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 Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
Claim Rejections - 35 USC § 102
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 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) 1-10 and 12-16 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Niemeyer (US 11793294).
Regarding claim 1, Niemeyer discloses an application device for applying a cosmetic product, said application device having a main longitudinal axis and comprising: a container (3) forming a reservoir of cosmetic product and extending axially from an open lower bottom towards an upper dispensing opening for dispensing the cosmetic product, a support (7) movable axially inside the container and configured to be linked to the cosmetic product, a drive screw (14) whose a rotational movement causes an axial displacement of the movable support inside the container, an actuating means (4) accessible to the user to cause the rotational movement of the drive screw and housed in the open lower bottom of the container, and a connecting skirt (17) extending from the actuating means towards a lower end of the drive screw, the connecting skirt being funnel-shaped towards the drive screw (at 22), wherein the actuating means and the connecting skirt form a duct (when cap 21 is not present) for the passage of the fluid cosmetic product from the outside towards the inside of the container when filling the container with cosmetic product (note that 17 has apertures to allow flow of material into the container; see Fig. 6).
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Regarding claim 2, Niemeyer discloses the application device according to claim 1, wherein the connecting skirt and the drive screw are linked by at least one material bridge (22), the at least one material bridge being inclined towards the upper dispensing opening of the container (Fig. 3).
Regarding claim 3, Niemeyer discloses the application device according to claim 1, wherein the actuating means, the connecting skirt and the drive screw are integral and formed in one-part (Fig. 3).
Regarding claim 4, Niemeyer discloses the application device according to claim 1, wherein an upper edge of the connecting skirt comprises at least one indentation (top portion of sleeve 17 that is missing, see Fig. 7) increasing the cross-sectional area through which the fluid cosmetic product passes when filling the container with cosmetic product.
Regarding claim 5, Niemeyer discloses the application device according to claim 4, wherein the at least one material bridge is linked to the upper edge of the connecting skirt in an area without indentations (Fig. 7).
Regarding claim 6, Niemeyer discloses the application device according to claim 5, wherein the connecting skirt and the drive screw are linked by at least two material bridges, the at least two material bridges are linked to the upper edge of the connecting skirt between two adjacent indentations (Fig. 7).
Regarding claim 7, Niemeyer discloses the application device according to claim 1, wherein the actuating means is blocked axially in the open lower bottom of the container and free to rotate relative thereto (due to the engagement of elements 28 and 32).
Regarding claim 8, Niemeyer discloses the application device according to claim 1, wherein an external end of the drive screw is ogive-shaped (Fig. 3).
Regarding claim 9, Niemeyer discloses the application device according to claim 1, wherein the movable support comprises a transverse wall (11) equipped with openings (see Fig. 6) for the passage of the fluid cosmetic product when filling the container with cosmetic product.
Regarding claim 10, Niemeyer disclose the application device according to claim 1, wherein the movable support comprises a central skirt (26) through which the drive screw passes, an internal wall of the central skirt of the movable support comprising a thread (col. 9, ll. 33-35) cooperating with a thread of the drive screw so that the rotational movement of the drive screw causes the axial displacement of the movable support inside the container (col. 9, ll. 27-51).
Regarding claim 12, Niemeyer discloses the application device as claimed in claim 9, wherein the transverse wall of the movable support is a grid (Fig. 6).
Regarding claim 13, Niemeyer discloses the application device according to claim 12, wherein the container is cylindrical and/or the grid is bean-shaped (the container is a cylinder with an oval cross-section, see Fig. 6).
Regarding claim 14, Niemeyer discloses the application device according to claim 1, wherein the actuating means has a circular cross-section and/or the container has an oblong cross-section (the container has an oblong cross-section, see Fig. 6).
Regarding claim 15, Niemeyer discloses the application device according to claim 1, wherein the movable support has a cross-sectional shape similar to the cross-section of the container (Fig. 6).
Regarding claim 16, Niemeyer discloses the application device according to claim 1, wherein the actuating means is closed by a cap (21).
Regarding claim 18, Niemeyer discloses the application device according to claim 1, wherein the application device is a stick of cosmetic product (2).
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) 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Niemeyer as applied to claim 10 above, and further in view of Favre (US 5437513).
Regarding claim 11, Niemeyer teaches the application device according to claim 10, wherein an external wall of the central skirt of the movable support is in an extension of an ogive shape of the lower end of the drive screw, when the movable support is in abutment with the ogive shape of the lower end of the drive screw (Fig. 3 shows the continues from the ogive shape of the bottom of the drive screw).
Niemeyer does not teach that the external wall of the central skirt of the moveable support has a chamfer.
Favre teaches a moveable support (63) with a chamfer (see annotated portion of Fig. 1 below) formed on a central skirt thereof.
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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 external wall of the central skirt of the moveable support with a chamfer as taught by Favre for the purpose of improving the connection between the cosmetic and the support (the chamfer or flared portion above holds the stick fast to the support; Favre, col. 5, ll. 8-13).
Claim(s) 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Niemeyer as applied to claim 1 above, and further in view of Crowley (US 4605330).
Regarding claim 17, Niemeyer teaches the application device according to claim 1, but does not teach that the device is made from a single material, the single material being polypropylene.
Crowley teaches an application device made from a single material, the single material being polypropylene (col. 3, ll. 2-9).
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 device of Niemeyer from polypropylene, wherein doing so would merely have been a matter of selecting a known material known to be suitable for use as an application device.
Response to Arguments
Applicant's arguments filed 09 February 2026 have been fully considered but they are not persuasive.
Applicant argues that Niemeyer does not disclose actuating means that is “housed in the open lower bottom of the container.
In response, it is noted that Niemeyer discloses that the actuating means 4 is received in the opening 18 at the bottom of the container. See in particular Fig. 2.
Applicant argues that Niemeyer does not teach that the connecting skirt is “funnel-shaped towards the drive screw”.
In response, it is noted that the top portion of Niemeyer’s skirt 17 is funnel shaped. See annotated Fig. 3 below.
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Applicant argues that Niemeyer does not disclose that “the actuating means and the connecting skirt form a duct for the passage of the fluid cosmetic product from the outside towards the inside of the container when filling the container with cosmetic product”.
Examiner disagrees. The actuating means and the connecting skirt of Niemeyer are both open and allow fluid to flow from the outside of the container to the inside. They therefore read on the claimed duct.
Conclusion
THIS ACTION IS MADE FINAL. 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 BRADLEY S OLIVER whose telephone number is (571)270-3787. The examiner can normally be reached Monday-Friday, 7-3 ET.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, David Angwin can be reached at (571)270-3735. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/BRADLEY S OLIVER/ Examiner, Art Unit 3754
/DAVID P ANGWIN/ Supervisory Patent Examiner, Art Unit 3754
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