims are analogous to McRO, Inc. v. Bandai Namco Games America Inc., 837 F.3d 1299 (Fed. Cir. 2016) and Enfish, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016) as the Applicant’s claims are merely automating the process of recommending cosmetic products to a person by utilizing medical data, patient age, and subjective data, a process that a dermatologist or similarly skilled physician could provide to a patient. The Examiner maintains that the Applicant’s newly amended claims are similar to “iii. Gathering and analyzing information using conventional techniques and displaying the result, TLI Communications, 823 F.3d at 612-13, 118 USPQ2d at 1747-48” and “ii. Using well-known standard laboratory techniques to detect enzyme levels in a bodily sample such as blood or plasma, Cleveland Clinic Foundation v. True Health Diagnostics, LLC, 859 F.3d 1352, 1355, 1362, 123 USPQ2d 1081, 1082-83, 1088 (Fed. Cir. 2017)” (See MPEP 2106.05(a)(II)), which the courts have indicated may not be sufficient to show an improvement to technology. The Applicant’s claimed invention does not describe additional elements that integrate the abstract idea into a practical application as the remaining elements amount to no more than general purpose computer components programmed to perform the abstract idea and insignificant extra-solution activity. There is no indication that the combination of elements improves the functioning of a computer or improves any other technology. The collective functions merely provide conventional computer implementation and do not impose a meaningful limit to integrate the abstract idea into a practical application. The Applicant’s additional elements of “a communication circuit comprising at least one of a wireless local area network chipset, a Wi-Fi chipset, a Bluetooth chipset, and a near field communication chipset, the communication circuit forming a network connection with an external device;”, “a user interface comprising an input device including at least one of a touch screen, a physical button, a camera, and a microphone, and an output device including at least one of a display panel and a speaker;” are recited at a high level of generality that amounts to merely “merely including instructions to implement an abstract idea on a computer” as these additional elements amount to a generic computer or a generic smartphone. The Applicant’s additional element “obtain survey information…” is recited at a high degree of generality, amount no more than storing and retrieving information in memory, the additional element requires acquiring two different types of data, however the amount and type of data is obtained as a well‐understood, routine, and conventional function. The Applicant’s additional element is similar to “i. Performing clinical tests on individuals to obtain input for an equation, In re Grams, 888 F.2d 835, 839-40; 12 USPQ2d 1824, 1827-28 (Fed. Cir. 1989)” (See MPEP 2106.05(g)) which is an example of mere data gathering. The 35 U.S.C. 101 rejection(s) stand.
In response to argument (3), the Examiner does not find the Applicant’s argument(s) persuasive. The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception. As discussed above with respect to integration of the abstract idea into a practical application, the additional elements of using a computer configured to perform above identified functions amounts to no more than mere instructions to apply the exception using generic computer components. Mere instructions to apply an exception using a generic computer component cannot provide an inventive concept. See Alice 573 U.S. at 223 (“mere recitation of a generic computer cannot transform a patent-ineligible abstract idea into a patent-eligible invention.”) Insignificant, extra solution, data gathering activity has been found to not amount to significantly more than an abstract idea (See MPEP 2106.05(g)). Therefore, whether considered alone or in combination, the additional elements do not amount to significantly more than the abstract idea. The claims are not patent eligible. Additionally, generally linking the abstract idea to a particular technological environment does not amount to significantly more than the abstract idea (See MPEP 2106.05(h) and Affinity Labs of Texas v. DirectTV, LLC, 838 F.3d 1253, 120 USP12d 1201 (Fed. Cir. 2016)). Applicant’s claimed additional elements recite “i. Receiving or transmitting data over a network, e.g., using the Internet to gather data, Symantec, 838 F.3d at 1321, 120 USPQ2d at 1362 (utilizing an intermediary computer to forward information); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 610, 118 USPQ2d 1744, 1745 (Fed. Cir. 2016) (using a telephone for image transmission); OIP Techs., Inc., v. Amazon.com, Inc., 788 F.3d 1359, 1363, 115 USPQ2d 1090, 1093 (Fed. Cir. 2015) (sending messages over a network); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355, 112 USPQ2d 1093, 1096 (Fed. Cir. 2014) (computer receives and sends information over a network); but see DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1258, 113 USPQ2d 1097, 1106 (Fed. Cir. 2014) ("Unlike the claims in Ultramercial, the claims at issue here specify how interactions with the Internet are manipulated to yield a desired result‐‐a result that overrides the routine and conventional sequence of events ordinarily triggered by the click of a hyperlink." (emphasis added))”, “iv. Storing and retrieving information in memory, Versata Dev. Group, Inc. v. SAP Am., Inc., 793 F.3d 1306, 1334, 115 USPQ2d 1681, 1701 (Fed. Cir. 2015); OIP Techs., 788 F.3d at 1363, 115 USPQ2d at 1092-93;”, “i. Determining the level of a biomarker in blood by any means, Mayo, 566 U.S. at 79, 101 USPQ2d at 1968; Cleveland Clinic Foundation v. True Health Diagnostics, LLC, 859 F.3d 1352, 1362, 123 USPQ2d 1081, 1088 (Fed. Cir. 2017);”, “iv. Presenting offers and gathering statistics, OIP Techs., 788 F.3d at 1362-63, 115 USPQ2d at 1092-93” (See MPEP 2106.05(d)(II)), The courts have found to be well-understood, routine, conventional activity. The Examiner will address the prior art rejection arguments in response to argument (4). The 35 U.S.C. 101 rejection(s) stand.
