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 .
Election/Restrictions
Applicant’s election without traverse of claims 1, 4, 6-7, and 10-13 in the reply filed on 4/10/2026 is acknowledged.
Claims 2, 5, 8-9, and 14-27 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to nonelected species, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 4/10/2026.
Claim Objections
Claim 1 is objected to because of the following informalities:
Claim 1 recites “reunited, ,” in line 6 wherein the extra comma should be removed.
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.
Claims 1, 4, 6-7, and 10-13 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 “each of the plurality of rods having no outwardly protruding bristles or projections” in line 9. It is unclear as to what is considered a projection. It is unclear if interlinking elements would be considered projections or if the projection would be extending outwards and would not interlink an element. For examination purposes, the claim limitation will focus on the rods having no outwardly protruding bristles.
Claims 4, 6-7, and 10-13 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph for being dependent off of claim 1.
Claim 6 recites “a structure forming the applicator element” in lines 1-2 wherein it is unclear if this relates to any structure of the applicator element or a structure separate from the plurality of rods. For examination purposes, it will be interpreted as being any structure that would make up the applicator element which can include the plurality of rods fully or in part.
Claim 7 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph for being dependent off of claim 6.
Claim 10 recites “the applicator is a flat applicator consisting of more than two structural layers arranged substantially parallel” in lines 1-3 wherein it is unclear if the structural layers would include the plurality of rods or not. For examination purposes, it will be interpreted as including the rods of the applicators.
Claims 11-13 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph for being dependent off of claim 10.
Claim 13 recites “each layer of the more than two structural layers consists of rods that border the outside of the layer” in lines 1-3 wherein it is unclear if the rods are the same as the rods claimed in claim 1 or if they are a new rod structure. For examination purposes, it will be interpreted as the rods being the same as claimed in claim 1.
Claim Rejections - 35 USC § 102
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1 and 6-7 is/are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Crapet (US 20220369791 A1).
Re. Claim 1, Crapet discloses an applicator for applying a pasty or flowable substance (Abstract; Fig. 1-4), the applicator comprising:
an applicator element (1) comprising a plurality of rods that are joined at a proximal end of the applicator element (Annotated Figure A of Fig. 1),
the plurality of rods extending from the proximal end of the applicator element separately to a distal end of the applicator element, where they are reunited (Annotated Figure A of Fig. 1), and
each of the plurality of rods having no outwardly protruding bristles (Fig. 1-4).
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Annotated Figure A
Re. Claim 6, Crapet discloses the applicator according to claim 1, wherein a structure forming the applicator element consists of flat and deformable surface sections with openings that form a pouch at the distal end of the applicator element, in which substance can be stored (Fig. 1-4 wherein the plurality of rods comprises a flat surface as it has no protrusion or bristles and are found to be deformable. The rods would allow to make a pouch by allowing product to enter through openings 7).
Re. Claim 7, Crapet discloses the applicator according to claim 6, wherein the structure forming the applicator element forms a basket or a pouch on an inside of the applicator element at the distal end of the applicator element (Fig. 1-2 wherein it forms a basket when it reunites to the distal end), in which substance can be stored when the applicator element is held with the distal end of the applicator element facing vertically downwards (Fig. 1-2; Par. 12).
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, 10 -11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Limongi (US D638987 S).
Re. Claim 1, Limongi discloses an applicator for applying a pasty or flowable substance (Fig. 1-7 and Title discloses it is a makeup applicator and as such is fully capable of applying a pasty or flowable substance), the applicator comprising:
an applicator element comprising a plurality of rods that are joined at a proximal end of the applicator element (Annotated Figure C of Fig. 3),
the plurality of rods extending from the proximal end of the applicator element separately to a distal end of the applicator element, where they are reunited (Annotated Figure C of Fig. 3), and
each of the plurality of rods having no outwardly protruding bristles or projections (It is found that Limongi’s applicator comprises a textured surface. However, the surface is not an outwardly protruding bristle or projection. It is found the feature is not a necessity for the applicator to function as desired. As such, it would have been obvious to someone skilled in the art to have the applicator element to not have a texture surface as it is not a desired or required structure to function as a makeup applicator. See MPEP 2144.04.II.A.).
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Annotated Figure C
Re. Claim 10, Limongi discloses the applicator according to claim 1, wherein the applicator is a flat applicator consisting of more than two structural layers arranged substantially parallel and spaced apart from each other, each of the structural layers having openings that allow passage of substance (Fig. 1-7; Annotated Figure D of Fig. 6 where it is found to be substantially flat applicator similar to applicant’s applicator and there is an opening on either side of the layers).
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Annotated Figure D
Re. Claim 11, Limongi discloses the applicator according to claim 10, wherein immediately adjacent layers of the more than two structural layers are spaced so closely that they hold substance therebetween due to capillary effect (Annotated Figure D of Fig. 6 where it is immediately adjacent layers and as such are fully capable of holding substance therebetween due to capillary effect).
