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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 8/27/26 has been entered.
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.
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.
Claims 1-12 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Lim (US 12,084,222) in view of Brys (US 3,107,838).
Regarding claim 1, Lim (fig. 3, col. 1, lines 39-45 and col. 2, lines 1-10) discloses a container for a cosmetic product, comprising:
a tubular skirt 100 forming a reservoir 101 for receiving the cosmetic product and further comprising a first end opening, and a second end opening opposite the first end opening,
the first end opening being located in a lower portion of the container and sealed by a cap 400,
wherein the lower portion of the container comprises a molding support 300 fitted inside a circumferential wall of the first end opening, and
said cap 400 is arranged at one end of the molding support and on the circumferential wall of the first end opening and over-molded onto both the molding support 300 and onto said circumferential wall, and
the cap 400 and the molding support 300 being hermetically connected to the circumferential wall of the first end opening.
Lim fails to disclose the cap 400 discussed above having a rigidity greater than that of the tubular skirt.
However, Brys teaches a cap 28 having a rigidity greater than that of a tubular skirt 22 of a container (fig. 1 and col. Lines 53-64).
It would have been obvious to one of ordinary skill in the art at the time the invention was filed, to modify the cap 400 of Lim to have a rigidity greater than that of tubular skirt 100, as taught by Brys, to provide a more rigid and structurally stable bottom closure and thereby reducing accidental tipping of the container and spillage of the product.
Regarding claim 2, Lim further discloses the lower portion of the container comprises a positioning surface (i.e., the bottom surface of the cap 400) allowing the container to be held stably on a flat support (fig. 3).
Regarding claims 3-5, Brys further teaches:
the tubular skirt being made of a flexible material with at least one flexible pressure area corresponding to all or part of 95% of a length of the tube (col. 3, lines 53-55).
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to have made the tubular skirt 100 of the modified Lim a flexible tubular wall, as further taught by Brys, to permit the container to be squeezed during dispensing, thereby facilitating removal of a greater amount of the product from the container.
Regarding claim 6, Lim further discloses the positioning surface (i.e., the bottom surface of the cap 400) being on a peripheral area of the cap (fig. 3).
Regarding claim 7, Lim further discloses the cap 400 comprising a central cap portion covering an end of the molding support 30 opposite the reservoir, and
an annular cap sleeve 410 surrounding an external circumference of the central cap portion and provided with a lower portion supportable on a support surface, at least one portion of an external circumferential surface of the cap sleeve being connected to the circumferential wall of the first end opening (fig. 3).
Regarding claim 8, Lim further discloses the thickness of the cap is equal to or greater than 1 mm (fig. 3).
Regarding claim 9, it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
Regarding claim 10, Lim further discloses the molding support 300 comprising a shell and an annular external skirt 340 arranged around an external circumference of the shell and provided with an external circumferential wall hermetically fitted over the circumferential wall of the first end opening (fig. 3).
Regarding claim 11, Lim further discloses the container further comprises a head 210, a first end of the head is connected to the second end opening, and another end of the head is formed with a dispensing orifice in communication with the reservoir (fig. 3).
Regarding claim 12, it is noted that the determination of patentability in a product-by-process claim is based on the product itself, even though the claim may be limited and defined by the process. That is, the product in such a claim is unpatentable if it is the same as or obvious from the product of the prior art, even if the prior product was made by a different process. In re Thorpe, 777 F.2d 695, 697, 227 USPQ 964, 966 (Fed. Cir. 1985). A product-by-process limitation adds no patentable distinction to the claim, and is unpatentable if the claimed product is the same as a product of the prior art.
Regarding claim 16, the determination of patentability in a product-by-process claim is based on the product itself, even though the claim may be limited and defined by the process. That is, the product in such a claim is unpatentable if it is the same as or obvious from the product of the prior art, even if the prior product was made by a different process. In re Thorpe, 777 F.2d 695, 697, 227 USPQ 964, 966 (Fed. Cir. 1985). A product-by-process limitation adds no patentable distinction to the claim, and is unpatentable if the claimed product is the same as a product of the prior art. (Same cite as above)
Claims 13-15 are rejected under 35 U.S.C. 103 as being unpatentable over Lim (US 12,084,222) in view of Brys (US 3,107,838) as applied to claim 1 above, further in view of Iizuka (US 4,960,339).
Regarding claims 13-15, the modified Lim discloses all elements of the claimed invention except for the container having:
an applicator assembly comprising a plug comprising an application member capable of closing or opening a dispensing orifice, and an applicator end piece connected to one end of the application member, capable of extending into or out of the reservoir through the dispensing orifice;
the plug comprises a base, the application member comprises: a connector fitted into the base, and a stem provided with a first end extending into and connected to the connector and another end connected to the applicator end piece, a head is removably fitted into the connector by means of a threaded connection, so that the application member closes or opens the dispensing orifice; and
wherein the applicator end piece is a mascara and/or lip product applicator end piece.
However, Iizuka teaches an applicator assembly comprising a plug comprising an application member capable of closing or opening a dispensing orifice, and an applicator end piece 8 connected to one end of the application member, capable of extending into or out of the reservoir through the dispensing orifice;
wherein the plug comprises a base 19, the application member comprises: a connector 18 fitted into the base 19, and a stem 4 provided with a first end extending into and connected to the connector and another end connected to the applicator end piece 8, a head is removably fitted into the connector by means of a threaded connection, so that the application member closes or opens the dispensing orifice;
wherein the applicator end piece is a mascara applicator end piece (fig. 7).
It would have been obvious to one of ordinary skill in the art at the time the invention was filed, to have further provided the modified device of Lim, a mascara applicator assembly, as taught by Iizuka, since such applicators were well known closures for cosmetic containers and they provide the benefit of enabling application while protecting the product and applicator.
Response to Arguments
Applicant’s arguments have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. An updated search identified additional references that disclose the added limitations.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BLAINE GIRMA NEWAY whose telephone number is (571)270-5275. The examiner can normally be reached Monday - Friday 9:00 AM- 5:00PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Anthony Stashick can be reached at 571-272-4561. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/BLAINE G NEWAY/Examiner, Art Unit 3735
/Anthony D Stashick/Supervisory Patent Examiner, Art Unit 3735
