Ex Parte Boucherie

Patent Trials and Appeals BoardMar 13, 2019

13259357 - (D) (P.T.A.B. Mar. 13, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/259,357 10/12/2011 26096 7590 03/15/2019 CARLSON, GASKEY & OLDS, P.C. 400 WEST MAPLE ROAD SUITE 350 BIRMINGHAM, MI 48009 UNITED ST A TES OF AMERICA FIRST NAMED INVENTOR Bart Gerard Boucherie UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www .uspto.gov ATTORNEY DOCKET NO. CONFIRMATION NO. B5150US; 67267-041 7292 EXAMINER JENNINGS, MICHAEL DEANGILO ART UNIT PAPER NUMBER 3723 NOTIFICATION DATE DELIVERY MODE 03/15/2019 ELECTRONIC Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): ptodocket@cgolaw.com cgolaw@yahoo.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte BART GERARD BOU CHERIE Appeal2018-004870 Application 13/259,357 Technology Center 3700 Before MICHAEL L. HOELTER, JAMES P. CAL VE, and JEREMY M. PLENZLER, Administrative Patent Judges. PLENZLER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant seeks our review under 35 U.S.C. Â§ 134(a) of the Examiner's Decision rejecting claims 1, 2, 5, 6, and 8-22. 1 We have jurisdiction under 35 U.S.C. Â§ 6(b). We AFFIRM-IN-PART. 1 Claims 3, 4, and 7 are cancelled. App. Br. 11, Claims App. Appeal2018-004870 Application 13/259,357 CLAIMED SUBJECT MATTER Claims 1, 10, and 17 are independent. Claims 2, 5, 6, 8, 9, 11-16, and 18-22 depend from claim 1, 10, or 17. Claims 1 and 10 are reproduced below: 1. A bristle insert, in particular for a brush, comprising: at least one bristle pack with a plurality of plastic bristles having ends that are fused to each other to form a self-supporting holding element, wherein the at least one bristle pack includes different bristles that differ from each other in at least one of bristle thickness, bristle material, or bristle color, and wherein the self-supporting holding element is a plate, and wherein the bristle pack includes a cavity adjacent to the self-supporting holding element, and wherein the cavity is comparatively sharply delimited in direct vicinity of the self-supporting holding element, and wherein more bristles extend into the cavity at an increasing distance away from the self-supporting holding element than at a location near the self-supporting holding element. 10. A brush comprising: a brush body comprising a handle; a bristle insert attached to the handle and including at least one bristle pack with a plurality of plastic bristles having ends that are fused to each other to form a self- supporting holding element, wherein the at least one bristle pack includes different bristles that differ from each other in at least one of bristle thickness, bristle material, or bristle color; and wherein the self-supporting holding element is a plate, and wherein the bristle pack includes a cavity adjacent to the self-supporting holding element, and wherein the cavity is comparatively sharply delimited in direct vicinity of the self-supporting holding element, and wherein more bristles extend into the cavity at an 2 Appeal2018-004870 Application 13/259,357 increasing distance away from the self-supporting holding element than at a location near the self-supporting holding element. REJECTIONS 1. Claims 1, 2, 5, 6, and 9-22 are rejected under 35 U.S.C. Â§ I03(a) as being unpatentable over Weihrauch '939 (EP 0329939 A2, published August 30, 1989) and Weihrauch '884 (US 2003/0163884 Al, published Sep. 4, 2003). 2. Claim 8 is rejected under 35 U.S.C. Â§ I03(a) as being unpatentable over Weihrauch '939, Weihrauch '884, and Hobbs (US 2008/0313836 Al, published Dec. 25, 2008). OPINION Claims l, 5, and 9 Appellant argues claims 1, 5, and 9 as a group. Appeal Br. 4--5. We select claim 1 as representative. Claims 5 and 9 stand or fall with claim 1. See 37 C.F.R. Â§ 4I.37(c)(l)(iv). The Examiner finds that Weihrauch '939 teaches the majority of features recited in claim 1, including "plastic bristles having ends that are fused to each other to form a self-supporting holding element." Final Act. 2-3. The Examiner finds that element 12 in Weihrauch '939 corresponds to the recited "self-supporting holding element." Id. at 3. Appellant acknowledges that Weihrauch '939's "bristles 2 are melted to form an annular disc 12," but contends that because "disc 12 is still mechanically inserted into a bristle carrier 1 O" it "cannot be considered as comprising a self-supporting holding element." Appeal Br. 4. Appellant contends that "disc 12 is not