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 .
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 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.
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on November 14, 2025 has been entered.
Status of Claims
Claims 1, 3, 5 – 10, 16, 18 – 19 and 21 – 22 are pending. Claims 2, 4, 11 – 16, 17 and 20 are cancelled.
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1, 3, 5 – 7, 9 – 10 and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Caulier (U. S. Patent Publication No. 2017/0332766 A1) in view of Butz (U. S. Patent No. 2019/0125506 A1).
Regarding Independent Claim 1, Caulier teaches an apparatus for applying mascara to eyelashes (Fig. 1), comprising: a stem (holder, 5 with stem, 5a) having a longitudinal stem axis (X; Fig. 4) with a first end and a second end (Fig. 4); an applicator head (applicator member, 6) coupled to the second end of the stem (5; Fig. 4); and a flexible handle (handle, 10; Fig. 4) coupled to the first end of the stem (5; Fig. 4), wherein the handle (10) includes a first end and a second end (Fig. 4), a cap portion (snap fastenings ridges, 15) for connecting the flexible handle (10) to the stem (5; Paragraph [0082]), wherein the flexible handle (10) includes a first part (core, 11) made of a semi-rigid material (Paragraph [0074] – a metal material) and a second part (sheath, 12) made of a flexible material (Paragraph [0074] – elastomer), and wherein the flexible handle (10) is of a structure that inhibits twisting while being bent in either of two directions (Fig. 4 and 5), the second part (12) composed of the flexible material is two or more components (12 left and right of the core, 11; Fig. 3) positioned to flank opposite edges of the rectangular sheet (As shown in Fig. 3; the elastomer material flanks the core on both sides), wherein a vertical groove (formed by exposure of the core, 11) between the first and the second components (12) expose a majority of a length of the sheet (Paragraph [0091]), the handle (10) being flexible throughout the majority of the length of the sheet (As shown in Fig. 3; the elastomer material flanks the core on both sides), wherein the flexible handle (10) has a length (Fig. 4) configured for resting the first end of the handle against a palm-side of a finger and the second end of the handle against a fingertip (Fig. 6a) the flexible handle has a flexibility to flex into a hook when a force is applied at about a middle of the length of the handle (Paragraphs [0072] – [0074])
Caulier teaches wherein the first part composed of the semi-rigid material is a rectangular form as shown in Fig. 3, however, the reference does not explicitly teach a rectangular sheet.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the apparatus of Caulier to further include the semi-rigid material is a rectangular sheet, as claimed, since such a modification would have involved a mere change in the
shape of a component. A change in shape is generally recognized as being within the level of ordinary skill in the art (MPEP 2144.04).
Caulier does not explicitly teach rod shaped components and an exterior of the sheet is exposed between the first and the second rod-shaped component and throughout a majority of a length of the sheet.
Butz, however, teaches rod shaped components(rod shaped components, 11 on either side of sheet, 18) and an exterior of the sheet (18) is exposed between the first and the second rod-shaped component (rod shaped support, 11 and plate-shaped handle part 15) and throughout a majority of a length of the sheet (18; Figs. 1 and 2).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the apparatus of Caulier to further include an exterior of the sheet is exposed between the first and the second rod-shaped component and throughout a majority of a length of the sheet, as taught by Butz, to provide a device that reduces the material needed to manufacture it, thus saving cost in manufacturing.
Regarding Claim 3, Caulier, as modified, teaches the apparatus for applying mascara to eyelashes (Fig. 1) wherein the two or more rod-shaped components (12 left and right of the core, 11; Fig. 3) come together at a common base (12 left and right of the core, 11 come together at 10a and 10b; Fig. 3).
Regarding Claim 5, Caulier, as modified, teaches the apparatus for applying mascara to eyelashes (Fig. 1) wherein the cap (15) is in integral part of the flexible handle (10; Fig. 3).
