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 .
Priority
Receipt is acknowledged of a certified copy of foreign application(s): IN202321025597; however, the present application does not properly claim priority to the submitted foreign application. If this copy is being filed to obtain priority to the foreign filing date under 35 U.S.C. 119(a)-(d) or (f), 365(a) or (b), or 386(a), applicant must also file a claim for such priority as required by 35 U.S.C. 119(b) or 365(b), and 37 CFR 1.55. If the application was filed before September 16, 2012, the priority claim must be made in either the oath or declaration or in an application data sheet; if the application was filed on or after September 16, 2012, the claim for foreign priority must be presented in an application data sheet.
If the application being examined is an original application filed under 35 U.S.C. 111(a) (other than a design application), the claim for priority must be presented during the pendency of the application, and within the later of four months from the actual filing date of the application or sixteen months from the filing date of the prior foreign application. See 37 CFR 1.55(d)(1). If the application being examined is a national stage application under 35 U.S.C. 371, the claim for priority must be made within the time limit set forth in the PCT and Regulations under the PCT. See 37 CFR 1.55(d)(2). Any claim for priority under 35 U.S.C. 119(a)-(d) or (f), 365(a) or (b), or 386(a) not presented within the time period set forth in 37 CFR 1.55 is considered to have been waived. If a claim for foreign priority is presented after the time period set forth in 37 CFR 1.55, the claim may be accepted if the claim properly identifies the prior foreign application and is accompanied by a grantable petition under 37 CFR 1.55(e) to accept an unintentionally delayed claim for priority and the applicable petition fee under 37 CFR 1.17(m)(1) or (m)(2).
Drawings
The drawings are objected to because:
reference character 110 (in Fig. 1) is pointing the to the wrong structure. In other words, it is pointing to the second fixable component (i.e. reference character 108) NOT the third fixable component. Therefore, it should be deleted.
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(4) because
reference characters 202 and 302 have both been used to designate “a first fixable area” (see [0044-0045])
reference characters 202 and 302 have both been used to designate “a first fixable area” (see [0044-0045])
reference characters 202 and 302 have both been used to designate “a first fixable area” (see [0044-0045])
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they do not include the following reference sign(s) mentioned in the description:
reference character 106 in Fig. 5a (see [0048])
reference character 108 in Fig. 5b (see [0048])
reference character 110 in Fig. 5c (see [0048])
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:
reference character 208 (in Fig. 2).
Corrected drawing sheets in compliance with 37 CFR 1.121(d) 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. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. 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.
Specification
The disclosure is objected to because of the following informalities: as noted in the drawing objections above.
When viewing Fig. 3, reference character 308 is pointing to “a threaded neck” NOT a “threaded cap”. Therefore, in [0045], reference character 308 is mislabeled as “a threaded cap” AND should be change to “a threaded neck”; emphasis added.
Appropriate correction is required.
Claim Objections
Claims 1 and 4 is/are objected to because of the following informalities:
In claim 1, ln. 8, the phrase, “…characterized in that,…” should read “…[[characterized in that,]]wherein…” to better conform U.S. practice.
In claim 4, ln. 1, the phrase, “…the eyeliner…” should read “…the eyeliner pen…” to establish the proper antecedent basis and for consistency purposes with the remainder of the claim(s).
In claim 4, ln. 2, the phrase, “…the lip tent…” should read “…the lip [[tent]]tint…” to correct the typographical error.
The forgoing analysis may not be exhaustive. Applicant should carefully proofread all claims and make all necessary corrections.
Claim Rejections - 35 USC § 103
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 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 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 of this title, 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 1-5 and 8-10 is/are rejected under 35 U.S.C. 103 as being unpatentable over de Martino (US 10945513 B2; hereinafter de Martino) in view of Conley, Jr. (US 5715848 A; hereinafter Conley).
Regarding claims 1 and 10, de Martino teaches a modular and compact makeup product embodiment and a respective method of assembling such (as shown in Figs. 1-4) comprises:
[providing] a modular center cartridge (i.e. the combination of inner body (13) AND the elongated receptacle (15) is what examiner equates to the claimed modular center cartridge) comprising a plurality of fixable areas (13b), wherein the plurality of fixable areas comprises a first fixable area, a second fixable area, and a third fixable area, wherein the first fixable area is adapted to position in between the second fixable area and the third fixable area, wherein the second fixable area is adapted to position in between the first fixable area and the third fixable area, wherein the third fixable area is adapted to position in between the first fixable area and the second fixable area (see annotated de Martino Fig. 3 below);
characterized in that,
[providing] a plurality of modular fixable components (20) comprising a first fixable component, a second fixable component, and a third fixable component, wherein each of the first fixable component, the second fixable component, and the third fixable component is adapted to slid into any one of the first fixable area, the second fixable area, and the third fixable area as per user choice, wherein each of the first fixable component, the second fixable component, and the third fixable component is a modular fixable component and is replaceable in any of the first fixable area, the second fixable area, and the third fixable area of the modular center cartridge when empty, wherein the modular center cartridge is configured to receive a mascara liquid, wherein the modular center cartridge is replaceable or refillable with the mascara liquid (see de Martino Col. 6 ln. 40-49), wherein the first fixable component, the second fixable component or the third component each comprises “…at least one of lipstick, mascara, lip-gloss, nail varnish, foundation, eye shadow and blusher….” (see de Martino Col. 4 ln. 23-27); and
a cap (16a) configured to close the modular center cartridge, wherein the cap comprises a mascara wand that is configured to be placed inside the mascara liquid (de Martino Col. 5 ln. 45 – Col. 7 ln. 4).
