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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 09/12/2024 is being considered by the examiner.
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(s) 5 is/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 5 recites “wherein the main axis (Y) of the core does not cross the longitudinal axis of the sleeve”; it is unclear which structures are being claimed. As best understood by the Examiner, the recited axes are imaginary geometrical features which could be used to describe the position and direction of the structures of the claimed apparatus. The axes being imaginary lines could have an infinite length. Additionally, as shown in Figure 3 of the Drawings, said axes do cross each other. A review of the Specification appears to indicate that “the majority of the core 5 is at a distance from the longitudinal axis X” (page 7, lines 31-32). For the purpose of examination this interpretation was given (i.e. the claim requires the majority of the core is at a distance from the longitudinal axis X).
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.
Claim(s) 1 and 16 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Higgins (US 20130104924 A1).
Regarding claim 1, Higgins discloses An applicator for cosmetic product (Figure 2B, Abstract), comprising:- a sleeve (sleeve where snap fit 114 is located) extending along a longitudinal axis (X),- a core (111) extending along a main axis (Y) from a first proximal end towards a second opposite and free distal end (Figure 2b, [0019]), the main axis (Y) being entirely contained in a plane and comprising a single concave curvature towards a first side (Figure 2b, [0020]), and- a plurality of protrusions (120) extending projectingly from the core towards a free end ([0021]) defining an envelope surface, wherein the envelope surface has a cross-section along the main axis of continuous oblong shape over the entire length of the core and of decreasing surface area from the proximal end towards the distal end (Annotated Figure 2b below).
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Regarding claim 16, Higgins discloses an applicator assembly (Figure 4) for cosmetic product, comprising:- a container comprising a body forming a reservoir (180) for containing the cosmetic product, and- an applicator (110) of the cosmetic product according to claim 1 adapted to be attached to the container, so that the applicator is housed inside the reservoir (Figure 4 and [0040]).
Claim(s) 1-6, 8-9, 11-13 and 15-16 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Gueret (US 20130315647 A1).
Gueret discloses several embodiments of an applicator for applying a cosmetic composition to the eyelashes or the eyebrows (Abstract), wherein the embodiment’s characteristics may be combined together ([0221]).
Regarding claim 1, Gueret discloses an applicator for cosmetic product (e.g. Fig. 15a-b and Abstract), comprising:- a sleeve (7) extending along a longitudinal axis (X),- a core (10) extending along a main axis (Y) from a first proximal end towards a second opposite and free distal end, the main axis (Y) being entirely contained in a plane and comprising a single concave curvature towards a first side (Figures 15a-b), and- a plurality of protrusions (18) extending projectingly from the core towards a free end defining an envelope surface (E), wherein the envelope surface has a cross-section along the main axis of continuous oblong shape over the entire length of the core ([0028]) and of decreasing surface area from the proximal end towards the distal end ([0030]).
Regarding claim 2, Gueret discloses wherein the protrusions arranged on the first side and/or on an opposite second side have a greater average height than the protrusions located on third and/or fourth sides opposite each other and adjacent to the first and second sides (Figure 4, [0147] and see Annotated Figure 4, below).
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Regarding claim 3, Gueret discloses wherein the core comprises a first rectilinear proximal portion forming an angle (a) with respect to the sleeve (7) ([0187] and see also in Figure 15, how the intersection of the axis x of the core is not parallel to the axis Y of the sleeve), referred to as the first rectilinear portion, and a second adjacent portion having the concave curvature, referred to as the second curved portion (Annotated Figure 15b below).
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Regarding claim 4, Gueret discloses wherein the core has a decreasing surface cross- sectional area from the proximal end to the distal end ([0072]).
Regarding claim 5, Gueret discloses wherein the main axis (Y) of the core does not cross the longitudinal axis of the sleeve (the majority of the core is at a distance from the longitudinal axis Y, see Figure 15b).
Regarding claim 6, Gueret discloses wherein at least some of the protrusions have a decrease in height along the core from the proximal end towards the distal end ([0156]).
Regarding claim 8, Gueret discloses wherein the second curved portion comprises a single vertex located on a section extending between the middle of the core and the distal end (Annotated Figure 15b above).
