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 § 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 1-5, 9-11 and 15-17 are rejected under 35 U.S.C. 103 as being unpatentable over Iizuka (US 4,960,339) in view of Tanaka (US 6,712,232) further in view of Charlene (US 2011/0309083).
Regarding claim 1, Iizuka (figs. 17-18) discloses a container for a cosmetic product, comprising:
a tubular skirt 10 forming a reservoir for receiving the cosmetic product,
a head 7 located at a first end of the skirt and comprising a dispensing orifice for dispensing the cosmetic product,
the skirt 10 further comprising a second end opposite the first end and sealed by a complementary part 32,
the complementary part 32 comprises an external sleeve and a housing for storing the cosmetic product, the sleeve comprising in a lower portion an attachment area for attaching the skirt 10 and in an upper portion comprising at least one guiding area (top area of external sleeve) capable of guiding the skirt, wherein the container comprises a bottom.
Iizuka fails to disclose:
the complementary part 32 disclosed above having a rigidity greater than that of the skirt,
the bottom being a protective ring assembled on the complementary part at the level of the lower portion of the sleeve, the protective ring comprising an annular lateral wall extending axially to an upper extremity which rises beyond a transverse wall of the complementary part.
However, Tanaka teaches a container having a rigid bottom (col. 2, lines 13-18).
It would have been obvious to one of ordinary skill in the art at the time the invention was filed, to have made the complementary part 32 of Iizuka, rigid to provide resistance to accidental formation of holes therein and the resultant leakage of the contents, as taught by Tanaka in col. 2, lines 13-18.
Further, Charlene teaches a container with a bottom 20 or a protective ring comprising an annular lateral wall extending axially to an upper extremity (fig. 4B).
It would have been obvious to one of ordinary skill in the art at the time the invention was filed, to have made the bottom of the modified Iizuka, a protective ring, as taught by Charlene, to improve molding flexibility. Also, it has been held that constructing a formerly integral structure in various elements involves only routine skill in the art. Nerwin v. Erlichman, 168 USPO 177, 179.
It is noted that the protective ring 20 of the modified Iizuka is assembled on the complementary part at the level of the lower portion of the sleeve, and the upper extremity rises beyond a transverse wall of the complementary part 32.
Regarding claim 2, Iizuka further discloses the transverse wall forms a rigid tank inside the reservoir (fig. 18).
Regarding claim 3, Iizuka further discloses the sleeve of the complementary part 25 having a flared profile from the upper portion towards the lower portion (fig. 18).
Regarding claim 4, Iizuka further discloses the upper portion of the sleeve being at a distance from the skirt 10 (fig. 18).
Regarding claim 5, Iizuka further discloses the at least one guiding area for guiding the skirt is detached from the skirt 10 (fig. 18).
Regarding claim 9, the modified Iizuka discloses the skirt 10 being attached to an external surface of the attachment area of the sleeve (fig. 18). Also, it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
Regarding claim 10, Iizuka further discloses a reclosable cap 3 closing off the dispensing orifice, the cap 3 being an applicator cap comprising a base and an applicator end piece 4, the base being adapted to be attached to the head and to close off the dispensing orifice and the applicator end piece 4 being attached to the base so as to be housed inside the tube when the base is attached to the head and closes off the dispensing orifice (fig. 18).
Regarding claim 11, Iizuka further discloses the applicator end piece 4 being housed in the housing when the base is attached to the head and closes off the dispensing orifice (fig. 17).
Regarding claim 15, the modified Iizuka fails to discloses the complementary part being attached by welding to the skirt at a level of the attachment area.
However, it has been held that when a patent claims a structure already known in the prior art that is altered by the mere substitution of one element for another known in the field, the combination must do more than yield a predictable result. KSR, 127 S.Ct. at 1740, 82 USPQ2d at 1395 (citing United States v. Adams, 383 U.S. 50-51, 148 USPQ 479, 483 (1966)).
Regarding claim 16, Iizuka further discloses the cosmetic product being a liquid, fluid, or viscous product (col. 1, lines 8-11).
Regarding claim 17, Iizuka further discloses the sleeve 32 having a height of more than 1/8 of the height of the tubular skirt (fig. 18). Also, it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
Claims 8 and 12-14 are rejected under 35 U.S.C. 103 as being unpatentable over Iizuka (US 4,960,339) in view of Tanaka (US 6,712,232) and Charlene (US 2011/0309083) as applied to claim 1 above, further in view of Kerman (US 9,681,730).
Regarding claims 8 and 12-13, the modified Iizuka discloses all elements of the claimed invention as applied to claim 1 above, but fails to disclose:
the skirt 10 being a flexible skirt made of a multilayer material;
wherein the multilayer material comprises at least one polyethylene-based internal layer, an ethylene vinyl alcohol (EVOH) barrier layer and an external layer.
However, Kerman teaches a flexible container for cosmetics being made of the claimed layers 43, 41 and 44 (fig. 3).
It would have been obvious to one of ordinary skill in the art at the time the invention was filed, to have made the container of the modified Iizuka, of the claimed material and layers, to allow a parentage loss of weight of the cosmetic product in four weeks of less than 1% as taught by Kerman in col. 3, lines 64-67.
Regarding claim 14, the modified Iizuka discloses all elements of the claimed invention except for a flat bottom formed by the complementary part.
However, Iizuka in another embodiment teaches a complementary part 32 having a flat bottom (fig. 7).
It would have been obvious to one of ordinary skill in the art at the time the invention was filed, to have made the bottom of the complementary part 32 of the modified Iizuka, flat, as further disclosed in Iizuka, to improve product accessibility.
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.
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
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