DETAILED ACTIONAcknowledgment is made of applicant’s preliminary amendment filed 1/9/24. 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 Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1 – 11 and 13 – 21 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more. Claims 1 and 21 are directed to the abstract idea of evaluating fatigue in a hair fiber sample comprising steps of receiving fatigue testing data for the hair fiber sample, determining a loading energy based on the fatigue testing data and determining an indication of fatigue in the hair fiber sample based on the loading energy. The steps of the claims describe the concept of receiving fatigue testing data using a fatigue tester, determining a loading energy using a computer and determining an indication of fatigue using a computer which are considered abstract ideas. The claim limitations are similar to those previously found by the courts to be abstract such as organizing and manipulating information through mathematical correlations in Digitech Image Techs., LLC v. Electronics for Imaging, Inc. 758 F. 3d 1344, 1350, 111 USPQ2d 1717, 1721 (Fed. Cir. 2014) and collecting information, analyzing it, and displaying certain results of the collection and analysis in Electric Power Group, LLC v. Alstom, S.A., 830 F. 3d 1350, 119 USPQ2d 1739 (Fed. Cir. 2016). All of these concepts relate to tracking, organizing or analyzing information. The concepts described in the claims are not meaningfully different than concepts of gathering data found by the courts to be abstract ideas. As such, the descriptions in the claims of evaluating fatigue by receiving and determining is an abstract idea. The claims do not include additional elements that are sufficient to amount to
significantly more than the judicial exception because the additional elements are
generic controller elements claimed to perform their basic functions of receiving and determining. The recitation of the controller limitations amounts to mere instructions to implement the abstract idea. Taking the elements both individually and as a combination, the components at each step of the process perform purely generic computer functions. The claims as a whole do not amount to significantly more than the abstract idea itself because they would be routine in any computer implementation. With respect to Digitech, the courts found that claims drawn to organizing and manipulating data through mathematical correlations using a controller was an abstract idea. The present invention relates to organizing received data to determine an indication of a rate of fatigue and processing the data in a force/displacement curve. Taking the courts' opinion in Digitech into consideration in view of the claimed subject matter of the instant application, the controller performs generic computer functions routinely used in computer applications. Generic computer components recited as performing generic computer functions that are understood, routine and conventional activities amount to no more than implementing the abstract idea with a computerized system (See Oishi et al., EP1243914, “Method of Evaluating Degree of Hair Damage”). With respect to Electric Power Group, the courts found that claims drawn to collecting data, analyzing data, and displaying certain results of the collection and
analysis was an abstract idea. The present invention relates to collecting data using
a fatigue tester, receiving data and analyzing the data to determine loading energy.
Taking the courts' opinion in Electric Power Group into consideration in view of the claimed subject matter of the instant application, simply outputting the results of an analysis is considered to be abstract. Furthermore, there is no indication that the receiving and determining steps are performed by any specific structure and in view of Electric Power Group is an extension of the abstract idea presented in Digitech. Thus, generic computer components recited as performing generic computer functions that are understood, routine and conventional activities amount to no more than implementing the abstract idea with a computerized system (See Oishi et al., EP1243914, “Method of Evaluating Degree of Hair Damage”).
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.
