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 .
Response to Arguments
Applicant's arguments filed 04/07/2026 have been fully considered but they are not persuasive.
With respect to Applicant’s allegations that “the present application is directed to computer-implemented method and system for tracking skin concerns”. It is noted that the features upon which applicant relies (i.e., a computer-implemented method and system for tracking skin concerns) 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).
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, 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). In the instant case, the Examiner has only relied upon the disclosure of Smith which contemplates multiple different exfoliants for use in the substrates ([0028]), the use of particular colors or patterns of the substrates dependent on the skin condition/type, region of user anatomy, and similar strength skin exfoliants ([0029]), and the use of visual indicia (colors and printed patterns on the substrates) to provide information about the strength and type of skin exfoliant ([0036]), all of which provide evidence to one of ordinary skill in the art that the distinct color coding, and shape features between the different substrates of Smith inherently provides information to a user (such as the physician described in [0036]) who knows and understands the indicated active agents, is aware of the color coding and shape features, and the meaning of said coding system, which indicates compatibility (i.e. the substrates have a same type of exfoliant, a same strength of exfoliant, are for use in a same region of user’s anatomy, are for use on a particular skin type or condition, etc.) as well as incompatibility (i.e. the substrates have different types of exfoliant, different strengths of exfoliant, are not for use in a same region of user’s anatomy, are not for use on a particular skin type or condition, etc.) between the different active agents among color-coded substrates having different colors.
In response to Applicant’s argument that the motivations for the asserted modifications are merely advantages of the presently claimed subject matter. Examiner respectfully disagrees. Examiner first notes that there is no modification to Smith made. Examiner’s rejection provides facts derived from the disclosure of Smith which evidence the claimed limitation is inherently disclosed by Smith. The reasoning for the assertion that Smith inherently discloses the claimed limitation comes directly from the disclosure of Smith paragraph [0036] which directly states the provided motivation. With respect to the additional reasoning of “preventing a user from selecting partitions with two incompatible agents that would either negate the positive effects of one another, or could mix and cause a harmful reaction”, this benefit would be obvious to one of ordinary skill in the art in view of the disclosure of Smith paragraph [0036].
In response to Applicant’s arguments of claim 5, Examiner respectfully disagrees for the same reasons of claim 2 discussed above.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 2, 5, 8-10, and 13-14 is/are rejected under 35 U.S.C. 103 over Smith (US 2020/0121565 A1) in view of Miles (US 2019/0298038 A1).
In regards to claim 2, Smith discloses A system (100; see [0034]; see figure 1) of color-coded substrates (see [0033] in reference to identifying skin exfoliants based on visual indicia such as color on the partitions) for application to skin for the treatment of skin concerns (see [0037] in reference to the partitions including a skin exfoliant for removal of particles such as dead skin, oil, and debris which causes acne; thus, the system is a treatment for at least acne), comprising:
a plurality of color-coded substrates (102, 104-120; see [0034]; see figure 1; see [0036] in reference to “the exterior surface of each partition may include visual indicia such as distinct color”), each color-coded substrate (102, 104-120) has a color (see [0036]), an area specific shape (see figure 1), and a shape feature (stripes, stars, or checked pattern; see [0029]), wherein the area specific-shape defines a first outer perimeter (see figure 1) and the shape feature (stripes, stars, or checked pattern) has a second perimeter that is within the first outer perimeter of the area-specific shape (See figure 1 that the stripes define a second perimeter that is within the first, outer perimeter of the area specific shapes), wherein,
