Ex Parte Garbers et al

Patent Trial and Appeal Board

Mar 31, 2016

12600355 (P.T.A.B. Mar. 31, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/600,355 11/16/2009
23909 7590 04/04/2016
COLGATE-PALMOLIVE COMPANY
909 RIVER ROAD
PISCATAWAY, NJ 08855
FIRST NAMED INVENTOR
Christine Garbers
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.
8598-00-US-Ol-TB 7918
EXAMINER
BERRY, STEPHANIE R
ART UNIT PAPER NUMBER
3727
NOTIFICATION DATE DELIVERY MODE
04/04/2016 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):
Patent_Mail@colpal.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHRISTINE GARBERS and ANDRE BRUNELLA1
Appeal2014-002039
Application 12/600,355
Technology Center 3700
Before JOSEPH A. FISCHETTI, ROBERT L. KINDER, and
BRUCE T. WIEDER, Administrative Patent Judges.
KINDER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants seek our review under 35 U.S.C. § 134(a) of the
Examiner's Final rejection of claims 1-10. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
1 According to Appellants, the real party in interest is "Gaba International
AG." App. Br. 2.
Appeal2014-002039
Application 12/600,355
Appellants' Invention
Appellants' "invention concerns a toothbrush bristle with a tapered
part and a toothbrush containing such bristles." Spec. 1, 11. 4--6.
Claim 1 is the only independent claim and is illustrative of the
claimed subject matter:
1. A bristle for a toothbrush, comprising:
a cylindrical part with a maximum, constant cylinder
diameter Dzy1;
adjacent to the cylindrical part a first tapered part with a
bristle end and an end face delimiting the bristle end, whereby
the first tapered part tapers towards the bristle end; and
an imaginary central axis which runs through the
cylindrical part and the first tapered part and which pierces the
end face at a piercing point;
wherein the first tapered part has a length L of 10 mm or
less and at least 3 mm, as measured on the central axis starting
from the piercing point;
wherein the first tapered part has a diameter D of 95 to
140 µm, as measured on the central axis starting from the
piercing point at a distance X being equal to the cylinder
diameter Dzy1.
App. Br. 14, Claims App'x.
Examiner's Rejection
The following rejection is before us for review:
The Examiner rejected claims 1-10 under 35 U.S.C. § 103(a) as
unpatentable over Kweon (US 6,090,488, iss. July 18, 2000). Final Act. 2
(mailed Nov. 23, 2012).
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Application 12/600,355
ANALYSIS
Appellants contend that K weon fails to disclose the claim 1
requirement of:
wherein the first tapered part has a diameter D of 95 to 140 µm,
as measured on the central axis starting from the piercing point
at a distance X being equal to the cylinder diameter Dzyl.
See App. Br. 6-8. Appellants make two distinct arguments related to this
limitation. First Appellants contend the Examiner improperly relied on an
intermediate bristle disclosed in K weon for teaching the claimed dimensions
quoted above. App. Br. 4, 6-7. According to Appellants, this intermediate
bristle cannot be used by the Examiner because a "necessary" final step of
rounding the bristle ends must be performed. Id. Appellants rely on
portions of K weon that suggest a final step of rounding the bristle end
achieves a highly tapered bristle - the purpose of K weon. Id. at 7, 11.
Appellants disagree with the Examiner's finding that the intermediate bristle
of K weon can be used "as is" because this finding allegedly ignores
K weon' s disclosure that this intermediate bristle must be further modified
prior to use. Id. Appellants contend a person of ordinary skill in the art
would not find it obvious to use the intermediate stage bristle of K weon. Id.
at 11 ("such a bristle would not be a 'highly tapered bristle' as that term has
been defined in Kweon").
Second, Appellants argue K weon does not teach or suggest the
claimed diameter range "at a distance X being equal to the cylinder diameter
Dzy1." Id. at 6; see also Reply Br. 4--5. Appellants contend Kweon merely
discloses that the bristle has ends that are between 0 .10 mm and 0 .15 mm in
diameter, but Kweon does not disclose that these dimensions may be found
at a point that is measured from the piercing point at a distance X. Id. at 6.
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Application 12/600,355
Appellants similarly argue Kweon is only concerned with the diameter of the
bristles at the end of the bristles, not at a distance from the end of the bristles
that is equal to the diameter of the cylindrical portion of the bristles. Id.
