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
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
This is in response to Application filed August 22, 2024, in which claim(s) 1-15 is/are presented for examination.
Status of Claims
Claim(s) 1-15 is/are pending of which Claim(s) 1 and 10 is/are presented in independent form.
Claim Objections
Claim 9 is objected to because of the following informalities: “attachable a hair dryer of the hair dryer system.” appears to be missing a linking word such as “to” directly after “attachable”. Appropriate correction is required.
Claim 10 is objected to because of the following informalities: Claim 10 recites, “the portion of the body to produce an image”, however, this limitation needs a comma after the word “body” to clearly express the method and clarifying language. Examiner suggests the following or similar: “the portion of the body, to capture an image of the portion of the body”.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: ion generator in claim 5.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
There is no corresponding structure found in the specification as performing the claimed function. See below.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claim 5 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. Applicant does not properly explain the structure or equivalent thereof of the claimed ion generator. Therefore, Claim 5 lacks proper written description.
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 5, 12, and 15 is/are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim limitation “ion generator” in Claim 5 invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. However, the written description fails to disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function. Therefore, claim 5 is indefinite and is rejected under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph.
Applicant may:
(a) Amend the claim so that the claim limitation will no longer be interpreted as a limitation under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph;
(b) Amend the written description of the specification such that it expressly recites what structure, material, or acts perform the entire claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(c) Amend the written description of the specification such that it clearly links the structure, material, or acts disclosed therein to the function recited in the claim, without introducing any new matter (35 U.S.C. 132(a)).
If applicant is of the opinion that the written description of the specification already implicitly or inherently discloses the corresponding structure, material, or acts and clearly links them to the function so that one of ordinary skill in the art would recognize what structure, material, or acts perform the claimed function, applicant should clarify the record by either:
(a) Amending the written description of the specification such that it expressly recites the corresponding structure, material, or acts for performing the claimed function and clearly links or associates the structure, material, or acts to the claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(b) Stating on the record what the corresponding structure, material, or acts, which are implicitly or inherently set forth in the written description of the specification, perform the claimed function. For more information, see 37 CFR 1.75(d) and MPEP §§ 608.01(o) and 2181.
For purposes of examination, Examiner is treating “an ion generator” to be an electrostatic charger.
Claim 12 recites the limitation "the hot air" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim 15 is indefinite since it includes both a product and a process in the same claim thus crossing 2 statutory categories. It is not clear when infringement would occur. For example, does infringement occur at the method or at the structure break? See MPEP 2173.05(p) for additional information.
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.
Claim(s) 1-4, 6-13 and 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Abehasera (hereinafter Abe) USPN 10,918,184 in view of Kosecoff et al. (hereinafter Kose) CN116456860 (translation used for rejection is USPUB 2022/0088407 for clarity).
Regarding Claim 1, Abe discloses an attachment (10) for a hair dryer (col. 1, lines 64-67), the attachment comprising a camera sensor (13) operably connected to circuitry (18); wherein the circuitry is configured to image, with the camera sensor, a portion of a body of an individual (col. 4, lines 20-30).
Abe does not explicitly disclose wherein the camera sensor/circuitry gives a diagnosis of the portion of the body and an application of an aerosolized cosmetic composition to the portion of the body based at least in part on the diagnosis.
However, Kose teaches an analogous device having camera sensors and circuitry (at least Paras. [0001, 0016, 0048, 0050, 0053-0055]) to diagnosis of the portion of the body (at least Paras. [0053-0057, 0064-0067]) and an application of an aerosolized cosmetic composition to the portion of the body based at least in part on the diagnosis (at least Paras. [0064-0067]).
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 invention of Abe and included programming for diagnosing with subsequent treatment in response to the diagnosis as taught by Kose; because Kose teaches this programming is known in the art and is beneficial for providing real time (Para. [0064]) results with treatment easily for a user and concurrently minimizes waste and inhalable mists (Paras. [0003 and 0069]).
