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 .
CONTINUING DATA
This application is a 371 of PCT/EP2023/054020 02/17/2023
FOREIGN APPLICATIONS
FRANCE 2201380 02/17/2022
Claims 1-13 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.
Claims 1-11 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim(s) does/do not fall within at least one of the four categories of patent eligible subject matter because they are “use” claims that do not purport to claim a process, machine, manufacture, or composition of matter. One cannot claim a new use per se, because it is not among the categories of patentable inventions specified in 35 U.S.C. 101. MPEP 2173.05(q).
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 1-13 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.
Claims 1-11 are drawn to the use of formula (I), but do not recite any steps. Attempts to claim a process without setting forth any steps involved in the process generally raises an issue of indefiniteness under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph. MPEP 2173.05(q).
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c).
In the present instance, claim 1 recites the broad recitation “2 to 24”, and the claim also recites “preferably from 5 to 13,” which is the narrower statement of the range/limitation.
In the present instance, claim 1 recites the broad recitation “optionally unsaturated”, and the claim also recites “in particular a mono-, di- or tri-saturated alkyl radical,” which is the narrower statement of the range/limitation.
In the present instance, claim 2 recites the broad recitation “1 to 23”, and the claim also recites “in particular from 3 to 15 and more particularly from 4 to 12,” which is the narrower statement of the range/limitation.
In the present instance, claim 4 recites the broad recitation “at least 2”, and the claim also recites “preferably of at least three,” which is the narrower statement of the range/limitation.
In the present instance, claim 4 depends from claim 1 and thus incorporates by reference the broad recitation “m= 2, 1, or 0”, and the claim also recites “m is preferably equal to 1,” which is the narrower statement of the range/limitation.
In the present instance, claim 5 recites the broad recitation “m = 2, 1, or 0,” and the claim also recites “preferably m = 1,” which is the narrower statement of the range/limitation. Claim 5 also recites for variable p “1 to 23,” and also recites “preferably from 4 to 12,” which is the narrower statement of the range/limitation. Claim 5 also recites for variable q “1 to 23,” and also recites “preferably from 4 to 12,” which is the narrower statement of the range/limitation.
In the present instance, claim 6 recites the broad recitation “use according to claim 5”, and the claim also recites preferably “is used in the form of a mixture,” which is the narrower statement of the range/limitation. Claim 6 also recites “at least 50% by weight,” and the claim also recites “preferably from 51% to 85%,” which is the narrower statement of the range/limitation.
In the present instance, claim 8 recites the broad recitation “at least two”, and the claim also recites “in particular at least three” which is the narrower statement of the range/limitation.
In the present instance, claim 8 recites broad recitation directed to the definition of R1 and the claim also recites “preferably R1 is a –(CH2)6CH3 radical and R2 is a nonenyl radical,” which is the narrower statement of the range/limitation.
In the present instance, claim 9 recites the broad recitation “3% to 12%”, and the claim also recites “preferably from 5% to 10%,” which is the narrower statement of the range/limitation.
In the present instance, claim 10 recites the broad recitation “0.01% to 10%”, and the claim also recites “preferably from 0.1% to 5% by weight, even better from 0.3% to 3%,” which is the narrower statement of the range/limitation.
In the present instance, claim 11 recites the broad recitation “cosmetic composition”, and the claim also recites “preferably is in the form of an oil-in-water emulsion,” which is the narrower statement of the range/limitation.
In the present instance, claim 12 recites the broad recitation “cosmetic composition”, and the claim also recites “notably in the form of an oil-in-water emulsion,” which is the narrower statement of the range/limitation. Claim 12 also recites a step c) “preferably, a step of topical application.”
In the present instance, claim 13 recites the broad recitation “skin of the face and/or of the body”, and the claim also recites “in particular of the face and/or of the hands, preferably of the face, and more particularly of the forehead,” which is the narrower statement of the range/limitation.
