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 1-2, and 7 are rejected under 35 U.S.C. 103 as being unpatentable over Chudzik et al. (US 20070084480, hereinafter Chudzik) in view of Frye (US 5727574) and Geller et al. (US 20160228298, hereinafter Geller).
Regarding Claim 1, Chudzik, in the same field of endeavor, discloses a scrunchy (20/21; Figures 1-2; Paragraphs [0024] & [0026]), comprising: an outer tube (24; Figures 1-2; Paragraphs [0024] & [0026]) defining an annular interior (Paragraphs [0024] & [0026]); and an inner elastic element (22; Figures 1-2; Paragraphs [0024]-[0026]) within the outer tube (Figure 2; Paragraph [0026]), the inner elastic element comprising a continuous loop (Paragraph [0025]) lacking a seam (Figure 1; Paragraph [0025]; “core 22 may be constructed from one single piece of elastic material formed as a loop or with opposite ends attached to form a loop”; the differentiation between a single piece formed as a loop and a single piece with opposite ends attached to form a loop makes clear that the former would not have opposite ends attached and therefore would lack a seam).
Chudzik does not disclose that the inner elastic element comprising a continuous loop of a fabric.
Frye discloses a hair device (10; Figures 1-3) comprising: an outer tube (16; Figures 1-3) defining an annular interior (Figure 3); and an inner element (14; Figures 1-3) within the outer tube (Figure 3), the inner elastic element comprising a continuous loop (Figure 1) comprising a fabric (column 2, line 60-column 3, line 6 discloses the inner loop 14 can be either elastic or a fabric).
It would have been obvious to one of ordinary skill in the art to have modified the inner elastic of Chudzik by using fabric, as taught by Fyre, in order to be able to stretch out a certain distance to fit on the user’s hair or head since Frye sets forth elastic bands and fabric as equivalent materials that can be substituted for each other.
Geller discloses a seamless fabric (110; figure 1).
It would have been obvious to one of ordinary skill in the art to have modified the construct of Chudzik to be seamless as taught by Geller in order for the device to be more comfortable when worn (paragraph [0043]).
Regarding Claim 2, Chudzik as modified by Frye and Geller discloses the device of Claim 1. Chudzik does not disclose the inner elastic element consists of the fabric .
Frye discloses the inner element consists of a fabric (column 2, line 60 – column 3, line 6 discloses the inner elastic element is a fabric). It would have been obvious to one of ordinary skill in the art to have modified the inner elastic of Chudzik by using only fabric, as taught by Frye, in order to prevent the device from slipping out the user’s hair and be comfortable when sleeping or laying down since Frye sets forth elastic bands and fabric as equivalent materials that can be substituted for each other.
Regarding Claim 7, Chudzik as modified by Frye and Geller discloses the device of Claim 1. Chudzik discloses the inner elastic element lacks a knot (Figure 1; Paragraph [0024-0025; see above]).
Claim 3-4 are rejected under 35 U.S.C. 103 as being unpatentable over Chudzik in view of Frye and Geller further in view of Ives et al. (US 6079236, hereinafter Ives).
Regarding Claim 3, Chudzik as modified by Frye and Geller discloses the device of claim 2. Chudzik does not disclose the inner elastic element is knitted.
Ives discloses an elastic band (abstract; Figure 1) that is knitted (abstract; Figure 1). It would have been obvious to one of ordinary skill in the art to have modified the inner elastic of Chudzik to be a knitted elastic of Ives in order to give a better appearance and feel to the scrunchy.
Regarding Claim 4, Chudzik as modified by Frye and Geller discloses the device of claim 1. Chudzik does not disclose the inner elastic element is knitted.
Ives discloses an elastic band (abstract; Figure 1) that is knitted (abstract; Figure 1). It would have been obvious to one of ordinary skill in the art to have modified the inner elastic of Chudzik to be a knitted elastic of Ives to give a better appearance and feel to the scrunchy.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Chudzik in view of Frye and Geller further in view of Benchwick (US 20160128403).
Regarding Claim 5, Chudzik as modified by Frye and Geller discloses the invention of claim 1. Chudzik does not disclose that edges of the inner elastic element roll inwardly upon a midsection of the inner elastic element.
Benchwick, in the same field of endeavor teaches, a headband (20) comprising an elastic material (abstract). Benchwick further discloses certain fabric roll up on the edges when cut along the grain, specifically elastic fabrics, more specifically spandex (paragraph [0017]). It would have been obvious to one of ordinary skill in the art before the effective filing date to have modified the construction Chudzik’s elastic with Benchwick’s material in order to have the fabric of the elastic roll inward so that the fabric would be doubled up in order to provide a tighter fit that would stretch out less over time.