self-supporting" because "[t]he structure 12 3 Appeal2018-004870 Application 13/259,357 identified by the [E]xaminer clearly requires additional support from an additional structure, i.e. the bristle carrier 10, which contacts all sides of the disc 12." Id. at 5. Appellant contends that "[s]omething is either 'self- supporting' or it is not, there is no 'partially self-supporting"' and "under the Examiner's interpretation, the term 'self-supporting' is rendered meaningless." Id. Appellant's contentions are not persuasive. Claim 1 does not require the "bristle pack" to be "self-supporting" relative to any particular structure. Claim 1 requires "plastic bristles having ends that are fused to each other to form a self-supporting holding element" that is a "plate." Appellant admits that Weihrauch '939 teaches bristle ends melted (fused) to each other to form a disc. Appeal Br. 4. Weihrauch '939's Figure 2 is reproduced below for reference. ---Â· 3 .......... -Â·:-"" /_,/, _. ____ _.,,.. Fig.2 Figure 2 is a section view of a bristle bundle and carrier. 4 Appeal2018-004870 Application 13/259,357 There is no dispute that Weihrauch '939's disc 12, which corresponds to the recited plate, is self-supported within bristle carrier 10. Rather, Appellant's contentions appear to be based on an unfounded and unexplained requirement that an intermediate structure, such as bristle carrier 10, cannot be used to couple bristle bundle 1, which includes disc 12, to another unspecified structure. Appellant's contentions are not commensurate with the scope of claim 1, and are also inconsistent with Appellant's own Specification. Appellant's Figure 4 is reproduced below for reference. Fig. 4 ,.--20 5 Appeal2018-004870 Application 13/259,357 "Figure 4 shows a schematic sectional view of a brush according to an embodiment of the invention." Spec. ,r 31. The Specification explains that "[a]fter having been combined to a dense pack, all bristles 12 have been heated at one end to such an extent that the plastic material has liquefied, whereby the ends of the plastic bristles 12 are fused with each other." Id. ,r 35. "After the plastic material has cooled and solidified, a self-supporting structure or a self-supporting holding element 14 has been formed in this way, which is made of the material of the bristles, and in which all bristles are anchored." Id. The structure of Weihrauch '939's disc 12 appears to be virtually identical to Appellant's "self-supporting holding element 14." Appellant's Specification proceeds to explain that its brush "includes a brush body 20, a sleeve 22 and the bristle insert 1 O" and "sleeve 22 includes a circumferential shoulder 24, with the plate-like holding element 14 resting on the shoulder 24." Id. ,r 39. That holding element is effectively the same structure as Weihrauch '939's bristle carrier 10, which Appellant alleges is prohibited by the claim. Because Appellant's contentions in connection with claim 1 are not commensurate with the scope of that claim, we are not apprised of error in the rejection of claims 1, 5, and 9. Claim 2 Claim 2 depends from claim 1 and recites that "the self-supporting holding element forms a fixing structure for fixing the bristle insert at a brush body comprising a handle." Appellant faults the Examiner for citing Weihrauch '939's element 2 as a "brush body," but acknowledges that "carrier 10 is ... fastened to a brush body." Appeal Br. 6. Appellant additionally alleges fault in the rejection because "[t]here is no handle shown 6 Appeal2018-004870 Application 13/259,357 in [Weihrauch '939's] Figure 2." Id. Appellant's contentions do not identify reversible error. Claim 2 recites a "bristle insert," and does not require a "brush body," let alone a "brush body" that has a handle. Rather, claim 2 defines the "fixing structure" of the "self-supporting holding" relative to a "brush body." That is, the "fixing structure" is arranged in a manner that allows it to be fixed "at a brush body." Whether that "brush body" includes a handle does not appear to affect the arrangement of the "fixing structure." As noted above, Appellant fails to identify any meaningful structural difference between the recited "self-supporting holding element," or even "self-supporting holding element 14" described in its Specification, and Weihrauch '939's disc 12. Indeed, Appellant acknowledges that Weihrauch '939's "bristles 2 are melted to form an annular disc 12," which are "mechanically inserted into a bristle carrier 10." Appeal Br. 4. Accordingly, Weihrauch '939 teaches the "fixing structure" recited in claim 2. For at least these reasons, we are not apprised of error in the rejection of claim 2. 