Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Response to Arguments
Applicant's arguments filed 02/13/2026 have been fully considered but they are not persuasive.
The examiner will address each argument in turn.
Beginning on page 5, 3rd full paragraph, Applicant states:
“Applicant respectfully disagrees with and traverses the obviousness rejections presented in the Office Action. By way of example and without limitation, Applicant asserts that one skilled in the art would not combine Ignon with Chang, and that the teachings of Ignon and Chang are incompatible to create the subject matter claimed in Claims 1 and 12 as presented.”
This statement is conclusory - it is not supported by fact or evidence.
Beginning, page 5, last paragraph through page 6, 2nd line, Applicant asserts:
“In the present claims, skin is moved toward a distal end of a skin treatment device to contact at least one abrasive element of the device using vacuum. In accordance with the Office Action, Ignon teaches or suggests similar embodiments. However, as discussed in greater detail below, Chang requires a relatively flat skin surface during treatment. Importantly, Chang teaches that arranging the tip structures and the electrodes to "keep the skin relatively flat during treatment ... minimizes the possibility of skin trauma associated with the pulling up of skin in a space of vacuum 124." (See Chang, Paragraphs [003 l]-[0033]). Accordingly, systems disclosed in Chang specifically teach away from being used in methods of treating an epidermis of a skin surface as claimed herein. Applicant asserts that the teachings of these two references are incompatible. Ignon specifically teaches the pulling up of skin. As indicated herein, Chang explicitly teaches away from this.”
Firstly, Chang is not used to teach pulling/drawing the skin. Chang is analogous art since Chang and Ignon et al. both disclose handheld devices used to treat skin/tissue with by abrading
the skins surface, abrading the skin with an abrading element, using suction, and delivering
fluid to the skin. See the chart below which depicts some of the shared and unshared aspects of the two pieces of prior art. Again Chang is not used to teach “drawing the skin surface using a vacuum created along a distal end of a skin treatment device to contact at least one abrasive element of a skin treatment device positioned along the skin surface using a vacuum created along a distal end of the device” as recited in claim 1 (and also the related similar limitation for claim 12). Chang is used to teach 1) provide an additional treatment procedure, wherein the at least one additional treatment procedure comprises delivering energy in the form of mechanical agitation (vibration) further in the form of ultrasound energy to the skin surf ace in order to improve penetration of the at least one treatment fluid relative to the skin surf ace and enhance
overall treatment of the skin, and 2) combine this treatment with cold therapies to
"tightening collagen fibers" in order to enhance the overall treatment of tissue,
wherein the cold therapies provide improved or quicker recovery time as an
additionally beneficial byproduct.
This argument is unpersuasive since 1) it ignores the official notice to “draw the skin surface using a vacuum created along a distal end of a skin treatment device to contact at least one abrasive element of a skin treatment device positioned along the skin surface using a vacuum created along a distal end of the device in order to provide abrasion,” and 2) it ignores Applicant’s statement on the record “Ignon specifically teaches the pulling up of skin.” The test for obviousness is what the combined teachings of the references would have suggested to one of ordinary skill in the art, and all teachings in the prior art must be considered to the extent that they are in analogous arts. Here the primary reference Ignon et al. is modified by 1) the taking official notice for the drawing the skin in to contact with the abrasive element, and 2) the teachings of Chang pointed out above – where Chang is a qualified analogous prior art. It should be noted, since Applicant has not traversed the taking of official notice then the issue is considered admitted prior art (see the rejection below). The argument that Chang teaches away from Ignon et al. is not persuasive, additionally how does Applicant forbid or find improper a combination wherein the references do not share everything in common. Additionally, who is to say Chang’s “relatively flat skin surface” cannot or is not met by Ignon et al. wherein one could easily argue Ignon et al. can accommodate performing the method on “relatively flat skin surface” since the bumpiness or flatness is limited by “relatively.”
Due to the ignoring of the portion of the rejection relying on official notice rejection, and/or the lack of acknowledgement the traversal of the “drawing the skin surface” step portion of the rejection based on the official notice, and the successful rebuttal contained herein rebutting Applicant’s traversal of combination of Ignon et al. in view of Chang, this traversal is inadequate and therefore the common knowledge or well-known in the art statement is taken to be admitted prior art because applicant either failed to traverse the examiner's assertion of official notice or that the traverse was inadequate.
