DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . 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.
Status of the Claims
The claims filed 01/09/2024 have been considered.
Claim 1 is pending.
The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim 1 is rejected under 35 U.S.C. 102(a)(1) and 35 U.S.C. 102(a)(2) as being anticipated by Harish, US 20130030009.
Harish teaches a method for applying a lipstick composition to lips (Harish, e.g., 0128-0133 and Figs. 13-15). The lipstick composition is an emulsion (Harish, e.g., 0128). The structure is a stick, i.e., lipstick (Harish, e.g., 0128-0131). The method comprises twisting handle 1304 (rotating a base) of the dispenser to push lipstick 1300 out of the dispenser body 1306 so that enough lipstick is exposed to apply the composition to the lips (Harish, e.g., 0131).
Harish anticipates the subject matter of instant claim 1.
Claim 1 is rejected under 35 U.S.C. 102(a)(1) and 35 U.S.C. 102(a)(2) as being anticipated by Bruechert, US 6274153.
Bruechert teaches a method comprising applying a structured emulsion to skin (Bruechert, e.g., c2:21-28). The emulsion comprises a continuous aqueous phase and a dispersed fat component and can be used from a stick tube having a rotary mechanism (Bruechert, e.g., c2:4-17). The structured emulsion is dimensionally stable enough to be fitted into a rotary mechanism which can be extended by turning without breaking (Bruechert, e.g., Example 5).
Thus, Bruechert teaches a method comprising turning a rotary mechanism (rotating) of a stick device to extend (move) a structured stick emulsion composition, and applying the stick emulsion to skin (a tissue area).
Bruechert anticipates the subject matter of instant claim 1.
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 of this title, 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 1 is rejected under 35 U.S.C. 103 as being unpatentable over Chan, US 200700589088 and Zhang, US 20210299015.
Zhang teaches a water containing lipstick having a dispersed aqueous phase and a continuous lipid phase (Zhang, e.g., 0055 and Fig. 3), i.e., a structured emulsion lipstick composition which is used in a method comprising applying the emulsion composition to tissue (Zhang, e.g., 0058). Zhang teaches the emulsion offers greater lip moisture, eliminates dryness, protects the lips (Zhang, e.g., 0010), and offers formulating various water-soluble nutritional components due to the water content (Zhang, e.g., 0006). Zhang does not teach the method comprising rotating a base of a lipstick device to move the emulsion stick.
Chan teaches a lipstick device comprising a rotatable base (Chan, e.g., Fig. 1, 11) which is adapted to move lipstick formulation (Chan, e.g., Fig. 1, 18) in or out of tubular case (16), thereby extending lipstick composition form the case for applying the lipstick (Chan, e.g., 0004). This device enables storing the cosmetic lipstick in a device which is suitably configured for application of the stored lipstick by simple action of the user even when applied with pressure and offers the benefit without the need for a lubricant in the mechanism (Chan, e.g., 0004 and 0013). Chan does not expressly teach the lipstick has an emulsion structure.
It would have been obvious before the effective filing date of the presently claimed invention to combine the teachings of Chan and Zhang to arrive at a method as claimed with a reasonable expectation of success.
Starting from Chan, the skilled artisan would have been motivated to modify Chan’s device and method by selecting Zhang’s emulsion lipstick to improve the method in the same way, e.g., greater lip moisture, eliminates dryness, lip protection and flexibility to formulate water soluble nutritional components, reported by Zhang with a reasonable expectation of success.
Starting from Zhang, the skilled artisan would have been motivated to modify Zhang’s method using Chan’s device whereby the lipstick emulsion is applied by rotating the base of the device to move the lipstick out of the storage case for applying the lipstick in the same way reported by Chan with a reasonable expectation of success. The skilled artisan would have been motivated to use Chan’s device since the device offers: storage of the composition when not in use, ease of rotation, improved safety since the device does not require a lubricant which may contaminate the lipstick composition, and resistance to lipstick retraction when in use.
The skilled artisan would have had a reasonable expectation of success because both references teach methods for applying lipstick compositions.
Accordingly, the subject matter of claim 1 would have been prima facie obvious before the effective filing date of the presently claimed invention, absent evidence to the contrary.
Conclusion
No claim is allowed.
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/WILLIAM CRAIGO/Examiner, Art Unit 1615