Claims 1 – 11 and 13 – 21 are rejected under 35 U.S.C. 103 as being unpatentable over Evans (“Fatigue testing of hair-a statistical approach to hair breakage” – See IDS dated 1/12/24) in view of Thambi (2020/0209126) and Mazza et al. (2007/0151341, hereinafter Mazza). Regarding claim 1, Evans discloses a method and apparatus comprising receiving fatigue testing data for a hair fiber sample for a plurality of loading cycles, in which the fatigue testing data comprises force or stress against displacement or strain data (See Fig. 4, See Pg. 604, Paras. 1 – 4), and determining, for at least a subset of the loading cycles, a loading energy based on data from the fatigue testing data (See Figs. 4 and 5, See Pg. 604, Paras. 1 – 4, Pg. 605, Paras. 1 and 2 and Pg. 606, Paras. 1 – 3). Evans fails to disclose determining an indication of fatigue in the fiber sample based on the loading energy of the at least a subset of the loading cycles. However, Thambi discloses an apparatus comprising evaluating components including fibers using fatigue models based on surface strain energy density failure criterion and performing loading cycles on the fibers (See Pg. 3, Para. 0035, Pg. 5, Paras. 0055 – 0056 and 0060 and Pg. 8, Paras. 0104 – 0114).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention was made to modify Evans according to the teachings of Thambi for the purpose of, advantageously providing an improved device since this type of device characterizes the life of a physical part or component for various loading conditions with high efficiency (See Thambi, Pg. 2, Para. 0027). Evans and Thambi fail to disclose determining an indication of fatigue in a hair fiber sample based on the loading energy of the at least a subset of the loading cycles. However, Mazza discloses a method and apparatus comprising measuring damping of a fiber material which is a measure of the energy of the material, wherein the fiber material includes human hair (See Pg. 1, Para. 0002 and Pg. 3, Paras. 0035 and 0038).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention was made to modify Evans and Thambi according to the teachings of Mazza for the purpose of, advantageously providing an improved device since this type of device accurately measures flexural damping in fibers (See Mazza, Pg. 2, Para. 0011). Regarding claim 2, Evans fails to disclose that determining an indication of the rate of fatigue comprises determining a rate of change of the loading energy with respect to a number of the loading cycles. However, in Thambi, determining an indication of the rate of fatigue comprises determining a rate of change of the loading energy with respect to a number of the loading cycles (See Pg. 5, Paras. 0052 – 0055). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention was made to modify Evans according to the teachings of Thambi for the purpose of, advantageously providing an improved device since this type of device characterizes the life of a physical part or component for various loading conditions with high efficiency (See Thambi, Pg. 2, Para. 0027). Regarding claim 3, Evans fails to disclose that the rate of change of the loading energy is based on smoothed values of the loading energy for the loading of the plurality of cycles. However, in Thambi, the rate of change of the loading energy is based on smoothed values of the loading energy for the loading of the plurality of cycles (See Pg. 5, Paras. 0052 – 0055). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention was made to modify Evans according to the teachings of Thambi for the purpose of, advantageously providing an improved device since this type of device characterizes the life of a physical part or component for various loading conditions with high efficiency (See Thambi, Pg. 2, Para. 0027). Regarding claim 4, in Evans, the indication of rate of fatigue is determined based on initial loading cycles in which the initial loading cycles comprise fewer than one of 10000, 20000 or 50000 loading cycles (See Fig. 4, See Pg. 604, Paras. 1 – 4). Regarding claim 5, Evans fails to disclose that the indication of the rate of
fatigue is determined based on initial loading cycles, in which the number of the loading cycles to provide the initial loading cycles is determined by the rate of change of an initial slope of the loading energy with respect to the number of the loading cycles reaching a threshold value. However, in Thambi, the indication of rate of fatigue is determined based on initial loading cycles, in which the number of the loading cycles to provide the initial loading cycles is determined by the rate of change of an initial slope of the loading energy with respect to the number of the loading cycles reaching a threshold value (See Fig. 4, See Pg. 5, Paras. 0052 – 0055 and Pg. 8, Para. 0105). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention was made to modify Evans according to the teachings of Thambi for the purpose of, advantageously providing an improved device since this type of device characterizes the life of a physical part or component for various loading conditions with high efficiency (See Thambi, Pg. 2, Para. 0027). Regarding claim 6, Evans fails to disclose determining an indication of an initial condition of the hair fiber sample based on a number of maxima in the loading energy with respect to a number of the loading cycles. However, in Thambi, an indication of an initial condition of the fiber sample is determined based on a number of maxima in the loading energy with respect to a number of the loading cycles (See Fig. 4, See Pg. 5, Paras. 