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 § 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.
Claim(s) 1, 3-17, 19, 20, and 22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Perez (US 2020/0305574) in view of Byun (US 7377711).
Regarding claim 1, Perez teaches a cosmetic package comprising: a housing (1) having a reservoir (interior of 1) for containing a cosmetic product; and an applicator tip (3a) assembly coupled to the housing at one end of the housing; wherein the applicator tip assembly comprises a first applying member (5a) and a second applying member (4a); wherein at least a portion of the first applying member and the second applying member defines an active applicator member (comprising faces 51a and 41a); wherein the active applicator member comprises at least two branches (defined on either side of 50a), namely a first branch and a second branch that at least partially define and surround an internal cavity (50a); wherein each of the first branch and the second branch is formed partially from the first applying member and partially from the second applying member (Fig. 4A); wherein the first applying material is made of a heat transfer material; and wherein at least one dispensing aperture (mouth of channel Caa) lies on an inner curved surface of the second applying member that faces the internal cavity to dispense the cosmetic product that travels from the housing through a through-passage formed in the second applying member.
Perez does not teach a closure.
Byun teaches a closure (40).
Accordingly, it would have been obvious to one of ordinary skill in the art at the effective filing date of the claimed invention to have provided the device of Perez with a closure as taught by Byun for the purpose of safely storing the cosmetic (Byun col. 5, ll. 23-25).
Regarding claim 3, the combination of Perez and Byun teaches the cosmetic package of claim 1, wherein the heat transfer material is a non-metal selecting from a group of material consisting of ceramic, glass, stone, high-density plastics, and composites (Byun, ¶0039).
Regarding claim 4, the combination of Perez and Byun teaches the cosmetic package of claim 1, wherein the first applying member defines a distal end portion of the active applicator member (Perez, distal end of 5a).
Regarding claim 5, the combination of Perez and Byun teaches the cosmetic package of claim 1, wherein the first applying member comprises a first branch portion that defines the first branch of the active applicator member at least partially and a second branch portion that defines the second branch of the active applicator member at least partially (Perez, Fig. 4B, see each side of axis Z).
Regarding claim 6, the combination of Perez and Byun teaches the cosmetic package of claim 1, wherein the first applying member is of arch shape (Perez, Fig. 4A).
Regarding claim 7, the combination of Perez and Byun teaches the cosmetic package of claim 1, wherein the second applying member comprises a first portion (4n), a second portion (4l), and a third portion (4t).
Regarding claim 8, the combination of Perez and Byun teaches the cosmetic package of claim 7, wherein the first portion of the second applying member includes a first branch portion that partially defines the first branch of the active applicator member and a second branch portion that partially defines the second branch of the active applicator member (Perez Fig. 4A).
Regarding claim 9, the combination of Perez and Byun teaches the cosmetic package of claim 7, wherein the first portion of the second applying member defines a proximal end portion of the active applicator member (Perez Fig. 4A).
Regarding claim 10, Perez teaches a cosmetic package comprising: a housing (1) having a reservoir for containing a cosmetic product; and an applicator tip assembly (3a) coupled to one end of the housing; wherein the applicator tip assembly comprises a first applying member (5a) and a second applying member (4a); wherein at least a portion of the first applying member and the second applying member define an active applicator member (faces 51a and 41a); wherein the active applicator member comprises at least two branches (on either side of axis Z), namely a first branch and a second branch that at least partially define and surround an internal cavity (50a); wherein the second applying member comprises a first portion (4n), a second portion (4l), and a third portion (4t); wherein the first portion defines a distal portion of the second applying member, the second portion defines a middle portion of the second applying member, and the third portion defines a proximal portion of the second applying member (Fig. 4A); wherein the applicator tip assembly connects to the housing via the third portion of the second applying member (¶0053); wherein the first applying member couples to the first portion of the second applying member at a distal end of the first portion (Fig. 4B); wherein a through-passage (Caa) extends in a lengthwise direction of the second applying member and passes through the first portion, the second portion, and the third portion of the second applying member (Fig. 4A); wherein the through-passage of the second applying member terminates in at least one dispensing aperture (end of Caa) on an inner curved surface (46a) of the first portion of the second applying member; and wherein the inner curved surface of the first portion of the second applying member faces the internal cavity (Fig. 4A).
Perez does not teach a closure.
Byun teaches a closure (40).
Accordingly, it would have been obvious to one of ordinary skill in the art at the effective filing date of the claimed invention to have provided the device of Perez with a closure as taught by Byun for the purpose of safely storing the cosmetic (Byun col. 5, ll. 23-25).
Regarding claim 11, the combination of Perez and Byun teaches the cosmetic package of claim 10, wherein the dispensing aperture dispenses the cosmetic product that moves through the through-passage from the reservoir of the housing onto the inner surface of the first portion of the second applying member (Perez Fig. 4A).
Regarding claim 12, the combination of Perez and Byun teaches the cosmetic package of claim 11, wherein an inner curved surface of the first applying member and the inner curved surface of the first portion of the second applying member define a boundary of the internal cavity which receives the cosmetic product dispensed via the dispensing aperture (Perez Fig. 4B).