Non the less, Applicant states “ However, as noted above, in order to advance prosecution of the present application, and without acquiescing to any of the rejections presented in the Office Action, Applicant is incorporating certain clarifying claim amendments herein,” see page 6, lines 3-5. These amendments do little to distinguish the presently claimed invention over the prior art combination.
Next on page 6, 2nd full paragraph, Applicant asserts:
“Applicant submits that Ignon, either alone or in combination with one or more other
references, fails to teach or suggest the limitations of the claims as presented herein. For example, with respect to independent Claim 1, the art of record, either alone or in combination, fails to teach or suggest, inter alia, a method of treating an epidermis of a skin surface of a subject, the method comprising: drawing the skin surface using a vacuum created along a distal end of a skin treatment device to contact at least one abrasive element of a skin treatment device positioned along the skin surface using a vacuum created along a distal end of the device, wherein the at least one abrasive element is located within an area circumscribed by a peripheral lip of the skin treatment device; wherein drawing the skin surface to contact the at least one abrasive element includes contacting the peripheral lip with the skin surface; abrading the skin surface of the subject by at least partially contacting the skin surface with the at least one abrasive element of the device, wherein abrading the skin surface comprises moving the device relative to the skin surface while simultaneously delivering at least one treatment fluid to the skin surface being treated; and delivering energy to the skin surface from an energy source to mechanically agitate the skin surface to improve penetration of the at least one treatment fluid within the skin surface and reduce recovery time of the skin surface being abraded, and wherein delivering energy to the skin surface from the energy source is performed concurrently with drawing the skin surface to contact the at least one abrasive element and the peripheral lip to abrade the skin surface, wherein the energy source is separate from the vacuum.”
Essentially, Applicant is stating the prior art neither alone anticipates nor in combination anticipate makes obvious the claimed invention as defined by claim 1. This blanket assertion is not persuasive. The first portion of the statement – “Applicant submits that Ignon, either alone or in combination with one or more other references, fails to teach or suggest the limitations of the claims as presented herein” is clear enough and straight to the point. But the second and final portion is simply quoting the claim 1 – 245 words worth - almost in its entirety. This portion is incorrect as it ignores entirely what 1) Ignon et al. does disclose, and 2) what Ignon et al. fail to disclose and what Chang does teach. The present (and previous) rejections have been laid out to provide a clear record of how or why the prior art combination make obvious the previously/presently claimed invention. Applicant’s blanket assertion regarding the prior art combination failing to make obvious the presently claimed invention is unpersuasive since none of Applicant’s arguments/assertions are persuasive in traversing the rejections of the well-motivated combination of the prior art.
Beginning on page 6, last six lines through page 7, 2nd line Applicant asserts:
“Applicant notes that the cited art and other art of record fails to disclose, among other
things, a handpiece configured to deliver energy to the skin surface to mechanically agitate the
skin surface concurrently with drawing the skin to contact abrasive elements, where the electrical source and the vacuum source are separate, in combination with other patentable features disclosed herein. By way of Example, Applicant submits that Ignon discloses a skin treatment handpiece without energy delivery as described herein. As such, Ignon fails to disclose or suggest the use of an energy delivery microdermabrasion handpiece as claimed herein. Similar clarifying amendments were made to independent Claim 12.”
This is also an unpersuasive argument. The prior art combination make obvious the presently claimed invention – as pointed out by the detailed “cut-and-paste” rejection below.
Accordingly, this action is made FINAL.
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 1-2, 7, and 9-11 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 (lines 20-21), recites “wherein the energy source is separate from the vacuum,” and there is no portion of the written description which supports this recitation. Additionally, there is no drawing or figure supporting such a recitation.
In order to provide an initial examination and search, the examiner will assume the there is support in the written description for a recitation of “wherein the energy source is separate from the vacuum.”
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 pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1-2, 7-13, and 18-20 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over lgnon et al. (U.S. Patent Application Publication 2009/0192442) in view of Official notice (a first time and now considered Admitted prior art) in view of Chang (U.S. Patent Application Publication 2013/0345661) ) in view of Official notice (a second time and not considered Admitted prior art yet).