Regarding claim 9, Gueret discloses wherein the first rectilinear portion extends from the proximal end of the core towards the middle of the core (Annotated Figure 15b above).
Regarding claim 11, Gueret discloses wherein the core further comprises a third rectilinear distal portion adjacent to the second curved portion and forming an angle (p) with respect to the sleeve, referred to as the third rectilinear portion (Annotated Figure 15b).
Regarding claim 12, Gueret discloses wherein the protrusions are arranged in the form of longitudinal rows, the rows being substantially parallel to the main axis (Y) ([0060]).
Regarding claim 13, Gueret discloses wherein the average height of the protrusions of the longitudinal rows of the first side and of the second side is greater than the average height of the protrusions of the longitudinal rows of the third side and of the fourth side (Figure 4, [0147]).
Regarding claim 15, Gueret discloses wherein the protrusions extend in a direction at an angle with respect to a direction perpendicular to the surface of the core ([0041]).
Regarding claim 16, Gueret discloses an applicator assembly (1) for cosmetic product, comprising:- a container comprising a body forming a reservoir (3) for containing the cosmetic product, and- an applicator (2) of the cosmetic product according to claim 1 adapted to be attached to the container, so that the applicator is housed inside the reservoir (Figure 1 and [0129]-[0130]).
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 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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C.
103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or
nonobviousness.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gueret as applied to claim 6 above, and further in view of Crapet (US 20190328123 A1).
Regarding claim 7, Gueret fails to disclose “wherein the decrease of the protrusions is rectilinear”.
Crapet discloses an applicator (10) for a cosmetic product comprising a core (11) extending along a main longitudinal extension direction (X), referred to as main direction, and a plurality of protrusions (12) projecting from the core (11) (Abstract); wherein at least some of the protrusions have a decrease in height along the core from the proximal end towards the distal end and wherein the decrease of the protrusions is rectilinear (as shown in Figure 1). Therefore, it would have been obvious to one of ordinary skills in the art, before the effective filing date of the application, to modify Gueret’s protrusions to make them having a decrease in height along the core from the proximal end towards the distal end and wherein the decrease of the protrusions is rectilinear, as taught by Crapet, since such modification would facilitate engagement with the container of the applicator (Gueret: [0156]).
Claim(s) 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gueret as applied to claim 3 above, and further in view of Gueret (US 7866327 B1), hereafter Gueret’27.
Regarding claim 10, Gueret fails to disclose “wherein the angle (a) between the sleeve and the first rectilinear portion is between 5 and 300”.
Gueret’27 discloses an applicator comprising a receptacle for containing the substance to be applied. The applicator element forms an angle with the rod (Figure 1 and Abstract); wherein the angle (a) between the rod and the first rectilinear portion (e.g. first part of the applicator) is between 5 and 30° (see Figure 5 and col 5, line 23). Therefore, it would have been obvious to one of ordinary skills in the art, before the effective filing date of the application, to modify Gueret’s angle between the sleeve and the first rectilinear portion to make it of for example 25°, as taught by Gueret’27, such modification would be advantageous since the applicator element can be wiped so that one side carries more makeup than the other (col 2, lines 9-18).
Claim(s) 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gueret.
Regarding claim 14, Gueret fails to specifically disclose “wherein the number of longitudinal rows on the first and second sides is greater than the number of longitudinal rows on the third and fourth side”, since it discloses the opposite configuration as shown in Annotated Figure 4 above. However, it would have been obvious to one of ordinary skills in the art, before the effective filing date of the application, to modify Gueret’s applicator in order to make it comprising the number of longitudinal rows on the first and second sides is greater than the number of longitudinal rows on the third and fourth side, since such modification would merely require a rearrangement of parts has no patentable significance being an obvious matter of design choice (MPEP 2144).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Uresti (US 20150110540 A1).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LUIS MIGUEL RUIZ MARTIN whose telephone number is (571)270-0839. The examiner can normally be reached M-F 8 Am - 5 PM (EST).
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Eric Rosen can be reached on (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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/LUIS RUIZ MARTIN/
Examiner, Art Unit 3772
/ERIC J ROSEN/Supervisory Patent Examiner, Art Unit 3772
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