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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 12/01/2025 has been entered.
Claim Objections
Claim 21 is objected to because of the following informalities: in line 29, “to the flat base surface tip” should be “to the flat base surface [[tip]]”. Appropriate correction is required.
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 (i.e., changing from AIA to pre-AIA ) 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.
Claims 16-17, 19, 22, 3, 21, 6-7, 10-11, 13-15, and 24 are rejected under 35 U.S.C. 103 as being unpatentable over Lee (KR20180001736U) in view of Dietsche (FR1320575A) and DiPippo (US2007/0199170).
Regarding claim 16, Lee discloses a hairstyling device (Figures 1-11), comprising:
a handle (60 + 10, refer to Figures 1-11) having opposing concave sides (refer to Rotated and Annotated Lee Figure 8, below) and a bottom end (refer to Rotated and Annotated Lee Figure 8, below) including an internal cavity (61, refer to Lee Figure 10), wherein the opposing concave sides face away (outwardly from a central axis, refer to Rotated and Annotated Lee Figure 8, below) from each other and curve inwardly toward a center (the center of the hairstyling device is that area coinciding with the central axis, as shown in the Rotated and Annotated Lee Figure 8, below) of the handle and the opposing concave sides have a uniform concave curvature from an upper transition portion (not labeled but is the area labeled “A” in the Rotated and Annotated Lee Figure 8, below) of the handle to a lower transition portion (not labeled but is the area labeled “B” in the Rotated and Annotated Lee Figure 8, below) of the handle;
a plurality of bristles (30) positioned on a side (left half side with respect to Lee Figure 8) of a top portion (portion of the handle disposed above the upper transition portion) of the handle;
wherein the upper transition portion comprises a first upper transition portion (referring to the Rotated and Annotated Lee Figure 8, below, the first upper transition portion is that portion of area “A” that is disposed above the central axis) and a second upper transition portion (referring to the Rotated and Annotated Lee Figure 8, below, the second upper transition portion is that portion of area “A” that is disposed below the central axis) and one of the opposing concave sides extends from the first upper transition portion located at a bottom portion of the plurality of bristles (refer to the Rotated and Annotated Lee Figure 8 below);
a tail comb (80) operatively arranged at the bottom end of the handle such that one end of the tail comb is directly in contact with the internal cavity (best shown in Figure 10), the tail comb being configured for retracting into the internal cavity (“the handle 60 is opened in the front and the bottom so as to rotate the girdle pin 80”, refer to Page 5 of the translation provided with the office action mailed on 06/22/2022), wherein during a deployment stage, the tail comb moves from an extended position (position depicted in Figure 11) relative to the handle to a retracted position (position depicted in Figure 10) within the internal cavity; and
a pressing tip (40, the limitation “pressing” is interpreted as an intended use limitation; that is, 40 defines a tip of the hairstyling device and this tip is fully capable of being used in a manner so as to press some object) distinct from and attached to (refer to Figure 2) the top portion and being arranged above the plurality of bristles (best shown in Figure 8), wherein the shape of the pressing tip is a cap (the pressing tip acts as a cover for the top surface of the cylindrical hairstyling device, thereby defining a cap) having a flat top surface (referring at least to Figure 8, the top surface is shown to be substantially flat) that is parallel to a flat base surface (referring at least to Figure 8, the pressing tip is shown to have a substantially flat bottom that is substantially parallel to the flat top), wherein the flat base surface is directly in contact with and extends completely across the top portion of the handle (refer at least to Figure 8); and
wherein the pressing tip is configured for pressing baby hairs into place and forming wave patterns within the baby hairs when pressing the baby hairs (the limitation “wherein the pressing tip is configured for pressing baby hairs into place and forming wave patterns within the baby hairs when pressing the baby hairs” is interpreted as a functional/intended use limitation; that is, Lee provides a tip that has a flat top surface and sides extending from a bottom of the flat top surface, as best shown in Lee Figures 2-3, and 7-11; the shape of the tip provides surfaces and edges any of which may be used in such a way so as to press baby hairs into place and form wave patterns within the baby hairs when pressing the baby hairs. For example, corners of the pressing tip, can be used to create smaller waves/treat smaller quantities of baby hair strands, whereas the flat top surface of the tip is capable of treating larger quantities of baby hairs).