Essentially, de Martino teaches an eyeshadow and [a skin] foundation; however, they ARE NOT in pen form; emphasis added.
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Thus, de Martino fails to teach a lip tint, a color correction stick, an eyeliner pen, a kajal pen, an eyeshadow pen, or a skin foundation pen.
Conley is in the same field of endeavor as the claimed invention and de Martino, which is a cosmetic kit or organizer. Conley teaches a cosmetic organizer (10) comprising a modular center base (12) having a plurality of fixable areas (14, 16, 18, 20 and 30), wherein the plurality of fixable areas comprises a first fixable area, a second fixable area, and a third fixable area;
a plurality of fixable components (22, 24, 26, 28, 32, 34, 36 and 38) comprising a first fixable component (i.e. lipstick (22)), a second fixable component (i.e. an eye liner (24)), and a third fixable component (i.e. lip liner (26)), wherein each of the first fixable component, the second fixable component and the third fixable component is adapted to slid into any one of the first fixable area, the second fixable area, and the third fixable area as per user choice (Conley Col. 2 ln. 28 – Col. 4 ln. 19 and Figs. 1-3).
Examiner’s note: Conley further teaches the following, “…the plurality of cosmetic items may comprise a lipstick 22, an eye liner 24, a lip liner 26, a mascara brush 28, an eyeshadow brush (not shown) or any other suitable cosmetic item or tool…” (see Conley Col. 2 ln. 31-33). Examiner construes or interprets “any other suitable cosmetic item” to incorporate or include items such as a lip tint, a color correction stick, a kajal pen, an eyeshadow pen, or a skin foundation pen; emphasis added.
With this in mind, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to substitute the various cosmetic materials (of de Martino) to any of the cosmetic materials, which include a lip tint, a color correction stick, a kajal pen, an eyeshadow pen, or a skin foundation pen (as taught by Conley) to allow the user to personalize or customize each of the plurality of fixable components to their liking. An express suggestion to substitute on equivalent component or process for another is not necessary to render such substitution obvious. See MPEP §2143(I)(B) or §2144.06(II)
Regarding claim 2, modified de Martino as above further teaches all the structural limitation as set forth in claim 1, except for wherein the first fixable component is the kajal pen, wherein the second fixable component is the eyeliner pen, wherein the third fixable component is the eye shadow pen.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make the first fixable component (of de Martino) is the kajal pen (as taught by Conley), wherein the second fixable component (of de Martino) is the eyeliner pen (as taught by Conley), wherein the third fixable component (of de Martino) is the eye shadow pen (as taught by Conley) to allow the user to personalize or customize each of the plurality of fixable components to their liking. An express suggestion to substitute on equivalent component or process for another is not necessary to render such substitution obvious. See MPEP §2143(I)(B) or §2144.06(II)
Regarding claim 3, modified de Martino as above further teaches all the structural limitation as set forth in claim 1, except for wherein the first fixable component is the lip tint, wherein the second fixable component is the color correction stick, wherein the third fixable component is the kajal pen.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make the first fixable component (of de Martino) is the lip tint (as taught by Conley), wherein the second fixable component (of de Martino) is the color correction stick (as taught by Conley), wherein the third fixable component (of de Martino) is the kajal pen (as taught by Conley) to allow the user to personalize or customize each of the plurality of fixable components to their liking. An express suggestion to substitute on equivalent component or process for another is not necessary to render such substitution obvious. See MPEP §2143(I)(B) or §2144.06(II)
Regarding claim 4, modified de Martino as above further teaches all the structural limitation as set forth in claim 1, except for wherein the first fixable component is the eyeliner [pen], wherein the second fixable component is the lip tint, wherein the third fixable component is the color correction stick.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make the first fixable component (of de Martino) is the eyeliner pen (as taught by Conley), wherein the second fixable component (of de Martino) is the lip tint (as taught by Conley), wherein the third fixable component (of de Martino) is the color correction stick (as taught by Conley) to allow the user to personalize or customize each of the plurality of fixable components to their liking. An express suggestion to substitute on equivalent component or process for another is not necessary to render such substitution obvious. See MPEP §2143(I)(B) or §2144.06(II)
Regarding claim 5, modified de Martino as above further teaches wherein the first fixable component, the second fixable component, and the third fixable component are attached to the first fixable area, the second fixable area, and the third fixable area of the modular center cartridge using a press fit feature (i.e. the respective trays (20) are snapped or pressed into the respective fixable areas).
