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 .
Drawings
Photographs are acceptable as final drawings, in lieu of ink drawings to illustrate inventions incapable of being otherwise accurately or adequately depicted (e.g. photomicrographs of electrophoresis gels, blots, auto-radiographs, cell cultures, histological tissue cross sections, etc.). This is not the case with the instant invention; on the contrary, the invention would be more clearly depicted as an ink drawing. See MPEP 608.02. Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
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 1-6 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 1 requires “an attachment ring and top spike base” where the exterior of the attachment ring comprises “a top spike base on at least one section of the exterior of the base ring” and “the top spike base including a plurality of spikes protruding outward in parallel to each other from the exterior of the attachment ring”. It is unclear if the to spike base is the same or different from a portion of the exterior of the attachment ring. The claim appears to require the attachment ring and top spike base be different structures while also requiring the top spike base be a section/portion of the exterior of the attachment ring rather than a different structure. Based on the written disclose and drawings, there does not appear to be a distinct structure separate from the attachment ring which defines the top spike base, instead, the top spike base appears to be the portion of the exterior surface of the ring from which the spikes project. The claim requires amending to correct this indefiniteness issue. It is suggested “top spike base” be removed from the claim and the spikes be described as
Claim 1 recites “a top spike base” in line 4 where it is unclear if this top spike base is the same or different from the top spike base recited in line 2 of claim 1. It is believed they are the same.
Claim 1 recites the limitation "base ring" in line 4. There is insufficient antecedent basis for this limitation in the claim.
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 1 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 11 of copending Application No. 19402742. Although the claims at issue are not identical, they are not patentably distinct from each other because they both require an elastomeric ring with a spike base and spikes protruding therefrom, the ring having a shore hardness between 00 and 70 and being configured to fit over a barrel of a hair dryer.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claim 1 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of copending Application No. 19402742.
Regarding claims 1 and 4, claim 1 of 19402742 provides all of the claimed limitations except the attachment ring having a shore hardness being between 00 and 70. However, claim 1 of 19402742 discloses the ring is made of an elastomer, where elastomer materials conventionally provide the claimed hardness. Thus, it would have been obvious to modify the ring to have the claimed hardness as hardness is an inherent property of a material and elastomers conventionally provide hardness values within the claimed range.
This is a provisional nonstatutory double patenting rejection.
Claim 2 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 2 of copending Application No. 19402742.
Claim 3 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 3 of copending Application No. 19402742.
Claim 5 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 6 of copending Application No. 19402742.
Claim 6 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 7 of copending Application No. 19402742.
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.
Claims 1-6, as best understood, are rejected under 35 U.S.C. 103 as being unpatentable over White (US 20020078587) and Hillebrecht et al. (US D899092).
Regarding claims 1-3, White discloses a hair dryer attachment comprising: an elastomeric body (Refer to paragraphs 0003 and 0011) having an attachment ring (10,11) and top spike base (portion of 11 with 12), the attachment ring having an interior (side intended to contact hair dryer) and an exterior (exposed side when attached to hair dryer), the interior having a substantially cylindrical shape and the exterior comprising a top spike base on at least one section of the exterior of the ring; the top spike base including a plurality of spikes (12) protruding outward from the exterior of the attachment ring; wherein the attachment ring has a Shore hardness of between 00-70 (ring is made of neoprene which is flexible and somewhat elastic, Refer to paragraphs 0003 and 0011, where neoprene provides shore hardness within the claimed range, Refer to cited NPL document for support of this inherent material property); and wherein the attachment ring is configured to receive a circular barrel of a handheld hair dryer (Refer to Figures 1-3). However, White does not disclose the plurality of spikes being in parallel to each other and in staggered rows and each spike has a length, an origin at the top spike base and a tip opposite the origin, and the length of the spikes varies based on its position around the exterior of the attachment ring such that the tips of the spikes form a flat brush surface.
White teaches “the number of bristles and their arrangement is not critical and may follow an individual user’s taste” (Refer to paragraph 0011). Hillebrecht et al. disclose a similar hair brush for hair drying and styling where spikes project from an arcuate surface (Refer to Figures 1-6). The spikes are arranged in a plurality of rows such that the spikes extend in parallel (Refer to Figures 3 and 5) and the rows are arranged in a staggered or offset configuration (Refer to Figure 3). The spikes have lengths which vary based on their position on the arcuate exterior surface of the base from which they project, such that longer spikes are arranged at a position furthest from the center and shorter spikes are arranged toward the center and the distal ends of the spikes form a flat brush (Refer to Figure 5). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the spike arrangement of White such that the spikes be parallel, in staggered rows and of different lengths based on their position such that the distal ends/tips thereof collectively form a flat brush as taught by Hillebrecht et al. since White states any arrangement of the bristles is permitted and Hillebrecht et al. demonstrates the claimed arrangement is well-known and conventional in the art.
Regarding claim 4, the combination of White and Hillebrecht et al. disclose the elastomeric body of claim 1 above, where the attachment ring and top spike base are integrally formed. The top spike base is a portion of the attachment ring and thereby integral therewith.
Regarding claim 5, the combination of White and Hillebrecht et al. disclose the elastomeric body of claim 2 above, wherein the staggered rows alternate between four and five spikes (Refer to paragraph 0011 of White which states each row may have between 4 and 7 spikes, and rejection of claims 1-3 above where rows were modified to be in a staggered arrangement).
Regarding claim 6, the combination of White and Hillebrecht et al. disclose the elastomeric body of claim 2 above, wherein the staggered rows alternate between five and six spikes. (Refer to paragraph 0011 of White which states each row may have between 4 and 7 spikes, and rejection of claims 1-3 above where rows were modified to be in a staggered arrangement).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The following NPL reference is cited to demonstrate neoprene provides Shore hardness values between 00 and 70: https://www.neoprenecustom.com/en/blogs/neoprene-sheet-durometer-explained-hardness-chart-for-engineers.html. The following patent documents disclose hair dryer attachments with spike/bristles/teeth: US 20210007457, US 3903905, US 5091630, US 20070034225, D252220, D6262875 and D259742.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TATIANA L NOBREGA whose telephone number is (571)270-7228. The examiner can normally be reached M-F 8am-4pm.
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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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/TATIANA L NOBREGA/Primary Examiner, Art Unit 3799
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