DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Objections
Claims 1-15 objected to because of the following informalities:
In claim 1, line 1, “a handheld makeup applicator” should read “a first handheld makeup applicator” to clearly differentiate from the second applicator of lines 13-14. Examiner notes that similar corrections should be made in line 3 and claims 2-6 in order to maintain proper antecedence.
In claim 7, line 1, “a handheld makeup applicator” should read “a first handheld makeup applicator” to clearly differentiate from the second applicator of line 10. Examiner notes that similar corrections should be made in lines 4 and 15 and claims 8-15 in order to maintain proper antecedence.
In claim 7, line 4, “integrated a housing” should read “integrated into a housing”.
In claim 7, line 11, “a second handheld” should read “the second handheld”.
Appropriate correction is required.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-6 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-6 of U.S. Patent No. 12,512,008. Although the claims at issue are not identical, they are not patentably distinct from each other because the instant application recites sending the captured sensor data while the Patent recites receiving the indications of data captured. It would be obvious to one of ordinary skill in the art that the device can send and receive the corresponding data via the communication interface and therefore sending data from one device would be received at a similar/second device. Therefore, the limitations would be obvious in view of the recited limitations. The limitations of instant claims 2-6 are identical to claims 2-6 of the Patent and therefore not patentably distinct.
Claims 1-6 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 and 4-8 of copending Application No. 18/759,288 (US PGPub 20260000186) (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the instant application recites sending the captured sensor data while the reference application recites receiving the indications of data captured. It would be obvious to one of ordinary skill in the art that the device can send and receive the corresponding data via the communication interface and therefore sending data from one device would be received at a similar/second device. Therefore, the limitations would be obvious in view of the recited limitations. The limitations of instant claims 2-6 are identical to claims 4-8 of the Patent and therefore not patentably distinct.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 7-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-6 and 13-15 of U.S. Patent No. 12,512,008 in view of Machiorlette et al. (US PGPub 20170095070).
The claims are taught as mapped below:
Application 18/758,945
Patent No. 12,512,008
Claim 7
Claim 1 but fails to teach one or more adjustable components integrated into a housing of the handheld makeup applicator device; one or more actuators configured to adjust the one or more adjustable components; and control the one or more actuators to adjust the one or more adjustable components to guide the user of the handheld makeup applicator device to replicate the makeup look applied by the second user of the second handheld makeup applicator device based on the data captured by the second handheld makeup applicator device during the application of the makeup look.
Claim 10
Claim 1 but fails to teach wherein controlling the one or more actuators to adjust the one or more adjustable components to guide the user of the handheld makeup applicator device to replicate the makeup look applied by the second user of the second handheld makeup applicator device is based at least in part on sensor data captured by the one or more sensors integrated into the housing of the handheld makeup applicator device.
Claim 11
Claim 2
Claim 12
Claim 3
Claim 13
Claim 4
Claim 14
Claim 5
Claim 15
Claim 6
Claim 16 A system, comprising:
a first handheld makeup applicator device associated with a first user, the first handheld makeup applicator device comprising:
one or more sensors integrated into a first housing of the first handheld makeup applicator device and operable to capture sensor data during application of a makeup look, using the first handheld makeup applicator device, by the first user;
a first communication interface;
a first set of one or more processors; and
a first set of one or more non-transitory memories, storing a first set of computer-readable instructions that, when executed by the first set of one or more processors, cause the first set of one or more processors to:
receive sensor data captured by the one or more sensors during the application of the makeup look; and
send, via the first communication interface, an indication of the sensor data captured by the one or more sensors during the application of the makeup look to a second handheld makeup applicator device associated with a second user; and
the second handheld makeup applicator device associated with the second user, the second handheld makeup applicator device comprising:
a second communication interface;
one or more adjustable components integrated into a second housing of the second handheld makeup applicator device;
one or more actuators configured to adjust the one or more adjustable components;
a second set of one or more processors; and
a second set of one or more non-transitory memories, storing a second set of computer-readable instructions that, when executed by the second set of one or more processors, cause the second set of one or more processors to:
receive, via the second communication interface, from the first handheld makeup applicator device, indications of the sensor data captured by the one or more sensors during the application of the makeup look; and
control the one or more actuators to adjust the one or more adjustable components to guide the second user to replicate the makeup look applied by the first user of the first handheld makeup applicator device based on the sensor data captured by the one or more sensors of the first handheld makeup applicator device during the application of the makeup look.
