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 .
Claim Objections
Claims 1, 5, 8 and 9 are objected to because of the following informalities:
Examiner suggests amending claim 1 line 2 to “[[the]]a nape”.
Examiner suggests amending claim 5 line 2 to “[[the]]a nape”.
Examiner suggests amending claim 8 line 2 to “[[the]]a perimetrical edge”.
Examiner suggests amending claim 9 line 2 to “[[the]]a nape”.
Appropriate correction is required.
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, 4, 5, and 8-10 are rejected under 35 U.S.C. 103 as being unpatentable over Finamore (U.S. Patent No. 5,368,052 A) in view of Kuptiz 267 (U.S. Publication No. 2006/0081267 A1) and Kupitz (U.S. Publication No. 2007/0251536 A1).
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In regard to claim 1, Finamore discloses a frontal hairpiece (10 in Fig. 1, Figs. 1-5) comprising,
a flexible foundation (20 and 22 in Fig. 1; col. 2 lines 17-18 and col. 2 lines 26-29) capable of covering only a portion of a person's scalp, from a former frontal scalp hair margin anteriorly to a receding hair line of the person's scalp (col. 1 lines 33-36), wherein the flexible foundation comprises:
an elongated plastic base (20 in Fig. 1; col. 2 lines 17-21) having an outside surface (outside surface in annotated Fig. 1) and capable of extending laterally (lateral extension in annotated Fig. 1) across a frontal scalp and longitudinally (longitudinal extension in annotated Fig. 1) from the former frontal scalp hair margin to the person's receding hair line (col. 1 lines 33-36), wherein the elongated plastic base comprises:
a plurality of hair strands (14 in Fig. 1) attached to the outside surface of the elongated plastic base (Fig. 1, col. 2 line 68-col. 3 line 11).
Finamore does not disclose wherein the portion that the flexible foundation is adapted to cover excludes a nape, and wherein the elongated plastic base comprises extended end tabs which are configured to respectively terminate in front of an auricle of each ear.
Kuptiz 267 teaches an apparatus (Figs. 1-4) comprising a flexible foundation (para. 0029) capable of covering only a portion of a person's scalp (Fig. 1, para. 0033, trimmed to fit the wearer), excluding a nape (Fig. 1, para. 0033, trimmed to fit the wearer), from a former frontal scalp hair margin anteriorly to a receding hairline of the person's scalp (Fig. 1, para. 0009, simulates a natural hairline).
Kupitz teaches an apparatus (Figs. 1-12) for replacement of hair in a hair loss area (Abstract) comprising,
a foundation (10, 13, 15, and 17 in Fig. 1) capable of covering only a portion of a person's scalp (Abstract, ¾ cap) from a former frontal scalp hair margin anteriorly to a receding hair line of the person's scalp (Fig. 3, Abstract, para. 0005 and 0006), wherein the foundation comprises:
an elongated plastic base (10 in Fig. 3, para. 0036) having an outside surface (outside surface in annotated Fig. 3) and capable of extending laterally (lateral extension in annotated Fig. 3) across a frontal scalp and longitudinally (longitudinal extension in annotated Fig. 3) from the former frontal scalp hair margin to the person's receding hair line (Fig. 3, Abstract, para. 0005), wherein the elongated plastic base comprises:
extended end tabs (end tabs in annotated Fig. 3) which are capable of respectively terminating in front of an auricle of each ear (Fig. 3) and,
a plurality of hair strands attached to the outside surface of the elongated plastic base (Fig. 6, para. 0039).
The references and the claimed invention are considered to be analogous to the claimed invention because they are in the same field of devices for replacement of hair.
It would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified the portion that the flexible foundation is adapted to cover of Finamore by specifying the portion excludes a nape as taught by Kuptiz 267 in order to allow for customization of the hairpiece (Kuptiz 267, para. 0033) and simulation of a natural hairline (Kuptiz 267, para. 0009).
It would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified the elongated plastic base of Finamore and Kuptiz 267 by adding the extended end tabs which are capable of respectively terminating in front of an auricle of each ear as taught by Kupitz in order to allow for customization of the apparatus to a user’s head shape and hair loss areas (Kupitz, para. 0006).
With regard to the statement of intended use and other functional statements (e.g. “frontal” hairpiece as in claim 1, 5, and 9), they do not impose any structural limitations on the claims distinguishable over the prior art which is capable of being used as claimed if one so desires to do so. A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim.
