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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 03/06/2026 has been entered.
Response to Arguments
The amendment filled on 03/06/2026 has been entered. Claims 1-8 and 11-23 are remain pending in the application.
Applicant's arguments under 35 U.S.C § 103:
a. In pages 7-8, applicant argues that “Muschik describes a sample holder comprising a first branch 7 with a through-hole receiving an optical device 11 of a strand of hair analysis apparatus (see column 4, lines 19-20). As acknowledged by the Examiner, Muschik fails to disclose that: a) the through orifice of the first arm is intended to removably receive an optic of a hair strand analysis device, b) the first arm comprises attachment means intended to removably attach the optic of the analysis device to the outer face of the first arm, and c) the outer face of the first arm comprises a housing for accommodating the optic of the analysis device arranged around the through orifice and that the accommodating housing is a trough arranged in the outer face of the first arm and having a bottom, the through orifice being arranged through the bottom of the trough. Sabry describes an optical measurement system 3600 for biological analysis comprising a support 3602 for receiving a user's fingertip and a calibration pin 3604 that can be removably received (in particular by a magnetic attachment system) in the support 3602 (paragraph [0178]). However, Muschik and Sabry are concerned with two different technical fields, and a person of ordinary skill in the art would not have combined them. In other words, person of ordinary skill in the art would not have looked to Sabry to modify Muschik. Indeed, Muschik specifically relates to hair analysis, while Sabry is concerned with the spectral measurement of biological tissues (skin, finger) for biochemical analysis. In particular, a person of ordinary skill in the art of hair analysis would have had no reason to seek a solution in a skin measurement device and therefore to consult Sabry. Furthermore, even if a person of ordinary skill in the art would have tried to combine Muschik and Sabry ( even though nothing would have prompted such person to do so), the person of ordinary skill in the art would not in an obvious way implement the features a) and b ). Indeed, Sabry does not disclose the features a) and b ), since Sabry does not describe a removable optical device. Moreover, such modification of the holder of Muschik would go against the teachings of Muschik. Indeed, a removable detachment of the optic would necessarily compromise the light tightness and reproducibility that Muschik considers essential. Also, since such a modification as suggested in the Office Action would defeat the purposes of Muschik and render Muschik unsatisfactory or inoperative for its intended purposes, such a modification is non-obvious. Please see MPEP 2143.01, In re Gordon 221 USPQ 1125(Fed. Cir. 1984), In re Schulpen, 157 USPQ 52 (CCPA 1963) andExParte Rosenfeld, 130 USPQ 113 (Board of Appeals, 1961).
b. In page 9, applicant argues that "If the proposed modification or combination of the prior art would change the principle of operation of the prior art invention being modified, then the teachings of the references are not sufficient to render the claims prima facie obvious." In re Ratti, 270 F .2d 810 (CCPA 1959). Furthermore, even if a person of ordinary skill in the art would have implemented the features a) and b) to the holder of Muschik, this holder would not have the feature c), since neither Muschik nor Sabry discloses the feature c) as acknowledged by the Examiner. Accordingly, the Examiner relied upon Nasser for a disclosure of these features. Nassar describes a biological sample viewing device 10 comprising a housing 12 defining a sample receiving chamber and a viewing window 16 receiving an optical system 224 (lens) ([0055]). However, Nassar relates to a biological sample viewing device, thus in a different technical field, and furthermore presents a completely different structure from the sample holder described in Muschik. A person of ordinary skill in the art would therefore have had no incentive or motivation to apply the teachings of Nassar to the combination of Muschik and Sabry (which is already nonobvious in itself as explained above).”
c. In pages 9-11, It appears that applicant’s arguments regarding the dependent claim 16 is that since they depend from independent claim 1 and the combination of the references fails to teach the independent claim 1 as argued, the references also fails to teach the dependent claims. Such as “ Claim 16 is rejected under 35 U.S.C. § 103 as being unpatentable over Muschik in view of Sabry and further in view of US Patent Application Publication 2018/0192764 Al to Miklatzky et al. (hereafter also cited as "Miklatzky". The cited references do not render obvious claim 16. The above discussions of Muschik and Sabry are incorporated herein by reference in the spirit of linguistic brevity. The Examiner stated that Muschik is silent about wherein the hair strand comprises a plurality of hairs, a part of each hair being housed in the receiving housing, said parts of the hairs being stretched and aligned substantially parallel with one another in the receiving housing. Accordingly, the Examiner relied upon Miklatzky for a disclosure of these features. However, Miklatzky fails to overcome the above discussed deficiencies of Muschik and Sabry with respect to rendering unpatentable independent claim. Therefore, claim 16 is patentable for at least those reasons as to why independent claim 1 is patentable.”.
