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
Claims 1, 3 is objected to because of the following informalities:
In claim 1 line 6 “distributed around” should read “distributed radially around” and in lines 8-9, “from the proximal end” should read “from the proximal end toward the distal end” for clarity.
In claim 3 line 2, “having” should read “has”.
Appropriate correction is required.
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 5 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 5 recites the limitation “wherein the angles between elongation axes and the longitudinal axis of the core of three consecutive spikes of each row in the selected group of rows are all different”. It is unclear whether this is referring to the same three consecutive spikes of claim 1, since it refers to “the angles” or different ones and the phrasing of the claim is confusing. It was assumed that the angles between elongation axes of the three consecutive spikes of each row in the two rows and the longitudinal axis of the core are all different”. Clarification is required.
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) 1-9, 11-29, 31 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gueret (US 8,783,268 B2).
Regarding claim 1, Gueret teaches a brush for applying a cosmetic composition to the eyelashes and/or eyebrows (abstract), having:
- a core (9) having a longitudinal axis (X) and extending between a proximal end (end at 9b; see figures 9a-9h) and a distal end (12),
- a plurality of rows of spikes, extending along the core (see Figures), the plurality of rows of spikes distributed radially around the core (see Figures), each of the rows including a plurality of spikes (18) each extending from a base to a peak, the plurality of spikes arrayed in a rank order counted from the proximal end (see Figures),
other and see at least Col. 12 lines 1-65; such that rows of teeth can have different or identical teeth configurations and may extend constantly or at least over a fraction around the core),
wherein there are at least two spikes disposed at the same rank in two rows in the selected group of rows that have different angles with the longitudinal axis of the core (see Figures 4-5a Col. 14 lines 56-64, Col. 16 lines 19-27; teeth of a first row and a second row can be arranged in a different manner such that teeth of two rows may have different angles relative to the core).
In a variant embodiment, Gueret discloses pairs of consecutive spikes within a row may have a V-configuration (shown in Figures 21-22, 52 and Col. 27 lines 13-21). Gueret teaches the embodiments disclosed may be combined (Col. 30 lines 16-18).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to modify the applicator brush to include a row where consecutive pairs of teeth along the row each have one tooth and another tooth facing opposite ends of the brush, such that at least one of the rows in the selected group of rows having at least 25% of pairs of consecutive spikes in which one spike of the pair is oriented toward the proximal end and the other spike of the pair is oriented toward the distal end, because Gueret contemplates combining embodiments and it would provide a design variation where the teeth form V-shapes to improve lash separation. Such modification would be an obvious matter of design choice as it would merely involve changing the orientation of the teeth to achieve a desired intended outcome.
Regarding claim 2, Gueret teaches the brush as claimed in claim 1 (see rejection above), wherein, for at least two radially-adjacent rows of spikes, at least a part of the spikes in one row crosses at least a part of the spikes in the other row, when the brush is viewed from the side, in a direction perpendicular to its longitudinal axis (see at least Col. 12 lines 22-24; one row may have teeth that are completely parallel to the longitudinal axis and therefore those teeth would cross other non-parallel teeth of an adjacent row).
Regarding claim 3, Gueret teaches the brush as claimed in claim 1 (see rejection above), wherein distances between peaks of at least three consecutive spikes in at least one row are different (see annotated Fig. below).
PNG
media_image1.png
320
486
media_image1.png
Greyscale
Regarding claim 4, Gueret teaches the brush as claimed in claim 1 (see rejection above), wherein the rows are all parallel to the longitudinal axis of the core (Col. 17, ll. 14-21 and see Figures; the rows extend in the same direction of the axis X).
Regarding claim 5, Gueret teaches the brush as claimed in claim 1 (see rejection above), wherein the angles between elongation axes of each of the three consecutive spikes in the selected group of rows and the longitudinal axis of the core are all different, for at least half of the spikes in a row (see Figure 5b).
PNG
media_image2.png
320
480
media_image2.png
Greyscale
Regarding claim 6, Gueret teaches the brush as claimed in claim 1 (see rejection above), wherein, at least two of the rows in the selected group of rowsand note Col. 30 ll. 16-18 stating the characteristics described may be combined. In figure 60, the number of spikes facing the rear is 6 while the number of spikes facing forward is 14 and 14/6 is 2.3 and therefore reads on the claimed limitation. In the embodiment of Fig. 5A, 2 spikes face forward and 2 spikes face backward and therefore the ratio is 1).