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Lee does not disclose a row of teeth positioned at the top portion of the handle on a side opposite the plurality of bristles and therefore also does not disclose wherein another of the opposing concave sides extends from the second upper transition portion located at a bottom portion of the row of teeth and that the pressing tip is disposed above the row of teeth; nor does Lee disclose that the pressing tip is spherical and therefore also does not disclose wherein a curvature of each side surface of the spherical cap has a height proportional to a radius of the flat base surface.
Dietsche discloses a hairstyling device (Figures 1-4) comprising a handle (7), at least one row of bristles (4, 4’,5,10) forming a brush, disposed at the top portion (left end, refer to Dietsche Figure 1) of the handle on a first side (top side, refer to Dietsche Figure 3) and a row of teeth (3), forming a comb, positioned at the top portion of the handle on a side opposite the plurality of bristles (bottom side, refer to Dietsche Figure 4; where the bottom side is opposite the top side), and a tail comb (2) disposed at an opposing end of the handle (refer to Figure 1). Dietsche’s hairstyling device comprises both brush bristles and comb teeth, on the same device, thereby providing a single device capable of serving multiple purposes, e.g. the brush bristles can serve to smooth a user’s hair and/or distribute oils from the scalp to the hair ends, whereas the comb can serve to penetrate through thick and/or bushy hair to contact a user’s scalp and provide a massaging effect thereto and/or to untangle the hair. Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Lee’s hairstyling device to comprise a row of teeth positioned at the top portion of the handle on a side opposite the plurality of bristles, as taught by Dietsche, since such a modification provides the advantage of allowing a user to better remove knots and/or contact the scalp during the hairstyling process.
Modifying Lee’s hairstyling device to comprise a row of comb teeth on a side of the handle opposite the brush bristles provides a configuration wherein another of the opposing concave sides extends from the second upper transition portion located at a bottom portion of the row of teeth and wherein the pressing tip is disposed above the row of teeth, since the row of teeth would be disposed on a bottom half of Lee’s hairstyling device with respect to the Rotated and Annotated Lee Figure 8 provided above.
While the combination of Lee and Dietsche discloses the pressing tip to have a flat top surface that is parallel to the flat base (refer to the Rotated and Annotated Lee Figure 8, above), the combination does not disclose wherein the pressing tip is a spherical cap. Rather, the pressing tip of the combination of Lee and Dietsche is depicted as having sides that are substantially perpendicular to the flat top surface and flat base surface (refer at least to Lee Figure 8).
DiPippo discloses a similar hairstyling device (Figures 1-8) comprising a handle (14), a plurality of bristles (12) and a pressing tip (10, refer to Figure 1), wherein the pressing tip is formed of rubber (“The body 10…can be constructed from any…material such as…rubber”, refer to Paragraph [0030]) and has a flat top surface (refer to Cropped and Annotated DiPippo Figure 2, below) that is parallel to a flat base surface (refer to Cropped and Annotated DiPippo Figure 2, below), similar to that of the cap of the combination of Lee and Dietsche, and a spherical portion (refer to Cropped and Annotated DiPippo Figure 2, below) disposed between the two parallel surfaces, such that a plurality of sides (left side and right side with respect to Figure 2) taper outwardly from the flat top surface to the flat base surface. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the shape of the pressing tip of the hairstyling device of the combination of Lee and Dietsche such that the pressing tip comprises a spherical shaped surface between the flat base surface and the flat top surface, as taught by DiPippo, since such a modification would have involved a mere change in the shape of a component of an invention and it has been held that a change in shape is within the level of one of ordinary skill; additionally, some users may find a rounded/spherical surface more aesthetically pleasing. Modifying the hairstyling device of the combination of Lee and Dietsche such that the pressing tip comprises a spherical portion, as taught by DiPippo provides a configuration wherein a curvature of each side surface (top side surface and bottom side surface with respect to the Rotated and Annotated Lee Figure 8, above) of the spherical cap has a height proportional to a radius of the flat base surface (proportional is defined by Oxford Languages as “having a constant ratio to another quantity”. Since the radius of the flat base surface has a non-zero value and is a constant value, and the spherical cap has a height of non-zero value and is a constant value, some numeric ratio exists to define the relationship between these two values. While the particular measurements/sizes of the radius and height are not provided, the figures of Lee’s device depict the size of the diameter to be approximately 10 times that of the height (refer to Lee Figure 8), in which case the ratio/proportion between the radius and height would be approximately 5:1.). Although the drawings may not be to scale, they can still be relied upon for teaching the general conditions of the claim because the overall relationship is depicted.