Examiner response to arguments under 35 U.S.C § 103:
In response to applicant’s arguments mention above regarding (a-b), the examiner respectfully disagrees since Applicant arguments are focused in “Sabry does not describe a) the through orifice of the first arm is intended to removably receive an optic of a hair strand analysis device, b) the first arm comprises attachment means intended to removably attach the optic of the analysis device to the outer face of the first arm,”, even though the first reference “MUSCHIK” in a 103 rejection previously discloses “a sample holder for supporting a hair strand (Fig. 3 elements 6 + 7), Page 4, lines 20-29]), the sampler holder (Fig. 3 elements 6 + 7) comprising/receiving an optic (Fig. 3 “photomultiplier element 9 and/or the focusing device”) of the hair strand analysis device (Fig. 3 element 15) since “element 9 and/or the focusing device” are connected/attached to elements 6 + 7), the first arm (element 6 of Fig. 3) comprising an attached optic “photomultiplier element 9 and/or the focusing device” of the analysis device (Fig. 3 element 15) attached to the outer face of the first arm (element 6) as shown in Fig. 3, [Page 4, lines 20-38]), the first arm comprises a through orifice arranged facing the housing for receiving the hair strand, (as shown in Fig. 3 element 6 comprise an aperture where the photo multiplier element 9 is connected that is facing elements 1 + 4, [ page 4, lines 30-38]) and configured to receive an optic (Fig. 3 element 9) of a hair strand analysis device (Fig. 3 element 15), (the first arm element 6 is configured to receive element 9, also a focusing device can optionally be arrange between element 1 and 9, [page 4, element 30-38]. Therefore, the second reference Sabry used in the previous and current rejection to teach “the sampler holder comprising the attachment means” configured to removably attach the optic of the analysis device to the sampler holder (the “sampler holder 2902 + 2904 comprise an “attachment means” magnetic structure 2904 that perform the function to attach/remove the optical window “optic” of the analysis device element 2900 as shown in Fig. 29, to the sampler holder 2902 + 2904, [0148]). Also, Sabry in the 103 rejection is used to teach a function of removably received an optic since the first reference discloses the structure of the through orifice of the first arm as disclosed above claimed. Consequently, Sabry also teaches the sampler holder configured to removably receive an optic of an analysis device, even though this limitation is disclosed by the first reference Muschik the sampler holder (Fig. 3 elements 6 +7) configured to removably receive an optic (Fig. 3 element 9) of a hair strand analysis device, (Fig. 3 element 15), (the first arm element 6 is configured to receive element 9, also a focusing device can optionally be arrange between element 1 and 9, [page 4, element 30-38]).
Therefore, the modified device of Muschik in view of Sabry teaches: a) the through orifice of the first arm is configured to removably receive an optic of a hair strand analysis device, since Muschik teaches (as shown in Fig. 3 element 6 “first arm” comprises an aperture where the photo multiplier element 9 “optic” is connected/attached/received in the aperture, [page 4, lines 30-38]) and Sabry teaches (the “sampler holder 2902 + 2904 comprise an “attachment means” magnetic structure 2904 that perform the function to attach/remove the optical window “optic” of the analysis device element 2900 as shown in Fig. 29, to the sampler holder 2902 + 2904, Therefore the optic can be removably receive by the sample holder, [0148]). Also, in arguendo that the modified device of Muschik still lack to teach a through orifice configured to removably receive an optic, Nassar related optical measurement devices and thus from the same field of endeavor teaches a through orifice configured to removably receive an optic (as shown in Fig. 2 the through orifice is configured to removably received element 224 and/or element 740 as shown in Fig. 7A, [0054, 0065, 0079]).
In regard to point b) “the first arm comprises attachment means configured to removably attach the optic of the analysis device to the outer face of the first arm”, Muschik, teaches the first arm (Fig. 3 element 6) comprises attached optic (“photomultiplier element 9 and/or the focusing device” ) of the analysis device (Fig. 3 element 15) to the outer face of the first arm, as shown in Fig. 3 and Sabry teaches the sampler holder comprising attachment means configured to removably attach the optic of the analysis device to the sampler holder, (the “sampler holder 2902 + 2904 comprise an “attachment means” magnetic structure 2904 that perform the function to attach and remove the “optic” optical window of the analysis device element 2900 as shown in Fig. 29, to the sampler holder, [0148]).
Also, the examiner submits that 2nd reference Sabry does not change the principle of operation of the primary reference, Muschik or renders the reference inoperable for its intended purpose. See MPEP § 2143.01. The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference.... Rather, the test is what the combined teachings of those references would have suggested to those of ordinary skill in the art.” In re Keller, 642 F.2d 413, 425, 208 USPQ 871, 881 (CCPA 1981). See also In re Sneed, 710 F.2d 1544, 1550, 218 USPQ 385, 389 (Fed. Cir. 1983). It is not necessary that the inventions of the references be physically combinable to render obvious the invention under review.”; and In re Nievelt, 482 F.2d 965, 179 USPQ 224, 226 (CCPA 1973). Combining the teachings of references does not involve an ability to combine their specific structures. Thus, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Additionally, the reason or motivation to modify the reference may often suggest what the inventor has done, but for a different purpose or to solve a different problem. It is not necessary that the prior art suggest the combination to achieve the same advantage or result discovered by applicant. See, e.g., In re Kahn, 441 F.3d 977, 987, 78 USPQ2d 1329, 1336 (Fed. Cir. 2006) (motivation question arises in the context of the general problem confronting the inventor rather than the specific problem solved by the invention); Cross Med. Prods., Inc. v. Medtronic Sofamor Danek, Inc., 424 F.3d 1293, 1323, 76 USPQ2d 1662, 1685 (Fed. Cir. 2005) ("One of ordinary skill in the art need not see the identical problem addressed in a prior art reference to be motivated to apply its teachings."); In re Lintner, 458 F.2d 1013, 173 USPQ 560 (CCPA 1972). As well.