Regarding Claim 2, Abe further discloses wherein the attachment is configured for physical attachment to the hair dryer (col. 1, line 63 – col. 2, line 8).
Regarding Claim 3, Abe further discloses wherein the attachment is an after-market addition to the hair dryer (col. 1, line 63 – col. 2, line 8; “add-on” is considered to meet this limitation inasmuch as currently claimed). Additionally, this limitation is not deemed to add any additional structure to the claimed device only how the device is obtained by a user and as this is not a method claim, this limitation is essentially intended use.
Regarding Claim 4, as combined, Kose further teaches wherein the aerosolized cosmetic composition is for application to hair of an individual (at least Paras. [0053-0055, 0064-0067]).
Regarding Claim 6, as combined, Kose further teaches wherein the diagnosis corresponds to a natural strand color, a strand density, a strand thickness, a strand length, one or more artificial strand colors, or any combination thereof (at least Paras. [0053-0056, 0064-0067] “in relation to the hair or not”).
Regarding Claim 7, as combined, Kose further teaches wherein the circuitry is configured to compute a hair dryer blower level, a hair dryer blower temperature, and/or an applicator spray level based at least in part on the diagnosis (at least Paras. [0053-0056, 0064-0067]).
Regarding Claim 8, as combined, Kose further teaches wherein the circuitry is configured to: activate an applicator of the attachment for application of an aerosolized cosmetic composition to the portion of the body of the individual; and activate a blower of the hair dryer; wherein the hair dryer blows air based at least in part on the hair dryer blower level, the hair dryer blower temperature, and/or the applicator spray level (at least Paras. [0053-0057, 0064-0067]).
Regarding Claim 9, Abe further discloses wherein the attachment is attached or is attachable a hair dryer of the hair dryer system (col. 1, line 63 – col. 2, line 8).
Regarding Claim 10, Abe discloses a method for applying an aerosolized cosmetic composition to a portion of a body of an individual (col. 4, line 61-col. 5, line 18), the method comprising: imaging, with a camera sensor (col. 4, lines 20-30) of an attachment for a hair dryer (col. 1, line 63 – col. 2, line 8), the portion of the body to produce an image (see claim objection above which is how this limitation is being interpreted; col. 4, lines 20-30), wherein the attachment is attachable to the hair dryer (col. 1, line 63 – col. 2, line 8), and applying, with an applicator (113 of attachment 10), the aerosolized cosmetic composition to the portion of the body of the individual (col. 4, line 61-col. 5, line 18), and activating a blower of the hair dryer; wherein the hair dryer blows air based at least in part on the hair dryer blower level, the hair dryer blower temperature, and/or the applicator spray level (col. 4, line 61-col. 5, line 18).
Abe does not explicitly disclose computing, with circuitry, a diagnosis of the portion of the body of the individual based at least in part on the image; computing, with circuitry, a hair dryer blower level, a hair dryer blower temperature, and/or an applicator spray level based at least in part on the diagnosis.
However, Kose teaches an analogous device for computing, with circuitry, a diagnosis of the portion of the body of the individual based at least in part on the image (at least Paras. [0001, 0016, 0048, 0050, 0053-0057, and 0064-0067]); computing, with circuitry, a hair dryer blower level, a hair dryer blower temperature, and/or an applicator spray level based at least in part on the diagnosis (at least Paras. [0001, 0016, 0048, 0050, 0053-0057, and 0064-0067]). Additionally, and alternatively if Applicant disagrees with any portion of the disclosure of Abe as written above, Kose further teaches applying, with an applicator, the aerosolized cosmetic composition to the portion of the body of the individual, and activating a blower of the hair dryer; wherein the hair dryer blows air based at least in part on the hair dryer blower level, the hair dryer blower temperature, and/or the applicator spray level (at least Paras. [0001, 0016, 0048, 0050, 0053-0057, and 0064-0067]).
