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, 8-12 and 16-17 are rejected under 35 U.S.C. 103 as being unpatentable over Dreux (US 2,101,809) in view of Schnabel (US 4,241,743).
Regarding claims 1 and 10-11, Dreux (figs. 1-3) discloses a container (for a cosmetic product) comprising:
a tubular skirt 1 forming a reservoir capable of receiving a cosmetic product,
a head located at a first end of the skirt 1 and comprising an opening for dispensing the cosmetic product, the skirt 1 further comprising a second end opposite the first end and sealed by a complementary part 2 having a rigidity greater than that of the skirt, the complementary part 2 comprises an external sleeve 4 and a housing for storing the cosmetic product, the sleeve 4 comprising in a lower portion an attachment area 5 for attaching the skirt 1 and in a upper portion comprising at least one guiding area (area above teeth 5) for guiding the skirt (page 1, lines 40-44); and
a reclosable cap 3.
Dreux fails to disclose the opening discussed above being a dispensing orifice;
The reclosable cap 3 closing off the dispensing orifice, the cap being an applicator cap comprising a base and an applicator end piece, the base being adapted to be attached to the head and to close off the dispensing orifice and the applicator end piece 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; and
the applicator end piece is housed in the housing when the base is attached to the head and closes off the dispensing orifice.
However, Schnabel teaches a container (for cosmetics in powder form) having a dispensing orifice controlling the amount of powder deposited on a dispensing brush or applicable head attached to the lid (fig.1 and col. 6, lines 43-54).
It would have been obvious to one of ordinary skill in the art at the time the invention was filed, to have provided the container of Dreux a dispensing orifice, and the lid a dispensing brush, for controlling the amount dispensed for application as taught by Schnabel in col. 6, lines 43-54.
Regarding claim 2, Dreux further discloses the complementary part 2 comprises a transverse wall so as to form a rigid tank inside the reservoir (fig. 2).
Regarding claim 3, Dreux further discloses the sleeve 4 having a flared profile from the upper portion towards the lower portion (fig. 2).
Regarding claim 4, Dreux further discloses the upper portion of the sleeve 4 being at a distance from the skirt 1 (figs. 1-3).
Regarding claim 5, Dreux further discloses the at least one guiding area (area above teeth 5) for guiding the skirt 1 is detached from the skirt 1 (figs. 2-3).
Regarding claim 8, Dreux further discloses the skirt 1 being a flexible skirt (page 1, lines 36-40).
Regarding claim 9, Dreux further discloses the skirt 1 being attached to an external surface of the attachment area 5 of the sleeve 4 (fig. 2).
Regarding claim 12, Dreux further discloses the skirt 1 being made of a multilayer material (page 1, lines 36-40).
Regarding claim 16, a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim.
Alternatively, Schnabel further teaches the container holding liquid or powder (Col. 1, lines 62-68).
It would have been obvious to one of ordinary skill in the art at the time the invention was filed, to have contained liquid in the container of the modified Dreux, to increase the versatility of the container so it can be used with multiple cosmetic formulations.
Regarding claim 17, Dreux further discloses the sleeve 4 having a height of more than 1/8 of the height of the tubular skirt 1(fig. 1).
Claims 6-7 are rejected under 35 U.S.C. 103 as being unpatentable over Dreux (US 2,101,809) in view of Schnabel (US 4,241,743) as applied to claim 1 above further in view of Yaita (US 7,434,702).
Regarding claims 6-7, the modified Dreux discloses all elements of the claimed invention as applied to claim 1 above (see embodiment of fig. 2) except for a protective ring assembled on the complementary part at a level of the lower portion of the sleeve.
However, Yaita teaches a protective ring 614 being assembled on a complementary part 602 at a level of a lower portion of a sleeve 603 (fig. 13).
It would have been obvious to one of ordinary skill in the art at the time the invention was filed, to have provided the modified device of Dreux, a protective ring, to shield the connecting surfaces as taught by Yaita in col. 5, lines 58-60.
Claims 13-14 are rejected under 35 U.S.C. 103 as being unpatentable over Dreux (US 2,101,809) in view of Schnabel (US 4,241,743) as applied to claim 1 above further in view of Kerman (US 9,681,730).
Regarding claim 13, the modified Dreux discloses all elements of the claimed invention except for 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 Dreux, of the claimed 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, Dreux further discloses a flat bottom formed by the complementary part 2 (fig. 2).
Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over Dreux (US 2,101,809) in view of Schnabel (US 4,241,743) as applied to claim 1 above further in view of Pieper (US 6,276,856).
Regarding claim 15, the modified Dreux discloses all elements of the claimed invention as applied to claim 1 above, except for the complementary part being attached by welding to the skirt at a level of the attachment area.
However, Pieper teaches a complementary part or plug 18 being secured to a second end 60 of a container 16 by snap fit, sonic welding or spin welding (col. 5, lines 49-54).
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to have secured the complementary part of the modified Dreux, by welding, as taught by Pieper, to provide a permanent attachment.
Response to Arguments
Applicant's arguments have been fully considered but they are not persuasive.
Applicant argues that Schnabel’s container is not compatible with dispensing of a powder. Contrary to applicant’s argument, Schnabel’s container is for cosmetic products in liquid, semi-liquid, paste or powder form (col. 1, lines 62-68).
Further, applicant argues that the Dreux container will undoubtedly not be leak-tight for a fluid product. However, containers formed of paper or paper-based materials are well known in the art to hold liquids when coated, laminated, waxed, or otherwise treated, as evidenced by commonplace liquid containers such as cartons, cups and boxes.
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 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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/BLAINE G NEWAY/Examiner, Art Unit 3735
/Anthony D Stashick/Supervisory Patent Examiner, Art Unit 3735