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 .
Priority
This application repeats subject matter disclosed in prior application no 16504180, filed 7/5/2019, because this application names the inventor or at least one joint inventor named in the prior application, it properly constitutes a continuation of the prior application. Applicant’s claim to the benefit of the filing date of the prior application under 35 U.S.C. 120, 37 CFR 1.78, and MPEP § 211 et seq. is acknowledged.
It is noted, however, that claim 3 requires “upper clamping surface twisted relative to the top of the upper clamping head, and wherein the lower clamping surface is twisted relative to the bottom of the lower clamping head”. This application states it is continuation, not a continuation in part. The original application and the pending figures have support for the clamping surfaces to be twisted relative to the gripping portions, but the clamping heads are illustrated to be twisted the same as the corresponding plates (see Figs 1-2 & 4). So there is no support in the disclosure for the clamping surfaces to be twisted relative to their clamping head because this directly contradicts the figures which illustrate the top and bottom surfaces to also twist along with their corresponding clamping surface/plate.
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.
Claim(s) 1-20 is/are rejected on the ground of nonstatutory double patenting as being unpatentable over claim(s) 1-17 of U.S. Patent No. 11602207. Although the claims at issue are not identical, they are not patentably distinct from each other because the issued claims are more specific than the current pending claims, meaning the issued claims anticipate the pending claims.
Claim(s) 1-20 is/are rejected on the ground of nonstatutory double patenting as being unpatentable over claim(s) 1-17 of U.S. Patent No. 12396538. Although the claims at issue are not identical, they are not patentably distinct from each other because the issued claims are more specific than the current pending claims, meaning the issued claims anticipate the pending claims.
Information Disclosure Statement
The information disclosure statement(s) (IDS) submitted on 2/9/23, 1/29/24, 3/15/24, 10/21/24, 6/16/25 was/were filed in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement(s) has/have been considered by the examiner.
Drawings
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 “upper clamping surface twisted relative to the top of the upper clamping head, and wherein the lower clamping surface is twisted relative to the bottom of the lower clamping head” of claim 3 (while the clamping surfaces are illustrated to be twisted relative to the gripping portions, the clamping heads are illustrated to be twisted the same as the corresponding plates see Figs 1-2 & 4) and “top of the upper clamping head and bottom of the lower clamping head collectively defining a cylinder” of claim 11 (currently, while applicant has drawing support for “substantially cylindrical” or rounded, nowhere is the cross-section shown as a perfect cylinder as applicant attempts to claim nor is it clear how that would be possible) must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Sheets 1-2 of the figures are objected to because the drawing sheets are numbered improperly. See 37 C.F.R. 1.84(t), which requires the sheets of drawings be numbered in consecutive Arabic numerals, starting with 1, within the sight as defined in paragraph (g) of this section and larger than the numbers used as reference characters to avoid confusion.
The drawings are objected to because Figures 1-4 are titled improperly because the titles of each figure must be larger than the numbers used for reference characters (see 37 CFR 1.84(u)).
Figures 4 is/are objected to for failing to comply with 37 C.F.R. 1.84(p)(3), which requires numbers, letters, and reference characters measure at least .32 cm. (1/8 inch) in height.
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 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) 8 and 11-15 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 pre-AIA the applicant regards as the invention.
Claim 8: recites “further comprising an upper heat generating plate and a lower heat generating plate”; however, claim 5 from which this claim depends already requires “an upper clamp surface and a lower clamp surface”, which as best understood based on applicant’s disclosure are surfaces of “the heat generating plates” so the language “further comprising” is confusing and unclear. If there are no plates already required by claim 5 then there can be no “twisted surfaces” as required by claim 5. For examination purposes, the claim will be treated as reciting “wherein the upper clamping surface is formed by an upper heat generating plate on the upper clamp head and the lower clamping surface is formed by a lower heat generating plate on the lower clamp head”. Clarification or correction is requested.
Claim 11: recites in the last lines “and from the upper and lower gripping portions to ends of the upper and lower clamping heads when the hair styler is in the closed position”, but this limitation does not make sense in the context of the claim. It is unclear what applicant is trying to say with this language. For examination purposes, the claim will be treated as omitting this. Clarification or correction is requested.
Claim 12: recites “the lower heat insulation layer is between the bottom of the lower clamping head and the upper clamp plate”; this does not make sense in combination with claim 10 because the lower heat insulation layer is in the lower arm so it is not located between the upper clamp plate and the lower clamping head. This appears to be a typographical error and should recite “the lower heat insulation layer is between the bottom of the lower clamping head and the lower clamp plate” and for examination purposes, the claim will be treated as reciting this. Clarification or correction is requested.
Claim 13: depends from claim 10, which already requires “an upper clamp plate twisted relative to the upper grip…a lower clamp plate twisted relative to the lower grip”. Claim 13 then goes on to recite “wherein the upper clam plate includes an upper hair contact surface that is twisted relative tot eh upper grip, and wherein the lower clamp plate includes a lower hair contact surface that is twisted relative to the lower grip”; however, this language is confusing and unclear because claim 10 already requires the clamping plate is twisted relative to the grip, so is this twisted surface some surface other than the already claimed twisted surface of the plate required by claim 10? How many twisted surfaces are being claimed? Applicant only has support for a single twisted plate surface, not multiple. For examination purposes, the claim will be treated as reciting “wherein the upper clamp plate twisted surface forms an upper hair contact surface and the lower clamp plate twisted surface forms a lower hair contact surface”. Clarification or correction is requested.