Moreover, even though the chamber of the sampler holder of Muschik is light-tight, Muschik do not teach or suggest that the light thingness of the chamber may or could be affected by a removable attachment and/or preclude the possibility of a removable attachment. Additionally, Applicant arguments about the optic as based on element 11 of Fig. 3 even though the rejection of the element “optic” is based on element 9 as cited in the previous office action. Regarding “the importance of the reproducibility of measurements”, the examiner respectfully disagrees since Muschik do not teach or suggest (in the cited section [(see page 2, lines 13-19 of the English translation) that the reproducibility of measurements may or could be affected by a removable attachment and/or preclude the possibility of a removable attachment. Moreover, the examiner submits that 2nd reference Sabry does not change the principle of operation of the primary reference, Muschik or renders the reference inoperable for its intended purpose. See MPEP § 2143.01. The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference.... Rather, the test is what the combined teachings of those references would have suggested to those of ordinary skill in the art.” In re Keller, 642 F.2d 413, 425, 208 USPQ 871, 881 (CCPA 1981). See also In re Sneed, 710 F.2d 1544, 1550, 218 USPQ 385, 389 (Fed. Cir. 1983). It is not necessary that the inventions of the references be physically combinable to render obvious the invention under review.”; and In re Nievelt, 482 F.2d 965, 179 USPQ 224, 226 (CCPA 1973). Combining the teachings of references does not involve an ability to combine their specific structures. Thus, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
In regard “Nassar relates to a biological sample viewing device, thus in a different technical field, and furthermore presents a completely different structure from the sample holder described in Muschik”, the examiner respectfully disagrees since Nassar is related to optical measurement devices from the same field of endeavor as Muschik.
Also, the examiner submits that 3nd reference Nassar does not change the principle of operation of the primary reference, Muschik or renders the reference inoperable for its intended purpose. See MPEP § 2143.01. The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference.... Rather, the test is what the combined teachings of those references would have suggested to those of ordinary skill in the art.” In re Keller, 642 F.2d 413, 425, 208 USPQ 871, 881 (CCPA 1981). See also In re Sneed, 710 F.2d 1544, 1550, 218 USPQ 385, 389 (Fed. Cir. 1983). It is not necessary that the inventions of the references be physically combinable to render obvious the invention under review.” ; and In re Nievelt, 482 F.2d 965, 179 USPQ 224, 226 (CCPA 1973). Combining the teachings of references does not involve an ability to combine their specific structures. Thus, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Additionally, the reason or motivation to modify the reference may often suggest what the inventor has done, but for a different purpose or to solve a different problem. It is not necessary that the prior art suggest the combination to achieve the same advantage or result discovered by applicant. See, e.g., In re Kahn, 441 F.3d 977, 987, 78 USPQ2d 1329, 1336 (Fed. Cir. 2006) (motivation question arises in the context of the general problem confronting the inventor rather than the specific problem solved by the invention); Cross Med. Prods., Inc. v. Medtronic Sofamor Danek, Inc., 424 F.3d 1293, 1323, 76 USPQ2d 1662, 1685 (Fed. Cir. 2005) ("One of ordinary skill in the art need not see the identical problem addressed in a prior art reference to be motivated to apply its teachings."); In re Lintner, 458 F.2d 1013, 173 USPQ 560 (CCPA 1972). As well. Therefore the rejection is maintained.
In response to applicant’s arguments mentioned above regarding (c), Applicant’s attention is respectfully directed to examiner’s response to the arguments related to independent claims 1. Additionally, Applicant's arguments fail to comply with 37 CFR 1.111(b) because they amount to a general allegation that the claims define a patentable invention without specifically pointing out how the language of the claims patentably distinguishes them from the references.
Additionally, In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007).
Additionally, Applicant's arguments do not comply with 37 CFR 1.111(c) because they do not clearly point out the patentable novelty which he or she thinks the claims present in view of the state of the art disclosed by the references cited or the objections made. Further, they do not show how the amendments avoid such references or objections.
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:
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 1-8, 11-15 and 17-23 are rejected under 35 U.S.C. 103 as being unpatentable over MUSCHIK et al. (DE 19506677 A1, included in IDS on 02/23/2024),hereafter Muschik in view of Sabry et al (US 2023/0036551 A1), hereafter Sabry and further in view of Nassar et al. (US 2017/0361324 A1), hereafter Nassar.
Regarding claims 1 and 11, Muschik teaches a sample holder (Fig. 3 elements 6 + 7) for supporting a hair strand, [Page 4, lines 20-29]).
comprising at least a first arm (Fig. 3 element 6), the first arm comprising an inner face and an outer face, (as shown in fig. 3 the top and bottom of element 6), the sample holder defining a housing (Fig. 3 elements 1 + 4) for receiving the hair strand delimited at least in part by the first arm, (the sampler holder “Fig. 3” structure defined the structure 1 + 4 in combination with element 6 “first arm” that is configured to receive a hair sting , [Page 4, lines 20-29])
characterized in that the first arm comprises a through orifice arranged facing the housing for receiving the hair strand, (as shown in Fig. 3 element 6 comprise an aperture where the photo multiplier element 9 is connected that is facing elements 1 + 4, [ page 4, lines 30-38]) and configured to receive an optic (Fig. 3 element 9) of a hair strand analysis device (Fig. 3 element 15), (the first arm element 6 is configured to receive element 9, also a focusing device can optionally be arrange between element 1 and 9, [page 4, element 30-38], the first arm (Fig. 3 element 6).
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Even though Muschik teaches the first arm element 6 comprising the optic “photomultiplier element 9 and/or the focusing device” of the analysis device attached to the outer face of the first arm element 6 as shown in Fig. 3, [Page 4, lines 30-38]),
Muschik fail to teach the sampler holder comprising attachment means configured to removably attach the optic of the analysis device to the sampler holder, the sample holder comprises a through orifice configured to removably receive an optic, wherein the outer face of the first side of the sample holder comprises a housing for accommodating the optic of the analysis device arranged around the through orifice, wherein the accommodating housing is a trough arranged in the outer face of the first side and having a bottom, the through orifice being arranged through the bottom of the trough.
