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 1-10, 19, and 20 are 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 10-11. Examiner notes that similar corrections should be made in line 13 as well as claims 2-10 in order to maintain proper antecedence.
In claim 1, line 1, “a user” should read “a first user” to clearly differentiate from the second user of lines 11. Examiner notes that similar corrections should be made in line 13 as well as claims 2-3, 5, and 7 in order to maintain proper antecedence.
In claim 19, line 2, “a face” should read “the face” as the limitation has antecedence in claim 18.
In claim 20, lines 1-2, “a handheld makeup applicator” should read “a first handheld makeup applicator” to clearly differentiate from the second applicator of line 6. Examiner notes that similar corrections should be made in lines 4, 9, and 13.
In claim 20, line 2, “a user” should read “a first user” to clearly differentiate from the second user of line 7. Examiner notes that similar corrections should be made in line 13.
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 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-8 and 13-19 of U.S. Patent No. 12,512,008 in view of Besen et al. (US PGPub 20190208892).
The claims are taught as mapped below:
Application 18/759,288
Patent No. 12,512,008
Claim 1
Claim 1 but fails to teach an audio interface and provide audio guidance
Claim 4
Claim 2
Claim 5
Claim 3
Claim 6
Claim 4
Claim 7
Claim 5
Claim 8
Claim 6
Claim 9
Claim 7
Claim 10
Claim 8
Claim 11
Claim 13 but fails to teach an audio interface configured to provide audio guidance
Claim 14
Claim 14
Claim 15
Claim 15
Claim 16
Claim 16
Claim 17
Claim 17
Claim 18
Claim 18
Claim 19
Claim 19
Claim 20
Claim 1 wherein “based on sensor data captured by the one or more sensors of the first handheld makeup applicator device” teaches “receiving indications of sensor data captures…” but fails to teach providing audio guidance
While the ‘008 patent recites providing guidance, the ‘008 patent is silent of the teaching of the guidance being audio guidance and an audio interface [‘288 claims 1, 11, and 20] as well as the limitations of instant claims 2-3 and 12-13 of the sensors including audio sensors, the guidance including two or more steps, and providing the steps based on vocalizations by the user. However, the Besen et al. reference provides a teaching of a cosmetic apparatus for sensing motion and providing guidance to a user including a client device including sensors capable of receiving vocal commands and providing audio feedback/guidance wherein a user can use vocal commands to progress to a next step in the makeup process (Paragraphs 0033-0034, 0049, 0058-0059). 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 audio guidance and interface and receiving user vocal commands to progress between steps of a makeup tutorial/process, as taught by Besen et al., in order to provide further engagement with the user, provide further feedback, and improve user mastery (Besen et al. paragraphs 0049-0050).
Claims 1, 4-10, 11, and 14-15 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-6 and 16-18 of copending Application No. 18/758,945 (US PGPub 20260000185) in view of Machiorlette et al. (US PGPub 20170095070).
The claims are taught as mapped below; wherein bolded limitations are taught:
Application 18/759,288
Application 18/758,945
Claim 1: A handheld makeup applicator device associated with a user, the handheld makeup applicator device comprising:
a communication interface;
one or more sensors integrated into a housing of the handheld makeup applicator device;
an audio interface;
one or more processors; 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 to:
receive, via the communication interface, indications of data captured by a second handheld makeup applicator device during an application of a makeup look by a second user of the second handheld makeup applicator device; and
provide, via the audio interface, audio guidance 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, and based on sensor data captured by the one or more sensors of the handheld makeup applicator device.
Claim 1: A handheld makeup applicator device, 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;
a communication interface;
one or more processors; 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 to:
receive sensor data captured by the one or more sensors during the application of the makeup look by the user; 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 look by the user, to a second handheld makeup applicator device associated with a second user.
Claim 4
Claim 2
Claim 5
Claim 3
Claim 6
Claim 4
Claim 7
Claim 5
Claim 8
Claim 6
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 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 14
Claim 17
Claim 15
Claim 18
The ‘945 application is silent of the teaching of providing audio guidance to guide the user based on sensor data captured by the one or more sensors and an audio interface [‘288 claims 1 and 11], the second handheld makeup applicator comprising a second set of one or more sensors integrated into a second housing of the second handheld makeup applicator device; and the limitations of instant claims 9-10 of the audio interface being integrated into the handheld makeup applicator device or another device. 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 providing audio feedback via a speaker which is integrated into a separate device wherein there may be a plurality of makeup tools (Paragraphs 0021, 0028, 0041, 0043). Further, while the ‘945 application is teaching sending the indication of sensor data, it would have been obvious to one of ordinary skill in the art that such data is received by the second device as claimed. With regard to instant claim 9, integrating the speaker to the cosmetic tool to make the device integral (see MPEP 2144.04). Finally, with regard to instant claim 11, the second device having the second set of sensor is mere duplication of parts and would have been obvious to one of ordinary skill to be the same device as the first device in view of Machiorlette teaching there being one or more devices. 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 audio feedback and speaker (audio interface) to provide audio feedback, making the speaker/audio interface integrated into the cosmetic tool/applicator or another device, and the second applicator having a second set of sensors, 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.