0052 – 0055 and Pg. 8, Para. 0105). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention was made to modify Evans according to the teachings of Thambi for the purpose of, advantageously providing an improved device since this type of device characterizes the life of a physical part or component for various loading conditions with high efficiency (See Thambi, Pg. 2, Para. 0027). Evans and Thambi fail to disclose determining an indication of an initial condition of a hair fiber sample based on a number of maxima in the loading energy with respect to a number of the loading cycles. However, Mazza discloses a method and apparatus comprising measuring damping of a fiber material which is a measure of the energy of the material, wherein the fiber material includes human hair (See Pg. 1, Para. 0002 and Pg. 3, Paras. 0035 and 0038).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention was made to modify Evans and Thambi according to the teachings of Mazza for the purpose of, advantageously providing an improved device since this type of device accurately measures flexural damping in fibers (See Mazza, Pg. 2, Para. 0011). Regarding claim 7, Evans fails to disclose that the loading energy of one of the
loading cycles is determined by integrating force/stress over displacement/strain for a loading portion of the one of the loading cycles. However, in Thambi, the loading energy of one of the loading cycles is determined by integrating force over displacement for a loading portion of the one of the loading cycles (See Fig. 4, See Pg. 5, Paras. 0052 – 0055 and Pg. 8, Para. 0105). Therefore, it would have been obvious to one of ordinary skill in the art before
the effective filing date of the claimed invention was made to modify Evans according to the teachings of Thambi for the purpose of, advantageously providing an improved device since this type of device characterizes the life of a physical part or component for various loading conditions with high efficiency (See Thambi, Pg. 2, Para. 0027). Regarding claim 8, Evans fails to disclose that determining the indication of
fatigue based on the loading energy of one of the loading cycles comprises determining by integrating force or stress over displacement or strain of a loading part of the one of the loading cycles.
However, in Thambi, the loading energy of one of the loading cycles is determined by integrating force over displacement for a loading portion of the one of the loading cycles (See Fig. 4, See Pg. 5, Paras. 0052 – 0055 and Pg. 8, Para. 0105). Therefore, it would have been obvious to one of ordinary skill in the art before
the effective filing date of the claimed invention was made to modify Evans according to the teachings of Thambi for the purpose of, advantageously providing an improved device since this type of device characterizes the life of a physical part or component for various loading conditions with high efficiency (See Thambi, Pg. 2, Para. 0027). Regarding claim 9, Evans fails to disclose that determining the indication of fatigue further comprises integrating force or stress over displacement or strain of an unloading part of that the one of the loading cycles to determine the loading energy lost within the one of the loading cycles. However, in Thambi, the loading energy of one of the loading cycles is determined by integrating force over displacement for an unloading portion of the one of the loading cycles to determine the loading energy lost within the one of the loading cycles (See Fig. 4, See Pg. 5, Paras. 0052 – 0055 and Pg. 8, Para. 0105). Therefore, it would have been obvious to one of ordinary skill in the art before
the effective filing date of the claimed invention was made to modify Evans according to the teachings of Thambi for the purpose of, advantageously providing an improved device since this type of device characterizes the life of a physical part or component for various loading conditions with high efficiency (See Thambi, Pg. 2, Para. 0027). Regarding claim 10, Evans fails to disclose halting an automated testing
schedule for a sample in response to the determining that the indication of fatigue meets a pre-determined value. However, in Thambi, an automated testing schedule for a sample is halted in response to the determining that the indication of fatigue meets a pre-determined value (See Pg. 1, Para. 0005). Therefore, it would have been obvious to one of ordinary skill in the art before
the effective filing date of the claimed invention was made to modify Evans according to the teachings of Thambi for the purpose of, advantageously providing an improved device since this type of device characterizes the life of a physical part or component for various loading conditions with high efficiency (See Thambi, Pg. 2, Para. 0027). Regarding claim 11, in Evans, the hair fibre sample comprises human or animal hair fibres (See Pg. 606, Para. 4). Regarding claim 13, Evans fails to disclose computer program code. However, in Thambi, a processor 208 having coding is provided (See Pg. 3, Para. 0035).