In regard to claim 4, Finamore in view of Kuptiz 267 and Kupitz discloses the invention of claim 1. Finamore further discloses wherein the flexible foundation further comprises,
a central relieved portion (28 in Fig. 1, col. 2 lines 36-39) in the elongated plastic base (20 in Fig. 1; col. 2 lines 17-21),
a pane of mono filament mesh (22 in Fig. 1; 22 is made of horizonal element 24 and vertical element 26, attached to marginal portions 30 and 32; 24 and 26 may be made of the same material, Col. 2 lines 26-35) covering the central relieved portion of the elongated plastic base (Fig. 1) and attached thereto around its perimetrical edges (Fig. 1); and
a plurality of hair strands (16 in Fig. 1) attached to the mono filament mesh (Fig. 1, col. 3 lines 16-19).
In regard to claim 5, Finamore discloses a frontal hairpiece flexible foundation (20 and 22 in Fig. 1, Figs. 1-5; col. 2 lines 17-18 and col. 2 lines 26-29) capable of covering only a portion of a person's scalp, from a former frontal scalp hair margin posteriorly to a currently receding hair line of the scalp (col. 1 lines 33-36) comprising,
an elongated plastic base (20 in Fig. 1; col. 2 lines 17-21) capable of extending laterally (lateral extension in annotated Fig. 1) across a frontal scalp.
Finamore does not disclose wherein the portion that the flexible foundation is adapted to cover excludes a nape, and wherein the elongated plastic base comprises extended end tabs which are capable of terminating in front of an auricle of each ear.
Kuptiz 267 teaches an apparatus (Figs. 1-4) capable of covering only a portion of a person's scalp (Fig. 1, para. 0033, trimmed to fit the wearer), excluding a nape (Fig. 1, para. 0033, trimmed to fit the wearer), from a former frontal scalp hair margin posteriorly to a currently receding hairline of the person's scalp (Fig. 1, para. 0009, simulates a natural hairline).
Kupitz teaches an apparatus (10, 13, 15, and 17 in Fig. 1) capable of covering only a portion of a person's scalp (Abstract, ¾ cap) from a former frontal scalp hair margin posteriorly to a currently receding hair line of the scalp (Fig. 3, Abstract, para. 0005) comprising,
an elongated plastic base (10 in Fig. 3, para. 0036) capable of extending laterally (lateral extension in annotated Fig. 3) across a frontal scalp, wherein the elongated plastic base comprises extended end tabs (end tabs in annotated Fig. 3) which are capable of terminating in front of an auricle of each ear (Fig. 3).
The references and the claimed invention are considered to be analogous to the claimed invention because they are in the same field of devices for replacement of hair.
It would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified the portion that the frontal hairpiece flexible foundation is adapted to cover of Finamore by specifying the portion excludes the nape as taught by Kuptiz 267 in order to allow for customization of the hairpiece (Kuptiz 267, para. 0033) and simulation of a natural hairline (Kuptiz 267, para. 0009).
It would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified the elongated plastic base of Finamore in view of Kuptiz 267 by adding the extended end tabs which are capable of terminating in front of an auricle of each ear as taught by Kupitz in order to allow for customization of the apparatus to a user’s head shape and hair loss areas (Kupitz, para. 0006).
In regard to claim 8, Finamore in view of Kuptiz 267 and Kupitz discloses the invention of claim 5. Finamore further discloses wherein a portion of a perimetrical edge (30 in Fig. 1) of the pane of mono filament mesh (22 in Fig. 1) is overlapped by a portion of the elongated plastic base (20 in Fig. 1), forming a footing (footing in annotated Fig. 1) for clips that attach the frontal hairpiece flexible foundation to the receding hair line (footing is capable of performing the intended use; col. 4 lines 19-23 states the hairpiece may be secured to the scalp with any other known securing mechanism).
With regard to the statement of intended use and other functional statements (e.g. “for clips that attach the frontal hairpiece to the receding hair line” as in claims 8), they do not impose any structural limitations on the claims distinguishable over the prior art which is capable of being used as claimed if one so desires to do so. A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim.