Regarding Claim 6, Caulier, as modified, teaches the apparatus for applying mascara to eyelashes (Fig. 1) wherein the cap (15) includes an opening (Annotated Fig. 3) that is substantially a circumference of the stem (5), and wherein the opening (Annotated Fig. 3) is configured to detachably hold the stem (5) by a compression fit (Paragraph [0082] – snap fit).
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Regarding Claim 7, Caulier, as modified, teaches the apparatus for applying mascara to eyelashes (Fig. 1) wherein the cap (15) includes a connection cavity (Annotated Fig, 3) for connecting the flexible handle (10) to the cap (15).
Regarding Claim 9, Caulier, as modified, teaches the apparatus for applying mascara to eyelashes (Fig. 1) wherein the flexible material is a thermoplastic elastomer (Paragraph [0040]).
Regarding Claim 10, Caulier, as modified, teaches the apparatus for applying mascara to eyelashes (Fig. 1) wherein the thermoplastic elastomer is a material that combines flexibility of rubber with strength of thermoplastic (Paragraph [0040] – Caulier teaches a thermoplastic elastomer, thus further teaching - a material that combines flexibility of rubber with strength of thermoplastic).
Regarding Claim 21, Caulier, as modified, teaches the apparatus for applying mascara to eyelashes (Fig. 1) wherein the length of the handle (10) is about three times a greatest width (width of 10; Fig. 3) of the handle (10; Fig. 3).
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Caulier (U. S. Patent Publication No. 2017/0332766 A1) in view of Butz (U. S. Patent No. 2019/0125506 A1) and Moskovich et al. (U. S. Patent No. 6,292,973 B1).
Regarding Claim 8, Caulier, as modified, teaches the apparatus of claim 1 as discussed above.
Caulier does not teach wherein the semi-rigid material is polypropylene.
Moskovich, however, teaches a handle of a brush comprising 2 materials and further the semi-rigid material is polypropylene (Col. 3, lines 24 – 36).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the apparatus of Caulier to further include the semi-rigid material is polypropylene, as taught by Moskovich, since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use of the apparatus.
Claims 16 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Caulier (U. S. Patent Publication No. 2017/0332766 A1) in view of Butz (U. S. Patent No. 2019/0125506 A1) and Borsari (U. S. Patent Publication No. 2017/0258214 A1).
Regarding Claim 16, Caulier, as modified, teaches a flexible handle (10; Fig. 1) for a makeup applicator (Fig. 1), comprising: a first part (11) made of a semi-rigid material (Paragraph [0074]; a second part (12) made of a flexible material (Paragraph [0074]; wherein the second part (12) of the flexible material and the first part (11) of the semi-rigid material are integral (Fig. 3) and of a structure (via snap fastening ridges, 15 with holder, 5) that prevents twisting of the flexible handle (10) while bending in either of two directions (due to the rigid structure of the holder (Paragraph [0082]) and snap-fit ridges prevent the brush from twisting as it is bent in either directions).
Caulier does not teach the first part is chemically bonded to the second part and wherein the chemical bond is formed from a melt of the semi-rigid material.
Borsari, however, teaches the first part (12) is chemically bonded to the second part (14; Fig. 1) and wherein the chemical bond is formed from a melt of the semi-rigid material (Paragraph [0050]).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the apparatus of Caulier to further include the first part is chemically bonded to the second part and wherein the chemical bond is formed from a melt of the semi-rigid material, as taught by Borsari, since it has been held to be within the general skill of a worker in the art to select a known bonding technique on the basis of its suitability for the intended use of the device.
Regarding Claim 18, Caulier, as modified, teaches the flexible handle (10; Fig. 1) further comprising a cap (15) mounted to the base (10a), wherein the cap (15) includes an opening (Annotated Fig. 3) for detachably holding the makeup applicator (via snap ridges).
Claims 19 and 22 are rejected under 35 U.S.C. 103 as being unpatentable over Caulier (U. S. Patent Publication No. 2017/0332766 A1) in view of Gueret (WO 2013/034638 A1).
