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 .
Priority
Acknowledgment is made of applicant's claim for foreign priority based on an application filed in the French Republic on 11/27/2023. It is noted, however, that applicant has not filed a certified copy of the FR2313068 application as required by 37 CFR 1.55.
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 not 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 and therefore it 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 4-6, 8, 12, 15 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 4 recites the limitation "wherein the aerosolized cosmetic composition is for application to hair of an individual" in line 1. There is insufficient antecedent basis for this limitation in the claim, since there is no previous recitation of the composition being aerosolized. Additionally, the composition is recited functionally in claim 1, and then is positively recited in claim 4, making the claim indefinite. For examining purposes, it was understood that the cosmetic composition is aerosolized and is configured for application to hair of an individual. Clarification is required.
Claim 5 recites the limitation “ion generator” 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. For examining purposes, the examiner is treating “an ion generator” to be an electrostatic charger.
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.
Claims 5 recites the limitation “wherein the aerosolized cosmetic composition includes a hair dye that is curable with hot air of the hair dryer”. However, the composition is recited functionally in claim 1, and then is positively recited in claim 5, making the claim indefinite as it is unclear whether the composition is being positively recited or not. Clarification is required.
Claim 6 recites the limitation “wherein the cosmetic composition is selectable based at least in part on a natural strand color, a strand density, etc…”. However, the composition is recited functionally in claim 1, and then is positively recited in claim 6, making the claim indefinite as it is unclear whether the composition is being positively recited or not. For examining purposes, it was understood that the circuitry is configured such that the cosmetic composition can be selected at least in part on the recited parameters of a hair strand. Clarification is required.
Claim 8 recites the limitation “an aerosolized cosmetic composition” in line 2. It is unclear whether this is referring to the same composition recited in claim 1 or a different composition. For examining purposes, it was understood as the cosmetic composition of claim 1. Clarification is required.
Claim 12 recites the limitation “to apply and cure a cosmetic composition” and “applying…an aerosolized cosmetic composition” in lines 8 and 11. It is unclear whether this is referring to the aerosolized cosmetic composition recited in line 1 of the claim or a different composition. It was understood as the same aerosolized cosmetic composition. Clarification is required.
Claim 15 recites both a product and a process in the same claim and therefore crosses 2 statutory categories. It is unclear when infringement would occur. See MPEP 2173.05(p) for additional information.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 1-4, 6-13, 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Abehasera (US 10,918,184 B1), in view of Kosecoff (US 2022/0088407 A1).
Regarding claims 1, Abehasera teaches an attachment for a hair dryer (10, Col. 1 ll. 64-67), the attachment comprising a proximity sensor (200) operably connected to circuitry (18) and configured to transmit data that corresponds to a distance between the attachment and a portion of a body of an individual to the circuitry (Coll. 3 ll. 41-63); wherein the circuitry is configured to control, based on data received from the proximity sensor, operation of the attachment, the hair dryer, or both (Col. 3 ll. 58-67 - Col. 3 ll. 1 – Col. 4 ll. 3; the controller can send a shut-off signal associated with conditions such as distance, temperature, humidity, airflow or time, and therefore is fully capable of controlling operation of the hair dryer).
However, Abehasera does not explicitly disclose the circuitry is configured to control operation to apply and cure a cosmetic composition to the portion of the body of the individual.
Kosecoff teaches a device comprising sensors (160, 162, 164), including a proximity sensor (162) which may be a camera and/or infrared, and a controller to diagnose a portion of the body such as the hair or scalp (abstract, ([0001], [0016], [0048], [0050]). Kosecoff further discloses application of an aerosolized cosmetic composition to the portion of the body based on the diagnosis and controlling the hair dryer to vary the air temperature proportional to the distance the device is moved away from the hair and dispensing differently based on the distance of the device from the body portion ([0054-0057], [0064-0067]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the device of Abehasera to be capable of controlling the operation of the hair dryer based on spatial parameters for applying or drying a composition, as taught by Kosecoff, because it provides real time data that allows for simultaneous functionality and efficient results ([0064-0065]).
Regarding claim 2, Abehasera in view of Kosecoff teaches the attachment of claim 1 (see rejection above). Abehasera further discloses wherein the attachment is configured for physical attachment to the hair dryer (see Figures 1-2 and Col. 1 ll. 63 – Col. 2 ll. 8).
