Appeal No. 1999-2633
Application 08/680,325
cell foam sponge substrate including the cavities as recited in
claim 5.
Thus, the appellant’s position that the claim 5 limitation
at issue distinguishes the subject matter recited in claim 5 and
dependent claim 6 over Ebert is not persuasive. We shall
therefore sustain the standing 35 U.S.C. § 102(b) rejection of
claims 5 and 6 as being anticipated by Ebert.
III. The 35 U.S.C. § 103(a) rejection of claims 5 through 12 as
being unpatentable over Fujimoto in view of Hermann
Fujimoto, the primary reference in this rejection, discloses
a cosmetic puff or sponge made of a closed cell rubber substrate,
preferably a silicone-modified ethylene-propylene-dienomethylene
(EPDM) rubber substrate (see column 2, lines 38 through 42 and 66
through 68). According to Fujimoto, the closed cell nature of
the puff/sponge “prevents water of liquid foundation from
entering into the inside thereof. Thus, the sponge can be
readily washed with water and is likely to dry, ensuring good
sanitary conditions” (column 3, lines 44 through 48).
As acknowledged by the examiner (see page 5 in the answer),
Fujimoto does not respond to the particle limitations in claims 5
through 12. To overcome this deficiency, the examiner turns to
Hermann.
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