each different color indicates a different active agent (skin exfoliant; see [0036] in reference to a distinct color to provide indicia with regards to the type of skin exfoliant included in a particular portion; see [0028] in reference to the different skin exfoliants (active agents) contemplated for use);
each area-specific shape conforms to a specific area of a face or skin (see figure 1), and
color coded substrates having a different shape feature (stripes, stars, or checked pattern are different shape features) indicates incompatibility between the different active agents (see [0028] in reference to the multiple different active agents (exfoliants) contemplated for use) among color-coded substrates having different colors (partitions intended for certain skin types or conditions may be marked with a particular color or pattern to indicate an intended use for a particular partition in a common region of the user’s anatomy, which may have a skin exfoliant of a similar strength (see [0029]); each partition may include visual indicia such as distinct color, pattern…visual indicia provide information about the strength and type of skin exfoliant included in a particular partition (see [0036]); thus, the distinct color coding, and shape features between the different substrates of Smith provides information to a user (such as the physician described in [0036]) who knows and understands the indicated exfoliants, is aware of the color coding and shape features, and the meaning of said coding system, which indicates compatibility (i.e. the substrates have a same type of exfoliant, a same strength of exfoliant, are for use in a same region of user’s anatomy, are for use on a particular skin type or condition, etc.) as well as incompatibility (i.e. the substrates have different types of exfoliant, different strengths of exfoliant, are not for use in a same region of user’s anatomy, are not for use on a particular skin type or condition, etc.) between the different active agents among color-coded substrates having different colors), and
the plurality of color-coded substrates (102, 104-120) includes at least one color-coded substrate with an active agent effective to treat acne (as discussed above, the skin exfoliant is an active agent for the treatment of acne).
Smith does not disclose the plurality of color-coded substrates includes at least one color-coded substrate with an active agent effective to treat pigmentation, at least one color-coded substrate with an active agent effective to treat wrinkles, and at least one color-coded substrate with an active agent effective to treat post inflammatory hyper-pigmentation.
However, Miles teaches an analogous plurality of substrates (12a-g; see [0025]; see figure 3) for the analogous application to a user’s face (see figure 6) for the treatment of a skin concern (see [0025] in reference to anti-ageing, anti-wrinkle, and skin exfoliation applications); the plurality of substrates (12a-g) includes at least one substrate with an active agent effective to treat pigmentation (see [0032] in reference to the patch being selectively impregnated with ceramides and niacinamides which are active agents which treat pigmentation), at least one substrate with an active agent effective to treat wrinkles (see [0032] in reference to the patch being selectively impregnated with ingredients which claim to reduce wrinkles, thus, each listed ingredient is an active agent to treat wrinkles), and at least one substrate with an active agent effective to treat post inflammatory hyper-pigmentation (see [0032] in reference to the patch being selectively impregnated with ceramides, niacinamides, peptides, and vitamin A (retinoids) which are active agents to treat PIH) for the purpose of providing a skin treatment system which may be used for anti-ageing, anti-wrinkle, and skin exfoliation applications (see [0008]).
Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the system of color-coded substrates as disclosed by Smith and to have included the additional substrates selectively impregnated with active agents effective to treat pigmentation, wrinkles, and post inflammatory hyper-pigmentation as taught by Miles in order to have provided an improved system of color-coded substrates that would add the benefit of providing a skin treatment system which may be used for anti-ageing, anti-wrinkle, and skin exfoliation applications (see [0008]) thereby increasing the number of skin concerns which the system of color-coded substrates is capable of treating.