Claims 1-3 and 11-13 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 16 of copending Application No. 18/758,945 (US PGPub 20260000185) in view Besen et al. (US PGPub 20190208892).
See the mapping above with regard to instant claims 1 and 11 in view of claims 1 and 16 of the ‘945 application. The ‘945 application is silent of the teaching of providing audio guidance to guide the user based on sensor data captured by the one or more sensors and an audio interface [‘288 claims 1 and 11], the second handheld makeup applicator comprising a second set of one or more sensors integrated into a second housing of the second handheld makeup applicator device; and the limitations of instant claims 2-3 and 12-13 of the sensors including audio sensors, the guidance including two or more steps, and providing the steps based on vocalizations by the user. However, the Besen et al. reference provides a teaching of a cosmetic apparatus for sensing motion and providing guidance to a user including a client device including sensors capable of receiving vocal commands and providing audio feedback/guidance wherein a user can use vocal commands to progress to a next step in the makeup process (Paragraphs 0033-0034, 0049, 0058-0059). 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 audio guidance and interface and receiving user vocal commands to progress between steps of a makeup tutorial/process, as taught by Besen et al., in order to provide further engagement with the user, provide further feedback, and improve user mastery (Besen et al. paragraphs 0049-0050).
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. Claims 1, 11, and 20 recite a system for performing a process, a system for performing the process, and the process, the process including the steps of providing audio guidance 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. The recited steps, under their broadest reasonable interpretation, are providing audio guidance to guide a user to replicate a makeup look of a second user based on captured data. The recited steps, as drafted, are a process that is a method of applying an abstract idea, specifically mental processes (judgement (providing guidance)) and/or certain methods of organizing human activity in the form of teaching (providing guidance). If claim limitations, under their broadest reasonable interpretation, include a mental process and/or certain methods of organizing human activity, the limitations fall under the abstract ideas judicial exception and therefore recite ineligible subject matter. Accordingly, claims 1, 11, and 20 recite abstract ideas.
The judicial exception is not integrated into a practical application because the claims do not recite additional elements that are significantly more than the judicial exception or meaningfully limit the practice of the judicial exception. The additional elements are a first handheld makeup applicator device; a second handheld makeup applicator device; a communication interface [claim 1]; one or more sensors integrated into a housing of the handheld makeup applicator device; an audio interface [claims 1 and 11]; one or more processors [claims 1 and 20]; 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 to perform the process [claim 1]; receive, via the communication interface, indications of data captured by a second handheld makeup applicator device during an application of a makeup look by a second user of the second handheld makeup applicator device [claims 1 and 20]; receiving indications of sensor data captured by one or more sensors of the handheld makeup applicator device [claims 11 and 20]; and providing the guidance based on sensor data captured by the one or more sensors of the handheld makeup applicator device. The additional elements are insignificant extra-solution activity and instructions for applying the judicial exception with a generic computing device as, under their broadest reasonable interpretation, the additional step(s) is/are mere data gathering (receiving/capturing sensor data) (see MPEP 2106.05(g)), transmitting and receiving data over a network via a communication interface (see MPEP 2106.05(d), and providing the guidance based on the gathered data. The other additional elements of a first and second applicator devices, a communication interface, one or more sensors integrated in the devices, an audio interface, one or more processors, and on or more non-transitory memories are generic computer components for performing the above method, per MPEP 2106.05(f). Under their broadest reasonable interpretation, the additional elements are generic components of a computing device used to apply the abstract idea. Further, paragraph 0067 of the specification states the computing devices may include smart phones, laptops, tablets, and etc. and paragraph 0070 recite the hardware at a high level of generality. As such, these additional elements are interpreted as merely instructions to apply the judicial exception. Accordingly, the additional elements and steps do not integrate the abstract idea into a practical application because they do not impose any meaningful limitations on practicing the abstract idea. Therefore, the claims are directed to an abstract idea.
The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because, as discussed above, the additional step(s) of capturing sensor data, receiving data via a communication interface, and using the captured sensor data is/are insignificant extra-solution activity performed during the abstract idea. The additional elements of a first and second applicator devices, a communication interface, one or more sensors integrated in the devices, an audio interface, one or more processors, and on or more non-transitory memories used to perform the process are generic computing components/devices used to apply the judicial exception and therefore fall under the “apply it” limitation of the judicial exception and do not amount to significantly more per MPEP 2106.05(f). Further, the limitations, taken in combination, add nothing that is not already present when looking at the elements taken individually. As such, the claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because, under their broadest reasonable interpretation, the additional elements do not meaningfully limit the practice of the abstract idea and do not amount to significantly more than the judicial exceptions. Therefore, claims 1, 11, and 20 are not directed to eligible subject matter as they are directed to abstract ideas without significantly more.
