Ex Parte Kressman et al

Patent Trial and Appeal Board

Aug 24, 2017

13761418 (P.T.A.B. Aug. 24, 2017)

United States Patent and Trademark Office
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/761,418 02/07/2013 Frank Peter Kressman Z-8652MQ 8154
27752 7590 08/28/2017
THE PROCTER & GAMBLE COMPANY
Global IP Services
Central Building, C9
One Procter and Gamble Plaza
CINCINNATI, OH 45202
EXAMINER
MAI, HAO D
ART UNIT PAPER NUMBER
3732
NOTIFICATION DATE DELIVERY MODE
08/28/2017 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):
centraldocket. im @ pg. com
pair_pg @ firsttofile. com
mayer.jk @ pg. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte FRANK PETER KRESSMAN, RUTA ALMEDOM, and
XIAOLE MAO1
(Applicant: BRAUN GMBH (A GERMAN CORPORATION))
Appeal 2016-006220
Application 13/761,418
Technology Center 3700
Before JEFFREY N. FREDMAN, RICHARD J. SMITH, and
TIMOTHY G. MAJORS, Administrative Patent Judges.
SMITH, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35U.S.C. § 134 involving claims to an oral
health detection device and a handle section for an oral health detection
device. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 According to Appellants, the real party in interest is The Procter & Gamble
Company. (Br. 1.)
Appeal 2016-006220
Application 13/761,418
STATEMENT OF THE CASE
Background
“The present disclosure relates generally to an oral health detection
device, and more particularly to an oral health detection device that uses an
excitation radiation for the detection of dental deposits on teeth, such as
plaque, caries, bacterial infections and tartar, during normal brushing
regimen.” (Spec. 1,11. 4—7.)
Claims on Appeal
Claims 1 and 3—12 are on appeal. (Claims Appendix, Br. 7—9.) Claim
1 is illustrative and reads as follows (emphases added):
1. An oral health detection device for investigation of dental
deposits, comprising:
a cleaning section having a cleaning head portion and a
movable carrier;
a handle section having a motor and a drive shaft having a
longitudinal axis;
a light source for emitting excitation radiation having a
wavelength greater than about 580 nm;
an assembly for directing the excitation radiation to the
dental region of the mouth;
a light sensor for receiving fluorescence radiation having
a wavelength greater than about 850 nm reflected from dental
deposits;
a logic component operable to analyze the fluorescence
radiation received by the light sensor; and a display for providing
to a user information concerning the presence of dental deposits;
wherein the cleaning head portion includes at least one
light probe which is static relative to the handle section and a
plurality of cleaning elements mounted to the movable carrier
and arranged generally transverse to the longitudinal axis such
that movement of the carrier moves the plurality of cleaning
elements in a back and forth oscillating movement about the
longitudinal axis at a full oscillation angle of from about 40
degrees to about 60 degrees and relative to the light probe.
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Appeal 2016-006220
Application 13/761,418
Examiner’s Rejections
1. Claims 1, 3—5, 11, and 12 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Binner,2 Ghosh,3 Hibst,4 and Fritsch.5 (Ans.
3-6.)
2. Claim 10 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Binner, Taylor,6 and Hibst. (Id. at 6—8.)
3. Claims 6—9 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Binner, Ghosh, Hibst, Fritsch, and Birecki.7 (Id. at 8.)
DISCUSSION
We adopt as our own the Examiner’s findings, analysis, and
conclusions as set forth in the Answer (Ans. 3—11), including the Examiner’s
findings regarding the scope and content of, and reasons to modify or
combine, the prior art. We discern no error in the rejections of the claims as
obvious.
Issue
Whether a preponderance of evidence of record supports the
Examiner’s rejections under 35 U.S.C. § 103(a).
2 Binner et al., US 2011/0314618 Al, pub. Dec. 29, 2011 (“Binner”).
3 Ghosh et al., US 2005/0053898 Al, pub. March 10, 2005 (“Ghosh”)
4 Hibst et al., US 6,186,780 Bl, issued Feb. 13, 2001 (“Hibst”).
5 Fritsch et al., US 2012/0036655 Al, pub. Feb.16, 2012 (“Fritsch”).
6 Taylor, US 7,732,952 Bl, issued June 8, 2010.
7 Birecki et al., 7,386,333 Bl, issued June 10, 2008 (“Birecki”).
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Appeal 2016-006220
Application 13/761,418
Principles of Law
“The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results.”
KSR Inti Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). “[W]hen a patent
‘simply arranges old elements with each performing the same function it had
been known to perform’ and yields no more than one would expect from
such an arrangement, the combination is obvious.” Id. at 417 (quoting
Sakraida v. Ag Pro. Inc., 425 U.S. 273, 282 (1976)).
“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.” In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir.
2003).
Analysis
Rejection No. 1
We select claim 1 for consideration because the claims were not
separately argued.
The Examiner finds that both Binner and Hibst utilize fluorescence
radiation to detect plaque in teeth, particularly emitting radiation at teeth and
receiving reflected radiation for analysis and detection of plaque. (Ans. 9,
citing Binner Abstract, 136; Hibst Abstract, col. 3,11. 60-62, Figs. 1,2.)
The Examiner also finds that Binner teaches that “[depending on the
particular fluorescent agent chosen, the peak wavelength of the incident