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Regarding claim 3, the combination of Lee, Dietsche and DiPippo discloses the hairstyling device of claim 16, as applied above. Per the modification addressed above, the spherically shaped sides of DiPippo’s pressing tip were incorporated into the pressing tip of the hairstyling device of the combination of Lee and Dietsche, wherein DiPippo’s spherically shaped sides taper and extend outward from the flat top surface to the flat base surface and the pressing tip is configured for pressing baby hairs into place (refer to DiPippo’s Figure 2). Thus, the combination teaches all the limitations of claim 3.
Regarding claim 17, the combination of Lee, Dietsche, and DiPippo discloses the hairstyling device of claim 16, as applied above. Lee further discloses wherein the internal cavity is formed within the handle (best shown in Lee Figure 11).
Regarding claim 19, the combination of Lee, Dietsche, and DiPippo discloses the hairstyling device of claim 16, wherein the tail comb is configured for styling baby hairs (the limitation “wherein the tail comb is configured for styling baby hairs” is interpreted as an intended use limitation; that is, the combination provides a tail comb that is fully capable of being used to style baby hairs, for example by using the tail comb to arrange the baby hairs/hairs at a front of the user’s head into a desired position).
Regarding claim 22, the combination of Lee, Dietsche and DiPippo discloses the hairstyling device of claim 16, as applied above. Lee further discloses wherein during the deployment stage, the tail comb moves such that the tail comb rotates from the extended position to the retracted position (“to rotate the…pin”, refer to Page 5 of the Lee translation provided with the rejection mailed on 06/22/2022).
Regarding claim 21, Lee discloses a hairstyling device (Figures 1-11), comprising:
an elongated body (60 + 10, refer to Figures 1-11) having a top portion (10) with a distal end (top end, refer to Lee Figure 8), opposing concave sides (refer to Rotated and Annotated Figure 8, below), and a bottom portion (60) forming a handle and having a proximate end (bottom end, refer to Lee Figure 8) including an internal cavity (61, refer to Lee Figure 10), wherein the opposing concave sides face away from each other (outwardly from a central axis, refer to Rotated and Annotated Lee Figure 8, below) and curve inwardly toward a center (the center of the hairstyling device is that area coinciding with the central axis, as shown in the Rotated and Annotated Lee Figure 8, below) of the handle and the opposing concave sides have a uniform concave curvature from an upper transition portion (not labeled but is the area labeled “A” in the Rotated and Annotated Lee Figure 8, below) of the handle to a lower transition portion (not labeled but is the area labeled “B” in the Rotated and Annotated Lee Figure 8, below) of the handle;
a plurality of bristles (row of bristles, 30, disposed at a top surface of the top portion, refer to Rotated and Annotated Lee Figure 8, below) positioned on one side (left half side with respect to Figure 8) of the top portion;
wherein the upper transition portion comprises a first upper transition portion (referring to the Rotated and Annotated Lee Figure 8, below, the first upper transition portion is that portion of “A” disposed above the central axis) and a second upper transition portion (referring to the Rotated and Annotated Lee Figure 8, below, the second upper transition portion is that portion of “A” disposed below the central axis) and one of the opposing concave sides extends from the first upper transition portion located at a bottom portion of the plurality of bristles (refer to the Rotated and Annotated Lee Figure 8 below);
a tail comb (80) having one end operatively arranged at the proximate end of the handle such that the one end is directly in contact with the internal cavity (best shown in Figure 10), the tail comb being configured for retracting into the internal cavity (“he handle 60 is opened in the front and the bottom so as to rotate the girdle pin 80”, refer to Page 5 of the translation provided with the office action mailed on 06/22/2022), wherein during a deployment stage, the tail comb moves from an extended position (position depicted in Figure 11) relative to the handle to a retracted position (position depicted in Figure 10) within the internal cavity;
a pressing tip (40, the limitation “pressing” is interpreted as an intended use limitation; that is, 40 defines a tip of the hairstyling device and this tip is fully capable of being used in a manner so as to press some object) distinct from and attached to (refer to Figure 2) the distal end, the distal end being above the plurality of bristles (best shown in Figure 8), wherein the shape of the pressing tip is a cap (the pressing tip acts as a cover for the top surface of the cylindrical hairstyling device, thereby defining a cap) having a flat top surface (referring at least to Figure 8, the top surface is shown to be substantially flat) that is parallel to a flat base surface (referring at least to Figure 8, the pressing tip is shown to have a substantially flat bottom that is substantially parallel to the flat top), wherein the flat base surface is directly in contact with and extends completely across the top portion of the handle (refer at least to Figure 8); and
wherein the pressing tip is configured for pressing baby hairs into place and forming wave patterns within the baby hairs when pressing the baby hairs (the limitation “wherein the pressing tip is configured for pressing baby hairs into place and forming wave patterns within the baby hairs when pressing the baby hairs” is interpreted as a functional/intended use limitation; that is, Lee provides a tip that has a flat top surface and sides extending from a bottom of the flat top surface, as best shown in Lee Figures 2-3, and 7-11; the shape of the tip provides surfaces and edges any of which may be used in such a way so as to press baby hairs into place and form wave patterns within the baby hairs when pressing the baby hairs. For example, corners of the pressing tip, can be used to create small waves/treat smaller quantities of baby hair strands).
