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 Status
Claims 1-10 are currently pending.
Claims 1-10 are examined on the merits herein.
Priority
Acknowledgment is made of applicant’s claim for foreign priority under 35 U.S.C. 119 (a)-(d), in application No. IT102023000002838, filed on 02/20/2023. The certified copy has been filed.
Should applicant desire to obtain the benefit of foreign priority under 35 U.S.C. 119(a)-(d) prior to declaration of an interference, a certified English translation of the foreign application must be submitted in reply to this action. 37 CFR 41.154(b) and 41.202(e).
Failure to provide a certified translation may result in no benefit being accorded for the non-English application.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 02/20/2024. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
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 2 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 2 recites all the limitations of independent claim 1 but fails to specify further limitation of the subject matter claimed. More specifically, claim 1 recites ozone dosage ranging between ≥ 0.01 and ≤ 2000 mg/h, excluding the ozone dosage range between 180 and 400 mg/h while the dependent claim 2 recites ozone dosage range of ≥ 0.05 mg/h and ≤ 2000 mg/h which reads the excluded ozone dosage range of claim 1 and thus, expands the scope of the claim 1 . 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.
Claim Rejections - 35 USC § 102
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 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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-6, and 9 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Sakurai (FR3010305A1, published on 2017-03-17) .
Claim 1,
Cosmetic hair care method comprising the following steps:
a) conducting a technical hair treatment, comprising at least the sub-phases of
al) applying to the hair one or more compositions functional to the technical treatment,
a2) leaving one or more compositions functional to the technical treatment in place on the hair,
a3) washing the hair to remove one or more compositions functional to the technical treatment,
b) applying ozone to damp hair for a period of time> 0.5 and< 21 minutes, at an ozone dosage ranging between ≥0.01 and ≤2000 mg/h, excluding the ozone dosage ranging between 180 and 400 mg/h.
Sakurai teaches a technical hair treatment (Paragraph [0006], claim 1) characterized by applying perming agent to the hair (compositions functional to the technical treatment, Paragraph [0007], claim 1). The recitation “leaving one…on the hair” is inherent step after applying the functional composition. Sakurai also teaches rinsing of the perming agent (Paragraph [0007], claim 1) and spraying ozone to the hair (Paragraph [0007], claim 1). The moisture of hair is maintained while ozone is sprayed is read as damp hair of claim 1b (paragraph [0009], claim 3). Sakurai further teaches using ozone dosage of 1 ppm and prescribed time of 3 to 15 minutes for reconstructing disulfide bridge (Paragraph [0019], claim 2). As taught by Sakurai, 1 ppm of ozone when sprayed for 15 minutes assuming flow rate of 1 L/min, the dosage of ozone is 4 mg/h which anticipates the dosage range of claim 1b (Paragraph [0019], claim 2).
Claim 2,
Cosmetic method according to claim 1, in which the ozone dosage is ≥ 0.05 mg/h and ≤2000 mg/h.
Sakurai teaches ozone dosage of 4 mg/h which is anticipates the ozone dosage range of ≥ 0.05 mg/h and ≤2000 mg/h (Paragraph [0019], claim 2).
Claim 3,
Cosmetic method according to claim 1, wherein the step of applying ozone to damp hair (b) occurs at the conclusion of the step of conducting a technical treatment on the hair (a).
Sakurai teaches cosmetic hair treatment method according to claim 1, wherein the ozone is sprayed to hair after conducting a technical treatment on hair (Paragraph [0007], claim 1).
Claims 4 and 5,
Sakurai teaches permanent waving treatment (Paragraph [0048]) and bleaching (Paragraph [0022]).
Claim 6,
Cosmetic method according to claim 1, wherein the step of applying ozone to the hair (b) comprises the following sub-steps:
b 1) preparing ozone in gaseous form;
b2) preparing water in liquid form;
b3) dispensing ozone in gaseous form on the hair and, at the same time, spray water in liquid form on damp hair;
or bl') preparing ozone in gaseous form;
b2') dispensing ozone in gaseous form on damp hair.
Sakurai teaches all the limitations of claim 1 and further teaches use of ozone in gaseous form (Paragraph [0030]) which reads on preparing ozone in gaseous form of claim 6b1’ and spraying ozone in gaseous form on hair while moisture of the hair is maintained (claim 3), which reads on damp hair of claim 6b2’.
Claim 9,
A cosmetic method according to claim 1, wherein the step of applying ozone to the hair (b) is performed by a means selected from the group consisting of: a hair brush, a hair comb, a hair dryer (with or without diffuser), a hair straightener, a hair washer, a hair cap, a hair helmet, a nebulizer.
Sakurai teaches all the limitations of claim 1 and further teaches applying ozone by a means of a hair helmet (Paragraph [0025].
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: (FP 7.20.aia)
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 1-6, 7, 8, and 9 are rejected under 35 U.S.C. 103 as obvious over Sakurai (FR3010305A1, published on 2017-03-17), in view of Akinobu (JP2018038944 A, published on 2018/03/15). (FP 7.21.aia)
Sakurai et al., throughout the reference, teach using ozone to treat hair as discussed supra.