In regard to claim 9, Finamore discloses a frontal hairpiece (10 in Fig. 1, Figs. 1-5), comprising:
a flexible foundation (20 and 22 in Fig. 1; col. 2 lines 17-18 and col. 2 lines 26-29) capable of covering only a portion of a person's scalp from a former frontal scalp hair margin posteriorly to a receding hair line of the person's scalp (col. 1 lines 33-36), wherein the flexible foundation comprises:
an elongated polyurethane base (20 in Fig. 1; col. 2 lines 17-25) having an outside surface (outside surface in annotated Fig. 1) and capable of extending laterally (lateral extension in annotated Fig. 1) across a frontal scalp (col. 1 lines 33-36) wherein the elongated polyurethane base comprises:
a central relieved portion (28 in Fig. 1, col. 2 lines 36-39) in the elongated polyurethane base (Fig. 1);
a pane of mono filament mesh (22 in Fig. 1; 22 is made of horizonal element 24 and vertical element 26, attached to marginal portions 30 and 32; 24 and 26 may be made of the same material, Col. 2 lines 26-35) attached along its perimetrical edges to the elongated polyurethane base (Fig. 1) and covering the central relieved portion of the elongated polyurethane base (Fig. 1); and
a plurality of hair strands (14 and 16 in Fig. 1) attached to outside surfaces of the elongated polyurethane base and tied into the mono filament mesh (col. 2 line 68-col. 3 line 11, col. 3 lines16-19).
Finamore does not disclose extended end tabs which are configured to respectively terminate in front of auricles of the ears, an indented curvilinear frontal edge on the elongated polyurethane base; a strip of lace having an outside surface and attached to the indented curvilinear frontal edge of the elongated polyurethane base, and a plurality of hair strands attached to the strip of lace.
Kuptiz 267 teaches an apparatus (Figs. 1-4) comprising a flexible foundation (para. 0029) capable of covering only a portion of a person's scalp (Fig. 1, para. 0033, trimmed to fit the wearer), excluding a nape (Fig. 1, para. 0033, trimmed to fit the wearer), from a former frontal scalp hair margin posteriorly to a receding hair line of the person's scalp (Fig. 1, para. 0009, simulates a natural hairline).
Kupitz teaches an apparatus (Figs. 1-12), comprising:
a foundation (10, 13, 15, and 17 in Fig. 1) capable of covering only a portion of a person's scalp from a former frontal scalp hair margin posteriorly to a receding hair line of the person's scalp (Fig. 3, Abstract, para. 0005), wherein the foundation comprises:
an elongated polyurethane base (10 in Fig. 3, para. 0036) having an outside surface (outside surface in annotated Fig. 3) and capable of extending laterally (lateral extension in annotated Fig. 3) across a frontal scalp (Fig. 3, Abstract, para. 0005) wherein the elongated polyurethane base comprises:
extended end tabs (end tabs in annotated Fig. 3) which are capable of respectively terminating in front of auricles of the ears (Fig. 3),
an indented curvilinear frontal edge (edge in annotated Fig. 3) on the elongated polyurethane base (Fig. 3); and
a strip of lace (lace in annotated Fig. 2, para. 0035, “reinforced lighter medium hole lace on front edge 22”) having an outside surface (outside surface in annotated Fig.2) and attached to the indented curvilinear frontal edge of the elongated polyurethane base (Fig. 2, para. 0035);
a plurality of hair strands attached to outside surfaces of the elongated polyurethane base (Fig. 6, para. 0039) and the strip of lace (Fig. 8, para. 0037).
The references and the claimed invention are considered to be analogous to the claimed invention because they are in the same field of devices for replacement of hair.
It would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified the portion that the flexible foundation is adapted to cover of Finamore by specifying the portion excludes the nape as taught by Kuptiz 267 in order to allow for customization of the hairpiece (Kuptiz 267, para. 0033) and simulation of a natural hairline (Kuptiz 267, para. 0009).
It would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified the elongated polyurethane base of Finamore in view of Kuptiz 267 by adding the extended end tabs which are capable of respectively terminating in front of auricles of the ears as taught by Kupitz in order to allow for customization of the apparatus to a user’s head shape and hair loss areas (Kupitz, para. 0006).
It would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified the elongated plastic base of Finamore in view of Kuptiz 267 by adding the extended end tabs which are capable of respectively terminating in front of an auricle of each ear and specifying the base comprises an indented curvilinear frontal edge as taught by Kupitz in order to allow for customization of the apparatus to a user’s head shape and hair loss areas (Kupitz, para. 0006).