Claim 13 A system, comprising:
a first handheld makeup applicator device associated with a first user, the first handheld makeup applicator device comprising
a first set of one or more sensors integrated into a first housing of the first handheld makeup applicator device and operable to capture sensor data during application of a makeup look, using the first handheld makeup applicator device, by the first user; and
a second handheld makeup applicator device associated with a second user, the second handheld makeup applicator device comprising:
a second set of one or more sensors integrated into a second housing of the second handheld makeup applicator device; and
a user interface configured to provide guidance to guide the second user of the second handheld makeup applicator device to replicate the makeup look, based on the sensor data captured by the first set of one or more sensors of the first handheld makeup applicator device during the application of the makeup look by the first user, and based on sensor data captured by the second set of one or more sensors of the second handheld makeup applicator device as the second user attempts to replicate the makeup look.
Claim 17
Claim 14
Claim 18
Claim 15
With regard to instant claims 7-10, 16, and 19-20, the ‘008 patent is silent of the teaching of one or more adjustable components and corresponding actuators and controlling the actuators to adjust the components to guide the user to replicate the look as well as the limitations of instant claims 8-9 and 19-20 of the components including haptic components and applicator heads. However, the Machiorlette et al. reference provides a teaching of a cosmetic apparatus for sensing motion and providing guidance to a user including a brush/tool device including sensors capable of sensing movement of the brush/tool relative to a user’s body and a motor assembly/motors for adjusting a rotation speed, angle, and amount of brush head used to apply the makeup and to guide the user (Paragraphs 0021, 0028, 0031-0032, 0041, 0043, 0068-0070, 0084). Further, with regard to instant claim 16, the ‘008 patent is silent to the teachings of communication interfaces, processors, memories, and the steps of receiving sensor data and sending an indication of the data. However, Machiorlette further teaches the brush device including hardware for wireless communications, processors, storage mediums, capturing sensor data, and sending and receiving data including sensor data between devices (Paragraphs 0033, 0039, 0041, 0040, 0042-0043, 0045-0048). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the ‘288 application with the hardware including adjustable components/brush heads and motors and performing the steps of capturing data, sending and receiving the data, and guiding a user by controlling the motors to adjust the brush application, as taught by Machiorlette et al., in order to provide further engagement with the user, provide further feedback, and improve user technique (Machiorlette et al. paragraph 0041).
Claims 7-20 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 4-8, 11 and 14-15 of copending Application No. 18/759,288 (US PGPub 20260000186) in view of Machiorlette et al. (US PGPub 20170095070).
The claims are taught as mapped below, wherein bolded limitations are taught:
Application 18/758,945
Application 18/759,288
Claim 7
Claim 1 but fails to teach one or more adjustable components integrated into a housing of the handheld makeup applicator device; one or more actuators configured to adjust the one or more adjustable components; and control the one or more actuators to adjust the one or more adjustable components to guide the user of the handheld makeup applicator device to replicate the makeup look applied by the second user of the second handheld makeup applicator device based on the data captured by the second handheld makeup applicator device during the application of the makeup look.
Claim 10
Claim 1 but fails to teach wherein controlling the one or more actuators to adjust the one or more adjustable components to guide the user of the handheld makeup applicator device to replicate the makeup look applied by the second user of the second handheld makeup applicator device is based at least in part on sensor data captured by the one or more sensors integrated into the housing of the handheld makeup applicator device.
