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 filed 03 October 2026 fails to comply with 37 CFR 1.98(a)(3)(i) because it does not include a concise explanation of the relevance, as it is presently understood by the individual designated in 37 CFR 1.56(c) most knowledgeable about the content of the information, of each reference listed that is not in the English language.
The Foreign Patent Document Cite No. 5, JPH 01148776 U does not include an English translation.
Examiner suggests attaching an English translation of Foreign Patent Document Cite No. 5.
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.
Such claim limitations are:
“opening and closing means” in claim 1 p. 1 line 15, claim 5 p. 2 line 6, which uses the term “means”, is modified by functional language “for opening and closing the device”, and is not modified by sufficient structure, material, or acts for performing the claimed function. In light of the Specification and claims, Examiner will interpret the “opening and closing means” as referring to a frustoconical bulge around a rod (Specification p. 13 lines 6-8).
“means” in claim 1 p. 1 line 18, which uses the term “means”, is modified by functional language “for returning the dispensing and application head”, and is not modified by sufficient structure, material, or acts for performing the claimed function. In light of the Specification and claims, Examiner will interpret the “means” of claim 1 p. 1 line 18 as referring to a conical spring (p. 4 line 18).
This application includes one or more claim limitations that use the word “means” or “step” but are nonetheless not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph because the claim limitation(s) recite(s) sufficient structure, materials, or acts to entirely perform the recited function. Such claim limitation(s) is/are:
“opening and closing means” in claim 3 p. 1 line 29 which uses the term “means”, but is modified by sufficient structure for performing the claimed function in lines 29-32
“return means” in claim 4 p. 2 line 2 which uses the term “means”, but is modified by sufficient structure for performing the claimed function in lines 2-3
“return means” in claim 5 p. 2 lines 5, claim 6 p. 2 lines 11-12, and claim 7 p. 2 lines 16-17, which uses the term “means”, but is modified by sufficient structure for performing the claimed function in lines 5-8
“opening and closing means” in claim 6 p. 2 line 10, which uses the term means, but is modified by sufficient structure for performing the claimed function in lines 5-8
Because this/these claim limitation(s) is/are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are not being interpreted to cover only the corresponding structure, material, or acts described in the specification as performing the claimed function, and equivalents thereof.
If applicant intends to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to remove the structure, materials, or acts that performs the claimed function; or (2) present a sufficient showing that the claim limitation(s) does/do not recite sufficient structure, materials, or acts to perform the claimed function.
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 1-10 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 "the applicator end" in p. 1 line 14
Claim 2 recites the limitation “the applicator end” in p. 1 lines 23 and 27
Claim 6 recites the limitation “the applicator end“ in lines 11-12
There is insufficient antecedent basis for this limitation in the claims as claim 1 does not recite “an applicator end”, though claim 1 does recite “an external applicator end” in p. 1 line 10 and “an internal end” in p. 1 line 11. In light of the Specification and drawings, for purposes of examination, Examiner will interpret “the applicator end” as referring to the external applicator end of claim 1 p. 1 line 10 and suggests Applicant amend to clarify.
Claims 3-5 and 7-10 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 § 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 1-8 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Hunter et al (U.S. Patent No. 2,299,627 A, hereinafter “Hunter”).
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In regard to claim 1, Hunter discloses a device for dispensing and applying a fluid product (Figs. 1-4, col. 1 lines 26-30), in particular a fluid cosmetic product (col. 1 lines 1-4), comprising:
- a reservoir (12 in Fig. 1) capable of containing the fluid product (col. 1 lines 52-54) and extending along a main longitudinal axis (axis in annotated Fig. 1), and
- a dispensing and application head (10 and 11 in annotated Fig. 1) mounted on the reservoir (col. 1 lines 50-52), arranged at an open axial end of the reservoir (Fig. 1, col. 1 lines 50-52),
the dispensing and application head comprising a body (11 in Fig. 1) mounted on the reservoir (col. 1 lines 50-52) and an applicator (10 in Fig. 1, col. 1 line 50) extending from an external applicator end (22 in Fig. 1, col. 2 line 25-27) towards an internal end (36 in Fig. 1, col. 3 lines 21-22) in contact with the fluid product (Fig. 1), the applicator being movable in translation relative to the body between a rest position (Fig. 1, col. 1 lines 26-30 and col. 3 lines 28-32) and a fluid product dispensing position (Fig. 2, col. 1 lines 31-34, col. 3 lines 34-45), the dispensing position being reached by a pressure on the applicator end (col. 3 lines 34-52),
the applicator further comprising opening and closing means (30 and 31 in Fig. 1) for opening and closing the device (col. 2 line 46-col. 3 line 10) cooperating with a dispensing orifice (orifice in annotated Fig. 1) of the body so as to prevent the dispensing of the fluid product when the applicator is in the rest position (col. 2 line 46-col. 3 line 10) and with means (34 in Fig. 1) for returning the dispensing and application head to the fluid product dispensing position so that the applicator returns automatically to the rest position (col. 3 lines 28-52).
In regard to claim 2, Hunter discloses the invention of claim 1. Hunter further discloses wherein the dispensing and application head (10 and 11 in annotated Fig. 1) comprises a rod (rod in annotated Fig. 1) extending longitudinally from the applicator end (22 in Fig. 1) towards the inside of the dispensing and application head (Fig. 1), the rod allowing the applicator to be guided from the rest position towards the fluid product dispensing position and vice versa (col. 3 lines 28-52) and the fluid product to be guided from the reservoir towards the applicator end (col. 3 lines 28-52).
