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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 04/02/2026 has been entered.
Claim Objections
Claim 1 is objected to because of the following informalities:
Line 7 should be amended as follows: “wherein the core part is formed [[as]] by a pair of twisted core materials connected at a tip of”.
Line 10 should be amended as follows: “radially protrude around [[the]] an entire periphery of the
Line 21 should be amended as follows: “wherein the brush bristles near the tip of the core part become shorter towards the tip of the core part”.
Claim 3 is objected to because of the following informalities: line 3 should be amended as follows: “shaft except for the tip side has a waveform contour that repeats the convex parts and the concave parts”.
Appropriate correction is required.
Claim Rejections - 35 USC § 103
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 (i.e., changing from AIA to pre-AIA ) 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 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.
Claims 1 and 3 are rejected under 35 U.S.C. 103 as being obvious over Yasuda ‘554 (JP2009082554A) in view of Gueret (US2008/0184512), Yasuda ‘802 (US2005/0257802) and Higgins (US2013/0104924).
Regarding claim 1, Yasuda ‘544 discloses a mascara (refer to the Abstract) applicator (100, Figures 1-2) comprising:
a holding part (103) configured to be held by a hand and fingers (“so as to be easily held by the user”, refer to Page 4 of the translation);
a shaft part (102) extending in one axial direction (referring to Figures 1-2, the one axial direction is the direction to the right, in a horizontal orientation) from the holding part (refer to Figures 1-2);
an application part (101) provided at a tip (rightmost end of the shaft part, refer to Figures 1-2) of the shaft part, wherein the application part comprises:
a core part (101a) extending from the tip of the shaft part and curved into an arc shape (best shown in Figures 1-2),
a plurality of brush bristles (101b) arranged to radially protrude around an entire periphery of the core part (refer to Figures 1-2) and each of the brush bristles protrudes substantially perpendicularly to the core part (refer to Figures 1-2),
wherein a tip (rightmost end of the core part, refer to Figures 1-2) of the core part is arranged so that the tip of the core part coincides with an extension of the shaft part (best shown in Figures 1-2, wherein the tip of the core part is aligned with and therefore coincides with an extension of the shaft part), and a three-dimensional shape defined by tips of the plurality of brush bristles protruding around the entire tip of the core part has a shape that tapers toward the tip of the core part (refer to cropped and annotated Figure 2, below, wherein the bristles that lie within the tip part decrease in length toward the right end, thereby providing a shape that tapers toward the tip of the core part) and,
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wherein the brush bristles near the tip of the core part become shorter towards the tip of the core part (refer to cropped and annotated Figure 2, below wherein the tip part is shown to have a tapering of the bristles towards a distal/right end of the core, thereby providing brush bristles near the tip becoming shorter towards the tip of the core part), and in the three-dimensional shape around the core part except for the tip, convex parts (refer to Figures 1-2, wherein a plurality of convexities are disposed along a length of the core part) of a same shape (circular/spherical shape, refer to Figures 1-2) are repeated along a longitudinal direction (left to right direction with respect to Figures 1-2) of the core part.
Yasuda ‘544 does not explicitly disclose wherein the core part is formed by a pair of twisted core materials connected at a tip of the core part, and therefore also does not disclose that the plurality of brush bristles are arranged between the pair of twisted core materials.
Yasuda ‘544 also does not disclose in a section in which the pair of twisted core materials are twisted more than one rotation, the three-dimensional shape defined by the tips of the plurality of brush bristles has a pyramidal shape that tapers toward the tip of the core part, the pyramidal shaped being disposed at a distal end of the application part;
in the three-dimensional shape around the core part except for the tip, concave parts of a same shape are repeated along a longitudinal direction of the core part,
and a height difference between lengths of the brush bristles in each convex part and each concave part is 3.9mm or less, and
wherein the plurality of brush bristles form a shape that tapers along the application part beginning from the tip of the shaft part and moving toward the tip of the core part.
Rather, Yasuda discloses that the applicator is formed by “winding bristles 101b around a core wire 101a” (refer to Page 3 of the translation) and appears to provide the plurality of bristles at the tip end to be conical (see Figures 1-2).
