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 .
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 1-20 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, line 7 states “proximal side to a distal end” it is unclear what a proximal side is of the bristle carrier. It appears applicant is claiming “proximal end to a distal end”, furthermore, the specification refers to the “proximal end” not “proximal side”. It will be examined as proximal end.
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) 1-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Berhault (WO 2019/115243) in view of JP 5727297).
Berhault discloses a cosmetic applicator comprising a bristle carrier (12); and bristles (18) anchored to the bristle carrier in one piece or in a form-fitting manner (page 7, lines 20-25), each bristle of the bristles tapering towards a free bristle end (Fig. 2a), and a bristle longitudinal axis thereof forming a straight line (Fig. 2a), and the bristle longitudinal axis predominantly or completely being inclined towards a free end of the bristle carrier (Fig. 2). Berahault does not disclose the average diameter of the bristle carrier increases from a proximal end to a distal end in a first proximal quarter of the bristle carrier and decreases after the first proximal quarter of the bristle carrier from a proximal end to the distal end. JP ‘297 teaches multiple diameters of the bristle carrier (paragraph 16) Fig. 7 teaches the average diameter of the bristle carrier (20) increases from a proximal end to a distal end in a first proximal quarter of the bristle carrier and decreases after the first proximal quarter of the bristle carrier from a proximal end to the distal end (Fig. 7). It would have been obvious to one having ordinary skill in the art before the effective filing date to have the bristle carrier of Behault be made with a varying diameter as taught by JP’297 since modifying the shape of the carrier body to meet the needs of the user would be well within a person having ordinary skill in the art.
Berhault discloses the claimed invention except for the incline angle is between 25 and 35 degrees (claim 2) and the row of bristles directly adjacent in a circumferential direction have a different stiffness or shore hardness (claim 5). However, one having ordinary skill in the art would find the parameters of the incline to be deemed matters of design choice, will within the skill of the ordinary artisan, obtained through routine experimentation in determining optimum results. Further, Berhault discloses the bristle length or shape from one row to the next (page 6, lines 5-15) changing the shape or length of a bristle can change the stiffness. Therefore, one having ordinary skill in the art would find the parameters of the stiffness to be different in a circumferential direction by changing the length or shape of the bristles.
Regarding claim 3, Berhault discloses the bristles (18) are organized in rows of individual bristles standing one behind the other along a line parallel to the central longitudinal axis of the bristle carrier (Fig. 2; page 4, lines 29-35).
Regarding claim 4, Berhault discloses the bristles (18) include directly adjacent bristles rows including a preceding bristle row and a following bristle row (Fig. 2), the bristles of the directly adjacent bristle rows in the circumferential direction are positioned in such a way that a bristle of the following bristle row is anchored to the bristle core at a level of a centre of two directly adjacent bristles of the preceding bristle row (page 5, lines 9-15).
Regarding claim 6, Berhault discloses a local average diameter of the bristle carrier decreases from a proximal end to a distal end at least after a first proximal quarter of the bristle carrier (Fig. 2; page 3, lines 19-21).
Regarding claim 7, Berhault discloses a central longitudinal axis of the bristle carrier is curved first in a first and then in a second opposite direction (Fig. 2; page 4, lines 5-15).
Regarding claim 8, Berhault discloses an average diameter of the bristles decreases from a proximal end of the bristle carrier towards a free distal end of the bristle carrier (page 6; lines 5-15).
Regarding claim 9, Berhault discloses the bristles (18) include directly adjacent bristle rows, and the bristles longitudinal axis of the directly adjacent bristle rows in a circumferential direction of the bristle carrier is are inclined completely or at least substantially the same (page 6, lines 5-10).
Regarding claim 10, Berhault discloses the longitudinal axes of the bristles are inclined so as to increase from a proximal end of an applicator core towards a free distal end of the applicator core (Fig. 2; page 6, lines 25-30).
Regarding claim 11, Berhault discloses a length of the bristles decreases from a proximal end of an applicator core to a free distal end of the applicator core (page 5, lines 19-25).
Regarding claim 12, Berhault discloses a method comprising operating the applicator to apply mascara mass on a human eye (page 2, lines 8-12).
Regarding claim 13, Berhault discloses a method for applying mascara mass to a human eye, comprising: operating the applicator such that regions closer to a distal end of the applicator are brought into contact with the eyelashes for to transfer more cosmetic mass to the eyelashes, and in that the regions closer to a proximal end of the applicator are brought into contact with the eyelashes to transfer less cosmetic mass to the eyelashes (page 2, lines 22-30).
Regarding claim 14, Berhault discloses the bristle carrier includes a circular cross-section, a local average diameter of the bristle carrier decreases from a proximal end to a distal end at least after a first proximal quarter of the bristle carrier (page 3, lines 10-20).
Regarding claim 17, Berhault discloses a central longitudinal axis of the bristle carrier is curved first in a first and then in a second opposite direction (Fig. 2).
Regarding claim 19, Berhault discloses an average diameter of the bristles decreases from a proximal end of the bristle carrier towards a free distal end of the bristle carrier (page 6, lines 5-15).
Response to Arguments
Applicant’s arguments filed 8/26/2026 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 RACHEL RUNNING STEITZ whose telephone number is (571)272-1917. The examiner can normally be reached Monday-Friday 8:00am-4:30pm EST.
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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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/RACHEL R STEITZ/Primary Examiner, Art Unit 3772
9/21/2026
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