In response to argument (4), the Examiner does not find the Applicant’s argument(s) persuasive. The Examiner maintains that the combination of Salem (U.S. Patent Pre-Grant Publication No. 2018/0316781) in view of Eder (U.S. Patent Pre-Grant Publication No. 2015/0235143) in view of Prior (U.S. Patent Pre-Grant Publication No. 2014/0096078) in further view of Kovarik et al. (U.S. Patent Pre-Grant Publication No. 2019/0307813) teaches the claims 1, 11, 19, 32-33 as described above. Salem teaches “weighting a key skin factor, among the key skin factors, for which the subjective survey information and the objective survey information match each other” in [0145]-[0146], [0155], [0164], [0173]-[0174]: The present design thus provides a personal care module that is configured to receive, from a sensor configured to detect blood distribution analysis and spread at two or more regions of a user via user skin color, tone, temperature, condition (dry/soft/firm/swollen/sunken), and capillary refill, which the Examiner is interpreting the system may also generate at least one second PMI from the MCL based on a differential weighting, or the MCL components relevant to the vital sign or interest to encompass weighting a key skin factor, among the key skin factors, for which the subjective survey information and the objective survey information match each other as skin color may have high importance in assessing and may be assigned a value of, for example, 50%, while in another assessment skin color may have an assessment value of 1%, and user interactive sessions can identify correlations between objective survey information (measurements ([0174]: user/patient's temperature)) and subjective survey information (user speech ([0174])). The Examiner maintains that Salem’s disclosure of “the system may generate at least one PMI from the MCL using individual MCL components as variables” to encompass the skin factors are used in both the pre-learned skin type selection algorithm and the pre-learned skin microbiome analysis algorithm as the Applicant’s claimed algorithms are making also making predictions based on a scoring of the skin factor variables as Salem describes in [0146]: “The present system further provides a method of generating a prediction model of a vital sign of interest. The system is configured to obtain at least one data set relevant to a vital sign of interest, select variables from each data set relevant to the vital sign of interest, generate at least one first prediction model (PMo) of each vital sign based on differential weighting or at least one data set variable. The system generates at least one PMI and may further generate a Model Component Library (MCL) from each PMI.” Prior teaches “subjective survey information” and “objective survey information” describes in Table 3 and [0074]-[0075]: Information is obtained through a subject's self-evaluation as prompted by a questionnaire containing various questions related to a few general categories or factors including age, body, skin, and lifestyle, which the Examiner has combined with Salem/Eder as collected data to be inputted into the device of Salem/Eder. The Examiner has added Kovarik to address the newly amended claims 1, 11, and 19 as Kovarik describes in [0017]: a subject in need thereof an effective amount of a bacterial combination that expresses p53 protein and tomatidine, in certain embodiments, the cancer is a metastatic cancer; and the microbiome is one or more of the gut microbiome, the oral microbiome or the skin microbiome. Eder describes in [0134]: “Microbiome--one or more microbial communities that inhabit a particular organism, for example the human microbiome includes communities located in or on nasal passages, oral cavities, skin, the gastrointestinal tract and the urogenital tract, community members include bacteria and fungi.” The Examiner maintains that Eder describes “derive information about a plurality of microbiomes corresponding to the user's skin condition with respect to a skin microbiome distribution analyzed by age” in [0051]-[0053], [0131]-[0134], [0250]: If the nextgen sequence data comprises bacteria data from the subject entity microbiome, then the software in this block will also compare the data to the reference enterotypes in order to identify the enterotype of each microbiome population, which the Examiner is interpreting identify the enterotype of each microbiome population to encompass a skin microbiome distribution analyzed by age (See [0051]: entity characteristics (e.g., individual patient name, occupation, age and