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
Claim 1 is objected to because it appears that the claim language has been amended without proper indication of that amendment. Line 13 recites “oriented away from the main axis”; however, the previous claim 1 submitted on 09/22/25, recited “oriented away from the longitudinal axis”. It is suggested to amend claim 1 back to the previous recitation as follows: “oriented away from the longitudinal axis”.
Claim 21 is objected to because of the following informalities: in lines 14-15, “the bridge being situated at a lower height than that of an apex of the curved direction of the proximal stage” should be amended as follows “the bridge being situated closer to the longitudinal axis than that of an apex of the curve direction of the proximal stage”.
Appropriate correction is required.
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 22 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.
Regarding claim 22, lines 1-2 recite “wherein the bridge extends parallel to the longitudinal axis” and claim 22 depends from claim 21 which requires that the bridge is situated at a lower height than that of an apex of the curve direction of the proximal stage. Per paragraph [0013] of the instant specification, “According to different variant embodiments, the bridge 15 being positioned on a free end of the incurved form of the proximal stage 13, this free end of the incurved form of the proximal stage 13 forms an apron in a direction which can be parallel to the axis X (that is to say that the bridge 15 is situated at the level of the apex of the incurved form of the proximal stage 13), or else in a direction which brings it closer to the axis X (the bridge 15 is situated at a lower height than that of the apex of the incurved form of the proximal stage 13), or else, on the contrary, in a direction which moves it away from the axis X.”, i.e. the bridge is not, in a single embodiment, both parallel to the longitudinal axis AND situated lower than the apex of the incurved/curved direction of the proximal stage. Rather, the specification defines these as alternative, mutually exclusive features of different embodiments of the invention. Thus, claim 22 appears to be mixing embodiments and therefore, the combination of features claimed therein constitutes new matter.
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 1-4, and 19-22 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 recites the limitation “the main axis” in line 13. There is insufficient antecedent basis for this limitation in the claim. Based on a review of the specification, there is no feature of the invention that is identified as a main axis. For purposes of substantive examination, the main axis is being interpreted as the longitudinal axis, as was previously recited in claim 1. It is therefore suggested to amend the aforementioned portion of line 13 as follows: “the longitudinal axis”.
Claim 21 recites the limitation "the proximal part" in line 14. There is insufficient antecedent basis for this limitation in the claim. For purposes of substantive examination, the limitation “the proximal part” is interpreted as being the same as the “proximal stage” previously recited. Therefore, it is suggested to amend the aforementioned portion of line 14 as follows: “the proximal stage”.
Claim 21 recites the limitation “the main axis” in line 13. There is insufficient antecedent basis for this limitation in the claim. Based on a review of the specification, there is no feature of the invention that is identified as a main axis. For purposes of substantive examination, the main axis is being interpreted as the longitudinal axis. It is therefore suggested to amend the aforementioned portion of line 13 as follows: “the longitudinal axis”.
Claim 22 is rejected due to its dependency on claim 21.
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.
Claims 1-4 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Gueret (US 2014/0003857).
