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 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: the switching mechanism in claims 42 and 43.
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 Objections
Claim 25 is objected to because of the following informalities: the claim recites an “air flow generator” whereas it is referred to thereafter as the “airflow generator”. Appropriate correction is required to use the same term consistently through the claim set.
Claim 42 is objected to because of the following informalities: the claim depends from claim 40 but should depend from claim 41 to establish proper antecedent basis for the second air outlet. Appropriate correction is required.
Claim 43 is objected to because of the following informalities: the claim depends from claim 41 but should depend from claim 40 to establish proper antecedent basis for the switching mechanism, and the first and second configuration. Appropriate correction is required.
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 26, 33-35 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 applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. Examiner notes that the claims recite a ratio without limiting the units of measure, which renders the claims undefined. Examiner suggests incorporating the units of measure to the claim language to complete their definition.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 42 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 42 recites a second air outlet whereas claim 40, from which it depends, requires there to be a single outlet. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers. Examiner notes that the rejection would be withdrawn if claim 42 is amended to depend from claim 41 which does not include the requirement of a single air outlet. Examiner further notes that such an amendment would also remedy the objection to claim 42 above. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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 25 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 2 of U.S. Patent No. 12/274,342. Although the claims at issue are not identical, they are not patentably distinct from each other because all of the limitations for claim 25 of the present application are recited in claim 2 of U.S. Patent No. 12/274,342.
As for claim 25, U.S. Patent No. 12/274,342 discloses a haircare appliance comprising an air inlet, an air outlet (claim 1, line 2), an air flow generator for generating an airflow from the air inlet to the air outlet (claim 1, line 6, generating an air flow force requires an air flow generator), and a curved surface adjacent to and downstream of the air outlet (claim 1, line 3), wherein the air outlet comprises an open cross- sectional area in the region of 140mm2 to 450 mm2 (claim 2).
Claim 25 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 7 of copending Application No. 18273719 in view of Maclaine (US 2015/0265024).
As for claim 25, application No. 18273719 discloses a haircare appliance comprising an air inlet, an air outlet (claim 1, line 2), and a curved surface adjacent to and downstream of the air outlet (claim 1, lines 3-4), wherein the air outlet comprises an open cross- sectional area in the region of 140mm2 to 450 mm2 (claim 7). Copending application 18273719 discloses the claimed invention except for an air flow generator for generating an airflow from the air inlet to the air outlet. Maclaine teaches an air flow generator for generating an airflow from the air inlet to the air outlet (70) in order to provide a flow of air between the air inlet and outlet. Application 18273719 would benefit equally from providing a flow of air between the air inlet and outlet. It would have been obvious for one of ordinary skill in the art at the time of filing to modify the dryer as disclosed by application 18273719 with an air flow generator for generating an airflow from the air inlet to the air outlet as taught by Maclaine in order to provide a flow of air between the air inlet and outlet. This is a provisional nonstatutory double patenting rejection.
Claim 25 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 7 of copending Application No. 18273736 in view of Maclaine (US 2015/0265024).
As for claim 25, application No. 18273736 discloses a haircare appliance comprising an air inlet, an air outlet (claim 1, line 2), and a curved surface adjacent to and downstream of the air outlet (claim 1, lines 3-4), wherein the air outlet comprises an open cross- sectional area in the region of 140mm2 to 450 mm2 (claim 7). Application 18273736 discloses the claimed invention except for an air flow generator for generating an airflow from the air inlet to the air outlet. Maclaine teaches an air flow generator for generating an airflow from the air inlet to the air outlet (70) in order to provide a flow of air between the air inlet and outlet. Application 18273736 would benefit equally from providing a flow of air between the air inlet and outlet. It would have been obvious for one of ordinary skill in the art at the time of filing to modify the dryer as disclosed by application 18273736 with an air flow generator for generating an airflow from the air inlet to the air outlet as taught by Maclaine in order to provide a flow of air between the air inlet and outlet. This is a provisional nonstatutory double patenting rejection.
Claim 25 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 8 of copending Application No. 18273742 in view of Maclaine (US 2015/0265024).
