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 .
Response to Arguments
Applicant’s arguments, see Remarks filed on 09/02/2025, have been fully considered. The Examiner withdraws the rejections under 35 U.S.C. 112(b) presented in the previous Office Action, in light of Applicant’s amendments and clarifications. However, upon careful consideration the Examiner finds that the claims are not patentable over the prior art of record. Applicant’s arguments against the rejections in view of the prior art of record have been fully considered, but are not persuasive as they do not address the new grounds of rejection and/or interpretation below necessitated by Applicant’s amendments.
Claim Objections
Claims 1 and 14 are objected to because of the following informalities:
Claim 1 reads “when the palette is in the locked position the first edge coupled to the hermetic gasket”; it should read “couples”, as correctly written in claim 14.
Claims 4-5 and 20 recite “the gasket”, it should recites “the hermetic gasket”.
Claim 14, line 6: “matching element” should read “latching element”.
Appropriate correction is required.
Claim Rejections - 35 USC § 103
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 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.
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.
Claim(s) 1, 3-5, 7, 9-11, 13 and 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Roh (US 20220400831 A1) in view of Jouan (US 20230225482 A1).
Note: The Examiner relies on Roh’s disclosure of embodiment according to Figures 8-11. It will be appreciated that the modular palette 200 illustrated in FIGS. 8-11 may include similar features to the modular palette 100, and thereby elements illustrated in FIGS. 8-11 are designated by similar reference numbers indicated on the example illustrated in FIGS. 1-7, increased by 100 ([0049]).
Regarding claim 1, Roh discloses a makeup palette (Figures 8-11, Abstract) comprising: a substantially concave base (202) comprising a first connector element (since the cover may be secured with the container via any number of suitable approaches such as a locking/release mechanism; therefore the container/base has a locking/release element; see [0041]); a substantially concave cover (206) hingedly coupled to the base ([0040]), the cover comprising an area with a lip sloping therefrom, the lip terminating at a first edge (see the lip where part 206 is marked in Figure 8; said lip has a first edge that seals the enclosure with the lip of the base when the palette is in the locked position), the cover further comprising a second connector element to securely mate with the first connector element to place the palette in a locked position such that the base and the cover define a locked enclosure therebetween for storing makeup (Figure 8, [0041]). The Examiner notes that the makeup palette additionally contains a tray 230 (see Figure 8 and [0050]). However, Roh fails to disclose “a hermetic gasket such that when the palette is in the locked position the first edge coupled to the hermetic gasket to hermetically seal the enclosure”.
Jouan discloses a makeup case (Figure 13) comprising: a base (2), cover (5) hingedly coupled to the base (by means of a hinge [0057]), the cover comprising a first edge (51) and a hermetic gasket (81) such that when the palette is in the locked position the cover, the hermetic and the base hermetically seal the enclosure ([0303]). The gasket (81) seals a seam between the cover and the base when the case is in the locked position (Figure 18, [0303]). The base comprises a recessed track seating the gasket (81) between the base and a sidewall of the tray (Figure 17, [0303]; see additionally Annotated Figure 17 below). Therefore, it would have been obvious to one of ordinary skills in the art, before the effective filing date of the application, to modify Roh’s makeup palette to make it comprising a hermetic gasket coupling the base to the cover to allow Roh’s first edge to couple to the hermetic gasket to hermetically seal the enclosure, since such modification would provide a seal when the lid is in the closed position ([0303]).
The Examiner notes that the makeup palette, created by the combination above, discloses such that when the palette is in the locked position the first edge (see Roth first edge) coupled to the hermetic gasket (gasket taught by Jouan which seals a seam between the cover and the base) to hermetically seal the enclosure.
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Regarding claim 3, Roh and Jouan discloses the invention substantially as claimed. Roh discloses further comprising a tray (see Figure 8 and [0050]), the tray comprising one or more wells to store makeup within the enclosure when the palette is in the locked position (since the tray 230 comprises a plurality of wells adapted to receive a cosmetic product pan [0053]).
Regarding claim 4, Roh and Jouan discloses the invention substantially as claimed. Jouan discloses wherein the gasket seals a seam between the cover and the base when the palette is in the locked position ([0303]).
