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 .
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim 18 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Crane et al. (US 20170258202, hereinafter Crane).
Regarding Claim 18, Crane discloses an applicator tip (figure 3-4d) consisting of: a first application zone is concave on the front side of the tip (figure 4a-4d; see illustrated figure 4a); and a second application zone is convex on the back side of the tip (see illustrated figure 4a; figure 4a-4d); and a cylinder section proximal to the first application zone (303; figure 4a is depicted as a cylinder).
Claims 1, 8, and 12 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Bianco et al. (US 20200329845, hereinafter Bianco).
Regarding Claim 1, Bianco discloses an applicator for cosmetics (figure 4; paragraph [0097]), comprising: a generally cylindrical body (figures 4) having a proximal end (41; figure 4) and a distal end (figure 4); a first concave application zone (46; figure 4) on a side of the cylindrical body between the proximal end and the distal end (43; figure 4); a second convex application zone (48, 47; figure 4) on an opposite side of the first application zone (figure 4), wherein the second application zone extends between the proximal end and the distal end (figure 4), and transitions into a tip (figure 4) at the distal end; and the tip of the applicator is formed between the first application zone and the second application zone (figure 4), wherein the tip extending along the outer diameter of the cylindrical body on the side of the first application zone (figure 4), the tip extending along a length of the cylindrical body being distal from the first application zone (figure 4), wherein the first application zone has a radius of curvature greater towards the proximal end as compared to the radius of curvature towards the distal end (figure 4; the radius of curvature at the center of the curve (near “46” in figure 4) is smaller than the radius of curvature at the proximal most end; this center radius of curvature is interpreted as being “towards” the distal end; wherein “towards the distal end” only requires it to me be more distal than the radius of curvature “towards the proximal end”).
Regarding Claim 8, Bianco discloses the applicator as claimed in claim 1. Bianco discloses the first application zone has a convex curve across any two points diametrically opposed on the cylindrical body (figure 4).
Regarding Claim 12, Bianco discloses the applicator as claimed in claim 1. Bianco discloses a connector (107; figure 4) at the proximal end (figure 4).
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.
Claims 1-2, 11, and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Crane et al. (US 20170258202, hereinafter Crane) in view of Bianco et al. (US 20200329845, hereinafter Bianco).
Regarding Claim 1, Crane discloses an applicator for cosmetics (figures 3-4d; paragraph [0060]), comprising: a generally cylindrical body (figures 3-4d) having a proximal end (see illustrated figure 4a) and a distal end (see illustrated figure 4a); a first concave application zone (see illustrated figure 4a) on a side of the cylindrical body between the proximal end and the distal end (figure 4a); a second convex application zone (see illustrated figure 4a) on an opposite side of the first application zone (figure 4a), wherein the second application zone extends between the proximal end and the distal end (figure 4a), and transitions into a tip (see illustrated figure 4a) at the distal end; and the tip of the applicator is formed between the first application zone and the second application zone (figure 4a), wherein the tip extending along the outer diameter of the cylindrical body on the side of the first application zone (figures 3-4d), the tip extending along a length of the cylindrical body being distal from the first application zone (figures 3-4d).
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Crane does not disclose wherein the first application zone has a radius of curvature greater toward the proximal end as compared to the radius of curvature toward the distal end.
Bianco discloses an applicator for cosmetics (figure 4; paragraph [0097]), comprising: a generally cylindrical body (figures 4) having a proximal end (41; figure 4) and a distal end (figure 4); a first concave application zone (46; figure 4) on a side of the cylindrical body between the proximal end and the distal end (43; figure 4); a second convex application zone (48, 47; figure 4) on an opposite side of the first application zone (figure 4), wherein the second application zone extends between the proximal end and the distal end (figure 4), and transitions into a tip (figure 4) at the distal end; and the tip of the applicator is formed between the first application zone and the second application zone (figure 4), wherein the tip extending along the outer diameter of the cylindrical body on the side of the first application zone (figure 4), the tip extending along a length of the cylindrical body being distal from the first application zone (figure 4), wherein the first application zone has a radius of curvature greater towards the proximal end as compared to the radius of curvature towards the distal end (figure 4; the radius of curvature at the center of the curve (near “46” in figure 4) is smaller than the radius of curvature at the proximal most end; this center radius of curvature is interpreted as being “towards” the distal end; wherein “towards the distal end” only requires it to me be more distal than the radius of curvature “towards the proximal end”).