However, Sabry related to optical measuring system and thus from the same field of endeavor teaches the sample holder configured to removably receive an optic, [0148], the sampler holder comprising attachment means configured to removably attach the optic of the analysis device to the sampler holder, (the “sampler holder 2902 + 2904 comprise an “attachment means” magnetic structure 2904 that can be attach and remove the “optic” optical window of the analysis device element 2900 as shown in Fig. 29, to the sampler holder, [0148]).
Therefore, it would been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Muschik by including the sample holder configured to removably receive an optic, the sampler holder comprising attachment means intended to removably attach the optic of the analysis device to the sampler holder, (as taught by Sabry) for several advantages such as: the inclusion of the magnetic structure in the sample holder enable alignment and insertion of the sample above the optical window, thus increase the efficiency and accuracy of the measuring device, ([0178], Sabry).
The modified device of Muschik still lack to teach wherein the outer face of the first side of the sample holder comprises a housing for accommodating the optic of the analysis device arranged around the through orifice, wherein the accommodating housing is a trough arranged in the outer face of the first side and having a bottom, the through orifice being arranged through the bottom of the trough. Also, in arguendo that the modified device of Muschik still lack to teach a through orifice configured to removably receive an optic.
However, Nassar related optical measurement devices and thus from the same field of endeavor teaches:
a through orifice configured to removably receive an optic (as shown in Figs. 2, 3B [0058-0059] the through orifice is configured to removably received element 224 and/or element 740 as shown in Fig. 7A, [0054, 0065, 0079]), wherein the outer face of the first side of the sample holder comprises a housing (Fig. 2 element 16) for accommodating the optic of the analysis device arranged around the through orifice, (as shown in Figs. 2, 3B, the sample holder in the front side comprise a housing element 16 configured to accommodate element 224 and/or a camera that is arranged around the through orifice, [0055, 0059, 0080]), wherein the accommodating housing (Fig. 2 element 16) is a trough arranged in the outer face of the first side and having a bottom, (as shown in Fig. 2 element 16 is a trough arranged in the sampler holder and comprise a bottom at the end of the aperture where element 224 would stop, [0054, 0058]), the through orifice being arranged through the bottom of the trough, (as shown in Fig. 2, [0059]).
Therefore, it would been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to modify the modified device of Muschik by including a through orifice configured to removably receive an optic wherein the outer face of the first side of the sample holder comprises a housing for accommodating the optic of the analysis device arranged around the through orifice, wherein the accommodating housing is a trough arranged in the outer face of the first side and having a bottom, the through orifice being arranged through the bottom of the trough (as taught by Nassar) for several advantages such as: the structure of the housing can be arranged to have a variable/adjustable size and/or shape thus increase the versability of the device due to be able to perform simultaneous examination of samples, ([0055], Nassar).
Regarding claim 2, Muschik in the combination outlined above teaches the sample holder according to claim 1.
Muschik further teach wherein the sample holder (Fig. 3) comprises a second arm (Fig. 3, element 7), each arm (6 + 7) comprising an inner face and an outer face, (as indicated in annotated Fig. 3 above), the inner faces of the two arms defining therebetween the housing (1 + 4) for receiving the hair strand, (as shown in annotated Fig. 3, elements 6 + 7 defined the housing 1 + 4 for receiving the hair, [Page 4, lines 27-29]).
Regarding claim 3, Muschik in the combination outlined above teaches the sample holder according to claim 2.
Muschik further teach wherein the sample holder (Fig. 3) is a clamp, the first arm (6) and the second arm (7) being hinged on one another, the inner faces of the two arms (6 + 7) being capable of coming against one another, (“With a device (not shown), for example a hinge at the end of the handles 6 , 7 , the arrangement can be opened and a strand of hair inserted through the comb, through the labyrinth 4 , through the measuring chamber 1 and through the other side of the labyrinth 4.”. Therefore, since the handles 6 + 7 of the sample holder (Fig. 3) comprises a hinge at the end of handles, the device can perform the function of a clamp and would be able to coming against each other to insert the hair as shown in Fig. 3, [page 4, lines 27-29]).
Regarding claim 4, Muschik in the combination outlined above teaches the sample holder according to claim 2.
Muschik further teaches wherein the inner face of the second arm (Fig. 3 element 7) defines a groove ( measuring chamber “1” + labyrinth “4”) delimiting the housing (1 + 4) for receiving the hair strand supported, (as shown in Fig. 3 element 7 defines the grove 1 + 4 for the hair strand, [page 4, lines 27-29]).
Regarding claim 5, Muschik in the combination outlined above teaches the sample holder according to claim 4.
Muschik further teaches wherein the through orifice of the first arm (Fig. 3 element 6) is defined facing the groove (1 + 4), (as shown in Fig. 3 the aperture in element 6 where element 9 is located is facing the groove (1 + 4), [page 4, lines 30-38]).
Regarding claim 6, Muschik in the combination outlined above teaches the sample holder according to claim 4.
Muschik further teaches wherein the groove (1 + 4) comprises a bottom, the bottom being a monochrome surface, a transparent surface, a reflective surface or including patterns, [page 4, lines 37-38].
Regarding claim 7, Muschik in the combination outlined above teaches the sample holder according to claim 4.
Muschik further teaches wherein the second arm (Fig. 3 element 7) comprises bulges defined near the groove, (as show in annotated Fig. 3 above, the inner face of the first “6” and second “7” arms defined the groove (1+4) where the bulges indicated in the annotated Fig. 3 are defined near the grove (1 + 4), [Page 4, lines 27-29]).
Regarding claim 8, Muschik in the combination outlined above teaches the sample holder according to claim 4.