Regarding Independent Claim 19, Caulier teaches an apparatus for applying mascara to eyelashes (Fig. 1), comprising: a stem (holder, 5 with stem, 5a) having a longitudinal stem axis (X; Fig. 4) with a first end and a second end (Fig. 4); an applicator head (applicator member, 6) coupled to the second end of the stem (5; Fig. 4); and a flexible handle (handle, 10; Fig. 4) coupled to the first end of the stem (5; Fig. 4), a cap portion (snap fastenings ridges, 15) for connecting the flexible handle (10) to the stem (5; Paragraph [0082]), wherein the flexible handle (10) includes a first part (core, 11) made of a semi-rigid material (Paragraph [0074] – a metal material) and a second part (sheath, 12) made of a flexible material (Paragraph [0074] – elastomer), and wherein the flexible handle (10) is of a structure that inhibits twisting while being bent in either of two directions (Fig. 4 and 5), wherein the flexible handle (10) has a length (Fig. 4) configured for resting the first end of the handle against a palm-side of a finger and the second end of the handle against a fingertip (Fig. 6a) the flexible handle has a flexibility to flex into a hook when a force is applied at about a middle of the length of the handle (Paragraphs [0072] – [0074]; Fig. 4, 5 and 6a – 6b) ;
Caulier does not teach the semi-rigid material or a flexible material is formed in an elongated pattern having an oval-shaped opening in the vicinity of an end to be connected to the makeup applicator; and a rigid material formed of an elongated pattern with a fishbone or rib pattern in the vicinity of an end away from a makeup applicator, and an elongated opening over a majority of the pattern in the vicinity of the applicator connection end
Gueret, however, teaches the semi-rigid material or a flexible material (20) is formed in an elongated pattern (Fig. 60) having an oval-shaped opening (20w) in the vicinity of an end to be connected to the makeup applicator (4); and a rigid material (70) formed of an elongated pattern with a fishbone-like or rib-like pattern (70; Fig. 60) in the vicinity of an end away from a makeup applicator (4; Fig. 60), and an elongated opening (20w) over a majority of the pattern in the vicinity of the applicator connection end (Fig. 60).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the apparatus of Caulier to further include the semi-rigid material or a flexible material is formed in an elongated pattern having an oval-shaped opening in the vicinity of an end to be connected to the makeup applicator; and a rigid material formed of an elongated pattern with a fishbone-like or rib-like pattern in the vicinity of an end away from a makeup applicator, and an elongated opening over a majority of the pattern in the vicinity of the applicator connection end, as taught by Gueret, to provide a device that reduces the material needed to manufacture it, thus saving cost in manufacturing.
Regarding Claim 22, Caulier, as modified, teaches the apparatus for applying mascara to eyelashes (Fig. 1) wherein the length of the handle (10) is about three times a greatest width (width of 10; Fig. 3) of the handle (10; Fig. 3).
Response to Arguments
Applicant's arguments filed July 10, 2025 with respect to rejection to claims 1, 3, 5 – 10, 16, 18 – 19 and 21 – 22 under 35 U.S.C. 112 (a) have been fully considered and they are persuasive, therefore the rejection has been withdrawn
Applicant's arguments filed November 14, 2025 with respect to rejection to claim 1 under 35 U.S.C. 103 have been fully considered and they are persuasive, therefore the rejection has been withdrawn; however, after further consideration, a new rejection is made in view of Butz.
Applicant's arguments filed November 14, 2025 with respect to rejection to claim 19 under 35 U.S.C. 103 have been fully considered and they are not persuasive, therefore the rejection has been maintained.
Applicant argues that Gueret does not teach the fishbone pattern “in the vicinity of an end away from a make-up application”.
Examiner respectfully disagrees as the fishbone pattern is indeed formed in “a vicinity” of an end. Applicant has not given a specific value of said vicinity from the end therefore the pattern of Gueret is deemed in “a vicinity” of an end.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KATINA N HENSON whose telephone number is (571) 272-8024. The examiner can normally be reached Monday - Thursday; 5:30am to 3:30pm.
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/KATINA N. HENSON/Primary Examiner, Art Unit 3723