TAILED ACTION
Specification
The amendment filed 5/26/26 is objected to under 35 U.S.C. 132(a) because it introduces new matter into the disclosure. 35 U.S.C. 132(a) states that no amendment shall introduce new matter into the disclosure of the invention. The added material which is not supported by the original disclosure is as follows:
PNG
media_image1.png
335
530
media_image1.png
Greyscale
Everything underlined is entirely new matter and has zero support in the originally filed disclosure, including at least: “2 mm offset”, “compression seal”, “vertical rise”, “anti-capillary protection” are all language that applicant is attempting to add into the disclosure mid-prosecution which is improper and new matter.
Applicant is required to cancel the new matter in the reply to this Office Action.
Drawings
The replacement drawings were received on 5/26/26, these drawings are objected to.
Replacement Figures 1 and 3 is/are objected to under 35 U.S.C. 132(a) for introducing new matter into the disclosure. 35 U.S.C. 132(a) states that no amendment shall introduce new matter into the disclosure of the invention. The added material which is not supported by the original disclosure is as follows:
PNG
media_image2.png
694
1610
media_image2.png
Greyscale
PNG
media_image3.png
554
1108
media_image3.png
Greyscale
Applicant is required to cancel the new matter in the reply to this Office Action.
Replacement Figures 14 and 18 is/are objected to because they contain cross-sectional views without indicating the plane upon which the sectional views are taken as required by 37 CFR 1.84 (h)(3).
The replacement drawings and original drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the:
“the one or more locks being positioned to engage with the one or more tensioners” of claim 1 (currently the lock (612) is illustrated as the rear of the tensioner in Figure 18 and not as some separate structure that “engages” with the tensioner but it is a part of the tensioner itself, the tensioner just moves up and down based on Figure 18 and the labels provided by applicant)“sensors selected from…heat sensors, time sensors and any combination thereof” of claims 2 and 13;
“one or more protrusions” of claim 2 combined with “projections” and “one or more tensioners” (as required by claims 1 and 2 combined);
“the one or more positioners including one or more projections and sticky materials at the leading edge and a plurality of teeth, bulges, humps, jags…at the leading edge” of claim 3; “the tensioners including one or more protuberances and one or more ingresses and the one or more tensioners including one or more textures and one or more sticky materials” as set forth in claim 5;
“the one or more tensioners including one or more protuberances, but also somehow consisting of knobs, buttons prongs, pegs…and the one or more locks selected from a combination of pins, buttons, and levers” of claim 6;
“the one or more barriers comprise one or more sheets…or projections, or any combination thereof and the one or more raised features” of claim 9;“the one or more impediments being projections, lips, ribs, rims, ridges, shoulders, teeth, channels, dimples, slots, ruts, and any combination thereof in combination with the positioning means being a plurality of projections and the tensioning means being a protuberance” of claim 10;
The features of amended claims 1-2 in combination with the “one or more barriers comprise pull tabs, pouches or any combination thereof” of claim 12.
“the kit including one or more hair tools” of claim 17;
“the brushes, combs, picks, applicators, and combinations” of claim 18.
must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Figure 18 is objected to for conflicting with the other figures and for the reasons outlined in the annotations below; the new hatching makes replacement Figure 18 more confusing. This figure is also objected to for being a cross-sectional view without including all of the elements of the perspective view through which the cross-section must have been taken which is confusing and improper.
PNG
media_image4.png
577
565
media_image4.png
Greyscale
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claim(s) 1-3, 5-6, 8-13 is/are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the enablement requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to enable one skilled in the art to which it pertains, or with which it is most nearly connected, to make and/or use the invention.
Claim 1: this claim requires in the last clause, “one or more locks assisting in locking and unlocking the one or more tensioners, the one or more locks being positioned to engage with the one or more tensioners”; however, based on a review of applicant’s disclosure, the only lock (612) illustrated is shown as the rear of the tensioner itself (see Figure 18) and not as some separate structure that “engages” with the tensioner but rather a part of the tensioner itself. The claim language is confusing and unclear because it appears applicant is trying to claim “a lock” as a structure separate from the “tensioner”, but based on applicant’s figures these appear to be labeled as the same structure. This is a new matter rejection because the limitations directly conflict with applicant’s replacement figures and original figures.