Claims 8-9 are rejected under 35 U.S.C. 103 as being unpatentable over Chudzik, Frye and Geller further in view of Stegerhoek (US 20140250566).
Regarding Claims 8-9, Chudzik as modified by Frye discloses the invention of claim 1. Chudzik discloses a fabric scrunchy (Paragraphs [0024]-[0026]) does not disclose the outer tube comprises a water-resistant and waterproof fabric.
Stegerhoek, in the same field of endeavor teaches a fabric hair holder (figure 1) made of a water-resistant and waterproof fabric (paragraph [0022] discloses the material as waterproof and therefore it is water-resistant). It would have been obvious to one of ordinary skill in the art before the effective filing date to have modified Chudzik’s fabric to be waterproof as taught by Stegerhoek in order to have a device in which the user can wear in the water, like the shower, without it absorbing and holding water and becoming heavy. That, is it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified Chudzik’s fabric to be waterproof as taught by Stegerhoek, since it is within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice and would predictably improve the usefulness of the scrunchie when used in wet conditions such as rain or swimming.
Claim 10, 14, and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Chudzik (US 20070084480, hereinafter Chudzik) in view of Ives (US 6079236, hereinafter Ives), and Geller et al. (US 20160228298, hereinafter Geller).
Regarding Claim 10, Chudzik, in the same field of endeavor, discloses a scrunchy (20/21; Figures 1-2; Paragraphs [0024] and [0026]), comprising: an outer tube (24; Figures 1-2; Paragraphs [0024] and [0026]) defining an annular interior (Paragraphs [0024] and [0026]); and an inner elastic element (22; Figures 1-2; Paragraphs [0024]-[0026]) within the outer tube (Figure 2 and 4; Paragraph [0026]), the inner elastic element comprising a continuous loop (Paragraph [0025]) lacking ends that have been secured together (Figure 1; Paragraph [0025]).
Chudzik does not disclose the inner elastic element is knitted.
Ives discloses an elastic band (abstract; Figure 1) that is knitted (abstract; Figure 1).
It would have been obvious to one of ordinary skill in the art to have modified the inner elastic of Chudzik to be a knitted elastic of Ives in order to give a better appearance and feel to the scrunchy and used as an elastic element to have a similar feel and appearance to a woven stretchable band (column 1, lines 11-19).
Regarding Claim 14, Chudzik, in the same field of endeavor, discloses a scrunchy (20/21; Figures 1-2; Paragraphs [0024] & [0026]), comprising: an outer tube (24; Figures 1-2; Paragraphs [0024] & [0026]) defining an annular interior (Paragraphs [0024] & [0026]); and an inner elastic element (22; Figures 1-2; Paragraphs [0024]-[0026]) within the outer tube (Figure 2; Paragraph [0026]), the inner elastic element comprising a continuous loop (Paragraph [0025]) of a circular material (Figure 2).
Chudzik does not disclose the inner elastic element is knitted.
Ives discloses an elastic band (abstract; Figure 1) that a circular knit fabric (abstract; Figure 1).
It would have been obvious to one of ordinary skill in the art to have modified the inner elastic of Chudzik to be a knitted elastic of Ives in order to give a better appearance and feel to the scrunchy.
Geller discloses a seamless fabric (110; figure 1).
It would have been obvious to one of ordinary skill in the art to have modified the construct of Chudzik to be seamless as taught by Geller in order for the device to be more comfortable when worn (paragraph [0043]).
Regarding Claim 16, Chudzik as modified by Ives and Geller discloses the device of Claim 14. Chudzik discloses the inner elastic element lacks a seam (Figure 1; Paragraph [0025]).
Claim 13 and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Chudzik (US 20070084480, hereinafter Chudzik) in view of Ives (US 6079236, hereinafter Ives) and Geller further in view of Hanmei (https://www.amazon.ca/Hair-ties-crease-toddlers-girls/dp/B07C3M1M4T?th=1; see attached NPL).
Regarding Claim 13, the combination of Chudzik and Ives and Geller discloses the invention of claim 10, but does not disclose that edges of the inner elastic element roll inwardly upon a midsection of the inner elastic element.
Hanmei, teaches an elastic element (see bullet point 2: “Exceptionally strong and elastic material actively compresses the hair, always trying to revert back to its original shape”) rolling inwardly upon a midsection of the element (see attached Figure) so it is seamless (see bullet point 1) for easy removal from hair (bullet point 1).
