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 .
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 7 recites the limitation "the support surface" in line 4. There is insufficient antecedent basis for this limitation in the claim.
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 1-16 are rejected under 35 U.S.C. 103 as being unpatentable over Suvrana (US 11,926,449) in view of Iizuka (US 4,960,339).
Regarding claim 1, Suvrana (figs. 5-6) discloses a container (capable of holding a cosmetic product) comprising a tubular skirt 10 forming a reservoir capable of receiving the cosmetic product and further comprising a first end opening 20,and a second end opening 30 opposite the first end opening 21,
the first end opening 21 being located in a lower portion of the container and sealed by a cap 20 having a rigidity greater than that of the tubular skirt 10.
Suvrana fails to disclose the lower portion of the container comprising a molding support fitted inside a circumferential wall of the first end opening 21, and said cap 20 being 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 and onto said circumferential wall.
However, Iizuka teaches a makeup liquid container having a lower portion comprising a molding support or a cup-shaped reduced diameter potion 32 fitted inside a circumferential wall of a bottom (fig. 7 and col. 7, lines 55-59).
It would have been obvious to one of ordinary skill in the art at the time the invention was filed, to have provided the bottom of the Suvrana device, a molding support or a reduced-diameter member 32, to fully use the liquid in the container by virtue of the provision of the reduced-diameter member which reduces the volume of the bottom portion of the space inside the container, as taught by Iizuka in col. 7, lines 55-59.
Regarding claim 2, Suvrana further discloses the lower portion of the container comprises a positioning surface 21 allowing the container to be held stably on a flat support (fig. 6).
Regarding claim 3, Suvrana further discloses the tubular skirt 10 being made of a flexible material (col.3, lines 52-54).
Regarding claims 4-5, Suvrana further discloses at least one flexible pressure area corresponds to all or part of 95% of a length of the tube since the tubular skirt 10 is made of flexible material (col, 3, lines 52-54).
Regarding claim 6, Suvrana further discloses the positioning surface 21 is on a peripheral area of the cap (figs. 5-6).
Regarding claim 7, Suvrana further discloses the cap 20 comprises a central cap portion 20a covering an end of the molding support opposite the reservoir, and an annular cap sleeve 20b surrounding an external circumference of the central cap portion 20a 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 (figs. 5-6).
Regarding claim 8. Suvrana further discloses a thickness of the cap 20 being equal to or greater than 1 mm (col. 5, lines 2-3).
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, Iizuka further teaches the molding support 32 comprises a shell and an annular external skirt 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. 7).
Regarding claim 11, Suvrana further discloses the container further comprises a head 30, a first end 30a of the head is connected to the second end opening, and another end 30b of the head is formed with a dispensing orifice in communication with the reservoir (figs. 2 and 5).
Regarding claim 12, Suvrana further discloses one end of the head being connected to the second end opening (fig. 2). 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)
Regarding claims 13-15, Iizuka further 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 Suvarna, a mascara applicator assembly, as further 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.
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)
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
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