DETAILED ACTION
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 1/23/26 has been entered.
Election/Restrictions
Newly submitted claims 37-43 and 48-49 is/are directed to an invention that is independent or distinct from the invention originally claimed for the following reasons:
Applicant’s original claims were all drawn to a two piece hairclip with a hinge; the original claims never set forth a comb by itself and only ever claimed a hair clip comprising two arms hinged together. Applicant is now attempting to present claims drawn only to a single comb portion with claims 37-40 and this improper as multiple actions on the merits have already been issued. If applicant had presented claims for a curved comb separate from a hair clip when the application was originally filed, a species restriction requirement would have been issued requiring applicant to elect between a hair comb, classified in A45D24/02 and a hair clip, classified in A45D8/30.
Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claim(s) 37-43 and 48-49 is/are withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03. If applicant wants the combination claims examined, these claims must be rewritten in proper independent form to not depend on withdrawn claim 37.
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
Claim Objections
Claim(s) 44 is/are objected to because of the following informalities:
Applicant is advised that should claim 33 be found allowable, claim 44 will be objected to under 37 CFR 1.75 as being a substantial duplicate thereof. When two claims in an application are duplicates or else are so close in content that they both cover the same thing, despite a slight difference in wording, it is proper after allowing one claim to object to the other as being a substantial duplicate of the allowed claim. See MPEP § 608.01(m).
Appropriate correction is required.
Claim Rejections - 35 USC § 112
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.
Claim(s) 31-36 and 44-47 is/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.
Claim 31: this claim in the second clause recites “the plurality of teeth are arranged along a curved plane across a width of the comb arm”; however, this claim already sets forth “a longitudinal direction” and a “transverse” direction to this longitudinal direction, so what is the width direction and why does it not have a relationship to these other two previously claimed directions? Additionally, by setting forth a longitudinal and transverse direction, this by definition forms a plane, so the claim becomes confusing with the second clause because no relationship is set forth between these two directions and this other plane making it unclear how many dimensions are being claimed and how they are related, if at all. This language is further unclear because it appears applicant is attempting to define the term “plane” contrary to its accepted meaning, which is a two-dimensional space or flat surface that extends infinitely. It is not a curve. Where applicant acts as his or her own lexicographer to specifically define a term of a claim contrary to its ordinary meaning, the written description must clearly redefine the claim term and set forth the uncommon definition so as to put one reasonably skilled in the art on notice that the applicant intended to so redefine that claim term. The term is indefinite because the specification does not clearly redefine the term. For examination purposes, the claim will be treated as reciting “the plurality of teeth are arranged along a curve”. Clarification or correction is requested.
Claims 33: recites “the longitudinal direction of the cover arm” without antecedent basis. Claim 31 sets forth a longitudinal direction of the comb arm, not the cover arm; so is applicant trying to say these are the same with “the longitudinal direction” or is the longitudinal direction of the cover arm its own longitudinal direction? Clarification or correction is requested.
Claim 35: recites “a transverse direction”; however, claim 31 already sets forth a transverse direction transverse to the longitudinal direction. So are these the same transverse directions or different? Clarification or correction is requested.
Claim 36: recites “corresponding arcuate shapes” however, claim 31 already sets forth “a curve” so is this arcuate shape already encompassed by the “curve” required by claim 31 or are there two different curves being claimed? For examination purposes, the claim will be treated as reciting “wherein the cover arm both has a curved shape”. Clarification or correction is requested.
Claim 45: recites “wherein each of the side surfaces includes a plurality of teeth forming a pair of outer rows of elements”; however, claim 31 already requires “at least one row of elements” so is applicant trying to claim “a pair of outer rows of elements where the elements are teeth” or is applicant asserting that there are teeth and elements? Also, is applicant claiming this “pair of outer rows” and the “at least one row” in claim 31 or are these “pair of outer rows” the “at least one row”? For examination purposes, the claim will be treated as reciting “wherein the at least one row of elements includes a pair of outer rows of teeth”. Clarification or correction is requested.