Muschik further teaches wherein the groove (1 + 4) comprises combing teeth, (as shown in annotated Fig. 3 by shape of the groove 1 + 4, [Page 4, lines 27-29]).
Regarding claim 11, Muschik in the combination outlined above teaches the sample holder according to claim 2.
Muschik fail to teach wherein the attachment means comprise at least one magnet and/or a magnetized surface capable of cooperating with a magnet disposed on the optic.
However, Sabry further teaches wherein the attachment means (Fig. 29 elements 2902 + 2904) comprise at least one magnet and/or a magnetized surface capable of cooperating with a magnet disposed on the optic, (the “sampler holder 2902 + 2904 comprise an “attachment means” magnetic structure 2904 that can be attach and remove the sampler holder to the “optic” magnetized optical window of the analysis device element 2900 as shown in Fig. 29, [0148]).
Therefore, it would been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to modify the modified device of Muschik by including wherein the attachment means comprise at least one magnet and/or a magnetized surface capable of cooperating with a magnet disposed on the optic (as taught by Sabry) for several advantages such as: the inclusion of the magnetic structure in the sample holder enable alignment and insertion of the sample above the optical window, thus increase the efficiency and accuracy of the measuring device, ([0178], Sabry).
Regarding claim 12, Muschik in the combination outlined above teaches a hair strand analysis kit (Fig. 3, Muschik) comprising: a sample holder (Fig. 3 elements 6 + Muschik) according to claim 1:
Muschik further teaches a hair strain analysis device (Fig. 3 element 15) comprising an optic (Fig. 3 element 9) attached to the sample holder, (the first arm element 6 is configured to receive element 9, also a focusing device can optionally be arrange between element 1 and 9, [page 4, element 30-38]).
Muschik is silent about an optic capable of being removably attached to the sample holder.
However Sabry further teaches an optic capable of being removably attached to the sample holder, (the “sampler holder 2902 + 2904 comprise an “attachment means” magnetic structure 2904 that can be attach and remove the sampler holder to the “optic” optical window of the analysis device element 2900 as shown in Fig. 29, [0148]).
Therefore, it would been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Muschik by including an optic capable of being removably attached to the sample holder, (as taught by Sabry) for several advantages such as: the inclusion of the magnetic structure in the sample holder enable alignment and insertion of the sample above the optical window, thus increase the efficiency and accuracy of the measuring device, ([0178], Sabry).
Regarding claim 13, Muschik in the combination outlined above teaches the hair strand analysis kit according to claim 12.
Muschik further teaches wherein the analysis device (Fig. 3 element 15) is capable of analyzing at least one parameter of a hair strand received in the receiving housing of the sample holder (Fig. 3 elements 6 + 7), [page 2, lines 9-12], the analyzed parameter being selected from the hair color, the gray hair percentage, the hair diameter, the hair density, the physical or chemical hair damage status, the hair porosity, fiber pollution, ( “color”, [page 2, lines 9-12]. [page 4, lines 30-38]).
Regarding claims 14 and 17, Muschik in the combination outlined above teaches a method for analyzing a hair strand comprising the following steps, ([page 2, line 3], Muschik): providing a kit (Fig. 3, Muschik) according to claim 12.
Muschik further teaches the analysis device (Fig. 3 element 15) being at a distance from the sample holder (Fig. 3 elements 6 + 7), (as shown in Fig. 3);
- selecting a hair strand to be analyzed; -disposing at least a part of the hair strand in the housing (Fig. 3 elements 1 + 4) for receiving the hair strand, [page 4, lines 20-26]; then,
- analyzing the hair strand, [page 4, lines 39-44].
Even though Muschik teaches the optic (Fig. 3 element 9) of element 15 “analysis device” attached to the sampler holder (Fig. 3 elements 6 +7) as shown in Fig. 3, [Page 4, lines 30-38]).
Muschik fail to teach:
(claim 14) attaching the optic of the analysis device to the sample holder using the attachment means.
(claim 17) wherein the step of attaching the optic of the analysis device to the sample holder is carried out by the cooperation of at least one magnet disposed on one of the sample holder and the optic and of a magnetized surface on the other of the sample holder and the optic.
However, Sabry further teaches:
(claim 14) attaching the optic of the analysis device to the sample holder using the attachment means. (the “sampler holder 2902 + 2904 comprise an “attachment means” magnetic structure 2904 that allow to attach and remove the “optic” optical window of the analysis device element 2900 as shown in Fig. 29 to the sampler holder, [0148]).
(claim 17) wherein the step of attaching the optic (window) of the analysis device (Fig. 29 element 2900) to the sample holder (Fig. 29 element 2902 + 2904) is carried out by the cooperation of at least one magnet disposed on one of the sample holder and the optic and of a magnetized surface on the other of the sample holder and the optic, (the “sampler holder 2902 + 2904 comprise an “attachment means” magnetic structure 2904 that can be attach and remove the sampler holder to the “optic” magnetized optical window of the analysis device element 2900 as shown in Fig. 29, [0148]).
Therefore, it would been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to modify the modified device of Muschik by including attaching the optic of the analysis device to the sample holder using the attachment means, wherein the step of attaching the optic of the analysis device to the sample holder is carried out by the cooperation of at least one magnet disposed on one of the sample holder and the optic and of a magnetized surface on the other of the sample holder and the optic (as taught by Sabry) for several advantages such as: the inclusion of the magnetic structure in the sample holder enable alignment and insertion of the sample above the optical window, thus increase the efficiency and accuracy of the measuring device, ([0178], Sabry).
Regarding claim 15, Muschik in the combination outlined above teaches the method according to claim 14.
