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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 8/21/2026 has been entered.
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 1, 4-7, 11, and 14-19 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 1 recites “the applicator brush forms a taper, wherein the taper comprises an increase in overall diameter of the applicator brush extending from a proximal direction to a distal direction” in lines 10-11 wherein it is unclear what applicant considers the proximal direction and distal direction. It is unclear if the proximal direction refers to the end opposing where a stem/handle would be and the distal direction is towards the stem/handle of an applicator brush OR if it refers to the opposite. For examination purposes, it will be interpreted as the proximal direction refers to the end direction towards the end opposing the stem/handle and the distal direction is the direction going towards the stem/handle of an applicator brush.
Claims 4-7and 11 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph for being dependent off claim 1.
Claim 14 recites “the applicator brush forms a taper, wherein the taper comprises an increase in overall diameter of the applicator brush extending from a proximal direction to a distal direction” in lines 11-12 wherein it is unclear what applicant considers the proximal direction and distal direction. It is unclear if the proximal direction refers to the end opposing where a stem/handle would be and the distal direction is towards the stem/handle of an applicator brush OR if it refers to the opposite. For examination purposes, it will be interpreted as the proximal direction refers to the end direction towards the end opposing the stem/handle and the distal direction is the direction going towards the stem/handle of an applicator brush.
Claims 15-19 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph for being dependent off claim 14.
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, and 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kim (US 20130032166 A1, herein denoted as Kim ‘166) in view of Wang (US 8919351 B1) and Gueret (US 20120082503 A1).
Re. Claim 1, Kim discloses a method of making an applicator brush (Fig. 13-14; Abstract; It should be noted that in Par. 48 the coupling of the disks to the body part can be done in various manners such as through assembly), comprising:
assembling bristle-containing disks (20A/20B/20C) in a coaxial manner into a brush (Fig. 13-14; element 10),
wherein one or more at least one of the bristle-containing disks (Fig. 13-14 shows that each disks comprises 3 rows of bristles) comprises:
a first proximal row of bristles having a first length (Annotated Figure A of Fig. 13 where the length is the length of the bristles extending outwards); and
a first distal row of bristles having a second length (Annotated Figure A of Fig. 13 where the length is the length of the bristles extending outwards).
However, Kim ‘166 is silent to the second length being larger than the first length, such that the first proximal row of bristles and the first distal row of bristles form a taper. Further, Kim ‘166 is silent to the first proximal row of bristles is located at one quarter of an axial distance of the bristle-containing disk and the second proximal row of bristles is located at three quarters of the axial distance and wherein the applicator brush forms a taper, wherein the taper comprises an increase in overall diameter of the applicator brush extending from a proximal direction to a distal direction.
Kim ‘166 does present an arrangement of bristles spaced apart in thirds of the axial distance. It should be noted that applicant disclosure of the limitation regarding the location of the bristles (Par. 21) does not disclose criticality.
Wang discloses a mascara brush in the same field of endeavor and further discloses rows of bristles wherein the rows are spaced apart in quarters to space apart the 4 rows of bristles (see Fig. 3a). It is also disclosed that the rows of bristles present a taper to one another where it is the smallest at the proximal row and largest at the distal row (Fig. 3).
As such, it would have been obvious to someone skilled in the art before the effective filing date to have the brush of Kim ‘166 to have the second length being larger than the first length, such that the first proximal row of bristles and the first distal row of bristles form a taper as taught by Wang through trial and error to develop the combination as it is based on the desired shape of the user. Further, it would have been obvious to have the 3 rows of bristles of Kim ‘166 to be 4 rows which would have the first proximal row of bristles located at one quarter of an axial distance of the bristle-containing disk and the second proximal row of bristles located at three quarters of the axial distance as taught by Wang through trial and error to develop the combination as it is based on the desired shape of the user.
Gueret discloses a mascara brush in the same field of endeavor and further discloses disks which are found to create a taper for the applicator brush (Fig. 8a) where the diameter increases from the proximal end to the distal end (Fig. 8a where the distal end is towards the stem 4 and the proximal end is the other end of the plurality of disks. See Annotated Figure B of Fig. 8a).