radiation may vary.” (Ans. 9, citing Binner 131.) The Examiner also finds
that Hibst teaches
a dental device having a light source 1 emitting an excitation
radiation 9 having a wavelength greater than about 580 nm,
which is the same as the claimed range of greater than 580 (claim
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Application 13/761,418
1); and the recognition of dental deposits [results from] detection
of fluorescence radiation having a wavelength above 800 nm,
which overlaps the claimed range of greater than 850 nm (claim
1).
(Ans. 9 (citations omitted), citing Hibst col. 2,11. 47—50, 65—67.)
Based on those findings, the Examiner concludes that
it would have been obvious to one having ordinary skill in the art
at the time the invention was made to modify Binner by utilizing
the wavelength ranges such as excitation radiation having a
wavelength greater than about 580 nm and receiving
fluorescence radiation having a wavelength greater [than] 800
nm as taught by Hibst to be known [for] effective excitation []
radiation and detection of dental plaque deposit.
(Ans. 10.)
Appellants argue that “[o]ne of ordinary skill in the art would not
combine Hibst with Binner to produce the presently claimed invention, as
Hibst states the reflected radiation needs to be 800nm or more and Binner
states that the peak wavelength for reflected radiation is between 520nm and
530nm” (i.e. below 800nm). (Br. 4.) Appellants argue further that one of
ordinary skill in the art would not combine Hibst with Ghosh because
“Ghosh does not even disclose a sensor for detecting reflected radiation.”
(Id.)
We are not persuaded. Here, claim 1 recites a combination of familiar
elements, yielding predictable results, with each element performing the
same function it had been known to perform. See KSR, 550 U.S. at 416—17.
Moreover, the use of Hibst’s reflected radiation of 800 nm or more in place
of Binner’s reflected radiation wavelength constitutes the mere substitution
of one wavelength for another wavelength known in the field, yielding
predictable results. (Id.) In addition, the reflected radiation wavelength
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Appeal 2016-006220
Application 13/761,418
range of Hibst (above about 800 nm) overlaps the claimed wavelength range
of “greater than about 850 nm,” rendering the claimed range prima facie
obvious.8 See In re Peterson, 315 F.3d at 1329. Appellants advance no
persuasive arguments or evidence overcoming that prima facie case.
Appellants’ argument that Ghosh does not disclose a sensor for
detecting reflected radiation is similarly unpersuasive. The rejection of
claim 1 is based on the teachings of a combination of references, and Ghosh
is cited for its teaching of a light probe as claimed, as well as other
teachings. (Ans. 4.) See In re Keller, 642 F.2d 413, 425 (CCPA 1981) (the
test for obviousness is “what the combined teachings of the references would
have suggested to those of ordinary skill in the art” and not “that the claimed
invention must be expressly suggested in any one or all of the references.”).
Accordingly, for the reasons of record and as set forth above, we
affirm the rejection of claim 1. Claims 3—5, 11, and 12 were not argued
separately and fall with claim 1.
Rejection No. 2
Independent claim 10 recites “[a] handle section for an oral health
detection device” and includes the same wavelength limitations as recited in
claim 1. (Br. 8—9.) Appellants contest the rejection of claim 10 by
advancing the same arguments as set forth above (Br. 4—5), except that
Appellants argue that Taylor (rather than Ghosh) “does not even disclose a
sensor for detecting reflected radiation” {id. at 5). In this rejection, the
8 We also agree with the Examiner that the claimed wavelengths are result
effective variables. See In reAller, 220 F.2d 454, 456 (CCPA 1955)
(“[Wjhere the general conditions of a claim are disclosed in the prior art, it is
not inventive to discover the optimum or workable ranges by routine
experimentation.”).
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Application 13/761,418
Examiner cites Taylor for teachings such as “an electronic/power driven
toothbrush having a motor 16 and a drive shaft 17” and “a coupling section
at an end of the handle section.” (Ans. 7.)
Accordingly, for the reasons of record and as set forth above in
connection with Rejection No.l, we affirm the rejection of claim 10.
Rejection No. 3
Appellants contest the rejection of claim 6 (dependent from claim 1)
by advancing the same arguments as set forth above in connection with
claim 1. (Br. 5—6.) Accordingly, for the reasons of record and as set forth
above in connection with Rejection No. 1, we affirm the rejection of claim 6.
Claims 7—9 were not argued separately and fall with claim 6.
Conclusions of Law
Rejection No. 1: A preponderance of evidence of record supports the
Examiner’s rejection of claim 1 under 35 U.S.C. § 103(a). Claims 3—5, 11,
and 12 fall with claim 1 because they were not argued separately.
Rejection No. 2: A preponderance of evidence of record supports the
Examiner’s rejection of claim 10 under 35 U.S.C. § 103(a).
Rejection No. 3: A preponderance of evidence of record supports the
Examiner’s rejection of claim 6 under 35 U.S.C. § 103(a). Claims 7—9 fall
with claim 6 because they were not argued separately.
SUMMARY
We affirm the rejections of all claims on appeal.
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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