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 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, and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Jacob et al. (US 20170347776, hereinafter Jacob) in view of Kim (US 20130032166).
The claimed phrase “formed”, ”injection-molded”, “injection” are being treated as a product by process limitation; that is the product reasonably appears to be either identical with or only slightly different than a product claimed in a product-by-process claim. As set forth in MPEP 2113, product by process claims are not limited to the manipulation of the recited steps, only the structure implied by the steps. Once a product appearing to be substantially the same or similar is found, a 35 USC 102/103 rejection may be made and the burden is shifted to applicant to show an unobvious difference. MPEP 2113.
Regarding Claim 1, Jacob discloses a mascara brush (figures 4a-8b), comprising a first brush (14; figures 6a-8b) extending in one direction (Figure 6a-8b) the first brush (14; Figure 6a-8b) comprising a plurality of hairs (14l; figures 5a-8b) and being a first material (paragraph [0021] discloses they are molded bristles, paragraph [0024] discloses the molded portion is made of elastomers); a second brush (15; Figure 5a-8b) extending in an opposite direction (Figure 6a-8b), the second brush comprising a plurality of second hairs (15e; figures 5a-8b; paragraph [0025]) and being made of a second material different from the first material (abstract; paragraph [0025] discloses it is a fiber brush that is non-molded), the first material includes an elastomer (paragraph [0024]); and a base (14a; figures 6a-8b) supporting the first brush and the second brush (figure 8b), wherein the plurality of second hairs of the second brush are coupled by a line chamber (the chamber is formed in the spaces between the twisted wire core of 15a that hold the fiber bristles; figures 6a-6b; paragraph [0025]) and are secured by a fixing clip (15a; figures 6a-8b) made of stainless steel (paragraph [0025]), wherein the base defines an insertion opening (14d; figures 6a-8b) having a first opening (see illustrated Figure 7a) width at an insertion side (Figure 7a) and a second opening width at an exit side (see illustrated Figure 7a), wherein the second opening width is smaller than the first opening width to mechanically prevent the second brush from falling outward (Figures 7a-8a depict that at the first opening is larger than the second opening in width), wherein the base comprises an injection support protruding (14m; figures 1-5a-8a) downwardly (see illustrated figure 7a; the tabs 14m extend in the same direction as the “downward direction”; paragraph [0026]) from a lower side of the base (figure 7a), wherein a lower portion of the first brush is formed to structurally surround the injection support of the base (Figures 7a-8b).
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Jacob does not disclose the second material includes PBT (polybutylene terephthalate)..
Kim discloses a mascara brush (figure 1), comprising a first brush (10; figure 1) formed extending in one direction (Figure 1); and a second brush (20; Figure 1) formed extending in the opposite direction (Figure 1), the material of the second brush includes PBT (polybutylene terephthalate) (paragraph [0039]).
It would have been obvious to one of ordinary skill in the art before the effective filing date to have modified the material of the second brush of Jacob to be composed of PBT as taught by Kim in order to have flexibility within the bristles.
Regarding Claim 8, Jacob as modified by Kim discloses the device of Claim 1. Jacob discloses a third brush (14i; figures 6a-8b) extending in an upper direction (figures 6a-8b), wherein the first brush and the third brush are integrally injection-molded (abstract; paragraph [0011]; figures 6a-8b).
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Jacob et al. (US 20170347776, hereinafter Jacob) and Kim (US 20130032166) in view of Jacob (US 20170347784).
Regarding Claim 7, Jacob as modified by Kim discloses the device of Claim 1. Jacob discloses the first hair (14l; paragraph [0022]) constituting the first brush (figures 7a-8b) are formed with an average diameter larger (15a fits within the opening of 14j; figures 6a-8b; paragraph [0026]) than the second hair (15e; figure 6a) constituting the second brush (Figures 6a-8b).
Jacob does not disclose the second hair are formed to be harder than the first hair.
Jacob discloses a mascara brush (figures 8a-10), comprising a first brush (14; figures 8a-10) formed extending in one direction (figures 8a-10); and a second brush (15; figures 8a-10) formed extending in the opposite direction (figures 8a-10), the first hair (14l; figures 8a-10) constituting the first brush (figures 8a-10) and the second hair (15e; figures 8a-10) constituting the second brush (figures 8a-10), the second hair are formed to be harder than the first hair (paragraph [0029] discloses that 15 is inflexible while 14 is flexible).
It would have been obvious to one of ordinary skill in the art before the effective filing date to have modified the first and second hairs of Jacob so that the second hair is formed to be harder than the first hair as taught by Jacob in order to resist deformation when coating the eyelashes with mascara and maintain shape.
Response to Arguments
Applicant's arguments filed 01/06/25 have been fully considered but they are not persuasive.
In regards to Applicant’s arguments that Jacob ‘776 does not disclose a molded brush of rubber or elastomer, the Examiner notes that the molded portion and first brush 14 is composed of an elastomer as disclosed in paragraph [0024]. Further, Applicant argues that it is injectable rubber or elastomer, the Examiner notes that “injectable” is not presently claimed in Claim 1, Additionally, “injectable” is treated as a product by process limitation and that is the product reasonably appears to be either identical with or only slightly different than a product claimed in a product-by-process claim. See MPEP 2113.
In addition, the Applicant argues that Jacob does not teach the material of the second brush to be PBT, the Examiner agrees and Kim is used to teach such limitation. The modification of Jacob is to change the material of the brush, it is well known in the art that mascara brushes often either made of metal or of a polymer/elastomer. Further, Kim is not being used to teach two separate brushes/bristles, Kim is being used to teach a material solely.
In regards to Applicant’s arguments regarding a fixing clip of brass or stainless steel securing the second brush hairs, the Examiner notes the bristles are twisted into the gap of the twisted wire 15, such gap is considered to be the line chamber. The fixing clip is the wire itself as it holds the bristles in place. The Examiner suggests adding additional claim limitations of structure to the line chamber and the fixing clip to differentiate from the prior art of record.
With respect to Applicant’s arguments that Jacob does not disclose an insertion opening or the injection support protruding from the base, the Examiner notes that the opening is 14d where the second brush is slotted into and held in place by the protrusions 14m.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Sydney J Pulvidente whose telephone number is (571)272-8066. The examiner can normally be reached Monday - Thursday, 7:30 a.m. - 3:30 p.m..
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Eric Rosen can be reached on (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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/SYDNEY J PULVIDENTE/Examiner, Art Unit 3772 /EDWARD MORAN/Primary Examiner, Art Unit 3772