Gueret discloses a similar mascara applicator (3, Figures 1-53) comprising a core part formed by twisting a pair of metal strands/core materials (refer to Paragraph [0053]) multiple times (see at least Figures 3-4, 51), such that the pair of twisted core materials are connected at a tip (“the two strands result from folding a wire in half”, refer to Paragraph [0094], wherein the folded portion defines the tip end of the core and thereby provides the pair of twisted wire core materials to be connected, the tip end being the right end with respect to Figures 3-4) of the core part, and a plurality of bristles, arranged between the turns of the pair of twisted core materials (refer to Paragraph [0054]) such that the bristles are disposed all around the core (see at least Figures 2, 5-6, and 13-25) and extend substantially perpendicular to the core (refer to Figures 2,5-6, and 13-25). Gueret further discloses in a section in which the pair of core materials are twisted more than one rotation, the three-dimensional shape of the tips of the plurality of brush bristles has either a conical shape, similar to that of Yasuda’s mascara brush, or alternatively may be a pyramidal shape that tapers toward the tip of the core part (refer to Paragraph [0111]), this pyramidal shape being disposed at a distal end of the application part (right end with respect to Figures 3-4) in order to make it easier for the brush to pass through the wiper of a mascara container (refer to Paragraph [0111]), thereby demonstrating that the shape of the plurality of brush bristles at the tip of the core part can be modified as a matter of design choice to provide functionally equivalent configurations that provide a benefit of permitting easier passage through a wiper. Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Yasuda’s mascara applicator such that the core part is formed by a pair of twisted core materials connected at the tip of the core part, wherein the plurality of bristles are arranged between the pair of twisted core materials, as taught by Gueret, since such a modification would have involved simple substitution of one known bristle connecting means (Gueret’s twisted pair of wires holding a plurality of bristles) for another known bristle connecting means (winding bristles around a wire, as taught by Yasuda) in order to provide the expected result of retaining a plurality of bristles in a wire core-type mascara brush.
Additionally, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Yasuda’s mascara applicator such that in a section in which the pair of twisted core materials are twisted more than one rotation, the three-dimensional shape of the tips of the plurality of brush bristles has a pyramidal shape that tapers toward the tip of the core part, the pyramidal shape being disposed at a distal end of the application part, as taught by Gueret, since Gueret demonstrates that either shape works equally well and both shapes are functional equivalent configurations in order to aid in the insertion of the brush into a wiper of a mascara container.
While Yasuda ‘544 discloses wherein the three-dimensional shape around the core part except for the tip side has a waveform contour that repeats convex parts (refer to First Yasuda ‘544 Cropped and Annotated Figure 2, below) along the longitudinal direction of the core part, Yasuda ‘544 does not disclose that the waveform contour also includes concave parts. Rather, Yasuda ‘544’s applicator appears to comprise a pointed V-shaped depression disposed between each of the convex parts (refer to the Yasuda ‘544 Cropped and Annotated Figure 2, above).
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Yasuda ‘802 discloses a similar cosmetic applicator (Figures 1-15) comprising a core (1) and a plurality of bristles (10), wherein the bristles are arranged to have a waveform defined by plurality of convex parts separated with a pointed V-shaped depression (best shown in Figures 1-3, 6-7, and 10-11) disposed between the convex parts, similar to that of the combination of Yasuda ‘544 and Gueret, where this pointed V-shaped depression serves to store a volume of mascara (refer to Paragraph [0070]). Alternatively, Yasuda ‘802 discloses an applicator where the bristles are arranged to have a waveform defined by a plurality of convex parts separated by concave parts (refer to Figure 8), in order to adjust the amount of mascara stored between the convexities, thereby demonstrating that the shape of the waveform can effectively be changed as a matter of design choice to provide functionally equivalent configurations in order to adjust the amount of mascara stored within the depression. Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the mascara applicator of the combination of Yasuda ‘544 and Gueret such that the waveform contour includes concave parts, as taught by Yasuda ‘802, since such a modification provides the advantage of providing a means for adjusting the amount of cosmetic material that is retained on the applicator.