2 Claim 6 Claim 6 depends from claim 1 and further recites that "the at least one bristle pack comprises includes a plurality of bristle packs." Appellant acknowledges the Examiner's finding in connection with claim 6, and simply alleges, without citation or further explanation, that "element 12 2 Any defects in the rejection identified by Appellant are not fatal to the rejection. 7 Appeal2018-004870 Application 13/259,357 comprises an annular disc that is melted from one bundle of bristles." Appeal Br. 6. This conclusory assertion does not apprise us of Examiner error in the rejection of claim 6. Claim 8 Claim 8 depends from claim 1 and further recites that "the at least one bristle pack includes an amount of natural bristles." Appellant does not dispute that Hobbs discloses using natural bristles or the Examiner's rationale. Rather, Appellant alleges, generally, that "the process disclosed in [Weihrauch '939] and [Weihrauch '884] is incompatible with using natural bristles." Appeal Br. 10. Appellant contends that "[Weihrauch '884] shows an injection molding method that only works with a liquid synthetic material and cannot be used with natural bristles" and "[i]f natural bristles were to be incorporated into this method a completely different type of injection mold is required." Id. That contention is not persuasive because the Examiner simply proposes modifying Weihrauch '939's bristles to "include[] different bristles that differ from each other in at least one of bristle thickness, bristle material, or bristle color" based on Weihrauch '884's teachings. See Final Act. 3 (discussing modification to Weihrauch '939's disclosure based on Weihrauch '884' s teachings) ( emphasis omitted). The Examiner relies on Hobbs to teach natural bristles as a way to vary the height of bristles (Final Act. 9) and the natural bristles would be included in the finished product of Weihrauch '939 and Weihrauch '884 without altering how those products are made (Ans. 12-13). Therefore, the general allegation, without further 8 Appeal2018-004870 Application 13/259,357 explanation or evidence, that Weihrauch '939's process "is incompatible with using natural bristles" also fails to identify Examiner error. Accordingly, we are not apprised of Examiner error in the rejection of claim 8. Claims 10 and 17-22 Appellant argues claims 10 and 17-22 as a group. Appeal Br. 6-7. We select claim 1 as representative. Claims 1 7-22 stand or fall with claim 10. Claim 10 is similar to claim 1, but rather than reciting only "a bristle insert," claim 10 is directed to "[a] brush" and additionally recites "a brush body comprising a handle" with the "bristle insert attached to the handle." Appellant reiterates the contentions presented with respect to claim 1, which are unpersuasive as explained above. Appeal Br. 6. Appellant also takes issue with the portion of the Examiner's rejection related to the recited "handle." Id. at 6-7. Initially, Appellant faults the Examiner's identification of "handle (B)" in the rejection. Id. at 6-7 (noting there is no element (B) in either Weihrauch '939 or Weihrauch '884). That does not identify error, however, as the Examiner makes clear in the Answer that "[a] handle (8) is shown in FIG. 1 of ([Weihrauch] '939), which has the capability of being grasped with the hand." Ans. 12. Accordingly, Appellant's additional arguments that "bristle bundle 1 ... does not form a handle for the brush" are also unpersuasive. Appeal Br. 7. Appellant's only response with respect to the Examiner's finding that Weihrauch '939's element 8 forms the recited handle is that "structure 8 comprises a container that holds a fluid" and "container 8 ... is attached to a brush handle (not shown in the figures)." Reply Br. 4. That element 8 holds 9 Appeal2018-004870 Application 13/259,357 a fluid does not identify error in the Examiner's rejection because it fails to provide any reason why that element could not also be a handle. Appellant's allegation that "container 8 ... is attached to a brush handle (not shown in the figures)" is also unpersuasive, as Appellant fails to point to any evidence to support that allegation. Reply Br. 4. Moreover, to the extent that allegation is true, Appellant has admitted that Weihrauch '939 teaches the handle structure recited in claim 10, as claim 10 does not preclude an intermediate structure between the "bristle insert" and the handle, and requires only that a "bristle insert [is] attached to the handle." For at least these reasons, we are not apprised of reversible error in the Examiner's rejection claims 10 and 17-22. Claims 11 and 12 Claims 11 and 12 depend from claim 10. 