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 § 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 4 is 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 4 requires each of the prongs have a base end portion in the axis direction where the base end portion has a thickness along the radially inward direction which increase towards the distal opening. It is unclear what is meant by this language. It is unclear where the base end portion is in relation to other structures and which direction is the thickness direction.
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.
Claims 1-5 and 7 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Nakashima (US 20130133678).
Regarding claim 1, Nakashima discloses a cosmetic container comprising: an applicator (14) that includes a brush (Refer to paragraph 0150); a sleeve (12) having a tubular shape including a proximal opening (opening at bottom end near 24) at one end side of the tubular shape and a distal opening (12b) at an opposing end side of the tubular shape, the proximal opening and the distal opening being spaced apart from each other along a longitudinal axis direction of the sleeve, wherein the applicator extends through the distal opening in the longitudinal axis direction, wherein the sleeve is configured to bundle the applicator; and a main body (16) that is engaged with the sleeve, wherein the proximal opening is closer to the main body than the distal opening is to the main body, the sleeve has a plurality of prongs (10) disposed on a peripheral edge that defines the distal opening, the prongs each protrude in a radially inward direction of the opening, and extend along an axis direction of the sleeve, and one or more gaps (spaces between prongs 10 which are opposite with one another), through which at least a portion of the applicator is movable, are provided ahead of the prongs along the radially inward direction (Refer to Figures 1a-45i).
Regarding claim 2, Nakashima discloses the prongs include a comb tooth (one or more of 10) protruding along the axis direction in the opening (Refer to Figures 1a-45i).
Regarding claim 3, Nakashima discloses the applicator has a tip end projecting beyond tip ends of the prongs (Refer to paragraph 0147).
Regarding claim 4, Nakashima discloses each of the prongs (10) has a base end portion (distal end/tip portion of 10) in the axis direction, the base end portion having a thickness along the radially inward direction, which increases toward the distal opening (Refer to Figures 1a-45i).
Regarding claim 5, Nakashima discloses the sleeve has a first edge (edge with one row of 10) defining the distal opening, and a second edge (other edge with one row of 10, opposite first edge) defining the distal opening and located so as to interpose an axis of the sleeve with the first edge, the prongs (10) include a plurality of first prongs (prongs on the first edge) disposed on the first edge and a plurality of second prongs (prongs on the second edge) disposed on the second edge, the first prongs and the second prongs oppose each other, respectively, and the gaps (spaces between prongs which are opposite with one another) are provided between the first prongs and the second prongs, respectively.
Regarding claim 7, Nakashima discloses the bristles of the brush of the applicator are located in a space formed between two of the prongs arranged side by side in a direction along which the peripheral edge of the distal opening extends (Refer to Figures 1a-45i).
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 6 is rejected under 35 U.S.C. 103 as being unpatentable over Nakashima and Sanchez et al. (US 9700118).
Regarding claim 6, Nakashima discloses the cosmetic container of claim 1 above; however, Nakashima does not disclose the prongs each extend from the opening of the sleeve to a side opposite to the opening beyond a center in the axis direction of the sleeve. Sanchez et al. disclose a similar applicator where a plurality of prongs (33) a first row of prongs is provided on a first side/edge of the opening and a second row of prongs is disposed on an opposing second side/edge of the opening (Refer to Figures 1-). In the embodiment of Figure 32, the prongs extend from the opening inwardly beyond a central axis extending therethrough toward the opposite side. Thus, Sanchez et al. demonstrate the claimed prong arrangement is well-known and conventional. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the cosmetic container of Nakashima such that the prongs each extend from the opening of the sleeve to a side opposite to the opening beyond a center in the axis direction of the sleeve as taught by Sanchez et al. thereby providing long prongs providing greater contact area when combing.
Response to Arguments
Applicant’s arguments with respect to the rejection of claim(s) 1-6 under Funatsu et al. 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
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TATIANA L NOBREGA whose telephone number is (571)270-7228. The examiner can normally be reached M-F 8am-4pm.
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/TATIANA L NOBREGA/Primary Examiner, Art Unit 3799
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