It would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified the flexible foundation of Finamore in view of Kuptiz 267 by adding a strip of lace having an outside surface and attached to the elongated polyurethane base, and a plurality of hair strands attached to the strip of lace as taught by Kupitz in order to allow for creation of a natural uneven hair line (Kupitz para. 0045).
In regard to claim 10, Finamore in view of Kuptiz 267 and Kupitz discloses the invention of claim 9. Finamore further discloses wherein a portion of the perimetrical edges (30 in Fig. 1) of the mono filament mesh (22 in Fig. 1) is overlapped by a portion of the elongated polyurethane base (20 in Fig. 1), forming a footing (footing in annotated Fig. 1) for clips that attach the frontal hairpiece to the receding hair line (footing is capable of performing the intended use; col. 4 lines 19-23 states the hairpiece may be secured to the scalp with any other known securing mechanism).
With regard to the statement of intended use and other functional statements (e.g. “for clips that attach the frontal hairpiece to the receding hair line” as in claim 10), they do not impose any structural limitations on the claims distinguishable over the prior art which is capable of being used as claimed if one so desires to do so. A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim.
Response to Arguments
Applicant's arguments filed 11 September 2025 have been fully considered but they are not persuasive.
In regard to Applicant’s arguments regarding the claim rejections under 35 U.S.C. § 102, in the above rejection, Claims 1, 4, 5, and 8-10 are rejected under 35 U.S.C. § 103 as being unpatentable over Finamore in view of Kuptiz 267 and Kupitz. Applicant is directed to the rejections in view of the amendments.
In regard to rejections of Claims 1, 4, 5, and 8-10 under 35 U.S.C. § 103 as being unpatentable over Finamore in view of Kupitz, Applicant argues that Finamore is directed to cap-style hairpieces to provide coverage across a substantial region of the scalp, and that the molded base in Finamore is shaped to rest on the scalp and retain its form because of this broad coverage area, which extends beyond the frontal margin and is not limited to the region of the receding hairline. Applicant argues that adapting Finamore's structure to a frontal-only configuration, as claimed—limited to covering the area from the former frontal hair margin to the receding hairline— would alter the device's physical properties. Applicant argues that without the support provided by the broader base, the structure not retain its intended form or rest securely on the head, and argues that there is no suggestion in Finamore that its base or mesh could be limited to the frontal region or configured to anchor at the receding hairline as required by Applicant's claims.
Examiner notes that Applicant’s arguments are narrower than the claims. Examiner notes that the claims not specify a frontal-only configuration, that the frontal hairpiece is limited to covering the area from the former frontal hair margin to the receding hairline, or that the hairpiece is configured to anchor at the receding hairline. Instead, in the amended independent claim 1, and the similar independent claims, the claims as written specify that the flexible foundation is adapted to (interpreted as capable of) covering only a portion of a person’s scalp, excluding the nape, from a former frontal scalp hair margin anteriorly to a receding hairline of the person’s scalp. If a prior art structure extends from a former frontal scalp hair margin anteriorly and extends past a receding hairline of the person’s scalp, the prior art structure still reads on the claim limitation as written, as the prior art structure is capable of extending from a former frontal scalp hair margin anteriorly to a receding hairline of the person’s scalp, and extension past the receding hairline of the person’s scalp is not excluded. Further, in the dependent claims 8 and 10, with regard to the statement of intended use and other functional statements (e.g. “for clips that attach the frontal hairpiece to the receding hair line” as in claims 10), they do not impose any structural limitations on the claims distinguishable over the prior art which is capable of being used as claimed if one so desires to do so. A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. Examiner notes that in the above rejection, Finamore is not modified to limit its base or mesh to a frontal region, and that Finamore is capable of performing the intended use of the dependent claims 8 and 10, as written. In the above rejection, Claims 1, 4, 5, and 8-10 are rejected under 35 U.S.C. § 103 as being unpatentable over Finamore in view of Kuptiz 267 and Kupitz. Applicant is directed to the rejections in view of the amendments.
Applicant argues that Finamore does not describe, teach, or suggest attachment methods suitable for a frontal-only piece, nor any structure providing secure placement at the receding hairline, such as the overlapping mesh for clip footing recited in the present claims. The functional requirements and benefits of the claimed invention-specifically, a hairpiece securely anchored at the receding hairline-are not addressed or suggested in Finamore or the combination.