Regarding claim 7, Gueret teaches the brush as claimed in claim 1 (see rejection above), wherein at least two of the rows in the selected group of rows have each a number of successive spikes that are all oriented with a same orientation toward the distal end or toward the proximal end that is less than or equal to 6 (see Fig. 5A; the 2 spikes face forward and 2 spikes face backward and therefore each number is less than 6. Also, see Figures 9c and 9h and note Col. 30 ll. 16-18 stating the characteristics described may be combined).
Regarding claim 8, Gueret teaches the brush as claimed in claim 1 (see rejection above), wherein at least two of the rows in the selected group of rows have a spacing at at least one of the base and the peak of the spikes that is not constant (see Fig. 5A; the spacing between the consecutive spikes is different BOTH at the peak and at the base because of their orientation relative to each other and relative to the core).
Regarding claim 9, Gueret teaches the brush as claimed in claim 1 (see rejection above), wherein at least two of the rows in the selected group of rows have a ratio between a quantity of spikes oriented toward the distal end and a quantity of spikes oriented toward the proximal end above 1.1 (see figure 60 and note Col. 30 ll. 16-18 stating the characteristics described may be combined. In figure 60, the number of spikes facing the rear is 6 while the number of spikes facing forward is 14 and 14/6 is 2.3 and therefore reads on the claimed limitation) or where the inverse ratio is present.
Regarding claim 11, Gueret teaches the brush as claimed in claim 1 (see rejection above), wherein, when the brush is viewed from the side in a direction perpendicular to its longitudinal axis, at least a part of the spikes in one row does not cross any spike in the adjacent row (see Fig. 3 and Col. 23 lines 54-57; the spikes not cross/overlap spikes in the adjacent row).
PNG
media_image3.png
338
534
media_image3.png
Greyscale
Regarding claim 12, Gueret teaches the brush as claimed in claim 1 (see rejection above), wherein the elongation axes of the spikes in at least two of the rows of the selected group of rows are all contained in a single plane (see Fig. 3).
Regarding claim 13, Gueret teaches the brush as claimed in claim 1 (see rejection above), wherein, for at least two of the rows in the selected group of rows, the length of the spikes in the row varies (see Fig. 3 and Col. 10 l. 23-24).
Regarding claim 14, Gueret teaches the brush as claimed in claim 1 (see rejection above), wherein, the longitudinal axis of the brush is rectilinear (see Fig. 3 and claim 9).
PNG
media_image3.png
338
534
media_image3.png
Greyscale
Regarding claim 15, Gueret teaches the brush as claimed in claim 1 (see rejection above), wherein for at least two of the rows in the selected group of rows have at most 50% of pairs of consecutive spikes having spikes both oriented toward the distal end or both oriented toward the proximal end (see Fig. 9 and note Col. 30 ll. 16-18 stating the characteristics described may be combined; there are 8 pairs total and 4 pairs are oriented toward the front and 4 pairs are oriented toward the rear, making the number of consecutive pairs for each 50% of the total number of pairs).
Regarding claim 16, Gueret teaches the brush as claimed in claim 1 (see rejection above), wherein, at least two of the rows in the selected group of rows have at most 75% of pairs of consecutive spikes having one spike of said pair of consecutive spikes that is oriented toward the distal end and the other spike of said pair of consecutive spikes that is oriented toward the proximal end (see Figure 9; there are no pairs with two consecutive spikes facing opposite directions and therefore the number zero, which is less than 75%).
Regarding claim 17, Gueret teaches the brush as claimed in claim 1 (see rejection above), wherein, for at least two of the rows in the selected group of rows, the number n of spikes in the row is greater than or equal to 10 (see Figure 3).
Regarding claim 18, Gueret teaches the brush as claimed in claim 1 (see rejection above), wherein the number of rows is between 6 and 20 (see Figure 5).
Regarding claim 19, Gueret teaches the brush as claimed in claim 1 (see rejection above), wherein, 50% or more of the total number of spikes of the brush have different orientations (see Fig. 5B 2; at least half of the teeth of the brush have different orientations).
