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 1-5, 7, 9, 11-12, 14-21, and 23-24 are rejected under 35 U.S.C. 103 as being unpatentable over Berhault (US 2018/0140083) in view of Gueret (US 2004/0134507) and in further view of Lhoyer (WO 2010/125188).
Regarding Claim 1, Berhault teaches a cosmetic applicator (applicator 3, particularly with the brush embodiment shown in Figure 15; ¶ 0048 supports that descriptions are not repeated when elements are repeated across embodiments, only differences between embodiments are addressed) for applying a composition to human keratinous fibers, notably eyelashes or eyebrows (¶ 0001), comprising:
a stem (stem 5) having at least a rectilinear portion extending along a rectilinear axis (Figure 1),
a brush (brush 10, embodiment shown in Figure 15) at one end of the stem (brush 10 is at distal end 5a of stem 5), the brush (10) comprising:
a curved core (core 40 as shown in Figure 15; ¶s 0029, 0060, and 0062) having a distal end and defining a convex side and an opposite concave side, the distal end of the core being offset from the rectilinear axis of the stem on the convex side of the core (see annotated Figure 15 below; Figure 15 show just the brush with core 40, which is attached to the stem 3 as shown in Figure 1 such that the stem would extend from the straight portion of core 40 on the right of Figure 15, see ¶ 0052)
application members (bristles 41) supported by the core (¶ 0052),
the application members (bristles 41) defining an envelope surface (envelope surface S) of non-circular cross section along at least part of its length (Figure 3 shows cross section along III-III of Figure 2 and Figure 4 shows the cross section along IV-IV of Figure 2; both are non-circular as they include notches 30), the cross section of the envelope surface having a plurality of rectilinear segments (straight edges along notches 30, marked as flanks 32) connected by circular arcs (rounded summits 35 of ribs 31).
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While Berhault does not explicitly teach the offset being not less than 0.5mm and no greater than 2.5mm, Figure 15 does show that there is an offset. The size of the offset may be approximately the same as the notch (30) in the envelope surface and ¶ 0059 states “The distance A between the core 40 and the ridge 33 of the notch 30 is between 0.2 and 2.5 mm.” However the offset size is not explicitly stated.
Berhault also does not explicitly teach a tilt angle between the rectilinear axis of the rectilinear portion of the stem and a straight line joining the distal end of the core to the distal end of the rectilinear portion of the stem ranging from 0.7° to 5.7°. Though as shown in the annotated Figure 15 above, the angle is shown as relatively small.
Gueret, in the same field of endeavor of applicators for applying cosmetics to eyelashes (abstract), teaches a tilt angle between the rectilinear axis of the rectilinear portion of the stem and a straight line joining the distal end of the core to the distal end of the rectilinear portion of the stem ranging from 0.70 to 5.7° (Figure 2; ¶ 53 describes the angle alpha as being less than 8 degrees; ¶ 9 teaches the angle being even smaller: “The angle formed by the bristle-carrying portion of the core relative to the longitudinal axis of the rod may lie in the range about 0.2° to about 20°, and preferably in the range about 0.5.° to about 15°, and more preferably in the range about 1°, or even about 5°, to about 10°.”). Gueret further teaches a small offset of the distal end of the core from the longitudinal axis of the stem, close to the claimed range for the offset (¶ 11). Gueret teaches a small angle between the longitudinal axis of the rod and the distal end of the brush core in order to make it easier for the user as the brush could be used without having to first identify the orientation and thereby complicating the movements required to apply make-up (¶ 4). Gueret also teaches the offset being less than 4.5 mm (¶ 54, claim 20).
Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the cosmetic applicator as taught by Berhault to include a tilt angle in the range of 0.7 to 5.7°, which is within the range taught by Gueret. One would be motivated to use this small angle because it would reduce the ways the user needs to ensure the brush and rod are aligned relative to the eye before use (Gueret-2004-507 ¶ 4). Gueret also contemplates the core of the brush being curved (¶ 69), therefore the benefit would still apply with a curved brush. Applicant appears to have placed no criticality on the claimed range for the tilt angle(see instant application specification page 4 lines 3-6 indicating the claimed range as preferable).
While Gueret teaches the offset being less than 4.5 mm, it does not explicitly state the offset distance being 0.5 to 2.5 mm.
