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 .
Drawings
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they include the following reference character(s) not mentioned in the description:
19.2 in Figure 3
Corrected drawing sheets in compliance with 37 CFR 1.121(d), or amendment to the specification to add the reference character(s) in the description in compliance with 37 CFR 1.121(b) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Objections
Claims 1, 2, 6, 8, and 12 are objected to because of the following informalities:
Examiner suggests amending claim 1 p. 1 line 5 to “[[the]]a proximal end”.
Examiner suggests amending claim 1 p. 1 line 6 to “[[the]]a distal end”.
Examiner suggests amending claim 1 p. 1 lines 13-14 to “[[the]]a height”.
Examiner suggests amending claim 2 p. 1 line 21 to “[[the]]a length”.
Examiner suggests amending claim 6 p. 2 line 3 to “[[the]]a length”.
Examiner suggests amending claim 8 p. 1 line 11 to “same number of -the first and second”.
Examiner suggests amending claim 12 p. 2 line 27 to “[[the]]a middle of [[the]]a length”.
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 1-16 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 limitation "projecting from the core towards an opposite free end" in p. 1 lines 7-8. This limitation is unclear as it is unclear what end is being referred to by the term “an opposite free end”, as claim 1 p. 1 line 4 recites the limitation “a first end”, and line 5 recites the limitation “a second, opposite free end”. It is unclear how there is another opposite end, as in light of the Figures there appears to only be two ends of the applicator. It is also unclear if the “an opposite free end” is intended to refer to either the first end or the second end. Further, in light of the Figures, the protuberances appear to be projecting outwards from the core and not towards either the first or second end, though the protuberances do extend between the first and second ends. For purposes of explanation, Examiner will interpret claim 1 lines 7-8 as referring to the plurality of protuberances projecting from the core and extending between the opposite free ends and suggests Applicant amend to clarify.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 4 recites the broad recitation “between 0.05 mm and 0.2 mm”, and the claim also recites “preferably equal to 0.07 mm” which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims. For purposes of examination, Examiner will interpret the feature introduced by such narrower language, “preferably equal to 0.07 mm”, to be merely exemplary of the remainder of the claim and therefore not required, and suggests Applicant amend to clarify.
Claims 2-3 and 5-16 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, for their dependence on one or more rejected base and/or intervening claims.
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.
Claims 1, 3, 5, 8-12, and 14-16 are rejected under 35 U.S.C. 103 as being unpatentable over Limongi et al (U.S. Publication No. 20140091613 A1, hereinafter “Limongi”) in view of De Bardonneche (WO 2020120846 A1 and translated PDF, citations use large bolded paragraph numbers).
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In regard to claim 1, Limongi discloses an applicator for cosmetic product (Abstract, Figs. 1, 6, and 8), comprising:
- a core (core in annotated Fig. 6) extending along a longitudinal extension direction from a first end (1st end in annotated Fig. 6), referred to as the proximal end (annotated Fig. 6), towards a second, opposite free end (2nd end in annotated Fig. 6), referred to as the distal end (annotated Fig. 6), and
- a plurality of protuberances (624 and 614b in Fig. 6, para. 0071) projecting from the core towards an opposite free end (Fig. 6),
wherein said protuberances are arranged in a plurality of first longitudinal rows (1st rows in Fig. 6) regularly distributed around the core (Fig. 6, para. 0071-0072), and in a plurality of second longitudinal rows (2nd rows in annotated Fig. 6) regularly distributed around the core and alternating regularly with the first longitudinal rows (Fig. 6, para. 0071-0072).
Limongi does not disclose the first longitudinal rows having along the core a rectilinear increase in the height of the protuberances from the proximal end towards a distal portion and the second longitudinal rows having along the core a rectilinear decrease in a height of the protuberances from the proximal end towards the distal portion.
De Bardonneche teaches a similar apparatus (Figs. 1-4 and 6a-6c, Fig. 6c shows the applicator sectors shown in 6a and 6b assembled next to each other, para. 0038; para. 0029 and 0031 applicator sectors are assembled together to form the desired brush shape) wherein first longitudinal rows (3b in Fig. 6b) have along a core (4 in Fig. 6b) a rectilinear increase in a height of protuberances from the proximal end (proximal end in annotated Fig. 6b, para. 0038, substantially conical so height increase is constant) towards a distal portion (distal portion in annotated Fig. 6b) and second longitudinal rows (3a in Fig. 6a) having along the core a rectilinear decrease in the height of the protuberances from the proximal end (starting at right side of proximal end in annotated Fig. 6a) towards the distal portion (para. 0038, substantially conical so height decrease is constant).