The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
Regarding claim 1, the phrase "for example" renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d). In the present instance, claim 1 recites “colour”, and the claim also recites “for example brown or black colour.”
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1-11 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Glenncorp (Face and Body Cleansing Cream, internet article, https://web.archive.org/web/20220126181213/https://glenncorp.com/formulations/face-and-body-cleansing-cream/, January 26, 2022).
Glenncorp teaches an oil-in-water emulsion face and body cream which comprises 6% Rheance One glycolipids. Rheance One is an effective treatment for blemished skin due to its sebum reduction properties. See entire document.
Rheance One inherently meets the claim limitations because it is the same product used in the current specification.
The current claims do not require any method steps, only a “use.”
Claim(s) 1-3, 5-6, and 10-11 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Piljac (WO 93/14767).
Piljac teaches an ointment containing 1.0% by weight of the following rhamnolipid (pages 5-6).
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This is a compound of formula (I) or formula (II) where n is 1 and m is 1. Ra is C7 alkyl, and R2 is C7 alkyl, and p and 1 are each 6. The product is for use as a cosmetic preparation (claim 14) for treatment of acne (page 8).
Claim(s) 1-9 and 11 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Schilling (US 2017/0335238 A1).
Schilling teaches a rhamnolipid composition for cosmetic use such as in shampoos or hand cleansers [0003]. The rhamnolipids are of the following formula on page 2:
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Preferred compositions are described on page 3, and the passages on page 3 refer to compositions which are the same as the compositions recited in current claims 8-9.
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The rejected claims are use claims and do not recite any active steps.
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.
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.
Claim(s) 12-13 are rejected under 35 U.S.C. 103 as being unpatentable over Glenncorp or Piljac in view of Estrada (The Right Order to Apply Your Skincare and Acne Products, internet article, https://www.herocosmetics.us/blogs/news/the-right-order-to-apply-your-skincare-and-acne-products, September 2, 2020).
Piljac teaches an ointment containing 1.0% by weight of the following rhamnolipid (pages 5-6).
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This is a compound of formula (I) or formula (II) where n is 1 and m is 1. Ra is C7 alkyl, and R2 is C7 alkyl, and p and 1 are each 6. The product is for use as in a cosmetic preparation (claim 14) for treatment of acne (page 8).
Glenncorp teaches as set forth above, application of a product which inherently meets the limitations of the current claims for treatment of blemished skin.
Glenncorp and Piljac do not teach step a) of claim 12, a step of topical application of a washing solution.
Estrada teaches that skincare requires a first step of cleansing the skin (page 2), followed by toner, serum, moisturizer, and acne medication followed by sunscreen. Pages 3-5.
It would have been obvious to one of ordinary skill in the art at the time the application was filed to carry out a skincare routine comprising cleansing the skin followed by application of Piljac’s composition or Glenncorp’s composition as an anti-acne treatment, and optionally to further apply other products, because Estrada teaches that the skin should be cleansed before applying acne treatment and other products.
Claim(s) 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Schilling in view of Piljac.
Schilling teaches as set forth above, but does not teach that the rhamnolipids should be present in a cosmetic product in a proportion of 0.01-10% by weight.
Schilling teaches a rhamnolipid product for use in cosmetics as set forth above, but does not teach what the rhamnolipid concentration should be when applied to a cosmetic product.
Piljac teaches as set forth above, a cosmetic product which contains 1% rhamnolipids.
It would have been obvious to one of ordinary skill in the art at the time the application was filed to prepare a cosmetic composition comprising 1% of Schilling’s rhamnolipids because Schillings’s product is useful in cosmetics and the prior art teaches a cosmetic product containing 1% rhamnolipids.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LAYLA D BERRY whose telephone number is (571)272-9572. The examiner can normally be reached 7:00-3:00 CST, M-F.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Scarlett Goon can be reached at 571-270-5241. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/LAYLA D BERRY/Primary Examiner, Art Unit 1693
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