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 .
DETAILED ACTION
Status of Claims
Claim(s) 11-30 have been examined.
Claim(s) 1-10 have been canceled.
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 11-30 are rejected under 35 U.S.C. 101 because the claims recite a judicial exception which is not integrated into a practical application and the claims lack an inventive concept.
Step 1 is the first inquiry into eligibility analysis and asks whether the claims are directed to a statutory category. In this instance, the answer must be in the affirmative because they recite a method and system.
Step 2A prong 1 is the next step in the eligibility analyses and asks whether the claimed invention recites a judicial exception. In this instance, the claims recite the following limitations which comprise the abstract idea:
receiving hair product data for a plurality of hair products, the hair product data including at least one of an identifier, one or more chemical formulas, or one or more expected results for each of the plurality of hair products;
receiving, via a user interface of a user computing device, a request for a hair product, the request including at least a water hardness level and one or more desired results;
determining one or more hair products based on at least the water hardness level and one or more desired results;
determining one or more ingredients to add to the one or more hair products based on at least the water hardness level and one or more desired results.
This is an abstract idea because it is a certain method of organizing human activity because it involves commercial or legal interactions such as marketing and sales activities and/or behaviors.
Step 2A prong 2 is the next step in the eligibility analyses and looks at whether the abstract idea is integrated into a practical application. This requires an additional element or combination of additional elements in the claims to apply, rely on, or use the judicial exception in a manner that imposes a meaningful limit on the judicial exception, such that the claim is more than a drafting effort designed to monopolize the exception.
In this instance, the claims recite the additional elements such as:
a processor and memory (claim 21)
However, these elements do not amount to an improvement in the functioning of a computer or any other technology or technical field, apply the judicial exception with, or by use of, a particular machine, or apply or use the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception.
In addition, the recitations of a processor and memory are recited at a high level of generality and also do not amount to an improvement in the functioning of a computer or any other technology or technical field, apply the judicial exception with, or by use of, a particular machine, or apply or use the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception.
The dependent claims also fail to recite elements which amount to an improvement in the functioning of a computer or any other technology or technical field, apply the judicial exception with, or by use of, a particular machine, or apply or use the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception. For example, claims 12-20 are directed to the abstract idea itself. In addition, even if they were not directed to the abstract idea, they do not amount to an integration according to any one of the considerations above.
Step 2B is the next step in the eligibility analyses and evaluates whether the claims recite additional elements that amount to an inventive concept (i.e., “significantly more”) than the recited judicial exception. According to Office procedure, revised Step 2A overlaps with Step 2B, and thus, many of the considerations need not be re-evaluated in Step 2B because the answer will be the same.
In Step 2A, several additional elements were identified as additional limitations:
a processor and memory (claim 21)
These additional limitations, including the limitations in the dependent claims, do not amount to an inventive concept because they are recited at a high level of generality and also do not amount to an improvement in the functioning of a computer or any other technology or technical field, apply the judicial exception with, or by use of, a particular machine, or apply or use the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception.
In addition, they were already analyzed under Step 2A and did not amount to a practical application of the abstract idea.
Therefore, the claims lack one or more limitations which amount to an inventive concept in the claims.
For these reasons, the claims are rejected under 35 U.S.C. 101.
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 11-15, 18, 20-25, 28, 30 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-13 of U.S. Patent No. 11,954,720. Although the claims at issue are not identical, they are not patentably distinct from each other because instant claim(s) 11-15, 18, 20-25, 28, 30 fully “read-on” or are anticipated by reference claim(s) 1-13 of U.S. Patent No. 11,954,720. This is a non-statutory, obviousness-type Double Patenting rejection with an anticipation analysis. See MPEP 804(II)(B)(1).
Claims 11-14, 21-24 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-6 of U.S. Patent No. 10,572,927. Although the claims at issue are not identical, they are not patentably distinct from each other because instant claim(s) 11-14, 21-24 fully “read-on” or are anticipated by reference claim(s) 1-6 of U.S. Patent No. 10,572,927. This is a non-statutory, obviousness-type Double Patenting rejection with an anticipation analysis. See MPEP 804(II)(B)(1).
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.
Claim(s) 11-14 and 21-24 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Donovan (US 2003/0014324).
