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 .
Summary
Claims 25 - 47 are pending in this office action. Claims 1-24 are cancelled. All pending claims are under examination in this application.
Priority
The current application filed on November 13, 2024 is a 371 of PCT/EP2023/066044 filed June 15, 2023, which in turn claims priority to French patent application FR2205828 filed on June 15, 2022.
Information Disclosure Statement
Receipt of the Information Disclosure Statement filed on January 2, 2025 is acknowledged. A signed copy of the form PTO/SB/08 is attached to this office action.
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 43-45 and 47 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 refer to a “use” which is not one of the statutory categories of invention.
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 26, 27, 43-45 and 47 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.
With regard to claims 43-45 and 47, the claims refer to a “use” which renders the claim indefinite because it cannot be determined if the intent is to claim a composition or a method.
This rejection may be overcome by cancelling the claims or redrafting them as method of, for example, treating skin comprising applying the composition of claim 25 to a skin of a subject, or some such language, if the intent is to claim a process.
Regarding claim 26, the phrases “preferably” and "such as" render the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Regarding claim 27, the phrase “preferentially” renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 46 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. The claim recites several intended utilities of the composition of claim 25. The statement of intended utility does not affect the makeup of the composition; for example, no additional ingredients or special forms or amounts are specified that would actually change the composition. Accordingly, this claim dies not further limit claim 25.
Applicant may cancel the claims, amend the claim to place it in proper dependent form, rewrite the claim in independent form, or present a sufficient showing that the dependent claim complies with the statutory requirements.
REASONS FOR ALLOWANCE
The following is an examiner’s statement of reasons for allowance: The closest prior art found includes the following:
. Vedel et al. WO 2020127637 A1, published 2020-06-25 teach compositions comprising fat-encapsulated viable microorganism (see abstract) in amounts similar to those claimed (page 5, lines 23-28). They teach that the fat component may comprise one or more oils (page 6, lines 14-16) which may be vegetable oils, see page 22, line 26 - page 23, line 10. The microorganism may be a probiotic such as lactobacillus crispatus (page 11, line 22), Corynebacterium (page 12, line 4), and streptococcus (page 11, line 11). Vedel et al. do not teach the claimed linear-chain lipodispersible and liposoluble molecules or the specific "other" linear-chain lipodispersible and liposoluble molecules.
Kojima et al. JP 2015040201 A, published 2015-03-02 teach lactobacillus crispatus as an active ingredient in cosmetic compositions; they do not teach the claimed carrier formulation.
Romagnoli et al. (Reference D1 in the Written Opinion) teach dermatological compositions comprising bacterial lysates in a composition comprising, inter alia, 5-10% coco-caprylate, 1-5% C15-19 alkanes. They do not teach live probiotic bacteria, nor do they teach that the coco-caprylate-alkane mixture must constitute at least 40% of the composition.
Lacombe et al., FR 3110414 A1 (Reference D3 in the Written Opinion) teach cosmetic compositions comprising probiotic bacteria in a coco caprylate/caprate mixture. They teach that the bacteria are tyndalized (dead) and do not teach that the coco-caprylate/caprate mixture must constitute at least 40% of the composition.
Gueniche et al., FR 2920306 A1 (Reference D4 in the Written Opinion) teach cosmetic compositions comprising lysates of probiotic bacteria in behenyl alcohol derivative; they do not teach that the behenyl alcohol must constitute at least 40% of the composition.
The conclusion is that, although the concept of live probiotics in cosmetics is taught, there is no teaching that the specifically-claimed carrier must constitute at least 40% of the composition. The examples in the instant specification establish the criticality of same.
Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
Conclusion
Claims 25 and 28-42 are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Robert A. Wax whose telephone number is (571)272-0623. The examiner can normally be reached 8:00 AM -4:00 PM Monday - Friday.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jennifer Michener can be reached at (571) 272-1424. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Robert A Wax/Supervisory Patent Examiner, Art Unit 1615
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