Claim 11
Claim 4
Claim 12
Claim 5
Claim 13
Claim 6
Claim 14
Claim 7
Claim 15
Claim 8
Claim 16: A system, comprising:
a first handheld makeup applicator device associated with a first user, the first handheld makeup applicator device comprising:
one or more sensors integrated into a first housing of the first handheld makeup applicator device and operable to capture sensor data during application of a makeup look, using the first handheld makeup applicator device, by the first user;
a first communication interface;
a first set of one or more processors; and
a first set of one or more non-transitory memories, storing a first set of computer-readable instructions that, when executed by the first set of one or more processors, cause the first set of one or more processors to:
receive sensor data captured by the one or more sensors during the application of the makeup look; and
send, via the first communication interface, an indication of the sensor data captured by the one or more sensors during the application of the makeup look to a second handheld makeup applicator device associated with a second user; and
the second handheld makeup applicator device associated with the second user, the second handheld makeup applicator device comprising:
a second communication interface;
one or more adjustable components integrated into a second housing of the second handheld makeup applicator device;
one or more actuators configured to adjust the one or more adjustable components;
a second set of one or more processors; and
a second set of one or more non-transitory memories, storing a second set of computer-readable instructions that, when executed by the second set of one or more processors, cause the second set of one or more processors to:
receive, via the second communication interface, from the first handheld makeup applicator device, indications of the sensor data captured by the one or more sensors during the application of the makeup look; and
control the one or more actuators to adjust the one or more adjustable components to guide the second user to replicate the makeup look applied by the first user of the first handheld makeup applicator device based on the sensor data captured by the one or more sensors of the first handheld makeup applicator device during the application of the makeup look.
Claim 11: A system, comprising:
a first handheld makeup applicator device associated with a first user, the first handheld makeup applicator device comprising a first set of one or more sensors integrated into a first housing of the first handheld makeup applicator device and operable to capture sensor data during application of a makeup look, using the first handheld makeup applicator device, by the first user; and
a second handheld makeup applicator device associated with a second user, the second handheld makeup applicator device comprising:
a second set of one or more sensors integrated into a second housing of the second handheld makeup applicator device; and
an audio interface configured to provide audio guidance to guide the second user of the second handheld makeup applicator device to replicate the makeup look, based on the sensor data captured by the first set of one or more sensors of the first handheld makeup applicator device during the application of the makeup look by the first user, and based on sensor data captured by the second set of one or more sensors of the second handheld makeup applicator device as the second user attempts to replicate the makeup look.
Claim 17
Claim 14
Claim 18
Claim 15
The ‘945 application is silent of the teaching of one or more adjustable components and corresponding actuators and controlling the actuators to adjust the components to guide the user to replicate the look as well as the limitations of instant claims 8-9 and 19-20 of the components including haptic components and applicator heads. However, the Machiorlette et al. reference provides a teaching of a cosmetic apparatus for sensing motion and providing guidance to a user including a brush/tool device including sensors capable of sensing movement of the brush/tool relative to a user’s body and a motor assembly/motors for adjusting a rotation speed, angle, and amount of brush head used to apply the makeup and to guide the user (Paragraphs 0021, 0028, 0031-0032, 0041, 0043, 0068-0070, 0084). Further, with regard to instant claim 16, the ‘008 patent is silent to the teachings of communication interfaces, processors, memories, and the steps of receiving sensor data and sending an indication of the data. However, Machiorlette further teaches the brush device including hardware for wireless communications, processors, storage mediums, capturing sensor data, and sending and receiving data including sensor data between devices (Paragraphs 0033, 0039, 0041, 0040, 0042-0043, 0045-0048). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the ‘288 application with the hardware including adjustable components/brush heads and motors and performing the steps of capturing data, sending and receiving the data, and guiding a user by controlling the motors to adjust the brush application, as taught by Machiorlette et al., in order to provide further engagement with the user, provide further feedback, and improve user technique (Machiorlette et al. paragraph 0041)..
This is a provisional nonstatutory double patenting rejection.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1-5, 7-14, and 16-20 is/are rejected under 35 U.S.C. 102(a)(1) and (a)(2) as being anticipated by Machiorlette et al. (US PGPub 20170095070), hereinafter referred to as Machiorlette.