In regards to claim 5, Smith discloses A system (100; see [0034]; see figure 1) of color-coded substrates (see [0033] in reference to identifying skin exfoliants based on visual indicia such as color on the partitions) for application to skin for the treatment of skin concerns (see [0037] in reference to the partitions including a skin exfoliant for removal of particles such as dead skin, oil, and debris which causes acne; thus, the system is a treatment for at least acne), comprising:
a plurality of color-coded substrates (102, 104-120; see [0034]; see figure 1; see [0036] in reference to “the exterior surface of each partition may include visual indicia such as distinct color”), each color-coded substrate (102, 104-120) has a color (see [0036]), an area specific shape (see figure 1), and a symbol (stripes, stars, or checked pattern; see [0029]; see figure 1), wherein the area specific-shape defines a first outer perimeter (see figure 1) of the color coded substrate (102, 104-120) and the symbol (stripes, stars, or checked pattern) has a second perimeter that is within the first outer perimeter of the color-coded substrate (102, 104-120; See figure 1 that the stripes define a second perimeter that is within the perimeter of the color-coded substrate),wherein,
each different color indicates a different active agent (see [0036] in reference to a distinct color to provide indicia with regards to the type of skin exfoliant included in a particular portion; see [0028] in reference to the types of exfoliants (active agents) to be used);
each area-specific shape conforms to a specific area of a face or skin (see figure 1),
color coded substrates having a different symbol (stripes, stars, or checked pattern are different shape features) indicates incompatibility between the different active agents (see [0028] in reference to the multiple different active agents (exfoliants) contemplated for use) among color-coded substrates having different colors (partitions intended for certain skin types or conditions may be marked with a particular color or pattern to indicate an intended use for a particular partition in a common region of the user’s anatomy, which may have a skin exfoliant of a similar strength (see [0029]); each partition may include visual indicia such as distinct color, pattern…visual indicia provide information about the strength and type of skin exfoliant included in a particular partition (see [0036]); thus, the distinct color coding, and symbols between the different substrates of Smith provides information to a user (such as the physician described in [0036]) who knows and understands the indicated exfoliants, is aware of the color coding and symbols, and the meaning of said coding system, which indicates compatibility (i.e. the substrates have a same type of exfoliant, a same strength of exfoliant, are for use in a same region of user’s anatomy, are for use on a particular skin type or condition, etc.) as well as incompatibility (i.e. the substrates have different types of exfoliant, different strengths of exfoliant, are not for use in a same region of user’s anatomy, are not for use on a particular skin type or condition, etc.) between the different active agents among color-coded substrates having different colors), and
the plurality of color-coded substrates (102, 104-120) includes at least one color-coded substrate with an active agent effective to treat acne (as discussed above, the skin exfoliant is an active agent for the treatment of acne).
Smith as now modified still does not disclose the plurality of color-coded substrates includes at least one color-coded substrate with an active agent effective to treat pigmentation, at least one color-coded substrate with an active agent effective to treat wrinkles, and at least one color-coded substrate with an active agent effective to treat post inflammatory hyper-pigmentation.
However, Miles teaches an analogous plurality of substrates (12a-g; see [0025]; see figure 3) for the analogous application to a user’s face (see figure 6) for the treatment of a skin concern (see [0025] in reference to anti-ageing, anti-wrinkle, and skin exfoliation applications); the plurality of substrates (12a-g) includes at least one substrate with an active agent effective to treat pigmentation (see [0032] in reference to the patch being selectively impregnated with ceramides and niacinamides which are active agents which treat pigmentation), at least one substrate with an active agent effective to treat wrinkles (see [0032] in reference to the patch being selectively impregnated with ingredients which claim to reduce wrinkles, thus, each listed ingredient is an active agent to treat wrinkles), and at least one substrate with an active agent effective to treat post inflammatory hyper-pigmentation (see [0032] in reference to the patch being selectively impregnated with ceramides, niacinamides, peptides, and vitamin A (retinoids) which are active agents to treat PIH) for the purpose of providing a skin treatment system which may be used for anti-ageing, anti-wrinkle, and skin exfoliation applications (see [0008]).
Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the system of color-coded substrates as disclosed by Smith and to have included the additional substrates selectively impregnated with active agents effective to treat pigmentation, wrinkles, and post inflammatory hyper-pigmentation as taught by Miles in order to have provided an improved system of color-coded substrates that would add the benefit of providing a skin treatment system which may be used for anti-ageing, anti-wrinkle, and skin exfoliation applications (see [0008]) thereby increasing the number of skin concerns which the system of color-coded substrates is capable of treating.
In regards to claim 8, Smith as now modified by Miles discloses the invention as discussed above.
