DETAILED ACTION
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claim(s) 21 is/are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 21: this claim recites “substantially spherical”; however, no such language is present in applicant’s originally filed disclosure nor is there drawing support for this language. Figure 5 shows a series of capsules, but it does not show them in three dimensions nor does it state anywhere they are spherical, the capsules of Figure 5 could be oblong shaped, like the capsule illustrated in the previous embodiments so this Figure alone is not enough to provide support for this language. The language “substantially spherical” is new matter.
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.
Claim 23 is/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.
Claim 23: this claim attempts to functionally recite “a complementary structure in a device for dispensing formulation”; however, claim 1 already requires “a hair treatment device” so is that the “device for dispensing formulation” or is applicant trying to claim a hair treatment device and a device for dispensing formulation? Additionally, the language “complementary structure” is confusing and unclear because it has no meaning. It is also confusing because the other dispenser is not actually claimed, so what structural limitation is this meant to place on the flanges exactly? For examination purposes, the claim will be treated as omitting the amended language because it is confusing and renders the claim indefinite and does not appear to place any structural limitations on the claimed flanges. Clarification or correction is requested.
Claim Rejections - 35 USC § 103
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.
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.
Claim(s) 1-3, 5-7, 11-13, 15, and 21-23, as best understood, is/are rejected under 35 U.S.C. 103 as obvious over Burrowes (US 6302607) in view of Gayton (US 20080041739), Clark (US 20080195040), and Engel (US 20040050437).
Claims 1 and 22-23: Burrowes discloses a cartridge (24+40) configured for use in a hair treatment device (10+114; Col 1, 1-15 & Col 5, 45-65), the cartridge comprising: a pouch (24) formed of two sheets (26, Col 6, 50-67). Each sheet includes a metallic/metallised foil layer (Col 6, 55-65) forming a first outer side of the sheet/pouch laminated to an inner polymer polyethylene terephthalate (PET) layer (Col 6, 55-65) and forming a second inner side of the sheet/pouch with a cavity therebetween. The device is described to hold hair dye which is a known reactive substance to light and to metallic materials; polymers are known to be inert materials for holding reactive compositions and metal foil is known for light impermeable. Therefore one of ordinary skill in the art reading the disclosure of Burrowes would have determined that the metallic foil layer would be arranged not in contact with the hair dye chemicals, or on the exterior of the pouch while the interior of the pouch would comprise the polymer layer that is non-reactive with the hair dye chemicals, so Burrowes discloses the cavity defined between the second layers of the first side/sheet and the second side/sheet. Edges of the first side are sealed to edges of the second side forming the cavity therebetween (see Fig 1) and an outlet (28) from the cavity is formed from a separation between the first and second sides, the cavity containing a first liquid product in the form of hydrogen peroxide (Col 6, 55-67) and a fitment (40) is sealed (Col 7, 5-25) within the outlet of the cavity (see Fig 4) with the fitment including two or more annular flanges (46 & 48 & 50) having an orifice passing through a center of the flanges (see Figs 1 & 4) and at least two flanges (46 & 50) extend outward from the pouch. The orifice can include a penetrable membrane (Col 7, 40-55) and the fitment includes a cage (34) that has a series of holes (36) which act as a filter during dispensing and the fitment is sealed within the outlet of the cavity and the fitment has an elongate shape (see Figs 1 & 4). At least flange (50) is configured to engage with another structure (see Figs 1 & 4). Burrowes discloses that the hair dye composition requires multiple products that must be mixed together (Col 7, 60-Col 8, 40) including at least three different products (Col 8, 1-40) and further explicitly states that at least one product could be provided in the bag as a rupturable capsule (Col 9, 5-10). Burrowes discloses the invention essentially as claimed except for the plastic layer of the pouch sides being polypropylene instead of PET; providing three additional products in rupturable capsules for a total of three capsules that rupture within the cavity with the first product in the cavity along with a mixing bead for mixing the products together and a batting material in the filter member for filtering additional particles during dispensing, as well as a valve for outgassing on the pouch.
Burrowes, teaches the pouch layers to include metallised PET (Col 6, 55-65) and explicitly states the pouch can include HDPE or other less flexible and rigid polymers [0032]. Burrowes also states that a rigid polymer known in the art is polypropylene [0035]. In other words, Burrowed teaches polypropylene to be a rigid polymer used in manufacturing hair dye dispensers and their components and states that rigid polymers can be used in the layers of the pouch. Therefore it would have been obvious to one of ordinary skill in the art at the time of filing to modify the dispenser of Burrowes by providing the polymer layer of the pouch to include polypropylene, since it has been held by the courts that selection of a prior art material on the basis of its suitability for its intended purpose is within the level of ordinary skill. See MPEP 2144.07.