Claims 2 and 13: each of these claims recites a series of “sensors”; however, while the disclosure broadly states in [0023] “The one or more sensing means comprises heat sensors, time sensors, or any combination thereof” and in [0185] “The sensing means may in turn communicate with one or more electronic devices”, no explanation is provided nor illustration of how this possible. The only structure claimed is a flap of material, no conductors of any kind nor any electronics are required by the claims nor any explanation of how one of ordinary skill in the art would incorporate electronics like this into the device nor how they would work while being exposed to hair chemicals. Applicant does not specify any type of particular sensor, nor how a sensor would be attached to a “flap” that has no electric circuitry, cord, battery, power source, processor, etc. but the sensor is somehow still powered and the sensor somehow then communicates with some other electronic device while the entire flap is disclose to be a simple flap of non-conductive plastic with no power source, no solar panel, no wireless card or capability; so how is this possible? This is not how a heat sensor or a time sensor communicating with an electronic device as claimed is understood to work to anyone of ordinary skill in the art. One of ordinary skill in the art would not know how to make this claimed sensing means in combination with the claimed flap. This is an enablement rejection because the disclosure is deficient in describing this feature in such a way that would enable one of ordinary skill in the art to make and/or use the invention as claimed. Applicant can cancel the limitations to overcome the rejection.
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.
Claim(s) 1-3, 5-6, 8-13, and 15-18 is/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 pre-AIA the applicant regards as the invention.
Claim 1: this claim requires in the last clause, “one or more locks assisting in locking and unlocking the one or more tensioners, the one or more locks being positioned to engage with the one or more tensioners”; however, based on a review of applicant’s disclosure, the only lock (612) illustrated forms a rear of the tensioner itself (see hatching in replacement Figure 18) and not some separate structure that “engages” with the tensioner but rather a part of the tensioner. The claim language is confusing and unclear because it appears applicant is trying to claim “a lock” as a structure separate from the “tensioner”, but it is unclear how the back of the tensioner engages with itself as applicant attempts to claim. Clarification or correction is requested.
Claim 2: recites “one or more impediments so as to prevent or reduce contact between the hair composition and the scalp; one or more barriers…one or more protrusions to assist in preventing drips”; however, no “impediment” or “barrier” language appears in the disclosure regarding the flaps. Furthermore, claim 1 now requires a plurality of projections, one or more protuberances, and one or more locks. So what is/are the “protrusions”, “impediments”, or “barriers” being claimed; are they the same as the already recites “projections, protuberances, or locks”? If not, what structure is the language “impediment” and “barrier” supposed to include or exclude? The ambiguity makes it impossible to determine the metes and bounds of the claim(s). Clarification or correction is requested.
Claim 3: this claim depends from claim 1, which was amended to recite “one or more positioners…including a plurality of projections”; however, claim 3 recites “the one or more positioners include a plurality of teeth, bulges, humps…”. What is the difference between “projections” and “teeth” in this context? Applicant fails to illustrate any embodiment with a plurality of projections and a plurality of “teeth, bulges, humps, jags, juts, ridges, any combo thereof,” as required by claim 3 and it is unclear whether more positioners are being claimed or if applicant is trying to claim that the projections and teeth are both forming one positioning means. The metes and bounds of the claims are unclear, it appears applicant is attempting to use two different terms to describe the projections already amended into claim 1, but this is improper and confusing. Clarification or correction is requested.
Claim 5: this claim depends from claim 1, which was amended to require “one or more tensioners…including one or more protuberances”; however, claim 5 requires “the one or more tensioners includes one or more ingresses and one or more textures and one or more sticky materials” without setting forth any structural relationship with the “protuberance” that is part of this “tensioner” nor the “inside face of the single flap” that this protuberance is described as being positioned on which is confusing and unclear as if they are “the tensioner” there must be some kind of structural relationship between the various parts of it. This absence of any structural relationship makes the metes and bounds of the claim unclear. Clarification or correction is requested.