It would have been obvious to someone skilled in the art before the effective filing date to have the brush of Kim ‘166 and Wang to be tapered, wherein the taper comprises an increase in overall diameter of the applicator brush extending from a proximal direction to a distal direction as taught by Gueret as it is a design choice as to the particular arrangement where the functionality of applying cosmetic product remains the same.
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Re. Claim 14, Kim ‘166 discloses an applicator brush (Abstract; Fig. 11-12), comprising:
a first bristle-containing disk (Annotated Figure D of Fig. 11), comprising;
a first proximal row of bristles having a first length (Annotated Figure D of Fig. 11 where the length is the length of the bristle extending from the disk); and
a first distal row of bristles having a second length (Annotated Figure D of Fig. 11 where the length is the length of the bristle extending from the disk); and
a second bristle containing disk adjacent to the first bristle containing disk, wherein the first disk is proximal to the applicator brush and the second disk is distal to the applicator brush (Annotated Figure C of Fig. 11 where it is found that the second disk is in a distal position in relation to the brush).
However, Kim ‘166 is silent to the second length being larger than the first length, such that the first proximal row of bristles and the first distal row of bristles form a taper. Further, Kim ‘166 is silent to the first proximal row of bristles is located at one quarter of an axial distance of the bristle-containing disk and the second proximal row of bristles is located at three quarters of the axial distance and wherein the applicator brush forms a taper, wherein the taper comprises an increase in overall diameter of the applicator brush extending from a proximal direction to a distal direction.
Kim ‘166 does present an arrangement of bristles spaced apart in thirds of the axial distance. It should be noted that applicant disclosure of the limitation regarding the location of the bristles (Par. 21) does not disclose criticality.
Wang discloses a mascara brush in the same field of endeavor and further discloses rows of bristles wherein the rows are spaced apart in quarters to space apart the 4 rows of bristles (see Fig. 3a). It is also disclosed that the rows of bristles present a taper to one another where it is the smallest at the proximal row and largest at the distal row (Fig. 3).
As such, it would have been obvious to someone skilled in the art before the effective filing date to have the brush of Kim ‘166 to have the second length being larger than the first length, such that the first proximal row of bristles and the first distal row of bristles form a taper as taught by Wang through trial and error to develop the combination as it is based on the desired shape of the user. Further, it would have been obvious to have the 3 rows of bristles of Kim ‘166 to be 4 rows which would have the first proximal row of bristles located at one quarter of an axial distance of the bristle-containing disk and the second proximal row of bristles located at three quarters of the axial distance as taught by Wang through trial and error to develop the combination as it is based on the desired shape of the user.
Gueret discloses a mascara brush in the same field of endeavor and further discloses disks which are found to create a taper for the applicator brush (Fig. 8a) where the diameter increases from the proximal end to the distal end (Fig. 8a where the distal end is towards the stem 4 and the proximal end is the other end of the plurality of disks. See Annotated Figure B of Fig. 8a).
It would have been obvious to someone skilled in the art before the effective filing date to have the brush of Kim ‘166 and Wang to be tapered, wherein the taper comprises an increase in overall diameter of the applicator brush extending from a proximal direction to a distal direction as taught by Gueret as it is a design choice as to the particular arrangement where the functionality of applying cosmetic product remains the same.
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Claim(s) 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kim (US 20130032166 A1, herein denoted as Kim ‘166) in view of Wang (US 8919351 B1) and Kim (KR 200460883 Y1, see machine translated ver., herein denoted as Kim ‘833).
Re. Claim 12, Kim ‘166 discloses a bristle-containing disk for an applicator brush (Abstract; Fig. 13-14; it should be noted that in Par. 48 the coupling of the disks to the body part can be done in various manners such as through assembly), comprising:
a central core (20A) having a proximal flat surface and a distal flat surface and a rounded side surface between the proximal and distal flat surfaces (Annotated Figure C of Fig. 14; Fig. 13-14);
a first proximal row of bristles having a first length (Annotated Figure A of Fig. 13 where the length is the length of the bristles extending outwards); and
a first distal row of bristles having a second length (Annotated Figure A of Fig. 13 where the length is the length of the bristles extending outwards).