Regarding claim 20, Gueret teaches the brush as claimed in claim 1 (see rejection above), wherein at least a part of the spikes has at least one edge (see Figures 17-35 and Col. 11, ll. 12-18; the teeth may have a straight edge or a D shape).
Regarding claim 21, Gueret teaches the brush as claimed in claim 1 (see rejection above), wherein all of the spikes in at least two of the rows in the selected group of rows have a flat face contained in a single plane for the row (see Figures 17-35 and Col. 11, ll. 12-18; the teeth may have a straight edge or a D shape).
Regarding claim 22, Gueret teaches the brush as claimed in claim 1 (see rejection above), wherein, for at least two of the rows in the selected group of rows have, for at least half of the pairs of consecutive spikes in each of these rows, distances between the peaks of said pair of consecutive spikes that are different in one row (see Fig. 5B half of the spikes within the row have different peak distances between the spikes and in another example, see Fig. 9g; the distances between the peaks of the spikes are different for at least half of the brush and Col. 30 ll. 16-18; the characteristics described may be combined).
Regarding claim 23, Gueret teaches the brush as claimed in claim 1 (see rejection above), wherein, at least two of the rows in the selected group of rows have distances between three consecutive spikes at their peaks that are different (see Figures 5b and 5e and note Col. 30 ll. 16-18 stating the characteristics described may be combined).
Regarding claim 24, Gueret teaches the brush as claimed in claim 1 (see rejection above), which has two rows of consecutive spikes with different configurations, the other rows of spikes being formed by the repetition of these two rows, with one alternating with the other around the longitudinal axis of the brush (see Figs.; as best understood, the rows repeat along the brush core).
Regarding claim 25, Gueret teaches the brush as claimed in claim 1 (see rejection above), wherein one row of the plurality of rows has a number of pairs of consecutive spikes that have one of the two spikes having a width that increases with respect to the preceding one in the row and the other of the two spikes having a width that decreases with respect to the preceding one in the row, greater than or equal to 1/3 of the total number of spikes in the row and less than or equal to 4/5 (see Fig. 5B and Col. 11, ll. 60-67 and Col. 16, ll. 36-41).
Regarding claim 26, Gueret teaches the brush as claimed in claim 1 (see rejection above), wherein the orientations of the elongation axes of all the spikes with respect to the longitudinal axis of the brush are between 70 and 110 (Col. 7, ll. 11-28; the angles of the spikes may be 70°, 80° or 90°).
Regarding claim 27, Gueret teaches the brush as claimed in claim 1 (see rejection above), wherein the standard deviation of the angles between elongation axes and the longitudinal axis of the core of the spikes within one row is between 5 and 15°. Gueret teaches the angles of the teeth may be 70°, 80° or 90° (Col. 7, ll. 11-28) and that a row can have six teeth (Col. 12, ll. 12-16). If a row has 6 teeth and each two teeth are oriented at angles including 70°, 80° or 90°, then the standard deviation would be 8.16° (see calculation below).
PNG
media_image4.png
490
362
media_image4.png
Greyscale
Regarding claim 28, Gueret teaches a device for packaging and applying a cosmetic composition to the eyelashes and/or eyebrows (abstract), having:
- a container (3) containing the composition to be applied,
- a brush (8) as defined in claim 1 (see rejection of claim 1).
Regarding claim 29, Gueret teaches a method for cosmetically treating the eyelashes and/or eyebrows (abstract), involving applying a cosmetic composition to at least one of the eyelashes and eyebrows with the aid of a brush as claimed claim 1 (see rejection of claim 1).
Regarding claim 31, Gueret teaches the brush as claimed in claim 1 (see rejection above), wherein each of the rows in the selected group of rows have spikes with opposite orientations toward the distal end and toward the proximal end, or vice versa (see Fig. 5B).
Claim(s) 30 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gueret (US 8,783,268 B2) in view of Gueret (US 2013/0036565 A1), henceforth Gueret (‘565).
