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 .
Priority
Acknowledgment is made of applicant’s claim for foreign priority under 35 U.S.C. 119 (a)-(d). The certified copy has been filed in parent Application No. CN202311337964.0, filed on 10/16/2023. For the purpose of examination, the priority date for claims 1-20 is 10/16/2023.
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the main body portion and top portion of claims 11, 19 and 20 must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Rejections - 35 USC § 102
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.
Claim(s) 1, 6, 7, and 16-17 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Gutberlet (US 20130315645 A1).
Regarding claim 1, Gutberlet discloses a cosmetic applicator head (14+40),
comprising a mounting portion (14) and an application portion (40),
wherein the mounting portion (14) and the application portion (40) are fixedly connected (refer to Paragraphs [0012], [0040]; the applicator support body (14) and applicator head (40) have different resiliencies produced by 2-component injection molding, with applicator unit (7), comprised of the support body (14) and applicator head (40) configured to be rigidly formed in one piece),
the application portion (40) is a columnar structure (refer to Paragraph [0042]; Examiner understands a columnar structure as a cylindrical structure);
a flocked layer (17) is provided on a surface of the application portion (40) (refer to Paragraph [0041]; the applicator (17) has a coating in the form of flocking);
a flock in the flocked layer (17) has a fineness of 2.4 D to 3.6 D, and a length of 1.2 mm to 1.8 mm (refer to Paragraph [0080]; the fibres used have a fiber length of 1.2mm and flock density of 3.3dtex (2.97 D); one Decitex (dtex) is equal to 0.9 Deniers (D)); and
the cosmetic applicator head (14+40) is an integrally injection -molded piece made of a thermoplastic elastomer (refer to Paragraphs [0012], [0040]; the applicator support body (14) is made in one piece of a thermoplastic polyester elastomer by 2-component injection molding).
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Regarding claims 6-7, Gutberlet discloses the cosmetic applicator head (14+40) according to claim 1, wherein the thermoplastic elastomer of the cosmetic applicator head is made a thermoplastic polyester elastomer (TPEE) (refer to Paragraphs [0012], [0040]; the applicator support body (14) is made in one piece of a thermoplastic polyester elastomer).
Regarding claims 16-17, Gutberlet discloses the cosmetic applicator head (14+40) according to claims 6 and 7, wherein the application portion (40) comprises a first end fixedly connected to the mounting portion (14) (refer to annotated Fig. 5 below), and a second end being a free end (refer to annotated Fig. 5 below); and
the second end of the application portion (40) is provided with a groove (refer to Paragraphs [0042], [0052]; the alternative embodiment depicted in Fig. 5 shows a level end face (36), configured for application of product by collecting cosmetic product (6) ; Examiner understands a groove as an indentation for collecting product).
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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.
Claim(s) 1-5, 9-15, and 19-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Holloway et al. (US 20120224910 A1), herein known as Holloway, in view of Yajima et al. (US 20190374005 A1), herein known as Yajima.
Regarding claim 1, Holloway discloses a cosmetic applicator head (18),
comprising a mounting portion (26) and an application portion (20),
wherein the mounting portion (26) and the application portion (20) are fixedly connected (refer to Paragraph [0035]; the base rod (26) projects from the proximal end of the column core (20)),
the application portion (20) is a columnar structure (refer to Paragraph [0035]; the applicator tip (18) has a column core (20));
a flocked layer (22) is provided on a surface of the application portion (refer to Paragraph [0043]; the cosmetic applicator material (22) comprises flocked bristles);
Holloway does not disclose the fineness of the flocked layer (22) and the cosmetic applicator (20) being made of a thermoplastic elastomer.
Yajima discloses a cosmetic applicator (3) in the same field of endeavor (refer to Paragraph [0024]). The cosmetic applicator (3) comprises a flocked surface, wherein a flock in the flocked layer has a fineness of 2.4 D to 3.6 D (refer to Paragraph [0039]; the resin fibers have a thickness of approximately 0.5-4.0 T/decitex (0.45 D- 3.6 D); one Decitex (dtex) is equal to 0.9 Deniers (D)), and a length of 1.2 mm to 1.8 mm (refer to Paragraph [0039]; the length of fibers to be deposited is 0.1 mm to 2.0 mm). The thickness is based on the values generally used for flocking cosmetic tools, while the length of the fibers is based on the fibers standing up reliably, allowing the cosmetic to be carried easily (refer to Paragraph [0039]).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the cosmetic applicator head (18) as taught by Holloway with the flocking fibers as taught by Yajima, as Yajima demonstrates the thickness values as well known in the art, and further, the length of the fibers allows the fibers to reliably stand up (refer to Paragraph [0039]).
Yajima further discloses the cosmetic applicator head (3) is an integrally injection-molded piece made of a thermoplastic elastomer (refer to Paragraphs [0025], [0032]; the application member (3) is formed by a thermoplastic elastomer by injection molding). The thermoplastic elastomer provides moderate elasticity, while being chemically stable (refer to Paragraph [0025]).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the cosmetic applicator head (18) as taught by Holloway with the thermoplastic elastomer material as taught by Yajima, in order to provide a material with moderate elasticity, while being chemically stable (refer to Paragraph [0039]).
Regarding claims 2-3, Holloway and Yajima disclose the cosmetic applicator head according to claim 1; Holloway is silent to the fineness of the flock.