Regarding claim 5, Roh and Jouan discloses the invention substantially as claimed. Jouan discloses wherein the base (2) comprises a recessed track seating the gasket (Annotated Figure 17) between the base (2) and a sidewall of the tray (4) (since as shown in Figure 17, the gasket seats in between the between the base and a sidewall of the tray; see also Annotated Figure 18).
Regarding claim 7, Roh and Jouan discloses the invention substantially as claimed. Roh discloses further comprising one or more pans of makeup each inserted into an associated one of the one or more wells ([0053]).
Regarding claim 9, Roh and Jouan discloses the invention substantially as claimed, but fails to specifically disclose “wherein one or more dimensions of the at least one silicone-based makeup are optimized to reduce gas emitted therefrom when the palette is in the locked position” (these limitations are unclear, see the 112(b) rejection above; for the purpose of examination the pans are the structures optimized and that comprises the claimed dimensions).
However, the immediate Specification discloses these parameters as being merely preferable (e.g. [0012]) and does not describe it as contributing an unexpected result to the makeup palette. As such, these parameters, are deemed matters of design choice (lacking in any criticality), well within the skills of the ordinary artisan, obtained through routine experimentation in determining optimum results. Furthermore, one of ordinary skill in the art would understand that the dimensions of the pans, optimized to reduce gas emitted when the palette is in the locked position, are a result effective variable, wherein the pans are proportional to the size of the makeup palette. Therefore, it would have been obvious to one of ordinary skill in the art before the filing date of the invention to optimize the dimensions of the pans to reduce gas emitted therefrom when the palette is in the locked position, since such modification would merely involve the optimization of a result effective variable, obtained through routine experimentation in determining optimum results which has been held to be within the skill of the ordinary artisan (see MPEP 2144.05 (II)).
Regarding claims 10 and 11, Roh and Jouan discloses the invention substantially as claimed, but fails to specifically disclose “wherein a dimension from the one or more dimensions comprises a height of the at least one silicon-based makeup within an associated pan between 6.5 mm and 8.5 mm” and “wherein a dimension from the one or more dimensions comprises a depth to width ratio of one of the makeup in the one or more pans of approximately 8:17”. On the other hand, Roh discloses that it is well known in the art that palettes may be provided in different sizes to accommodate a desired number of eye shadow products disposed in pans ([0003]). Additionally, the immediate Specification discloses these parameters as being merely preferable (e.g. [0012]) and does not describe it as contributing an unexpected result to the makeup palette. As such, these parameters, are deemed matters of design choice (lacking in any criticality), well within the skills of the ordinary artisan, obtained through routine experimentation in determining optimum results. Furthermore, one of ordinary skill in the art would understand that the dimensions of the pans, optimized to reduce gas emitted when the palette is in the locked position, are a result effective variable, wherein the pans are proportional to the size of the makeup palette. Therefore, it would have been obvious to one of ordinary skill in the art before the filing date of the invention to optimize the dimensions of the pans to reduce gas emitted therefrom when the palette is in the locked position (making them of an appropriate size e.g. comprises a height of 6.5 mm and 8.5 mm and a depth to width ratio of approximately 8:17), since such modification would merely involve the optimization of a result effective variable, obtained through routine experimentation in determining optimum results which has been held to be within the skill of the ordinary artisan (see MPEP 2144.05 (II)).
Regarding claim 13, Roh and Jouan discloses the invention substantially as claimed. Roh discloses further comprising a hinge coupling the base to the cover, the hinge substantially sealed along its length (since as shown in Figure 8, the hinge 204 is covered by the cover hinge 207; please see the description of these structures, which are similar in all embodiments, in [0040]).
Regarding claim 20, Roh and Jouan discloses the invention substantially as claimed. Roh discloses wherein the first edge engages the gasket to form the seal (the makeup palette, created by the combination above, discloses such that when the palette is in the locked position the first edge (see Roth first edge) coupled to the hermetic gasket (gasket taught by Jouan which seals a seam between the cover and the base) to hermetically seal the enclosure).
Claim(s) 2 is/are rejected under 35 U.S.C. 103 as being unpatentable over Roh in view of Jouan, further in view of Klinger (see NPL and the PTO 892 form attached to the Office Action filed on 05/30/2025).