The references and the claimed invention are considered to be analogous to the claimed invention because they are in the same field of cosmetic applicator brushes. It would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified the first and second longitudinal rows of Limongi by specifying the first longitudinal rows have along the core a rectilinear increase in the height of the protuberances, and the second longitudinal rows having along the core a rectilinear decrease in a height of the protuberances, from the proximal end towards the distal portion as taught by De Bardonneche in order to allow the brush to meet additional makeup requirements sought by users (De Bardonneche, para. 0041)
In regard to claim 3, Limongi in view of De Bardonneche discloses the invention of claim 1. Limongi does not disclose wherein the rectilinear increase of the first longitudinal row and the rectilinear decrease of the second longitudinal row are monotonic.
De Bardonneche teaches a similar apparatus (Figs. 1-4 and 6a-6c) wherein the rectilinear increase of the first longitudinal row (3b in Fig. 6b) and the rectilinear decrease of the second longitudinal row (3a in Fig. 6a) are monotonic (para. 0038, substantially conical so height increase and height decrease are constant).
The references and the claimed invention are considered to be analogous to the claimed invention because they are in the same field of cosmetic applicator brushes. It would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified the first and second longitudinal rows of Limongi in view of De Bardonneche by specifying the rectilinear increase of the first longitudinal row and the rectilinear decrease of the second longitudinal row are monotonic as taught by De Bardonneche in order to allow the brush to meet additional makeup requirements sought by users (De Bardonneche, para. 0041)
In regard to claim 5, Limongi in view of De Bardonneche discloses the invention of claim 1. Limongi does not disclose wherein the protuberances of the first and second longitudinal rows located in the distal portion have a rectilinear decrease in their height along the core and/or a constant height in the direction of the distal end.
De Bardonneche teaches a similar apparatus (Figs. 1-4 and 6a-6c) wherein the protuberances of the first and second longitudinal rows (3b and 3a in Fig. 6b) located in the distal portion (distal portion in annotated Figs. 6a and 6b) have a rectilinear decrease in their height along the core (para. 0038, substantially conical so height decrease is rectilinear) in the direction of the distal end (annotated Fig. 6a).
The references and the claimed invention are considered to be analogous to the claimed invention because they are in the same field of cosmetic applicator brushes. It would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified the protuberances of the first and second longitudinal rows of Limongi in view of De Bardonneche by specifying the protuberances of the first and second longitudinal rows located in the distal portion have a rectilinear decrease in their height along the core in the direction of the distal end as taught by De Bardonneche in order to allow the brush to meet additional makeup requirements sought by users (De Bardonneche, para. 0041)
In regard to claim 8, Limongi in view of De Bardonneche discloses the invention of claim 1. Limongi further discloses wherein the applicator comprises the same number of first and second longitudinal rows (Fig. 6, paras. 0071-0072).
In regard to claim 9, Limongi in view of De Bardonneche discloses the invention of claim 1. Limongi further discloses wherein the protuberances of the first longitudinal rows are offset by half a pitch relative to the protuberances of the second longitudinal rows (Fig. 6, paras. 0071-0072).
In regard to claim 10, Limongi in view of De Bardonneche discloses the invention of claim 1. Limongi does not disclose wherein the free end of the protuberances defines an envelope surface, the envelope surface having at least one hollow extending angularly over at least part of the periphery of the envelope.
De Bardonneche teaches a similar apparatus (Figs. 1-4 and 6a-6c) wherein the free end of the protuberances defines an envelope surface (envelope surface in annotated Fig. 6c, which shows sector 101 of 6a and 102 of 6b assembled next to each other, para. 0038), the envelope surface having at least one hollow (hollow in annotated Fig. 6c) extending angularly over at least part of the periphery of the envelope (Fig. 6c, para. 0038).
The references and the claimed invention are considered to be analogous to the claimed invention because they are in the same field of cosmetic applicator brushes. It would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified the protuberances of Limongi in view of De Bardonneche by specifying the free end of the protuberances defines an envelope surface, the envelope surface having at least one hollow extending angularly over at least part of the periphery of the envelope as taught by De Bardonneche in order to allow the brush to meet additional makeup requirements sought by users (De Bardonneche, para. 0041)
In regard to claim 11, Limongi in view of De Bardonneche discloses the invention of claim 10. Limongi does not disclose wherein the hollow has a bottom wherein the height of the protuberances of the first and second longitudinal rows is substantially similar.
De Bardonneche teaches a similar apparatus (Figs. 1-4 and 6a-6c) wherein the hollow (hollow in annotated Fig. 6c) has a bottom wherein the height of the protuberances of the first and second longitudinal rows is substantially similar (Fig. 6c, para. 0038).