Regarding claims 1-2, lgnon et al. disclose method of treating a skin surface of a
subject, the method comprising:
abrading the skin surf ace of the subject ("tip can be adapted to abrade or otherwise treat skin when moved relative to a skin surf ace," see [0017] and claim 18) using a microdermabrasion device ("hand piece assembly 100," see [0092] and figures 1, 4C and, 8F, and other alternate/equivalent counterparts in other embodiments), wherein using the microdermabrasion device comprises moving the microdermabrasion device relative to the skin surface while simultaneously delivering at least one treatment fluid to the skin surf ace being treated ("the method comprises moving the hand piece assembly along a person's skin and activating the suction source to remove a volume of waste materials from the distal end of the tip and to simultaneously deliver a volume of the treatment fluid to the distal end of the tip," see [0032]),
using a vacuum/suction source to create suction at the distal end and/or head/tip of the device adjacent to the skin/tissue (see [0013], [0029], [0032], [0095]-[0096], [0119]-[0121] for example).
Additionally, lgnon et al. disclose the at least one abrasive element (#1 - "more pads 780A-780D"having"abrasivesurfaces" see [0158] and figure l0F, #2 - "protruding members 117 4, 1176" see [0 174] and figures l l-12A, and other alternate/equivalent counterparts in other embodiments) that is/are located within an area circumscribed by a peripheral lip (#1 - "outer lip 767" in [0162] and figurel0F, #2 - "outer lip member 1167" in [0 174] and figure 11, and other alternate/equivalent counterparts in other embodiments respectively) of the skin treatment device.
Although lgnon et al. do not explicitly recite the step "drawing the skin surface using a vacuum created along a distal end of a skin treatment device to contact at least one abrasive element of a skin treatment device positioned along the skin surface using a vacuum created along a distal end of the device" the examiner takes official notice of this claimed recitation since lgnon et al. disclose: 1) the creation of negative pressure environment at the tip between the tip and the surface of the patient's skin, and 2) abrasive elements/members that are longitudinally recessed with respect to the most distal surf ace of the outer lip and abrading includes rubbing, scraping or wear away by friction - this means the abrasive elements contact the skin and since the abrasive elements are recessed with respect to the most distal surface of the outer lip and the skin must contact the abrasive elements.
If applicant does not traverse the examiner's assertion of official notice or applicant's traverse is not adequate, the examiner should clearly indicate in the next Office action that the common knowledge or well-known in the art statement is taken to be admitted prior art because applicant either failed to traverse the examiner's assertion of official notice or that the traverse was inadequate. If the traverse was inadequate, the examiner should include an explanation as to why it was inadequate," see MPEP 2144.03C.
It should be noted Applicant did not argue or traverse the taking of official notice in Applicant’s response filed 02/13/2026, and, therefore this portion of the rejection is taken as admitted prior art.
With respect to" the skin surf ace to contact the at least one abrasive element includes contacting the peripheral lip with the skin surface" see figure 10F.
Additionally, lgnon et al. fail to disclose the additional step of:
o 1) delivering energy to the skin surface from an energy source to mechanically agitate the skin surface to improve penetration of the at least one treatment fluid relative to the skin surf ace and/or within the skin surface and reduce recovery time of the skin surf ace being abraded,
2) wherein delivering energy to the skin surface from the energy source is performed concurrently with drawing the skin surface to contact the at least one abrasive element and the peripheral lip to abrade the skin surf ace, and
3) wherein delivering energy comprises delivering ultrasound energy and wherein the ultrasound energy source is different from the vacuum/suction source.
Like lgnon et al., Chang discloses a device and method of treating skin by abrading the skins surf ace (see [0007]), abrading the skin with an abrading element ("abrading end portion," see [0007]), using suction (see the vacuum in [0007]) and delivering fluid to the skin (see [0007]) and teaches also providing an additional treatment procedure, wherein the at least one additional treatment procedure comprises delivering energy in the form of mechanical agitation (vibration) further in the form of ultrasound energy (see [0006]) – from an ultrasound transducer (see [0045]) – to provide to skin surface in order to improve penetration of the at least one treatment fluid relative to the skin surface and/or within the tissue (see [0006]) and enhance overall treatment of the skin.
Additionally, Chang teaches combining this treatment with cold therapies to "tightening collagen fibers" (see [0052] and [0054]) in order to enhance the overall treatment of tissue.
Applicant has disclosed(see [0142] of the U.S. Patent Application Publication 2024/0225697 of the present application) that cold treatment "provide quicker recovery time."
Therefore the combined treatments of Chang that include cold therapies provide improved or quicker recovery time as an additionally beneficial byproduct.
Finally, although the prior art of lgnon et al. in view of Chang fail to explicitly recite “the energy source is separate from the vacuum.” However, the examiner takes official notice since it is extremely well known in the art to provide a skin/tissue treatment device with vacuuming/suction functionality and ultrasound that are separate elements when they are included in the same invention/device.