Regarding claim 2, Roh/Jouan fails to disclose “wherein the hermetic gasket comprises an acrylic”.
Klinger discloses a catalog of a variety of gaskets used in the industry for several purposes including for the sealing of containers, valves and pumps to avoid the scape of gasses. Klinger discloses gaskets made of acrylic (page 221).
The Examiner notes that Klinger and Roh/Jouan are analogous to the claimed invention because they have teachings directed towards the proper sealing of material inside a container by using gaskets. Therefore, it would have been obvious to one of ordinary skills in the art, before the effective filing date of the application, to modify Roh/Jouan’s hermetic gasket to make of an acrylic, as taught by Klinger, since such modification would create a gasket made of an economic yet versatile synthetic material (221).
Claim(s) 8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Roh in view of Jouan, further in view of Druckman (US 20200337436 A1).
Regarding claim 8, Roh and Jouan fails to disclose wherein the one or more pans of makeup contain at least one silicone-based makeup.
Druckman discloses a makeup container (Figure 1, [0011]) comprising a silicone-based makeup (e.g. silicone-based foundations [0015]). Therefore, it would have been obvious to one of ordinary skills in the art, before the effective filing date of the application, to modify Roh/ Jouan’s makeup palette to make containing a silicone-based makeup, since such modification would be a simple substitution of one known element for another to obtain predictable results (i.e. the substation of a well know makeup for another) MPEP 2143.
Claim(s) 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Roh in view of Jouan, further in view of Bouix (US 5875795 A).
Regarding claim 12, Roh discloses wherein the first and second connectors comprise a frictional engagement ([0041]), but Roh/Jouan fails to specifically disclose “wherein the first and second connectors comprise a snap-fit connector”.
Bouix discloses a makeup container (Figure 1, Abstarct) comprising a cover engaging with the base via a snap-fit assembly (col 3, lines 36-40). Therefore, it would have been obvious to one of ordinary skills in the art, before the effective filing date of the application, to modify Roh/Jouan/Adams’ makeup palette to make comprising a frictional engagement between the first and second connector, since such modification would be a case of simple substitution of one known element for another to obtain predictable results.
Claim(s) 6, 14, and 16-19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Roh in view of Jouan, further in view of Adams (US 20240324750 A1).
Regarding claim 6, Roh and Jouan fails to disclose “wherein the base and the cover both comprise a solid, ergonomic food-grade plastic”.
Adams discloses a makeup palette (Figure 1, Abstract) comprising: a base and a cover ([0020]); wherein the base and the cover both comprise a solid, ergonomic food-grade plastic ([0026]). Therefore, it would have been obvious to one of ordinary skills in the art, before the effective filing date of the application, to modify Roh/Jouan’s makeup palette to make the base and the cover of food-grade plastic, since such modification would be a simple substitution of one known element for another to obtain predictable results (i.e. the container would not contaminate the cosmetic material) MPEP 2143.
Regarding claim 14, Roh discloses a makeup palette (Figures 8-11, Abstract) comprising: a solid ergonomic casing (Figure 8) comprising: a cover (206) comprising a first latching element (since the cover may be secured with the container via any number of suitable approaches such as a locking/release mechanism; therefore the container/base has a locking/release element; see [0041]) and an area with a lip sloping therefrom, the lip terminating in a first edge (see the lip where part 206 is marked in Figure 2; said lip has a first edge that seals the enclosure with the lib of the base when the palette is in the locked position); a base (202) comprising a second latching element for engaging the first matching element to place the palette in a locked position, wherein in the locked position the cover and the base form a locked enclosure therebetween ([0041]). The Examiner notes that the makeup palette additionally contains a tray 230 (see Figure 8 and [0050]). However, Roh fails to disclose that the casing is made of “food-grade eco plastic” and “a gasket such that when the palette is in the locked position”.
Jouan discloses a makeup case (Figures 13) comprising: a base (2), cover (5) hingedly coupled to the base (by means of a hinge, [0057]), the cover comprising a first edge (51) and a hermetic gasket (81) such that when the palette is in the locked position the cover, the hermetic and the base hermetically seal the enclosure ([0303]). The gasket (81) seals a seam between the cover and the base when the case is in the locked position (Figure 18, [0303]). The base comprises a recessed track seating the gasket (81) between the base and a sidewall of the tray (Figure 17, [0303]; see additionally Annotated Figure 17). Therefore, it would have been obvious to one of ordinary skills in the art, before the effective filing date of the application, to modify Roh’s makeup palette to make it comprising a hermetic gasket coupling the base to the cover to allow Roh’s first edge to couple to the hermetic gasket to hermetically seal the enclosure, since such modification would provide a seal when the lid is in the closed position ([0303]).