It would have been obvious to one of ordinary skill before the effective filing date to have modified the curvature of Crane to so that the first application zone has a radius of curvature greater toward the proximal end as compared to the radius of curvature toward the distal end as taught by Bianco as it is well known and obvious to one in the art to change the shape of an applicator to more closely resemble the curvature of the facial structure in which the applicator is used.
Regarding Claim 2, Crane as modified by Bianco discloses the applicator as claimed in claim 1. Crane discloses a flocking on the second application zone (figures 3-4d; paragraph [0061 and [0063]).
Regarding Claim 11, Crane as modified by Bianco discloses the applicator as claimed in claim 1. Crane discloses the applicator extends fully across a diameter of the cylindrical body from side to side in both a front side and a back side of the applicator, except at the distal end (figures 3-4d).
Regarding Claim 13, Crane as modified by Bianco discloses the applicator as claimed in claim 1. Crane discloses a higher durometer at the first zone (paragraph [0062] discloses the first zone (or 301) may be composed of a hard polymer like material) as compared to a durometer of the second zone (paragraph [0063] discloses the flocked component (305/second application zone) is preferably made from material above (meaning paragraph [0062]) and can be made from the soft polymer, therefore softer than the first zone).
Claims 3-6 are rejected under 35 U.S.C. 103 as being unpatentable over Crane et al. (US 20170258202, hereinafter Crane) and Bianco et al. (US 20200329845, hereinafter Bianco) in view of Chaillet-Piquand et al. (US 20190059548, hereinafter Chaillet).
Regarding Claim 3, Crane as modified by Bianco discloses the applicator as claimed in claim 1. Crane does not disclose a coating on one or both of the first application zone and the second application zone.
Chaillet discloses an applicator for cosmetics (figures 1-3) comprising an application zone (28; figures 1-3), and a coating the application zone (paragraphs [0073] and [0079]).
It would have been obvious to one of ordinary skill in the art before the effective filing date to have modified the application zone of Crane to have the coating as taught by Chaillet so the applicator does not absorb too much or too little of the product.
Regarding Claim 4, Crane as modified by Bianco and Chaillet discloses the applicator as claimed in claim 3. Crane does not disclose the coating is a hydrophilic coating.
Chaillet discloses the coating is a hydrophilic coating (paragraph [0079]).
It would have been obvious to one of ordinary skill in the art before the effective filing date to have modified the application zone of Crane to have the hydrophilic coating as taught by Chaillet in order to have a desired wettability of the applicator.
Regarding Claim 5, Crane as modified by Bianco and Chaillet discloses the applicator as claimed in claim 3. Crane does not disclose the coating is a hydrophobic coating.
Chaillet discloses the coating is a hydrophobic coating (paragraph [0080]).
It would have been obvious to one of ordinary skill in the art before the effective filing date to have modified the application zone of Crane to have the hydrophobic coating as taught by Chaillet in order to have a desired wettability of the applicator.
Regarding Claim 6, Crane as modified by Bianco discloses the applicator as claimed in claim 1. Crane does disclose a flocking on the second application zone (figures 3-4d; paragraph [0061 and [0063]), however Crane does not disclose a flocking and a coating one or both of the first application zone and the second application zone.
Chaillet discloses an applicator for cosmetics (figures 1-3) comprising an application zone (28; figures 1-3), and a coating the application zone (paragraphs [0073] and [0079]).
It would have been obvious to one of ordinary skill in the art before the effective filing date to have modified the application zone of Crane to have the coating as taught by Chaillet so the applicator does not absorb too much or too little of the product.
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Crane et al. (US 20170258202, hereinafter Crane).
Regarding Claim 9, Crane discloses the applicator as claimed in claim 1. Crane does not disclose the second application zone is straight across the majority of any two points diametrically opposed on the cylindrical body.
Crane, in another embodiment, discloses an applicator for cosmetics (figures 1-2e; paragraph [0050]), comprising: a generally cylindrical body (figures 1-2e); a first concave application zone (101; figure 2a); a second convex application zone (105; figure 2a); the second application zone is straight across the majority of any two points diametrically opposed on the cylindrical body (figure 2e).