The references and the claimed invention are considered to be analogous to the claimed invention because they are in the same field of cosmetic applicator brushes. It would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified the hollow of Limongi in view of De Bardonneche by specifying the hollow has a bottom wherein the height of the protuberances of the first and second longitudinal rows is substantially similar as taught by De Bardonneche in order to allow the brush to meet additional makeup requirements sought by users (De Bardonneche, para. 0041)
In regard to claim 12, Limongi in view of De Bardonneche discloses the invention of claim 10. Limongi does not disclose wherein the hollow is located in the middle of the length of the core.
De Bardonneche teaches a similar apparatus (Figs. 1-4 and 6a-6c) wherein the hollow (hollow in annotated Fig. 6c) is located in the middle of the length of the core (Fig. 6c, para. 0038).
The references and the claimed invention are considered to be analogous to the claimed invention because they are in the same field of cosmetic applicator brushes. It would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified the hollow of Limongi in view of De Bardonneche by specifying it is located in the middle of the length of the core as taught by De Bardonneche in order to allow the brush to meet additional makeup requirements sought by users (De Bardonneche, para. 0041)
In regard to claim 14, Limongi in view of De Bardonneche discloses the invention of claim 1. Limongi does not disclose wherein in a first portion of the applicator extending from the proximal end towards the hollow, the protuberances of the first longitudinal rows have a lower height than the protuberances of the second longitudinal rows and/or in a second portion of the applicator extending from the hollow towards the distal portion, the protuberances of the first longitudinal rows have a height lower than the protuberances of the second longitudinal rows.
De Bardonneche teaches a similar apparatus (Figs. 1-4 and 6a-6c) wherein in a first portion of the applicator (1st portion in annotated Fig. 6c) extending from the proximal end towards the hollow (Fig. 6c), the protuberances of the first longitudinal rows (protuberances of 3b in annotated Fig. 6b) have a lower height than the protuberances of the second longitudinal rows (protuberances of 3a in annotated Fig. 6a).
The references and the claimed invention are considered to be analogous to the claimed invention because they are in the same field of cosmetic applicator brushes. It would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified the protuberances of the first and second longitudinal rows of Limongi in view of De Bardonneche by specifying that in a first portion of the applicator extending from the proximal end towards the hollow, the protuberances of the first longitudinal rows have a lower height than the protuberances of the second longitudinal rows as taught by De Bardonneche in order to allow the brush to meet additional makeup requirements sought by users (De Bardonneche, para. 0041)
In regard to claim 15, Limongi in view of De Bardonneche discloses the invention of claim 1. Limongi further discloses wherein the protuberances of the first longitudinal rows (624 in Fig. 6) are of a first type and the protuberances of the second longitudinal rows (614b in Fig. 6) are of a second type (para. 0071), the first type and the second type being different in nature of material and color (para. 0071 and 0080).
In regard to claim 16, Limongi in view of De Bardonneche discloses the invention of claim 1. Limongi further discloses an applicator assembly for cosmetic product (Fig. 8, para. 0083), comprising:
- a container (102 in Fig. 8) comprising a body forming a reservoir capable of containing the cosmetic product (para. 0083), and
- an applicator of the cosmetic product according to claim 1 (see above rejection of claim 1) capable of being attached to the container (para. 0083), so that the applicator is housed inside the reservoir (Fig. 8, para. 0083).
Claims 2 and 6 are rejected under 35 U.S.C. 103 as being unpatentable over Limongi in view of De Bardonneche and Schreiber et al (U.S. Publication No. 2015/0272300 A1, hereinafter “Schreiber”).
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In regard to claim 2, Limongi in view of De Bardonneche discloses the invention of claim 1. Limongi does not disclose wherein the rectilinear increase of the first longitudinal row and/or the rectilinear decrease of the second longitudinal row extend over 3/4 to 9/10ths of the length of the core.
Schreiber teaches a similar apparatus (Fig. 1, Abstract) wherein the increase and decrease of the longitudinal rows extend over 3/4 to 9/10ths of the length of the core (core in annotated Fig. 1, paras. 0053 and 0084, chamfer 20 is 5 mm and core is 27 mm, therefore the length not taken up by the chamfer is 22 mm).
The references and the claimed invention are considered to be analogous to the claimed invention because they are in the same field of cosmetic applicator brushes. It would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified the rectilinear increase of the first longitudinal row and the rectilinear decrease of the second longitudinal row of Limongi in view of De Bardonneche by specifying that the increase and decrease of the longitudinal rows extend over 3/4 to 9/10ths of the length of the core as taught by Schreiber in order to facilitate the return of the brush into a receptacle (Schreiber para. 0084).