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Lee does not disclose a row of teeth positioned on another side of the top portion and opposite the plurality of bristles; wherein another of the opposing concave sides extends from the second upper transition portion located at a bottom portion of the row of teeth; that the pressing tip is disposed above the row of teeth; that the pressing tip is formed of rubber; or that the pressing tip is spherical and that a plurality of side surfaces of the spherical cap of the pressing tip are tapered outward from the flat top surface to the flat base surface and wherein a curvature of each side surface of the spherical cap has a height proportional to a radius of the flat base surface.
Dietsche discloses a hairstyling device (Figures 1-4) comprising a handle (7), a plurality of bristles (row of bristles, 4, refer to Dietsche Figure 4------) forming a brush, disposed at the top portion (left end, refer to Dietsche Figure 1) of the handle on a first side (top side, refer to Dietsche Figure 4) and a row of teeth (3), forming a comb, positioned on another side (bottom side, refer to Dietsche Figure 4) of the top portion and opposite the plurality of bristles (best shown in Dietsche Figure 4), and a tail comb (2) disposed at an opposing end of the handle (refer to Figure 1). Dietsche’s hairstyling device comprises both brush bristles and comb teeth, on a single device, thereby providing the single device to be capable of serving multiple purposes, e.g. the brush bristles can serve to smooth a user’s hair and/or distribute oils from the scalp to the hair ends, whereas the comb can serve to penetrate through thick and/or bushy hair to contact a user’s scalp and provide a massaging effect thereto and/or untangle the hair. Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Lee’s hairstyling device to comprise a row of teeth positioned on another side of the top portion of the handle and opposite the plurality of bristles, as taught by Dietsche, since such a modification provides the advantage of allowing a user to better remove knots and/or contact the scalp during the hairstyling process.
Modifying Lee’s hairstyling device to comprise a row of teeth positioned on another side of the top portion and opposite the plurality of bristles provides a configuration wherein another of the opposing concave sides extends from the second upper transition portion located at a bottom portion of the row of teeth and that the pressing tip is disposed above the row of teeth, since the row of teeth are disposed on a bottom half with respect to the Rotated and Annotated Lee Figure 8 provided above.
The combination of Lee and Dietsche does not disclose wherein the pressing tip is spherical or formed of rubber, wherein a plurality of side surfaces of the spherical cap of the pressing tip are tapered outward from the flat top surface to the base surface and wherein a curvature of each side surface of the spherical cap has a height proportional to a radius of the flat base surface. Rather, the pressing tip of the combination of Lee and Dietsche is depicted as having sides that are substantially perpendicular to the flat top surface and flat base surface (refer at least to Lee Figure 8).
