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 .
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 9, 15 and 20 are/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 applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
“preferably” and “particularly preferably” is another example of “for example”. 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).
Claim Rejections - 35 USC § 102
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, 14 – 17, and 21 – 24 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Gershteyn (US 6,348,694 B1).
With respect to independent claim 1, Gershteyn teaches a method (400) for determining a protection factor actual effectiveness of sunscreen 26 of a skin protectant, comprising the steps of:
emitting (110) radiation 36, 38 from a radiation source unit (12) of a protection factor evaluation system (1),
detecting remitted radiation 36A, 38A from a detector unit (13) 32, 34 of a protection factor evaluation system (1) 86,
transferring data as shown in Fig. 7 of the remitted radiation to an evaluation unit (10),
evaluating (300) the protection factor in an evaluation wavelength range UV and Visible in column 7, line 45 – 46,
wherein a correction function is taken into consideration when evaluating (300) the protection factor, wherein the correction function describes differences depending on the skin type column 20, lines 17 – 41.
With respect to dependent claims 2 – 3, Gershteyn teaches in column 20, lines 17 – 41 that the correction function outputs a corrected value SFcorr or UVA-SFcorr and that the correction function is F (SF) = SF_corr or F (UVA-SF_corr.
With respect to dependent claim 4, Gershteyn teaches in column 20, lines 17 – 41 and column 14, lines 28 – 41 that the correction function makes the measured values of different skin types comparable by the corrected values.
With respect to dependent claim 5, Gershteyn teaches that the correction function F is a linear factor see column 9, line 48 – column 10, line 16 or an exponential function.
With respect to dependent claim 6, Gershteyn teaches in column 14, lines 28 – 41 that the correction function has a constant C, wherein C depends on the skin type or the ITA0 value.
With respect to dependent claims 7 – 8, Gershteyn teaches in column 20, lines 9 – 23 that the skin type-dependent differences are determined by a measurement (125) and that the skin type-dependent differences are determined by a reflection measurement.
With respect to dependent claim 9, Gershteyn teaches in column 11, line 61 – column 12, line 13 in that the emitted radiation comprises an irradiation wavelength range between 280 nm and 2000 nm, preferably 280 nm to 800 nm, particularly preferably the range from 280 nm to 500 nm.
With respect to dependent claim 10, Gershteyn teaches in column 7, lines 44 – 49 that the evaluation wavelength range is different from the irradiation wavelength range.
With respect to dependent claim 11, Gershteyn teaches in column 7, lines 1 – 22 that the protection factor of the protectant is evaluated (300) from the remitted radiation and a transmission spectrum.
With respect to dependent claim 14, Gershteyn teaches in column 11, line 61 – column 12, line 13 that the wavelength range of the transmission spectrum includes the evaluation wavelength range.
With respect to dependent claim 15, Gershteyn teaches in column 11, lines 16 – 52 that the evaluation wavelength range of the transmission spectrum comprises the wavelength range from 280 nm to 2000 nm, preferably the wavelength range from 280 nm to 800 nm, or particularly preferably the wavelength range from 280 nm to 500 nm and/or the wavelength range from 400 nm to 500 nm and/or the wavelength range from 400 nm to 450 nm.
With respect to dependent claim 16, Gershteyn teaches in column 11, lines 30 – 46 that the evaluation (300) of the protective ability of the protectant for light in a wavelength range from 400 nm to 500 nm is carried out in a method separate from the evaluation (300) of the protective ability of the protectant for light in a wavelength range from 280 nm to 400 nm.
With respect to dependent claim 17, Gershteyn teaches in column 11, lines 30 – 46 that the evaluation (300) of the protective ability of the protectant for light in a wavelength range from 400 nm to 500 nm is carried out in a method different from the evaluation (300) of the protective ability of the protectant for light in a wavelength range from 280 nm to 400 nm.
