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 .
Status of Claims
As directed by the amendment filed on 29 August 2025: claim(s) 1 have been amended, claim(s) 26-27 have been added. Thus, claims 1-5,7-16,18-19 and 26-27 are presently pending.
Response to Arguments
Applicant's arguments filed 29 August 2025 have been fully considered but they are not persuasive for the following reasons:
Regarding the argument on pg. 7 of Remarks that “there is no mention of a collision of the jets within the chamber”, Rollat-Corval discloses “jet of particles projected onto the portion of hair maintained in the enclosure allows to abase these” and “At least two jets can be used”. Thus, Rollat-Corval meets the claim.
Regarding the argument on pg. 8 that “The Examiner's proposed modification further rests on impermissible hindsight. Rockliffe contains no teaching or suggestion that its cellulose powder is suitable for abrasive skin treatment or for jetting at the skin. to the contrary, the scouring powder of Example 17 is designed for hard, inanimate surfaces, and would discourage a skilled person from applying such a composition to skin due to potential irritation and such proposed combination would render Rollat-Corval inoperable for its intended purposes”, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). Rockliffe is relied upon only to teach a solid particle density of less than 1 g/cm3. It would be obvious to one or ordinary skill to incorporate Rockliffe’s teaching to promote cleansing, as suggested by Rollat-Corval/Rockliffe. Furthermore, the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). Lastly, neither Rollat-Corval nor Rockliffe explicitly state that a change in the solid particle density would render the Rollat-Corval device inoperable for its intended purposes.
Regarding the argument on pg. 8 that “there is no teaching to select the cellulose powder of Example 7, in isolation, for substitution into Rollat-Corval”, Rockliffe teaches “face powders for topical application to human skin” (col. 5 ln. 64) “which is dry-to-the-touch, which is simply packaged, and which possesses the ability to deliver a solvent or perfume or other active liquid material as and when required to the point of use” (col. 1 ln. 35-38).
Regarding the argument on pg. 9 that “The combination of Rollat-Corval and Rockliffe is based on hindsight reconstruction using Applicant's own disclosure as a roadmap. Rockliffe is non-analogous art, directed to odor-modifying compositions for deodorants and cleaning agents, and contains no teaching or suggestion that would lead the skilled person to select and apply cellulose powder of density < 1 g/cm3 in the manner claimed. Rollat-Corval contains no teaching of low-density particles or their associated advantages”, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). Furthermore, it has been held that a prior art reference must either be in the field of the inventor’s endeavor or, if not, then be reasonably pertinent to the particular problem with which the inventor was concerned, in order to be relied upon as a basis for rejection of the claimed invention. See In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992). In this case, both references are pertinent to delivery of powder particles to the skin. Lastly, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, Rockliffe teaches “face powders for topical application to human skin” (col. 5 ln. 64) “which is dry-to-the-touch, which is simply packaged, and which possesses the ability to deliver a solvent or perfume or other active liquid material as and when required to the point of use” (col. 1 ln. 35-38).
Regarding the argument that “there is no hint in Rollat-Corval that the embodiment of figure 11 is compatible with a liquid”, Rollat-Corval discloses that the carrier fluid may be gas or liquid (para. 5) and does not explicitly state that the figures only an embodiment that only works with gas.
Regarding the argument on pg. 9 that “there is absolutely no hint that such flow rate could be used for an abrasive treatment”, the fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985).
Rollat-Corval discloses the limitations of amended claim 1 and claims 26-27 as discussed below.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-2, 4-6, 8-16, 18-19, and 26-27 are rejected under 35 U.S.C. 103 as being unpatentable over Rollat-Corval et al. (FR 2931644 A1) in view of Rockliffe et al. (US 4471871 A). See machine translation of FR 2931644 A1 attached with the previous office action for all citations in the following rejections.
Regarding Claim 1, Rollat-Corval teaches a process for subjecting a surface of the hair ("new process for treating hair", ¶ 3) to an abrasive and/or stimulating action ("projecting solid abrasive particles (8)", Abstract), comprising
projecting onto said surface a flow of at least one composition comprising a vector liquid and solid particles (¶ 3-4 and 12), the flow generated from the collision of at least two jets generated by at least two nozzles ('channels 12 and 13', fig.11, ¶ 37-38) of a dispensing device ('apparatus (1)', fig.11, Claim 10), the nozzles (12, 13) oriented such that jets emanating therefrom encounter one another ("Several jets can be emitted towards the hair. These jets can be parallel, divergent or convergent. The impact zones of the jets may or may not overlap, being for example substantially contiguous. At least two jets can be used to treat two opposite sides of a strand of hair, respectively", ¶ 11), each one nozzle (12, 13) supplied with a pressure of at least 4 bar (¶ 8) and with a vector-liquid flow rate between 0.4 L/min and 4 L/min (“50μL/s and 4 L/s” ¶ 7),
the dispensing device 1 comprises a hand piece ('flexible 14', fig.3, ¶ 37) having a cavity ('volume 11', fig.6, ¶ 35) opened to the outside, within which the jets emitted by the nozzles (12, 13) encounter one another (fig. 11), the vector liquid comprising water ("By way of liquid fluid, mention may in particular be made of water" ¶4).
