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 .
Claim Objections
Claims 1 and 19 are objected to because of the following informalities:
In claim 1, line 10 should be amended to read --…the temperature of said skincare device
In claim 19, line 3 should be amended to read --… having a second surface, the main body defining…-- to correct a typographical error.
Appropriate correction is required.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are:
“a temperature control unit” in claims 1 and 14, interpreted according to paragraphs [0004],[0006],[0009] (pages 22, 23, and 25)
“a locking mechanism” in claims 8, 10, and 16, interpreted according to page 13
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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 1-20 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 1 recites the limitation "the skin" in line 1. There is insufficient antecedent basis for this limitation in the claim.
Claim 14 recites the limitation "the skin" in line 1. There is insufficient antecedent basis for this limitation in the claim.
Claim 19 recites the limitation "the skin" in line 1. There is insufficient antecedent basis for this limitation in the claim.
Claim 8 recites the limitation "the groove" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim 10 recites the limitation "the locking mechanism" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claims 2-7, 9, 11-13, 15-18, and 20 are rejected based solely on their dependency to rejected claims.
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-3, 14, and 19 are rejected under 35 U.S.C. 102(a)(1) and 102(a)(2) as being anticipated by Castel (US 2011/0040235).
As to claim 1, Castel discloses a skincare device 10 (Fig. 1) configured to treat the skin of a user (paragraph [0032]), comprising:
a main body (housing 20, Figs. 1-3) having a first side having a first surface (the patient contact surface at cap 22), a second side substantially opposite the first side having a second surface (bottom surface which connects to the charger 15, see Fig. 1), and an intermediate portion (housing 20) extending from the first side to the second side having a third surface (the cylindrical outer surface of housing 20, paragraph [0099]);
a light source (laser 70 or LEDs 80) disposed within the main body 20 and configured to emit light to treat said skin, the light source 70, 80 configured to emit the light adjacent the first side (see Fig. 1A, paragraphs [0102]-[0103]);
a motor 60 disposed within the main body 20 and configured to produce pulsations of said skincare device 10 (paragraph [0013]: mechanical vibration element can be a motor and offset cam, see also paragraph [0054]);
a temperature control unit (peltier element 90) disposed within the main body 20 (see Fig. 1A), the temperature control unit 90 configured to reduce the temperature of said skincare device 10 to treat said skin (paragraphs [0104], [0080]); and
a user control 40, 41 (Fig. 1, Fig. 1A) disposed on the intermediate portion 20, the user control 40, 41 configured to operate the light source 70, 80, the motor 60, and the temperature control unit 90 (see vibration, light, heat, and cold buttons in Fig. 1, paragraph [0011]).
As to claim 2, Castel discloses the skincare device of claim 1, wherein the light source comprises light-emitting diode ("LED") lights 80 (Fig. 1A, paragraph [0103]).
As to claim 3, Castel discloses the skincare device of claim 2, wherein the light source 80 is configured to emit red light (paragraph [0059]: “preferably 630 nm” is within the range of visible red light).
As to claim 14, Castel discloses a skincare device 10 (Fig. 1) configured to treat the skin of a user (paragraph [0032]), comprising:
a main body 20 having a first side having a first surface (the patient contact surface at cap 22), a second side substantially opposite the first side having a second surface (bottom surface which connects to the charger 15, see Fig. 1), and an intermediate portion (housing 20) extending from the first side to the second side (Fig. 1A, paragraph [0099]), the first side and the intermediate portion 20 cooperatively defining a groove extending toward the second side (see annotated Fig. 3 below, the depth of the cap groove extending toward the second side);
a light source (laser 70 or LEDs 80) disposed within the main body 20 and configured to emit light to treat said skin, the light source 80 configured to emit the light adjacent the first side, the light source comprising an LED light 80 (see Fig. 1A, paragraphs [0102]-[0103]);
a temperature control unit (peltier element 90 disposed within the main body 20, the temperature control unit 90 configured to generate heat to treat said skin and to transfer the heat to the first side (Fig. 1A, paragraphs [0104,[0080]); and
a user control 40, 41 disposed on the intermediate portion 20 (see Fig. 1, Fig. 1A, (paragraphs [0011],[0102]).