Claims 2-10 and 12-19 are dependent from claims 1 and 11, respectively, and include all the limitations of the independent claims. Therefore, the dependent claims recite the same abstract idea. The limitations of the dependent claims fail to amount to significantly more than the judicial exception. For example:
The limitations of claims 2-19 recite further clarification of the sensors included in the one or more sensors including audio and image sensors, integrating the audio interface into a device, and the type of data captured by the sensors. The sensors and devices for integration are recited at a high level of generality amounting to generic computing components for performing the process or applying the judicial exceptions, and the clarifications of the types of data captured are insignificant extra-solution activity as merely defining/selecting a data source or type of data to be manipulated (see MPEP 2106.05(g)). The limitations fail to provide any teaching that integrates the judicial exceptions into a practical application or amounts to significantly more than the judicial exceptions. For this reason, the analysis performed on the independent claims is also applicable on these claims.
Accordingly, claims 2-10 and 12-19 are directed to abstract ideas without significantly more and are not drawn to eligible subject matter.
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, 4-7, 10-11, 14-17, and 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 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 sensors integrated into a housing of the handheld makeup applicator device (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);
an audio interface (Paragraphs 0028, 0041 teach the system can include a speaker and provide audio feedback);
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, indications of data captured by a 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 experience 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 user’s device receives the corresponding data); and
provide, via the audio interface, audio guidance 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, and based on sensor data captured by the one or more sensors of the handheld makeup applicator device (Paragraphs 0041-0042, 0048, 0074-0075 teach the system can provide audio feedback (audio guidance) to improve a user’s technique based on the technique of an experienced user/professional wherein the feedback is based on the user’s performance captured by the sensors of the device).
With regard to claim 11, 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 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 (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); and
a 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 set of one or more sensors integrated into a second housing of the second handheld makeup applicator device (Fig. 3; Paragraphs 0040, 0043, 0045-0047 teach the devices comprise a variety of one or more sensors in the handle of/integrated with each brush/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 (Paragraphs 0041-0042, 0048, 0074-0075 teach the system can provide audio feedback (audio guidance) to improve a user’s technique based on the technique of an experienced user/professional wherein the feedback is based on the user’s performance captured by the sensors of the device).
With regard to claim 20, Machiorlette teaches a computer-implemented method executed by one or more processors of a handheld makeup applicator device associated with a user (Paragraphs 0033, 0041, 0046 teach a computer-implemented method executed by aa computer system/processors), the computer-implemented method comprising operations including:
receiving indications of sensor data captured by one or more sensors of the handheld makeup applicator device (Fig. 3; Paragraphs 0040, 0043, 0045-0047 teach the devices comprise a variety of one or more sensors in the handle of/integrated with each brush/device that capture corresponding data of the brush);
receiving indications of data captured by a second handheld makeup applicator device during an application of a makeup look by a second user of the second handheld makeup applicator device (Paragraphs 0041-0042, 0048, 0074-0075 teach the system can capture the technique of an experienced user/professional using the sensors of a device used by the professional during a makeup application); and
providing audio guidance 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, and based on the sensor data captured by the one or more sensors of the handheld makeup applicator device as the user attempts to replicate the makeup look (Paragraphs 0041-0042, 0048, 0074-0075 teach the system can provide audio feedback (audio guidance) to improve a user’s technique based on the technique of an experienced user/professional wherein the feedback is based on the user’s performance captured by the sensors of the device).
With regard to claims 4 and 14, Machiorlette further teaches wherein the first set of 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 5 and 15, Machiorlette further teaches wherein the first set of 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 6 and 16, Machiorlette further teaches wherein the first set of 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 7 and 17, 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 claim 10, Machiorlette further teaches wherein the audio interface is integrated into another device, separate from the handheld makeup applicator device (Paragraphs 0021, 0028 teach the system can include one or more remote devices (such as a smart phone or computer) which include audio outputs and/or servers including a speaker wherein the devices/speaker are separate from the computerized brush).
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) 2-3 and 12-13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Machiorlette in view of Besen et al. (US PGPub 20190208892), hereinafter referred to as Besen.
With regard to claims 2 and 12, Machiorlette may not explicitly teach wherein the one or more sensors include one or more audio sensors configured to capture data representative of vocalizations by the user of the handheld makeup applicator device. However, Besen teaches a cosmetic applicator system including a client device and/or a trackable cosmetic device for assisting users in makeup application wherein the system includes sensors for receiving user input including vocal commands (vocalizations) and audio output/feedback (Abstract; Paragraphs 0033-0035, 0049, 0058-0059).