As for claim 25, application No. 18273742 discloses a haircare appliance comprising an air inlet, an air outlet (claim 1, lines 1-2), and a curved surface adjacent to and downstream of the air outlet (claim 1, lines 2), wherein the air outlet comprises an open cross- sectional area in the region of 140mm2 to 450 mm2 (claim 8). Application 18273742 discloses the claimed invention except for an air flow generator for generating an airflow from the air inlet to the air outlet. Maclaine teaches an air flow generator for generating an airflow from the air inlet to the air outlet (70) in order to provide a flow of air between the air inlet and outlet. Application 18273742 would benefit equally from providing a flow of air between the air inlet and outlet. It would have been obvious for one of ordinary skill in the art at the time of filing to modify the dryer as disclosed by application 18273742 with an air flow generator for generating an airflow from the air inlet to the air outlet as taught by Maclaine in order to provide a flow of air between the air inlet and outlet. This is a provisional nonstatutory double patenting rejection.
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 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 text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
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.
Claims 25, 35, 36, 38-42, and 44-46 are rejected under 35 U.S.C. 103 as being unpatentable over Maclaine (US 2015/0265024).
As for claim 25, Maclaine discloses a haircare appliance comprising an air inlet, an air outlet (40, 282), an air flow generator for generating an airflow from the air inlet to the air outlet (70), and a curved surface (210, fig. 7b) adjacent to and downstream of the air outlet (282, 210, fig, 7b). Maclaine discloses the claimed invention except for expressly disclosing the air outlet comprises an open cross-sectional area in the region of (examiner infers the terminology “in the region of” to mean “within the range of” wherever the terminology is used) 140mm2 to 450mm2. One of ordinary skill in the art would understand Maclaine to disclose a cross-sectional opening of approximately 225mm based on proportions illustrated in fig. 7b (approximately 3mm x 75mm), but Maclaine does not specifically recite 140mm2 to 450mm2. However, it has been held that “[w]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” See MPEP §2144.05(II)(A) (quoting In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). Additionally, it has been further held that "[a] particular parameter must first be recognized as a result-effective variable, i.e. a variable which achieves a recognized result, before determination of the optimum or workable ranges of said variable might be characterized as routine experimentation. Refer to MPEP §2144.05(II)(B)(quoting In re Antonie, 559 F.2d 618, 195 USPQ 6 (CCPA 1977). In this case, the cross-sectional area is a well-known result-effective variable in which a larger cross-sectional area produces a higher velocity at lower pressure, whereas a smaller cross-sectional area has the opposite effect. Accordingly, it would have been obvious to one of ordinary skill in the art at the time of filing to provide the air outlet comprises an open cross-sectional area in the region of 140mm2 to 450mm2 because optimizing a result-effective variable no more than routine skill in the art.
As for claim 35, Maclaine discloses the claimed invention except for expressly disclosing a ratio of a radius of curvature of the curved surface to an arc length of the curved surface is in the region of 0.04 to 0.63. However, the ratio of a radius of curvature of a curved surface to an arc length of said curved surface is a result-effective variable, the optimization of which would be obvious to one of ordinary skill in the art. In this case, the lager the ratio of radius of curvature to arc length creates a greater force adhering to the curved surface, with the opposite true for a smaller ratio of radius of curvature to arc length. It would have been obvious for one of ordinary skill in the art to modify the dryer as disclosed by Maclaine with a ratio of a radius of curvature of the curved surface to an arc length of the curved surface is in the region of 0.04 to 0.63 because optimizing the ratio of a radius of curvature of a curved surface to an arc length of said curved surface is a result-effective variable for which optimization is within the ordinary skill in the art.
As for claim 36, Maclaine discloses the haircare appliance comprises a flat surface adjacent to and extending rearwardly from the air outlet (fig. 12b, to the right of and extending to the rear of air outlet).
As for claim 38, Maclaine discloses the air outlet comprises a fixed air outlet (342, fig. 12b).
As for claim 39, Maclaine discloses the haircare appliance comprises a hollow body, the air outlet defined in the hollow body, and the curved surface projects outwardly from the hollow body (342, 338, and hollow body illustrated in fig. 12b, 338 has both flat and curved regions).
As for claim 40, Maclaine discloses the haircare appliance comprises a single air outlet (342, fig. 13a).