Claim 15: this claim depends from claim 13, which as discussed above already makes it unclear how many twists are being claimed. Claim 15 then worsens this issue by requiring “a first twist angle” and “a second twist angle” without clearly referring back to the inherent angles required by the claimed twists in preceding claims 10 and 13. So again, how many different twists/angles is applicant attempting to claim? For examination purposes, the claim will be treated as reciting “wherein the upper clamp plate twisted surface forms a first twist angle and the lower clamp plate twisted surface forms a second twist angle”. 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) 1-6, 8-15, and 17-20, as best understood, is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Deng (US 20140238432).
Claims 1-2, 5-6, 9-10, 12-14, and 19-20: Deng discloses a hair styling device (see Fig 1) comprising: an upper gripping portion (11); a lower gripping portion (see Fig 1); a hinge (101) connecting the upper gripping portion to the lower gripping portion (see Figs 1-2); an upper clamping head (12, Fig 1) connected to the upper gripping portion (11, Fig 1) and including an upper clamping surface/plates (30) and a top (top of 12); and a lower clamping head (12 of lower arm in Fig 1) connected to the lower gripping portion (11 of lower arm in Fig 1) and including a lower clamping surface (30 of lower arm in Fig 1) and a bottom (bottom of 12 of lower arm in Fig 1) and the upper clamping surface and lower clamping surface are paired together when the device is closed (see Figs 5-6). The upper clamping surface has an upper twisted, or tilted, deflection angle with respect tot the upper gripping portion (11) and the lower clamping surface has a lower twisted/tilted deflection angle with respect to the lower gripping portion equal and opposite to the angle of the upper portion (see Figs 1 & 5). Deng states that the arms (10) are made of plastic [0050], which constitutes an upper heat insulation layer between the upper claiming surface and the top of the upper clamping head, as well as a lower heat insulation layer between the lower clamping surface and the bottom of the lower clamping head. Furthermore, Deng illustrates the clamping surfaces not to extend to a tip end of each arm (see annotations). In other words, the tip end of each arm is illustrated to be made of additional housing material, which according to Deng is an insulating plastic [0050]. So Deng also discloses the tip ends of each arm to constitute an ”auxiliary gripping portion” since these ends are made of plastic and would be grip-able like the rest of the plastic housing is disclosed to be.
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Claim 3: The upper clamping surface is twisted/tilted relative to the top of the upper clamping head (see Fig 5) and the lower clamping surface is twisted/tilted relative to the bottom of the lower clamping head (see Fig 5).
Claims 4 and 15: the clamping surfaces, both upper and lower, each includes a twisted/curved extension (32) that forms a deflection angle of at least 90 o (see Fig 5) which falls in the claimed range of 60-120o.
Claim 8: the clamping surfaces are formed by upper and lower heated plates (30) attached to the upper and lower clamping heads, respectively [0046] (see Figs 1-5).
Claim 11: a top of the upper clamping head and a bottom of the lower clamping head collectively define the outer surface of the device which is substantially cylindrical (see Fig 5); note applicant has no support for this language and instead illustrates an elongated rounded cross-section or cylindrical cross-section. This is a similar shape as illustrated by Deng and so it is interpreted to be a cylinder in as much as applicant discloses one.
Claim 17: Deng discloses a heating system [0046] to deliver heat to the plates and the hair [0046].
Claim 18: the plates are free of teeth (see Figs 1-5).
Claim(s) 1-3, 5, 8-10, 13-14, and 17-19, as best understood, is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Williams (US 20160213116).
Claim 1: Williams discloses a hair styling device (see Fig 1) comprising an upper gripping portion (see annotations); a lower gripping portion (see annotations) hinged to the upper gripping portion (see Figs 1-2). An upper clamping head (see annotations) is connected to the upper grip portion and includes an upper clamping surface (see annotations) and a top; a lower clamping head is connected to the lower gripping portion (see annotations) and includes a lower clamping surface (see annotations) and a bottom. The lower clamping surface and the upper clamping surface pair or mate together when the device is closed (see Figs 1 & 6). The upper clamping surface has an upper twisted deflection angle with respect to the upper gripping portion (see annotations) that is equal toa lower twisted deflection angle of the lower clamping surface with respect to the lower gripping portion (see annotations).
Claim 2: Williams illustrates the upper clamping surface and the lower clamping surface to be made of the same material as the handle that is gripped (see Fig 6) because the hatching for these portion is identical to the handle which must be insulated to be able to be held during use. So Williams discloses an upper heat insulation layer between the upper clamping surface and the top of the upper clamping head (see annotations) and a lower heat insulation layer between the lower clamping surface and the bottom of the lower clamping head because the upper clamping head and lower clamping head portions attached to the handle are insulated base on the hatching in Figure 6.