Rollat-Corval fails to teach the solid particles having a density of less than 1 g/cm3. Rockliffe teaches the solid particles having a density of less than 1 g/cm3 ("the inclusion of a solution of a perfume in n-heptane, as the non-aqueous liquid, in a cellulose powder of particle size 15-40 microns (cellulose matrix), to provide a powder article for incorporation into a hard surface scouring powder or a deodorant powder which are subsequently packaged", col.12, ll.26-31; col.12, ll.32-49; NOTE: cellulose powders have a density of less than 1 g/cm3).
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 treatment of Rollat-Corval such that the solid particles would have a density of less than 1 g/cm3 as taught by Rockliffe, in order to promote wound healing and improve skin texture through gentle exfoliation of scarring and abrasions.
Regarding Claim 2, Rollat-Corval teaches the vector liquid comprises water (¶ 7).
Regarding Claim 4, Rollat-Corval teaches the pressure is greater than or equal to 6 bar (¶ 8).
Regarding Claim 5, Rollat-Corval teaches the nozzles (12, 13) are oriented with an angle of between 30 and 120° with respect to one another (see fig.11).
Regarding Claim 8, Rollat-Corval teaches the particles have a hardness on the Mohs scale of greater than or equal to 3 (¶ 17 and 34).
Regarding Claim 9, Rollat-Corval teaches the particles are powders of alumina (¶ 16).
Regarding Claim 10, Rollat-Corval teaches the particle speed at the moment they impact said surface being greater than or equal to 8 m/s (¶ 9).
Regarding Claim 11, Rollat-Corval teaches the surface is a surface of the hair ("new process for treating hair", ¶ 3).
Regarding Claim 12, Rollat-Corval teaches the surface is a skin surface (¶ 12).
Regarding Claim 13, Rollat-Corval teaches the particle size is between 0.1 and 500 microns (¶ 16).
Regarding Claim 14, Rollat-Corval teaches the step consisting in rinsing said surface with the same device as that used for projecting the composition, by projecting water without said solid particles and/or water with a surfactant or a compound capable of dissolving the particles (¶ 14, 40, 46).
Regarding Claim 15, Rollat-Corval teaches the particles are suspended by mechanical stirring in a reservoir and they are left to settle, and, during the settling, the composition is suctioned from this reservoir so as to allow the nature and/or the concentration of the particles present in the flow distributed to vary due to the settling taking place in the reservoir (¶ 11, 27-28, 40, 42, 45; Claim 13).
Regarding Claim 16, Rollat-Corval teaches at least two powders of different densities are mixed in said reservoir ("mixed particles combining organic and inorganic compounds, and particles coated with the above compounds", ¶ 14).
Regarding Claim 18, Rollat-Corval teaches the particles being water-soluble and taken from a reservoir where they are in suspension in a liquid in which they are not soluble (¶ 12, 15, 14, 16).
Regarding Claim 19, Rollat-Corval teaches the particles being generated at the time of use by bringing together two compounds which react together to form solid particles (¶ 12, 14; Claim 8).
Regarding Claims 26-27, Rollat-Corval teaches the cavity diverges towards the outside; wherein sidewalls that define the cavity diverge relative to one another extending in a direction towards the outside and away from the device (see FIG. 12).
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Rollat-Corval in view of Robinault et al. (US 20210153619 A1).
Regarding Claim 3, Rollat-Corval teaches the flow rate (¶ 7), but fails to teach the flow rate is between 0.4 L/min and 4 L/min. Robinault teaches the flow rate is between 0.4 L/min and 4 L/min ("flow rate of between 0.5 and 5 L/min, better still between 0.8 and 3 L/min", Abstract, ¶ 11, 21).
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 treatment of Rollat-Corval such that the flow rate would be between 0.4 L/min and 4 L/min as taught by Robinault, in order to optimize the stream of liquid onto the surface such that the area would not be irritated by a strong flow or under-stimulated by a weak flow to the area of interest.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Rollat-Corval.
Regarding Claim 7, Rollat-Corval teaches the solid particles are present in the composition upstream of the nozzle(s) (12, 13) in a concentration by weight of greater than or equal to 0.5% relative to the total weight of the composition (NOTE: the concentration of a composition is directly related to its density. As concentration increases, density increases proportionally, thus a solid particle would have a concentration by weight greater than the total weight of the composition).
Rollat-Corval discloses the claimed invention except for concentration by weight of greater than or equal to 0.5% relative to the total weight of the composition. Rollat-Corval sets forth that the concentration by weight is a result effective variable.
It would have been obvious to one having ordinary skill in the art at the time the invention was made to have the solid particles be present in the composition upstream of the nozzle(s) in a concentration by weight of greater than or equal to 0.5% relative to the total weight of the composition, for the purpose of treating a thinner strand or a reduced area or, on the contrary, a thicker strand or a larger area of the hair (¶ 13), or additionally for driving the abrasive particles from the tank to volume (¶ 38), since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
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 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 Cheng Fong "Ted" Yang whose telephone number is (571)272-8846. The examiner can normally be reached 10am - 6pm (EST) M-F.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Rebecca E. Eisenberg can be reached at (571) 270-5879. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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Cheng Fong "Ted" Yang
Examiner
Art Unit 3781
/REBECCA E EISENBERG/Supervisory Patent Examiner, Art Unit 3781
Prosecution Insights