Ex Parte Krueger et al

Patent Trial and Appeal Board

Dec 26, 2012

12023165 (P.T.A.B. Dec. 26, 2012)

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.
12/023,165 01/31/2008 Brad D. Krueger 225895-130202 6963
44200 7590 12/27/2012
HONIGMAN MILLER SCHWARTZ & COHN LLP
350 East Michigan Avenue
Suite 300
Kalamazoo, MI 49007-3800
EXAMINER
SMALLEY, JAMES N
ART UNIT PAPER NUMBER
3781
MAIL DATE DELIVERY MODE
12/27/2012 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte BRAD D. KRUEGER, BRETT A. KRUEGER,
KATIE L. KRUEGER, and THOMAS A. KRUEGER
____________________

Appeal 2010-006262
Application 12/023,165
Technology Center 3700
____________________

Before JOHN C. KERINS, EDWARD A. BROWN, and
JAMES P. CALVE, Administrative Patent Judges.

BROWN, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2010-006262
Application 12/023,165

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STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 1, 2, 4-6, 11-15, 34, 37-40, 43, 44, and 46-51.
App. Br. 2. Claims 3, 7-10, 16-33, 35, 36, 41, 42, 45, and 52 are withdrawn.
Id. We have jurisdiction over this appeal under 35 U.S.C. § 6(b).
We affirm-in-part.
THE CLAIMED SUBJECT MATTER
Claims 1, 4, 11, 14, and 34 are independent. Claim 1, reproduced
below, is illustrative of the appealed subject matter:
1. A spill inhibitor for a container, the spill
inhibitor comprising:
a spill inhibitor body defining an opening;
a plurality of compliant finger projections
extending from the spill inhibitor body and
arranged to substantially fully cover the opening
for impeding movement of an item through the
opening; and
a fastener disposed on the spill inhibitor
body and configured to releasably fasten the spill
inhibitor to a container;
wherein at least one finger projection has a
cross-sectional width substantially similar to a
cross-sectional height;
wherein at least one finger projection has a
first end attached to the spill inhibitor body and
extends to an unattached distal, second end; and
wherein at least one finger projection has a
durometer of between about 30 Shore A and about
60 Shore A.
THE REJECTIONS
1. Claims 1, 2, 5, 6, 12-15, 34, and 38-40 are rejected under 35
U.S.C. § 103(a) as unpatentable over Blazer (US 1,527,112; iss. Feb. 17,
1925) and Gueret (US 5,238,011; iss. Aug. 24, 1993).
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Application 12/023,165

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2. Claims 4, 44, 46, and 48-51 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Blazer and Hayman (US 5,752,604; iss. May
19, 1998).1
3. Claims 11, 37, and 47 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Blazer, Hayman, and Kreyer (US 5,652,993; iss. Aug. 5,
1997).2
4. Claim 43 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Blazer and Yakopcic (US 7,162,766 B1; iss. Jan. 16, 2007).3
ANALYSIS
Rejection of claims 1, 2, 5, 6, 12-15, 34, and 38-40
Claims 1, 2, 5, 6, 12, 13, and 15
Claim 1 recites "at least one finger projection has a durometer of
between about 30 Shore A and about 60 Shore A." The Examiner found
Blazer discloses the claimed subject matter except for a teaching of the
Shore A hardness of its bristles. Ans. 3. The Examiner relied on Gueret for
disclosure of bristles having a hardness that encompasses the claimed range.
Id. The Examiner concluded that it would have been obvious to one of
ordinary skill in the art to form the hair bristles of Blazer's device of