However, Kim ‘166 is silent to the second length being larger than the first length, such that the first proximal row of bristles and the first distal row of bristles form a taper. Kim ‘166 does present an arrangement of bristles spaced apart in thirds of the axial distance. It should be noted that applicant disclosure of the limitation regarding the location of the bristles (Par. 21) does not disclose criticality.
Wang discloses a mascara brush in the same field of endeavor and further discloses rows of bristles wherein the rows are spaced apart in quarters to space apart the 4 rows of bristles (see Fig. 3a). It is also disclosed that the rows of bristles present a taper to one another where it is the smallest at the proximal row and largest at the distal row (Fig. 3). As such, it would have been obvious to someone skilled in the art before the effective filing date to have the brush of Kim ‘166 to have the second length being larger than the first length, such that the first proximal row of bristles and the first distal row of bristles form a taper as taught by Wang through trial and error to develop the combination as it is based on the desired shape of the user. Further, it would have been obvious to have the 3 rows of bristles of Kim ‘166 to be 4 rows which would have the first proximal row of bristles located at one quarter of an axial distance of the bristle-containing disk and the second proximal row of bristles located at three quarters of the axial distance as taught by Wang through trial and error to develop the combination as it is based on the desired shape of the user.
Kim ‘883 discloses a mascara brush in the same field of endeavor and further discloses rows of bristles on disks with varying heights resulting in varying diameters made by each row of bristles as shown in Fig. 4 (Par. 3). It is found to be changed to provide the best shape desired by the user for a desired look (Par. 3 teaches that the shape, length and width of the brush can create a more natural makeup, curling and/or wave for the user’s eyelashes). The bristles as such can present a taper between each row of bristles (Fig. 4).
As such, it would have been obvious to someone skilled in the art before the effective filing date to have the brush of Kim ‘166 and Wang to have the second length being larger than the first length, such that the first proximal row of bristles and the first distal row of bristles form a taper as taught by Kim ‘833 through trial and error to develop the combination as it is based on the desired shape of the user.
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Claim(s) 4-7, and 15-19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kim (US 20130032166 A1, herein denoted as Kim ‘166) in view of Wang (US 8919351 B1), Gueret (US 20120082503 A1) and Kim (KR 200460883 Y1, see machine translated ver., herein denoted as Kim ‘833).
Re. Claim 4, Kim ‘166, Wang and Gueret discloses the method of claim 1, wherein Kim ‘166 discloses a second bristle-containing disk (Annotated Figure D of Fig. 13) of the one or more bristle-containing disks includes a second proximal row of bristles and a second distal row of bristles (Annotated Figure D of Fig. 13). However, they are silent to the second proximal row of bristles has an overall diameter greater than the overall diameter of the second distal row of bristles
Kim ‘883 discloses a mascara brush in the same field of endeavor and further discloses rows of bristles on disks with varying heights resulting in varying diameters made by each row of bristles as shown in Fig. 4 (Par. 3). It is found to be changed to provide the best shape desired by the user for a desired look (Par. 3 teaches that the shape, length and width of the brush can create a more natural makeup, curling and/or wave for the user’s eyelashes). The bristles as such can present a taper between each row of bristles (Fig. 4). Kim ‘833 discloses the second proximal row of bristles has an overall diameter greater than the overall diameter of the second distal row of bristles (Fig. 4).
It would have been obvious to someone skilled in the art before the effective filing date to have the first disk of Kim ‘166, Wang, and Gueret to further have the second proximal row of bristles to have an overall diameter greater than the overall diameter of the second distal row of bristles as taught by Kim ‘833 to provide the best shape desired by the user.
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Re. Claim 5, Kim ‘166, Wang, Gueret and Kim ‘833 discloses the method of claim 4, wherein Kim ‘833 discloses the rows of bristles on the disks having varying heights resulting in varying diameters made by each row of bristles as shown in Fig. 4 (Par. 3). It is found to be changed to provide the best shape desired by the user for a desired look (Par. 3 teaches that the shape, length and width of the brush can create a more natural makeup, curling and/or wave for the user’s eyelashes).