DiPippo discloses a similar hairstyling device (Figures 1-8) comprising a handle (14), a plurality of bristles (12) and a pressing tip (10, refer to Figure 1), wherein the pressing tip is formed of rubber (“The body 10…can be constructed from any…material such as…rubber”, refer to Paragraph [0030]) and has a flat top surface (refer to Cropped and Annotated DiPippo Figure 2, below) that is parallel to a flat base surface (refer to Cropped and Annotated DiPippo Figure 2, below), similar to that of the combination of Lee and Dietsche, and further comprises a spherical portion (refer to Cropped and Annotated DiPippo Figure 2, below) disposed between the two parallel surfaces, such that a plurality of sides (left side and right side with respect to Figure 2) taper outwardly from the flat top surface to the flat base surface. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the hairstyling device of the combination of Lee and Dietsche such that the pressing tip is made of rubber, as taught by DiPippo, since it has been held to be 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. It also would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the shape of the pressing tip such that the pressing tip comprises a spherical shaped surface between the flat base surface and the flat top surface such that a plurality of sides of the pressing tip are tapered outward from the flat top surface to the flat base surface tip, as taught by DiPippo, since such a modification would have involved a mere change in the shape of a component of an invention and it has been held that a change in shape is within the level of one of ordinary skill; additionally, some users may find a rounded/spherical surface more aesthetically pleasing.
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Modifying the hairstyling device of the combination of Lee and Dietsche such that the pressing tip comprises a spherical portion disposed between the flat top surface and the flat base surface, as taught by DiPippo provides a configuration wherein a curvature of each side surface (top side surface and bottom side surface with respect to the Rotated and Annotated Lee Figure 8, above) of the spherical cap has a height proportional to a radius of the flat base surface (proportional is defined by Oxford Languages as “having a constant ratio to another quantity”. Since the radius of the flat base surface has a non-zero value and is a constant value, and the curved side surface has a height of non-zero value and is a constant value, some numeric ratio exists to define the relationship between these two values. While the particular measurements/sizes of the radius and height are not provided, the figures of Lee’s device depict the size of the diameter to be approximately 10 times that of the height (refer to Lee Figure 8), in which case the ratio/proportion between the radius and height would be approximately 5:1, thereby defining a proportion between the height and the radius). Although the drawings may not be to scale, they can still be relied upon for teaching the general conditions of the claim because the overall relationship is depicted.
Regarding claim 6, the combination of Lee, Dietsche, and DiPippo discloses the hairstyling device of claim 21, as applied above. Lee further discloses wherein the handle is elongated (refer at least to Lee Figure 8).
Regarding claim 7, the combination of Lee, Dietsche, and DiPippo discloses the hairstyling device of claim 6, as applied above. Lee further discloses
wherein the handle has a width (width at Location A, refer to Rotated and Annotated Lee Figure 8, below) and a length (refer to Rotated and Annotated Lee Figure 8 below) that is depicted as being greater than the width but does not explicitly disclose that the handle has a length that is 7 times longer than the width. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the device of the combination of Lee, Dietsche, and DiPippo such that the handle has a length that is 7 times longer than the width since it has been held that where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. In the instant case, the device of Lee, Dietsche, and DiPippo would not operate differently with the claimed relative length and since the length of the handle is longer than the width, the device would function appropriately having the claimed handle length. Further, it appears applicant places no criticality on the claimed length, indicating simply that the length is “about” 7 times that of a width of the handle (refer to the specification paragraph [0036]).
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Regarding claim 10, the combination of Lee, Dietsche, and DiPippo discloses the hairstyling device of claim 21, as applied above. Lee further discloses wherein the plurality of bristles forms a brush (refer to Lee Figures 7-11, wherein a plurality of bristles are disposed about a circumference of the device, thereby providing a brush). Per the modification addressed in claim 21, the comb teeth of Dietsche were incorporated into the hairstyling device of Lee wherein Dietsche’s row of teeth forms a comb.
Regarding claim 11, the combination of Lee, Dietsche, and DiPippo discloses the hairstyling device of claim 21, as applied above. Lee further discloses wherein the internal cavity is formed within the handle (refer to Lee Figure 11).
Regarding claims 13 and 14, the combination of Lee, Dietsche, and DiPippo discloses the hairstyling device of claim 21, wherein the tail comb is configured for styling hair or for styling baby hairs (the limitations “wherein the tail comb is configured for styling hair” and “wherein the tail comb is configured for styling baby hairs” are interpreted as intended use limitations; that is, the combination discloses a tail comb that is fully capable of being used for styling hair by using the tail comb to separate and/or arrange a user’s hairs, including baby hairs).
Regarding claim 15, the combination of Lee, Dietsche, and DiPippo discloses the hairstyling device of claim 11, as applied above. Lee further discloses wherein the tail comb is collapsible for storage in the internal cavity of the handle by being depressed by a user (the limitation “wherein the tail comb is collapsible for storage in the internal cavity of the handle by being depressed by a user” is interpreted as an intended use limitation; that is, the combination provides a collapsible tail comb that stows into a cavity within the handle of the device, wherein a user may apply a depressing action in a direction transverse to the length of the tail comb in order to impart a rotation to the tail comb to collapse the tail comb for storage).