Regarding claim 1, Gueret ‘857 discloses an applicator device (1, Figures 1-11G) for applying a fluid or pasty product onto keratinous fibers or onto the skin (“for applying a composition (P) to the eyelashes or the eyebrows”, refer to the Abstract), comprising:
an elongate (“extends along a longitudinal axis X”, refer to Paragraph [0079])
core (20) extending along a longitudinal axis (axis X, refer to Figure 1) and of longitudinal cylindrical form (“section that is circular”, refer to Paragraph [0047]),
a plurality of spikes (22), distributed on the core (“The core carries applicator elements 22”, refer to Paragraph [0080]), each spike extending from an anchoring end (22a; additionally refer to Figure 11G, wherein the bottom end is the anchoring end) in the core to a free end (referring to Figure 11G, the free end is the top end, opposite the anchoring end) and being made of a piece with the core (“molded with at least one portion of the core”, refer to Paragraph [0016]), wherein each spike comprises, from the anchoring end to the free end, a proximal stage (not labeled, but is area “A”, refer to annotated Figure 11G, below), a bridge (not labeled, but is area “B”, refer to annotated Figure 11G, below) and a distal stage (not labeled, but is area “C”, refer to annotated Figure 11G, below), with at least one of the proximal stage and the bridge forming a flexible link (“The applicator elements have narrow bases…The width of the applicator element may thus increase from the core over almost the entire height of the applicator element. The presence of a section narrowing may impart increased flexibility to the applicator elements”, refer to Paragraph [0033], i.e. the spike is most flexible at an area near the core in order to permit the spikes to flex as the applicator is being pulled from its container and less flexible/more rigid at an area away from the core due to an increase in the width of the spike thereby demonstrating that the width of the spike directly affects the flexibility and/or rigidity of the spike; referring to annotated Figure 11G, below, the narrowest widths which, correspond to the most flexible areas of the spike, occur in both the proximal stage (A) and the bridge (B) whereas the widest width, which corresponds to the least flexible/most rigid area of the spike, occurs in the distal stage (C)), wherein the distal stage is rigid relative to the flexible link (“the applicator elements are made integrally with the core out of an elastomer, and, beyond their bases, they are made out of a material that is more rigid” and “The width of the applicator element may thus increase from the core over almost the entire height of the applicator element. The presence of a section narrowing may impart increased flexibility to the applicator elements”, refer to Paragraph [0033], i.e. the spikes are more flexible at their proximal end and more rigid toward their distal/free end by either providing the proximal stage and distal stage to be formed of different materials, and/or by providing the proximal stage and distal stage to have differing geometry, in particular providing the proximal stage to have a narrow width, while the distal stage has a greater width; additionally refer to annotated Figure 11G below, wherein the width of the spike is shown to increase at least along a portion thereof, from the proximal stage to the distal stage, thereby providing a more rigid distal stage) and wherein the proximal stage and the bridge stage of each spike define a plane of symmetry and extend along the plane of symmetry (not labeled, refer to annotated Figure 11G, below), wherein the plane of symmetry intersects the longitudinal axis (X) in such a way that the longitudinal axis is included into the plane of symmetry (refer to annotated Figure 11B below, wherein the plane extends through the spike in a direction of the longitudinal axis, where the longitudinal axis extends into the page, such that the longitudinal axis is fully included in the plane of symmetry and therefore intersects the plane of symmetry) and wherein the distal stage includes a main extension (65) oriented away from the longitudinal axis so as to form an acute angle (refer to annotated Figure 11G, below wherein the main extension is depicted as being disposed at an acute angle from the plane of symmetry; although the figures may not be to scale, they can still be relied upon for teaching the general conditions of the claim because the overall relationship is depicted) with the plane of symmetry.
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Regarding claim 2, Gueret ‘857 discloses the applicator device according to claim 1, wherein the proximal stage forms the flexible link between the anchoring end and the bridge (referring to the annotated Figure 11G above, the narrowest width, which correlates to the most flexible portion of the spike and therefore defines the flexible link, is disposed in both the proximal stage, A, and the bridge, B).
Regarding claim 3, Gueret ‘857 discloses the applicator device according to claim 1, wherein the bridge forms the flexible link between the proximal and distal stages (referring to the annotated Figure 11G above, the narrowest width, which correlates to the most flexible portion of the spike and therefore defines the flexible link, is disposed in both the proximal stage, A, and the bridge, B).
Regarding claim 4, Gueret ‘857 discloses the applicator device according to claim 1, wherein the proximal stage has an incurved form (referring to the annotated Figure 11G provided in the rejection to claim 1, above, the left and right sides of the proximal stage are concave, thereby providing an incurved form).
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.
Claims 19-20 are rejected under 35 U.S.C. 103 as being unpatentable over Gueret ‘857 in view of Gueret ‘758 (US2006/0002758).
Regarding claim 19, Gueret ‘857 discloses the applicator device according to claim 1, as applied above, wherein the spikes are distributed on the core in a plurality of rows (“at least three rows”, refer to Paragraph [0016]), the rows being adjacent (“rows extending longitudinally around the core”, refer to Paragraph [0016]), and the spikes of one row are oriented in a same way (oriented is defined by Oxford Languages as “align or position something relative to the points of a compass or other specified position”; in Gueret ‘857, the spikes of a single row of the at least three rows are arranged such that “the bases may be exactly in alignment and superposed”, refer to Paragraph [0023], i.e. the spikes within one row are all oriented the same. Gueret ‘857 does not explicitly disclose that the spikes of an adjacent row are oriented differently; however, Gueret ‘758 does disclose that the applicator may have four rows and the four rows may be arranged as described by Gueret ‘857.