Therefore, it would have been obvious to one of ordinary skill in the art before
the effective filing date of the claimed invention was made to modify Evans according to the teachings of Thambi for the purpose of, advantageously providing an improved device since this type of device characterizes the life of a physical part or component for various loading conditions with high efficiency (See Thambi, Pg. 2, Para. 0027).
Regarding claim 14, Evans fails to disclose a controller.
However, in Thambi, one or more processors 208 are provided (See Pg. 3, Para. 0035).
Therefore, it would have been obvious to one of ordinary skill in the art before
the effective filing date of the claimed invention was made to modify Evans according to the teachings of Thambi for the purpose of, advantageously providing an improved device since this type of device characterizes the life of a physical part or component for various loading conditions with high efficiency (See Thambi, Pg. 2, Para. 0027).
Regarding claim 15, in Evans, the indication of rate of fatigue is determined
based on initial loading cycles in which the initial loading cycles comprise fewer than 10000 loading cycles (See Fig. 4, See Pg. 604, Paras. 1 – 4). Regarding claim 16, Evans fails to disclose that the indication of rate of fatigue is determined based on initial loading cycles, in which the number of the loading cycles to provide the initial loading cycles is determined by the rate of change of an initial slope of the loading energy with respect to the number of the loading cycles reaching a threshold value. However, in Thambi, the indication of rate of fatigue is determined based on initial loading cycles, in which the number of the loading cycles to provide the initial loading cycles is determined by the rate of change of an initial slope of the loading energy with respect to the number of the loading cycles reaching a threshold value (See Fig. 4, See Pg. 5, Paras. 0052 – 0055 and Pg. 8, Para. 0105). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention was made to modify Evans according to the teachings of Thambi for the purpose of, advantageously providing an improved device since this type of device characterizes the life of a physical part or component for various loading conditions with high efficiency (See Thambi, Pg. 2, Para. 0027). Regarding claim 17, Evans fails to disclose determining an indication of initial condition of the hair fiber sample based on a number of maxima in the loading energy with respect to a number of the loading cycles; in which determining an indication of rate of fatigue comprises determining a rate of change of the loading energy with respect to the number of the loading cycles; and in which the rate of change of the loading energy is based on smoothed values of the loading energy for the loading cycles. However, in Thambi, an indication of the initial condition of the fiber sample based on a number of maxima in the loading energy with respect to a number of the loading cycles is determined; in which determining an indication of rate of fatigue comprises determining a rate of change of the loading energy with respect to the number of the loading cycles in which the rate of change of the loading energy is based on smoothed values of the loading energy for the loading cycles (See Fig. 4, See Pg. 5, Paras. 0052 – 0055 and Pg. 8, Para. 0105). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention was made to modify Evans according to the teachings of Thambi for the purpose of, advantageously providing an improved device since this type of device characterizes the life of a physical part or component for various loading conditions with high efficiency (See Thambi, Pg. 2, Para. 0027). Evans and Thambi fail to disclose determining an indication of initial condition of the hair fiber sample based on a number of maxima in the loading energy with respect to a number of the loading cycles. However, Mazza discloses a method and apparatus comprising measuring damping of a fiber material which is a measure of the energy of the material, wherein the fiber material includes human hair (See Pg. 1, Para. 0002 and Pg. 3, Paras. 0035 and 0038).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention was made to modify Evans and Thambi according to the teachings of Mazza for the purpose of, advantageously providing an improved device since this type of device accurately measures flexural damping in fibers (See Mazza, Pg. 2, Para. 0011). Regarding claim 18, in Evans, the indication of rate of fatigue is determined based on initial loading cycles in which the initial loading cycles comprise fewer than one of 10000, 20000 or 50000 loading cycles (See Fig. 4, See Pg. 604, Paras. 1 – 4). Regarding claim 19, Evans fails to disclose that the number of the loading cycles to provide the initial loading cycles is determined by the rate of change of an initial slope of the loading energy with respect to the number of the loading cycles reaching a threshold value. However, in Thambi, the number of the loading cycles to provide the initial loading cycles is determined by the rate of change of an initial slope of the loading energy with respect to the number of the loading cycles reaching a threshold value.(See Fig. 4, See Pg. 5, Paras. 0052 – 0055 and Pg. 8, Para. 0105). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention was made to modify Evans according to the teachings of Thambi for the purpose of, advantageously providing an improved device since this type of device characterizes the life of a physical part or component for various loading conditions with high efficiency (See Thambi, Pg. 2, Para. 0027). Regarding claim 20, Evans fails to disclose that determining the indication of
fatigue based on the loading energy of one of the loading cycles comprises determining by integrating force or stress over displacement or strain of a loading part of the one of the loading cycles.