Regarding claim 24, the combination of Lee, Dietsche, and DiPippo discloses the hairstyling device of claim 21, as applied above. Lee further discloses wherein during the deployment stage, the tail comb moves such that the tail comb rotates from the extended position to the retracted position (“bearing pin 80 which is rotatably connected to the shaft 70 so as to be rotatably connected to the pin groove 61 or is drawn out to the outside”, refer to Page 5 of the Lee translation).
Claims 23 and 25 rejected under 35 U.S.C. 103 as being unpatentable over the combination of Lee, Dietsche, and DiPippo as applied to claim 16 above, and further in view of Echterholter (FR1485251A).
Regarding claims 23 and 25, the combination of Lee, Dietsche, and DiPippo discloses the hairstyling device of claims 16 and 21, respectively, as applied above. The combination does not thus far disclose wherein during the deployment stage, the tail comb moves such that the tail comb slides from the extended position to the retracted position. Rather, the combination discloses a pivoting motion for deploying the tail comb.
Echterholter discloses a similar hairstyling device (Figures 1-6) having a plurality of teeth (refer to Figure 1), and a tail comb (7, 2a, 2b) that retracts into an internal cavity (5, 8) of the hairstyling device via a pivoting motion (refer to Figures 1-3), similar to that of the combination of Lee, Dietsche, and DiPippo, or alternatively, via sliding (refer to the directional arrow provided in Figure 4; additionally refer to Page 2, line 37 of the translation which states “one end…sliding into bore 8”) disposed at a proximal end of the device, thereby demonstrating that pivoting and sliding are functionally equivalent deployment means for stowing or extending a tail comb. Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the hairstyling device of the combination of Lee, Dietsche, and DiPippo such that during the deployment stage, the tail comb moves such that the tail comb slides from the extended position to the retracted position, as taught by Echterholter, since Echterholter demonstrates that pivoting and sliding are functionally equivalent deployment means and that a sliding deployment would perform equally as well as a pivoting deployment.
Response to Arguments
Claim Objections
Applicant’s amendments to the claims overcome all previous claim objections; thus, all previous claim objections are hereby withdrawn.
35 USC 112(b)
Applicant’s amendments to the claims overcome all previous 35 USC 112(b) rejections; thus, all previous 35 USC 112(b) rejections are hereby withdrawn.
35 USC 103
Applicant's arguments filed 09/02/2025 have been fully considered but they are not persuasive.
Argument #1:
Applicant provides a “spherical” cap that is formed as a result of the dimensions of the height of the spherical cap and the radius of the base surface being proportional to each other…i.e., the dimensions of the base radius is approximately equal to the dimensions of the cap’s height.
Response #1:
In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., the dimensions of the base radius is approximately equal to the dimensions of the cap’s height) are not recited in the rejected claim(s). 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 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). Rather, the claims have been amended only to recite that the base radius and the height are proportional, where proportional is defined by Oxford Languages as “having a constant ratio to another quantity”. Since the radius of the flat base surface has a non-zero value and is a constant value, and the spherical cap has a height of non-zero value and is a constant value, some numeric ratio exists to define the relationship between these two values. While the particular measurements/sizes of the radius and height are not provided, the figures of Lee’s device depict the size of the diameter to be approximately 10 times that of the height (refer to Lee Figure 8), in which case the ratio/proportion between the radius and height would be approximately 5:1.). Although the drawings may not be to scale, they can still be relied upon for teaching the general conditions of the claim because the overall relationship is depicted.
Argument #2:
It would not have been an obvious matter of design choice to change the shape and material and indicated in the office action. The shape of the pressing tip is not arbitrary but is rather carefully chosen and is “to be used in a manner similar to the tip of a smartphone stylus pen”.
Response #2:
There is no indication in the written description that the particular shape of the pressing tip is critical. The manner of use of a smart phone stylus pen is a pressing action. The hairstyling device of the combination of Lee, Dietsche, and DiPippo permits a pressing action to be employed during use.
