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 .
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 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.
Claim Status
Claims 1-10 are pending and are examined on the merits in this prosecution.
CLAIM REJECTIONS
Indefiniteness Rejection
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.
Claim 7 is 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 pre-AIA the applicant regards as the invention.
Claim 7 recites the limitation "structural unit” in the second line. There is insufficient antecedent basis for this limitation in the claim.
Obviousness Rejection
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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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.
1) Claims 1-10 are rejected under 35 U.S.C. 103 as being unpatentable over Matsuno (US 2016/0053067 A1), in view of Clare (WO 2015/014603 A2).
Matsuno teaches porous resin particles which contain a polymer of a monomer mixture containing, as monomers, a polymer of a monomer mixture of a mono(meth)acrylate-based monomer and a polyfunctional vinyl-based monomer, reading on a crosslinkable monomer (Abstract).
For claim 1, Matsuno teaches the porous particles have an average pore diameter of preferably 4 nm to 20 nm (pg 5, [0065]) within the claimed range; because the claimed range overlaps with the range disclosed by the prior art, a prima facie case of obviousness exists. Matsuno also teaches an oil absorption of 465 mL/100 gm to 539 mL/100 g (col 7: 40-42), within the claimed range.
Matsuno teaches a volatile component such as fragrances including anisaldehyde, benzyl acetate, and geraniol (pg 9, [0017]), as well as “medicinal ingredients” such as Mentha piperita (peppermint; pg 10, [0121]), reading on an “essential oil,” and reading on claim 4.
For the claim 1 limitation of the mass ratio of the volatile component to the resin, Matsuno teaches a preferred ratio of 5-200 parts of the medicinal (volatile) ingredient to 100 parts of resin (pg 10, [0124]), overlapping the claimed range.
For claim 5, Matsuno teaches inclusion of a wetting agent such as glycerin, propylene glycol, and 1,3-butylene glycol (pg 7, [0089]). For claim 9, Matsuno teaches the hydrophilic dispersion medium typically accounts for 20 wt% to 90 wt% of the dispersion liquid ([0089]).
Matsuno does not teach a gel or hydrogel composition and does not teach the claimed range of particles in the composition.
Clare teaches the missing elements of Matsuno.
Clare teaches a composition comprising at least one particle comprising at least one ethylenically unsaturated monomer selected from C1-C20 linear or branched, alkyl acrylates and methacrylates, and an active material (pg 41, claim 1). Clare teaches the composition may contain a hydrophobic skin benefit agent, selected from perfumes, anti-aging agents, antioxidants, vitamins, antimicrobial agents, anti-bacterial agents, anti-inflammatory actives, skin lightening agents, skin conditioning agents, and oils (pgs 41-42, claim 5).
Clare teaches products in the form of an aqueous based liquid or a gel (pg 30: 13-20).
For claim 7, Clare teaches the content of particles in the composition is preferably 1-10 wt % (pg 30: 18-20), overlapping the claimed range.
For claim 8, Clare teaches the monomers can include methacrylamide, an N,N-dialkyl methacrylamide, or methacrylic acid (pg 11: 23 to pg 12: 7).
Claim 10 recites limitations of intended use or purpose of the product of claim 1. Since this recitation does not involve a physical modification of the composition, and Clare teaches the inclusion of antimicrobial agents, anti-bacterial agents, and anti-inflammatory actives in a topical gel composition, one of ordinary skill would have expected success in utilizing this composition as a wound covering. See MPEP 2144.07. See also MPEP 2111.02(II).
The skilled artisan would have expected success in substituting Clare's gel or hydrogel formulation for the liquid formulation of Matsuno because gel compositions are preferred due to less leakage of the composition; greater ease in dispensing the correct amount; greater accuracy in applying the gel to the desired area of the skin; and potentially longer residence time of the composition on the skin due to the formation of a film on the skin.
CONCLUSION
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL P COHEN whose telephone number is (571)270-7402. The examiner can normally be reached on M-Th 8:30-5:30; F 9-4.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sahana S. Kaup, can be reached on (571) 272-6897. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MICHAEL P COHEN/Primary Examiner, Art Unit 1612
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