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 .
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1-28 is/are rejected under 35 U.S.C. 103 as being unpatentable over Thomas et al. (US 2015/0359722; of record) in view of Goutsis et al. (US 2017/0319441; of record) and Trinh et al. (US 5429628; of record).
Thomas teaches the use of ß-cyclodextrin (presumed ‘native’; see instant claims 19 and 25) as a pearlescent agent in an aqueous hair care treatment composition wherein the cyclodextrin is present as solid, uniformly shaped particles (see [0066, 0139, 0140]; see instant claims 5-7, 9) with a diameter between 0.5 to 200 µm (see [0064]) as measured by laser particle size analysis. Given that the particles of the particles are to be included in the composition in an amount of between 0.1-10wt% (see [0141]). Moreover, as the cyclodextrin is within the solid particles of Thomas, the cyclodextrin is presumed to be at least 5wt% of the solid particles (see instant claim 3) and in an amount 5% greater than the solubility in the composition (see instant claims 4 and 12). Water is present in the composition in an amount of from 20% to 80% (see claim 17). Thomas teaches the composition be in the form of a paste (see [0101]; see instant claim 10) which is described as being able of to be spread (see [0101]; see instant claim 13).
Moreover, Thomas teaches their composition is made by a method of mixing the ingredients described together (see [0431]; see instant claim 11)
Thomas fails to teach the size distribution of ß-cyclodextrin.
Goutsis is directed to an oil-in-water hair treatment compositions that comprises finely divided particles which may comprise cyclodextrin. Particles present in the composition are to have a d10 of 9 microns, a d50 of 16 microns and a d90 of 24 microns (a coefficient of variation of less than 100%, 90% and 73%; see instant claims 2, 8, 17, 18, 23 and 24) and would be considered conveyable to the particles comprising cyclodextrin. The particles are to have a volume average size of less than 200 microns (see [0157]), although particularly advantageous sizes encompass from 10 nm to 50 microns (see [0195]; see instant claims 1, 7, 20, 21, 26 and 28). It is observed that a population of particles comprising cyclodextrin having a volume average size of 10 nm would mathematically necessitate that the claimed diameter requirements for d10, d50 and d90 all be “less than” that claimed (i.e. diameter d(10) is less than or equal to 2.5 µm, diameter d(50) is less than or equal to 10.0 µm, and diameter d(90) is less than or equal to 25.0 µm) (see instant claims 1, 7, 11, 14-16, 22 and 28). It is taught that cosmetic compositions utilizing such particles exhibit improved skin tolerance (see [0011]).
Trinh is directed to the use of particles comprising cyclodextrin to remove odours and that the particles are to have a particle size less than 12 microns (see column 20, lines 35-36) and that it is desirable to have at least about 90% of the particles being around the desired size (see column 20, lines 42-50; see instant claims 2, 8, 17, 18, 23 and 24). It would have been obvious to utilize Trinh’s teaching together so produce a population of particles having a narrow size distribution to ensure a monodisperse population of particles and ensure a homogenous composition.
Therefore, the invention as a whole is prima facie obvious to one of ordinary skill in the art at the time the invention was filed, as evidenced by the references, especially in absence of evidence to the contrary.
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.
Claims 4, 10 and 12 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
Claim 4 recites, “…wherein the content of cyclodextrin in the composition is 5% greater than the solubility thereof in the physiologically acceptable medium of said composition.” The Examiner is unclear what is being claimed. Is the limitation claiming a composition which comprises cyclodextrin in an amount exactly 5% above its solubility in the composition or is it a limitation that the composition enables 5% greater solubility than a composition without cyclodextrin or something else entirely? The Examiner is unclear what claim 4 is claiming and guidance/clarification is requested. Claim 12 is rejected similarly.
Regarding claim 10, 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).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KYLE A PURDY whose telephone number is (571)270-3504. The examiner can normally be reached from 9AM to 5PM.
If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor, Bethany Barham, can be reached on 571-272-6175. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KYLE A PURDY/Primary Examiner, Art Unit 1611
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