Argument #3:
In Lee, the body of the brush is made of metal, and the through-hole 11 of the body 10 guides the heat of the dryer to be evenly distributed to the hair. Therefore to press the “hot” brush and its upper end during drying of a person’s head would possibly damage the person’s hair or scalp.
Response #3:
Lee’s brush does not itself comprise any internal heat source; the brush is fully capable of being used without the aid of a heated air source in which case, the brush itself would not be hot and would pose no danger to a user. Further, the pressing tip of Lee is not formed of metal but rather is formed of a synthetic resin (see at least page 2 of the translation mailed with the non-final rejection mailed on 06/22/2022), and it is this synthetic resin portion of the brush that is being used for pressing a user’s hair.
Argument #4:
Dietsche’s tail comb is not collapsible. Dietsche does not teach a pressing tip.
Response #4:
Dietsche is not being relied upon for the teaching of a collapsible tail comb or the pressing tip; rather, Lee provides these teachings, as indicated in the rejection of claims 16 and 21 above.
Argument #5:
There is no indication in Lee that one could simply add a comb on the opposite side of its bristle arrangement; doing so would fundamentally change Lee’s design and mode of use.
Response #5:
The fundamental design of Lee’s hairstyling device requires a plurality of bristles to be used for treating a user’s hair. Adding a single row of comb teeth does not prevent the device from being used to treat a user’s hair but rather improves the mode of use by permitting a means for aiding in the untangling of a user’s hair.
Argument #6:
Neither Lee nor Dietsche suggests modifying Lee’s cylindrical brush to a flattened, dual-sided brush/comb. The only motivation to make such a modification comes from hindsight.
Response #6:
The modification herein does not change the shape of the brush to be flattened; rather, the teachings of Dietsche are only relied upon for the teaching of a combination of brush bristles and comb teeth. Hairstyling devices comprising a plurality of brush teeth in addition to a plurality of comb teeth are known in the art as indicated by the prior art references cited in previous PTO-892 submissions throughout prosecution history of the instant application.
Argument #7:
DiPippo shows that there is virtually no height, there is no “spherical” cap. In DiPippo, the height is virtually short, while the radius of the base is long.
Response #7:
In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., there is virtually no height; the height is virtually short while the radius of the base is long) are not recited in the rejected claim(s). 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 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). The instant invention does not disclose a true sphere for the pressing tip but rather a truncated sphere delimited by a top flat surface and a flat base, i.e. the tip has rounded sides with a flat top and a flat bottom. This interpretation is accordingly applied to the prior art in the rejection herein. Further, the claims only require some proportion between the radius of the base and the height but not any particular proportion. Thus, any argument related to the radius being larger than the height is moot, as the language of the claims do not require such a relationship, i.e. the claims do not require that the radius is the same as the height, or that the radius/diameter is substantially the same as the height.
Argument #8:
There is no indication in DiPippo that the rubber cap is used to press hair against the skin. DiPippo provides no suggestion that such a cap is intended or suitable for pressing hair into place, let alone baby hairs. The shape of the pressing tip is not arbitrarily chosen and has a particular purpose.
Response #8:
The limitation “pressing” is interpreted as an intended use limitation. Lee teaches a tip that is fully capable of being used for pressing. The prior art is not required to teach every particular use case possibly served by a particular structure.
Argument #9:
Echterholter discloses a needle 7 that retracts within a bore 8 that extends within and beyond the handle “into the body of the comb”. Without hindsight, one of ordinary skill in the art would have no particular motivation to change Lee’s design with Echterholter, unless one were specifically trying to implement Applicant’s invention as disclosed.
Response #9:
Both Lee and Echterholter look to solve the same problem, namely, permitting a tail comb to retract into a body of a hairstyling device. Lee discloses retracting via a pivoting motion, whereas Echterholter is being relied upon for teaching retracting via a sliding/translating motion; however, both achieve the same outcome and substituting a pivoting motion for a translating motion is well within the level of ordinary skill, as two known means for imparting relative motion between two bodies. Further, even Echterholter alone discloses various modes for which to retract the tail comb, including pivoting (see Echterholter Figures 1-3), similar to that of Lee’s device; or alternatively, by translating/sliding (see Echterholter Figures 4-6), thereby demonstrating that pivoting and sliding are functionally equivalent means for imparting motion to a tail comb for purposes of retracing said tail comb.
Conclusion
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/SARAH WOODHOUSE/Examiner, Art Unit 3772