Regarding claim 13, the combination of Perez and Byun teaches the cosmetic package of claim 10, wherein the first portion, the second portion and the third portion of the second applying member of the applicator tip assembly are formed integrally (Perez Fig. 4B).
Regarding claim 14, the combination of Perez and Byun teaches the cosmetic package of claim 10, but does not teach that the first portion, the second portion and the third portion of the second applying member of the applicator tip assembly are formed as separate parts.
At the effective filing date of the claimed invention, it would have been an obvious matter of design choice to a person of ordinary skill in the art to modified the device of Perez such that the first portion, the second portion and the third portion of the second applying member of the applicator tip assembly are formed as separate parts because Applicant has not disclosed that the first, second, and third portions of the second applying member being formed as separate parts provides an advantage, is used for a particular purpose, or solves a stated problem. One of ordinary skill in the art, furthermore, would have expected Perez's applicator and the applicant's invention to perform equally well with either the single piece second applying member taught by Perez or the claimed multi-piece second applying member because both second applying members are equally capable of supporting and supplying cosmetic to the first applying member
Accordingly, it would have been obvious one of ordinary skill in the art at the effective filing date of the claimed invention to modify the device of Perez to obtain the invention as specified in claim 14 because such a modification would have been considered a mere design consideration which fails to patentably distinguish over the prior art of Perez.
Regarding claim 15, the combination of Perez and Byun teaches the cosmetic package of claim 10, wherein the cosmetic package further includes a valve (Byun, 60) inserted into a neck portion of the housing, a spring (Byun 80) housed in the valve, and a third portion (Byun 71) of the second applying member slideably received in the valve; wherein the valve comprises two orifices (Byun see Fig. 10) that are closed and opened by the lower portion of the second applying member (Byun, col. 6, line 60 to col. 7, line 7); wherein when the closure is attached to the housing, the spring is compressed and the third portion of the second applying member closes the two orifices of the valve (Byun, col. 6, ll. 43-54); wherein when the closure is unscrewed from the housing, the spring gets uncompressed and the third portion of the second applying member travel upwards and moves away from the two orifices of the valve allowing the cosmetic product to pass through the valve to the at least one dispensing aperture of the applicator tip assembly (Byun, col. 6, line 64 to col. 7, line 3).
Accordingly, it would have been obvious to one of ordinary skill in the art at the effective filing date of the claimed invention to have provided the device of Perez with the valve of Byun for the purpose of preventing leaks (Byun, col. 7, ll. 3-7).
Regarding claim 16, Perez teaches a cosmetic package comprising: a housing (1) having a reservoir for containing a cosmetic product; and an applicator tip assembly (3a) coupled to one end of the housing; wherein the applicator tip assembly comprises a first applying member (5a) and a second applying member (4a); wherein at least a portion of the first applying member and the second applying member define an active applicator member (51a and 41a); wherein the first applying member is a solid tip made of a heat transfer material (¶0039); wherein the active applicator member comprises an internal cavity (50a); wherein at least a portion of an inner surface of the first applying member and at least a portion of an inner surface of the second applying member define a boundary of the internal cavity (Fig. 4A); wherein the applicator tip assembly connects to the housing via the second applying member (at 4t); wherein, the first applying member couples to a distal end of the second applying member (at 45); wherein, the first applying member comprises a front surface (51a), a back surface (face opposite of 51a), a top surface (at top of 51a) and a pair of side surfaces (on sides of 51a); and wherein at least one dispensing aperture lies on an inner surface (56a) of the second applying member that faces the internal cavity to dispense the cosmetic product that travels from the housing through a through-passage formed in the second applying member.
Perez does not teach a closure, or that the cosmetic package further includes a valve inserted into a neck portion of the housing, a spring housed in the valve, and a lower portion of the second applying member slideably received in the valve; wherein the valve comprises two orifices that are closed and opened by the lower portion of the second applying member; wherein when the closure is attached to the housing, the spring is compressed and the lower portion of the second applying member closes the two orifices of the valve; wherein when the closure is unscrewed from the housing, the spring gets uncompressed and the lower portion of the second applying member travel upwards and moves away from the two orifices of the valve allowing the cosmetic product to pass through the valve to the at least one dispensing aperture of the applicator tip assembly.
Byun teaches a closure (40) and that the cosmetic package further includes a valve (60) inserted into a neck portion of the housing, a spring (80) housed in the valve, and a lower portion (71) of the second applying member slideably received in the valve; wherein the valve comprises two orifices (see Fig. 10) that are closed and opened by the lower portion of the second applying member (col. 6, line 60 to col. 7, line 7); wherein when the closure is attached to the housing, the spring is compressed and the third portion of the second applying member closes the two orifices of the valve (col. 6, ll. 43-54); wherein when the closure is unscrewed from the housing, the spring gets uncompressed and the third portion of the second applying member travel upwards and moves away from the two orifices of the valve allowing the cosmetic product to pass through the valve to the at least one dispensing aperture of the applicator tip assembly (col. 6, line 64 to col. 7, line 3)..
