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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 10/30/2025 has been entered.
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, 9 and 15 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 4 of U.S. Patent No. 9,591,906. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of the patent "anticipate" the claims of the application. Accordingly, the application claims are not patentably distinct from the patent claims. Here, the more specific patent claims encompass the broader application claim. Following the rationale in In re Goodman cited in the preceding paragraph, where applicant has once been granted a patent containing a claim for the specific or narrower invention, applicant may not then obtain a second patent with a claim for the generic or broader invention without first submitting an appropriate terminal disclaimer.
Claim Rejections - 35 USC § 103
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) 1-8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Choi (US 2012/0247501) in view of Anderson (US 1,034,859) and Schaefer et al. (US 5,673,710).
Choi discloses a heating plate (320) a plurality of heating elements (141), protruding from the heating plate, the heating elements defining a hair treating area, wherein the plurality of heating elements are arranged in a pattern resulting in a plurality of undulating paths (Figure 13) such that hair strands pass on top of a face of the heating plate and through the plurality of undulating paths during brushing of the hair strands; and a plurality of heat insulating spacers (142) extending from the heating plate among the heating elements, wherein at least some of the heat insulating spacers are longer than at least some of the plurality of heating elements; and a plurality of peripheral heat insulating spacers (443) disposed around at least a portion of the heating plate); and wherein the plurality of heat insulating spaces are separate from the plurality of heating elements (see Figure 6) (see Figure 19).
Choi does not disclose the heating elements are monolithic with the heating plate and a length of at least two of the plurality of heating elements, along at least one of the plurality of undulating paths, is larger than a width of the at least some of the plurality of heating elements and a plurality of heat insulating spacers spaced apart from the plurality of heating elements. Anderson teaches a heated hairbrush comprising a heated plate (b) and a plurality of heating elements (a) protruding from the heating plate, the heating elements are monolithic with the heating plate and a length of at least two of the plurality of heating elements, along at least one of the plurality of undulating paths, is larger than a width of the at least some of the plurality of heating elements (see Figures 1-3). It would have been obvious to one having ordinary skill in the art before the effective filing date to have the heated elements of Choi be monothetic with the heated plate and longer than they are wider as taught by Anderson to allow for direct contact with the heating plate and to smooth and disentangle the hair. Schaefer et al. teaches a hair brush comprising a plurality of heating elements and a plurality of heat insulating spaces spaced apart from the heating elements (5) (see Figure 3; col. 4, lines 45-60) to prevent direct user contact with the heated bristles. It would have been obvious to one having ordinary skill in the art before the effective filing date to have the hair brush of Choi be made with heat insulating spaces spaced apart from the heated elements as taught by Schaefer et al. to prevent direct user contact with the heated bristles.
Claim 2, Choi discloses each of the plurality of peripheral heat insulating spacers (443) includes an end spaced from the face of the hairbrush; each of the plurality of heating elements includes an end spaced from the face of the hairbrush; and at least some of the ends of the plurality of peripheral heat insulating spacers are located closer to the face than the ends of the plurality of heat elements (paragraph 79; of various lengths can be shorter or longer). Claim 3, each of the plurality of peripheral heat insulating spacers (443) includes an end spaced from a face of the hairbrush; each of the plurality of heat insulating spacers (442) includes an end spaced from the face of the hairbrush; and at least some of the ends of the plurality of peripheral heat insulating spacers are located closer to the face than the ends of the plurality of heat insulating spacers (see Figure 19). Claim 4, the plurality of peripheral heat insulating spacers (443) are disposed around substantially an entirety of the hair treating area of the hairbrush including the plurality of heating elements and the plurality of heating insulating spacers (see Figure 19). Claim 5, a specified density of the plurality of elongate heating elements and a specified density of the plurality of heat insulating spacers are variable across a face of the hairbrush and the specified densities are related to maintain a specified distance between protruding ends of the plurality of heating elements and the user's scalp under at least one usage scenario (see Figure 13). Claim 6, the face of the body (320) of the hairbrush is convexly curved (see Figure 16). Claim 7, Anderson further discloses the innermost heating elements have a flattened shape with increased surface area parallel to the undulating paths (see Figure 2). Claim 8, Anderson further teaches each of the heating elements has a bottom end with an elliptic cross-section (see Figure 2).
Claim(s) 9-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Choi (US 2012/0247501) in view of Schaefer et al. (US 5,673,710).