It would have been obvious to one of ordinary skill in the art before the effective filing date to have modified the second application zone of Crane with the second application zone is straight across the majority of any two points diametrically opposed on the cylindrical body in order to have more surface area to apply the product to the user.
Claims 14-17 are rejected under 35 U.S.C. 103 as being unpatentable over Bianco et al. (US 20200329845, hereinafter Bianco).
Regarding Claim 14, Bianco discloses the applicator as claimed in claim 1. Bianco discloses a comparatively large surface area (paragraph [0015]).
Bianco does not disclose a surface area of the first application zone is about 43.51 mm2 to about 53.17 mm2 and a surface area of the second application zone is about 30 mm2 to about 36.67 mm2.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to cause the device of Bianco to have a surface area of the first application zone is about 43.51 mm2 to about 53.17 mm2 and a surface area of the second application zone is about 30 mm2 to about 36.67 mm2 since it has been held that “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device” Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984). In the instant case, the device of Bianco would not operate differently with the claimed values and since something is disclosed similar would function appropriately with the claimed values.
Further, Applicant places no criticality on the range claimed, indicating simply that the value is “about” be within the claimed ranges (page 2 lines 15-20).
Regarding Claim 15, Bianco discloses the applicator as claimed in claim 1. Bianco discloses a comparatively large surface area (paragraph [0015]). Bianco does not disclose a ratio of surface area of the first application zone to the second application zone is from 1.12 to 1.77.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to cause the device of Bianco to have a ratio of surface area of the first application zone to the second application zone is from 1.12 to 1.77 since it has been held that “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device” Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984). In the instant case, the device of Bianco would not operate differently with the claimed values and since something is disclosed similar would function appropriately with the claimed values.
Further, Applicant places no criticality on the range claimed, indicating simply that the value is within the claimed ranges (page 2 lines 20-21).
Regarding Claim 16, Bianco discloses the applicator as claimed in claim 1. Bianco does not disclose a length of the first application zone is from about 7.87 mm to about 9.61 mm, and a length of the second application zone is about 5.4 mm to about 6.6 mm.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to cause the device of Bianco to have a length of the first application zone is from about 7.87 mm to about 9.61 mm, and a length of the second application zone is about 5.4 mm to about 6.6 mm since it has been held that “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device” Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984). In the instant case, the device of Bianco would not operate differently with the claimed values and since something is disclosed similar would function appropriately with the claimed values.
Further, Applicant places no criticality on the range claimed, indicating simply that the value is “about” be within the claimed ranges (page 2 lines 22-25).
Regarding Claim 17, Bianco discloses the applicator as claimed in claim 1. Bianco does not a ratio of a length of the second application zone to the first application zone is from 0.56 to 0.84.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to cause the device of Bianco to have a ratio of a length of the second application zone to the first application zone is from 0.56 to 0.84 since it has been held that “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device” Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984). In the instant case, the device of Bianco would not operate differently with the claimed values and since something is disclosed similar would function appropriately with the claimed values.
Further, Applicant places no criticality on the range claimed, indicating simply that the value is “about” be within the claimed ranges (page 3 lines 1-2).
Response to Arguments
Applicant's arguments filed 11/24/25 have been fully considered but they are not persuasive.
In regards to Applicant’s arguments that Bianco does not disclose that the radius of curvature is greater at the proximal end compared to the distal end, the Examiner notes that in the Figure 4, the radius of curvature at the center of the curve (near “46” in figure 4) is smaller than the radius of curvature at the proximal most end. Therefore it is greater at a proximal end than it is at the distal end. The Examiner further notes that this center radius of curvature is interpreted as being “towards” the distal end, meaning that “towards the distal end” only requires it to me be more distal than the radius of curvature “towards the proximal end”. The Examiner suggests adding additional structural language it order to more explicitly claim the location in which the radius of curvature is greater than the other location.
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 Sydney J Pulvidente whose telephone number is (571)272-8066. The examiner can normally be reached Monday - Thursday, 7:30 a.m. - 3:30 p.m..
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Eric Rosen can be reached at (571) 270-7855. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/SYDNEY J PULVIDENTE/Examiner, Art Unit 3772
/ERIC J ROSEN/Supervisory Patent Examiner, Art Unit 3772