Yajima discloses wherein the flock has the fineness of 2.7 D to 3.3 D, and further wherein the flock has the fineness of 3.0 D (refer to Paragraph [0039]; the resin fibers have a thickness of approximately 0.5-4.0 T/decitex (0.45 D- 3.6 D); one Decitex (dtex) is equal to 0.9 Deniers (D)). Applicant discloses the flock fineness values as providing the best makeup effect (refer to Paragraph [0035]). Yajima discloses the flock thickness range as coinciding with the general values for cosmetic tools.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include 2.7 D - 3.3 D, and further 3.0 D in the flock fineness values, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges or optimum value involves only routine skill in the art. In re Aller, 105 USPQ 233. MPEP 2144.05-II-A.
Regarding claims 4-5, Holloway and Yajima disclose the cosmetic applicator head according to claim 1; Holloway is silent to the length of the flock.
Yajima discloses wherein the flock has the length of 1.35 mm to 1.65 mm, and further wherein the flock has the length of 1.5 mm (refer to Paragraph [0039]; the length of fibers to be deposited is 0.1 mm to 2.0 mm). Similar to Applicant, Yajima discloses this length range as preferable for application, ensuring the cosmetic can easily be carried (refer to Paragraph [0039]).
Therefore, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include 1.35 mm - 1.65 mm, and further 1.5 mm for the flock length, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges or optimum value involves only routine skill in the art. In re Aller, 105 USPQ 233. MPEP 2144.05-II-A.
Regarding claim 9, and 12-15, Holloway and Yajima disclose the cosmetic applicator head according to claims 1-5, wherein the application portion (20) comprises a first end fixedly connected to the mounting portion (26), and
a second end being a free end (refer to annotated Fig. 17 below); and
the second end of the application portion (20) is provided with a groove (52) (refer to Paragraph [0042], annotated Fig. 17 below; a concave distal end cup (52) is disposed in the mitered end face (30) of the applicator tip (18)).
Regarding claim 10, Holloway and Yajima disclose the cosmetic applicator head (18) according to claim 9, with Yajima further disclosing wherein the second end of the application portion (30) forms a tip (28) (refer to annotated Fig. 17 below).
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Regarding claims 11, 19 and 20, Holloway and Yajima disclose the cosmetic applicator head according to claims 1-3, with Yajima further disclosing wherein the application portion (30) comprises a main body portion (20) and a top portion (30);
the main body portion (20) comprises a first end fixedly connected to the mounting portion (26) (refer to Paragraph [0035]; the base rod (26) projects from the proximal end of the column core (20)), and a second end fixedly connected to the top portion (30) (refer to Paragraph [0042]; the mitered end face (30) is located on the applicator tip (28); in light of Applicant’s specification (Fig. 2), Examiner understands the second end and top portion (30) being fixedly connected as the second end being a part of the top portion (30)) ;
the main body portion comprises a cylindrical structure (refer to Paragraph [0035]; the applicator tip (18) has a column core); and
the top portion (30) comprises at least one of a truncated cone-shaped structure, a conical structure and a spherical structure (refer to Paragraph [0042], Fig. 16; the distal end cup (52) has an arcuate, concave bowl shape similar to a truncated cone-shape).
Claim(s) 8 and 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gutberlet (US 20130315645 A1) in view of Celanese (refer to provided NPL - Hytrel 7246 Material Data Sheet).
Regarding claim 8, Gutberlet discloses the cosmetic applicator head according to claim 7, wherein the TPEE has a Shore hardness of 45 D to 68 D (refer to Paragraph [0040]; the thermoplastic polyester elastomer has a hardness of at most 80 Shore D). The material hardness is based on providing the applicator support body (14) with improved resilience, while being deformable (refer to Paragraph [0014]), the same function of the material chosen by Applicant (refer to Paragraph [0037] of the specification).
Further, in the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (The prior art taught carbon monoxide concentrations of “about 1-5%” while the claim was limited to “more than 5%.” The court held that “about 1-5%” allowed for concentrations slightly above 5% thus the ranges overlapped.) MPEP § 2144.05-I.
Gutberlet does not disclose the density of the TPEE; however, Gutberlet does disclose the preferred TPEE as Hytrel (refer to Paragraph [0014]).
Celanese discloses Hytrel as having a density of 0.95 g/cm³ to 1.45 g/cm³ (refer to Other Properties; the density is 1260 kg/m3 = 1.26 g/cm3).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have included the density of TPEE as disclosed by Celanese in the material properties of the TPEE as disclosed by Gutberlet, as Celanese teaches this as a known property of Hytrel.
Regarding claim 18, Gutberlet and Celanese disclose the cosmetic applicator head according to claim 8, with Gutberlet further disclosing wherein the application portion (40) comprises a first end fixedly connected to the mounting portion (14) (refer to annotated Fig. 5 above), and a second end being a free end (refer to annotated Fig. 5 above); and
the second end of the application portion (40) is provided with a groove (refer to Paragraphs [0042], [0052]; the alternative embodiment depicted in Fig. 5 shows a level end face (36), configured for application of product by collecting cosmetic product (6) ; Examiner understands a groove as an indentation for collecting product).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Montoli (US 20070181143 A1) discloses a flocked applicator tip (60) which is molded (refer to Paragraphs [0006], [0067]).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Adriena J Webb Lyttle whose telephone number is (571)270-7639. The examiner can normally be reached Mon - Fri 8:00-5:00 EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Eric Rosen can be reached at (571) 270-7855. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ADRIENA J WEBB LYTTLE/Examiner, Art Unit 3772
/THOMAS C BARRETT/SPE, Art Unit 3799