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As to claim 19, Castel discloses a skincare device 10 (Figs. 1-3) configured to treat the skin of a user (paragraph [0032]), comprising:
a main body 20 having a first side having a first surface (the patient contact surface at cap 22), a second side substantially opposite the first side having a second surface (bottom surface which connects to the charger 15, see Fig. 1), main body 20 defining a groove extending toward the second side (see annotated Fig. 3 below, the depth of the cap groove extending toward the second side);
a light source (laser 70 or LEDs 80) disposed within the main body 20 and configured to emit light to treat said skin, the light source 70, 80 configured to emit the light adjacent the first side and into the groove (see Fig. 3 below, paragraphs [0102]-[0103]);
a motor 60 disposed within the main body 20 configured to produce pulsations of said skincare device 10 (paragraph [0013]: mechanical vibration element can be a motor and offset cam, see also paragraph [0054]);
a controller 40 disposed within the main body 20 (see Fig. 1A, Fig. 3); and a user control 41 (Fig. 1A, paragraphs [0011],[0102]).
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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.
Claims 1-6 and 10 are rejected under 35 U.S.C. 103 as being unpatentable over Dirks et al. (US 2023/0120185) in view of Boone, III et al. (US 2010/0049177).
As to claim 1, Dirks discloses a skincare device 10 (massager 10, Figs. 1-3) configured to treat the skin of a user (paragraph [0032]), comprising:
a main body (housing 12, Figs. 1-3) having a first side (body contacting portion 16 having a first surface 24 (paragraph [0027]), a second side 14 substantially opposite the first side 16 having a second surface (gripping portion 14, see Fig. 1), and an intermediate portion (defined by the side wall of housing 12 between the body contacting side 16and the gripping side 14) extending from the first side 16 to the second side 14 having a third surface (the side wall of housing 12, see Fig. 2);
a motor 84 (Fig. 1) disposed within the main body 12 and configured to produce pulsations of said skincare device 10 (paragraph [0036]);
a temperature control unit (PTF pad 72, Fig. 4) disposed within the main body 12 (under applicator pad 28, Fig. 3), the temperature control unit 72 configured to reduce the temperature of said skincare device 10 to treat said skin (the pad temperature can be reduced by switching from high to low heat or off, paragraphs [0035]); and
a user control (80,82) disposed on the intermediate portion 12 (Fig. 2), the user control 80, 82 configured to operate the motor 84 and the temperature control unit 72 (Fig. 1, Fig. 2, paragraph [0035]-[0036]).
While Dirks discloses a light source (laser 70 or LEDs 80) disposed within the main body 20 and configured to emit light (LED 90 emits light when charging the device), Dirks does not disclose a light source disposed within the main body that is configured emit the light adjacent the first side to treat the skin.
However, Boone teaches a skincare device 305 (Fig. 3) which includes a light source 208a-f (Fig. 2) disposed within a main body 305 that is configured emit the light from a tissue facing surface 326 (Fig. 3) to treat the skin (paragraphs [0004],[0062]) and a user control (switches) for to operate the light source (Fig. 1, paragraph [0091]).
Therefore, it would have been obvious to one of ordinary skill in the art as of the effective filing date of the invention to modify the device of Dirks to further include a light source, as taught by Boone, in order to provide additional therapy benefits to a user.
As to claim 2, modified Dirks discloses the skincare device of claim 1, wherein the light source comprises light-emitting diode ("LED") lights (see Boone, paragraph [0057]).
As to claim 3, modified Dirks discloses the skincare device of claim 2, wherein the light source 80 is configured to emit red light (see Boone, paragraph [0057],[0061])
As to claim 4, modified Dirks discloses the skincare device of claim 3, wherein the light source is configured to emit green light (paragraphs [0057],[0061]).
As to claim 5, modified Dirks discloses the skincare device of claim 4, wherein the light source is configured to emit blue light (see Boone, paragraph [0057],[0061]).
As to claim 6, modified Dirks discloses the skincare device of claim 1, wherein the second surface defines a set of protrusions (on wheel 94, see Fig. 5 of Dirks, paragraph [0039]).
As to claim 10, modified Dirks discloses the skincare device of claim 1, further comprising a beauty accessory 36 (massaging enhancement pad 36, Fig. 3 of Dirks) secured in place on the first side 24 by a locking mechanism (fastener such as lug fitting into aperture 48, see Fig. 3, paragraph [0029]).
