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 .
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.upto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-17 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 5-7, and 14, of U.S. Patent No. 12,127,656. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of the patent "anticipate" the claims of the application. Accordingly, the application claims are not patentably distinct from the patent claims. Here, the more specific patent claims encompass the broader application claim. Following the rationale in In re Goodman cited in the preceding paragraph, where applicant has once been granted a patent containing a claim for the specific or narrower invention, applicant may not then obtain a second patent with a claim for the generic or broader invention without first submitting an appropriate terminal disclaimer
Claim Rejections - 35 USC § 112
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 2 is 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.
Regarding claim 2, the phrase "blade-like" renders the claim(s) indefinite because the claim(s) include(s) elements not actually disclosed (those encompassed by "or the like"), thereby rendering the scope of the claim(s) unascertainable. See MPEP § 2173.05(d).
Claim Rejections - 35 USC § 102
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.
Claim(s) 1-8 and 13-16 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Mourad (US 2008/02236604).
Regarding claim 1, Mourad discloses a hair styling apparatus comprising
a first arm and a second arm (32, 34) pivotally coupled together and moveable between an open position and a closed position (Figure 3 and 3A), an inner wall of the first arm is arranged to face an inner wall of the second arm (36, 38), wherein the first arm and the second arm are arranged to receive hair within a cavity therebetween (paragraph 36), wherein the cavity is formed between the first arm and the second arm in the closed position, and wherein at least one of the first arm and second arm comprise a plenum, said plenum comprising an air inlet for receiving airflow from a fan unit and an air outlet configured to direct airflow towards the cavity (The cross-sectional diagram shown in Figure 3A of Mourad, shows that each arm includes an air duct through which air is forced by a fan; Paragraph [0040] of Mourad explains that: "The air passageway 42 has an elongate air outlet 52 which is parallel to the arm 32 and extends along the side of the hair receiving surface 36". The air outlet 52 is configured to blow air into the cavity "across the hair receiving surface 36 and thus substantially along the length of hair placed perpendicular to the arm 32 on the surface 36". Therefore, at least one arm of Mourad's hair styling apparatus has a plenum (air passageway) comprising an air inlet that receives airflow from the fan and an outlet 52 that directs such airflow towards the cavity).
Regarding claim 2, the air outlet (52) is configured to emit blade-like airflow towards the cavity (52 is a narrow slot which is interpreted to create blade like airflow; Figure 3A).
Regarding claim 3, the air outlet (52) is configured to direct laminar airflow towards the cavity (laminar airflow is interpreted as airflow in parallel layers; Mourad teaches a narrow slot, the narrow slot it will be interpreted as laminar airflow).
Regarding claim 4, the air outlet (52) is adapted to direct airflow into the cavity and towards an exhaust port, wherein the cavity functions as an expansion chamber for the incoming airflow, and wherein the exhaust port is for moisture droplets and the expanded airflow to exit the cavity. Even though Mourad does not explicitly disclose that air flowing inside the air passage does so with higher pressure than atmospheric pressure, it is clear that the airflow inside the air passage must be at a higher pressure than atmospheric pressure because airflow must move from an area of high pressure to an area of low pressure, otherwise there would be no movement of air as the air exits the air outlet, it will move into the cavity that is at atmospheric pressure. Since the cavity is at atmospheric pressure, the air flow will expand into the cavity and thus the cavity acts as an expansion chamber for the air flow.
Regarding claim 5, the air outlet (52) comprises a channel from the plenum (air ducts) that terminates with an aperture into the cavity (space between arms 32, 34), and wherein hair received within the cavity is straightened primarily by high pressure airflow (paragraph 43).
Regarding claim 6, wherein the air outlet (52) is located towards an upper portion of at least one of the first and second arms and directs airflow generally downwards (see Figure 3).
Regarding claim 7, wherein the airflow is laminar and vanes (paragraph 43 “the air exiting the elongate air outlet is deflected by a shroud 53 across the hair receiving surface” are located along the air outlet and angled to control the orientation of the laminar airflow (see Figure 3).
Regarding claim 8, wherein the hair styling apparatus is provided with a hair clamp comprising a pair of clamping members (i.e. paragraph 41 teaches 36, 38 are spring loaded) for gripping hair, each clamping member having a clamping face for contacting hair.
Regarding claim 13, wherein hair within the cavity but directly below the hair clamp has a freedom of movement within the volume of the cavity (see Figures 3 and 3A; paragraph 41).
Regarding claim 14, wherein the freedom of movement within the volume of the cavity is limited only by the hair clamp (i.e. spring-loaded plates 36, 38).
Regarding claim 15, wherein the air outlet (52) is located below the hair clamp (see Figure 3).
Regarding claim 16, wherein the air outlet is a slot (52), and wherein the slot is located in parallel alignment with a longitudinal axis of the first and/or second arms and is disposed in proximity to an upper edge of the arm (see Figure 3).
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) 9-10 and 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Mourad (US 2008/0236604).
Mourad discloses the claimed invention except for an airflow temperature in the cavity is around 130-170°C and a temperature of the clamping face of each clamping member is lower than the temperature of the airflow; wherein the airflow temperature in the cavity is between 140°C and 160°C. However, one having ordinary skill in the art would find the parameters of the airflow temperature to be deemed matters of design choice, will within the skill of the ordinary artisan, obtained through routine experimentation in determining optimum results. Regarding claim 17, the air outlet comprises a channel between the plenum and the cavity, the inner wall of the first and/or second arms having a rounded configuration to change the direction of the airflow as it exits the plenum and enters the channel. It would have been an obvious matter of design choice to have the inner wall of the first and/or second arms be made with a rounded configuration to change the direction of the airflow as it exits the plenum and enters the channel, since it appears that the invention would perform equally well with a rounded or flat configuration to direct the airflow.
Claim(s) 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Mourad (US 2008/0236604) in view of Weatherly et al. (US 2014/0338691).
Mourad discloses the claimed invention except for the clamping face is free of heated plates. Weatherly et al. teaches a clamping face wherein part of the clamping face has heated plate (16) and part of the clamping face is free of heated plates (14) see Figure 7b to create a cooling zone for haircare. It would have been obvious to one having ordinary skill in the art before the effective filing date to have the device of Mourad be made with a clamping plate free of heated plates as taught by Weatherly et al. to allow for a hair cooling section.
Allowable Subject Matter
Claim 12 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to RACHEL RUNNING STEITZ whose telephone number is (571)272-1917. The examiner can normally be reached Monday-Friday 8:00am-4:30pm EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Eric Rosen can be reached at 571-270-7855. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/RACHEL R STEITZ/Primary Examiner, Art Unit 3772
2/2/2026