Regarding claim 30 (as best understood), Gueret teaches the brush as claimed in claim 1 (see rejection above). Gueret teaches a spike of one row may appear to cross a spike of an adjacent row when viewed from the side (see Figures 3, 58, etc.) but is silent to explicitly wherein, for at least two consecutive rows of spikes, at least some of the spikes in one row each has an abscissae along the longitudinal axis at its base that is above an abscissae along the longitudinal axis at its base of at least one of the spikes in the other row and has an abscissae along the longitudinal axis at their peak that is below abscissae along the longitudinal axis at their peak of the same at least one of the spikes in the other row.
Gueret (‘565) teaches a device in the same field of endeavor of applicators for applying a cosmetic composition. Gueret teaches the applicator comprises a core (10) having rows (11, 12) extending over the entire periphery of the core and having spikes/bristles (21, 22) ([0084]-[0088]). Gueret teaches for at least two consecutive rows (11, 12) of spikes, at least some of the spikes (22) in one row each has an abscissae along the longitudinal axis at its base that is above an abscissae along the longitudinal axis at its base of at least one of the spikes (21) in the other row and has an abscissae along the longitudinal axis at their peak that is below abscissae along the longitudinal axis at their peak of the same at least one of the spikes in the other row (see Figure 4). The slope of the bristles provides numerous advantages including imparting flexibility during application ([0015]) the sloping may be varied to be greater or lesser ([0015]) and a more sloped bristle may be desirable for treating lashes at the corner of the eye ([0027]).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to modify the spikes of Gueret to have a configuration where one spike has a base abscissa above and a peak abscissa below the abscissae of a spike in another row, as taught by Gueret (‘565), such that it may provide more flexibility to the brush during application and may be a desired arrangement for application at specific locations of the eyelashes.
PNG
media_image5.png
665
752
media_image5.png
Greyscale
Response to Arguments
The examiner appreciates applicant’s clarification and amending of the claims using more direct language; the amendments overcome the previous 112 rejections. Please note the new claim objections and 112(b) rejections above. For clarity of record, it should be understood that the claimed rows and features directed to the rows and spikes appear to be combinable with the initially recited two rows (which comprise the at least three consecutive spikes with varying angles), such that the rows recited after said two rows and in the dependent claims may or may not include the initially recited two rows.
In light of the amendments, applicant’s arguments with respect to the 102 rejection of claims 1-9, 11-29, 31 have been considered but are moot because the new ground of rejection involves a different interpretation of the prior art that may have not been challenged in the arguments. Other arguments are addressed below.
Applicant's arguments filed 1/29/2029 have been fully considered but they are not persuasive. Applicant argues that in figure 21, Gueret discloses two spikes within the same row forming a V-shape and not two radially adjacent spikes of two rows (i.e., spikes of same rank). However, it should be noted that regardless of Gueret’s labelling, the figure may be interpreted to have two rows such that each spike lies within one row. Gueret shows different “widths” of a row in Figures 21, 23, 25 and their teachings do not limit the interpretation of each linear length in which a spike lies, there be a row. However, please note that the new rejection in view of the amendments uses Figures 4 and 5a to clearly show two adjacent spikes angled differently relative to the core and additionally note the use of Figures 21-22 to show a spike configuration where spikes within a pair face opposite directions. Therefore, claim 1 requires at least two rows having at least three consecutive spikes in which two of said spikes form different angles with the core (which is clearly shown in Figure 5B of Gueret), at least two rows, which may or may not include the first two rows where radially adjacent spikes have different angles (which is clearly shown in Figure 5a of Gueret), and at least one row, which may or may not include any of the recited row, that has at least 25% of pairs having spikes facing opposite directions (which is obvious in view of Gueret’s V-shaped configuration of Figures 21-22). The claims appear to generally recite various features that can be combined. Gueret contemplates many configurations rows and spikes including angle variation, spike size, spike shape and cross section, pattern, and row variation (see at least Figures 58-60 and Col. 24 lines 17-25) and mentions that the embodiments and their characteristics may be combined to constitute variants which are not shown (Col. 30 lines 16-18). The claims appear to generally recite various features that can be combined.
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.
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.
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.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Edelmira Bosques can be reached at (571) 270-5614. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/LINA FARAJ/ Examiner, Art Unit 3772
/EDELMIRA BOSQUES/ Supervisory Patent Examiner, Art Unit 3772