DETAILED ACTION
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 3/23/26 has been entered.
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.
Claim(s) 1-5, 7-8, 10-14, and 16-17 is/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 pre-AIA the applicant regards as the invention.
Claim 1: the claim requires “a plurality of teeth”, but does not clearly refer back to “the plurality of teeth” throughout the claim, which is confusing and makes the metes and bounds of the claims unclear. For examination purposes, the claim will be treated as reciting “the plurality of teeth” throughout the claim instead of “the teeth”. The claim was also amended to recite “wherein the first and second support members are configured to be removed”; however, the claim does not say what the support members are configured to be removed from making the metes and bounds of the claim unclear. Clarification or correction is requested.
Claim 17: The claim was amended to recite “wherein the first and second support members are configured to be removed”; however, the claim does not say what the support members are configured to be removed from making the metes and bounds of the claim unclear. Clarification or correction is requested.
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 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.
Claim(s) 1-5, 7, 10-11, and 16-17, as best understood, is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Kim (US 20100095975).
Claim 1: Kim discloses a package (see Fig 1) for a cosmetic comprising: an applicator (see Fig 1) including a first elongate support (see annotations) having a guide element, or a pressing member, (350) disposed at a first end and a second elongate support (see annotations) having a comb (333) [0054] disposed at a first end. The comb(s) (333) [0054] including a plurality of teeth (peaks and valleys are described as “a plurality of teeth” of the combs see [0054 & 0063]). A second end of the first elongate support is hinged (see annotations) to a second end of the second elongate support (see annotations), the applicator is selectively movable between a first state where the comb is disengaged or “situated away” from the pressing member (see Fig 7) and a second state where the comb and pressing member are engaged (see Figs 4-6) with a pad member (332) creating a “constant offset” between the teeth and their profile and the guide member (see Fig 5); and a container (100, Fig 1) with an internal space filled with cosmetic [0049] and an aperture sized to receive the applicator in the second state (see Fig 1) [0049]. The top of the first elongate support forms a first support member and the bottom of the second elongate support forms a second support member. As best understood the supports and support members are configured to be removed from a user’s face after use and are interchangeable with other applicators of different configurations, which as best understood meets the new claim limitations.
Claims 2 and 16: the hinge comprises an elastic spring (390) loaded hinge (370+390) so it is interpreted to constitute an “elastic hinge” that is undeformed, or undeflected, in the first state (uncompressed) and deformed, or deflected, (compressed) in the second state.
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Claim 3: the first and second elongate supports are parallel when the applicator is in the second state (see Fig 6).
Claim 4: the pressing member, or guide element, has a protruding triangular profile (see Figs 4-5) and the comb (330) has a recessed profile (see Figs 4-5) with the comb at least partially receiving the pressing member when the applicator is in the second state (see Figs 4-5).
Claim 5: the protruding profile of the pressing member, or guide element, includes a first flat surface positioned at an angle relative to a second flat surface (see annotations).
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Claims 7 and 11: the plurality of teeth of the comb (333) extend outwardly from a central longitudinal axis of the applicator toward the guide element (see Figs 3 & 7).
Claim 10: the recessed profile includes a first flat surface opposite the first flat surface of the protruding profile and a second flat surface opposite the second flat surface of the protruding profile (see annotations).
Claim 17: Kim discloses a method of applying a cosmetic [0049] to eyelashes [0059] comprising the steps of: moving an applicator from a first state where a comb (330) is disengaged from a pressing member (350) of the applicator (see Fig 7) to a second state where the comb is engaged with the pressing member (see Figs 4-6) and the comb and pressing member are located at first ends of first and second elongate supports (see annotations) of the applicator. Second ends of the first and the second elongate supports are flexibly hinged together with a flexible spring (390) loaded hinge; inserting the comb and pressing member into the container filled with cosmetic [0049] withdrawing the applicator from the container (see Fig 1), moving the applicator from the first state to the second state (see Figs 6-7) with at least some of the eyelashes extending through the comb [0059] and drawing the applicator across the lashes to apply the makeup as is known when applying mascara with a brush. The top of the first elongate support forms a first support member and the bottom of the second elongate support forms a second support member. As best understood the supports and support members are configured to be removed from a user’s face after use and are interchangeable with other applicators of different configurations, which as best understood meets the new claim limitations.