As for claim 41, Maclaine discloses the air outlet comprises a first air outlet located on a first side of the haircare appliance, and a second air outlet located on a second side of the haircare appliance opposite to the first side of the haircare appliance (342, figs. 12a, 13a), the curved surface being adjacent to and downstream of each of the first and second air outlets (338, fig. 12a, first region downstream of outlet is curved), and the haircare appliance comprising a first flat surface adjacent to and extending rearwardly from the first air outlet, and a second flat surface adjacent to and extending rearwardly from the second air outlet (338, fig. 12a, distal region downstream of outlet is straight).
As for claim 42, Maclaine discloses the haircare appliance comprises a switching mechanism for switching the haircare appliance from a first configuration in which airflow passes through the first air outlet and does not pass through the second air outlet (342, 326, fig. 12a), to a second configuration in which airflow passes through the second air outlet and does not pass through the first air outlet (342, 324, fig. 12a).
As for claim 44, Maclaine discloses the haircare appliance comprises an internal baffle for turning airflow from the airflow generator toward the air outlet [0021].
As for claim 45, Maclaine discloses the haircare appliance comprises a handle unit within which the airflow generator is housed (10, fig. 14), and an attachment releasably attachable (title, attachment inherently connotes a potential for detachment) to the handle unit (350, fig. 14), the attachment comprising the air outlet and the curved surface (338, 342, fig. 12b, 338 has both flat and curved regions).
As for claim 46, Maclaine discloses an attachment for a hair care appliance comprising an airflow generator housed in a handle unit (70), the attachment comprising an air inlet for receiving an airflow from the airflow generator (40), an air outlet for emitting the airflow (282), and a curved surface adjacent to and downstream of the air outlet (210, fig. 7b), wherein the air outlet comprises an open cross-sectional area in the region of 140mm2 to 450 mm2. Maclaine discloses the claimed invention except for expressly disclosing the air outlet comprises an open cross-sectional area in the region of 140mm2 to 450mm2. However, it has been held that “[w]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” See MPEP §2144.05(II)(A) (quoting In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). Additionally, it has been further held that "[a] particular parameter must first be recognized as a result-effective variable, i.e. a variable which achieves a recognized result, before determination of the optimum or workable ranges of said variable might be characterized as routine experimentation. Refer to MPEP §2144.05(II)(B)(quoting In re Antonie, 559 F.2d 618, 195 USPQ 6 (CCPA 1977). In this case, the cross-sectional area is a well-known result-effective variable in which a larger cross-sectional area produces a higher velocity at lower pressure, whereas a smaller cross-sectional area has the opposite effect. Accordingly, it would have been obvious to one of ordinary skill in the art at the time of filing to provide the air outlet comprises an open cross-sectional area in the region of 140mm2 to 450mm2 because optimizing a result-effective variable no more than routine skill in the art.
Claim 27 is rejected under 35 U.S.C. 103 as being unpatentable over Maclaine as applied to claim 25 above and further in view of Poweleit (FR2743252).
Maclaine discloses the claimed invention except for the airflow generator is configured to generate airflow at a flow rate in the region of 8L/s to 14L/s. Poweleit teaches the airflow generator is configured to generate airflow at a flow rate in the region of 8L/s to 14L/s (third last paragraph of application 15L/s) in order to provide a desirable rate of flow for drying a user’s hair. Maclaine would benefit equally from providing a desirable rate of flow for drying a user’s hair. It would have been obvious to one of ordinary skill in the art at the time of filing to modify the dryer as disclosed by Maclaine with the airflow generator is configured to generate airflow at a flow rate in the region of 8L/s to 14L/s as taught by Poweleit in order to provide a desirable rate of flow for drying a user’s hair.
Claim 28 is rejected under 35 U.S.C. 103 as being unpatentable over Maclaine as applied to claim 25 above and further in view of Conrad (US 2021/0307472).
Maclaine discloses the claimed invention except for , wherein the airflow generator is configured to generate such that airflow at the air outlet comprises a velocity in the region of 30m/s to 45m/s. Conrad teaches , wherein the airflow generator is configured to generate such that airflow at the air outlet comprises a velocity in the region of 30m/s to 45m/s [0013] in order to drive water quickly away from hair to be dried. Maclaine would benefit equally from driving water quickly away from hair to be dried. It would have been obvious to one of ordinary skill in the art at the time of filing to modify the dryer as disclosed by Maclaine with the airflow generator is configured to generate such that airflow at the air outlet comprises a velocity in the region of 30m/s to 45m/s as taught by Conrad in order to drive water quickly away from hair to be dried.