Claims 7, 15 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Castel (US 2011/0040235), in view of Boone, III et al. (US 2010/0049177).
As to claim 7, Castel discloses the skincare device of claim 1, further comprising a sensor disposed within the main body configured to detect the temperature of the skincare device (paragraph [0083]), but lacks detailed description as to the sensor being configured to shut down the skincare device in the event that it exceeds a certain temperature.
However, Boone teaches a skincare device having a temperature sensor that is configured to shut down the skincare device in the event that it exceeds a certain temperature (paragraph [0088]). Therefore, it would have been obvious to one of ordinary skill in the art as of the effective filing date of the invention to modify the device of Castel so that the temperature sensor shuts down the device if it exceeds a certain temperature, as taught by Boone, in order to act as a safety feature to prevent the user’s tissue from being burned.
As to claim 15, Castel discloses the skincare device of claim 14, wherein light source 80 is configured to emit red light (paragraph [0059]: “preferably 630 nm” is within the range of visible red light), but does not disclose that the light source is configured to emit green and blue light.
However, Boone teaches a skincare device having a light source configured to emit multiple colors of light including red light, green light, and blue light (paragraphs [0057],[0061]). Therefore, it would have been obvious to one of ordinary skill in the art as of the effective filing date of the invention to modify the skincare device of Castel so that the light source emits green light, as taught by Boone, in order to expand the treatment to treat a wider variety of skin issues and/or skin depths (paragraph [0059],[0063]).
As to claim 20, Castel discloses the skincare device of claim 19, wherein light source is configured to emit red light (paragraph [0059]: “preferably 630 nm” is within the range of visible red light), but does not disclose that the light source is configured to emit green and blue light.
However, Boone teaches a skincare device having a light source configured to emit multiple colors of light including red light, green light, and blue light (paragraphs [0057],[0061]). Therefore, it would have been obvious to one of ordinary skill in the art as of the effective filing date of the invention to modify the skincare device of Castel so that the light source emits green light, as taught by Boone, in order to expand the treatment to treat a wider variety of skin issues and/or skin depths (paragraph [0059],[0063]).
Claims 8, 9, and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Castel (US 2011/0040235), in view of Gillespie et al. (US 2013/0085556).
As to claim 8, Castel discloses the skincare device of claim 1, further comprising a locking mechanism (cap 22) configured to be inserted into the groove (see Fig. 1A), but does not disclose that the cap is a removable locking mechanism.
However, Gillespie teaches a body care device having a removeable locking mechanism (Figs. 8-9, paragraph [0040]: body care element 40 is releasably attached to mount 60 via snap fit, etc., paragraph [0041]: engagement arms 63 include snap fit projections 64 on attachment surface 62 which engage with recesses 61 of the receptacle of the mount 60). Therefore, it would have been obvious to one of ordinary skill in the art as of the effective filing date of the invention to modify the device of Castel so that the mechanism/cap 22 is releasably lockable, as taught by Gillespie, in order to allow removal of the cap for cleaning or replacing.
As to claim 9, Castel discloses the skincare device of claim 8, wherein the locking mechanism (cap 22 of Castel, modified to be removable by Gilllespie) is substantially transparent and comprised of plastic (see paragraph [0046] of Castel).
As to claim 18, Castel discloses the skincare device of claim 14, further comprising a first sensor disposed within the main body configured to detect the temperature of the skincare device (paragraph [0084]), but does not disclose a second sensor to detect the temperature of the skincare device.
However, Gillespie teaches a skincare device having first and second sensors disposed within a main body configured to detect the temperature of the skincare device (a thermal switch 408 and a safety cut-off switch 409, paragraph [0036]). Therefore, it would have been obvious to one of ordinary skill in the art as of the effective filing date to modify the device of Castel to include a second temperature sensor in the form of a safety cut-off switch, as taught by Gillespie, in order to prevent the device from overload.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Castel (US 2011/0040235), in view of Marty et al. (US 2017/0319429).
As to claim 11, Castel discloses the skincare device of claim 1, further comprising a controller 40 disposed within the main body 20 (Fig. 1A, paragraph [0040]), but does not disclose an interface operatively connected to the controller, the interface being configured to transmit information to a mobile phone.