The Examiner notes that the makeup palette, created by the combination above, discloses such that when the palette is in the locked position the first edge (see Roth first edge) coupled to the hermetic gasket (gasket taught by Jouan which seals a seam between the cover and the base) to hermetically seal the enclosure.
Adams discloses a makeup palette (Figure 1, Abstract) comprising: a base and a cover ([0020]); wherein the base and the cover (the casing) both comprise a solid, ergonomic food-grade plastic ([0026]). Therefore, it would have been obvious to one of ordinary skills in the art, before the effective filing date of the application, to modify Roh/Jouan’s makeup palette to make the casing of food-grade plastic, since such modification would be a simple substitution of one known element for another to obtain predictable results (i.e. the container would not contaminate the cosmetic material) MPEP 2143.
Regarding claim 16, Roh, Jouan, and Adams discloses the invention substantially as claimed. Roh discloses further comprising a tray supporting one or more pans of makeup within the enclosure when the palette is in the locked position.
Regarding claim 17, Roh, Jouan, and Adams disclose wherein the enclosure contains one or more pans for storing makeup, dimensions of makeup within the one or more pans are optimized to reduce gas discharged by the makeup when the palette is in the locked position (since the makeup palette disclosed by the combined teachings of the prior art has all the necessary structures to be configured to use an amount of makeup on each pan that optimizes the gas discharged by the makeup when the palette is in the locked position).
Furthermore, one of ordinary skill in the art would understand that the dimensions of the makeup can be optimized to reduce gas emitted when the palette is in the locked position, as a result effective variable, wherein the makeup is proportional to the size of the pan and palette. Therefore, it would have been obvious to one of ordinary skill in the art before the filing date of the invention to optimize the dimensions of the makeup to reduce gas emitted therefrom when the palette is in the locked position, since such modification would merely involve the optimization of a result effective variable, obtained through routine experimentation in determining optimum results which has been held to be within the skill of the ordinary artisan (see MPEP 2144.05 (II)).
Regarding claim 18, Roh, Jouan and Adams discloses the invention substantially as claimed. Jouan discloses wherein the gasket is sandwiched between the tray and the cover (since the gasket seals the space between the cover and the base when the palette is in the locked position (Annotated Figure 17).
Regarding claim 19, Roh, Jouan, Adams discloses the invention substantially as claimed. Roh discloses wherein the base has a second sloping lip terminating in a second edge, wherein in the locked position the first edge and second edge are opposed (since as shown in Figure 8, both the base and the cover have a bevel/bezel lips terminating in opposing edges when the palette is in the closed position; see also example shown in Figure 2).
Claim(s) 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Roh in view of Jouan, further in view of Adams, further in view of Klinger .
Regarding claim 15, Roh, Jouan and Adams as combined above, fail to specifically disclose “wherein the hermetic gasket comprises an acrylic”.
Klinger discloses a catalog of a variety of gaskets used in the industry for several purposes including for the sealing of containers, valves and pumps to avoid the scape of gasses. Klinger discloses gaskets made of acrylic (page 221).
The Examiner notes that Klinger and Roh/Jouan are analogous to the claimed invention because they have teachings directed towards the proper sealing of material inside a container by using gaskets. Therefore, it would have been obvious to one of ordinary skills in the art, before the effective filing date of the application, to modify Roh/Jouan/Adams’s hermetic gasket to make of an acrylic, as taught by Klinger, since such modification would create a gasket made of an economic yet versatile synthetic material (221).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LUIS MIGUEL RUIZ MARTIN whose telephone number is (571)270-0839. The examiner can normally be reached M-F 8 Am - 5 PM (EST).
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/LUIS RUIZ MARTIN/
Examiner, Art Unit 3772
/ERIC J ROSEN/Supervisory Patent Examiner, Art Unit 3772