Muschik further teaches wherein the sample holder (Fig. 3 elements 6 + 7) comprises a first arm (Fig. 3 element 6) and a second arm (Fig. 3 element 7) movable onto one another, (the handles 6 + 7 of the sample holder (Fig. 3) comprises a hinge at the end of handles allowing the arm to be movable against each other, [page 4, lines 27-29])., each arm (6 + 7) comprising an inner face and an outer face (as indicated in annotated Fig. 3 above), the step of disposing at least a part of the hair strand in the receiving housing (Fig. 3 elements 1 + 4) comprising disposing the hair strand between the inner faces of the arms (the strand of hair is disposed in the housing 1 + 4, the housing 1 + 4 is defined by the inner face of elements 6 + 7, [page 4, lines 20-29]).
Regarding claim 18, Muschik in the combination outlined above teaches the sample holder according to claim 3.
Muschik further teaches wherein the inner face of the second arm (Fig. 3 element 7) defines a groove ( measuring chamber “1” + labyrinth “4”) delimiting the housing (1 + 4) for receiving the hair strand supported, (as shown in Fig. 3 element 7 defines the grove 1 + 4 for the hair strand, [page 4, lines 27-29]).
Regarding claim 19, Muschik in the combination outlined above teaches the sample holder according to claim 5.
Muschik further teaches wherein the groove (1 + 4) comprises a bottom, the bottom being a monochrome surface, a transparent surface, a reflective surface or including patterns, [page 4, lines 37-38].
Regarding claim 20, Muschik in the combination outlined above teaches the sample holder according to claim 5.
Muschik further teaches wherein the second arm (Fig. 3 element 7) comprises bulges defined near the groove, (as show in annotated Fig. 3 above, the inner face of the first “6” and second “7” arms defined the groove (1+4) where the bulges indicated in the annotated Fig. 3 are defined near the grove (1 + 4), [Page 4, lines 27-29]).
Regarding claim 21, Muschik teaches a sample holder (Fig. 3 elements 6 + 7) for supporting a hair strand, [Page 4, lines 20-29]), comprising at least a first arm (Fig. 3 element 6) and a second arm (Fig. 3, element 7), the sample holder defining a housing (Fig. 3 elements 1 + 4) for receiving the hair strand delimited at least in part by the first arm, (the sampler holder “Fig. 3” structure defined the structure 1 + 4 in combination with element 6 “first arm” that is configured to receive a hair sting , [Page 4, lines 20-29]), characterized in that the first arm comprises a through orifice arranged facing the housing for receiving the hair strand, (as shown in Fig. 3 element 6 comprise an aperture where the photo multiplier element 9 is connected that is facing elements 1 + 4, [ page 4, lines 30-38]) and configured to receive an optic (Fig. 3 element 9) of a hair strand analysis device (Fig. 3 element 15), (the first arm element 6 is configured to receive element 9, also a focusing device can optionally be arrange between element 1 and 9, [page 4, element 30-38], wherein each arm (Fig. 6 elements 6 + 7) comprises an inner face and an outer face (as shown in annotated Fig. 6 above), the inner faces of the two arms defining therebetween the housing (1 + 4) for receiving the hair strand (as shown in annotated Fig. 3, elements 6 + 7 defined the housing 1 + 4 for receiving the hair, [Page 4, lines 27-29]); wherein the inner face of the second arm (Fig. 3 element 7) defines a groove ( measuring chamber “1” + labyrinth “4”) delimiting the housing (1 + 4) for receiving the hair strand supported (as shown in Fig. 3 element 7 defines the grove 1 + 4 for the hair strand, [page 4, lines 27-29]).; and wherein the groove comprises combing teeth (as shown in annotated Fig. 3 by shape of the groove 1 + 4, [Page 4, lines 27-29]).
Even though Muschik teaches the first arm element 6 comprising the optic “photomultiplier element 9 and/or the focusing device” of the analysis device attached to the outer face of the first arm element 6 as shown in Fig. 3, [Page 4, lines 30-38]),
Muschik fail to teach the sampler holder comprising attachment means intended to removably attach the optic of the analysis device to the sampler holder, the sample holder comprises a through orifice configured to removably receive an optic.
However, Sabry further teaches the sample holder configured to removably receive an optic, [0148], the sampler holder comprising attachment means configured to removably attach the optic of the analysis device to the sampler holder, (the “sampler holder 2902 + 2904 comprise an “attachment means” magnetic structure 2904 that can be attach and remove the “optic” optical window of the analysis device element 2900 as shown in Fig. 29, to the sampler holder, [0148]), the sample holder configured to removably receive an optic, [0148].
Therefore, it would been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Muschik by including the sample holder configured to removably receive an optic, the sampler holder comprising attachment means intended to removably attach the optic of the analysis device to the sampler holder, (as taught by Sabry) for several advantages such as: the inclusion of the magnetic structure in the sample holder enable alignment and insertion of the sample above the optical window, thus increase the efficiency and accuracy of the measuring device, ([0178], Sabry).
In the arguendo that the modified device of Muschik still lack to teach a through orifice configured to removably receive an optic.
Nassar related optical measurement devices and thus from the same field of endeavor teaches a through orifice configured to removably receive an optic (as shown in Figs. 2, 3B [0058-0059] the through orifice is configured to removably received element 224 and/or element 740 as shown in Fig. 7A, [0054, 0065, 0079]).
Therefore, it would been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to modify the modified device of Muschik by including a through orifice configured to removably receive an optic (as taught by Nassar) for several advantages such as: the structure of the housing can be can be arranged to have a variable/adjustable size and/or shape thus increase the versability of the device since allow to perform simultaneous examination of samples, ([0055], Nassar).