However, Marty teaches a cosmetic massaging device 400 (Fig. 4) having an interface 793 (Fig. 7) operatively connected to a controller (electronic module 700, Fig. 7, paragraph [0102]), the interface 793 being configured to transmit information to a smartphone 500 (paragraph [0113]). Therefore, it would have been obvious to one of ordinary skill in the art as of the effective filing date of the invention to modify the device of Castel to include an interface communicating with a smartphone, as taught by Marty, in order to facilitate the exchange of data (such as usage data, data from the temperature sensor, etc.) from the controller for monitoring usage of the device via the smartphone (paragraph [0120]).
Claims 12 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Castel (US 2011/0040235), in view of Imboden et al. (US 2008/0306417).
As to claim 12, Castel discloses the skincare device of claim 1, but does not disclose that the third surface is comprised of silicone.
However, Imboden teaches a massage device having an outer surface (outer layer 20), comprised of silicone (see Fig. 1, Fig. 7A, paragraph [0040]). Therefore, it would have been obvious to one of ordinary skill in the art as of the effective filing date of the invention to modify the device of Castel to include a silicone outer surface layer, as taught by Imboden, in order to provide a material for the exterior surface of the device which is hygienic and waterproof.
As to claim 13, Castel discloses the skincare device of claim 12, wherein a portion of the second surface is comprised of silicone and is integrally formed with the third surface (see Imboden, Fig. 1, where the silicone cover 20 extends to the end of portion 22 around the charging contact 6, paragraph [0040]).
Claim 16 is rejected under 35 U.S.C. 103 as being unpatentable over Castel (US 2011/0040235), in view of Boone, III et al. (US 2010/0049177), as applied to claims 14 and 15 above, and further in view of Gillespie et al. (US 2013/0085556).
As to claim 16, Castel discloses the skincare device of claim 15, further comprising a locking mechanism (cap 22) but does not disclose a removable locking mechanism.
However, Gillespie teaches a body care device having a removeable locking mechanism (Figs. 8-9, paragraph [0040]: body care element 40 is releasably attached to mount 60 via snap fit, etc., paragraph [0041]: engagement arms 63 include snap fit projections 64 on attachment surface 62 which engage with recesses 61 of the receptacle of the mount 60). Therefore, it would have been obvious to one of ordinary skill in the art as of the effective filing date of the invention to modify the device of Castel so that the mechanism/cap 22 is releasably lockable, as taught by Gillespie, in order to allow removal of the cap for cleaning or replacing.
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Castel (US 2011/0040235), in view of Boone, III et al. (US 2010/0049177) and Gillespie et al. (US 2013/0085556, as applied to claims 14-16 above, and further in view of Marty et al. (US 2017/0319429).
As to claim 17, Castel discloses the skincare device of claim 16, further a controller 40 disposed within the main body 20 (Fig. 1A, paragraph [0040]), but does not disclose an interface operatively connected to the controller, the interface being configured to transmit information to a mobile phone.
However, Marty teaches a cosmetic massaging device 400 (Fig. 4) having an interface 793 (Fig. 7) operatively connected to a controller (electronic module 700, Fig. 7, paragraph [0102]), the interface 793 being configured to transmit information to a smartphone 500 (paragraph [0113]). Therefore, it would have been obvious to one of ordinary skill in the art as of the effective filing date of the invention to modify the device of Castel to include an interface communicating with a smartphone, as taught by Marty, in order to facilitate the exchange of data (such as usage data, data from the temperature sensor, etc.) from the controller for monitoring usage of the device via the smartphone (paragraph [0120]).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Avramovich et al. (US 2010/0191160) discloses a multifunctional massager.
Munz (US 2012/0109041) discloses a cosmetic applicator device providing light, heat, and massage to the skin.
Nichols (US 2013/0046212) discloses a handheld facial massage and light therapy device.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to VALERIE L WOODWARD whose telephone number is (571)270-1479. The examiner can normally be reached on Monday - Friday 8:30 am - 4:30 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, KENDRA CARTER can be reached on 571-272-9034. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/VALERIE L WOODWARD/Primary Examiner, Art Unit 3785