Burrowes discloses the invention essentially as claimed except for providing three additional products in rupturable capsules for a total of three capsules that rupture within the cavity with the first product in the cavity along with a mixing bead for mixing the products together and a batting material in the filter member for filtering additional particles during dispensing, as well as a valve for outgassing on the pouch.
Gayton, however, teaches a hair dye or tint [0031] dispenser with a cartridge for use as a hair treatment device [0029-0030], the cartridge comprising: a pouch (12) having an outlet with a fitment (30+16) [0034] sealed within an outlet of the pouch [0034], the pouch containing a first product (28, Fig 6) [0036]; a first capsule (18B) located within the pouch (see Fig 6) and containing a second product (24, Fig 6) and the capsule is configured to be ruptured so it is frangible [0035]; a second capsule (18C) located within the pouch (see Fig 6) and containing a third product (26) and configured to be ruptured [0035]; a third product in additional ampoules or capsules [0011] including oils or conditions or other hair care products; and an optional solid mixing bead (20) [0031] within the pouch (see Figs 1 & 6). Gayton teaches that these capsules can be made of various different frangible materials [0035] Gayton teaches providing hair dyes with a first product carrying a series of (at least three) [0011] frangible capsules housed with the first product in the cavity of the pouch in order to enable easy carrying of a plurality of different haircare products in one pouch thereby making mixing and dispensing a one step process rather than requiring multiple bottles. Therefore, it would have been obvious to one possessing ordinary skill in the art at the time of filing to modify the hair dye dispenser of modified Burrowes by providing the pouch of modified Burrowes with the series of frangible capsules and the mixing bead taught by Gayton in view of Gayton in order to allow for one-handed mixing and dispensing of multiple hair care products from a single dispenser simultaneously thereby simplifying application of multiple products at one time.
Modified Burrowes discloses the invention essentially as claimed except for the filter cage carrying a filtering batting material to remove unwanted particles during dispensing and an outgassing valve on the pouch. Clark, however, teaches a cartridge (see Fig 2) for use in dispensing any multi-component solution [0024] and hair coloring is a known multi-component solution, so the device is capable of being used in for “hair treatment”. The cartridge comprising a pouch formed by at least one layer on each side of a horizontal central plane and with the rear side edges of the first and second sides are sealed together (see Figs 6A, 7B, and 8B) [0055] forming a cavity therebetween and an outlet from the cavity is formed from a separation between the front of the first and second sides, the cavity containing a first product (PEG, Fig 2); a first capsule (crushable glass ampoules, see Fig 2B) located within the cavity (see Fig 2B), the first capsule containing a second product and the first capsule configured to crushed/ruptured (see Fig 2B)[0039]; a second capsule located within the cavity (see Fig 2B) the second capsule containing a third product and configured to be crushed/ruptured [0039] so the first and second capsules are “frangible”; and a fitment (Andon flow through brush tip, Fig 2B) sealed within the outlet of the cavity (see Fig 2), the fitment including at least one annular flange (see annotations) having an orifice passing through a center of the at least one annular flange (see annotations) and a cage (see Figs 2 & 3B & annotations) extending into the pouch, with the cage carrying or being “filled” with a batting to filter particles during dispensing [0040 & 0080]. The filter cage is described as a mesh screen (see Fig 3B) and the filtering batting is disclosed to be able to be within a porous plastic filtering element [0080 & 0143 & 0160]. Clark teaches providing multi-component dispensers with frangible/rupturing capsules with a filter carrying a batting material in order to filter out unwanted particles during dispensing. Therefore, it would have been obvious to one possessing ordinary skill in the art at the time of filing to modify the device of modified Burrowes by providing the filter cage element of Burrowes with a batting inside of the cage in view of Clark since Clark teaches batting to be an old and well-known filter material useful in applications when a user is mixing together different components to form a solution.
Modified Burrowes discloses the invention essentially as claimed except for an outgassing/pressure relief valve forming a vent apparatus on the side of the pouch. Engel, however, teaches providing a flexible pouch/package with a one way pressure relief valve on a side of the pouch (see Fig 1) in order to provide a means for outgassing the contents thereby preventing accidental rupture of the pouch from gas buildup [0022]. Therefore, it would have been obvious to one of ordinary skill in the art at the time of filing (or the time of invention if Pre-AIA ) to modify the cartridge of modified Burrowes by providing it with a venting apparatus/pressure relief valve in view of Engel in order to prevent the package rupturing from gas buildup.
Claim 2: Modified Burrowes discloses the invention of claim 1 and the proposed modification is to provide the capsules and hair dye of Gayton in the pouch of Burrowes, so since Gayton discloses the first product (28) can be a dye or tint [0031] which is a colorant, modified Burrowes teaches these limitations.
Claim 3: Modified Burrowes discloses the invention of claim 2 and the proposed modification is to provide the capsules and hair dye of Gayton in the pouch of Burrowes, so since Gayton discloses the second product (24) can be peroxide [0031] which is a known developer, modified Burrowes teaches these limitations.