Choi discloses a hairbrush (300) comprising a heating plate (320) having a heating surface (Figure 16); a plurality of elongate heating elements (141) protruding from the heating surface; a plurality of heat insulating spacers (142) extending from the heating plate among the heating elements, at least some of the heat insulating spacers (142) being longer than at least some of the heating elements (see Figure 14); and wherein the plurality of heat insulating spaces are separate from the plurality of heating elements (see Figure 6); and a plurality of heat insulating peripheral spacers (443) disposed around at least a portion of the heating plate (see Figure 19). Choi does not disclose a plurality of heat insulating spacers spaced apart from the plurality of heating elements. Schaefer et al. teaches a hair brush comprising a plurality of heating elements and a plurality of heat insulating spaces spaced apart from the heating elements (5) (see Figure 3; col. 4, lines 45-60) to prevent direct user contact with the heated bristles. It would have been obvious to one having ordinary skill in the art before the effective filing date to have the hair brush of Choi be made with heat insulating spaces spaced apart from the heated elements as taught by Schaefer et al. to prevent direct user contact with the heated bristles.
Claim 10, each of the plurality of peripheral heat insulating spacers (443) includes an end spaced from a face of the hairbrush; each of the plurality of heat insulating spacers (442) includes an end spaced from the face of the hairbrush; and at least some of the ends of the plurality of peripheral heat insulating spacers are located closer to the face than the ends of the plurality of heat insulating spacers (see Figure 19). Claim 11, each of the plurality of peripheral heat insulating spacers (443) includes an end spaced from a face of the hairbrush; each of the plurality of elongate heating elements (441) includes an end spaced from the face of the hairbrush; and at least some of the ends of the plurality of peripheral heat insulating spacers are located closer to the face than the ends of the plurality of elongate heat elements (paragraph 79; of various lengths can be shorter or longer). Claim 12, a specified density of the plurality of elongate heating elements (141) and a specified density of the plurality of heat insulating spacers (142) are variable across a face of the hairbrush and the specified densities are related to maintain a specified distance between protruding ends of the plurality of elongate heating elements and a user's scalp under at least one usage scenario (see Figure 13). Claim 13, the heating plate (320) is convexly curved (see Figure 16). Claim 14, the plurality of elongate heating elements (141) are integrated with and thermally coupled to the heating plate (see Figure 14). Claim 15, Choi discloses a hairbrush (300) comprising a plurality of heating elements (141) protruding from a face of a body of the hairbrush, the heating elements defining a hair treating area; a plurality of heat insulating spacers (142) extending from the face of the body of the hairbrush among the heating elements, wherein a height, from the face of the body of the hairbrush, of at least some of the plurality of the heat insulating spacers is greater than a height of the heating elements to provide a specified distance between the heating elements and a user’s scalp, wherein the plurality of heat insulating spacers is dispersed on a least a part of the face of the body of the hairbrush at a specified density selected to assure maintaining the specified distance with respect to a resilience of the plurality of heat insulating spacers; and a plurality of peripheral heat insulating spacers (443) extending at least around a portion of a hair treating area of the body of the hairbrush (see Figures 13-19). Choi does not disclose a plurality of heat insulating spacers spaced apart from the plurality of heating elements. Schaefer et al. teaches a hair brush comprising a plurality of heating elements and a plurality of heat insulating spaces spaced apart from the heating elements (5) (see Figure 3; col. 4, lines 45-60) to prevent direct user contact with the heated bristles. It would have been obvious to one having ordinary skill in the art before the effective filing date to have the hair brush of Choi be made with heat insulating spaces spaced apart from the heated elements as taught by Schaefer et al. to prevent direct user contact with the heated bristles.
Claim 16, each of the plurality of peripheral heat insulating spacers (443) includes an end spaced from the face of the hairbrush; each of the plurality of heat insulating spacers (442) includes an end spaced from the face of the hairbrush; and at least some of the ends of the plurality of peripheral heat insulating spacers are located closer to the face than the ends of the plurality of heat insulating spacers (see Figure 19). Claim 17, each of the plurality of peripheral heat insulating spacers (443) includes an end spaced from the face of the hairbrush; each of the plurality of heating elements includes an end spaced from the face of the hairbrush; and at least some of the ends of the plurality of peripheral heat insulating spacers are located closer to the face than the ends of the plurality of heat elements (paragraph 79; of various lengths can be shorter or longer). Claim 18, a specified density of the plurality of elongate heating elements and a specified density of the plurality of heat insulating spacers are variable across a face of the hairbrush and the specified densities are related to maintain a specified distance between protruding ends of the plurality of heating elements and the user's scalp under at least one usage scenario (see Figure 13). Claim 19, the face of the body (320) of the hairbrush is convexly curved (see Figure 16). Claim 20, the plurality of heating elements (141) are integrated with and thermally coupled to a heating plate (see Figures 13-16).
Response to Arguments
Applicant’s arguments filed 10/30/2025 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to RACHEL RUNNING STEITZ whose telephone number is (571)272-1917. The examiner can normally be reached Monday-Friday 8:00am-4:30pm EST.
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/RACHEL R STEITZ/Primary Examiner, Art Unit 3772
1/9/2026