Claim 6: this claim is confusing and appears improper. The claim attempts to recite “the one or more tensioners are selected from the group consisting of…”; however, claim 1 was amended to require the “tensioner….including one or more protuberances” and protuberances are not listed in claim 6. In other words, claim 6 directly conflicts with claim 1 and attempts to remove limitations required by claim 1, which is confusing and improper. Clarification or correction is requested.
Claim 8: this claim recites “each support”; however, claim 1 was amended to require “a support” not multiple. So at the outset, claim 8 fails to clearly refer back to “the support” required by claim 1 making it unclear if these are the same or different and the language “each” makes it unclear if applicant thinks claim 1 requires more than one and if not, is claim 8 attempting to require more than one with the language “each”? As outlined above, the metes and bounds of the claim are unclear. Clarification or correction is requested.
Claim 9: this claim recites “the one or more barriers comprise one or more sheets…projections…or any combination thereof”; however, this language is confusing and unclear because preceding claims 1 and 2 already require “a plurality of projections” forming the “one or more positioning means” so are these the same projections or different? How many structures is applicant actually trying to claim? Clarification or correction is requested.
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(s) 6 and 16 is/are 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 6: this claim is confusing and appears to be of improper dependent form. The claim attempts to recite “the one or more tensioners are selected from the group consisting of…”; however, claim 1 now requires the “tensioner….including one or more protuberances” and protuberances are not listed in claim 6. In other words, claim 6 directly conflicts with claim 1 and attempts to remove limitations required by claim 1, which is confusing and improper because all dependent claims must add limitations to the preceding claim and cannot remove preceding limitations. This claim is of improper dependent form.
Claim 16: this claim recites “a kit comprising the device of claim 1”. This is by definition not further limiting and is of improper dependent form because no additional limitations are added by just the word “kit”.
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 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) 1-3, 5-6, 8-13, and 15-18, as best understood, is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Wistrand (US 5076299).
Regarding the claimed invention being “to facilitate contact between a section of hair…and helps protect the scalp and surrounding hair…when in use the flap is folded on itself and sandwiches the hair inside” as recited in the preamble of claim 1, the applicant is advised that a recitation of the intended use of an invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. In this case, the patented structure of Wistrand was considered capable of performing the cited intended use.
Claim 1: Wistrand discloses a device for curling hair that can include applying a composition to the hair, as well (Col 1, 10-30), the device comprising: a “flap component” (see Figs 9-12); wherein the flap comprises: a leading (see annotations) that is arcuate and supported via a support (see annotations) on the outside face of the flap (see annotations); a plurality of projections, or teeth, (see annotations) at, or proximate to, the leading edge (see annotations); a protuberance including an extending flange (see annotations) on the inside face of the flap forms a tensioner (see annotations); the device also includes one or more locks (see annotations) that engage with the flange of the tensioner (see annotations) to lock and unlock the device, or the tensioner (see annotations).
PNG
media_image5.png
727
817
media_image5.png
Greyscale
Claim 2: the leading edge folds and is therefore deformable (see Figs 9-12).
Claim 3: the projections are teeth (see annotations).
Claim 5: the tensioner includes multiple ingresses (see annotations).
Claim 6: the tensioner is a knob extending from a flange (see annotations).
Claim 8: the support is formed as a series of arms (see annotations).
Claims 9-13: none of these limitations are required because of the language “or” in the preceding claims and because claim 2 is met with the leading edge being deformable.
Claim 15: the flap is made of plastic (Col 1, 50-60).
Claim 16-18: The device can come in a kit of multiple devices (see Fig 13) and the patent itself is “instructions for use”.
Response to Arguments
Applicant’s arguments filed 5/26/26 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Jennifer Gill whose telephone number is (571)270-1797. The examiner can normally be reached on Monday-Thursday 9:00am-5:00pm.
If attempts to reach the examiner by telephone are unsuccessful, please contact the examiner’s supervisor, Eric Rosen, can be reached on 571-270-7855. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/JENNIFER GILL/
Examiner, Art Unit 3772
/NICHOLAS D LUCCHESI/Primary Examiner, Art Unit 3772
