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 § 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 (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 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.
Claims 1,2,5,7,8,9,11 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by De Brouwer et al 20070062552.
With regard to claim 1, De Brouwer discloses a mascara brush (see fig. 6 and 11) comprising a hollow envelope 4 and at least one applicator element support 9A (see annotations below) extending from the envelope 4 in cantilever, in which at least one applicator element support 9A carries at least one applicator element 12,13 at a free end of the at least one applicator element support 9A. Note that the applicator element support extends substantially along a tangential plane of the brush (extends along a plane lying on the surface of the brush in a left to right direction). See below.
[AltContent: textbox (Applicator elements)]
[AltContent: arrow][AltContent: arrow][AltContent: textbox (taper)][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: textbox (Support elements)][AltContent: arrow][AltContent: textbox (envelope)]
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[AltContent: textbox (Applicator element support extends substantially along a tangential plane of the brush. (left to right direction))]
With regard to claim 2, note that the envelope 4 is made as a single part with the at least one applicator element support 9A. See above figure.
With regard to claim 5, note that the applicator element support 9A is connected to the envelope 4, forming a taper. See above figure.
With regard to claim 7, note that an embodiment (fig. 10) is disclosed wherein at least one support pattern is formed by a pair of applicator element supports extending in one and the same direction and in opposite orientations. See annotated figure below.
[AltContent: arrow][AltContent: arrow][AltContent: textbox (Applicator elements extend in same direction and in opposite orientations)][AltContent: arrow][AltContent: textbox (Support pattern formed by pair of applicator elements)]
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With regard to claim 8, note that the applicator element supports of the support pattern extend substantially along a circumferential direction. This occurs because the supports/elements extend completely around the circumference of the brush.
With regard to claim 9, note that there are a plurality of support patterns on a circumferential contour of the brush. See fig. 10.
With regard to claim 11, note that a mascara applicator is disclosed (see fig. 6), comprising a stick 6 and a mascara brush as claimed in claim 1. Note how stick 6 is inserted into the hollow portion of the envelope 4.
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 3 and 4 are rejected under 35 U.S.C. 103 as being unpatentable over De Brouwer et al 20070062552.
With regard to claims 3 and 4, De Brouwer et al does not disclose the at least one applicator element support to have a transverse cross section between 0.25mm2 and 5mm2, nor extends in cantilever from the envelope 4 over a distance between 0.25 mm and 5 mm.
However, De Brouwer does disclose in paragraphs 83 and 84 that certain dimensions of the spacings between the applicator elements can be optimized to achieve certain results, such as composition retention or accommodation of eyelashes of certain sizes. See paragraphs 80-84. Further, it appears that one skilled in the art would have had a reasonable expectation of success in selecting the transverse cross section and distance of the applicator element supports that fall within the claimed ranges, as it only involves adjusting certain dimensions of the support elements to provide the stated desired properties of composition retention or accommodation of eyelashes of certain sizes. Therefore, it would have been obvious to one skilled in the art to select transverse cross section and distance of the applicator element supports on the device of De Brouwer et al to have a transverse cross section between 0.25mm2 and 5mm2, as well as extend in cantilever from the envelope 4 over a distance between 0.25 mm and 5 mm as a matter of routine optimization, since it has been held that where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. See In Gardner v.TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984).
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over De Brouwer et al 20070062552 in view of Schar 20180317640.
With regard to claim 10, De Brouwer et al does not disclose a method for manufacturing a brush as claimed in claim 1, comprising at least one step of manufacturing by additive method.
Schar 20180317640 discloses various types of personal care brushes, including mascara brushes (paragraph 1), that may be formed by additive manufacturing. See paragraph 3, which discloses that injection molding may be utilized, which is a form of additive manufacturing.
It would have been obvious to one skilled in the art to manufacture the mascara brush of De Brouwer et al via an additive manufacturing step, in view of the teaching of Schar that additive manufacturing may be utilized to form a mascara brush.
Response to Arguments
Applicant's arguments filed 2/5/26 have been fully considered but they are not persuasive.
Applicant’s arguments directed toward the newly added limitation in claim 1 of the support extending substantially along a tangential plane of the brush has been addressed in the office action with a more detailed explanation of how the support “extends” along a tangential plane, when one considers how the support extends in a left-right direction (as viewed in the accompanying figure).
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 NICHOLAS D LUCCHESI whose telephone number is (571)272-4977. The examiner can normally be reached M-F 800-430.
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/NICHOLAS D LUCCHESI/Primary Examiner, Art Unit 3772