Claim 5: Regarding the “heat sealed” language, the applicant is advised that, even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” In this case, the cited limitations failed to distinguish the claimed structure from the patented dispenser of modified Burrowes because modified Burrowes teaches the fitment sealed to the cavity/pouch, which is the same end product. See MPEP § 2113
Claim 6: Modified Burrowes discloses the invention of claim 1 and the proposed modification is to provide the capsules and hair dye of Gayton in the pouch of Burrowes, so since Gayton discloses at least the first product can be a liquid [0032], modified Burrowes teaches these limitations.
Claim 7: Modified Burrowes discloses the invention of claim 1 and the proposed modification is to provide the capsules and hair dye of Gayton in the pouch of Burrowes, so since Gayton discloses the first product can be a cream [0031], modified Burrowes teaches these limitations.
Claim 11: Modified Burrowes discloses the invention of claim 1 and the proposed modification is to provide the capsules and hair dye of Gayton in the pouch of Burrowes, so modified Burrowes discloses the invention essentially as claimed except for the second capsule having a different surface texture than the first capsule. However, it would have been an obvious matter of design choice to modify the device of modified Burrowes by providing the different capsules with different surface textures to easily differentiate between which capsule is which and when all have been properly broken to allow for mixing the hair dye and since the applicant has not disclosed that providing a surface texture or different textures on the capsules solves any problem or is for a particular reason. It appears that the claimed invention would perform equally well with the same surface texture.
Claims 12-13: Modified Burrowes discloses the invention of claim 1 and the proposed modification is to provide the capsules and hair dye of Gayton in the pouch of Burrowes, so since Gayton discloses the first product having a first volume and the second product having a second volume with a ratio of the first volume to the second volume being between 2 and 10 (see Figs 1-6), modified Burrowes teaches these limitations.
Claim 15: Modified Burrowes discloses the invention of claim 1 and the proposed modification is to provide the capsules and hair dye of Gayton in the pouch of Burrowes, so since Gayton discloses that the capsule can be made of a flexible material [0035], which constitutes it having a “flexible membrane”, modified Burrowes teaches these limitations.
Claim 21: Modified Burrowes discloses the invention of claim 1 and the proposed modification is to provide the capsules and hair dye of Gayton in the pouch of Burrowes. So since Gayton indicates the capsules can be any size [0032-0035], modified Burrowes discloses the invention essentially as claimed except for the capsules being substantially spherical shaped. However, it would have been obvious to one of ordinary skill in the art at the time of filing to modify the capsules/ampoules of modified Burrowes to be “substantially spherical” since it has been held by the courts that a change in shape or configuration, without any criticality in operation of the device, is nothing more than one of numerous shapes that one of ordinary skill in the art will find obvious to provide based on the suitability for the intended final application. See MPEP 2144.04(IV)(B). It appears that the disclosed device would perform equally well shaped as disclosed by modified Burrowes.
Claim(s) 8, as best understood, is/are rejected under 35 U.S.C. 103 as obvious over Burrowes (US 6302607) in view of Gayton (US 20080041739) and Clark (US 20080195040) as applied to claim 1 above and further in view of Kelly (US 20060003057).
Claim 8: Modified Burrowes discloses the invention of claim 1 and the proposed modification is to provide the multiple capsules of different products including hair dye of Gayton in the pouch of modified Burrowes and Gayton discloses the pouch being liquid impermeable [0032-0035]. So modified Burrowes discloses the invention essentially as claimed except for the pouch being gas permeable.
Kelly, however, teaches providing polymer [0023] pouches with frangible sub-packets/capsules enclosed therein and holding liquid [0012] can be made with the pouch being gas-permeable in order to enable storage of gas-producing chemical compositions in liquid form that are activated when the capsules/subpackets are ruptured and the composition is mixed together in order to prevent accidental spillage from the pressure differential that rupturing creates [0009 & 0012]. Therefore, it would have been obvious to one possessing ordinary skill in the art at the time of filing to modify the pouch of modified Burrowes to be made of a gas-permeable and liquid impermeable polymer as taught by Kelly to be beneficial in order to allow release of gas from the pouch without undesired spillage of the liquid contents of the pouch.
Response to Arguments
Applicant’s arguments filed 1/27/26 have been considered but are all drawn to the newly amended claim limitations, which have been addressed above.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Jennifer Gill whose telephone number is (571)270-1797. The examiner can normally be reached on Monday-Thursday 9:00am-5:00pm.
If attempts to reach the examiner by telephone are unsuccessful, please contact the examiner’s supervisor, Eric Rosen, can be reached on 571-270-7855. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JENNIFER GILL/
Examiner, Art Unit 3772
/NICHOLAS D LUCCHESI/Primary Examiner, Art Unit 3772
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