Gueret ‘758 discloses a similar applicator device (Figure 10c) comprising a core (10) with a plurality of spikes (21, 22 and/or 31, 32) disposed in a plurality of rows (20, 30) about the core. Wherein, in one embodiment, the applicator device comprises four rows, with a first row oriented at the 12 o’clock position (top position, refer to Figure 10c and oriented away from a top surface of the core), and an adjacent row (row positioned at a right of the core/at the 3 o’clock position) oriented differently (the adjacent row is oriented/aligned or positioned relative to core at positive 90 degrees from the first row, thereby providing the adjacent row to be oriented differently from the first row). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Gueret ‘857’s applicator to comprise four rows of spikes such that the spikes of an adjacent row are oriented differently, as taught by Gueret ‘758, since Gueret ‘857 explicitly discloses that the rows may be oriented in such a way in order to meet a user’s needs.
Regarding claim 20, the combination of Gueret ‘857 and Gueret ‘758 discloses the applicator device as claimed in claim 19, wherein the spikes of the adjacent row are oriented at 90° or at 180° (per the rejection to claim 19 provided above, the first row and the adjacent row are oriented at 90 degrees with respect to one another, about the core).
Response to Arguments
Claim ObjectionsApplicant’s amendments to the claims overcome all previous objections; all previous objections are withdrawn.
35 USC 102/103
Applicant's arguments filed 03/02/2026 have been fully considered and responses to each argument are provided below.
Argument #1:
Gueret ‘857 does not teach “a distal part which is rigid relative to the flexible link” together with a main extension oriented away from the main axis forming an acute angle with the plane of symmetry, this is not the case when applying the teaching of figure 11G cited in the office action. In figure 11G, the extensions of the distal part clearly has a width (e.g. at 65) that is reduced (so a higher flexibility) than the width of proximal and bridge stages of the same material (e.g. at 61).
Response #1:
Gueret ‘857 does explicitly disclose that “the cross-section of the applicator element, taken perpendicularly to its long direction, increases over at least a fraction of the length of the applicator element, towards the free end of the applicator element. The section narrowing may extend as far as the core…The width of the applicator element may thus increase from the core over almost the entire height of the applicator element. The presence of a section narrowing may impart increased flexibility to the applicator elements”, (see Paragraph [0033]). This means that the narrowest cross-section/most flexible part of the spike occurs at the proximal stage, whereas the thickest cross-section/most rigid part of the spike occurs at the distal stage. Further, the claim does not require that the entirety of the distal stage is more rigid than an entirety of the proximal stage; but rather “the distal stage is rigid relative to the flexible link”, thus as long as some portion of the distal stage is more rigid than some portion of the distal stage, the distal stage is more rigid than the proximal stage, at least partially. It’s noted that the portion of the distal stage has a thicker cross-section at its base than the widest cross-section of the proximal stage.
Argument #2:
Gueret ‘857 fails to teach a spike having a “rigid” main extension oriented away from the main axis.
Response #2:
The claim does not explicitly require that the main extension portion of the distal stage is more rigid, but rather the distal stage; thus, the widest portion of the distal stage is more rigid than the proximal portion due to its increased thickness, therefore, the distal stage is more rigid, at least along some portion thereof.
Argument #3:
Furthermore, Gueret ‘758 fails to provide any teaching regarding spikes having “a distal part which is rigid relative to the flexible link” as claimed.
Response #3:
Gueret ‘758 is not being relied upon for this teaching. Rather, Gueret ‘857 provides this teaching.
Argument #4:
Regarding new claim 21, Gueret ‘857 and Gueret ‘758 fail to teach a proximal stage extending along a curved direction and a bridge situated at a lower height than that of the apex of the curved direction of the proximal stage.
Response #4:
This argument is found persuasive; however, claim 21 is objected to and also rejected under 35 USC 112(b), as indicated above.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/SARAH WOODHOUSE/Examiner, Art Unit 3772
/EDELMIRA BOSQUES/Supervisory Patent Examiner, Art Unit 3772