However, in Thambi, the loading energy of one of the loading cycles is determined by integrating force over displacement for a loading portion of the one of the loading cycles (See Fig. 4, See Pg. 5, Paras. 0052 – 0055 and Pg. 8, Para. 0105).
Therefore, it would have been obvious to one of ordinary skill in the art before
the effective filing date of the claimed invention was made to modify Evans according to the teachings of Thambi for the purpose of, advantageously providing an improved device since this type of device characterizes the life of a physical part or component for various loading conditions with high efficiency (See Thambi, Pg. 2, Para. 0027). Regarding claim 21, Evans discloses a method and apparatus comprising receiving fatigue testing data for a fiber sample for a plurality of loading cycles, in which the fatigue testing data comprises force or stress against displacement or strain data (See Fig. 4, See Pg. 604, Paras. 1 – 4), and determining, for at least a subset of the loading cycles, a loading energy based on data from the fatigue testing data (See Figs. 4 and 5, See Pg. 604, Paras. 1 – 4, Pg. 605, Paras. 1 and 2 and Pg. 606, Paras. 1 – 3). Evans fails to disclose determining an indication of fatigue in the fiber sample based on the loading energy of the at least a subset of the loading cycles. However, Thambi discloses an apparatus comprising evaluating components including fibers using fatigue models based on surface strain energy density failure criterion and performing loading cycles on the fibers (See Pg. 3, Para. 0035, Pg. 5, Paras. 0055 – 0056 and 0060 and Pg. 8, Paras. 0104 – 0114).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention was made to modify Evans according to the teachings of Thambi for the purpose of, advantageously providing an improved device since this type of device characterizes the life of a physical part or component for various loading conditions with high efficiency (See Thambi, Pg. 2, Para. 0027). Evans and Thambi fail to disclose determining an indication of fatigue in a hair fiber sample based on the loading energy of the at least a subset of the loading cycles. However, Mazza discloses a method and apparatus comprising measuring damping of a fiber material which is a measure of the energy of the material, wherein the fiber material includes human hair (See Pg. 1, Para. 0002 and Pg. 3, Paras. 0035 and 0038).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention was made to modify Evans and Thambi according to the teachings of Mazza for the purpose of, advantageously providing an improved device since this type of device accurately measures flexural damping in fibers (See Mazza, Pg. 2, Para. 0011). Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Lee (WO2024/132573) discloses an initial condition evaluation for fibre sample. Coenen et al. (11,607,168) discloses a method of assessing hair. Thambi (10,908,055) discloses evaluation of applications using digital image correlation techniques. Fawcett et al. (9,829,419) discloses a method for assessing hair fibers. Park et al. (WO2017057836) disclose a method for measuring elasticity of hair using shape-retaining pressure. Oishi et al. (EP1243914) disclose a method of evaluating degree of hair damage. Miles et al. (2002/0017144) disclose a device and method for fatigue testing of materials. Kawano (5,1709,669) discloses a hair nature measuring instrument. Golding (4,628,742) discloses a tensile strength tester for hair.9. Any inquiry concerning this communication or earlier communications from the examiner should be directed to OCTAVIA HOLLINGTON whose telephone number is (571)272-2176. The examiner can normally be reached Monday-Friday 9am-5pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, John Breene can be reached at 5712724107. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/OCTAVIA HOLLINGTON/Primary Examiner, Art Unit 2855 12/12/25