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 .
Election/Restrictions
Applicant's election with traverse of Group I, Species B-I in the reply filed on 5/26/2026 is acknowledged. With respect to the traversal as it relates to the Groups i.e. product and process of making the product, Examiner notes that Applicant has amended Claim 12 to include structural features of the product. In response to the traversal, the Examiner notes that the product as claimed(emphasis added) does not require the process step of “molding a thermoplastic elastomer material, using a mold having a first cavity complementary in shape to an application member of the applicator, the application member having a core extending along a longitudinal axis”. Therefore, the product can be made by another and materially different process. Establishing distinctness between a product and process of making the product can be shown if either or both of the following can be shown: (1) that the process as claimed can be used to make another and materially different product or (2) that the product as claimed can be made by another and materially different process. In the instant application, criteria (2) is fulfilled. Furthermore, as mentioned in the prior restriction requirement, a serious search burden was illustrated due to the groups having a different field of search (see Page 2-3 of restriction requirement).
With respect to the traversal as it relates to the Species Group A and B, Applicant’s traversal relates to a serious search burden not being present due to the species relating to solely different shapes of the applicator core and application element. The Examiner notes that the Applicant has not stated that these shapes are obvious variants over one another and as presented illustrate unique structural configurations of the cosmetic applicator core/ the application elements in conjunction with the structural elements claimed in the independent claim. Therefore, a serious search burden exists with the Species Groups having a different field of search (see Page 6 of election of species requirement).
The restriction/election of species requirement is still deemed proper and now made FINAL. The Examiner notes that Claims 1-6 and 14 are indicated by Applicant to read on the elected Group and Species, however, Claims 2-3 are drawn to a non-elected Species Group B-II or B-III i.e. Figures 5 or 6. Consequently, Claims 1, 4-6, and 14 are considered to read on the elected Group I, Species B-I (figure 3) with Claims 2-3, 7-13, and 15-24 now withdrawn from further examination.
The Examiner further notes that if all product/apparatus claims are subsequently found allowable, withdrawn process claims that include all the limitations of the allowable product/apparatus claims would be considered for rejoinder. All claims directed to a nonelected process invention must include all the limitations of an allowable product/apparatus claim for that process invention to be rejoined. Similarly, upon the allowance of any generic claim, applicant will be entitled to consideration of claims to additional species which depend from or otherwise require all the limitations of an allowable generic claim as provided by 37 CFR 1.141.
Claim Objections
Claim 1 is objected to because of the following informalities: In Line 1, the recitation of, “a cosmetic product” should recite, “[[a]] the cosmetic product” to provide formal antecedent basis.
Claim Rejections - 35 USC § 102
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.
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.
Claims 1, 4-6, and 14 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Roder (US 2008/0286030 A1).
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Regarding Claim 1, Roder discloses an applicator (300, figure 3a also reproduced above) for a cosmetic product on the skin or bristles (see abstract), comprising an application member made of a thermoplastic elastomer material (para 28 Lines 1-2), the application member comprising:
a core (see annotated figure 3a above) extending along a longitudinal axis (see figure 3a), and
application elements (knobs 310, figure 3a also reproduced above) formed at the surface of the application member (see annotated figure 3a), each of the application elements having a top with a width greater than 35 μm and smaller than 450 μm (diameter/width of knobs 310 is between 0.2mm and 0.4mm i.e. between 200 μm and 400 μm, Para 53 Lines 5-6).
Regarding Claim 4, Roder discloses that the application elements have a width comprised between 40 and 400 μm (diameter/width of knobs 310 is between 0.2mm and 0.4mm i.e. between 200 μm and 400 μm, Para 53 Lines 5-6).
Regarding Claim 5, Roder discloses that the application elements have a height comprised between 350 and 600 μm (length/height of knobs 310 is between 0.5mm and 1mm i.e. between 500 μm and 1000 μm, Para 53 Lines 6-7).
Regarding Claim 6, Roder discloses that the application elements, are spaced apart from each other by a distance comprised between one and two and a half times the width of the top of the application elements (see spacing of knobs 310, figure 3b).
Regarding Claim 14, Roder discloses a mold for manufacturing a cosmetic product applicator, according to claim 1, the mold comprising a molding surface having a plurality of cavities complementary in shape to those of the application elements of the applicator (see an injection molding mold with a laser-sintered negative of the surface profile of the applicator portion Para 27 Lines 1-4).
Internet/E-mail Communication
In order to permit communication regarding the instant application via email, Applicant is invited to file form PTO/SB/439 (Authorization for Internet Communications) or include the following statement in a filed document or remarks of a filed response (see MPEP 502.03 Il): Recognizing that Internet communications are not secure, I hereby authorize the USPTO to communicate with the undersigned and practitioners in accordance with 37 CFR 1.33 and 37 CFR 1.34 concerning any subject matter of this application by video conferencing, instant messaging, or electronic mail. I understand that a copy of these communications will be made of record in the application file. If such authorization is provided, please include an email address in the remarks of a filed response. The examiner’s e-mail address is sabbir.hasan@uspto.gov.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
US 2021/0323205 A1 discloses a cosmetic applicator (see figure 2).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Sabbir Hasan whose telephone number is (571)270-7651. The examiner can normally be reached on Monday-Friday 10:30 am-6:30pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nathaniel Wiehe can be reached at 571- 272-8648. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Sabbir Hasan/Primary Examiner, Art Unit 3745
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