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United States Patent and Trademark Office 



UNITED STATES DEPARTMENT OF COMMERCE 
United States Patent and Trademark Office 
Address: COMMISSIONER FOR PATENTS 
P.O. Box 1450 

Alexandria, Virginia 22313-1450 
www.uspio.gov 



APPLICATION NO. 



FILING DATE 



nRST NAMED fNVENTOR 



ATTORNEY DOCKET NO. CONFIRMATION NO. 



09/773,351 



01/31/2001 



Daniel H. Maes 



7590 



07/19/2006 



Karen A. Lowney, Esq. 
Estee Lauder Companies 
155 Pinelawn Road 
Melville, NY 11747 



00.22US 



5974 



EXAMINER 



COTTON, ABIGAIL MANDA 



ART UNIT 



PAPER NUMBER 



1617 

DATE MAILED: 07/19/2006 



Please find below and/or attached an Office communication concerning this application or proceeding. 



PTO-90C (Rev. 10/03) 



Advisory Action 
BeforB tfie Filina of Bn Aooeal Brief 


AoDlication Mn 

09/773,351 


MAES ET AL. 


Exsminer 

Abigail M. Cotton 


Art Unit 
1617 





"The MAILING DATE of this communication appears on the cover sheet with the correspondence address - 
THE REPLY FILED 12 July 2006 FAILS TO PLACE THIS APPLICATION IN CONDITION FOR ALLOWANCE. 

1 . S The reply was filed after a final rejection, but prior to or on the sanne day as filing a Notice of Appeal. To avoid abandonment of 

this application, applicant nnust timely file one of the following replies: (1) an amendment, affidavit, or other evidence, which 
places the application in condition for allowance; (2) a Notice of Appeal (with appeal fee) in compliance with 37 CFR 41.31; or (3) 
a Request for Continued Examination (RCE) in compliance with 37 CFR 1.114. The reply must be filed within one of the following 
time periods: 

a) ^ The period for reply expires 3_months from the mailing date of the final rejection. 

b) CD The period for reply expires on: (1) the mailing date of this Advisory Action, or (2) the date set forth in the final rejection, whichever is later. In 

no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of the final rejection. 

Examiner Note: If box 1 is checked, check either box (a) or (b). ONLY CHECK BOX (b) WHEN THE FIRST REPLY WAS FILED WITHIN 

TWO MONTHS OF THE FINAL REJECTION. See MPEP 706.07(f). 
Extensions of time may be obtained under 37 CFR 1.136(a). The date on which the petition under 37 CFR 1.136(a) and the appropriate extension fee 
have been filed is the date for purposes of detemiining the period of extension and the corresponding amount of the fee. The appropriate extension fee 
under 37 CFR 1.17(a) is calculated from: (1) the expiration date of the shortened statutory period for reply originally set in the final Office action; or (2) as 
set forth in (b) above, if checked. Any reply received by the Office later than three months after the mailing date of the final rejection, even if timely filed, 
may reduce any earned patent iem adjustment. See 37 CFR 1.704(b). 
NOTICE OF APPEAL 

2. □ The Notice of Appeal was filed on . A brief in compliance with 37 CFR 41 .37 must be filed within two months of the date of 

filing the Notice of Appeal (37 CFR 41.37(a)), or any extension thereof (37 CFR 41.37(e)), to avoid dismissal of the appeal. Since 
a Notice of Appeal has been filed, any reply must be filed within the time period set forth in 37 CFR 41.37(a). 
AMENDMENTS 

3. [H The proposed amendment{s) filed after a final rejection, but prior to the date of filing a brief, will not be entered because 

(a) n They raise new issues that would require further consideration and/or search (see NOTE below); 

(b) □ They raise the issue of new matter (see NOTE below); 

(c) □ They are not deemed to place the application in better form for appeal by materially reducing or simplifying the issues for 

appeal; and/or 

(6)\Z\ They present additional claims without canceling a corresponding number of finally rejected claims. 
NOTE: . (See 37 CFR 1.1 16 and 41.33(a)). 

4. □ The amendments are not in compliance with 37 CFR 1.121, See attached Notice of Non-Compliant Amendment (PTOL-324). 

5. □ Applicant's reply has overcome the following rejection(s): . 

6. □ Newly proposed or amended claim(s) would be allowable if submitted in a separate, timely filed amendment canceling the 

non-allowable claim(s). 

7. □ For purposes of appeal, the proposed amendment(s): a) □ will not be entered, or b) □ will be entered and an explanation of 

how the new or amended claims would be rejected is provided below or appended. 
The status of the claim{s) is (or will be) as follows: 

Claim(s) allowed: . 

Claim(s) objected to: . 

Claim(s) rejected: . 



Claim(s) withdrawn from consideration: . 

AFFIDAVIT OR OTHER EVIDENCE 

8. □ The affidavit or other evidence filed after a final action, but before or on the date of filing a Notice of Appeal will not be entered 

because applicant failed to provide a showing of good and sufficient reasons why the affidavit or other evidence is necessary and 
was not earlier presented. See 37 CFR 1 .1 16(e). 

9. □ The affidavit or other evidence filed after the date of filing a Notice of Appeal, but prior to the date of filing a brief, will not be 

entered because the affidavit or other evidence failed to overcome ail rejections under appeal and/or appellant fails to provide a 
showing a good and sufficient reasons why it is necessary and was not earlier presented. See 37 CFR 41.33(d)(1). 