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 Besen by including sensors for receiving user vocal commands as an input of Besen as one of the one or more sensors of Machiorlette, as both references and the claimed invention are directed to computerized makeup application tools including motion capture sensors for assisting users in makeup application. One of ordinary skill in the art would modify Machiorlette by including an audio capture sensor such as a microphone as one of the one or more sensors in order to capture user vocal commands as user inputs. Examiner notes that while Besen does not explicitly state a microphone, microphones are well-known in the art and would be an obvious choice of hardware for one of ordinary skill in the art. Upon such modification, the method and system of Machiorlette would include wherein the one or more sensors include one or more audio sensors configured to capture data representative of vocalizations by the user of the handheld makeup applicator device. 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 Besen with Machiorlette’s system and method in order to provide user functionality and ease of use as well as improve user interaction.
With regard to claims 3 and 13, Machiorlette may not explicitly teach wherein the audio guidance includes two or more audio guidance steps, and wherein providing each subsequent audio guidance step is provided based on the data representative of vocalizations by the user of the handheld makeup applicator device. However, Besen further teaches the system includes step-by-step training (two or more audio guidance steps) wherein the system can progress to the next step in the application module/guidance upon receiving an indication from the user such as a user input including vocal commands (Paragraphs 0029, 0049).
As discussed above, 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 Besen by including step-by-step guidance progressed by user vocal commands and sensors for receiving the user vocal commands as an input of Besen for the training routings and as one of the one or more sensors of Machiorlette, as both references and the claimed invention are directed to computerized makeup application tools including motion capture sensors for assisting users in makeup application. One of ordinary skill in the art would modify Machiorlette by including step-by-step guidance for the recorded routines and/or training and an audio capture sensor such as a microphone as one of the one or more sensors in order to capture user vocal commands as user inputs which can indicate if a user is ready to progress to a next step in the audio guidance/feedback. Examiner notes that while Besen does not explicitly state a microphone, microphones are well-known in the art and would be an obvious choice of hardware for one of ordinary skill in the art. Upon such modification, the method and system of Machiorlette would include wherein the audio guidance includes two or more audio guidance steps, and wherein providing each subsequent audio guidance step is provided based on the data representative of vocalizations by the user of the handheld makeup applicator device. 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 Besen with Machiorlette’s system and method in order to provide user functionality and ease of use as well as improve user interaction.
Claim(s) 8 and 18-19 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 8 and 18, 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 first 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.
With regard to claim 19, Machiorlette further teaches wherein the sensor data representative of the one or more cosmetic products, applied to a face of the first user during the application of the makeup look, includes sensor data representative of packaging of the one or more cosmetic products (Paragraphs 0041, 0045, 0047 teach the camera can capture images; Examiner notes that the limitation of the sensor data being representative of one or more cosmetic products including packaging 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 including their packaging, the camera can capture an image/data that could include cosmetic products including packaging. 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 sensor data representative of the one or more cosmetic products, applied to a face of the first user during the application of the makeup look, includes sensor data representative of packaging of the one or more cosmetic products. 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) including their labels, barcodes, and other text on the products/packaging in the user’s environment and/or used by the user. Upon such modification, the method and system of Machiorlette would include wherein the sensor data representative of the one or more cosmetic products, applied to a face of the first user during the application of the makeup look, includes sensor data representative of packaging of the one or more cosmetic products. 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.
Claim(s) 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Machiorlette in view of Balooch et al. (US PGPub 20180184796), hereinafter referred to as Balooch.
With regard to claim 9, Machiorlette may not explicitly teach wherein the audio interface is integrated into the handheld makeup applicator device. However, Balooch teaches a computerized styling tool including sensors wherein the tool can provide feedback to the user based on usage and sensor data wherein the tool includes output indicators such as an audible output (audio interface) in the form of a speaker within the tool (Abstract; Paragraphs 0053, 0087, 0089).
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 Balooch by integrating the audio output/speaker of Machiorlette into the brush/styling tool as taught by Balooch, as both references and the claimed invention are directed to computerized styling tools including motion capture sensors for providing feedback to users during a styling process. One of ordinary skill in the art would modify Machiorlette by integrating the speaker or other audio output into the brush/styling tool to provide the user audio feedback and guidance. Upon such modification, the method and system of Machiorlette would include wherein the audio interface is integrated into the handheld makeup applicator device. 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 Balooch with Machiorlette’s system and method in order to simplify the device/system and provide feedback without another device and as making parts integral to a system is well-known per MPEP 2144.04.
Conclusion
Accordingly, claims 1-20 are rejected.
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/CORRELL T FRENCH/Examiner, Art Unit 3715
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