With regard to claim 1, Machiorlette teaches a handheld makeup applicator device (Abstract; Paragraph 0021 teaches a computerized makeup brush system), the handheld makeup applicator device comprising:
one or more sensors integrated into a housing of the handheld makeup applicator device and operable to capture sensor data during application of a makeup look, using the handheld makeup applicator device, by a user (Fig. 3; Paragraphs 0040, 0043, 0045-0047 teach the device comprising a variety of one or more sensors in the handle of/integrated with the brush/device which can gather various data during application of makeup to a user or other individual);
a communication interface (Paragraph 0039 teaches the device has hardware for wireless communications (communication interface));
one or more processors (Fig. 3; Paragraphs 0033, 0041 teach the brush can have an on-board computer system/processor(s)); and
one or more non-transitory memories, storing computer-readable instructions that, when executed by the one or more processors, cause the one or more processors (Paragraphs 0029, 0033 teach the system includes memory including one or more non-transitory storage medium storing instructions for execution by the processor) to:
receive sensor data captured by the one or more sensors during the application of the makeup look by the user (Paragraphs 0040, 0043, 0045-0047 teach the sensors capture various data such as the movement of the tool and images from the camera during the makeup application);
send, via the communication interface, an indication of the sensor data, captured by the one or more sensors during an application of a makeup look by the user, to a second handheld makeup applicator device associated with a second user (Paragraphs 0021, 0042, 0048, 0074-0075 teach that the system can include one or more brushes such that a user and an experienced professional can each have a device wherein the experienced user can record a technique/program using the sensors to capture data during a makeup application and transmit the program to another user’s device).
With regard to claim 7, Machiorlette teaches a handheld makeup applicator device associated with a user (Abstract; Paragraph 0021 teaches a computerized makeup brush system), the handheld makeup applicator device comprising:
a communication interface (Paragraph 0039 teaches the device has hardware for wireless communications (communication interface));
one or more adjustable components integrated into a housing of the handheld makeup applicator device (Paragraphs 0031-0032, 0068-0070, 0084 teach the device can be configured to include rotating or adjusting an angle of the brush head and/or interchangeable brush heads);
one or more actuators configured to adjust the one or more adjustable components (Paragraphs 0031-0032, 0068-0070, 0084 teach the device can include motors/motor assemblies within the handle for rotating or adjusting the angle of the brush head);
one or more processors (Fig. 3; Paragraphs 0033, 0041 teach the brush can have an on-board computer system/processor(s)); and
one or more non-transitory memories, storing computer-readable instructions that, when executed by the one or more processors, cause the one or more processors (Paragraphs 0029, 0033 teach the system includes memory including one or more non-transitory storage medium storing instructions for execution by the processor) to:
receive, via the communication interface, from a second handheld makeup applicator device, indications of data captured by the second handheld makeup applicator device during an application of a makeup look by a second user of the second handheld makeup applicator device (Paragraphs 0021, 0042, 0048, 0074-0075 teach that the system can include one or more brushes such that a user and an experienced professional can each have a device wherein the experienced user can record a technique/program using the sensors to capture data during a makeup application and transmit the program to another user’s device such that the other device receives the transmitted program and data via the network interface); and
control the one or more actuators to adjust the one or more adjustable components to guide the user of the handheld makeup applicator device to replicate the makeup look applied by the second user of the second handheld makeup applicator device based on the data captured by the second handheld makeup applicator device during the application of the makeup look (Paragraphs 0033, 0041, 0068, 0074-0075 teach the device can adjust the rotation and angle of the brush based on a programmed/recorded makeup application of an experienced user and adjust the motion/rotation and angle based on the user’s performance).