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 method of Abe with the teachings of Kose and included the programming related to the claimed diagnosis and treatment of the user’s body; because Kose teaches that this method is known in the art and is beneficial for providing real time (Para. [0064]) results with treatment easily for a user and concurrently minimizes waste and inhalable mists (Paras. [0003 and 0069]).
Regarding Claim 11, Abe further discloses wherein the attachment is attached to the hair dryer (col. 1, line 63 – col. 2, line 8).
Regarding Claim 12, as combined, Kose teaches wherein a diagnosis area of the camera sensor, a spray of the applicator of the attachment, and a portion of the hot air blown by the hair dryer are coincident with the portion of the body (at least Paras. [0001, 0016, 0048, 0050, 0053-0057, and 0064-0067]).
Regarding Claim 13, as combined, Kose further teaches wherein the aerosolized cosmetic composition is for application to hair of the individual (at least Paras. [0053-0055, 0064-0067]).
Regarding Claim 15, Abe discloses a computational device comprising circuitry configured to perform all or part of the method of claim 10 -(col. 1, line 63 – col. 2, line 25). Alternatively, as combined, Kose teaches a computational device with circuitry to perform all of the method (at least Paras. [0001, 0016, 0048, 0050, 0053-0057, and 0064-0067]).
Claim(s) 5 and 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Abehasera (hereinafter Abe) USPN 10,918,184 in view of Kosecoff et al. (hereinafter Kose) CN116456860 (translation used for rejection is USPUB 2022/0088407 for clarity) and further in view of Lin lu et al. (hereinafter Lin) USPN 6,425,403.
Regarding Claim 5, Abe/Kose disclose(s) the invention as claimed above. Kose further teaches an ion generator for generation of ions (Paras. [0036-0038]).
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 included in the attachment of Abe an ion generator as taught by Kose; because Kose teaches that this is known in the art and is beneficial for providing specific settings to hair treatments (Para. 0033). Examiner notes that as combined, limitation of the generation of ions in the hair dye prior to application is intended use but as combined above, the device is fully capable to provide the claimed limitation. They do not explicitly disclose wherein the aerosolized cosmetic composition includes a hair dye that is curable with hot air of the hair dryer, however, Lin teaches that it is a known process to provide hot air from a hair dryer to hair dye to cure it (at least Abstract, col. 4, lines 41-49, col. 6, lines 51-56, and col. 7, lines 11-22).
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 used hair dye that is curable with hot air as taught by Lin; because Lin teaches that this arrangement is known in the art an and is beneficial because it is minimizes hair damage (at least Abstract and col. 6, lines 51-56).
Regarding Claim 14, Abe/Kose disclose(s) the invention as claimed above. They do not explicitly disclose wherein the aerosolized cosmetic composition includes a hair dye that is curable with hot air of the hair dryer.
However, Lin teaches that it is a known process to provide hot air from a hair dryer to hair dye to cure it (at least Abstract, col. 4, lines 41-49, col. 6, lines 51-56, and col. 7, lines 11-22).
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 used hair dye that is curable with hot air as taught by Lin; because Lin teaches that this arrangement is known in the art an and is beneficial because it is minimizes hair damage (at least Abstract and col. 6, lines 51-56).
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.
Claim 5 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 4, 5 of copending Application No. 18/812,174 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because both applications claim the same subject matter of aerosolized cosmetic applied to hair along with ions.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claim 5 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 4, and 5 of copending Application No. 18/812,193 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the only difference is the use of “proximity” sensor and “camera” sensor. However, it is obvious that the proximity sensor must be an imaging or otherwise known as a camera sensor since at least Para [0047] of the ‘193 specification describes “imagery of hair…..captured by a proximity sensor”.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See any related prior art listed on the 892.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANNA K KINSAUL whose telephone number is (571)270-1926. The examiner can normally be reached Monday-Friday 8:30am-5pm.
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/ANNA K KINSAUL/Supervisory Patent Examiner, Art Unit 3731