Claim(s) 1, 4, 7-8, 10, 12-14, and 16-17, as best understood, is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Hirzel (US 5007442).
Claims 1, 4, 7-8, 10, and 12: Hirzel discloses a package for a cosmetic composition (see Fig 3) comprising: an applicator (12) including a first elongate support (17+39) having a pressing, or guide, member (53) disposed at a first end and a second elongate support (15+38) having a comb (52) disposed at a first end; a second end of the first elongate support is coupled (11) to a second end of the second elongate support via an elastic flexible living hinge (11), the applicator is movable between a first state where the guide member and comb are disengaged (see Figs 1 & 4) and a second state where the comb and guide member are engaged (see Fig 3); and a container (20, Fig 3) defining an internal space with cosmetic and an aperture (64) that receives the first and second elongate supports when the applicator is in the second state (see Fig 3). When the first and second elongate supports are parallel, the applicator is in the second state (see Fig 3). The guide member has a protruding profile and the comb has a recessed profile with the comb at least partially receiving the guide member in the second state (see Fig 3). The comb includes teeth (72 & 76) extending from a longitudinal axis of the applicator and at least one of the teeth has a first and a second planar face perpendicular to the longitudinal axis (see Fig 2). The recessed profile includes a first flat top surface positioned at a perpendicular angle to a second flat surface of a series of teeth (72) with the teeth extending from a longitudinal axis of the applicator with the teeth parallel to each other (see Fig 2). When in the second state, the guide element has a constant offset from the recessed profile of the teeth (see Fig 3); this offset is approximately zero between the bristles of the guide element and the comb, but between the core carrying the bristles and the comb it is more than zero and is constant due to the nature of the flat handles mating when closed (see Figs 1-3). The top of the first elongate support forms a first support member and the bottom of the second elongate support forms a second support member. As best understood the supports and support members are configured to be removed from a user’s face after use and are interchangeable with other applicators of different configurations, which as best understood meets the new claim limitations.
Claim 14: the applicator can be at least partially formed by plastic (Col 3, 10-20), which is a polymeric material.
Claim 16: the applicator’s living hinge is undeflected in the first state and deflected in the second state (see Figs 1-3).
Claim 17: Hirzel discloses a method of applying a cosmetic to eyelashes (see Fig 4) the method comprising the steps of: moving an applicator (12) including a first elongate support (15+38) having a guide member (52) disposed at a first end and a second elongate support (17+39) having a comb (53) disposed at a first end; a second end of the first elongate support is coupled (11) to a second end of the second elongate support via an elastic flexible living hinge (11), the applicator is movable between a first state where the guide member and comb are disengaged (see Figs 1 & 4) and a second state where the comb and guide member are engaged (see Fig 3); and a container (20, Fig 3) defining an internal space with cosmetic and an aperture (64) that receives the first and second elongate supports when the applicator is in the second state (see Fig 3). Inserting the comb and guide member into the container (20, see Fig 3) filled with cosmetic (Col 1, 10-25), withdrawing the applicator from the container (see Figs 1 & 3); moving the applicator from the first state to the second with lashes extending through the comb (Col 2, 15-35); and drawing the applicator across the lashes to transfer the cosmetic to the lashes (Col 2, 15-35). When in the second state, the guide element has a constant offset from the recessed profile of the teeth (see Fig 3); this offset is approximately zero between the bristles of the guide element and the comb, but between the core carrying the bristles and the comb it is more than zero and is constant due to the nature of the flat handles mating when closed (see Figs 1-3). The top of the first elongate support forms a first support member and the bottom of the second elongate support forms a second support member. As best understood the supports and support members are configured to be removed from a user’s face after use and are interchangeable with other applicators of different configurations, which as best understood meets the new claim limitations.
Response to Arguments
Applicant's arguments filed 3/23/26 have been fully considered but they are not persuasive. All of applicant’s arguments are drawn to the newly presented claim limitations, which have been addressed above with modified rejections, as necessary.
As discussed above, the claim does not state what the support members are removable from making the metes and bounds unclear.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Jennifer Gill whose telephone number is (571)270-1797. The examiner can normally be reached on Monday-Friday 10:00am-5:00pm.
If attempts to reach the examiner by telephone are unsuccessful, please contact 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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/JENNIFER GILL/
Examiner, Art Unit 3772
/NICHOLAS D LUCCHESI/Primary Examiner, Art Unit 3772
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