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 .
Information Disclosure Statement
All of the I.D.S.’s have been considered. One of the I.D.S.’s has NPL documents that have been lined through. It is unclear how the objection/rejection/allowance of claims with different combination of limitations is relevant to the instant application. Without any reasoning provided by Applicant, these NPL documents have not be considered.
Drawings
The drawings are objected to because:
In Figure 3, C1’s reference arrow is pointing at a portion of 20. The specification discloses the plane C1 is defined by surface 42. The arrow for C1 needs to point up at 42.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they do not include the following reference sign(s) mentioned in the description:
On page 8 line 20, item 213. Should 213 be replaced with 214?
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 11 and 15 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
With regards to claims 11 and 15, the parallel relationship between the floor surface and plane C1 and the dome or cone shapes in combination with claim 1 are new matter. The Claim 1 positively recites tabs 550 which are only associated with the embodiment of Figures 5A and 5B. Figures 5A and 5B do not incorporate a parallel relationship between the floor surface and plane C1 or the dome or cone shapes. The combination of the tabs with the claim 11 parallel relationship between the floor surface and plane C1 and the dome or cone shapes are not supported and are new matter.
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-14, 17, 18, and 20 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
With regards to claims 1 and 9-12, the terms “lower”, “over”, and “upward” are indefinite as these terms are dependent upon an indefinite orientation. The product is handheld and is capable of being utilized in an infinite number of orientations including ones that do not correspond with the terms. The terms must be replaced with terms that are true regardless of orientation. Another option is to label at least Figures 5A as defining an upright position in the specification and then disclosure “when in an upright position” in claim 1 so it is clear what orientation the product is in.
With regards to claim 1, the phrase “columns” disclosure is unclear. As written, the columns and the floor surface are different parts of the housing which does not appear to be supported. In Figures 5A and 5B, the columns engage the floor surface. Therefore, the columns need to have a structural relationship with the floor surface because this is the only way there is support.
With regards to claim 1, the phrase “a cavity formed by a volume extending from the lower surface to the floor surface” is unclear. As written, the columns are unrelated to the cavity/volume which is not supported. The columns engage and extend from the floor surface to the lower surface and, along with the lower surface and the floor surface, define the cavity.
With regards to claim 1, it is unclear what structure allows for a single tab to “extend around the housing”. There needs to be more than one tab to extend around the housing.
With regards to claim 1, it is unclear what structure allows for the tab/tabs to extend into the cavity. As written, the one or more windows are unrelated to the tab/tabs extending into the cavity which is not supported. Figure 5B clearly shows the tabs having to use the windows to extend into the cavity. The tab/tabs extend into the cavity limitation needs be disclosed after the introduction of the window/windows.
With regards to claim 1, the phrase “the one or more windows form a portion of an outer surface of the product” is unclear. It is unclear how an empty space can form a portion of a surface. A window would break up a surface or it would not meet the requirements of being a window. Also, it is unclear how thew windows would make up a portion of the product but not a portion of the housing?
With regards to claim 1, the window disclosure is unclear. What structure defines the windows? Just because the window is disclosed as being between a part of the housing does not make it a part of the housing. As written, the window is not a part of the housing which does not appear to be supported. The claim needs to be clear that the windows are defined by the housing and the columns so that the windows are in communication with the cavity because this is the only way there is support.
With regards to claims 1 and 17, the phrase “one or more windows” needs to be replaced with “the one or more windows”.
With regards to claim 2, the phrase “volume extends from an inner column wall” is unclear. It is unclear what structure defines the inner column wall. As written, it is introduced in a way unrelated to the columns. If this wall is supposed to be an inner wall of the column, it is unclear which of the plurality of columns is being referenced. Claim 1 discloses that the columns are unrelated to the definition of the cavity. The column cannot play a role later on. Claim 1 needs to disclose the columns define the cavity and claim 2 can further limit this by disclosing an inner wall of each of the columns defines the cavity.
With regards to claim 4, it is unclear how the cavity is empty as the columns are in the cavity. Since the columns are not utilized to define the cavity, they are interpreted as being in the cavity. Claim 1 needs to disclose the columns define the cavity because the columns cannot be in a cavity they define. Amending claim 1 to disclose the columns defines the cavity overcome the issue with claim 4.
With regards to claims 5 and 6, the heights (H1, H2, H3) are all indefinite. The product is able to define many different heights, and the claim needs to be clear which height is being referenced. In Figure 6, the cavity and the columns have many different heights, and the claim needs to be clear which of the heights is being referenced.