With regard to claim 16, Machiorlette teaches a system (Paragraph 0021; “system”) comprising:
a first handheld makeup applicator device associated with a first user (Abstract; Paragraph 0021 teaches the system includes one or more computerized makeup brushes), the first handheld makeup applicator device comprising:
one or more sensors integrated into a first housing of the first handheld makeup applicator device and operable to capture sensor data during application of a makeup look, using the first handheld makeup applicator device, by the first user (Fig. 3; Paragraphs 0040, 0043, 0045-0047 teach the device comprising a variety of one or more sensors in the handle of/integrated with the brush/device which can capture sensor data during a makeup application);
a first communication interface (Paragraph 0039 teaches each device has hardware for wireless communications (communication interface));
a first set of one or more processors (Fig. 3; Paragraphs 0033, 0041 teach each brush can have an on-board computer system/processor(s)); and
a first set of one or more non-transitory memories, storing a first set of computer-readable instructions that, when executed by the first set of one or more processors, cause the first set of one or more processors (Paragraphs 0029, 0033 teach the system includes memory including one or more non-transitory storage medium storing instructions for execution by the processor) to:
receive sensor data captured by the one or more sensors during the application of the makeup look (Paragraphs 0040, 0043, 0045-0047 teach the sensors capture various data such as the movement of the tool and images from the camera during the makeup application); and
send, via the communication interface, an indication of the sensor data captured by the one or more sensors during the application of the makeup to a second handheld makeup applicator device associated with a second user (Paragraphs 0021, 0042, 0048, 0074-0075 teach that the system can include one or more brushes such that a user and an experienced professional can each have a device wherein the experienced user can record a technique/program using the sensors to capture data during a makeup application and transmit the program to another user’s device); and
the second handheld makeup applicator device associated with a second user (Abstract; Paragraphs 0021, 0074-0075 teaches the system includes one or more computerized makeup brushes wherein a user and a professional/experience user can each have a device wherein the professional user would have the first and the user would have the second device as claimed here), the second handheld makeup applicator device comprising:
a second communication interface (Paragraph 0039 teaches each device has hardware for wireless communications (communication interface));
one or more adjustable components integrated into a housing of the handheld makeup applicator device (Paragraphs 0031-0032, 0068-0070, 0084 teach the device can be configured to include rotating or adjusting an angle of the brush head and/or interchangeable brush heads);
one or more actuators configured to adjust the one or more adjustable components (Paragraphs 0031-0032, 0068-0070, 0084 teach the device can include motors/motor assemblies within the handle for rotating or adjusting the angle of the brush head);
a second set of one or more processors (Fig. 3; Paragraphs 0033, 0041 teach each brush can have an on-board computer system/processor(s));
a second set of one or more non-transitory memories, storing a first set of computer-readable instructions that, when executed by the first set of one or more processors, cause the first set of one or more processors (Paragraphs 0029, 0033 teach the system includes memory including one or more non-transitory storage medium storing instructions for execution by the processor) to:
receive, via the second communication interface, from the first handheld makeup applicator device, indications of the sensor data captured by the one or more sensors during the application of the makeup look (Paragraphs 0021, 0042, 0048, 0074-0075 teach that the system can include one or more brushes such that a user and an experienced professional can each have a device wherein the experienced user can record a technique/program using the sensors to capture data during a makeup application and transmit the program to another user’s device such that the other device receives the transmitted program and data via the network interface); and
control the one or more actuators to adjust the one or more adjustable components to guide the second user to replicate the makeup look applied by the first user of the first handheld makeup applicator device based on the sensor data captured by the one or more sensors of the first handheld makeup applicator device during the application of the makeup look (Paragraphs 0033, 0041, 0068, 0074-0075 teach the device can adjust the rotation and angle of the brush based on a programmed/recorded makeup application of an experienced user and adjust the motion/rotation and angle based on the user’s performance).
With regard to claims 2, 11, and 17, Machiorlette further teaches wherein the one or more sensors include one or more sensors configured to capture sensor data representative of movements of the handheld makeup applicator device (Paragraphs 0040, 0075 teach the brush includes one or more sensors including gyroscopes and accelerometers for tracking movement of the brush).
