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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 06/07/2023 and 07/18/2025 were filed after the mailing date of the application on 06/07/2023. The submission are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Election/Restrictions
Applicant’s election without traverse of claims 12-14 in the reply filed on 07/31/2025 is acknowledged.
Claims 1-11 and 15-20 withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 07/31/2025.
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the cosmetic composition applicator separate from the shaping tool, as claimed in claims 12-13, and the applicators of the first and second compositions separate from the shaping tool, as claimed in claim 14, must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
In addition to Replacement Sheets containing the corrected drawing figure(s), applicant is required to submit a marked-up copy of each Replacement Sheet including annotations indicating the changes made to the previous version. The marked-up copy must be clearly labeled as "Annotated Sheet" and must be presented in the amendment or remarks section that explains the change(s) to the drawings. See 37 CFR 1.121(d)(1). Failure to timely submit the corrected drawing and marked-up copy will result in the abandonment of the application.
Claim Objections
Claims 1-20 are objected to because of the following informalities:
Claims 12-14 recite “a shaping tool according to claim 1”; the limitations regarding the shaping tool should be added to each of the elected independent claims.
Claims 1-11 and 15-20 should be labeled as withdrawn.
Appropriate correction are 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) 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Segerstrom (US 5520203 A) in view of Morohoshi (JP 2005192996 A); see the translation and the 892 PTO form attached to the previous Office Action.
Regarding claim 1, Segerstrom discloses a cosmetic application kit (Figure 1 and Abstract) comprising: a cosmetic mascara composition (16; see col 4, lines 1-20); a shaping tool and a cosmetic composition applicator separate from the shaping too (since the kit comprises an assortment of applicators 46 such as brushes and pencils; col 4, line 18). However, Segerstrom fails to disclose “a shaping tool according to claim 1”.
Morohoshi discloses a shaping tool (Figure 1) for keratin fibers comprising a gripping member (5) extending along a longitudinal axis, and a shaping member (5) comprising a base body (7) and ribs (9), the base body (7) being integral with the gripping member (6), and having two lateral edges (edges on both the left and right side of the body), and extending from the gripping member (6), to a free distal edge (10) opposite the gripping member (6), the free distal edge (10) joining the two lateral edges to one another, each rib (9) protruding from the base body (7) in a respective elevation direction, the ribs (9) also extending parallel to one another and to a transverse axis (Figure 5-7) and defining grooves (8) between them, each rib (9) having a constant height along the transverse axis between the two lateral edges of the base body (7), the free distal edge (10) of the base body (7) extending parallel to the transverse axis (See Figures 5-7 and [0019]-[0022]).
Therefore, it would have been obvious to one of ordinary skills in the art, before the effective filing date of the application, to modify Segerstrom’s kit to include the shaping tool, as disclosed by Morohoshi, since Segerstrom’s kit could have an assortment of brow/eyeliner/shadow brushes (col 4 , line 24) which on of ordinary skills in the art would identify analogous to Morohoshi’s shaping tool.
Claim(s) 13-14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Segerstrom in view of Morohoshi, further in view of Dao (US 20110223219 A1).
Regarding claim 13, Segerstrom discloses a cosmetic application kit (Figure 1 and Abstract) comprising: a composition (mascara 16; see col 4, line 2); a shaping tool; and - a composition applicator separate from the shaping tool (since the kit comprises an assortment of applicators 46 such as brushes and pencils; col 4, line 18).
However, Segerstrom fails to disclose “a shaping tool according to claim 1” and “composition comprising at least 30% by weight of water with respect to the total weight of the composition, forming an aqueous phase, at least 1% by weight with respect to the total weight of the cysteine composition and/or one of the salts thereof, a lamellar phase L3 formed by a surfactant system structuring the aqueous phase, and said composition having a pH greater than 8.0”.
Morohoshi discloses a shaping tool (Figure 1) for keratin fibers comprising a gripping member (5) extending along a longitudinal axis, and a shaping member (5) comprising a base body (7) and ribs (9), the base body (7) being integral with the gripping member (6), and having two lateral edges (edges on both the left and right side of the body), and extending from the gripping member (6), to a free distal edge (10) opposite the gripping member (6), the free distal edge (10) joining the two lateral edges to one another, each rib (9) protruding from the base body (7) in a respective elevation direction, the ribs (9) also extending parallel to one another and to a transverse axis (Figure 5-7) and defining grooves (8) between them, each rib (9) having a constant height along the transverse axis between the two lateral edges of the base body (7), the free distal edge (10) of the base body (7) extending parallel to the transverse axis (See Figures 5-7 and [0019]-[0022]).