Smith as now modified by Miles does not disclose the different active agents include at least one hydrocolloid. Smith discloses the first color-coded substrate (102) comprises an adhesive (skin adhesive for temporary adhering; see [0052])
However, Miles further teaches the different active agents (agents used for anti-ageing, anti-wrinkle, and skin exfoliation applications) includes at least one hydrocolloid (16; see [0028]; see figure 4) for the purpose of providing a tacky surface which is capable of maintaining good adhesion throughout use of the device (see [0028]).
Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the adhesive layer as disclosed by Smith as now modified by Miles and to have formed the adhesive layer as a hydrocolloid layer as taught by Miles in order to have provided an improved layer which adheres the patch to the user that would add the benefit of providing a tacky surface which is capable of maintaining good adhesion throughout use of the device (see [0028]). Furthermore, the use of a hydrocolloid adhesive would add the known benefits of providing easy removal from the user upon removal of the device.
In regards to claim 9, Smith as now modified by Miles discloses the invention as discussed above.
Smith further discloses wherein each in the plurality of color-coded substrates (102, 104-120) has an adhesive on one side (exfoliant adhesive coating; see [0031]).
In regards to claim 10, Smith as now modified by Miles discloses the invention as discussed above.
Smith further discloses wherein the shape feature (stripes, stars, or checked pattern) includes at least one angle formed from two straight lines (stars have at least one angle formed from two straight lines).
In regards to claim 13, Smith as now modified by Miles discloses the invention as discussed above.
Smith further discloses wherein the area-specific shapes are selected from a circle (see figure 8), square (see figure 5 and 9), triangle (see figure 2), chevron, crescent (see figure 4), and parallelogram.
In regards to claim 14, Smith as now modified by Miles discloses the invention as discussed above.
Smith further discloses wherein the color-coded substrates (102 and 104) include bandages, patches, carriers, or tapes (see [0029] that 102 and 104 can be placed over acne (a type of wound/infection) and therefore are considered to be bandages).
Examiner further notes that as seen figure 1 that 102 and 104 are thin, film-like devices placed over a user’s pores, and therefore can be considered patches. Also, 102 and 104 as per [0028] carry multiple layers of different kinds of exfoliants, and therefore can be considered carriers. Finally, 102 and 104 are devices which comprise an adhesive backing (see [0024]), and therefore can be considered tapes.
Claim(s) 3 is/are rejected under 35 U.S.C. 103 as being unpatentable over Smith in view of Miles as applied to claim 2 above, and further in view of Cabigon et al. (WO 2020/183350 A1) (hereinafter Cabigon).
In regards to claim 3, Smith as now modified by Miles discloses the invention as discussed above.
Smith as now modified by Miles does not explicitly disclose wherein color-coded substrates having different shades of a same color have different dosages of the active agent for a same skin concern. Smith teaches in [0036]: “each partition may include visual indicia such as distinct color, …visual indicia provide information about the strength and type of skin exfoliant included in a particular partition”. While strength of a particular type of a skin exfoliant may be linked to the dosage or amount used, Smith does not explicitly state as such.
However, Cabigon teaches an analogous substrate (transdermal patch; see [0017]) comprising an active agent (cannabinoid; see [0017]) wherein the substrates are color-coded (see [0017] in reference to “the transdermal patch kit may be color coded by type of cannabinoid or dosage”), wherein color-coded substrates (transdermal patch) having different shades of a same color (color coded by dosage is considered to encompass different shades of the same color) have different dosages of the active agent (see [0017]) for the purpose of allowing the user to select the specific ailment they want to treat and adjust the suggested dose/concentration received from the treatment (see [0019]).
Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the color-coded substrates as disclosed by Smith as now modified by Miles and to have color coded the substrates in different shades of the same color to indicate dosages of the active agent as taught by Cabigon in order to have provided an improved system of color-coded substrates that would add the benefit of allowing the user to select the specific ailment they want to treat and adjust the suggested dose/concentration received from the treatment (see [0019]).
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DANIEL MILLER whose telephone number is (571)270-5445. The examiner can normally be reached Mon-Fri 8am-4pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Alireza Nia can be reached on 571-270-3076. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DANIEL A MILLER/Primary Examiner, Art Unit 3786
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