Regarding claim 8, modified de Martino as above further teaches all the structural limitations as set forth in claim 1, except for wherein the makeup product comprises a height in a range of 100 millimeters (mm) to 250 mm and a width in a range of 30 mm to 45 mm.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make the overall makeup product (of de Martino) have a height in a range of 100 millimeters (mm) to 250 mm and a width in a range of 30 mm to 45 mm, so that the overall makeup product is compact and handheld.
Since, it has been held that where the only difference between the prior art and the claims is a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than a prior art device, the claimed device is not patentably distinct from the prior art device. See MPEP §2144.04(IV)(A)
In addition, it is noted that nowhere in the original disclosure, the applicant POINTS OUT the criticality for the claimed dimension(s); emphasis added.
Regarding claim 9, modified de Martino as above further teaches all the structural limitations as set forth in claim 1, except for wherein the first fixable component, the second fixable component, and the third fixable component comprises a height in a range of 75 mm to 200 mm and a width in the range of 6 mm to 15 mm.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make the first fixable component, the second fixable component, and the third fixable component comprises a height in a range of 75 mm to 200 mm and a width in the range of 6 mm to 15 mm, so that the plurality of fixable component are compact and handheld.
Since, it has been held that where the only difference between the prior art and the claims is a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than a prior art device, the claimed device is not patentably distinct from the prior art device. See MPEP §2144.04(IV)(A)
In addition, it is noted that nowhere in the original disclosure, the applicant POINTS OUT the criticality for the claimed dimension(s); emphasis added.
Claims 6-7 is/are rejected under 35 U.S.C. 103 as being unpatentable over the applied references (as applied to claim 1 above) and further in view of Gorvett (US 6814237 B2; hereinafter Gorvett).
Regarding claim 6, modified de Martino as above further teaches all the structural limitations as set forth in claim 1, except for wherein each of the first fixable component, the second fixable component, and the third fixable component is assembled from two or more components of a bottom part, a body, and a cover.
Gorvett is in the same field of endeavor as the claimed invention and de Martino and Conley, which is a cosmetic kit or organizer. Gorvett teaches a cosmetic organizer embodiment (10; as shown in Figs. 1-2) having a plurality of fixable areas (i.e. the band (12) having a plurality of loops (32)), and a plurality of fixable components (i.e. cosmetic items (14) which include lipsticks (16), lip-gloss (18), lip-liner (20) and eyeliner (22)), and wherein the plurality of fixable components is assembled from two or more components with include a bottom or body part (28) AND a cover (i.e. cap (26); Gorvett Col. 2 ln. 56 – Col. 3 ln. 55).
With this in mind, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to substitute the respective fixable components (of de Martino) with similar fixable components that have two components or parts (as taught by Gorvett) because the resultant structures will work equally well. An express suggestion to substitute on equivalent component or process for another is not necessary to render such substitution obvious. See MPEP §2143(I)(B) or §2144.06(II)
Regarding claim 7, modified de Martino as above further teaches all the structural limitations as set forth in claim 1, except for wherein the first fixable component, the second fixable component, and the third fixable component comprises a label to specify a color and a type of each fixable component.
Gorvett further teaches the following, “The body (28) of a lipstick (16) having a label or identifying insignia is affixed. The body 28 of a lip-liner (20) OR an eyeliner (22) having a band of color on its exterior designating both what the item 14 is (i.e., eyeliner 22) and what color the item 14 is…” (see Gorvett Col. 3 ln. 29-36).
With this in mind, 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 first fixable component, the second fixable component and the third fixable component (of de Martino) to have similar label or band of color (as taught by Gorvett) to allow the user to easily find and identify the respective fixable component.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The cited documents are listed on the attached PTO-892 form.
Examiner has cited particular paragraphs and/or columns and line numbers in the references as applied to the claims above for the convenience of the applicant. Although the specified citations are representative of the teachings of the art and are applied to the specific limitations within the individual claim, other passages and figures may apply as well. It is respectfully requested of the applicant, in preparing responses, to fully consider the references in entirety as potentially teaching all or part of the claimed invention, as well as the context of the passage as taught by the prior art or prior art(s) disclosed by the Examiner (in the attached PTO-892 form).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRIJESH V. PATEL whose telephone number is (571)270-1878. The examiner can normally be reached Monday - Thursday 6:00 am - 4:00 pm.
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, Orlando E. Avilés can be reached on 571-270-5531. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/B. V. P./
Examiner, Art Unit 3736
/ORLANDO E AVILES/Supervisory Patent Examiner, Art Unit 3736
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