However, Lhoyer, in the same field of endeavor of cosmetic applicators for applying cosmetics to eyelashes (Field of Invention), teaches a cosmetic applicator (Figure 4) comprising a stem (26), a brush (applicator element 30) at one end of the stem (Figure 4) with a core (60) whose distal end is offset from the rectilinear axis of the stem (Figure 4 shows axis of stem as X-X axis and axis of distal end of core as Y-Y axis) with the offset being not less than 0.5 mm and no greater than 2.5 mm (page 7 lines 13-16 describe offset between the axis and therefore between the distal end of the core and the rectilinear axis of the stem as being 1-2 mm). Lhoyer teaches this offset so that the brush moves in a circle around the stem when the stem is rotated, rather than the brush just rotating in line with the stem (page 2 lines 11-15). While Lhoyer utilizes an automatically rotating stem, the offset would still be applicable to an applicator without an automatically rotating stem as it would allow the user to just rotate the applicator rather than a more complicated brushing and rotating motion.
Therefore 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 invention as taught by Berhault and Gueret to include the offset being the narrower range of 1-2 mm as taught by Lhoyer. Gueret teaches the offset being less than 4.5 mm and Lhoyer teaches the offset being in the narrower range of 1-2 mm, which overlaps the range of less than 4.5 mm and therefore would be obvious to try. And Lhoyer further teaches that such an offset could make application of the cosmetic product easier for the user.
Regarding Claim 2, Berhault, Gueret, and Lhoyer teach the applicator of claim 1, as presented above. Berhault further teaches the stem being rectilinear along its entire length (Figure 1).
Regarding Claim 3, Berhault, Gueret, and Lhoyer teach the applicator of claim 1, as presented above. Berhault further teaches the core being a twisted wire core (¶ 0052).
Regarding Claim 4, Berhault, Gueret, and Lhoyer teach the applicator of claim 1, as presented above. Berhault further teaches the core being non rectilinear over its entire length from the stem to its distal end (Figure 15; ¶ 0052 describes the portion of the core that does not have bristles as being for attachment to the stem so the portion of the core that makes up the brush is non rectilinear over its entire length).
Regarding Claim 5, Berhault, Gueret, and Lhoyer teach the applicator of claim 4, as presented above. Berhault further teaches the core extending along a longitudinal axis of substantially constant radius of curvature from the stem to the distal end of the core (Figure 15).
Regarding Claim 7, Berhault, Gueret, and Lhoyer teach the applicator of claim 1, as presented above. Berhault further teaches the longitudinal axis of the core extending in a plane (Figure 15; the longitudinal axis is shown in a plane with one curve).
Regarding Claim 24, Berhault, Gueret, and Lhoyer teach the applicator of claim 7, as presented above. Berhault teaches the core being curved in a plane, and further teaches the core being centered in the bristles (see cross sections in Figures 3 and 4, as well as brush orientation as shown in Figure 15). Additionally, the notches and ribs, which define the envelope surface, are provided to improve the application of cosmetic by providing zones loaded with more product and zones loaded with less product to act a combs(¶ 0013-0014), it would be obvious to try different orientations for envelope surface relative to the curve of the brush to determine which provide a good user experience, including orientations with the plane of curve of the core being a midplane for the envelope surface, such that the envelope surface is symmetrical across the plane and it therefore is a midplane (envelope surface as shown in Figures 3 and 4 includes radial and mirror symmetry).
Regarding Claim 9, Berhault, Gueret, and Lhoyer teach the applicator of claim 1, as presented above. Berhault further teaches the envelope surface defining at least one facet of flat or recessed cross section (¶ 0017), but does not place the recesses explicitly with respect to the curve of the core. However, Berhault does teach that the notches and ribs are present to provide for areas loaded with product and areas to comb the eyelashes (¶ 0013-0014), therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to place a notch, or recessed portion of the cross section, at the convex side of the core to have an area loaded with product there.
Regarding Claim 11, Berhault, Gueret, and Lhoyer teach the applicator of claim 1, as presented above. Berhault further teaches the envelope surface could have 3 notches (¶ 0017), but does not provide further details on such a surface. However, Gueret does teach a cross section of the brush with 3 notches (notches 22, Figure 12) which has a substantially triangular contour (Figure 12).
Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to arrange the 3 notches as taught by Berhault such that the cross section of the brush has a substantially triangular cross section as taught by Gueret. This is an arrangement of known features of the brush (3 notches) into a known cross section (triangular) of mascara brushes.
Regarding Claim 25, Berhault, Gueret, and Lhoyer teach the applicator of claim 11, as presented above. The combination of Berhault, Gueret, and Lhoyer further teach the cross section having an apex situated in a midplane for the envelope surface, as the midplane can be defined to be any plane crossing the envelope surface out from the core and therefore at least 3 midplanes have an apex of the triangular cross section situated in them.
Regarding Claim 12, Berhault, Gueret, and Lhoyer teach the applicator of claim 1, as presented above. Gueret teaches a tilt angle preferable in the range of 1-10° (¶ 9). While the claimed range (2-4.5°) is slightly narrower than the preferred range taught by Gueret, the claimed range is fully within the range taught by the prior art. Furthermore, applicant appears to have placed no criticality on the claimed range (see instant application specification page 4 lines 3-6 indicating the claimed range as preferable).
