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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 5/19/26 has been entered.
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 1,2,5,7-9,11 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Weigel 20120167910 (newly cited).
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With regard to claim 1, Weigel discloses a mascara brush (see above annotated fig. 10d) comprising a hollow envelope 9 and at least one applicator element support 4 extending from the envelope 9 in cantilever, in which the at least one applicator element support 4 has a fixed end forming a connection with the envelope 9, and a free end, wherein the at least one application element support 4 carries at least one applicator element 30 at the free end wherein the at least one applicator element support 5 extends in a first direction extending between the fixed end and the free end and wherein the at least one applicator element 30 has a free end and a fixed end forming a connection with the at least one applicator element support 4; wherein the at least one applicator element 30 extends in a second direction from the fixed end of the at least one applicator element 30 to the free end of the at least one applicator element 30, wherein an angle between the first direction and the second direction is greater than 45 degrees. See paragraph 80.
With regard to claim 2, note that the envelope 9 is a single part with the applicator element support 4.
With regard to claim 5, note that the at least one applicator element support 4 is connected to the envelope 9, forming a taper. See above annotated figure.
With regard to claim 7, note that the brush comprises at least one support pattern formed by a pair of applicator element supports 4 extending in one and the same direction and in opposite orientations. See above annotated figure.
With regard to claim 8, note that the applicator element supports 4 of the support pattern extend substantially along a circumferential direction. See above annotated figure.
With regard to claim 9, note that the brush has a plurality of support patterns on a circumferential contour of the brush (any group of bristles can be considered to be a “pattern”. See above annotated figure.
With regard to claim 11, note that Weigel discloses a mascara applicator comprising a stick 10 (see fig. 3A) and a mascara brush as claimed in claim 1.
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 Weigel 20120167910.
With regard to claims 3 and 4, Weigel does not disclose the at least one applicator element support to have a transverse section between 0.25mm2 and 5mm2, nor extends in cantilever from the envelope 9 over a distance between 0.25 mm and 5 mm.
However, Weigel does disclose in paragraph 20 that the intensity of charging of the mascara brush is dependent upon certain physical characteristics of the brush, including the length of the bristles. 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 intensity of charging of the brush. 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 Weigel 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 Weigel 20120167910 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 Weigel 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 with respect to claims 1-5,7-11 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.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
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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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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/NICHOLAS D LUCCHESI/ Primary Examiner, Art Unit 3772
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