Regarding claim 3, Abehasera in view of Kosecoff teaches the attachment of claim 2 (see rejection above). Abehasera further discloses wherein the attachment is an after-market addition to the hair dryer (Col. 1 ll. 63 – Col. 2 ll. 8; the attachment is an “add-on” to a hair dryer and therefore is considered to meet this limitation as recited).
Please note that the recited limitation does not add any additional structure to the claimed device and only how the device is obtained by the user and therefore is considered intended use.
Regarding claim 4, Abehasera in view of Kosecoff teaches the attachment of claim 1 (see rejection above). Kosecoff teaches the cosmetic composition is for application to hair of an individual ([0053-0055, 0064-0067]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the device of Abehasera to be capable of controlling the operation of the hair dryer based on spatial parameters for applying or drying a composition, as taught by Kosecoff, because it provides real time data that allows for simultaneous functionality and efficient results ([0064-0065]).
Regarding claim 6, Abehasera in view of Kosecoff teaches the attachment of claim 1 (see rejection above). Kosecoff further teaches wherein the cosmetic composition is selectable based at least in part on a natural strand color, a strand density, a strand thickness, a strand length, one or more artificial strand colors, or any combination thereof, of hair of the individual ([0053-0056, 0064-0067]; such that the controls depend on a length/distance along a strand of hair by being at or away from the roots).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the device of Abehasera to be capable of controlling the operation of the hair dryer based on spatial parameters for applying or drying a composition, as taught by Kosecoff, because it provides real time data that allows for simultaneous functionality and efficient results ([0064-0065]).
Regarding claim 7, Abehasera in view of Kosecoff teaches the attachment of claim 1 (see rejection above). Kosecoff 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 data received from the proximity sensor ([0053-0056, 0064-0067]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the device of Abehasera to be capable of controlling the operation of the hair dryer based on spatial parameters for applying or drying a composition, as taught by Kosecoff, because it provides real time data that allows for simultaneous functionality and efficient results ([0064-0065]).
Regarding claim 8, Abehasera in view of Kosecoff teaches the attachment of claim 7 (see rejection above). Kosecoff 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 ([0053-0056, 0064-0067]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the device of Abehasera to be capable of controlling the operation of the hair dryer based on spatial parameters for applying or drying a composition, as taught by Kosecoff, because it provides real time data that allows for simultaneous functionality and efficient results ([0064-0065]).
Regarding claim 9, Abehasera in view of Kosecoff teaches the attachment of claim 1 (see rejection above). Abehasera teaches wherein the attachment is attached or is attachable to a hair dryer of the hair dryer system (Col. 1 ll. 63 – Col. 2 ll. 8).
Regarding claim 10, Abehasera teaches method for applying an aerosolized cosmetic composition to a portion of a body of an individual (Col. 4 ll. 61 – Col. 5 ll. 18), the method comprising:
detecting, with a proximity sensor of an attachment for a hair dryer, the portion of the body (Coll. 3 ll. 41-63), and
transmitting, from the proximity sensor, data that corresponds to a distance between the attachment and the portion of the body of the individual to circuitry of the attachment and/or the hair dryer (Col. 3 ll. 41-63), wherein the attachment is attachable to the hair dryer (Col. 1 ll. 63 – Col. 2 ll. 8);
applying, with an applicator of the attachment (113), an aerosolized cosmetic composition to the portion of the body of the individual (Col. 4 ll. 61 – Col. 5 ll. 18), and activating a blower of the hair dryer, wherein the applicator applies and the hair dryer blows air based at least in part on the one or more parameter values (Col. 4 ll. 61 – Col. 3 ll. 18).
Abehasera does not explicitly teach computing, with the circuitry, one or more parameter values for operation of the attachment, the hair dryer, or both, to apply and cure a cosmetic composition to the portion of the body of the individual.
Kosecoff teaches devices and methods comprising sensors (160, 162, 164), including a proximity sensor (162) which may be a camera and/or infrared, and a controller to diagnose a portion of the body such as the hair or scalp (abstract, ([0001], [0016], [0048], [0050]). Kosecoff further discloses application of an aerosolized cosmetic composition to the portion of the body based on the diagnosis and controlling the hair dryer to vary the air temperature proportional to the distance the device is moved away from the hair and dispensing differently based on the distance of the device from the body portion ([0054-0057], [0064-0067]). Kosecoff teaches computing, with circuitry, an applicator spray level based on the sensing ([0055-0057]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the method of Abehasera with the teachings of Kosecoff to include steps including computation and programming of settings based on the sensing, because Kosecoff teaches that this method is known in the art and because it provides real time data that allows for simultaneous functionality and efficient results ([0064-0065]).