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Claim 3: the upper clamping surface is twisted relative to the top of the upper clamping head (see annotations) and the lower clamping surface is twisted relative tot eh bottom of the lower clamping head (see annotations).
Claim 5: Williams discloses a hair styling device (see Fig 1) comprising an upper gripping portion (see annotations); a lower gripping portion (see annotations) hinged to the upper gripping portion (see Figs 1-2). An upper clamping head (see annotations) is connected to the upper grip portion and includes an upper clamping surface (see annotations) and a top; a lower clamping head is connected to the lower gripping portion (see annotations) and includes a lower clamping surface (see annotations) and a bottom. The lower clamping surface and the upper clamping surface pair or mate together when the device is closed (see Figs 1 & 6). The upper clamping surface has an upper twisted deflection angle with respect to the upper gripping portion (see annotations) that is equal toa lower twisted deflection angle of the lower clamping surface with respect to the lower gripping portion (see annotations). Williams also discloses an “auxiliary grip” (20) at an end of the lower clamping head opposite the lower grip (see annotations).
Claim 8: the upper clamping surface is formed by a heat conductive spiralized plate carrying a heating element (46) and the lower clamping surface is formed by a heat conductive spiralized plate carrying a heating element (22) [0014-0015].
Claim 9: Williams illustrates the upper clamping surface and the lower clamping surface to be made of a different material than the handle that is gripped (see Fig 6) because the hatching for these portions is different (see Fig 6). Williams also illustrates the upper and lower clamping heads carrying the clamping surfaces to be made of the same material as the handle (see Fig 6), which must be insulated in order to be able to be held during use without burning the user. So Williams discloses an upper heat insulation layer between the upper clamping surface and the top of the upper clamping head (see annotations) and a lower heat insulation layer between the lower clamping surface and the bottom of the lower clamping head because the upper clamping head and lower clamping head portions attached to the handle are insulated base on the hatching in Figure 6. This would prevent heat from transferring from the spiralized plates to the top of the upper clamping head and to the bottom of the lower clamping head (see annotations).
Claims 10 and 13-14: Williams discloses a hair styling device (see Fig 1) comprising an upper gripping portion (see annotations); a lower gripping portion (see annotations) hinged to the upper gripping portion (see Figs 1-2). An upper clamping head (see annotations) is connected to the upper grip portion and includes an upper clamping surface (see annotations) formed by a spiralized upper plate (see annotations) and a top; a lower clamping head is connected to the lower gripping portion (see annotations) and includes a lower clamping surface (see annotations) formed by a spiralized lower plate and a bottom. The lower clamping surface and the upper clamping surface pair or mate together when the device is closed (see Figs 1 & 6) and have a same angle of twist. The upper clamping surface has an upper twisted deflection angle with respect to the upper gripping portion (see annotations) that is equal toa lower twisted deflection angle of the lower clamping surface with respect to the lower gripping portion (see annotations). Williams also discloses an “auxiliary grip” (20) at an end of the lower clamping head opposite the lower grip (see annotations). Williams illustrates the upper clamping surface and the lower clamping surface to be made of the same material as the handle that is gripped (see Fig 6) because the hatching for these portion is identical to the handle which must be insulated to be able to be held during use. So Williams discloses an upper heat insulation layer between the upper clamping surface and the top of the upper clamping head (see annotations) and a lower heat insulation layer between the lower clamping surface and the bottom of the lower clamping head because the upper clamping head and lower clamping head portions attached to the handle are insulated base on the hatching in Figure 6.
Claim 17: the upper clamping surface is formed by a heat conductive spiralized plate carrying a heating element (46) and the lower clamping surface is formed by a heat conductive spiralized plate carrying a heating element (22) [0014-0015].
Claim 18: the spiralized plates are illustrated smooth and free of teeth (see Figs 1-6).
Claim 19: Williams also discloses an “auxiliary grip” (20) at an end of the lower clamping head opposite the lower grip (see 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(s) 7 and 16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Deng (US 20140238432) in view of Winston (US 2528291).
Claims 7 and 16: Deng discloses the invention essentially as claimed except for first teeth along an edge of the upper hair contact surface and second teeth along an edge of the lower hair contact surface.
Winston, however, teaches a heated hair straightener (see Fig 1) including two hinged arms each arm carrying a heated clamping member (30 & 28) and a comb extending from an edge of the upper hair contact surface (23) that mates with a comb extending from a lower edge of the lower hair contact surface (22) with both combs extending from the edges of the heated surfaces for better tensioning the hair during use, thereby setting the style better. Therefore, it would have been obvious to one of ordinary skill in the art at the time of filing (or the time of invention if Pre-AIA ) to modify the device of Deng to include comb teeth at a periphery of the heated plate in view of Winston in order to help tension the hair across the heated surfaces during use, thereby detangling and styling at one time reducing the time needed to style one’s hair.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
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.
Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/JENNIFER GILL/
Examiner, Art Unit 3772
/NICHOLAS D LUCCHESI/Primary Examiner, Art Unit 3772
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