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 .
Response to Arguments
Applicant's arguments filed on 10/23/25 have been fully considered but they are not persuasive.
In response to the argument presented in the preamble (a protection factor evaluation system for determining a protection factor of a skin protection product”), it is determined that this preamble is for intended use. It is noted that the body of the claim 1 is not performing such an function.
Claim Objections
Claim 1 is objected to because of the following informalities: because of “a protection factor factor evaluation”. Appropriate correction is required.
Claim Rejections - 35 USC § 102
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 – 4, 6 – 9 and 13 – 15 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Scheller (EP 0193163 A1).
With respect to independent claim 1, Scheller teaches in Fig. 3 Protection factor evaluation system (1) for determining a protection factor of a skin protection product comprising
a radiation source (12) with - exactly one LED (12.1) 30 in paragraph [0056],
a detector unit (13) with - exactly one photodiode (13.1) 31 and
a control unit (2.1) in paragraph [0019],
an evaluation unit (10) in paragraph [0018].
With respect to dependent claim 2, in Fig. 3 and as discussed above Scheller teaches in that the radiation source (12) 30 and the detector unit (13) 31 are combined in a first structural unit (30) 1.
With respect to dependent claim 3, Scheller is silent with that the first structural unit (30) has a first communication unit (COM1) 28.
With respect to dependent claim 4, Scheller teaches in Fig. 10 that the first structural unit (30) and the control unit (2.1) or the evaluation unit (10) 8 are arranged in different housings (31, 41).
With respect to dependent claim 6, Scheller teaches in Fig. 10 in that the first structural unit (30) has the control unit (2.1) 10a, 10b.
With respect to dependent claim 7, Scheller teaches in Fig. 10 in that the evaluation unit (10) 8 is arranged in a second structural unit (40).
With respect to dependent claim 8, Scheller teaches in Fig. 10 in that the second structural unit (40) has a second communication unit (COM2).
With respect to dependent claim 9, Scheller teaches in Fig. 10 in that the first communication unit (COM1) and the second communication unit (COM2) are suitable for communicating with each other.
With respect to independent claim 13, as discussed above in the rejection justification to claim 1, Scheller teaches Method (400) for determining a protection factor of a skin protection agent, comprising the method steps:
mitting radiation from exactly one LED (12.1) of a radiation source (12),
detection of remitted radiation from exactly one photodiode (13.1) of a detector unit (13),
Evaluation (300) of the protection factor in an evaluation wavelength range, whereby the protection factor of the protective agent is evaluated from the remitted radiation and a transmission spectrum (300), wherein the data of the transmission spectrum for determining the protection factor are in silico and/or in vitro data.
With respect to dependent claim 14, Scheller teaches in Fig. 4 in that data of the detected remitted radiation is transmitted to an evaluation unit (10).
With respect to dependent claim 15, Scheller teaches in Fig. 10 in that the evaluation unit (10) is arranged in a different structural unit (30, 40) than the radiation source (12.1) and/or the detector unit (13).
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 3 is/are rejected under 35 U.S.C. 103 as being unpatentable over Scheller.
With respect to dependent claim 5, Scheller is silent with in that the different housings (31, 41) have no structural connection to each other.
However, this structural variation is within the ordinary skilled art. This is in consistency with the Supreme Court Decision of the KSR. V. International Co.: Obvious to try – choosing form a finite number of predictable results.
Claim(s) 10 and 16 – 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Scheller, and further in view of Helfmann (US 2018/0321139 A1).
The teaching of Scheller has been discussed above.
With respect to dependent claim 10, Scheller is silent with in that the LED (12.1) is suitable for emitting light with a wavelength in the UVA range.
Helfmann, a pertinent art, teaches UVA in paragraph [0152]. In view of this, it would be obvious at the time of the claimed invention was filed to modify the teaching of Scheller in order to determine sun protection factor in desired wavelength(s). This is in consistency with the Supreme Court Decision of the KSR. V. International Co.: applying a known technique to a known device (method or product) ready for improvement to yield predictable results.
With respect to dependent claim 16, as discussed above Helfmann teaches in paragraph [0155] in that the emitted radiation covers an irradiation wavelength range between 280 nm and 2000 nm, preferably 280 nm to 800 nm and particularly preferably the range from 280 nm to 500 nm.
With respect to dependent claim 17, Scheller is silent with in that the evaluation wavelength range is different from the irradiation wavelength range.
Helfmann, a pertinent art, teaches in paragraph [0122] the limitation of claim 17. In view of this, it would be obvious at the time of the claimed invention was filed to modify the teaching of Scheller in order to determine SPF by a known method. This is in consistency with the Supreme Court Decision of the KSR. V. International Co.: applying a known technique to a known device (method or product) ready for improvement to yield predictable results.
With respect to dependent claim 18, as discussed above Helfmann teaches in that the protection factor of the protective agent is evaluated from the remitted radiation and a transmission spectrum (300).
Claim(s) 11 – 12, and 19 – 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Scheller, and further in view of Marinkovich (US 2015/0313532 A1).
The teaching of Scheller has been discussed above.
With respect to dependent claims 11 and 20, Scheller is silent with in that the first structural unit (30) is a hand-held device.
In paragraph [0115], Marinkovich, a pertinent art, teaches a hand held device. In view of this, it would be obvious at the time of the claimed invention was filed to modify the teaching of Scheller in order to fabricate desired device in portable fashion. This is in consistency with the Supreme Court Decision of the KSR. V. International Co.: applying a known technique to a known device (method or product) ready for improvement to yield predictable results.
With respect to dependent claims 12 and 19, Scheller is silent with in that the second structural unit (40) is a mobile device and preferably a smartphone.
In Fig. 1, Marinkovich teaches sensor subsystem 102A and a host computing system 104A and in paragraph [0070] teaches a mobile phone application. In view of this, it would be obvious at the time of the claimed invention was filed to modify the teaching of Scheller in order to have a host computing system such as a mobile phone for computing SPF. This is in consistency with the Supreme Court Decision of the KSR. V. International Co.: applying a known technique to a known device (method or product) ready for improvement to yield predictable results.
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 KIHO KIM, Ph.D. whose telephone number is (571)270-1628. The examiner can normally be reached M-F: 8-5 EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, David Makiya can be reached at (571)272-2273. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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KIHO KIM, Ph.D.
Primary Examiner
Art Unit 2884
/Kiho Kim/Primary Examiner, Art Unit 2884