Regarding claim 11, Abehasera in view of Kosecoff teaches the method of claim 10 (see rejection above). Abehasera further discloses wherein the attachment is attached to the hair dryer (Col. 1 ll. 63 – Col. 2 ll. 8).
Regarding claim 12, Abehasera in view of Kosecoff teaches the method of claim 11 (see rejection above). Abehasera/Kosecoff, as combined further teach a detection area of the proximity sensor, a spray area of the applicator of the attachment, and a portion of the hot air blown by the hair dryer coincide with the portion of the body (such that they are all part of the attachment that is used proximal to the portion of the body).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the method of Abehasera with the teachings of Kosecoff to include steps including computation and programming of settings based on the sensing, because Kosecoff teaches that this method is known in the art and because it provides real time data that allows for simultaneous functionality and efficient results ([0064-0065]).
Regarding claim 13, Abeharesa in view of Kosecoff teaches the method of claim 10 (see rejection above). Kosecoff teaches wherein the aerosolized cosmetic composition is for application to hair of the individual ([0053-0055], [0064-0067]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the method of Abehasera with the teachings of Kosecoff to include steps including computation and programming of settings based on the sensing, because Kosecoff teaches that this method is known in the art and because it provides real time data that allows for simultaneous functionality and efficient results ([0064-0065]).
Regarding claim 15, Abehasera discloses a computational device comprising circuitry configured to perform part of the method of claim 10 (Col. 1 ll. 63 – Col. 2 ll. 25). Abehasera in view of Kasecoff teaches circuitry configured to perform all of the method of claim 10 (see rejection of claim 10 above).
Claim(s) 5, 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Abehasera (US 10,918,184 B1), in view of Kosecoff (US 2022/0088407 A1), and further in view of Lin (US 6,425,403).
Regarding claim 5, Abehasera in view of Kosecoff teaches the attachment of claim 4 (see rejection above). Kosecoff further discloses the device comprises an ion generator for generation of ions ([0036-0038]). It would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to modify the device to include an ion generator, as taught by Kosecoff, as it is beneficial to provide specific settings to hair treatments ([0033]).
As combined, the device is fully capable of generating ions in a hair dye prior to application if intended to do so. However, Abehasera/Kosecoff is silent to the aerosolized cosmetic composition includes a hair dye that is curable with hot air of the hair dryer. Lin teaches that is a known process to provide hot hair from a hair dryer to cure a hair dye composition (abstract, Col. 4 ll. 41-49, Col. 6 ll. 51-56 and Col. 7 ll. 11-22).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to use a hair dye that is curable with hot air, as taught by Lin, because it is known in the art and can minimize hair damage (abstract and Col. 6 ll. 51-56).
Regarding claim 14, Abeharesa in view of Kosecoff teaches the method of claim 13 (see rejection above). Abehasera/Kosecoff is silent to the aerosolized cosmetic composition includes a hair dye that is curable with hot air of the hair dryer. Lin teaches that is a known process to provide hot hair from a hair dryer to cure a hair dye composition (abstract, Col. 4 ll. 41-49, Col. 6 ll. 51-56 and Col. 7 ll. 11-22).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to use a hair dye that is curable with hot air, as taught by Lin, because it is known in the art and can minimize hair damage (abstract and Col. 6 ll. 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, and 5 of copending Application No. 18/812,180 (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 a “camera” sensor and a “proximity” sensor. However, it is obvious that the proximity sensor must be an imaging or othertwise known as a camera sensor especially in light of paragraph [0047] of the instant specification stating that the proximity captures imagery of hair.
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 claim 1, 4 and 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 being applied to hair with ions.
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 PTO-892 attached to this office action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LINA FARAJ whose telephone number is (571)272-4580. The examiner can normally be reached Monday-Friday.
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/LINA FARAJ/ Examiner, Art Unit 3772
/EDELMIRA BOSQUES/ Supervisory Patent Examiner, Art Unit 3772