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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 February 10, 2026, that includes a response to the Final Office Action mailed November 10, 2025, has been entered. Claim 1 has been amended; claims 2 and 4-6 have been canceled; and no claims have been newly added. Claims 13-16 have been withdrawn. Claims 1, 3, and 7-12 are under examination.
Withdrawal of Prior Claim Rejections - 35 USC § 103
Neither Jeong et al. (U.S. Patent Application Pub. No. 2015/0079862), Pike et al. (U.S. Patent No. 5,605,749), Nagano et al. (U.S. Patent Application Pub. No. 2002/0016120), nor Nakatani (U.S. Patent Application Pub. No. 2011/0282243) explicitly disclose that the Asker hardness of the fiber carrier is between 52 and 78, as now stipulated in newly amended claim 1. Therefore, the 35 USC 103 rejection put forth in the Final Office Action mailed November 10, 2025 is hereby withdrawn. However, upon further search and consideration, new prior art has been procured, and a new ground of rejection has been formulated that addresses all pending claim limitations, including the newly added limitation, and is presented herein below and is necessitated by the present amendment.
Claim Rejections - 35 USC § 112(b)
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 10 is 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 10, which depends from claim 1, stipulates that the hardness is 13-70 as measured with a durometer hardness tester, type F. Claim 1, however, limits the Asker hardness to between 52 and 78. In light of the specification, the Asker hardness would be understood to refer to the hardness of the fiber carrier as measured with a durometer hardness tester, type F. Therefore, one of ordinary skill in the art cannot definitively ascertain the metes and bounds of the claimed subject matter.
Claim Rejections - 35 USC § 112(d)
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 10 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 10, which depends from claim 1, stipulates that the hardness is 13-70 as measured with a durometer hardness tester, type F. Claim 1, however, limits the Asker hardness to between 52 and 78. In light of the specification, the Asker hardness would be understood to refer to the hardness of the fiber carrier as measured with a durometer hardness tester, type F. Therefore, claim 10 is broader in scope than claim 1 from which it depends.
NEW GROUND OF REJECTION
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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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.
Claims 1, 3, and 7-12 are rejected under 35 U.S.C. 103 as being unpatentable over Jeong et al. (U.S. Patent Application Pub. No. 2015/0079862) in view of Pike et al. (U.S. Patent No. 5,605,749), Nagano et al. (U.S. Patent Application Pub. No. 2002/0016120), Nakatani (U.S. Patent Application Pub. No. 2011/0282243), and Choi et al. (U.S. Patent Application Pub. No. 2015/0104235).
Applicant Claims
Applicant’s elected subject matter is directed to a cosmetic article comprising a screen net containing a polyolefin and a hot melt layer of copolymer ethylene-vinyl acetate (EVA), 0.05-0.3 mm thick, and having holes with area 0.05-0.50 mm2; and a non-woven fiber carrier that adheres to the screen net comprising air cavities, representing 55-70% of the total volume of the fiber carrier, and a mixture of polyethylene fibers and polypropylene fibers having a diameter of 50-300 µm, and impregnated with a cosmetic composition with viscosity of 1,000-20,000 cps and comprising a UV absorbing agent; wherein the fiber carrier has an Asker hardness between 52 and 78; and wherein the cosmetic article has a thickness of 1-200 mm, a surface density of 30-5500 g/m2, an elasticity between 50-100%, and a “restitution rate” of 40-90%.
Determination of the Scope and Content of the Prior Art (MPEP §2141.01)
Jeong et al. disclose a cosmetic article comprising a screen net containing e.g. a polyolefin, 0.01-1 mm thick, and having holes preferably 0.5-1.0 mm in size (i.e. for square holes an area of about 0.25-1.0 mm2); and a non-woven absorber (i.e. fiber carrier) that adheres to the screen net comprising e.g. a mixture of polyethylene fibers and polypropylene fibers and pores/air cavities (i.e. a foam), and impregnated with a cosmetic composition with viscosity of 1,000-20,000 cps and comprising a UV absorbing agent, and wherein the cosmetic article is elastic and can have a percentage of elongation of up to 100% (i.e. an elasticity up to 100%), and wherein the pore size, hardness, and elasticity of the cosmetic article are results effective variables that control the amount of the cosmetic composition that can be impregnated in the absorber (i.e. fiber carrier) as well as the degree of discharge of the cosmetic composition during use (abstract; paragraphs 0006-0008, 0011-0013, 0022, 0024, 0027, 0033-0037, 0041, 0046, 0047, 0051).