In regard to claim 6, Limongi in view of De Bardonneche discloses the invention of claim 1. Limongi does not disclose wherein the distal portion extends over a length of between 1/4 and 1/10th of the length of the core.
Schreiber teaches a similar apparatus (Fig. 1, Abstract) wherein a distal portion (20 in Fig. 1, para. 0084) extends over a length of between 1/4 and 1/10th of the length of a core (paras. 0053 and 0084, chamfer 20 is 5 mm and core is 27 mm).
The references and the claimed invention are considered to be analogous to the claimed invention because they are in the same field of cosmetic applicator brushes. It would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified the distal portion of Limongi in view of De Bardonneche by specifying that it extends over a length of between 1/4 and 1/10th of the length of the core as taught by Schreiber in order to facilitate the return of the brush into a receptacle (Schreiber para. 0084).
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Limongi in view of De Bardonneche and Gueret (U.S. Publication No. 2010/0059080 A1).
In regard to claim 4, Limongi in view of De Bardonneche discloses the invention of claim 1. Limongi does not disclose wherein the increase and/or the decrease in the height between each successive protuberance of the same first or second longitudinal row is between 0.05 mm and 0.2 mm, preferably equal to 0.07 mm.
Gueret teaches a similar apparatus (Figs. 1-9E) wherein the increase and/or the decrease in the height between each successive protuberance of a longitudinal row is 0.08 mm (para. 0023).
The references and the claimed invention are considered to be analogous to the claimed invention because they are in the same field of cosmetic applicator brushes. It would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified the protuberances of Limongi in view of De Bardonneche by specifying the increase and/or the decrease in the height between each successive protuberance of the same first or second longitudinal row is 0.08 mm as taught by Gueret in order to cause stiffness to vary in a progressive manner along the brush as a function of the desired makeup effect (Gueret para. 0017).
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Limongi in view of De Bardonneche and GMBH (DE 202013009431 U1 and translated PDF).
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In regard to claim 7, Limongi in view of De Bardonneche discloses the invention of claim 1. Limongi does not disclose wherein the core has a diameter decreasing towards the distal end in the distal portion and/or the core has a constant diameter over a whole length extending from the proximal end towards the distal portion.
GMBH teaches an apparatus (Figs. 1-7, Abstract) wherein the core has a constant diameter (para. 0085) over a whole length extending from a proximal end towards a distal portion (para. 0085, length from proximal toward distal portion in annotated Fig. 1).
The references and the claimed invention are considered to be analogous to the claimed invention because they are in the same field of cosmetic applicator brushes. It would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified the core of Limongi in view of De Bardonneche by specifying the core has a constant diameter over a whole length extending from the proximal end towards the distal portion as taught by GMBH in order to allow for carrying of the main bristle arrangement (GMBH para. 0079) while being able to be preferably used for applying mascara (GMBH para. 0135).
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Limongi in view of De Bardonneche and Gueret (U.S. Publication No. 2008/0023020 A1, hereinafter Gueret 020).
In regard to claim 13, Limongi in view of De Bardonneche discloses the invention of claim 1. Limongi does not disclose wherein the protuberances of the first and second longitudinal rows are arranged in first and second radial rows, the first radial rows of the protuberances of the first longitudinal rows alternating regularly with the second radial rows of the protuberances of the second longitudinal rows.
Gueret 020 teaches a similar apparatus (Figs. 1-6, Abstract) wherein the protuberances (18 in Fig. 2) of the first (20 in Fig. 2) and second longitudinal rows (30 in Fig. 2) are arranged in first and second radial rows (Figs. 3, 4 and 6, para. 0177), the first radial rows of the protuberances of the first longitudinal rows alternating regularly with the second radial rows of the protuberances of the second longitudinal rows (Figs. 3, 4 and 6, para. 0169, 0171, 0177).
The references and the claimed invention are considered to be analogous to the claimed invention because they are in the same field of cosmetic applicator brushes. It would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified the protuberances of the first and second longitudinal rows of Limongi in view of De Bardonneche by specifying they are arranged in first and second radial rows, and that the first radial rows of the protuberances of the first longitudinal rows alternate regularly with the second radial rows of the protuberances of the second longitudinal rows as taught by Gueret 020 in order to allow the protuberances to penetrate into the eyelashes and improve application of makeup or make application easier (Gueret 020 para. 0174).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to COURTNEY N HUYNH whose telephone number is (571)272-7219. The examiner can normally be reached M-F 7:30AM-5:00PM (EST) flex, 2nd Friday off.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Eric Rosen can be reached at (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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/COURTNEY N HUYNH/Examiner, Art Unit 3772
/ERIC J ROSEN/Supervisory Patent Examiner, Art Unit 3772