Claim 46: this claim depends from claim 45 which requires the elements are teeth. Claim 46 then goes on to recite “elements” again making it unclear what exactly is being claimed. Is applicant attempting to remove the “teeth” requirement by changing the wording or is applicant trying to claim that there are both teeth and “elements”? Clarification or correction is requested.
Claim Rejections - 35 USC § 102
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 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 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.
Claim(s) 31-36 and 44-46, as best understood, is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Nishimura (JP 3161543).
Claims 31, 33, 36, 44: Nishimura discloses a comb clip comprising: two arms (1A & 1B) having a pivotable end portion (5) and an opposite free end portion (see Figs 1-4), the arms can be moved toward each other and away from each other (see Figs 3-4), one of the arms forming a comb arm (1B, see Fig 4) and the other one of the arms being a cover arm (1A, See Fig 1). The comb arm (1B) including a plurality of comb teeth (projections formed between recesses 71, see Figs 2 & 4) that extend generally transverse to a longitudinal direction of the comb arm (see Figs 1-4). The plurality of teeth are arranged along a curve across a width of the comb arm, since this depends on how you define the width (see Figs 1-4). The cover arm (1A) has an inner surface facing the comb arm in a closed position of the clip (see Figs 1-4) and the inner surface includes two substantially parallel rows of elements (61) parallel to the longitudinal direction of the comb arm (see Fig 2). In the closed position, the cover arm covers the teeth of the comb arm (see Figs 1-4) and the elements are positioned in spaces (71) between adjacent teeth of the comb arm (see Fig 2). The cover arm is also curved along its longitudinal direction (see Figs 1-4).
Claim 32: the elements (61)are conical or triangular in cross-section (see Figs 1-4).
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Claim 34: the comb arm includes a spine at a first side (see annotations) and the plurality of teeth extend from the spine toward a second side of the comb arm (see annotations).
Claim 35: The teeth of the comb arm do not extend past exterior edges of the cover arm in the transverse direction at the first side or the second side of the comb arm (see Figs 1-4 & annotations).
Claim 45: the cover arm includes a pair of side surfaces (surfaces on the sides of opening 1A, see Fig 1) from which the pair of rows of “elements” or teeth extend (see Figs 1-4).
Claim 46: the comb arm includes a spine at a first side (see annotations) and the plurality of teeth extend from the spine (see annotations). In the closed position the outer rows of teeth are adjacent to the spine and the distal ends of the plurality of teeth of the comb arm thereby nesting the comb arm between the pair of outer rows of elements (see Figs 1-4 & annotations).
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 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.
Claim 47 is/are rejected under 35 U.S.C. 103 as being unpatentable over Nishimura (JP 3161543).
Claim 47: Nishimura already discloses the invention of claim 31 and further discloses the cover arm includes a pair of side surfaces (surfaces on the sides of opening 1A, see Fig 1) from which the pair of rows of “elements” or teeth extend (see Figs 1-4). Nishimura discloses the invention essentially as claimed except for two more rows of elements forming “inner rows”. However, it would have been obvious to one of ordinary skill in the art at the time of filing to modify the hair clip of Nishimura to include two or more additional rows of teeth as desired, since it has been held that mere duplication of essential working parts of a device involves only routine skill in the art. See MPEP 2144.04(VI)(B).
Response to Arguments
Applicant’s arguments filed 2/10/26 have been considered but are all drawn the new claims submitted on 2/10/26, which have been addressed with modified ground of rejection above, as necessary.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Jennifer Gill whose telephone number is (571)270-1797. The examiner can normally be reached on Monday-Friday 10:00am-5:00pm.
If attempts to reach the examiner by telephone are unsuccessful, please contact the examiner’s supervisor, Eric Rosen, can be reached on 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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/JENNIFER GILL/
Examiner, Art Unit 3772
/NICHOLAS D LUCCHESI/Primary Examiner, Art Unit 3772
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