The combination of Yasuda ‘544, Gueret, and Yasuda ‘802 does not disclose that a height difference between lengths of the brush bristles in each convex part and each concave part is 3.9mm or less and wherein the plurality of brush bristles form a shape that tapers along the application part beginning from the tip of the shaft part and moving toward the tip of the core part. Rather, the combination is silent on the heights of the bristles and there is no apparent tapering of the application part except for at the tip part.
Higgins discloses a similar cosmetic applicator (110, Figures 1-4C) comprising a
core (111) and a plurality of bristles (120) disposed about the core (best shown in Figures 1-3), wherein the plurality of bristles are arranged to form a waveform that follows a convex and concave form (refer to annotated Figure 2A, below).
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The plurality of bristles are broken into three regions of bristles (130, 140, 150), wherein each region of bristles comprises relatively short bristles disposed at a longitudinal periphery of the region and coinciding with the concave portion of the waveform, and relatively long bristles disposed about a central portion of the regions of bristles, the relatively longer bristles coinciding with the convex portion of the bristle region. In at least one embodiment, the tallest bristle has a height of 5mm, and the shortest bristle has a height of 2mm (refer to Higgins Paragraph [0027]), where the tallest bristle coincides with the convex part and the shortest bristle coincides with the concave part, thereby providing the greatest difference in heights between the convex part and the concave part to be 5mm – 3mm = 2mm, which is within the claimed range of 3.9mm or less. Selection of the height of the bristles provides a means for enabling a waveform that is capable of reaching all the lashes of the user’s eye including the longest lashes (refer to Paragraph [0027]), the medium length lashes (refer to Paragraph [0028]) and the shortest lashes (refer to Paragraph [0029]). Higgins also discloses wherein the plurality of brush bristles form a shape that tapers along the application part beginning from the tip of the shaft part and moving toward the tip of the core part (the limitation “wherein the plurality of brush bristles form a shape that tapers along the application part beginning from the tip of the shaft part and moving toward the tip of the core part” is interpreted in light of Figure 1 of the instant application, where Figure 1 shows a decrease in maximum height of each of the convex parts in a direction from left to right of the applicator; referring to Higgins Figure 2A, the longest spike of area 130 is greater than the longest spike of area 140 and the longest spike of area 140 is greater than the longest spike of area 150, thereby providing the plurality of brush bristles to form a shape that tapers along the application part beginning from the tip of the shaft part and moving toward the tip of the core part, similar to that of the instant invention). Providing a tapering along a length of the brush is an obvious matter of design choice that provides a means for reaching into smaller areas of a user’s eyelid. Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the applicator of the combination of Yasuda ‘544, Gueret and Yasuda ‘802 such that the difference in height is within the claimed range, as taught by Higgins, since it has been held that Prior Art ranges that include claimed ranges, provide prima facie case of obviousness. See MPEP 2144.05(I); additionally, such a modification provides the advantage of ensuring that applicator adequately treats all lengths of lashes of the user’s eyelid. It would have additionally been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to further modify the mascara applicator of the combination of Yasuda ‘544, Gueret and Yasuda ‘802 such that the plurality of brush bristles form a shape that tapers along the application part beginning from the tip of the shaft part and moving toward the tip of the core part, as taught by Higgins, since such a modification would have involved a mere change in shape of a component of an invention and it has been held that a change in shape is within the level of ordinary skill in the art; additionally, such a modification provides the advantage of enabling easier reach into smaller areas of a user’s eyelid.
Regarding claim 3, the combination of Yasuda ‘544, Gueret, Yasuda ‘802 and Higgins discloses the mascara applicator according to claim 1, as applied above. Yasuda ‘544 further discloses wherein the three-dimensional shape consisting of the tips of the plurality of the brush bristles arranged on the shaft except for the tip side has a waveform contour that repeats the convex parts and the concave parts along the longitudinal direction of the core part, and a virtual curve connecting tops in a plurality of the convex parts is formed to be the same as the curved shape of the core part (refer to second Yasuda ‘544 cropped and annotated Figure 2, below).
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Response to Arguments
Claim Objections
Applicant’s amendments to the claims overcome all previous claim objections; all previous claim objections are withdrawn.
35 USC 112(b)
Applicant’s amendments to the claims overcome all previous 35 USC 112(b) rejections; all previous 35 USC 112(b) rejections are withdrawn.