Regarding claim 22, Muschik teaches a sample holder (Fig. 3 elements 6 + 7) for supporting a hair strand, [page 4, lines 20-29], comprising at least a first arm (Fig. 3 element 6) and a second arm (Fig. 3, element 7), the sample holder defining a housing (Fig. 3 elements 1 + 4) for receiving the hair strand delimited at least in part by the first arm, (the sampler holder “Fig. 3” structure defined the structure 1 + 4 in combination with element 6 “first arm” that is configured to receive a hair sting , [Page 4, lines 20-29]), characterized in that the first arm comprises a through orifice arranged facing the housing for receiving the hair strand, (as shown in Fig. 3 element 6 comprise an aperture where the photo multiplier element 9 is connected that is facing elements 1 + 4, [ page 4, lines 30-38]) and configured to receive an optic (Fig. 3 element 9) of a hair strand analysis device (Fig. 3 element 15), (the first arm element 6 is configured to receive element 9, also a focusing device can optionally be arrange between element 1 and 9, [page 4, element 30-38], wherein each arm (Fig. 6 elements 6 + 7) comprises an inner face and an outer face (as shown in annotated Fig. 6 above), the inner faces of the two arms defining therebetween the housing (1 + 4) for receiving the hair strand (as shown in annotated Fig. 3, elements 6 + 7 defined the housing 1 + 4 for receiving the hair, [Page 4, lines 27-29]); wherein the inner face of the second arm (Fig. 3 element 7) defines a groove (measuring chamber “1” + labyrinth “4”) delimiting the housing (1 + 4) for receiving the hair strand supported, (as shown in Fig. 3 element 7 defines the grove 1 + 4 for the hair strand, [page 4, lines 27-29]); and wherein the second arm comprises bulges defined near the groove, (as show in annotated Fig. 3 above, the inner face of the first “6” and second “7” arms defined the groove (1+4) wherein the bulges indicated in the annotated Fig. 3 are defined near the grove (1 + 4), [Page 4, lines 27-29]).
Even though Muschik teaches the first arm element 6 comprising the optic “photomultiplier element 9 and/or the focusing device” of the analysis device attached to the outer face of the first arm element 6 as shown in Fig. 3, [Page 4, lines 30-38]),
Muschik fail to teach the sampler holder comprising attachment means intended to removably attach the optic of the analysis device to the sampler holder, the sample holder comprises a through orifice configured to removably receive an optic.
However, Sabry further teaches the sample holder configured to removably receive an optic, [0148], the sampler holder comprising attachment means configured to removably attach the optic of the analysis device to the sampler holder, (the “sampler holder 2902 + 2904 comprise an “attachment means” magnetic structure 2904 that can be attach and remove the “optic” optical window of the analysis device element 2900 as shown in Fig. 29, to the sampler holder, [0148]), the sample holder configured to removably receive an optic, [0148].
Therefore, it would been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Muschik by including the sample holder configured to removably receive an optic, the sampler holder comprising attachment means intended to removably attach the optic of the analysis device to the sampler holder, (as taught by Sabry) for several advantages such as: the inclusion of the magnetic structure in the sample holder enable alignment and insertion of the sample above the optical window, thus increase the efficiency and accuracy of the measuring device, ([0178], Sabry).
In arguendo that the modified device of Muschik still lack to teach a through orifice configured to removably receive an optic.
Nassar related optical measurement devices and thus from the same field of endeavor teaches a through orifice configured to removably receive an optic (as shown in Figs. 2, 3B [0058-0059] the through orifice is configured to removably received element 224 and/or element 740 as shown in Fig. 7A, [0054, 0065, 0079]).
Therefore, it would been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to modify the modified device of Muschik by including a through orifice configured to removably receive an optic (as taught by Nassar) for several advantages such as: the structure of the housing can be can be arranged to have a variable/adjustable size and/or shape thus increase the versability of the device for being able to perform simultaneous examination of samples, ([0055], Nassar).
Regarding claim 23, Muschik teaches a sample holder (Fig. 3 elements 6 + 7) for supporting a hair strand, [page 4, lines 20-29], comprising at least a first arm (Fig. 3 element 6), the first arm comprising an inner face and an outer face, (as shown in annotated Fig. 3) the sample holder defining a housing (Fig. 3 elements 1 + 4) for receiving the hair strand delimited at least in part by the first arm, (the sampler holder “Fig. 3” structure defined the structure 1 + 4 in combination with element 6 “first arm” that is configured to receive a hair sting , [Page 4, lines 20-29]), characterized in that the first arm comprises a through orifice arranged facing the housing for receiving the hair strand, (as shown in Fig. 3 element 6 comprise an aperture where the photo multiplier element 9 is connected that is facing elements 1 + 4, [ page 4, lines 30-38]) and configured to removably receive an optic (Fig. 3 element 9) of a hair strand analysis device (Fig. 3 element 15), (the first arm element 6 is configured to receive element 9, also a focusing device can optionally be arrange between element 1 and 9, [page 4, element 30-38].
Even though Muschik teaches the first arm element 6 comprising the optic “photomultiplier element 9 and/or the focusing device” of the analysis device attached to the outer face of the first arm element 6 as shown in Fig. 3, [Page 4, lines 30-38]),
Muschik fail to teach: the sample holder configured to removably receive an optic, the first arm comprising attachment means intended to removably attach the optic of the analysis device to the outer face of the first arm; wherein the attachment means comprise at least one magnet and/or a magnetized surface capable of cooperating with a magnet disposed on the optic.