With respect to dependent claim 21, Gershteyn teaches in column 11, lines 30 – 39 that the irradiation wavelength and/or the detection wavelength only comprises light with wavelengths outside the wavelength range of 400 nm to 450 nm.
With respect to dependent claim 22, Gershteyn teaches in column 11, lines 30 – 39 that the irradiation wavelength and/or the detection wavelength only comprises light with wavelengths outside the wavelength range of 400 nm to 500 nm.
With respect to dependent claim 23, Gershteyn teaches in column 11, lines 30 – 39 that the evaluation wavelength comprises wavelengths outside the wavelength range of 400 nm to 500 nm.
With respect to dependent claim 24, Gershteyn teaches in column 11, lines 30 – 46 that the evaluation wavelength comprises wavelengths
λ
. with λ < 400 nm.
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.
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.
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 is/are rejected under 35 U.S.C. 102(a) (1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Gershteyn.
The teaching of Gershteyn has been discussed above.
With respect to dependent claim 12, because of Eq. (1) and skin type discussed in column 9, lines 1 – 29, Gershteyn should have that the data of the transmission spectrum for determining the protection factor is read from a database of the evaluation unit (10). Or in view of Eq. (1) and in column 9, lines 1 – 29, it would be obvious at the time of the claimed invention was filed to modify the teaching of Gershteyn in order to correctly calculate the absorption coefficient of sunscreen. This is in consistency with the Supreme Court Decision of the KSR. V. International Co.: Obvious to try – choosing form a finite number of predictable results.
Claim(s) 13, 18 – 20, and 25 is/are rejected under 35 U.S.C. 103 as obvious over Gershteyn.
The teaching of Gershteyn has been discussed above.
With respect to dependent claim 13, the limitation of “that the transmission spectrum data for determining the protection factor is in silico data” would be obvious in order to measure the transmission in Eq. (1) in Gershteyn.
With respect to dependent claim 18, Gershteyn is silent with that the wavelength range of the irradiation wavelength or the wavelength range of the detection wavelength is smaller than the wavelength range of the evaluation wavelength.
However, Gershteyn teaches in column 11, lines 27 – 52 “present invention is not limited to use with any particular wavelength ranges”. In view of this, the limitation of claim 18 is obvious choice of wavelengths This is in consistency with the Supreme Court Decision of the KSR. V. International Co.: Obvious to try – choosing form a finite number of predictable results.
With respect to dependent claim 19, Gershteyn is silent with that the wavelength range of the irradiation wavelength or the wavelength range of the detection wavelength in the wavelength range of the evaluation wavelength range is smaller than the wavelength range of the evaluation wavelength.
However, Gershteyn teaches in column 11, lines 27 – 52 “present invention is not limited to use with any particular wavelength ranges” and in column 2, lines 17 – 35 “other wavelength ranges ….including other UV ranges such as UV-A”. In view of this, the limitation of claim 18 is obvious choice of wavelengths This is in consistency with the Supreme Court Decision of the KSR. V. International Co.: Obvious to try – choosing form a finite number of predictable results.
With respect to dependent claim 20, the limitation of “the range of the irradiation wavelength and/or the wavelength range of the detection wavelength is less than 100 nm, preferably less than 50 nm, and particularly preferably less than 25 nm” would be obvious choice as discussed above.
With respect to dependent claim 25, the limitation of “the evaluation wavelength comprises wavelengths λ with 320 nm <λ< 400 nm” would be obvious choice as discussed above. This is in consistency with the Supreme Court Decision of the KSR. V. International Co.: Obvious to try – choosing form a finite number of predictable results.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Helfmann (US 2018/0321139 A1) teaches determining the sun protection factor of suncreens.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KIHO KIM, Ph.D. whose telephone number is (571)270-1628. The examiner can normally be reached M-F: 8-5 EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, David Makiya can be reached at (571)272-2273. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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KIHO KIM, Ph.D.
Primary Examiner
Art Unit 2884
/Kiho Kim/ Primary Examiner, Art Unit 2884