Therefore, it would have been obvious to one of ordinary skills in the art, before the effective filing date of the application, to modify Segerstrom’s kit to include the shaping tool, as disclosed by Morohoshi, since Segerstrom’s kit could have an assortment of brow/eyeliner/shadow brushes (col 4 , line 24) which on of ordinary skills in the art would identify analogous to Morohoshi’s shaping tool.
Dao discloses a cosmetic composition comprising at least 30% by weight of water with respect to the total weight of the composition ([0048]), forming an aqueous phase ([0048]), at least 1% by weight with respect to the total weight of the cysteine composition (since the composition could have suitable antioxidants such as cysteine [0137]) and/or one of the salts thereof (e.g. potassium sulfite and sodium bisulfite [0137]), a lamellar phase Lβ formed by a surfactant system structuring the aqueous phase (since the composition contains a linear silicone surfactant, which can form a lamellar phase Lβ structure [0141]), and said composition having a pH greater than 8.0 ([0040]).
Therefore, it would have been obvious to one of ordinary skills in the art, before the effective filing date of the application, to modify Segerstrom/Morohoshi’s cosmetic application kit in order to include the composition, as disclosed by Dao, since such modification would add a composition being an important vehicle into which beneficial ingredients (e.g. cysteine) may be incorporated so that skin may receive antioxidants.
Regarding claim 14, Segerstrom discloses a cosmetic application kit (Figure 1 and Abstract) comprising several compositions (e.g. mascara, three shadows, and a cream concealer; see col 2, lines 17-18); a shaping tool; an applicator of the first composition separate from the shaping tool; a second cosmetic mascara (16) composition; and - an applicator of the second cosmetic composition separate from the shaping tool and separate from the applicator of the first composition (since the kit comprises an assortment of applicators 46 such as brushes and pencils; col 4, line 18).
However, Segerstrom fails to disclose “a shaping tool according to claim 1” and “a first composition comprising at least 30% by weight of water with respect to the total weight of the composition, forming an aqueous phase, at least 1% by weight with respect to the total weight of the cysteine composition and/or one of the salts thereof, a lamellar phase Lβ formed by a surfactant system structuring the aqueous phase, and said composition having a pH greater than 8.0”.
Morohoshi discloses a shaping tool (Figure 1) for keratin fibers comprising a gripping member (5) extending along a longitudinal axis, and a shaping member (5) comprising a base body (7) and ribs (9), the base body (7) being integral with the gripping member (6), and having two lateral edges (edges on both the left and right side of the body), and extending from the gripping member (6), to a free distal edge (10) opposite the gripping member (6), the free distal edge (10) joining the two lateral edges to one another, each rib (9) protruding from the base body (7) in a respective elevation direction, the ribs (9) also extending parallel to one another and to a transverse axis (Figure 5-7) and defining grooves (8) between them, each rib (9) having a constant height along the transverse axis between the two lateral edges of the base body (7), the free distal edge (10) of the base body (7) extending parallel to the transverse axis (See Figures 5-7 and [0019]-[0022]).
Therefore, it would have been obvious to one of ordinary skills in the art, before the effective filing date of the application, to modify Segerstrom’s kit to include the shaping tool, as disclosed by Morohoshi, since Segerstrom’s kit could have an assortment of brow/eyeliner/shadow brushes (col 4 , line 24) which on of ordinary skills in the art would identify analogous to Morohoshi’s shaping tool.
Dao discloses a cosmetic composition comprising at least 30% by weight of water with respect to the total weight of the composition ([0048]), forming an aqueous phase ([0048]), at least 1% by weight with respect to the total weight of the cysteine composition (since the composition could have suitable antioxidants such as cysteine [0137]) and/or one of the salts thereof (e.g. potassium sulfite and sodium bisulfite [0137]), a lamellar phase Lβ formed by a surfactant system structuring the aqueous phase (since the composition contains a linear silicone surfactant, which can form a lamellar phase Lβ structure [0141]), and said composition having a pH greater than 8.0 ([0040]).
Therefore, it would have been obvious to one of ordinary skills in the art, before the effective filing date of the application, to modify Segerstrom/Morohoshi’s cosmetic application kit in order to include the composition, as disclosed by Dao, since such modification would add a composition being an important vehicle into which beneficial ingredients (e.g. cysteine) may be incorporated so that skin may receive antioxidants.
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