If applicant does not traverse the examiner's assertion of official notice or applicant's traverse is not adequate, the examiner should clearly indicate in the next Office action that the common knowledge or well-known in the art statement is taken to be admitted prior art because applicant either failed to traverse the examiner's assertion of official notice or that the traverse was inadequate. If the traverse was inadequate, the examiner should include an explanation as to why it was inadequate," see MPEP 2144.03C.
Therefore, at the time of the of invention it would have been obvious to one of ordinary skill in the art to modify the invention of lgnon et al., as taught by official notice now TAKEN AS ADMITTED PRIOR ART, to draw the skin surface using a vacuum created along a distal end of a skin treatment device to contact at least one abrasive element of a skin treatment device positioned along the skin surface using a vacuum created along a distal end of the device in order to provide abrasion, and as further taught by Chang, to 1) provide an additional treatment procedure, wherein the at least one additional treatment procedure comprises delivering energy in the form of mechanical agitation (vibration) further in the form of ultrasound energy to the skin surf ace in order to improve penetration of the at least one treatment fluid relative to the skin surf ace and enhance overall treatment of the skin, and 2) combine this treatment with cold therapies to "tightening collagen fibers" in order to enhance the overall treatment of tissue, wherein the cold therapies provide improved or quicker recovery time as an additionally beneficial byproduct, as taught by official notice, to provide the ultrasound energy source that is separate from the vacuum.
Regarding claim 7, lgnon et al. in view of Chang disclose or make obvious the
claimed invention including the microdermabrasion device is configured to deliver
energy to the skin surface, see the "sharp edges" in Chang [0045]-[0049], and [0054].
Regarding claims 9-10, lgnon et al. in view of Chang disclose or make obvious the
claimed invention including the microdermabrasion device comprises two or more
abrasive features in the form of sharp edges configured to abrade the skin surface as the
microdermabrasion device moves along the skin surface (see lgnon et al. "protruding
members 1174, 1176" see [0174] and figures ll-12A).
Regarding claim 11, lgnon et al. in view of Chang disclose or make obvious the
claimed invention including the treatment fluid includes "serums," see lgnon et al.
[0011], [0016], [0092]-[0093] for example.
Regarding claims 12-13, lgnon et al. disclose a method of treating a skin surface of a subject, the method comprising:
abrading the skin surf ace of the subject ("tip can be adapted to abrade or otherwise treat skin when moved relative to a skin surf ace," see [0017] and claim 18) using a microdermabrasion device ("hand piece assembly 100," see [0092] and figures 1, 4C and, 8F, and other alternate/equivalent counterparts in other embodiments), wherein using the microdermabrasion device comprises moving the microdermabrasion device relative to the skin surf ace while simultaneously delivering at least one treatment fluid to the skin surf ace being treated ("the method comprises moving the hand piece assembly along a person's skin and activating the suction source to remove a volume of waste materials from the distal end of the tip and to simultaneously deliver a volume of the treatment fluid to the distal end of the tip," see [0032]).
Additionally, lgnon et al. disclose the at least one abrasive element (#1 - "more pads 780A-780D"having"abrasivesurfaces" see [0158] and figure l0F, #2 - "protruding members 117 4, 1176" see [0 174] and figures l l-12A, and other alternate/equivalent counterparts in other embodiments) that is/are located within an area circumscribed by a peripheral lip (#1 - "outer lip 767" in [0162] and figurel0F, #2 - "outer lip member 1167" in [0 174] and figure 11, and other alternate/equivalent counterparts in other embodiments respectively) of the skin treatment device; and delivering at least one treatment fluid to the skin surf ace treated ("the method comprises moving the handpiece assembly along a person's skin and activating the suction source to remove a volume of waste materials from the distal end of the tip and to simultaneously deliver a volume of the treatment fluid to the distal end of the tip," see [0032]).
Although lgnon et al. do not explicitly recite the step "drawing the skin surface using a vacuum created along a distal end of a skin treatment device to contact at least one abrasive element of a skin treatment device positioned along the skin surface using a vacuum created along a distal end of the device" the examiner takes official notice of this claimed recitation since lgnon et al. disclose: 1) the creation of negative pressure environment at the tip between the tip and the surface of the patient's skin, and 2) abrasive elements/members that are longitudinally recessed with respect to the most distal surf ace of the outer lip and abrading includes rubbing, scraping or wear away by friction - this means the abrasive elements contact the skin and since the abrasive elements are recessed with respect to the most distal surface of the outer lip and the skin must contact the abrasive elements.