10. □ The affidavit or other evidence is entered. An explanation of the status of the claims after entry is below or attached. 
REQUEST FOR RECONSIDERATION/OTHER 

11. S The request for reconsideration has been considered but does NOT place the application in condition for allowance because: 

See continuation sheeL 

12. □ Note the attached Information Disclosure Statement(s). (PTO/SB/08 or PTO-1449) Paper^o(s). 

13. □ Other: . 




SREENIPADMANABHAN 
SUPERVISORY PATENT EXAMINER 



U.S. Patent and Trademark Office 
PTOL-303 (Rev. 7-05) 



Advisory Action Before the Filing of an Appeal Brief 



Part of Paper No. 20060713 



Application/Control Number: 09/773,351 
Art Unit: 1617 

Continuation Sheet (note 11) 



Page 2 



The request for consideration has been considered but does not place the 
application in condition for allowance, for the reasons of record as stated in the Final 
Rejection mailed on April 12, 2006. 

Applicants argue that the cited references do not teach a composition comprising 
an "integral mixture" of cholesterol sulfate with the exfoliant, as recited in the claims. 
Applicants argue that the cited references (Ribier et al. references) teach the formation 
of a composition having discrete layers or vesicles, and thus do not teach an "integral 
mixture." 

The Examiner respectfully notes that the claims are given their broadest possible 
reasonable interpretation during examination. Although the claims are interpreted in 
light of the specification, limitations from the specification are not read into the claims. 
See In re Van Geuns, 988 F.2d 1 181, 26 USPQ2d 1057 (Fed. Cir. 1993). The broadest 
reasonable interpretation of the composition having an "integral mixture" of the 
cholesterol sulfate with the exfoliant is that the composition comprises a mixture of the 
cholesterol sulfate that is formed as a unit with another part of the mixture, which is 
consistent with the dictionary definition of integral as disclosed in the Merriam-Webster 
Online Dictionary (formed as a unit with another part <a seat with integral headrest.) 
The prior art teaches and/or suggests such a composition, because the prior art teaches 



Application/Control Number: 09/773,351 Page 3 

Art Unit: 1617 

or suggests combining the cholesterol sulfate with the exfoliant in a single cosmetic 
composition (an single unit), and thus the components form an integral mixture in the 
composition because each part forms a unit (the composition) with another part. 

Applicants argue that an integral mixture is not a lipid vesicle, and thus that the 
Ribier et al. references do not teach or suggest the claimed invention. Applicants argue 
that the vesicles in these references are not integrally mixed, but rather are used to form 
separate and discrete entities present in the aqueous phase. However, the Examiner 
respectfully notes that the claims recite an "integral mixture," which given its broadest 
possible reasonable interpretation means a mixture that has components that form a 
unit (i.e. a composition) with one another, which is taught by the Ribier et al. references, 
and includes even compositions having distinct phases and vesicles, as these phases 
and vesicles nonetheless make up parts of a single unit (the composition.) 

The Examiner furthermore notes that, in rebutting a prior new matter rejection of 
the phrase "integral with" under 35 U.S.C. 112, Applicants argued in the response 
submitted June 23, 2004 that: 

"The Examiner admits that "[t]he recitation 'integral with' could be interpreted as 
'mixed with' or 'a mixture of according [sic] its plain and ordinary meaning. 
Applicants fully agree with this interpretation ..." (page 2 of Amendment 
Arguments Submitted June 23, 2004.) 



Application/Control Number: 09/773.351 
Art Unit: 1617 



Page 4 



Thus, Applicants appear to have already accepted the plain meaning of "integral 
with" as being "mixed with" or "a mixture of," according to their own admission. An 
"integral mixture" as instantly claimed thus clearly encompasses a mixture having the 
components combined together that makes up a single unit, such as a single 
composition, as is taught and/or suggested by the references cited above. 

It is furthermore noted that the instant Specification does not provide support 
under 35 U.S.C. 112, first paragraph, for a definition of "integral mixture" that excludes 
compositions having vesicles or two or more phases. Instead, the specification teaches 
that the composition provides "integrated results" because the two components 
(exfoliant and cholesterol sulfate) do not cancel out each other's effects (see page 4, 
lines 21-29.) Thus, the specification specifically refers to "integrated" in the sense that 
effects provided by each component are not canceled out by one another. The 
specification does not disclose that such compositions are required to be absent 
vesicles or multiple phases, and does not otherwise explicitly define "integral" or 
"integral mixture" to mean anything other than its ordinary plain meaning. 

Any inquiry concerning this communication or earlier communications from the 
examiner should be directed to Abigail M. Cotton whose telephone number is (571) 272- 
8779. The examiner can normally be reached on 9:30-6:00, M-F. 



Application/Control Number: 09/773,351 Page 5 

Art Unit: 1617 

If attempts to reach the examiner by telephone are unsuccessful, the examiner's 
supervisor, Sreenivasan Padmanabhan can be reached on (571) 272-0629. The fax 
phone number for the organization where this application or proceeding is assigned is 
571-273-8300. 

Information regarding the status of an application may be obtained from the 
Patent Application Information Retrieval (PAIR) system. Status information for 
published applications may be obtained from either Private PAIR or Public PAIR. 
Status information for unpublished applications is available through Private PAIR only. 
For more information about the PAIR system, see http://pair-direct.uspto.gov. Should 
you have questions on access to the Private PAIR system, contact the Electronic 
Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a 
USPTO Customer Service Representative or access to the automated information 
system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. 



AMC