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 Objections
Claim 11 is objected to because of the following informalities: Claim 11 recites “providing the applicator as claimed in claim 7”; however, claim 7 is canceled. Claim 11 must be amended to depend from a pending claim. For purposes of examination, claim 11 will be interpreted as depending from claim 1. Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 8 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 8 requires the applicator element have an elastically compressible material, where it is unclear if this material is the same or different from the porous material recited in claim 1.
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.
Claims 1-6 and 9-10 are rejected under 35 U.S.C. 103(a) as being unpatentable over Turnes (US 2416029) and Scrimgeour (US 1782911).
Regarding claim 1, Turnes discloses a cosmetic applicator (10, Refer to Figures 7-9 and similar structures in Figures 1-6) of longitudinal axis for applying a cosmetic product to an upper lip and a lower lip of a user, the applicator comprising: a gripping system (31,34,35,36,37,39,33) having a connection member (31,34,35,36,37) connecting two gripping elements (38,39) that are disposed opposite one another with respect to the longitudinal axis and configured to be tightly held between two fingers of a user, each gripping element delimiting an external gripping surface (surface of 38,39) configured to come into contact with the fingers, the connection member defining a central housing (housing formed by 31) that is open at its distal end (open on side exposing applicator); an application element (71,47) partially disposed within the housing (best shown in Figures 7 and 9) and including a porous material (Refer to col. 2 lines 30-31 and col. 3 lines 10-15) with a rear face (face contacting back/bottom surface of 31) and a front face (exposed face which the user’s lips are pressed against), which is opposite the rear face and defines an application surface (exposed surface of 71,47) with first crescent-shaped surface configured to engage the upper lip of the user, and a second crescent-shaped surface configured to engage the lower lip of the user, the rear face of the application element being oriented toward a bottom of the housing and the front face of the application element entirely protruding out of the housing (Refer to Figures 7-9 and col. 3 lines 9-15); however, Turnes does not disclose a centering lug fastened at a center of the front face of the application element and extending along the longitudinal axis of the applicator. Scrimgeour discloses a similar lip applicator having a gripping system with a housing where an application element partially disposed within the housing (Refer to Figures 1-9). Scrimgeour discloses a centering lug (9, Refer to Figures 4-6) fastened at the center of the front face of the applicator element and extending along the longitudinal axis of the applicator (Refer to Figure 5), where the centering lug provides a clear division between the upper and lower portions of the applicator element, thereby facilitating centering during use. 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 Turnes to provide a centering lug fastened at the center of the front face of the application element and extending along the longitudinal axis as taught by Scrimgeour to facilitate centering of the applicator during use.
Regarding claim 2, the combination of Turnes and Scrimgeour disclose the applicator of claim 1 above, Turnes further discloses the application element has a shape that is personalized to the lips of the user (Refer to Figures 1-9).
Regarding claim 3, the combination of Turnes and Scrimgeour disclose the applicator of claim 1 above, Turnes further discloses at least a part of the application element is situated between the gripping elements (Refer to Figures 8-9).
Regarding claim 4, the combination of Turnes and Scrimgeour disclose the applicator of claim 1 above, Turnes further discloses the application surface (16) is impregnated with the cosmetic product (Refer to col. 3 lines 9-15).
Regarding claim 5, the combination of Turnes and Scrimgeour disclose the applicator of claim 1 above, Turnes further discloses the rear face of the application element bears on at least a central location of the bottom of the housing (Refer to Figures 6-9).
Regarding claim 6, the combination of Turnes and Scrimgeour disclose the applicator of claim 1 above, Turnes further discloses each of the two gripping elements (38,39) is kept apart from the connection member by a spacer (34,35,36,37).
Regarding claims 9 and 13, the combination of Turnes and Scrimgeour disclose the applicator of claim 1 above, Turnes further discloses the application element has a longitudinal section along the longitudinal axis that is concave toward the outside, wherein the longitudinal section as a profile in the shape of an arc of a circle (Refer to Figure 7).
Regarding claim 10, the combination of Turnes and Scrimgeour disclose the applicator of claim 1 above, Turnes further discloses the connection member (5) is delimited by a lateral wall (side wall of 31) keeping the application element (71,47) in place and defining the periphery of the housing (Refer to Figure 9).
Claims 1, 11 and 12 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Turnes (US 2416029).
