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 .
This office action is in response to applicant’s amendments filed on May 15, 2026. Claims 1-15 are pending. Claims 1-7 and 11 have been amended. Claims 8-10 have been cancelled. Claims 12-15 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to nonelected inventions, there being no allowable generic or linking claim.
Claims 1-7 and 11 stand provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1,2,4-6 and 10-12 of copending Application No. 17/362414 for the reasons set forth below.
Claims 1-7 and 11 stand provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1,13, and 33 of copending Application No. 18/574989 for the reasons set forth below.
Claim 2 stands rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, for the reasons set forth below.
All other prior rejections and objections to the claims are withdrawn.
Terminal Disclaimer
The terminal disclaimers filed on June 15, 2026 disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of applications 18/574989 and 17/362414 have been reviewed and is NOT accepted. The terminal disclaimers identify a party who is not the applicant (only for applications filed on or after September 16, 2012; See FP 14.26.10): For cases filed on/after 9/16/2012, 37 CFR 1.321 specifies that the applicant can disclaim, and the terminal disclaimer must specify the extent of the applicant's ownership. To remedy this: A request under 37 CFR 1.46(c) to change the applicant needs to be filed, which is (1) a request, signed by a 1.33(b) party, (2) a corrected ADS (37 CFR 1.76(c)) that identifies the "new" applicant in the applicant information, and is underlined since it is new, and (3) a 3.73(c) statement showing chain of title to the new applicant. Along with the § 1.46(c) request we need a POA that gives power to the attorney who is signing the TD, along with another copy of the TD, unless they file a TD that is signed by the applicant. Note: The applicant cited on the TD must be cited exactly as it is cited on the ADS and or filing receipt and also in its entirety. If more space for applicant section is required, please use smaller fonts or submit an attachment page to the TD. Please correct and resubmit the TD. (No new fee required).
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 1-7 and 11 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. Claim 1 recites “acidic aqueous alcohol” regarding the pretreatment composition but applicant only has basis for a acetic acid aqueous alcohol solution or a pH 4-7 aqueous range, not any acidic aqueous alcohol. Claim 1 also recites “hand-held” with respect to the plasma pen, but the specification nowhere recites the pen must be hand-held, making the “hand-held” new matter. Claims 2-7 and 11 are also rejected for depending upon claim 1 and inheriting the same deficiency.
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.
Claims 1-7 and 11 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 1 recites low temperature and low keratin protein in the last paragraph. Applicant has not defined “low” in a manner in which the range of “low” can be determined for the temperature or the keratin protein surface disruption. Claims 2-7 and 11 are also rejected for being dependent upon claim 1 and inheriting the same deficiency. For examination purposes, since “low” is not defined any temperature or keratin protein surface disruption meets the claimed limitation.
Claim 2 is 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 2 recites “M-type” in the third from last paragraph, “M-type” is unclear as to what the scope is. For examination purposes any trimethyl siloxy group meets the limitation of “M-type”.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-7 and 11 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1,2,4-6 and 10-12 of copending Application No. 17/362414. Although the claims at issue are not identical, they are not patentably distinct from each other because they encompass the same deep cleaning, pretreatment and film forming steps with the same compounds.
Claims 1-7 and 11 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1,13, and 33 of copending Application No. 18/574989. Although the claims at issue are not identical, they are not patentably distinct from each other because they encompass the same deep cleaning, pretreatment and film forming steps with the same compounds.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Allowable Subject Matter
Claims 1-7 and 11 will be allowable after correction of the 112 first and second paragraph issues and the submission of proper terminal disclaimers as the prior art do not teach or fairly suggest methods comprising the claimed Fundamenta technique.
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 AMINA S KHAN whose telephone number is (571)272-5573. The examiner can normally be reached Monday-Friday, 9am-5:30pm EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Angela Brown-Pettigrew can be reached at 571-272-2817. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/AMINA S KHAN/Primary Examiner, Art Unit 1761
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