As such, it would have been obvious to someone skilled in the art before the effective filing date to have the brush of Kim ‘166, Wang, Gueret and Kim ‘833 to have the first proximal row of bristles has an overall diameter greater than the overall diameter of the second proximal row of bristles as taught by Kim ‘833 through trial and error to develop the combination as it is based on the desired shape of the user.
Re. Claim 6, Kim ‘166, Wang, Gueret and Kim ‘833 discloses the method of claim 5, wherein Kim ‘833 teaches the rows of bristles on the disks having varying heights resulting in varying diameters made by each row of bristles as shown in Fig. 4 (Par. 3). It is found to be changed to provide the best shape desired by the user for a desired look (Par. 3 teaches that the shape, length and width of the brush can create a more natural makeup, curling and/or wave for the user’s eyelashes).
As such, it would have been obvious to someone skilled in the art before the effective filing date to have the brush of Kim ‘166, Wang, Gueret and Kim ‘833 to have the first distal row of bristles has an overall diameter greater than the overall diameter of the second distal row of bristles as taught by Kim ‘833 through trial and error to develop the combination as it is based on the desired shape of the user.
Re. Claim 7, Kim ‘166, Wang, Gueret and Kim ‘833 discloses the method of claim 4, wherein Kim ‘833 teaches the rows of bristles on the disks having varying heights resulting in varying diameters made by each row of bristles as shown in Fig. 4 (Par. 3). It is found to be changed to provide the best shape desired by the user for a desired look (Par. 3 teaches that the shape, length and width of the brush can create a more natural makeup, curling and/or wave for the user’s eyelashes).
As such, it would have been obvious to someone skilled in the art before the effective filing date to have the brush of Kim ‘166, Wang, Gueret and Kim ‘833 to have the first distal row of bristles has an overall diameter equal to or greater than the overall diameter of the second proximal row of bristles as taught by Kim ‘833 through trial and error to develop the combination as it is based on the desired shape of the user.
Re. Claim 15, Kim ‘166, Wang, and Gueret discloses the applicator brush of claim 14, wherein Kim ‘166 discloses the second disk includes a second proximal row of bristles and a second distal row of bristles (Annotated Figure E of Fig. 13). However, they are silent to the second proximal row of bristles has an overall diameter greater than the overall diameter of the second distal row of bristles.
Kim ‘883 discloses a mascara brush in the same field of endeavor and further discloses rows of bristles on disks with varying heights resulting in varying diameters made by each row of bristles as shown in Fig. 4 (Par. 3). It is found to be changed to provide the best shape desired by the user for a desired look (Par. 3 teaches that the shape, length and width of the brush can create a more natural makeup, curling and/or wave for the user’s eyelashes). The bristles as such can present a taper between each row of bristles (Fig. 4). Kim ‘833 discloses the second proximal row of bristles has an overall diameter greater than the overall diameter of the second distal row of bristles (Fig. 4).
It would have been obvious to someone skilled in the art before the effective filing date to have the first disk of Kim ‘166, Wang, and Gueret to further have the second proximal row of bristles to have an overall diameter greater than the overall diameter of the second distal row of bristles as taught by Kim ‘833 to provide the best shape desired by the user.
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Re. Claim 16, Kim ‘166, Wang, Gueret and Kim ‘833 discloses the applicator brush of claim 15, wherein Kim ‘833 teaches the rows of bristles on the disks having varying heights resulting in varying diameters made by each row of bristles as shown in Fig. 4 (Par. 3). It is found to be changed to provide the best shape desired by the user for a desired look (Par. 3 teaches that the shape, length and width of the brush can create a more natural makeup, curling and/or wave for the user’s eyelashes).