If applicant does not traverse the examiner's assertion of official notice or applicant's traverse is not adequate, the examiner should clearly indicate in the next Office action that the common knowledge or well-known in the art statement is taken to be admitted prior art because applicant either failed to traverse the examiner's assertion of official notice or that the traverse was inadequate. If the traverse was inadequate, the examiner should include an explanation as to why it was inadequate," see MPEP 2144.03C.
It should be noted Applicant did not argue or traverse the taking of official notice in Applicant’s response filed 02/13/2026, and, therefore this portion of the rejection is taken as admitted prior art.
With respect to" the skin surf ace to contact the at least one abrasive element includes contacting the peripheral lip with the skin surface" see figure 10F.
Also, the step of "delivering energy to the skin surf ace is performed concurrently with drawing the skin surface to contact the at least one abrasive element and the peripheral lip to abrade the skin surface" is met by the drawing of the skin since the suction/vacuum provides mechanical or pneumatic energy and is the cause for the drawing of the skin. The claim language is not specific as to what type of energy is being performed concurrently with the drawing.
lgnon et al. also fail to disclose the additional step of exposing the skin surface or delivering to the skin surface ultrasound energy (vibrational energy that mechanically agitates) to improve penetration of the at least one treatment fluid relative to the skin surface and/or within skin surface and reduce recovery time of the skin surf ace being abraded.
Like lgnon et al., Chang discloses a device and method of treating skin by abrading the skins surf ace (see [0007]), abrading the skin with an abrading element ("abrading end portion," see [0007]), using suction (see the vacuum in [0007]) and delivering fluid to the skin (see [0007]) and teaches also providing an additional treatment procedure, wherein the at least one additional treatment procedure comprises delivering energy in the form of mechanical agitation (vibration) further in the form of ultrasound energy (see [0006]) to the skin surf ace in order to improve penetration of the at least one treatment fluid relative to the skin surface (see [0006]) and enhance overall treatment of the skin.
Additionally, Chang teaches combining this treatment with cold therapies to "tightening collagen fibers" (see [0052] and [0054]) in order to enhance the overall treatment of tissue.
Applicant has disclosed(see [0142] of the U.S. Patent Application Publication 2024/0225697 of the present application) that cold treatment "provide quicker recovery time."
Therefore the combined treatments of Chang that include cold therapies provide improved or quicker recovery time as an additionally beneficial byproduct.
Finally, although the prior art of lgnon et al. in view of Chang fail to explicitly recite “the energy source is separate from the vacuum.” However, the examiner takes official notice since it is extremely well known in the art to provide a skin/tissue treatment device with vacuuming/suction functionality and ultrasound that are separate elements when they are included in the same invention/device.
Therefore, at the time of the of invention it would have been obvious to one of ordinary skill in the art to modify the invention of lgnon et al., as taught by official notice (now considered admitted prior art), to draw the skin surface using a vacuum created along a distal end of a skin treatment device to contact at least one abrasive element of a skin treatment device positioned along the skin surface using a vacuum created along a distal end of the device in order to provide abrasion, and as further taught by Chang, to 1) provide an additional treatment procedure, wherein the at least one additional treatment procedure in the form of ultrasound energy to the skin surf ace in order to improve penetration of the at least one treatment fluid relative to the skin surf ace and enhance overall treatment of the skin, and as further taught by taking official notice, to provide the ultrasound energy source that is separate from the vacuum.
Regarding claim 18, lgnon et al. in view of Chang disclose or make obvious the
claimed invention including the microdermabrasion device is configured to deliver
energy to the skin surface, see the "sharp edges" in Chang [0045]-[0049], and [0054].
Regarding claims 19-20, lgnon et al. in view of Chang disclose or make obvious the
claimed invention including the microdermabrasion device comprises two or more
abrasive features in the form of sharp edges configured to abrade the skin surface as the
microdermabrasion device moves along the skin surface (see lgnon et al. "protruding
members 1174, 1176" see [0174] and figures ll-12A).
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 AARON F ROANE whose telephone number is (571)272-4771. The examiner can normally be reached generally Mon-Fri 8am-9pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Niketa Patel can be reached at (571) 272-4156. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/AARON F ROANE/Primary Examiner, Art Unit 3792