Appellants argue that because Kweon does not explicitly disclose any
diameter dimension "at a distance X being equal to the cylinder diameter" it
does not teach or suggest the disputed claim limitation. Id. at 6, 8; see also
Reply Br. 3--4, 5 ("When using the measurements from the intermediate
bristle product, it would be mere conjecture to state the location relative to
the piercing point .... "). Similarly, Appellants contend that modifying
K weon to achieve an optimum or workable range does not involve routine
skill in the art because K weon does not teach the diameter at distance X "is a
result-effective variable that would affect bristle properties." App. Br. 9.
The Examiner finds "a person of ordinary skill in the art at the time
the invention was made would have found it obvious to use the intermediate
bristle product as disclosed by Kweon 'as is.'" Ans. 6. The Examiner
recognizes K weon discloses a rounding step to produce the final bristle ends,
however, the Examiner finds "the intermediate bristle product produced
prior to this step would still be usable 'as is' for the purpose of removing
plaque without damaging the gums during brushing .... " Id. The
Examiner considers Appellants' arguments, but finds K weon' s final step of
rounding the bristle ends addresses the need to reduce the inferior goods
rate, not the effective usability of the bristles. Id. at 7. The Examiner finds
the main process of K weon involves a reduced soaking time to improve
softness and durability, and after this reduced soaking time the intermediate
bristle product could be removed from manufacture and used. Id.
The Examiner finds K weon teaches the bristles tapered starting at 3-5
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Application 12/600,355
mm from the end of the bristle. Ans. 7 (citing K weon, col. 2, 11. 40-44 ).
The Examiner relies on the intermediate bristle with a disclosed diameter at
the tapered end of 0.10--0.15 mm. Id. at 7-8. Based on this diameter range,
the Examiner finds that the tapered diameter range formed on the
intermediate bristle at a point that is measured from the piercing point at a
distance X (0.20 mm in Kweon) being equal to the constant cylinder
diameter of the bristle would fall within the claimed diameter range. Id. at 8,
9 ("tapered diameter range ... at a distance X ... would still fall within the
disclosed tapered diameter range of 0.10 mm to 0.15"). The Examiner also
finds "it would have been obvious to a person of ordinary skill in the art to
modify the resulting bristle of K weon so that the diameter of the tapered part
of the bristle at a distance from the piercing point that is equal to the
diameter of the non-tapered part of the bristle is within the claimed range."
Id. at 8.
The Examiner has persuasively established that the intermediate
bristle would teach or suggest a bristle for a toothbrush as claimed. K weon
describes several embodiments for forming the bristle. Each of the
embodiments generally describe cutting a bristle at a desired length, soaking
the bristle to form the tapered end at a diameter of 0 .10 mm to 0 .15 mm,
washing and drying the bristle, and then rounding the end to obtain the final
desired taper (tapered end at 0.04---0.08 mm diameter). See Kweon, col. 2, 1.
45---col. 3, 1. 12. We agree with the Examiner that after the soaking stage,
the bristles could be used in a toothbrush "as is" before the final rounding
step. For example, Kweon discloses "tufting the dried bristles into the head
of a toothbrush" after drying the bristles but before rounding. Id. at col. 3, 11.
9-10; see also id. at col. 47--49 ("When the toothbrush is manufactured by
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Application 12/600,355
the present invention, the tapered bristle ends can be rounded before or after
the bristles are tufted into the head of the toothbrush."). When the bristles
are tufted into the head of a toothbrush, the bristles could be used "as is"
within the toothbrush as found by the Examiner. Ans. 7.
We also note that the scope of claim 1 encompasses elements of a
bristle, and not a bristle formed within a toothbrush. Further, the fact that
K weon describes the rounding step as necessary to achieve the final bristle
according to its invention does not negate the Examiner's finding that the
intermediate bristle is formed and usable as a bristle before rounding.
Further, we agree with the Examiner's finding that "[t]he step of rounding
the bristle ends further addresses the need to reduce the inferior goods rate
(See Kweon, col. 3, ll. 51-57), not the effective usability of the bristles."
Ans. 7. We therefore find no error in the Examiner's reliance on Kweon's
intermediate bristle.
We also agree the Examiner has persuasively established that Kweon
teaches or suggests the claimed diameter range at a distance X being equal to
the cylinder diameter. One embodiment of K weon, relied on by the
Examiner, discloses that a taper may begin between 3-5 mm from the end of
the bristle. See Kweon, col. 2, 11. 45-58. Kweon discloses that the cylinder
diameter of bristles is commonly known to be between 0.19 mm to 0.20 mm.