It would have been obvious to one of ordinary skill in the art to have modified the knitted elastic material of Chudzik and Ives to be constructed to roll inwardly as taught by Hanmei in order to prevent hair to be mussed or damaged. Ives discloses an elastic band (abstract; Figure 1) that is knitted (abstract; Figure 1).
Regarding Claim 15, the combination of Chudzik, Ives, and Geller discloses the invention of claim 10, but does not disclose that edges of the inner elastic element roll inwardly upon a midsection of the inner elastic element.
Hanmei, teaches the element (see attached Figure) rolling inwardly upon a midsection of the element (see attached figure) so it is seamless (see bullet point 1) for easy removal from hair (bullet point 1).
It would have been obvious to one of ordinary skill in the art to have modified the knitted elastic material of Chudzik, Ives, and Geller to be constructed to roll inwardly as taught by Hanmei in order to prevent hair to be mussed or damaged. Ives discloses an elastic band (abstract; Figure 1) that is knitted (abstract; Figure 1).
Claims 11-12 and 17-18 are rejected under 35 U.S.C. 103 as being unpatentable over Chudzik in view of Ives and Geller, and further in view of Stegerhoek (US 2014/0250566).
Regarding Claims 11 and 12, the combination of Chudzik, Ives, and Geller discloses the scrunchy of claim 10. Chudzik does not disclose the outer tube comprises a water-resistant and waterproof fabric.
Stegerhoek, in the same field of endeavor teaches a fabric hair holder (figure 1) made of a water-resistant and waterproof fabric (paragraph [0022] discloses the material as waterproof and therefore it is water-resistant). It would have been obvious to one of ordinary skill in the art before the effective filing date to have modified Chudzik’s fabric to be waterproof as taught by Stegerhoek in order to have a device in which the user can wear in the water, like the shower, without it absorbing and holding water and becoming heavy.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified Chudzik’s outer tube fabric to be waterproof as taught by Stegerhoek, since it is within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice and would predictably improve the usefulness of the scrunchie when used in wet conditions such as rain or swimming.
Regarding Claims 17 and 18, the combination of Chudzik, Ives, and Geller discloses the scrunchy of claim 10. Chudzik does not disclose the outer tube comprises a water-resistant and waterproof fabric.
Stegerhoek, in the same field of endeavor teaches a fabric hair holder (figure 1) made of a water-resistant and waterproof fabric (paragraph [0022] discloses the material as waterproof and therefore it is water-resistant). It would have been obvious to one of ordinary skill in the art before the effective filing date to have modified Chudzik’s fabric to be waterproof as taught by Stegerhoek in order to have a device in which the user can wear in the water, like the shower, without it absorbing and holding water and becoming heavy.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified Chudzik’s outer tube fabric to be waterproof as taught by Stegerhoek, since it is within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice and would predictably improve the usefulness of the scrunchie when used in wet conditions such as rain or swimming.
Response to Arguments
In regards to Applicant’s arguments that Chudzik does not teach or suggest an elastic ring or core 22 comprises a continuous loop comprising fabric and lacking a seam in regards to Claims 1 and 10, the Examiner notes that in the rejection it is not stated that Chudzik discloses the inner elastic is a fabric and Chudzik is modified by Frye to replace the material not the construction. In addition, paragraph [0025] of Chudzik discloses the inner elastic 22 to be continuous, therefore does not have a seam. Therefore, the modification is to swap the material of Chudzik to be fabric.
In regards to Applicant’s arguments that Kraft does not disclose a continuous inner elastic loop lacking a seam in regards to Claim 1, the Examiner notes Kraft is no longer being used in the rejection.
In regards to Applicant’s arguments that Chudzik does not disclose the inner elastic is continuous, the Examiner notes that [0025] discloses such. Again, the modification is to change the material, not the construction. Therefore, the inner elastic would be continuous but a knitted material.
The Applicant argues that the date of Hanmei is later than that of the present application. The Examiner notes that the comment left in 2018 pertains to the use of the invention and is a disclosure of the invention. Further, regardless if it is still in use, the disclosure is date to when it is first publicly available for sale. See MPEP 2152.
Conclusion
THIS ACTION IS MADE FINAL. 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 nonprovisional extension fee (37 CFR 1.17(a)) 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 mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Sydney J Pulvidente whose telephone number is (571)272-8066. The examiner can normally be reached Monday - Thursday, 7:30 a.m. - 3:30 p.m..
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If attempts to reach the examiner by telephone are unsuccessful, 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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/SYDNEY J PULVIDENTE/Examiner, Art Unit 3772
/ERIC J ROSEN/Supervisory Patent Examiner, Art Unit 3772