Claims 29-31 are rejected under 35 U.S.C. 103 as being unpatentable over Maclaine as applied to claim 25 above.
Maclaine discloses the claimed invention except for expressly disclosing the open cross-sectional area, the width or the height of the air outlet and the radius of curvature of the curved surface. It is quite possible that the air outlet of Maclaine has a width in the region of 70mm to 90mm (fig. 15b); and a height in the region of 2mm to 5mm (fig. 15b); and that the curved surface comprises a radius of curvature in the region of 16mm to 60mm (fig. 15b), despite not expressly disclosing values for said features. However, it has been held that “[w]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” See MPEP §2144.05(II)(A) (quoting In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). Additionally, it has been further held that "[a] particular parameter must first be recognized as a result-effective variable, i.e. a variable which achieves a recognized result, before determination of the optimum or workable ranges of said variable might be characterized as routine experimentation. Refer to MPEP §2144.05(II)(B)(quoting In re Antonie, 559 F.2d 618, 195 USPQ 6 (CCPA 1977). In this case, the cross-sectional area is a well-known result-effective variable in which a larger cross-sectional area produces a higher velocity at lower pressure, whereas a smaller cross-sectional area has the opposite effect. Accordingly, it would have been obvious to one of ordinary skill in the art at the time of filing to provide the air outlet comprises an open cross-sectional area in the region of 140mm2 to 450mm2 because optimizing a result-effective variable no more than routine skill in the art. Also, a smaller radius of curvature of the curved surface reduces the stream of air that will follow the curved surface with a longer curved surface having the opposite effect. Each of these result-effective variables require only routine skill in the art to optimize for a given application. It would have been obvious to one of ordinary skill in the art at the time of filing to modify the dryer as disclosed by Maclaine with the air outlet comprises a width in the region of 70mm to 90mm; and the air outlet comprises a height in the region of 2mm to 5mm; and the curved surface comprises a radius of curvature in the region of 16mm to 60mm because the open cross-sectional area, height and width of an air outlet, and the arc length of a curved surface are all obvious result-effective variables of optimization which would be obvious to optimize by one of ordinary skill in the art without the requirement of undue experimentation.
Claim 37 is rejected under 35 U.S.C. 103 as being unpatentable over Maclaine as applied to claim 25 above and further in view of Mason (US 2017/0273423).
Maclaine discloses the claimed invention except for the haircare appliance comprises a pair of guide walls for guiding airflow along the curved surface, the pair of guide walls upstanding from the curved surface. Mason teaches the haircare appliance comprises a pair of guide walls for guiding airflow along the curved surface, the pair of guide walls upstanding from the curved surface (radial walls perpendicular to surfaces 50, adjacent to numbers 14 and 16 in fig. 11) in order to direct the flow of air toward the user. Maclaine would benefit equally from directing the flow of air toward the user. It would have been obvious for one of ordinary skill in the art to modify the dryer as disclosed by Maclaine with the haircare appliance comprises a pair of guide walls for guiding airflow along the curved surface, the pair of guide walls upstanding from the curved surface as taught by Mason in order to direct the flow of air toward the user.
Allowable Subject Matter
Claims 32 and 43 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Reasons for Allowance
Claim 32 includes allowable subject matter because prior art could not be found to disclose the curved surface comprises an arc length of at least 95 degrees for the air outlet with all of the limitations of independent clam 25. The above limitation is found in MacPherson (US 2019/0357654, fig. 3). However combining the limitation of claims 32 with Maclaine would destroy the reference, completely changing the contour design and function. As such, there would be no motivation to combine Maclaine with any such type of modification.
Claim 43 includes allowable subject matter because prior art could not be found to disclose a switching mechanism actuable to move the haircare appliance between the first and second configurations under action of gravity with all of the limitations of the claims from which it depends. No obviously close prior art could be found for this limitation.
Conclusion
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Helena Kosanovic can be reached at 571-272-9059. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JOHN P MCCORMACK/Primary Examiner, Art Unit 3762
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