weight, phenotype, edgotype and phenotype)), and the Examiner maintains that the combination of Salem’s “Information about personal care generally falls into five categories, but other categories may be employed or provided, the five categories including health, fitness/wellness, fashion, cosmetics, and pharmaceuticals” ([0042]) and identification of microbiota ([0160]) teaches Applicant’s claimed portion of “provide information on cosmetic products according to a mixing ratio of each microbiome for the plurality of microbiomes including five microbiomes corresponding to the user's skin condition based on the selected skin type and the analyzed skin microbiome distribution” further combined with Prior/Kovarik’s disclosure of “five microbiomes” and “obtain survey information…”. The Examiner maintains that Kovarik teaches “five microbiomes corresponding to the user's skin condition” as Kovarik describes in [0017], [0024]-[0025], [0053] the use of the “skin microbiome” and differing microbes that can be selected, which the Examiner is interpreting, when combined with Salem/Eder/Prior to encompass the claimed portion of provide information on cosmetic products according to a mixing ratio of each microbiome for the plurality of microbiomes including five microbiomes corresponding to the user's skin condition based on the selected skin type and the analyzed skin microbiome distribution, wherein the key skin factors are used in both the pre-learned skin type selection algorithm and the pre-learned skin microbiome analysis algorithm. The Examiner maintains that Prior’s claimed invention provides for more variables to be taken into account as the present invention therefore provides opportunities to the beauty consultant and the consumer which extend well beyond those provided by known diagnostic models which assign an individual to a general category and treat all members of a category substantially identically ([0030]) instead of generalizing the patient. The Examiner maintains that one of ordinary skill in the art would have been motivated to modify Salem with Eder with the motivation of improve the health of the subject entity (See Detailed Description of the Invention of Eder in Paragraph [0363]), one of ordinary skill in the art before the effective filing date of the claimed invention would have been motivated to modify Salem/Eder with Prior with the motivation of provide a more highly customized service experience (See Background of the Invention of Prior in Paragraph [0004]), and one of ordinary skill in the art before the effective filing date of the claimed invention would have been motivated to modify Salem/Eder/Prior with Kovarik with the motivation of extend the healthspan and lifespan of humans (See Background of the Invention of Kovarik in Paragraph [0013]). Salem/Eder/Prior/Kovarik are all focused on the improvement of a person’s experience, whether that be medical, health, or mental health experience. Applicant's arguments filed August 3, 2026 have been fully considered but they are not persuasive. In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). The 35 U.S.C. 103 rejection(s) stand.
In response to argument (5), the Examiner does not find the Applicant’s argument(s) persuasive. The Examiner has rejected claims 32-33 due to their dependency on independent claims 1 and 11, and individually as described above in the 35 U.S.C. 103 rejection(s). The 35 U.S.C. 103 rejection(s) stand.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Hanina et al. (U.S. Patent Pre-Grant Publication No. 2019/0083031), describes systems and methods for determining a health status of a patient through an automated interview.
Maclellan et al. (U.S. Patent Pre-Grant Publication No. 2022/0051409), describes methods, systems, and storage media for determining a numerical classification of human skin color, determining one or more characteristics of skin based on images, and determining a personalized treatment plan for one or more skin conditions.
Loriè et al. (“The Future of Personalized Medicine in Space: From Observations to Countermeasures”), describes technological advances in sequencing, improved knowledge of omics, integration with bioinformatics and new in vitro testing formats, have enabled personalized medicine to become a reality.
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Bennett S Erickson whose telephone number is (571)270-3690. The examiner can normally be reached Monday - Friday: 9:00am - 5:00pm.
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/Bennett Stephen Erickson/Primary Examiner, Art Unit 3683