Claim 7,
Cosmetic method according to claim 1, wherein the step of applying ozone to the hair (b) comprises the following sub-steps:
bl") preparing ozone in gaseous form
b2") preparing water in liquid form,
b3") solubilising ozone in gaseous form in water to obtain humidified ozone, and
b4") applying humidified ozone to damp hair.
Sakurai teaches all the limitations of claim 1, and further teaches preparing ozone in gaseous form (Paragraph [0030]) and applying ozone to damp hair (claim 3), moisture of the hair is maintained reads on damp hair of claim 7b4”. The recitation “water in liquid form” is inherent property of water.
Claim 8,
Cosmetic method according to claim 7, wherein the ozone titre in the humidified
ozone is comprised between 350 mg and 600 mg per litre of humidified ozone.
Sakurai does not explicitly teach solubilizing ozone in gaseous form in water to obtain humidified ozone and applying humidified ozone to damp hair as recited in claim 7 and it does not teach the ozone titre of claim 8.
However, Akinobu discloses the apparatus to prepare ozone in gaseous form and dissolving gaseous ozone in the water to obtain ozone water (Paragraph [0011]), ozone water reads on humidified ozone of claim 7b3".
Akinobu further teaches that when the apparatus generates ozone at 20 to 60 ppm and flow rate of the water is applied at 10 to 20 L/min, the concentration of ozone in humidified ozone is 0.5 to 3 ppm (Paragraph [0041], 1 ppm reads to 1 mg/L).
It would have been obvious to person of ordinary skills in the art before the effective filing date of the claimed invention to obtain humidified ozone using apparatus disclosed by Akinobu to practice the steps of hair treatment disclosed by Sakurai. Akinobu discloses the intended use of the humidified ozone for hair treatment in the hair salon settings (paragraph [0053]). Person of ordinary skills in the art would have been motivated to use the humidified ozone taught by Akinobu, on damp hair after applying technical treatment and rinsing hair as taught by Sakurai to enhance the technical treatment. Therefore, it would be obvious for a person skilled in the art to combine teachings of Akinobu and Sakuri to achieve the predictable results of claim 7 of the instant application. It would have been obvious for a person of ordinary skills in the art to try different gaseous ozone concentration and water flow to obtain ozone titer in humidified ozone between 350 and 600 mg/L of humidified ozone claimed in claim 8 of the instant application.
Claims 1-6, 9 and 10 are rejected under 35 U.S.C. 103 as obvious over Sakurai (FR3010305A1, published on 2017-03-17), in view of Montanari (EP3597272A1, effectively filed on 2018/07/17). (FP 7.21.aia)
Sakurai et al., throughout the reference, teach using ozone to treat hair as discussed supra.
Claim 10,
Cosmetic method according to claim 1, wherein the step of applying ozone to the hair (b) includes a dispensing flow rate comprised between 0.001 and 10 L/min.
Sakurai, throughout the reference, teaches using ozone to treat hair as discussed in claim 1, but fails to explicitly disclose the step of applying ozone to the hair including a dispensing flow rate comprised between 0.001 and 10 L/min.
Montanari discloses cosmetic hair treatment method comprising technical treatment followed by applying gaseous oxygen (claim 1), wherein the step of applying gaseous oxygen to the hair includes dispensing flow rate comprised between 0.1 to 20 L/min. (Claim 8)
It would have been obvious to person of ordinary skills in the art before the effective filing date of the claimed to try dispensing flow rate for ozone in a range of 0.1 to 20 L/min with the cosmetic hair treatment method disclosed by Sakurai to obtain predictable result of blowing gaseous treatment through hair with at the appropriate and known flow rate.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-10 are rejected on the ground of non-statutory double patenting as being unpatentable over claims 1-10 of U.S. Patent application No 18/689,987 filed by the same inventor and joint inventors. Although the claims at issue are not identical, they are not patentably distinct from each other.
Claims 1-3 are directed to the same invention as that of claim 1 of reference patent application. The claimed range of period of time (> 0.5 and < 21 minutes) for applying ozone in claim 1 would have been obvious over the range (3 to 20 minutes) disclosed in claim 1 of the reference patent application. The claimed range (between ≥ 0.05 mg/h and ≤ 2000 mg/h) for the ozone dosage of claim 2 would have been obvious over the ozone dosage range (180 mg/h to 400 mg/h) disclosed in claim 1 of the reference application. Therefore, claims 1 and 2 of examined application are identical in scope to claim 1 of the reference application.
Claims 4 and 5 are directed to the same invention as that of claims 2 and 3 respectively of reference patent application.
Claim 6-9 are directed to the same invention as that of claims 6-9 of reference patent application.
Claim 10 is directed to the same invention as that of claim 10 of reference patent application. The ozone dispensing flow rate (between 0.001 and 10 L/min) in the claim 10 would have been obvious over the ozone dispensing flow rate (between 1 and 5 L/min) disclosed in claim 10 of the reference application. Therefore, the claim 10 of the examined application is identical in scope to claim 10 of the reference application.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to VIJAY DINESHBHAI PATEL whose telephone number is (571)272-5188. The examiner can normally be reached M - F 8-5 EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sue X Liu can be reached at (571) 272-5539. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/VIJAY D PATEL/ Examiner, Art Unit 1616
/SUE X LIU/ Supervisory Patent Examiner, Art Unit 1616