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 .
Status of Claims
Claims 1-16 are pending in the instant application.
Drawings
The drawings are objected to because it is unclear how the numerous items shown in each of figures 3 and 5 are related to one another. Applicant should use a bracket or lead lines to show that this is an exploded view or label them as separate figures. See: MPEP 608.02 V (37 CFR 1.84(h)(1) & (p)).
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the “housing defines a drainage hole” of claim 12 must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
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.
Claim Objections
Claim 4 is objected to because of the following informalities: the phase “wherein the number of the at least one fluid outputting hole is 1-8” is confusing and may be preferably written as ““wherein the number of holes of the at least one fluid outputting hole is 1-8.”
Claim 8 is objected to because of the following informalities: the phase “wherein the number of the at least one fluid outputting hole is 1-8” is confusing and may be preferably written as ““wherein the number of holes of the at least one fluid outputting hole is 1-8.”
Claim 13 is objected to for not including a conjunction uniting the three phrases.
Claim 14 is objected to because it describes “the fluid outputting massager is a fluid outputting massaging comb, beauty massage brushes, or body massage brushes.” The claim refers to a singular massager and then claims it as a plurality (i.e. brushes).
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.
Claims 1-19 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.
The term “soft tooth” in claim 1 is a relative term which renders the claim indefinite. The term “soft tooth” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is unclear how “soft” the tooth must be to be included or excluded by the claim.
Claim 3 is confusing because it claims “the fluid outputting tooth has a fluid guide hole” and then claims “the fluid outputting hole”. It is unclear if this is the “fluid guide hole” or another hole altogether.
Claim 5 is confusing because it is unclear what is meant by “two adjacent fluid storage cavities of the plurality of fluid storage cavies may be spaced apart from each other a dividing plate”. It appears applicant intended this to be “two adjacent fluid storage cavities of the plurality of fluid storage cavies may be spaced apart from each other by a dividing plate”. However, even if written as such, the term “may” makes this an optional limitation, as it is not positively claimed. Thus, the metes and bounds of claim 5 are unclear.
Claim 7 recites the limitation "the housing"; however, there is insufficient antecedent basis for this limitation in the claim. There is a housing introduced in claim 4, however claim 7 depends from claim 1.
Claim 12 is rejected because it is unclear what “other end of the housing” is being referred to. The examiner has interpreted this to be the “opposite end of the housing”, however, clarification is required since there can be more than one “other end” of the housing.
Claim 13 is confusing because it is unclear what is meant by a “first adsorption member” and a “second adsorption member”. The specification does not provide any clarity to what is meant by a “first adsorption member” and a “second adsorption member”. In fact, the specification only has two paragraphs that describe the “first adsorption member” and a “second adsorption member”, namely paragraphs [0019] and [0047] and they do not describe what type of material is used, how they function or any other useful details for determining the metes and bounds of what is meant by “first adsorption member” and a “second adsorption member”.
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Adsorption is “: the adhesion in an extremely thin layer of molecules (as of gases, solutes, or liquids) to the surfaces of solid bodies or liquids with which they are in contact” and it is unclear what material is performing this function in claim 13.
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Clam 15 is confusing because it refers to “the plurality of fluid storage cavities” but claim 4 and describe “at least one fluid storage cavity” which does not require a plurality. It appears claim 15 should have depended from claim 5, as that provides antecedent basis for “the plurality of fluid storage cavities”.
Claim 16 is confusing because it is unclear what constitutes a “pee-determined” distance which renders the claim indefinite. The term “pre-determined distance” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
Any remaining claims are rejected as depending from a rejected base claim.
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 (i.e., changing from AIA to pre-AIA ) 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) 1-3, 7-9 and 14 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Dobbyn (2023412).
Regarding claim 1, Dobbyn discloses a fluid outputting massager (figure 1 with head of figure 2), comprising: a fluid storage assembly (1) and a tooth plate (10) connected to the fluid storage assembly (via threads 7), wherein the fluid storage assembly and the tooth plate cooperatively define at least one fluid storage cavity (2); the tooth plate (10) is arranged with a plurality of fluid outputting teeth (11), each of the plurality of fluid outputting teeth is a soft tooth; a tip portion of each of the plurality of fluid outputting teeth has at least one fluid outputting hole (12) communicating with the at least one fluid storage cavity; each of the plurality of fluid outputting teeth, when being pressed, is configured to output a fluid through each of the plurality of fluid outputting teeth (See page 2, column 2, lines 3-20).
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Regarding claim 2, Dobbyn discloses the fluid outputting massager according to claim 1, wherein, for each of the plurality of fluid outputting teeth, a thickness of a wall of the fluid outputting tooth from a root portion (upper end of 11) to the tip portion (lowermost portion of 11) of the fluid outputting tooth (11 with apertures 12) is gradually decreased. See figure 2.
Regarding claim 3, Dobbyn discloses a fluid outputting massager according to claim 1, wherein, for each of the plurality of fluid outputting teeth (11), the fluid outputting tooth (11) has a fluid guide hole (12 goes from the top to bottom of tooth), the at least one fluid outputting hole is communicated with the fluid guide hole and the at least one fluid storage cavity (2). See page 2, column 2, lines 3-20).
Regarding claim 7, Dobbyn discloses a fluid outputting massager according to claim 1, wherein the fluid storage assembly (1) further comprises an upper cover (37), wherein the upper cover is disposed at an outside of the housing.