Referring to Claim 11, Donovan teaches a computer-implemented method for generating a custom hair product, the method comprising:
receiving hair product data for a plurality of hair products, the hair product data including at least one of an identifier, one or more chemical formulas, or one or more expected results for each of the plurality of hair products (see Donovan ¶0038, a data repository storing product information organized by consumer profile categories, including hair care products such as shampoo, conditioner, clarifying shampoo, hair spray, etc; ¶0064, the product formulations constitute chemical formulas and each product in the repository is identifiable; ¶¶0042-43, the consumer profiling models and data correlate products with consumer outcomes constituting expected results);
receiving, via a user interface of a user computing device, a request for a hair product, the request including at least a water hardness level and one or more desired results (see Donovan ¶0038, receiving consumer input via input interfaces and the consumer profiling data includes the desired look of the hair; ¶0046, test kits are provided to consumers that include environmental tests such as water hardness, pH, etc., which effect the performance of personal care products and the consumers provide these results to the system);
determining one or more hair products based on at least the water hardness level and one or more desired results (see Donovan ¶¶0042-43, the consumer is recommended products based on their profile which is compiled based on the test kit data such as the water hardness);
determining one or more ingredients to add to the one or more hair products based on at least the water hardness level and one or more desired results (see Donovan ¶¶0039,44, the product can be further customized through specification options including addition of one or more supplements to the products which may include bio botanicals, organic products, vitamins, and minerals; the product formulation is customized to correspond to the consumer’s physiological and environmental conditions ¶0064 which explicitly includes water hardness ¶0043).
Referring to Claim 12, Donovan teaches the computer-implemented method of claim 11, further comprising providing use instructions for using the one or more hair care products with the added one or more ingredients (see Donovan ¶0097).
Referring to Claim 13, Donovan teaches the computer-implemented method of claim 11, further comprising providing ordering instructions for ordering the one or more hair care products with the added one or more ingredients (see Donovan ¶0065).
Referring to Claim 14, Donovan teaches the computer-implemented method of claim 11, wherein the request further includes water filtration information (see Donovan ¶0046, water hardness and water pH is a type of water filtration information).
Referring to Claims 21-24, these claims are similar to claims 11-14 and therefore rejected under the same reasons and rationale.
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.
Claim(s) 15-17, 19, 25-27, 29 is/are rejected under 35 U.S.C. 103 as being unpatentable over Donovan (US 2003/0014324) in view of Reference V (see PTO-892).
Referring to Claim 15, Donovan teaches the computer-implemented method of claim 11. Donovan does not teach wherein on a condition the water hardness level is high, the one or more ingredients include at least one water-softening chemical. However, Reference V teaches this (see Reference V, some Americans have extremely hard water which causes problems for washing their hair and so citric acid can be added, and citric acid is a water-softening chemical). It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to combine these references because the results would be predictable. Specifically, Donovan would continue to teach determining one or more hair care products and ingredients to add to the hair care products based on water hardness, except that now one of those ingredients would be citric-acid as taught by Reference V. This is a predictable result of the combination.
Referring to Claim 16, Donovan teaches the computer-implemented method of claim 15, wherein the one or more water softening chemicals include at least one of magnesium-removing chemicals or sodium carbonate (see Reference V, citric acid is a magnesium-removing chemical).
Referring to Claim 17, Donovan teaches the computer-implemented method of claim 15, wherein the at least one water-softening chemical comprises at least one of sodium laureth sulfate, sodium lauryl sulfate, or a chelation agent (see Reference V, citric acid is a chelation agent).
Referring to Claim 19, Donovan teaches the computer-implemented method of claim 18, wherein the acid comprises citric acid or salicylic acid (see Reference V, citric acid).
Referring to Claims 25-27, 29, these claims are similar to claims 15-17 and 19 and therefore rejected under the same reasons and rationale.
Claim(s) 18, 20, 28, 30 is/are rejected under 35 U.S.C. 103 as being unpatentable over Donovan (US 2003/0014324) in view of Reference W (see PTO-892).
Referring to Claim 18, Donovan teaches the computer-implemented method of claim 11, but does not teach wherein the one or more ingredients comprises an acid configured to balance a pH of the one or more hair products. However, Reference W teaches this (see Reference V, adding citric acid to get the pH to about 7). It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to combine these references because the results would be predictable. Specifically, Donovan would continue to teach determining one or more hair care products and ingredients to add to the hair care products based on water hardness, except that now one of those ingredients would be an acid to balance a pH of the hair care products. This is a predictable result of the combination.
Referring to Claim 20, Donovan teaches the computer-implemented method of claim 11, but does not teach wherein the one or more ingredients include at least one conditioning substance. However, Reference W teaches this (see Reference V, adding coconut oil). It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to combine these references because the results would be predictable. Specifically, Donovan would continue to teach determining one or more hair care products and ingredients to add to the hair care products based on water hardness, except that now one of those ingredients would a conditioning substance. This is a predictable result of the combination.
Referring to Claims 28 and 30, these claims are similar to claims 18 and 20 and therefore rejected under the same reasons and rationale.
Remarks
Additional prior art relevant to the application but not relied upon includes:
Reference U (see PTO-892) teaches determining the amount of soap or shampoo based on water hardness.
Polwart (US 2014/0154789) teaches a testing apparatus to test the ph and hardness of water.
Pressswalla (US 2010/0088148) teaches aa system for recommending products for a shipping interest.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MATTHEW E ZIMMERMAN whose telephone number is (571)270-5278. The examiner can normally be reached 8-4pm M-T, 8-12pm W.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jeff Smith can be reached at (571)272-6763. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MATTHEW E ZIMMERMAN/Primary Examiner, Art Unit 3688