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 filed 02/24/2026 have been fully considered but they are not persuasive.
Applicant argues that Giron doses not teach a tool between lid and dispenser to be removed. However, in Para. 114, 332, cosmetic applicator configured to receive a tool therein, and it’s implied if the applicator is kept in the recess, then the lid would cover it, thus positioning the tool between dispenser and lid.
In response to applicant's argument that Zhang isn’t intended to be removed and used, a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. However, Zhang clearly teaches the removable nature of the tool placed between the lid and dispenser as recited in para. 15. Further delineation is needed to adequately define the claimed invention from the prior art of record.
In response to applicant's argument against the combination of Giron in view of Zhang, the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981).
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, keeping the outlets from drying out with fluid would lead to improper dosing and further malfunction, thus incorporating the sealing nature of lid with the tool against the dispenser ensures that when the lid is removed, the dispenser is in ready condition for use.
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.
Claim(s) 1-3, 10, and 12-14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Giron et al. (US 2018/0042361 A1), and further in view of Zhang (US 2012/0074178 A1).
Re: Claim 1, Giron discloses the claimed invention including a cosmetic system for dispensing customized cosmetic compositions, comprising:
a dispenser (11) configured to dispense customized amounts of at least two cosmetic components from different cartridges (30) through apertures (115a) in a plate (115b), wherein a recess (115) is formed in the plate and receives the at least two cosmetic components from the apertures (Fig. 6, Para. 331, two cosmetics dispensed into recess);
a lid (118) detachably mountable to the plate (Para. 333, lid mounting to plate); and
a flexible tool stored between the dispenser and the lid, the tool being removable to collect, mix and apply the at least two cosmetic components (Para. 114, 332, cosmetic applicator configured to receive a tool within the recess), the tool having a convex surface sized and configured to be received within the recess, the tool being, the tool being configured to be disposed between the lid and the plate when the lid is mounted to the plate (Para. 114, 332, cosmetic applicator configured to receive a tool therein) and the tool being configured to be slidably supported by the plate when the lid is removed from the plate as the tool being unsecured to the plate and to the lid when the lid is removed from the plate, (Para. 332, applicator is a separate tool from the device), except for the particulars of the interaction of the tool with the plate and lid. However, Zhang teaches a lid (40) compressing a tool (10) against a plate to sealingly engage an aperture (22), the tool being unsecured to the plate and to the lid when the lid is removed from the plate (Para. 14, lid compressing the tool to sealing engage aperture).
It would have been obvious to one having ordinary skill in the art at the time of effective filing date to include a removable tool as taught by Zhang, since Zhang states in Para. 14 that such modification effectively seals the aperture to prevent leaks and inadvertent dispensing of materials.
Re: Claim 2, Giron discloses the claimed invention including the plate is detachably coupled to the dispenser (Fig. 17, Para. 114, plate decoupled from the dispenser).
Re: Claim 3, Giron discloses the claimed invention including cartridge includes a nozzle (30a, 37) from which the corresponding cosmetic component is discharged, each nozzle being in sealing engagement with one of the apertures (Fig. 5, 16A, Para. 292, nozzles tightly engaged with the aperture).
Re: Claim 10, Giron disclose a device capable performing the claimed method of cosmetic composition from a dispenser having at least two cartridges, each cartridge containing a cosmetic component (Para. 342, dispenser for cartridges and allowing the user to customize the amounts) and being configured to dispense the corresponding cosmetic component through an aperture in a plate (115b) into a recess (115) formed in the plate (Fig. 16a, Para. 331, dispenses into recess), the plate forming part of the dispenser, the method comprising the steps of:
removing a tool stored between the plate (Para. 114, 332, cosmetic applicator configured to receive a tool within the recess) and a lid (118) detachably coupled to the dispenser and a tool being unsecured to the plate and to the lid when the lid is removed from the plate (Para. 332, removing lid and separate tool placed in recess), except for the engagement of the lid and plate with the tool. However, Zhang discloses a lid compresses a tool against the plate to maintain sealing engagement with the apertures in the plate (Fig. 3, Para. 14, lid compressing the tool to sealing engage aperture) and unsealing the apertures in the plate by removing the tool after removing the lid (Fig. 2);
It would have been obvious to one having ordinary skill in the art at the time of effective filing date to include a removable tool as taught by Zhang, since Zhang states in Para. 14 that such modification effectively seals the aperture to prevent leaks and inadvertent dispensing of materials.