Regarding claim 8, Dobbyn discloses a fluid outputting massager according to claim 1, wherein the number of the at least one fluid outputting hole is 1-8 (claims are comprising claims so any one of the fluid outputting holes shown in figure 2 can be the 1 and any 8 of the fluid outputting holes can be the 9). Thus, Dobbyn discloses the number of the at least one fluid outputting hole is 1-8. See: figure 2.
Regarding claim 9, Dobbyn discloses a fluid outputting massager according to claim 1, wherein the fluid storage assembly (1) is arranged with a reset member configured to reset the tooth plate (the treads allow for the tooth plate to be reset (removed and replaced meeting the “reset” language).
Regarding claim 14, Dobbyn discloses a fluid outputting massager according to claim 1, wherein the fluid outputting massager is a fluid outputting massaging comb, beauty massage brushes, or body massage brushes. The head has “bristle like projections 11” thus meeting the limitation of being a beauty massage brushes (sic) or a body massage brush.
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 (i.e., changing from AIA to pre-AIA ) 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.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 4-6, 10-13 and 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Dobbyn (2023412), as applied to claim 1 above, and further in view of Kaminsky et al (2261385), as applied above.
Regarding claim 4, Dobbyn discloses a fluid outputting massager according to claim 1, wherein, the fluid storage assembly (1) comprises a housing (figure 1), the tooth plate (figure 2) is capped with the housing to cooperatively define the at least one fluid storage cavity.
However, Dobbyn lacks the housing defines a filling port with a sealing cap arranged at the filling port.
Kaminsky discloses a similar fluid outputting massager apparatus (figure 2) for treating body surfaces with oils or other liquids wherein the housing (10) defines a filling port (17) with a sealing cap (26).
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It would have been obvious to one having ordinary skill in the art at the time of the effective filing date of the claimed invention to have modified the fluid outputting massager of Dobbyn with the filling system of Kaminsky in order to have a quick and easy method of refilling the cavity with cosmetics to be applied to a user which would be desired to be able to deliver longer massages while dispersing cosmetics.
Regarding claim 5, the fluid outputting massager of the combined references has the at least one fluid storage cavity being a plurality of fluid storage cavies (13 and 16 of Kaminsky as modified 2 of Dobbyn), two adjacent fluid storage cavities of the plurality of fluid storage cavies may be spaced apart from each other a dividing plate.
Regarding 6, the fluid outputting massager of the combined references has the fluid storage assembly arranged with at least one control key (valve 37 of Kaminsky), the at least one control key (valve 37 of Kaminsky) is connected to the dividing plate (31 of Kaminsky) and is configured to control a corresponding one of the plurality of fluid storage cavities (36 of Kaminsky) to be communicated with the at least one fluid outputting hole (distal end of 34 of Kaminsky).
Regarding claim 10, the fluid outputting massager of the combined references has the fluid storage assembly further comprising a one-way valve arranged on the housing (16 of Kaminsky).
Regarding claim 11, the fluid outputting massager of the combined references has a holding pendant, wherein the holding pendant is disposed at an end of the housing or at an end of the upper cover (37 of Dobbyn as modified by 12 of Kaminsky).
Regarding claim 12, the fluid outputting massager of the combined references has another end of the housing that defines a drainage hole (13 of Kaminsky can be used as a drainage hole or any one of the teeth holes could be considered a drainage hole. Moreover, removal of head 28 would allow for a drainage hole at the end of 15).
Regarding claim 13, as best understood, the fluid outputting massager of the combined references has an upper cover has a first adsorption member, the housing has a second adsorption member, the second adsorption member is adsorbed to and attached to the first adsorption member. The cover and housing of the combined references are attached together to deliver the cosmetics, which would have an adsorption member on the cover attached to the housing, thus, meeting the limitations of claim 13, as best understood.
Regarding claim 15, the fluid outputting massager of the combined references has the plurality of fluid storage cavities (13 and 16 of Kaminsky as modified 2 of Dobbyn) arranged in a horizontal direction or in a vertical direction.
Claim(s) 16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Dobbyn (2023412) and further in view of Kaminsky et al (2261385), as applied above, and further in view of Jeon (WO 2016153248).
The combined references disclose a fluid outputting massager according to claim 11, but lack a lower cover, wherein the lower cover is snapped with the housing, and the lower cover is spaced at a pre-determined distance from the plurality of fluid outputting teeth.
Jeon teaches a similar fluid applying device with a lower cover. See figure 16 (a) & (b).
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It would have been obvious to one having ordinary skill in the art a the time the invention was made to have provided a cover, as taught by Jeon, to the fluid outputting massager of the combined references in order to stop any unwanted leakage of cosmetics from the teeth. This would be particularly desired because many cosmetics cause stains and discolor wood and other surfaces so covering the tips would assist in preventing unwanted destruction of surfaces when the user sets the apparatus down after use.
Regarding the lower cover being “snapped with the housing” the examiner has taken this as an intended use, as one could snap the lower cover with the housing. It is possible that applicant intended this to be a snap fit connection, however there is no positive recitation of a snap fit connection or any structural details associated with a snap fit connection claimed.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure as the prior art discloses other devices capable of providing fluid and/or massage to a user.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CLINTON T OSTRUP whose telephone number is (571)272-5559. The examiner can normally be reached M-F 8:30 AM - 5:00 PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Edward Lefkowitz can be reached at 571-272-2180. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/CLINTON T OSTRUP/Supervisory Patent Examiner, Art Unit 3732