Claim(s) 4, 6-7 and 12-13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Limongi (US D638987 S) in view of Gueret (WO 2013153528 A1, see machine translated version).
Re. Claim 4, Limongi discloses the applicator according to claim 1, but is silent to each of the plurality of rods has a substantially round cross-section over its entire length or over a majority of its length.
Gueret discloses a cosmetic applicator in the same field of endeavor and further discloses the plurality of rods (16/17) comprising varying cross sections (Fig. 5a-5b) including a round cross section (Fig. 5a; Par. 99).
It would have been obvious to someone skilled in the art before the effective filing date to have cross section of the plurality of rods of Limongi to be substantially round cross-section over its entire length or a majority of its length as taught by Gueret as it is a design choice to the shape of the particular rods where the function is found to not be affected.
Re. Claim 6, Limongi discloses the applicator according to claim 1, wherein a structure forming the applicator element consists of flat (Fig. 1-7 is found to be substantially flat) surface sections with openings that form a pouch at the distal end of the applicator element, in which substance can be stored (Fig. 1-7; Annotated Figure E of Fig. 6 shows the surface sections with an opening that would form a pouch at a distal end so substance is fully capable of being stored. The other openings can be seen in other views of the particular applicator).
However, Limongi is silent to the structure being deformable surface sections.
Gueret discloses a cosmetic applicator in the same field of endeavor and further discloses the cosmetic applicator is deformable to aid in containing a substance in the cosmetic applicator and applying product to the user (Par. 14-15).
It would have been obvious to someone skilled in the art before the effective filing date to have the cosmetic applicator of Limongi to be deformable as taught by Gueret to aid in containing a substance within the cosmetic applicator and applying product to the user.
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Annotated Figure E
Re. Claim 7, Limongi and Gueret discloses the applicator according to claim 6, wherein Limongi discloses the structure forming the applicator element forms a basket or a pouch on an inside of the applicator element at the distal end of the applicator element, in which substance can be stored when the applicator element is held with the distal end of the applicator element facing vertically downwards (Fig. 1-7 where it shows a pouch is formed on the inside of the applicator element at the distal end of the applicator element and is fully capable for the substance to be stored when the applicator element is held with the distal end of the applicator element facing vertically downwards.
Re. Claim 12, Limongi discloses the applicator according to claim 10, but are silent to the applicator element tapers in a triangular shape from the proximal end of the applicator element to the distal end of the applicator element, with the more than two structural layers being connected by a common crossbar at a tip of the triangular shape. Limongi does disclose the two structural layers being connected by a common crossbar at the tip (Annotated Figure F of Fig. 6).
Gueret discloses a cosmetic applicator in the same field of endeavor and further discloses the shape of the applicator element to be varying shapes including a triangle (Par. 21) and comprises the end part to be tapered (Par. 22).
It would have been obvious to someone skilled in the art before the effective filing date to have the cosmetic applicator of Limongi to be triangular shape where it tapers from the proximal end to the distal end as taught by Gueret as it is ad esign choice to the shape of the cosmetic applicator.
The combination as such would provide teaching of the applicator element tapers in a triangular shape from the proximal end of the applicator element to the distal end of the applicator element, with the more than two structural layers being connected by a common crossbar at a tip of the triangular shape.
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Annotated Figure F
Re. Claim 13, Limongi discloses the applicator according to claim 10, wherein each layer of the more than two structural layers consists of rods that border the outside of the layer, forming a free space therebetween, which is partially filled by a rod structure, such that the layer has a number of openings in the form of through holes that are small enough to prevent the substance from passing through them (Annotated Figure C of Fig. 3 and Annotated Figure D of Fig. 6 wherein the layers are fully capable to have holes small enough to prevent the substance from passing through them).
However, Limongi is silent to the structural layer to have holes small enough to prevent the substance from passing through them unless the layers undergoes external deformation.
Gueret discloses a cosmetic applicator in the same field of endeavor and further discloses the cosmetic applicator is deformable to aid in containing a substance in the cosmetic applicator and applying product to the user (Par. 14-15).
It would have been obvious to someone skilled in the art before the effective filing date to have the cosmetic applicator of Limongi to be deformable as taught by Gueret to aid in containing a substance within the cosmetic applicator and applying product to the user.
The combination as such would provide teaching of the structural layer to have holes small enough to prevent the substance from passing through them unless the layers undergoes external deformation.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant’s disclosure. See Form PTO-892.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to HOLLY T TO whose telephone number is (571)272-0719. The examiner can normally be reached Monday - Thursday 6:30 - 4:30.
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/HOLLY T. TO/Examiner, Art Unit 3772
/RACHEL R STEITZ/Primary Examiner, Art Unit 3772
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