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
This action is in response to Applicant’s amendment filed June 9, 2026 in reply to the Non-final Office Action mailed March 6, 2026. Claim 1 has been amended; and claims 2-6 and 10 have been canceled. Claims 13-16 have been withdrawn. Claims 1, 7-9, 11, and 12 are under examination.
Withdrawal of Prior Claim Rejections - 35 USC § 112(b)
Claim 10 has been canceled. Therefore, the 35 USC 112(b) rejection presented in the Non-final Office Action mailed March 6, 2026 is hereby withdrawn.
Withdrawal of Prior Claim Rejections - 35 USC § 112(d)
Claim 10 has been canceled. Therefore, the 35 USC 112(d) rejection presented in the Non-final Office Action mailed March 6, 2026 is hereby withdrawn.
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), Nakatani (U.S. Patent Application Pub. No. 2011/0282243), nor Choi et al. (U.S. Patent Application Pub. No. 2015/0104235) explicitly disclose that the fiber carrier is a non-woven sheet, as now stipulated in newly amended claim 1. Therefore, the 35 USC 103 rejection put forth in the Non-final Office Action mailed March 6, 2026 is hereby withdrawn.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.
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, 7-9, 11, and 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), Choi et al. (U.S. Patent Application Pub. No. 2015/0104235), and Kono et al. (U.S. Patent Application Pub. No. 2002/0150609).
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 sheet that adheres to the screen net comprising air cavities, representing 55-70% of the total volume of the fiber carrier; and polyethylene fibers, polypropylene fibers, or a mixture thereof, having a diameter of 50-300 µm and representing 15-85 wt% of the nonwoven sheet; wherein the fiber carrier is 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.
Kono et al. disclose a cosmetic article comprising a non-woven sheet comprising e.g. a mixture of polyethylene and polypropylene fibers which preferably comprise at least 50 wt% of the nonwoven sheet, and impregnated with a cosmetic composition containing a topically applicable active agent or cleaning agent; wherein the nonwoven sheet is highly suitable for impregnating a large amount of topically applicable active agents or cleansing agents and releasing the impregnated active or cleansing agents on demand with low levels of hand pressure (see paragraphs 0007, and 0016-0020).
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 comprises 15-80 wt% of polyethylene and/or polypropylene fibers, and 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, Choi et al., and Kono 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, Choi et al., and Kono 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; 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; and since Kono et al. disclose that a non-woven sheet comprising e.g. a mixture of polyethylene and polypropylene fibers which preferably comprise at least 50 wt% of the nonwoven sheet, and impregnated with a cosmetic composition containing a topically applicable active agent or cleaning agent, is highly suitable for impregnating a large amount of topically applicable active agents or cleansing agents and releasing the impregnated active or cleansing agents on demand with low levels of hand pressure; 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 polyethylene and/or polypropylene fibers comprise at least 50 wt% of the nonwoven sheet, the said network of pores/air cavities (i.e. void space) represents about 80-99% by volume of the fiber carrier or thereabout, i.e. optimized for the particular carrier 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 June 9, 2026 have been fully considered but they are moot in view of the new grounds of rejection.
Conclusion
No claims are allowed.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/DAVID BROWE/Primary Examiner, Art Unit 1617
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