35 USC 103
Applicant's arguments filed 03/13/2026 have been fully considered but they are not persuasive.
Argument #1:
The Gueret reference fails to teach or suggest a mascara brush having a core part extending from the tip of the shaft part and curved into an arc shape, wherein the tip of the core part is arranged so that the tip of the core part coincides with an extension of the shaft part, and a three-dimensional shape defined by tips of the plurality of brush bristles protruding around the entire tip of the core part has a shape that tapers toward the tip of the core part and, in a section in which the pair of twisted core materials are twisted more than one rotation, the three-dimensional shape defined by the tips of the plurality of brush bristles has a pyramidal shape that tapers toward the tip of the core part, the pyramidal shape being disposed at a distal end of the application part; and wherein the brush bristles near the tip become shorter towards the tip of the core part and, in the three-dimensional shape around the core part except for the tip, convex parts and concave parts of a same shape are repeated along a longitudinal direction of the core part, and a height difference between lengths of the brush bristles in each convex part and each concave part is 3.9 mm or less; and wherein the plurality of brush bristles form a shape that tapers along the application part beginning from the tip of the shaft part and moving toward the tip of the core part.
Response #1:
Gueret is only being relied upon for the teaching of the core formed of a pair of twisted core materials connected at the tip of the core part (refer to Gueret Paragraph [0053]) and for the tip being a pyramidal shape (refer to Gueret Paragraph [0111]). Thus, for any other limitations mentioned above, Gueret is not being relied upon for those teachings.
Argument #2:
Each of the Yasuda '544 and '802 references disclose brush bristles having consistent weighted shapes [see Figs. 1 & 2]. However, such references fail to teach or suggest a three-dimensional shape defined by tips of the plurality of brush bristles protruding around the entire tip of the core part has a shape that tapers toward the tip of the core part and, in a section in which the pair of twisted core materials are twisted more than one rotation, the three-dimensional shape defined by the tips of the plurality of brush bristles has a pyramidal shape that tapers toward the tip of the core part, the pyramidal shape being disposed at a distal end of the application part; and wherein the plurality of brush bristles form a shape that tapers along the application part beginning from the tip of the shaft part and moving toward the tip of the core part, as recited in newly amended independent claim 1 of the present application.
Response #2:
The Yahuda references are not being relied upon for the tapering shape; rather, Higgins teaches this feature. The pyramidal shape is taught by Gueret, not Yahuda.
Argument #3:
Specifically, it is submitted that the Higgins reference, taken either alone or in combination with the Yasuda '544 and Yasuda '802 references, fails to teach or suggest a three-dimensional shape defined by tips of the plurality of brush bristles protruding around the entire tip of the core part has a shape that tapers toward the tip of the core part and, in a section in which the pair of twisted core materials are twisted more than one rotation, the three-dimensional shape defined by the tips of the plurality of brush bristles has a pyramidal shape that tapers toward the tip of the core part, the pyramidal shape being disposed at a distal end of the application part; and wherein the plurality of brush bristles form a shape that tapers along the application part beginning from
the tip of the shaft part and moving toward the tip of the core part, as recited in newly amended independent claim 1 of the present application.
Response #3:
Higgins is not being relied upon for the teaching of any limitations drawn to a twisted core. Higgins is being relied upon only for the teaching of concave and convex parts and for the teaching of a tapering along the application part beginning from the tip part of the shaft part and moving toward the tip of the core part, as indicated in at least Higgins Figure 2A. The newly added limitation “wherein the plurality of brush bristles form a shape that tapers along the application part beginning from the tip of the shaft part and moving toward the tip of the core part” is interpreted in light of applicant’s specification, specifically Figure 1, wherein a plurality of spherically shaped bunches of bristles that define a convexity, 16, and a concavity, 17, have a largest diameter that decreases in a direction from left/tip of the shaft part to right/tip of the core part. Higgins teaches this same relationship between the bristles.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure: Brandli (US2005/0257338) discloses an applicator comprising a twisted core (refer to Paragraph [0028]), and a plurality of bristles (3) depending from the core, wherein the envelope defined by ends of the bristles forms a plurality of concave and convex regions (refer to Figure 6, fifth image), and the envelope tapers from a first end/left end of the applicator to a right end.
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.
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