Pike et al. disclose a cosmetic article comprising a non-woven web comprising e.g. a mixture of polyethylene and polypropylene fibers preferably with diameter 8-50 µm and an inter-fiber void structure (i.e. pores/air cavities), and impregnated with a cosmetic composition containing a topically applicable active agent; wherein the said void space (i.e. air cavities) “desirably” represents e.g. about 80-99% by volume of the pad (i.e. fiber carrier), and wherein the cosmetic article has a thickness of e.g. 0.36 cm (i.e. 3.6 mm), a basis weight (i.e. surface density) of 10-680 g/m2, and is flexible, compressibly resilient and when compressed completely recovers to the initial uncompressed structure (i.e. is elastic) (abstract; Col. 1, lines 9-10; Col. 2, lines 14-16, 20-21; Col. 3, lines 20-50; Col. 5, lines 30-39, 54-55; Col. 6, lines 4-5; Col. 9, lines 30-31).
Nagano et al. disclose a uniform non-woven web that is absorbent and suitable for personal care use on skin comprising e.g. a mixture of polyethylene fibers and polypropylene fibers with length most preferably 5-10 mm and an inter-fiber void structure; wherein the web has a thickness of e.g. 3.6 mm and a basis weight (i.e. surface density) of 10-1000 g/m2 (abstract; paragraphs 0005, 0007, 0010, 0018, 0023, 0054, 0075).
Nakatani discloses a cosmetic article (i.e. a swab) comprising two portions or layers that are adhered to each other via an adhesive layer that can preferably comprise a hot melt ethylene-vinyl acetate copolymer; wherein the article exhibits excellent fluid retention and fluid release performance, and can be used as a cosmetic applicator.
Choi et al. disclose a foam carrier pad impregnated with a cosmetic composition with e.g. a viscosity of 1,000-5,000 cps, wherein the Asker hardness is preferably between e.g. about 50-80, for optimal loading and ejection (i.e. application) of the cosmetic composition.
Ascertainment of the Difference Between the Scope of the Prior Art and the Claims (MPEP §2141.02)
Jeong et al. do not explicitly disclose that the cosmetic article comprises an adhesive layer comprising hot melt ethylene-vinyl acetate copolymer; that the cosmetic article has a thickness of 1-200 mm, and a surface density of between 30-5500 g/m2; and that the fiber carrier contains 55-70% air cavities by volume, and has an Asker hardness between 52 and 78. These deficiencies are cured by the teachings of Jeong et al., Pike et al., Nagano et al., Nakatani, and Choi et al.
Finding of Prima Facie Obviousness Rationale and Motivation
(MPEP §2142-2143)
It would have been prima facie obvious for one of ordinary skill in the art at the time the present application was filed to combine the respective teachings of Jeong et al., Pike et al., Nagano et al., Nakatani, and Choi et al., outlined supra, to devise Applicant’s presently claimed cosmetic article.
Jeong et al. disclose a cosmetic article comprising a screen net containing e.g. a polyolefin and having holes preferably 0.5-1.0 mm in size (i.e. for square holes an area of about 0.25-1.0 mm2); and a non-woven absorber (i.e. fiber carrier) that adheres to the screen net comprising e.g. a mixture of polyethylene fibers and polypropylene fibers and a network of pores/air cavities (i.e. foam), and impregnated with a cosmetic composition with viscosity of 1,000-20,000 cps and comprising a UV absorbing agent, and wherein the cosmetic article is elastic and can have a percentage of elongation of up to 100% (i.e. an elasticity up to 100%), and wherein the pore size, hardness, and elasticity of the cosmetic article are results effective variables that control the amount of the cosmetic composition that can be impregnated in the absorber (i.e. fiber carrier) as well as the degree of discharge of the cosmetic composition during use. Since Pike et al. disclose a cosmetic article comprising a non-woven web comprising e.g. a mixture of polyethylene fibers and polypropylene fibers preferably with diameter 8-50 µm and an inter-fiber void structure (i.e. pores/air cavities), and impregnated with a cosmetic composition containing a topically applicable active agent; wherein the said void space (i.e. air cavities) “desirably” represents e.g. about 80-99% by volume of the pad (i.e. fiber carrier), and wherein the cosmetic article has a thickness of e.g. 0.36 cm (i.e. 3.6 mm), a basis weight (i.e. surface density) of 10-680 g/m2, and is flexible, compressibly resilient and when compressed completely recovers to the initial uncompressed structure (i.e. is elastic) is able to hold a large amount of the topically applicable active agent and to evenly and selectively release the impregnated active agent; and since Nagano et al. disclose a uniform non-woven web that is absorbent and suitable for personal care use on skin comprising e.g. a mixture of polyethylene fibers and polypropylene fibers and an inter-fiber void structure; wherein the web has a thickness of e.g. 3.6 mm and a basis weight (i.e. surface density) of 10-1000 g/m2, preferably has a fiber length of 5-10 mm, and that if the fiber length is below 3 mm the strength of the non-woven fabric lowers, and if the fiber length is more than 25 mm, it is difficult to produce a uniform web; one of ordinary skill in the art would thus be motivated to outfit the Jeong et al. cosmetic article with the particulars that the fiber length is preferably 5-10 mm, the fiber diameter is 8-50 µm, the said network of pores/air cavities (i.e. void space) represents about 80-99% by volume of the pad (i.e. fiber carrier) or thereabout, i.e. optimized for the particular pad at hand, and the cosmetic article has a thickness of e.g. 0.36 cm (i.e. 3.6 mm), a basis weight (i.e. surface density) of 10-680 g/m2, with the reasonable expectation that the resulting cosmetic article will successfully hold a large amount of the UV blocking agent (i.e. the topically applicable active agent) and to evenly and selectively release the impregnated active agent when compressed during use and to then completely recover to the initial uncompressed state after use.
