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 .
DETAILED ACTION
CONTINUATION IN PART
Reference to this design application as a continuation-in-part under 35 U.S.C. 120 is acknowledged. Unless the filing date of the earlier application is actually needed, such as to avoid intervening prior art, the entitlement to priority in this CIP application will not be considered. See In re Corba, 212 USPQ 825 (Comm’r Pat. 1981).
EXAMINER’S COMMENT ON INFORMATION DISCLOSURE STATEMENT (IDS)
The Examiner has not considered the non-patent literature document in the IDS submitted on 04/05/2024 as the citation is incorrect. For publications obtained from the internet, the uniform resource locator (URL) of the webpage that is the source of the publication must be provided for the place of publication (e.g., www.uspto.gov). See MPEP 609.04(a) § I, 707.05(e). “TinyURL” is not considered to be the source of the publication, as it is a URL shortening service.
35 U.S.C. § 103 STATEMENT OF STATUTORY BASIS
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 REJECTION –35 U.S.C. § 103
The claim is rejected under 35 U.S.C. §103 as being unpatentable over the design of the “LAURA GELLER NEW YORK Cosmetic Brushes (01 Retractable Airbrush Kabuki Brush)” published by the Amazon website on 04/13/2022, hereinafter referred to as “Laura Geller” as evidenced by the “LIDENKORS Beauty Blender” published by the Amazon website on 04/11/2023 hereinafter referred to as “LIDENKORS” and the “Buf-Puf Reusable Facial Sponge” published by the Amazon website on 10/26/2024 hereinafter referred to as “Buf-Puf”.
Although the invention is not identically disclosed or described as set forth in 35 U.S.C. 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 designer having ordinary skill in the art to which the claimed invention pertains, the invention is not patentable.
In rejections of design claims based on 35 U.S.C. 103, the proper standard is whether a design would have been obvious to a designer of ordinary skill in the articles involved. In re Nalbandian, 661 F. 2d 1214, 211 USPQ 782 (CCPA 1981). A proper obviousness rejection based on a combination of references requires that the visual ornamental design features of the claimed design appear in the prior art in a manner which suggests the applications as used in the claimed design. In re Sung Nam Cho, 813 F. 2d 378, 382; 1 USPQ. 2d 1662, 1663 (Fed. Cir. 1987); In re Glavas, 230 F. 2d 447, 450; 109 USPQ 50, 52 (CCPA1956); and In re Carter, 673 F. 2d 1378, 213 USPQ 625 (CCPA 1982). It is distinctiveness in overall appearance of an object when compared with the prior art, rather than minute details or small variations in configuration, that constitutes the test of design patentability. In re Lapworth, 451 F. 2d 1094, 1096; 172 USPQ 129,131 (CCPA 1971).
The LAURA GELLER reference shows design characteristics which are immensely visually similar to the claimed design, in that they consist of:
The base of both the claimed design and LAURA GELLER show a beveled edge at the bottom and are similar in height
The lower middle portion of both the claimed design and LAURA GELLER is rounded, raised and extends outwards beyond the overall cylindrical shape
In both the claimed design and the LAURA GELLER reference, the upper middle cylindrical portion shows four evenly spaced shapes spanning the circumference and have an overall rectangular appearance.
Both the claimed design and LAURA GELLER have an overall rounded appearance in the uppermost portion.
The claimed design differs from LAURA GELLER in that the claimed design shows an uppermost portion with a smooth and more rounded appearance.
The LIDENKORS reference shows a smooth appearance, and Buf-Puf shows a more rounded appearance.
It would have been obvious to a designer of ordinary skill in the art not later than the effective filing date of the present claimed invention to have modified the LAURA GELLER reference to include a smooth and more rounded appearance, as demonstrated by the LIDENKORS reference and the Buf-Puf reference.
It would have been obvious to a designer of ordinary skill in the art before the effective filing date of the claimed invention to modify LAURA GELLER with the LIDENKORS reference and the Buf-Puf reference by substituting the rough and angular appearance seen in the uppermost portion by substituting the smooth appearance of LIDENKORS with the rounded apperance seen in the Buf-Puf reference. Moreover, such substitutions of known design elements for other known design elements in the same field would have been within the skill of an ordinarily skilled designer. This combination of references would result in a design over which the claimed design would have to patentable distinction. No patentable differences are seen form an ornamental standpoint.
Please refer to the annotated drawing comparison.
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This modification of the primary reference in light of the secondary reference is proper because the applied references are so related that the appearance of features shown in one would suggest the application of those features to the other. The basic factual inquiries guiding the evaluation of obviousness, as outlined by Graham v. John Deere, are applicable to the evaluation of design patentability. See MPEP 1504.03(I). The difference is not significant enough to warrant a patent for the overall appearance of the claimed design over the prior art. In re Lapworth, 172 USPQ 129 (C.C.P.A. 1971); In re Lamb, 48 CCPA 817, 286 F. 2d 610, 128 USPQ 539 (1961). Further, it is noted that case law has held that one skilled in the art is charged with knowledge of the related art; therefore, the combination of old elements, herein, would have been well within the level of ordinary skill. See In re Antle, 170 USPQ 285 (CCPA 1961) and In re Nalbandian, 211 USPQ 782 (CCPA 1982).
CONCLUSION
Accordingly, the claim stands rejected under 35 U.S.C. 103 over the LAURA GELLER design, as modified, as set forth above. The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Applicant may view and obtain copies of the cited references by visiting <https://ppubs.uspto.gov/pubwebapp/static/pages/ppubsbasic.html> and pressing the “Patent Number Search” button.
CONTACT INFORMATION
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Evin F G Ershock whose telephone number is (571)272-1833. The examiner can normally be reached Monday - Friday, 9:00AM - 5:00PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Christian Mclean can be reached at (571) 270-1996. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/EVIN F ERSHOCK/Examiner, Art Unit 2923