With regards to claim 10, the “carrier” disclosure is unclear. As written, the treatment surface and the frame are not engaged with the carrier which is not supported. In order for the frame and the treatment surface to be comprised by the product, they need to be engaged with the carrier. The carrier also defines parts of the cavity and the windows and the claim needs acknowledge these relationships because this is the only way there is support.
With regards to claim 11, it is unclear what structure allows for the product with tabs to incorporate the parallel relationship between the floor surface and plane C1?
With regards to claim 13, the phrase “shaped” is indefinite. All structures have a shape. It is unclear what does and does not meet the shaped limitation. Further definition is needed.
With regards to claim 17, the phrase “the treatment sheet is visible from one or more windows” is indefinite as this is based on the user’s ability to see and their point of view. Using Figure 5A and looking through the window shown, the sheet would not be visible from the window in this situation. The claim needs to disclose the one or more windows are in communication with the sheet via the cavity.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-3, 7, 9, 11-13, 17, and 20 are rejected, as best understood, under 35 U.S.C. 102(a)(1) as being anticipated by Welsh et al. (4,964,214).
With regards to claim 1, Welsh et al. disclose the same invention including a personal care product (Fig. 9) having a treatment sheet having a lower surface (2), a housing (1) having a floor surface (bottom of 4) and a plurality of columns (portions of 1 in between (6), a cavity formed by a volume extending from the lower surface to the floor surface (Fig. 9), one tab (16) in a frame member (13) disposed over the treatment sheet (portions of 14 receive sheet 2 so the frame is over the sheet), the one tab is bent such that the one tab extends around the housing into the cavity (16, Fig. 9), the product further comprises a window disposed between the columns (6), the sheet is proximal to the window (Fig. 9), and the window form a portion of an outer surface of the product (Fig. 9).
With regards to claims 2, 3, 7, 9, 11-13, 17, and 20, Welsh et al. disclose the volume extends from an inner column wall (Fig. 9), the columns are formed in a side wall of the housing (Fig. 9), the treatment sheet is flat (2), the columns extend upward from the floor surface of the housing (Fig. 9), the floor surface is parallel relative to a plane defined by the lower surface (Fig. 9), the floor surface is angled relative to a plane defined by the lower surface (all structures are at an angle relative to all other structures, Fig. 9), the floor surface is shaped (Fig. 9), the treatment sheet is capable of being visible from the windows (Fig. 9), and fluid is capable of flowing into and out of the windows (6).
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.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Welsh et al. (4,964,214).
With regards to claim 8, Welsh et al. fail to disclose the sheet is brittle.
It would have been obvious to one having ordinary skill in the art at the time the invention was made to have made the treatment sheet out of any reasonable material including one that is brittle to some extent, 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. In re Leshin, 125 USPQ 416. Therefore, it would have been an obvious matter of design choice to modify the device of Welsh et al. to obtain the invention as specified in claim 8. The claim would have been obvious because a person of ordinary skill has good reason to pursue the known options within technical grasp. If this leads to the anticipated success, it is likely the product is not of innovation but of ordinary skill and common sense.
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over Figure 9 of Welsh et al. (4,964,214) in view of Figure 2 of Welsh et al. (4,964,214).
With regards to claim 18, Figure 9 of Welsh et al. fail to disclose the housing is substantially cylindrical.
Figure 2 of Welsh et al. teach it is known in the art of housings for a care product to incorporate a substantially cylindrical shape (Fig. 2). Therefore, it would have been obvious to one of ordinary skill in the art, at the time of filing, to have provided Figure 9 of Welsh et al. with the substantially cylindrical shape, as taught by Figure 2 of Welsh et al., because the substitution of one known element for another would have yielded predictable results and all claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective function and the combination would have yielded predictable results.
Claims
It is to be noted that claims 4-6, 10, and 14 have not been rejected over prior art. It may or may not be readable over the prior art but allowability cannot be determined at this time in view of the issues under 35 USC § 112. Where there is a great deal of confusion and uncertainty as to the proper interpretation of the limitations of a claim, it would not be proper to reject such a claim on the basis of prior art. As stated in In reSteele, 305 F.2d 859, 134 USPQ 292 (CCPA 1962), a rejection under 35 U.S.C. 103 should not be based on considerable speculation about the meaning of terms employed in a claim or assumptions that must be made as to the scope of the claims.
Response to Arguments
Applicant’s arguments with respect to the claims have been considered but are moot because the new ground of rejection is not specifically challenged in the argument.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JASON DANIEL PRONE whose telephone number is (571)272-4513. The examiner can normally be reached Monday-Friday: 7:00 am-3:00 pm.
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17 September 2026
/Jason Daniel Prone/
Primary Examiner, Art Unit 3724