Accordingly, it would have been obvious to one of ordinary skill in the art at the effective filing date of the claimed invention to have provided the device of Perez with a closure and valve as taught by Byun for the purpose of safely storing the cosmetic and preventing leaks (Byun col. 7, ll. 3-7).
Regarding claim 17, the combination of Perez and Byun teaches the cosmetic package of claim 16, but does not teach that the first applying member forms at least 50% of a total area of the active applicator member.
At the effective filing date of the claimed invention, it would have been an obvious matter of design choice to a person of ordinary skill in the art to have changed the relative sizes of the first and second applying members such that the first applying member forms at least 50% of a total area of the active applicator member because Applicant has not disclosed that the relative size of the first applying member provides an advantage, is used for a particular purpose, or solves a stated problem. One of ordinary skill in the art, furthermore, would have expected Perez's applicator and the applicant's invention to perform equally well with either the first applying member taught by Perez or the claimed first applying member that forms at least 50% of a total area of the active applicator member because both applying members are equally capable of applying cosmetics to a person’s skin.
Accordingly, it would have been obvious one of ordinary skill in the art at the effective filing date of the claimed invention to modify the relative size of the first applying member to obtain the invention as specified in claim 17 because such a modification would have been considered a mere design consideration which fails to patentably distinguish over the prior art of Perez and Byun. Furthermore, it has been held that limitations relating to the size of an element are not sufficient to patentably distinguish over the prior art. See In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955).
Regarding claim 19, Perez teaches a cosmetic package comprising: a housing (1) having a reservoir for containing a cosmetic product; and an applicator tip assembly (3a) coupled to one end of the housing; wherein the applicator tip assembly comprises a first applying member (5a) and a second applying member (4a); wherein at least a portion of the first applying member and the second applying member define an active applicator member (41a and 51a); wherein the active applicator member defines an application area (41a and 51a) having an application surface intended to come into contact with a target such as skin; wherein the application surface of the active applicator member lies along a longitudinal axis (X) of the applicator tip assembly; wherein the first applying member includes a distal portion that converges towards a distal end of the applicator tip assembly (distal end of 5a); wherein the first applying member is made of a heat transfer material (¶0039); wherein at least a portion of at least one dispensing aperture (end of Caa) lies on either a front surface or a rear surface of the second applying member to dispense the cosmetic product that travels from the housing through a through-passage (Caa) formed in the second applying member; and wherein either the first applying member or the second applying member includes a cavity (50a) on any of the front surface, the rear surface or both surfaces, and the cavity is at least partially filled with the material of either the first applying member or the second applying member (second applying member, see Figs 4A-4B).
Perez does not teach a closure.
Byun teaches a closure (40).
Accordingly, it would have been obvious to one of ordinary skill in the art at the effective filing date of the claimed invention to have provided the device of Perez with a closure as taught by Byun for the purpose of safely storing the cosmetic (Byun col. 5, ll. 23-25).
Regarding claim 20, the combination of Perez and Byun teaches the cosmetic package of claim 19, wherein the application surface is at least one of convex, concave, or substantially planar (convex, see Fig. 4A).
Regarding claim 22, the combination of Perez and Byun teaches the cosmetic package of claim 19, wherein the cavity is completely filled with the material of either the first applying member or the second applying member (second applying member, Perez Fig. 4A).
Claim(s) 2 and 21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Perez and Byun as applied to claim 1 above, and further in view of Villareal (US 9498042).
Regarding claim 2, the combination of Perez and Byun teaches the cosmetic package of claim 1, wherein the heat transfer material is a metal (Perez ¶0039), but does not teach that the meal is selected from a group of material consisting of stainless steel, aluminum, titanium, brass, silver, gold, steel, carbon, carbon fiber, nickel, tin, copper, brass, and alloys thereof.
Villareal teaches a heat transfer material that is a metal selected from a group of material consisting of stainless steel, aluminum, titanium, brass, silver, gold, steel, carbon, carbon fiber, nickel, tin, copper, brass, and alloys thereof (col. 3, ll. 30-34).
Accordingly, it would have been obvious to one of ordinary skill in the art at the effective filing date of the claimed invention to have made the metal of Perez one of stainless steel, aluminum, titanium, brass, silver, gold, steel, nickel, tin, copper, brass, and alloys thereof as taught by Gieux, wherein doing so would merely be a matter of selecting a known material known to be suitable for use as a heat transfer material.
Regarding claim 21, the combination of Perez and Byun teaches the cosmetic package of claim 19, but does not teach that the application surface is textured.
Villareal teaches a textured application surface (col. 4, ll. 3-17).
Accordingly, it would have been obvious to one of ordinary skill in the art at the effective filing date of the claimed invention to have formed the device of Perez such that the application surface is textured as taught by Villareal for the purpose of providing a desirable feel to the user (Villareal, col. 4, ll. 4-8).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRADLEY S OLIVER whose telephone number is (571)270-3787. The examiner can normally be reached Monday-Friday, 7-3 ET.
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/BRADLEY S OLIVER/Examiner, Art Unit 3754
/DAVID P ANGWIN/Supervisory Patent Examiner, Art Unit 3754
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