With regard to claims 3, 12, and 18, Machiorlette further teaches wherein the one or more sensors include one or more sensors configured to capture sensor data representative of locations of the first handheld makeup applicator device with respect to a face of the first user during the application of the makeup look (Paragraphs 0040-0041, 0042 teach the sensors are adapted to sense movement of the brush relative to a portion of the user’s body including the user’s face during a makeup application).
With regard to claims 4 and 13, Machiorlette further teaches wherein the one or more sensors include one or more image sensors (Paragraphs 0045, 0047 teach the one or more sensors can include a camera (image sensor)).
With regard to claims 5 and 14, Machiorlette further teaches wherein the one or more image sensors are configured to capture sensor data representative of a face of the first user during the application of the makeup look (Paragraphs 0041, 0045, 0047 teach the camera can capture images (sensor data) of a portion of the user’s body including a face during a makeup application).
With regard to claims 8 and 19, Machiorlette further teaches wherein the one or more adjustable components include one or more haptic components configured to provide haptic feedback to the user of the handheld makeup applicator device to guide the user of the handheld makeup applicator device to replicate the makeup look applied by the second user of the second handheld makeup applicator device (Paragraphs 0041, 0074 teach the system can provide feedback to the user based on the user’s performance and/or to replicate a stored/recorded program wherein the feedback can be in “any other suitable communication” and can include physical warnings such as a vibration using the motor assembly (haptic component and feedback).
With regard to claims 9 and 20, Machiorlette further teaches wherein the one or more adjustable components include one or more applicator heads configured to adjust to apply one or more cosmetic products to a face of the user to replicate the makeup look applied by the second user of the second handheld makeup applicator device (Paragraphs 0031-0032, 0068-0070, 0084 teach the device can be configured to include rotating or adjusting an angle of the brush head (per paragraph 0045 of the instant application the applicator head may include a brush) during application of a cosmetic product to control application and/or interchangeable brush heads wherein the brush head can be an adjustable head with movable bristles to adjust the width and amount of product applied).
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 6 and 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Machiorlette in view of Kreuzer et al. (US PGPub 20200388374), hereinafter referred to as Kreuzer.
With regard to claims 6 and 15, Machiorlette further teaches wherein the one or more image sensors are configured to capture sensor data representative of one or more cosmetic products applied to a face of the user during the application of the makeup look (Paragraphs 0041, 0045, 0047 teach the camera can capture images; Examiner notes that the limitation of the data being representative of one or more cosmetic products is nonfunctional descriptive material and the apparatus of the cited references can perform the limitation without further modification as, while Machiorlette does not explicitly teach capturing images of cosmetic products, the camera can capture an image/data that could include cosmetic products. As the claim limitations do not do anything with the data, there is no functional relationship (see MPEP 2111.05). For the sake of compact prosecution, the Examiner includes a secondary reference below arguendo).
In arguendo, Machiorlette may not explicitly teach wherein the one or more image sensors are configured to capture sensor data representative of one or more cosmetic products applied to a face of the first user during the application of the makeup look. However, Kreuzer teaches a personal care computing device including a communication interface and camera wherein the camera can capture images and videos of personal care products and identify them base on the product and/or labels (packaging) (Abstract; Paragraphs 0028, 0032-0033, 0040).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Machiorlette to incorporate the teachings of Kreuzer by incorporating the step of capturing images and/or videos of personal care products using a camera of Kreuzer using the camera of Machiorlette, as both references and the claimed invention are directed to computerized tools including motion capture sensors for assisting users in using makeup/personal care products. One of ordinary skill in the art would modify Machiorlette by using the camera to capture images and/or videos including personal care products (cosmetic products) in the user’s environment and/or used by the user. Upon such modification, the method and system of Machiorlette would include wherein the one or more image sensors are configured to capture sensor data representative of one or more cosmetic products applied to a face of the first user during the application of the makeup look. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate these teachings from Kreuzer with Machiorlette’s system and method in order to provide user further guidance and feedback relating to makeup including feedback on the products used and how to use them.
Conclusion
Accordingly, claims 1-20 are rejected.
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/CORRELL T FRENCH/Examiner, Art Unit 3715