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
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 7 March 2024 is acknowledged. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement has been considered by the examiner. See attached copy of PTO-1449.
Status of Application
2. The instant application is a national stage entry of PCT/IB2022/058220 filed 1 September 2022. Claims 1-10 are currently pending and examined on the merits within.
Claim Objections
3. Claims 1 and 4-5 are objected to because of the following informalities: “conducing” should instead recite “conducting”. Appropriate correction is required.
4. Claim 9 is objected to because of the following informalities: “a hooded dryer, a nebulizer” should instead recite “a hooded dryer, and a nebulizer”. Appropriate correction is required.
Claim Rejections – 35 U.S.C. 103
5. 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.
6. Claim(s) 1-10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sakurai et al. (FR3010305) in view of Akinobu (JP2018038944).
Regarding instant claims 1-3 and 5-6, Sakurai et al. teach the steps of applying a first perming agent which has a reducing action to expand and soften hair wound on a roll, rinsing off the first perming agent, applying to the hair one or two or more compounds selected from a group consisting of ascorbic acid, an ascorbic acid derivative and an ascorbic acid salt, and an intermediate treatment agent, then spraying ozone to the hair to oxidize the compound, and reconstructing disulfide bridges of the hair by the oxidized compound and the ozone. See paragraph [0007]. Upon reconstruction of disulfide bridges of hair, an atmosphere containing not more than 1.0 ppm of ozone is formed, in which ozone mist comes into contact with hair. In the reconstruction of disulfide bridges of hair, heat is applied especially for a prescribed time (3 to 15 minutes, for example), to ensure that the compound such as ascorbic acid or the like which is contained in the intermediate treatment agent adheres to hair wound on the roll. See paragraph [0019].
Regarding instant claim 4, the ascorbic acid has a bleaching effect. See paragraph [0022].
Regarding instant claim 9, the ozone can be sprayed in a hood to wrap all the hair in an ozone atmosphere with a heated blower. See paragraph [0042].
Sakurai et al. do not teach a dosage between 180 mg/hr and 400 mg/hr, 350-600 mg per liter of humidified ozone, solubilizing ozone in water, or a dispensing flow of 1 to 5 L/min.
Akinobu teaches an ozonated water shower apparatus comprising an ozone generator for generating ozone gas from air, ozone gas generated by the ozone generator and water flowing from a water supply, an aspirator that generates water, a sealed pressurized diffusion mixer that temporarily stores ozone water released from the aspirator, and is further pressurized and stirred, whereby the ozone gas bubbles are further dissolved in the ozone water. See paragraph [0011]. When the ozone gas concentration generated by the ozone generator is 20 ppm to 60 ppm and the flow rate of the hot water is 10 liters to 20 liters per minute, the ozone water concentration of hot water at the connection portion of the shower head is 0.5 ppm to 3 ppm. See paragraph [0041]. The present invention is useful for an ozonated water shower device and can be downsized as a whole, so it is installed in a hair salon washbowl and a hair salon washstand to sterilize the hair and hair roots, wash and clean the hands of hairdressers. It is suitable for deodorizing. See paragraph [0053].
It would have been obvious to one of ordinary skill in the art as of the effective filing date of the invention to mix ozone in water prior to application as a known safe and effective manner of applying ozone treatment to hair as taught by Akinobu. It would have been well within the purview of the skilled artisan to modify the dosage, mg/L, and flow rate to achieve the desired amount of ozone delivered over a specified amount of time to optimize the perming or bleaching effect while maintaining safety and efficacy.
Double Patenting
7. 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.
8. Claims 1-10 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-10 of copending Application No. 18/581508 (reference application).
Although the claims at issue are not identical, they are not patentably distinct from each other because both the instant application and Application 18/581508 are directed to cosmetic hair treatments comprising applying a functional composition to the hair, washing to remove the functional composition, and applying ozone. The only difference lies in the dosage range at which the ozone is applied. However, it is well within the purview of the skilled artisan to modify the dosage range dependent on desired effect. Thus the two are not patentably distinct.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Correspondence
9. No claims are allowed at this time.
10. Any inquiry concerning this communication or earlier communications from the examiner should be directed to JESSICA WORSHAM whose telephone number is (571)270-7434. The examiner can normally be reached Monday-Friday (8-5).
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/JESSICA WORSHAM/Primary Examiner, Art Unit 1615