Regarding claim 1, Turnes discloses a cosmetic applicator (10) of longitudinal axis for applying a cosmetic product to an upper lip and a lower lip of a user, the applicator comprising: a gripping system (11) having a connection member (31,33,28,29) connecting two gripping elements (right and left ends of 11 having 40,48,55,41,49,54) that are disposed opposite one another with respect to the longitudinal axis and configured to be held tightly between two fingers of a user, each gripping element delimiting an external gripping surface configured to come into contact with the fingers, the connection member defining a central housing that is open at its distal end; an application element (71,47) partially disposed within the housing (best shown in Figures 7 and 9) and including a porous material (Refer to col. 2 lines 30-31 and col. 3 lines 10-15) with a rear face (face contacting back surface of 31) and a front face (exposed face which the user’s lips are pressed against), which is opposite the rear face and defines an application surface (exposed surface of 71,47) with a first crescent-shaped surface configures to engage the upper lip of the user and a second crescent-shaped surface configured to engage the lower lip of the user, the rear face of the application element being oriented toward a bottom of the housing and the front face of the application element entirely protruding out of the housing(Refer to Figures 7-9 and col. 3 lines 9-15); however, Turnes does not disclose a centering lug fastened at a center of the front face of the application element and extending along the longitudinal axis of the applicator. Scrimgeour discloses a similar lip applicator having a gripping system with a housing where an application element partially disposed within the housing (Refer to Figures 1-9). Scrimgeour discloses a centering lug (9, Refer to Figures 4-6) fastened at the center of the front face of the applicator element and extending along the longitudinal axis of the applicator (Refer to Figure 5), where the centering lug provides a clear division between the upper and lower portions of the applicator element, thereby facilitating centering during use. 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 Turnes to provide a centering lug fastened at the center of the front face of the application element and extending along the longitudinal axis as taught by Scrimgeour to facilitate centering of the applicator during use.
Regarding claim 11, the combination of Turnes and Scrimgeour disclose providing an applicator as in claim 1, and the method steps of applying a cosmetic by grasping the two gripping elements between two fingers (Refer to col. 2 lines 32-33), placing the front face of the application element in contact with the lips and pressing the application surface against the lips (Refer to Figures 2, 6, 7 and 9 and col. 3 lines 9-15). An optional step of positioning the centering lug (9) between the upper and lower lips is also provided by the combination of Turnes and Scrimgeour as the centering lug is disposed between the upper and lower portions of the applicator corresponding to the upper and lower lips.
Regarding claim 12, the combination of Turnes and Scrimgeour disclose the method of manufacturing the applicator as claimed in claim 1 above, the method comprising the steps if: (vi) performing an optical acquisition of at least a part of the surface of the lips of a person, and producing, from at least the optical acquisition, a personalized version of the applicator element. Turnes explains that the user presses on 30 to push the applicator forward exposing a desired amount of the applicator for use based on the user’s lips; thus, a user must assess their lips and decide much of the applicator to expose, thereby providing a personalized applicator.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over the combination of Turnes and Scrimgeour as applied to claim 1 above, and further in view of Gueret (US 6082918).
Regarding claim 8, the combination of Turnes and Scrimgeour disclose the applicator of claim 1 above, where the front face of the application element has an elastically compressible material (porous pad, Refer to col. 3 lines 9-15). Although Turnes does not explicitly disclose the material is defined by a Shore hardness of between 30A and 60A, the claimed range is well-known and conventional for such applicators as demonstrated by Gueret (Refer to col. 3 lines 63-67). The lip applicator of Gueret provides a porous elastically compressible material which contacts and transfers a cosmetic composition to the lips, where the material thereof has a shore hardness between 15 and 90 Shore A. 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 Turnes and Scrimgeour such that the elastically compressible material have a Shore hardness within the claimed range (30A-60A), as Gueret demonstrates these values are well-known and conventional for such applicators.
Response to Arguments
Applicant’s arguments with respect to cancelled claim(s) 7 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. Sage is not relied upon in the current ground of rejection for the teaching of a centering lug.
Applicant argues Turnes does not provide a centering lug. The rejection above, acknowledges Turnes does not provide a centering lug and relies on the teachings of Scrimgeour for this feature.
It is suggested Applicant amend the claims to better describe the shapes and relationships between the claimed structures (e.g. central housing having an upper wall and lower wall where first ends of the upper and lower walls are joined by a first curved wall and opposing second ends of the upper and lower walls are joined by a second curved wall; first and second spacers protrude outwardly from the first and second curved walls, respectively; first and second gripping elements protrude outwardly and longitudinally from the first and second spacers, respectively; the front face of the applicator element has a central recess and the centering lug has a proximal/rear portion that engages the central recess and protrudes longitudinally and distally therefrom such that a distal/front portion of the centering lug is disposed distally with respect to the front face of the applicator).
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 TATIANA L NOBREGA whose telephone number is (571)270-7228. The examiner can normally be reached M-F 8am-4pm.
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/TATIANA L NOBREGA/Primary Examiner, Art Unit 3799
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