In regard to claim 3, Hunter discloses the invention of claim 2. Hunter further discloses wherein the opening and closing means (30 and 31 in annotated Fig. 1) is of a generally frustoconical shape (Fig. 1, col. 2 lines 46-50, conical) complementary to an internal frustoconical shape of the body (32 in Fig. 1, corresponding conical valve seat) delimited by an internal wall of the body so as to ensure a sealed closure of the device (col. 2 lines 46-col. 3 line 10).
In regard to claim 4, Hunter discloses the invention of claim 3. Hunter further discloses wherein the return means (34 in Fig. 1) has a frustoconical shape (Figs. 1 and 2, col. 3 line 23, tapers forwardly) similar to the internal frustoconical shape of the body (Figs. 1 and 2, col. 3 lines 24-27).
In regard to claim 5, Hunter discloses the invention of claim 2. Hunter further discloses wherein the return means (34 in Fig. 1) extends from a first end (end 1 in annotated Fig. 1) cooperating with the opening and closing means (col. 3 lines 1-5) towards a second end (end 2 in annotated Fig. 1) bearing on a border (35 in Fig. 1) of the open end of the reservoir (col. 3 lines 1-10 abutments), the first end and the second end being connected by at least one flexible strand (strand in annotated Fig. 1, col. 3 lines 1-2).
In regard to claim 6, Hunter discloses the invention of claim 5. Hunter further discloses wherein the opening and closing means (30 and 31 in annotated Fig. 1) bears on the first end of the return means (end 1 in annotated Fig. 1) so that pressure on the applicator end causes the return means to be compressed (Fig. 2) and the dispensing orifice of the dispensing and application head to open (col. 3 lines 32-52), and a release of the pressure causes the applicator to return to its rest position (Fig. 1, col. 3 lines 28-32).
In regard to claim 7, Hunter discloses the invention of claim 5. Hunter further discloses wherein the second end of the return means (end 2 in annotated Fig. 1) comprises a through hole (through hole in annotated Fig. 1; through hole extends from first end through second end) comprising a center (center in annotated Fig. 1 along axis) through which the rod (rod in annotated Fig. 1) of the applicator passes so that the rod reaches the reservoir (Fig. 2, as seen in Figures 1 and 2, the reservoir extends past the end 36 of the rod).
In regard to claim 8, Hunter discloses the invention of claim 7. Hunter further discloses wherein the through hole (through hole in annotated Fig. 1) comprises at least one branch (branch in annotated Fig. 1, the opening between spring turns) extending radially from the center so as to allow the fluid product to circulate (Fig. 1).
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 9 is rejected under 35 U.S.C. 103 as being unpatentable over Hunter in view of Hackmann et al (EP 0528265 A1 and translated PDF, hereinafter “Hackmann”).
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In regard to claim 9, Hunter discloses the invention of claim 1. Hunter does not disclose wherein the reservoir comprises a removable refill comprising an axial opening, the refill comprising an external thread cooperating with an internal thread of an external sheath of the reservoir.
Hackmann teaches an apparatus (Figs. 1-6) wherein a reservoir (4 in Fig. 5) comprises a removable refill (para. 0009 description of Fig. 5 and para. 0012) comprising an axial opening (axial opening in annotated Fig. 4), the refill comprising an external thread (G in Fig. 5, para. 0018) cooperating with an internal thread (para. 0018) of an external sheath of the reservoir (sheath in annotated Fig. 4).
The references and the claimed invention are considered to be analogous to the claimed invention because they are reasonably pertinent to solving the problem of dispensing and applying small controlled amounts of liquids from a liquid reservoir. 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 reservoir of Hunter by adding an external sheath and specifying the reservoir comprises a removable refill comprising an axial opening, and the refill comprising an external thread cooperating with an internal thread of an external sheath of the reservoir as taught by Hackmann in order to allow for replacement of the reservoir without leakage (Hackmann para. 0012).
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Hunter in view of Kraucher (FR 1016052 A and translated PDF).
In regard to claim 10, Hunter discloses the invention of claim 1. Hunter does not disclose wherein the dispensing and application head comprises a plurality of flexible tabs extending longitudinally from an outer surface of the body towards a free end, the flexible tabs being evenly distributed around the dispensing orifice of the dispensing and application head.
Kraucher teaches an apparatus (Figs. 1-8) wherein the dispensing and application head (Fig. 2) comprises a plurality of flexible tabs 14 in Fig. 1) extending longitudinally from an outer surface of the body towards a free end (Fig. 1), the flexible tabs being evenly distributed around the dispensing orifice (Fig. 1, p. 3 lines 27-28) of the dispensing and application head (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 dispensers for dispensing and applying nail cosmetics. 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 dispensing and application head of Hunter by adding a plurality of flexible tabs extending longitudinally from an outer surface of the body towards a free end, the flexible tabs being evenly distributed around the dispensing orifice of the dispensing and application head as taught by Kraucher in order to advantageously provide a brush (Kraucher p. 2 lines 22-23) to further apply the applied composition on a nail (Kraucher p. 3 line 45).
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
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