3 Appellant's arguments are similar to those addressed with respect to claims 1 and 10 and are unpersuasive for similar reasons. See Appeal Br. 7-8. Accordingly, we are not apprised of error in the Examiner's decision to rejection claims 11 and 12. Claim 13 Claim 13 depends from claim 10 and further recites that "the self- supporting holding element is adhered or welded to the brush body." The Examiner explains that "Weihrauch ('884) as modified with Weihrauch ('939) as modified above teaches that the self-supporting holding element 3 Although not addressed in the arguments as distinguishing over the references, we note that it is unclear how "positively accommodated" in claim 12 differs in scope from "accommodated" recited in claim 11. 10 Appeal2018-004870 Application 13/259,357 (12) is adhered to the brush body (1) (See FIG. 2)." Final Act. 6; see also Ans. 12. Appellant contends that Weihrauch '939's "bristles are either molded to the end face of the bristle carrier 10 or are melted to form the annular disc 12 which then is mechanically inserted into bristle carrier 1 O." Appeal Br. 8. Appellant has the better position. The Examiner has failed to identify a teaching in Weihrauch '939 that includes both the "self-supporting holding element" and that element being "adhered or welded to the brush body" as required by the claim. The Examiner does not propose any modification to Weihrauch '939's teachings to meet that limitation. Accordingly, we do not sustain the Examiner's decision to reject claim 13. Claim 14 Claim 14 depends from claim 10, and further recites that "the bristle insert is overmolded." Other than expressing disagreement with the rejection, generally, and simply alleging that Weihrauch '939 "does not disclose or teach this feature," Appellant fails to persuasively identify error in the rejection. See Appeal Br. 9. For example, Appellant fails to identify any particular structure required by the claim that is missing from the structure identified by the Examiner in Weihrauch '939. Appellant's naked assertion, without more, is insufficient to identify reversible error. See In re Lovin, 652 F.3d 1349 (Fed. Cir. 2011). Accordingly, we are not apprised of error in the rejection of claim 14. 11 Appeal2018-004870 Application 13/259,357 Claims 15 and 16 Claims 15 and 16 depend from claim 10, and are listed as being rejected over Weihrauch '939 and Weihrauch '884. See Final Act. 2. 4 Appellant notes that "[t]he Examiner has presented no arguments regarding claim 15. This has repeatedly been pointed out by Appellant in the prior Appeal Brief and in the RCE amendment, yet the Examiner still has not presented any arguments to reject claim 15." Appeal Br. 9 ( emphasis omitted); see also Reply Br. 6 ("The Examiner's Answer also does not present any rejections for claim 15.") (emphasis omitted). Appellant also notes that "[t]he Examiner has presented no arguments regarding claim 16. This has repeatedly been pointed out by Appellant in the prior Appeal Brief and in the RCE amendment, yet the Examiner still has not presented any arguments to reject claim 15." Appeal Br. 9 ( emphasis omitted); see also Reply Br. 6 ("The Examiner's Answer also does not present any rejections for claim 16.") (emphasis omitted). Because the Examiner fails to provide any findings for any limitations of claims 15 and 16 or any reasoning as to why the claims are unpatentable in view of other findings made by the Examiner, or even mention these claims, or the limitations recited therein, in the discussion of the rejection, we do not sustain the Examiner's decision to reject claims 15 and 16. 4 The rejection of these claims does not appear to have been withdrawn in the Answer. See Ans. 2. 12 Appeal2018-004870 Application 13/259,357 DECISION We AFFIRM the Examiner's decision to reject claims 1, 2, 5, 6, and 8-12, 14, and 17-22. We REVERSE the Examiner's decision to reject claims 13, 15, and 16. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(l)(iv). AFFIRMED-IN-PART 13