Examiner notes that Applicant’s arguments are narrower than the claim limitations as the claim limitations do not specify the hairpiece is frontal-only. Examiner notes that in the above rejection, Finamore discloses wherein a portion of the perimetrical edges (30 in Fig. 1) of the mono filament mesh (22 in Fig. 1) is overlapped by a portion of the elongated polyurethane base (20 in Fig. 1), forming a footing (footing in annotated Fig. 1) for clips that attach the frontal hairpiece to the receding hair line (footing is capable of performing the intended use; col. 4 lines 19-23 states the hairpiece may be secured to the scalp with any other known securing mechanism). Examiner notes that in the above rejection, Claims 1, 4, 5, and 8-10 are rejected under 35 U.S.C. § 103 as being unpatentable over Finamore in view of Kuptiz 267 and Kupitz. Applicant is directed to the rejections in view of the amendments.
Applicant argues that the combination of Finamore and Kupitz is not suggested or motivated by the references as they address different problems and achieve different results. Applicant argues that there is no teaching or suggestion in the prior art that would lead a person of ordinary skill to combine these disparate features to arrive at the claimed frontal-only structure anchored at the receding hairline and that any attempt to do so would be improper hindsight reconstruction.
Examiner notes that as noted above, Applicant’s arguments are narrower than the claim limitations, and that the combination of Finamore and Kupitz is not hindsight reconstruction as they are in the same field of devices for replacement of hair. One of ordinary skill in the art would have been motivated to have modified Finamore by the teachings of Kupitz by adding the extended end tabs which are capable of respectively terminating in front of an auricle of each ear as taught by Kupitz in order to allow for customization of the apparatus to a user’s head shape and hair loss areas (Kupitz, para. 0006).
Applicant argues that combining the features of Kupitz with Finamore strays from the intended object of Finamore, as Finamore discloses a one-piece, flexible, molded, plastic foundation member, while the extended end tabs of Kupitz, as annotated in the Office Action in Fig. 3, comprise at least three different stitch lines, several different sized hole lace, and stitched polyurethane connections. Applicant argues that the combination of the extended end tabs of Kupitz with Finamore would deviates from the one-piece, molded, plastic foundation member hairpiece that Finamore is directed to and detract from the ventilation sought in Finamore, adds more material and components to detract from the coolness to wear, and being economical to produce.
Examiner notes that Applicant’s arguments are narrower than the claim limitations, as the claims do not exclude additional stitch lines, lace hole sizes, and polyurethane connections. Examiner notes that, as noted above, one of ordinary skill in the art would have been motivated to have modified Finamore by the teachings of Kupitz by adding the extended end tabs which are capable of respectively terminating in front of an auricle of each ear as taught by Kupitz in order to allow for customization of the apparatus to a user’s head shape and hair loss areas (Kupitz, para. 0006).
Applicant argues that combining the features of Finamore and Kupitz would not result in a device that meets either the intended function of the prior art or the requirements of the present claims as removing Finamore’s base support and reducing the structure to a frontal-only piece would result in a device that lacks the rigidity, conformability, and natural positioning intended by Finamore. Applicant argues that incorporating adjustment features from Kupitz into such a drastically reduced base would serve no functional purpose, as Kupitz's polyurethane keys and tabs are intended for the adjustment and securement of a full or 3/4 cap wig, not for a minimal frontal attachment. Applicant argues that the resulting combination would not have a sufficient anchoring surface, nor would it provide the support required to maintain a natural hair orientation and margin, and would lack the operability necessary for either intended use. Applicant argues that the proposed combination would render the resulting device unsatisfactory and unworkable for its intended purposes and that the Examiner has not established that it would be prima facie obvious to combine Finamore with Kupitz to arrive at the present invention. Applicant argues that the rejection under § 103 be withdrawn.
Examiner notes that, as noted above, Applicant’s arguments are narrower than the claim limitations, and in the above rejection, Finamore is not modified to remove its base support and reduce its structure to a frontal-only piece. Applicant is directed to the above rejections in view of the amendments.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant’s disclosure. Please see attached PTOL-892 form.
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 COURTNEY N HUYNH whose telephone number is (571)272-7219. The examiner can normally be reached M-F 7:30AM-5:00PM (EST) flex, 2nd Friday off.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Eric Rosen can be reached at (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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/COURTNEY N HUYNH/Examiner, Art Unit 3772
/ERIC J ROSEN/Supervisory Patent Examiner, Art Unit 3772