Id. at col. 3, 11. 31-33. As depicted in Figure 4 of Kweon, the cylinder
diameter is 0.20 mm and the distance X (as claimed) would also be 0.20
mm. Final Act. 3 (annotated Fig. 4); see also Ans. 3. As also depicted in
Figure 4, the cylinder diameter reaches the full diameter of 0.20 mm at about
5 mm from the tapered (pierced) end. Kweon, col. 2, 11. 46-47 (taper begins
at 3-5 mm from tapered end of bristle). K weon discloses the diameter of the
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Application 12/600,355
tapered end is between 0.10--0.15 mm for the intermediate bristle. K weon,
col. 2, 1. 52---col. 3, 1. 2. Based on these disclosures, and the parabolic curve
as depicted in Figure 4, we agree with the Examiner that Kweon teaches or
suggests the claimed range (0.095---0.14 mm) at a distance of X (0.20 mm)
from the tapered end as claimed.
In order to find that K weon teaches or suggests the claimed range,
only one diameter within that claimed range needs to overlap with Kweon's
disclosed dimensions. See In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir.
2003) ("In cases involving overlapping ranges, we and our predecessor court
have consistently held that even a slight overlap in range establishes a prima
facie case of obviousness. . . . We have also held that a prima facie case of
obviousness exists when the claimed range and the prior art range do not
overlap but are close enough such that one skilled in the art would have
expected them to have the same properties.") (citations omitted). We agree
with the Examiner that the taper diameter of Kweon at distance X (0.20 mm)
will be almost the same as the disclosed diameter for the tapered end (0.10-
0.15 mm) based on the disclosed parabolic curve in Kweon Figure 4. Ans.
8. The distance of 0.20 mm is so near to the end, the diameter range
disclosed by Kweon will certainly overlap with the claimed range (0.095-
0.14 mm) at that short distance from the end in light of the teachings of
Figure 4.
Appellants also rely on Figure 4 to argue that Kweon's disclosed
dimensions would only result in a diameter of about 70 µmat the distance X
(being 0.20 mm). App. Br. 10-11. Thus, according to Appellants, the
diameter would not fall within the claimed range until much further along
the axis from the piercing point (tapered end). Id. Although Appellants'
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Application 12/600,355
approximation is sound, it ignores the finding that the diameter of the
tapered end (as disclosed in the intermediate bristle) would fall within a
range of0.10--0.15 mm, not at 0.06 mm as depicted in Figure 4. As we have
found the Examiner's basis for using an intermediate bristle sound, the
diameter range of the tapered end would be 0.10--0.15 mm in the modified
embodiment of Figure 4. Based on the Appellants' extrapolation of
Kweon's parabolic curve in Figure 4 (App. Br. 11), and based on the taper
end diameter range of0.10--0.15 mm (instead of0.06 mm), the diameter at X
(0.20 mm) would be about 0.11---0.16 mm, which overlaps considerably with
the claimed range.
Finally, Appellants argue that Kweon has not appreciated the
existence of the relationship between the cylinder bristle diameter and the
distance from the tip of the bristle at which a control diameter (D) should be
implemented. App. Br. 10. The claim, however, is to the bristle itself.
Regardless, after examining Appellants' Specification, one purpose for using
the control diameter (D) at a distance Xis because measuring diameters at
the end of the bristle is difficult. See Spec. 7, 11. 1-26. Further, a parabolic
extrapolation could be used to determine the diameters at or near the end
face. Id. Appellants' Specification indicates that a measuring definition for
the diameter D for the first tapered part was used at distance X = Dzy1. Spec.
5, 11. 14--28. Selection of this particular distance seemingly provides a
measuring definition point along the parabolic curve. Although K weon does
not specifically recognize this same distance (X) as a defined measuring
point for taper diameter, K weon nonetheless teaches or suggests the claimed
diameter range at that point because its disclosed diameter ranges would
overlap as explained above.
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Application 12/600,355
In view of the foregoing, we sustain the Examiner's rejection of
independent claim 1under35 U.S.C. § 103(a). We also sustain the rejection
of claims 2-10 under 35 U.S.C. § 103(a). Each of these claims depends
from claim 1 and was not argued separately by Appellants. See App. Br. 3
("dependent claims 2-10 will stand or fall with independent claim 1 ").
DECISION
We AFFIRM the Examiner's decision to reject claims 1-10.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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