As such, it would have been obvious to someone skilled in the art before the effective filing date to have the brush of Kim ‘166, Wang, Gueret and Kim ‘833 to have the first proximal row of bristles has an overall diameter greater than the overall diameter of the second proximal row of bristles as taught by Kim ‘833 through trial and error to develop the combination as it is based on the desired shape of the user.
Re. Claim 17, Kim ‘166, Wang, Gueret and Kim ‘833 teaches the method of claim 16, wherein Kim ‘833 teaches the rows of bristles on the disks having varying heights resulting in varying diameters made by each row of bristles as shown in Fig. 4 (Par. 3). It is found to be changed to provide the best shape desired by the user for a desired look (Par. 3 teaches that the shape, length and width of the brush can create a more natural makeup, curling and/or wave for the user’s eyelashes).
As such, it would have been obvious to someone skilled in the art before the effective filing date to have the brush of Kim ‘166, Wang, Gueret and Kim ‘833 to have the first distal row of bristles has an overall diameter greater than the overall diameter of the second distal row of bristles as taught by Kim ‘833 through trial and error to develop the combination as it is based on the desired shape of the user.
Re. Claim 18, Kim ‘166, Wang, Gueret and Kim ‘833 teaches the method of claim 15, wherein Kim ‘833 teaches the rows of bristles on the disks having varying heights resulting in varying diameters made by each row of bristles as shown in Fig. 4 (Par. 3). It is found to be changed to provide the best shape desired by the user for a desired look (Par. 3 teaches that the shape, length and width of the brush can create a more natural makeup, curling and/or wave for the user’s eyelashes).
As such, it would have been obvious to someone skilled in the art before the effective filing date to have the brush of Kim ‘166, Wang, Gueret and Kim ‘833 to have the first distal row of bristles has an overall diameter equal to or greater than the overall diameter of the second proximal row of bristles as taught by Kim ‘833 through trial and error to develop the combination as it is based on the desired shape of the user.
Claim(s) 11 and 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kim (US 20130032166 A1, herein denoted as Kim ‘166) in view of Wang (US 8919351 B1), Gueret (US 20120082503 A1, herein denoted as Gueret ‘503) and Gueret (US 20030178043 A1, herein denoted as Gueret ‘043).
Re. Claim 11, Kim ‘166, Wang, and Gueret ‘503 discloses the method of claim 1, but are silent to the bristles of the first distal row are staggered with respect to the bristles of the first proximal row.
Gueret ‘043 discloses a toothbrush in the analogous art of brushes and further discloses different arrangement of the bristles as shown in Fig. 10-15 based on the holes (20) in which the bristles would be fitted into (Par. 105). The arrangement includes having them offset/staggered (Fig. 11 and 14) and also parallel to one another (Fig. 12-13 and 15).
It would have been obvious to someone skilled in the art before the effective filing date to have the rows of bristles of Kim ‘166, Wang, and Gueret ‘503 to be staggered apart from one another as taught by Gueret ‘043 to provide a desired look for the user. As such, the combination would result in the bristles of the first distal row are staggered with respect to the bristles of the first proximal row.
Re. Claim 19, Kim ‘166, Wang, and Gueret ‘503 discloses the applicator brush of claim 14, but are silent to the bristles of the distal row are staggered with respect to the bristles of the proximal row in the first disk and the second disk.
Gueret ‘043 discloses a toothbrush in the analogous art of brushes and further discloses different arrangement of the bristles as shown in Fig. 10-15 based on the holes (20) in which the bristles would be fitted into (Par. 105). The arrangement includes having them offset/staggered (Fig. 11 and 14) and also parallel to one another (Fig. 12-13 and 15).
It would have been obvious to someone skilled in the art before the effective filing date to have the rows of bristles of Kim ‘166, Wang, and Gueret ‘503 to be staggered apart from one another as taught by Gueret ‘043 to provide a desired look for the user. As such, the combination would result in the bristles of the first distal row are staggered with respect to the bristles of the first proximal row.
Response to Arguments
Applicant’s arguments with respect to claim(s) 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
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/HOLLY T. TO/Examiner, Art Unit 3772
/EDELMIRA BOSQUES/Supervisory Patent Examiner, Art Unit 3772
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