Giron further teaching dispensing an amount of one or more of the cosmetic components into the recess (Para. 331, dispensing an amount of material);
mixing the one or more cosmetic components in the recess with the tool to form the cosmetic composition (Para. 332, mixing with the recess); and
applying the cosmetic composition using the tool (Para. 332, applying with tool).
Re: Claim 12, the device of Giron as modified by Zhang in the rejection of claim 10 above is capable of performing the claimed method of cleaning the tool; cleaning the plate; placing the tool in the recess of the plate; and coupling the lid to the dispenser (Zhang: Para. 15, plate and tool may be removed from each other for cleaning).
Re: Claim 13, the device of Giron as modified by Zhang in the rejection of claim 10 above is capable of performing the claimed method of coupling the lid to the dispenser compresses the tool to seal the apertures (Zhang: Col. 19, lines 13-16, tightly grips tool against the apertures for sealing).
Re: Claim 14, the device of Giron discloses a device capable of performing the claimed method including a plurality of apertures to be cover by a flexible tool (Para. 332) and as modified by Zhang teaching a tool including a protrusions (11) extending from one side, wherein one of the protrusion extends into and is compressed by each of the apertures (22) (Zhang: Depicted in Fig. 3). It would have been obvious to one having ordinary skill in the art at the time of the effective filing date to include a tool with protrusions as taught by Zhang, since Zhang states in para. 14 that such a modification provides for a sealing engagement between the protrusion and aperture, and as a result, liquid contained in the cartridges is prevented from flowing out of the aperture
Claim(s) 4-9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Giron et al. (US 2018/0042361 A1) and Zhang (US 2012/0074178 A1) as applied to claim 2 above, and further in view of Gueret (US 2005/0042018 A1).
Re: Claim 4, Giron discloses the claimed invention including the tool may take many forms (Para. 332, any suitable tool) except for the claimed particulars. However, Gueret teaches a tool has a disk-shaped profile with a central portion surrounded by an annular tapered portion (Para. 62, disc shape and annularly tapered).
It would have been obvious to one having ordinary skill in the art at the time of the effective filing date to include the tool as taught by Gueret, since Gueret states in paragraph 62 that such a modification provides a tool of increased flexibility, and further it has been held that the configuration of the claimed feature was a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed feature was significant. In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966).
Re: Claim 5, Giron as modified by Gueret in the rejection of claim 4 above discloses the claimed invention including the tool includes a first portion made from a first material and a second portion made from a second material, wherein the first material has a difference hardness that the second material (Gueret: Para. 62, different portions of different material hardness).
Re: Claim 6, Giron discloses the claimed invention except for tool protrusions on a side to be received in the apertures. However, Zhang teaches tool (10) includes at least one protrusion (11) extending from one side, each protrusion being sized and positioned to be received by one of the apertures (22) of the plate when the tool is disposed between the lid and the plate, and the lid is mounted to the plate (Fig. 3, Para. 14, projection received in aperture between lid and plate)).
It would have been obvious to one having ordinary skill in the art at the time of the effective filing date to include a tool with protrusions as taught by Zhang, since Zhang states in para. 14 that such a modification provides for a sealing engagement between the protrusion and aperture, and as a result, liquid contained in the cartridges is prevented from flowing out of the aperture.
Re: Claim 7, Giron as modified by Zhang in the rejection of claim 6 above discloses the claimed invention including each protrusion is compressed by and sealingly engages the corresponding aperture of the plate (Zhang: Depicted in Fig. 3).
Re: Claim 8, Giron as modified by Zhang in the rejection of claim 6 above discloses the claimed invention including the tool includes a number of protrusions (11) extending from one side, each protrusion being sized and positioned to be received by one of the apertures (22) of the plate when the tool is disposed between the lid and the plate, and the lid is mounted to the plate (Zhang: Fig. 3, Para. 14, projection received in aperture between lid and plate).
Re: Claim 9, Giron as modified by Zhang in the rejection of claim 6 above discloses the claimed invention including each protrusion is compressed by and sealingly engages the corresponding aperture of the plate (Zhang: Depicted in Fig. 3, Para. 14, protrusion engage with protrusion).
Conclusion
THIS ACTION IS MADE FINAL. 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHARLES P. CHEYNEY whose telephone number is (571)272-9971. The examiner can normally be reached Monday - Friday, 8:00 am - 4:30 pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Paul Durand can be reached at 571-272-4459. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/CHARLES P. CHEYNEY/Primary Examiner, Art Unit 3754