Regarding Claim 14, Berhault, Gueret, and Lhoyer teach the applicator of claim 1, as presented above. Berhault further teaches the application members being bristles or spikes that extend around the core (bristles 41; ¶ 0052).
Regarding Claim 15, the combination of Berhault, Gueret, and Lhoyer teaches the applicator as defined in claim 1, as presented above.
Berhault further teaches a device (device 1; Figure 1) for applying a cosmetic composition on keratinous fibers (¶ 0049), comprising: a container (container 2) containing said composition (product P), comprising a wiper member (wiping member 20) and an applicator (applicator 3).
It would be obvious to use the applicator taught by Berhault, Gueret, and Lhoyer with the container and overall device as taught by Berhault.
Regarding Claim 16, Berhault, Gueret, and Lhoyer teach the device of claim 15, as presented above. Berhault teaches the curved brush being offset to the convex side (see annotated Figure 15 above), therefore it further teaches the wiper member and the brush being configured so that when the applicator is withdrawn from the container along said rectilinear axis, application members situated on the convex side of the core, at an axial position along the longitudinal axis of the core from the proximal end of the bristle portion of the brush, first contact the wiper member (the brush 10 as shown in Figure 15 put in the device as shown in Figure 1 would result in the bristles on the convex side of the core contacting the wiper member first; wiper lip is shown in Figure 1 as being situated very close to stem; see annotated Figure 15 below with example wiper added).
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While Berhault is silent as to how far down the longitudinal axis the first contact occurs, a person of ordinary skill in the art would want to minimize the distance to ensure the that as much as possible the bristles of the brush made contact with the wiper, therefore an axial position less than 3 mm along the longitudinal axis of the core would be obvious. Furthermore, applicant appears to have placed no criticality on the claimed range (see instant application specification page 5 lines 3-10 indicating the device may be configured as such).
Regarding Claim 17, Berhault teaches a method for manufacturing a brush for use in an applicator (¶ 0034-0038; claims 38-40) as defined in claim 1 (the method taught by Berhault produces the brush of Berhault Figure 15, which can have the tilt angle taught by Gueret and the offset distance as taught by Lhoyer as presented above), comprising:
machining a twisted wire core brush with a rectilinear core to form at least one planar or recessed face of an envelope surface defined by the free ends of the bristles (¶ 0036), the core having a proximal portion for fixing into a stem and a bristle carrying portion (¶ 0052),
deforming the core to impart to the bristle carrying portion a curved shape with a convex side and a concave side (¶ 0038, with result shown in Figure 15), the distal end of the core being offset from the longitudinal axis of the proximal portion on the convex side of the core (see annotated Figure 15 above).
Regarding Claim 18, Berhault, Gueret, and Lhoyer teach the method according to claim 17, as presented above. Berhault further teaches the core being deformed along a plane of curvature (Figure 15 shows the curve as being in one plane). Berhault also teaches the envelope surface could have 3 notches (¶ 0017), but does not provide further details on such a surface. However, Gueret does teach a cross section of the brush with 3 planar facets to form notches in the envelope surface (notches 22, Figure 12) giving the envelope surface a substantially triangular shape in cross section (Figure 12).
Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to machine the brush such that the 3 notches as taught by Berhault are arranged to give the cross section of the brush a substantially triangular shape as taught by Gueret. This is an arrangement of known features of the brush (3 notches machined into the brush bristles) into a known cross section (triangular) of mascara brushes. It would be obvious to try different orientations of the triangular cross section relative to the plane of curvature of the core such that either an apex or a flat surface was bisected by the plane in order to determine which orientation provided the best application of mascara, with more product loaded in the notches and combing of the lashes accomplished by the ribs or apexes (Berhault ¶ 0013-0014).
Regarding Claim 19, Berhault, Gueret, and Lhoyer teach the method according to claim 17, as presented above. Berhault further teaches the brush including a frustoconical head portion (Figures 5, 9, and 10; ¶ 0023) and machining the brush to have such a shape (¶ 0061).
Regarding Claim 20, Berhault, Gueret, and Lhoyer teach the method according to claim 19, as presented above. Berhault further teaches the brush having a frustoconical head portion (Figures 5, 9, and 10; ¶ 0023) and the planar facets of the notches in the brush intersect that head portion as they extend through it (Figure 5, 9, and 10).
Regarding Claim 21, Berhault, Gueret, and Lhoyer teach the method according to claim 17, as presented above. Berhault further teaches the deforming of the core comprising imparting the bristle carrying portion a constant curvature then tilting the core at the junction of the bristle carrying portion with the proximal portion, or vice versa (Figure 15 shows that there is a tilt or angle between the bristle carrying portion of the core and the proximal portion without bristles, therefore both a curve and this bend must be imparted to the brush during manufacturing, since if the core was only deformed to include a curve such a bend would not be present and rather a continuous curve to straight portion would be shown).