However, Sabry further teaches the sample holder configured to removably receive an optic, [0148], the sampler holder comprising attachment means configured to removably attach the optic of the analysis device to the sampler holder, (the “sampler holder 2902 + 2904 comprise an “attachment means” magnetic structure 2904 that can be attach and remove the “optic” optical window of the analysis device element 2900 as shown in Fig. 29, to the sampler holder, [0148]) the first arm (Fig. 3 element 6), wherein the attachment means (Fig. 29 elements 2902 + 2904) comprise at least one magnet and/or a magnetized surface capable of cooperating with a magnet disposed on the optic, (the “sampler holder 2902 + 2904 comprise an “attachment means” magnetic structure 2904 that can be attach and remove the sampler holder to the “optic” magnetized optical window of the analysis device element 2900 as shown in Fig. 29, [0148]).
Therefore, it would been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Muschik by including the sample holder configured to removably receive an optic, the sampler holder comprising attachment means intended to removably attach the optic of the analysis device to the sampler holder, wherein the attachment means comprise at least one magnet and/or a magnetized surface capable of cooperating with a magnet disposed on the optic (as taught by Sabry) for several advantages such as: the inclusion of the magnetic structure in the sample holder enable alignment and insertion of the sample above the optical window, thus increase the efficiency and accuracy of the measuring device, ([0178], Sabry).
In arguendo that the modified device of Muschik still lack to teach a through orifice configured to removably receive an optic.
Nassar related optical measurement devices and thus from the same field of endeavor teaches a through orifice configured to removably receive an optic (as shown in Figs. 2, 3B [0058-0059] the through orifice is configured to removably received element 224 and/or element 740 as shown in Fig. 7A, [0054, 0065, 0079]).
Therefore, it would been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to modify the modified device of Muschik by including a through orifice configured to removably receive an optic (as taught by Nassar) for several advantages such as: the structure of the housing can be can be arranged to have a variable/adjustable size and/or shape thus increase the versability of the device since allow to perform simultaneous examination of samples, ([0055], Nassar).
Claim 16 is rejected under 35 U.S.C. 103 as being unpatentable over Muschik in view of Sabry and Nassar and further in view of Miklatzky et al. (US 2018/0192764 A1, included in IDS on 02/23/2024), hereafter Miklatzky.
Regarding claim 16, Muschik in the combination outlined above teaches the method according to claim 14.
Muschik further teaches when the part of the hair strand is received in the receiving housing, (the hair is received in the housing 1 + 4, [page 4, lines 20-26]), a part of each hair being housed in the receiving housing, said parts of the hair being stretched and aligned in the receiving housing, facing the through orifice, (as the comb of element 6 + 7 is closed the hair would be aligned, stretched and facing the aperture in element 6, [page 4, lines 27-33]).
Muschik is silent about wherein the hair strand comprises a plurality of hairs, a part of each hair being housed in the receiving housing, said parts of the hairs being stretched and aligned substantially parallel with one another in the receiving housing.
However, Miklatzky related to optical measuring system and thus from the same field of endeavor teaches wherein the hair strand comprises a plurality of hairs (the hair sample comprise a plurality of hairs (220) as show in fig. 5B), a part of each hair being housed in the receiving housing, said parts of the hairs being stretched and aligned substantially parallel with one another in the receiving housing, (the sample hair 200 is stretch and aligned parallel with each other as they are located in the housing 100 as shown in Figs 5B and 6A, [0075, 0089]).
Therefore, it would been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to modify the modified device of Muschik by including wherein the hair strand comprises a plurality of hairs, a part of each hair being housed in the receiving housing, said parts of the hairs being stretched and aligned substantially parallel with one another in the receiving housing. (as taught by Miklatzky) for several advantages such as: the device regulates an amount of hair permitted to enter the gap, thereby regulating a thickness of hair above the window-void to a fixed value of at least 0.5 mm and at most 2 mm and maintain alignment of hair above the window-void, thus allow to increase the accuracy of the measuring device since the device would analyze the hair in an acceptable range for the sample to be analyzed, ([0026, 0054], Miklatzky).
Conclusion
Examiner note: In order to advance prosecution of the patent application the examiner suggest to incorporate the elements described in the Specification in [page 4, lines 23-35 to page 5, lines 1-5] such as incorporating: the optic 18 as a frustoconical chamber, the edges 20 + 22 with their locations/functions, how the images are taken and the parameters of the hair to be analyzed, since in combination with the limitations of claim 1 It may be identified as patentable subject matter.
The specification in [page 4, lines 23-35 to page 5, lines 1-5] include “the optic 18 is a frustoconical chamber wherein at least one lens, at least one mirror or a combination of both and optionally at least one lighting element such as a light-emitting diode are disposed. The frustoconical chamber defines a first free edge 20 and a second mounting edge 22 opposite the first free edge 20. The second mounting edge 22 is mounted on a casing of the analysis device 16. The first free edge 20 is intended to be placed close to and in the direction of the hair strand to be analyzed, The first free edge 20 defines a capture opening through which an image of the hair strand 14 to be analyzed is captured or at least one parameter of the hair strand to be analyzed is measured directly. The analysis device 16 is of analyzing at least one parameter of the hair strand 14. The parameter analyzed is selected from the hair color, the gray hair percentage, the hair diameter, the hair density, the physical or chemical hair damage status, the hair porosity, or/and the fiber pollution”.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CARLOS G PEREZ-GUZMAN whose telephone number is (571)272-3904. The examiner can normally be reached Monday - Friday 7:30 am - 5:00 pm ET.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Tarifur Chowdhury can be reached at (571) 272-2287. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/TARIFUR R CHOWDHURY/ Supervisory Patent Examiner, Art Unit 2877
/CARLOS PEREZ-GUZMAN/ Examiner, Art Unit 2877