Applicant’s limitation that the air cavities (i.e. void space) represent e.g. 70% of the total volume of the fiber carrier is not patentably distinct from the preferred amount disclosed in Pike et al. e.g. of “about 80%”. However, Jeong et al., the cited primary reference, teaches that the pore size, hardness, and elasticity of the cosmetic article are results effective variables that control the amount of the cosmetic composition that can be impregnated in the absorber (i.e. fiber carrier) as well as the degree of discharge of the cosmetic composition during use. In particular, Jeong et al. caution that if the air cavity space (i.e. void space) is too high, the absorber may not be able to properly maintain its shape and there will be a sub-optimal control of the degree of discharge of the cosmetic composition such that it is difficult to eject the content with a desired amount. Moreover, Pike et al. disclose that the fiber crimp level, and thus the inter-fiber void structure (e.g. pore size), can be controlled to accommodate different types and viscosities of active agents and regulate active agent retaining capacity (see Col. 3, lines 63-67; Col. 4, lines 1-10; Col. 5, lines 32-38), and that there is preferably about 5-30 crimps per inch (i.e. 2.54 cm), i.e. about 0.8-5 mm void size between crimps. Therefore, one of ordinary skill in the art would thus be motivated to adjust the cosmetic article individual pore size to e.g. about 0.8-5 mm and adjust the total air cavity/void space volume to e.g. 55-70% by routine optimization to thus achieve the optimal balance of impregnating and retaining as much of the cosmetic composition in the absorber (i.e. fiber carrier) as possible while still achieving the desired degree of control over the discharge rate of the cosmetic composition during use.
Moreover, Jeong et al. teach that the hardness of the cosmetic foam carrier is also a results effective variable that can control the amount of the cosmetic composition that can be impregnated in the absorber (i.e. carrier) as well as the degree of discharge of the cosmetic composition during use. Since Jeong et al. disclose that their cosmetic composition has a viscosity of e.g. about 1,000-20,000 cps, and since Choi et al. disclose that a foam carrier pad, which is to be impregnated with a cosmetic composition with e.g. a viscosity of 1,000-5,000 cps, preferably has an Asker hardness between e.g. about 50-80, to optimally load and eject (i.e. apply) the cosmetic composition; one of ordinary skill in the art would thus be motivated to adjust the hardness of the Jeong et al. cosmetic foam carrier to have an Asker hardness value of about 50-80, with the reasonable expectation that the resulting foam carrier can successfully achieve the desired amount of the cosmetic composition that is impregnated therein, as well as the optimal degree of discharge of the cosmetic composition during use.
Still further, Jeong et al. disclose that their cosmetic article comprises a screen net and a non-woven absorber (i.e. fiber carrier), which are adhered together, and that the cosmetic article exhibits excellent fluid retention and fluid release performance, and can be used as a cosmetic applicator. Since Nakatani discloses that an adhesive layer that can preferably comprise a hot melt ethylene-vinyl acetate copolymer is a suitable and even preferred adhesive material for adhering two portions/layers of a cosmetic article (i.e. a swab) that exhibits excellent fluid retention and fluid release performance, and can be used as a cosmetic applicator; one of ordinary skill in the art would thus be motivated to employ an adhesive layer that can preferably comprise a hot melt ethylene-vinyl acetate copolymer as the adhesive material to thus adhere the screen net with the non-woven absorber (i.e. fiber carrier), with the reasonable expectation that the resulting cosmetic article will exhibit excellent fluid retention and fluid release performance, and can be successfully employed as a cosmetic applicator.
Since the cosmetic article that one of ordinary skill in the art would thus arrive at by following the teachings of the cited prior art would be the same as the presently claimed cosmetic article, the properties must be the same as well, such as the screen net forming a “pick-up surface” for the cosmetic composition as it passes through holes of the screen.
In light of the foregoing discussion, the Examiner concludes that the subject matter defined by the instant claims would have been obvious within the meaning of 35 USC 103(a).
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole was prima facie obvious to one of ordinary skill in the art at the time the invention was made, as evidenced by the references, especially in the absence of evidence to the contrary.
Response to Arguments
Applicant's arguments filed February 10, 2026 have been fully considered but they are moot in view of the new grounds of rejection.
Conclusion
No claims are allowed.
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/DAVID BROWE/Primary Examiner, Art Unit 1617