Regarding Claim 23, Berhault, Gueret, and Lhoyer teach the applicator as defined in claim 1. Both also teach an applicator being used to make up human keratinous fibers by applying a cosmetic composition to said fibers as that is the intended use of the device taught and the method as claimed does not have any additional steps (ex. Berhault ¶ 0001).
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Berhault (US 2018/0140083), Gueret (US 2004/0134507), and Lhoyer (WO 2010/125188) as applied to claim 5 above, and further in view of Neuner (US 2009/0056737).
Regarding Claim 6, Berhault, Gueret, and Lhoyer teach the applicator of claim 5, as presented above. Berhault does not teach any specific radius of curvature for the brush core.
However, Neuner, in the same field of endeavor of cosmetic applicators for applying compositions to keratinous fibers (abstract), teaches the radius of curvature being in the range of about 20 to about 60 mm for a mascara applicator (¶ 0019), which fully contains the claimed range of greater than or equal to 34 mm and less than or equal to 47 mm.
Therefore 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 applicator as taught by Berhault, Gueret, and Lhoyer to have a radius of curvature of 34-47 mm as taught by Neuner for mascara applicators. Berhault is silent as to the radius of curvature, therefore it would be obvious to utilize radii of curvature known to work for mascara applicators, as taught by Neuner.
Claim 22 is rejected under 35 U.S.C. 103 as being unpatentable over Berhault (US 2018/0140083), Gueret (US 2004/0134507), and Lhoyer (WO 2010/125188) as applied to claim 1 above, and further in view of Gueret (US 2002/0124861; hereinafter Gueret-2002).
Regarding Claim 22, Berhault, Gueret, and Lhoyer teach the applicator of claim 1, as presented above. Berhault teaches the brush being made by a twisting a wire core and therefore does not teach it being manufactured by injection molding. Gueret teaches the applicator can be made with a wire twisted core (¶ 0016) or by injection molding the bristles and core (¶ 0021), but does not explicitly teach a plastic material for the injection molding.
However, Gueret-2002, in the same field of endeavor of mascara applicators (abstract), teaches a method of manufacturing a brush for use in a mascara applicator comprising injection molding the core and the applicator members in at least one plastics material (¶ 0166). Gueret-2002 teaches that mascara applicators can be made with a twisted core or via injection molding (¶ 0166).
Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to manufacture the applicator as taught by Berhault, Gueret, and Lhoyer by a method including injection molding with at least one plastic material as taught by Gueret-2002, since injection molding is a known alternative method of manufacturing of mascara applicators.
Response to Arguments
Applicant’s arguments filed 05/26/2026, with respect to the rejection of claim 1 under 35 USC 103, specifically regarding the importance of the specific offset distance which is interpreted as arguing the criticality of the offset distance range, have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Berhault (US 2018/0140083) and Gueret (US 2004/0134507) and further in view of Lhoyer (WO 2010/125188) to teach the specific offset measurement.
Applicant's other arguments filed 05/26/2026 have been fully considered but they are not persuasive.
Applicant argues that the cross section of Berhault is a cross with four branches, rather than the cross section presented in the instant application. However, the cross section of Berhault still meets the limitations as claimed: “an envelope surface of non-circular cross section along at least part of its length, the cross section of the envelope surface having a plurality of rectilinear segments connected by circular arcs.” As shown in the cross section in Figure 4 below, the cross section as taught by Berhault has a plurality of rectilinear segments (flanks 32) connected by circular arcs (rounded summits 35). The claim as written does not place further limitations on the cross section that are not met by Berhault.
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Applicant argues that Gueret teaches a straight stem and a straight core and therefore would not be applicable to the cosmetic applicator as taught by Berhault. However, as previously indicated, Gueret does contemplate that the brush may be curved and still offset (¶ 0069).
In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, Berhault teaches that a small angle can be present between the rectilinear axis of the rectilinear portion of the stem and a straight line joining the distal end of the core to the distal end of the rectilinear portion of the stem and Gueret teaches such a small angle for a cosmetic applicator, including that such an applicator could include a curved core. Additionally, Gueret provides further motivation to utilize a small angle offset in order to make the brush easier to use, as presented in the rejections above.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Jennifer P. Connell whose telephone number is (703)756-1169. The examiner can normally be reached Monday - Friday 9 am - 3 pm ET.
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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.
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/JENNIFER P CONNELL/Examiner, Art Unit 3772
/EDELMIRA BOSQUES/Supervisory Patent Examiner, Art Unit 3772
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