1 The ground of rejection is stated to be based on Blazer and Hayman. Ans.
6. However, the Examiner also relies on Gueret in the statement of the
rejection. Ans. 6-8. Appellants address the rejection as also being based on
Gueret. App. Br. 5, 9. Accordingly, we analyze the rejection of claims 4,
44, 46, and 48-51 as being based on Blazer, Hayman, and Gueret.
2 Claims 37 and 47 depend from claims 34 and 4, respectively. Accordingly,
we treat the rejection of claims 37 and 47 as being based on Blazer,
Hayman, Kreyer, and Gueret. We analyze the rejection of independent
claim 11 as being over only Blazer, Hayman, and Kreyer.
3 As claim 43 depends from claim 34, we analyze the rejection of claim 43
as being based on Blazer, Yakopcic, and Gueret.
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thermoplastic, within the claimed durometer range, as taught by Gueret, to
be of sufficient rigidity. Id. The Examiner also asserted that this
modification of Blazer is a simple substitution of plastic bristles for hair
bristles with a predictable result, and would involve use of a known
technique to improve a device. Ans. 4.
We agree with Appellants that the combination of Blazer and Gueret
does not support the rejection. Blazer discloses a hair receiver including a
central opening 7 through which hair wrapped on a person's finger is
inserted. See Blazer, p. 1, ll. 103-106; Fig. 1. The hair receiver includes a
ring 10 provided with hair bristles 14, which extend inwardly and
downwardly inside the receiver and form an opening for insertion of a
finger. See Blazer, p. 2, ll. 19-26; Fig. 2. The bristles 14 cause removal of
hair from the user's finger as the finger is withdrawn from the opening. See
Blazer, p. 2, ll. 26-32.
Appellants point out that Gueret discloses "'a brush for the application
of a make-up product, especially for the application of mascara to the
eyelashes . . .'" and does not disclose a spill inhibitor for a container. App.
Br. 6. Regarding the bristles of its brush, Gueret states: "The bristles used
for brushes of this kind must be selected in such a manner that the brush
does not cause too much irritation for sensitive eyes. However, the brush
must also be capable of depositing a sufficient quantity of the make-up
product, especially on the eyelashes." See Gueret, col. 1, ll. 14-19. Gueret
discloses that the brush comprises bristles made of a soft material having the
Shore hardness relied on by the Examiner and also a sufficient diameter to
prevent them from being too supple. See Gueret, col. 1, ll. 48-54.
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The Examiner has not articulated an adequate reason why one of
ordinary skill in the art would have looked to Gueret's teaching of a brush
with bristles of a particular durometer range for the application of a make-up
product in a particular manner, in addressing how to prevent or impede
movement of an item through an opening of a container, as called for in
claim 1. In this regard, the Examiner found Blazer already has finger
projections 14 for that purpose. See Ans. 2-3, 10. However, "there must be
some articulated reasoning with some rational underpinning to support the
legal conclusion of obviousness." See KSR Int'l Co. v. Teleflex Inc., 550
U.S. 398, 418 (2007). The Examiner’s determination that one of ordinary
skill in the art seeking to modify bristles "would look to other devices which
teach modifying bristles" (Ans. 11) does not provide an adequate reason why
a skilled artisan would have modified the bristles of Blazer's hair receiver in
the first place. Hence, we do not sustain the rejection of claim 1, and claims
2, 5, 6, 12, 13, and 15, which depend therefrom.
Claim 14
Independent claim 14 is also directed to a spill inhibitor for a
container. The Examiner found Blazer does not teach a body molded as one
piece, but concluded that it would have been obvious to form the spill
inhibitor body in one piece, "of the same material as that of the bristles, as
modified above," for the benefit of forming the body in a simple
manufacturing process. Ans. 5. Based on this conclusion, we understand
that the Examiner's rejection modifies Blazer's hair receiver in view of
Gueret's teaching of plastic bristles. However, as discussed supra, the
Examiner did not articulate an adequate reason why one of ordinary skill in
the art would have turned to Gueret's teaching of a brush for applying make-
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Application 12/023,165

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up for the purpose of modify Blazer's hair receiver. We do not sustain the
rejection of claim 14.

Claims 34 and 38-40
Independent claim 34 is directed to a spill inhibiting container. The
Examiner relied on Gueret for disclosure regarding the same hardness
limitation recited in claim 1 noted supra. Ans. 2-3. Appellants' contentions
for claim 34 are the same as those for claim 1. App. Br. 6-8. For reasons
similar to those discussed supra for claim 1, we do not sustain the rejection
of claim 34, and claims 38-40 dependent therefrom.
Rejection of claims 4, 44, 46, and 48-51
Regarding claim 4, the Examiner found Blazer does not disclose the
shore A hardness of its bristles. Ans. 6. The Examiner relied on Gueret to
cure this deficiency, stating similar reasoning as that discussed supra with
respect to claim 1. Ans. 6-8. The Examiner also relied on Hayman for
disclosure regarding a threaded connection. Ans. 6. The Examiner
concluded that it would have been obvious to modify the connection in
Blazer to have a threaded connection to prevent accidental removal. Id.
For reasons similar to those discussed supra in regard to claim 1, the
Examiner did not articulate an adequate reason why one of ordinary skill in
the art would have turned to Gueret to modify Blazer's hair receiver. Thus,
we do not sustain the rejection of claim 4, and claims 44, 46, and 48-51,
which depend from claim 4.
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Rejection of claims 11, 37, and 47
Claim 11
The rejection of claim 11 is based on the combination of Blazer,
Hayman, and Kreyer. The Examiner relied on Hayman for disclosure
regarding a threaded connection, as applied to claim 4 discussed supra. Ans.
9. Claim 11 recites that "the finger projections extend inwardly toward and
substantially normal to a single longitudinal plane defined by the spill
inhibitor body." The Examiner found Kreyer discloses a cleaning device
having bristles configured substantially normal to a longitudinal plane. Ans.
9 (citing Kreyer, Fig. 3). Claim 11 also recites that "the finger projections
being arranged substantially co-planar and substantially parallel to one
another in one or more layers spaced from each other along the longitudinal
plane." The Examiner also found that Kreyer discloses that at least the
bristles axially located in the middle of each brush 22 are in vertically-
spaced horizontal planes. Ans. 9 (citing Kreyer, Fig. 4). The Examiner
concluded that it would have been obvious to modify the orientation of
Blazer's bristles, to orient them substantially normal to the longitudinal
plane, as taught by Kreyer, to prevent the bristles from digging into the
finger of a user upon removal. Ans. 10.
Appellants acknowledge that Kreyer shows two oppositely facing
bristle brushes, but contend that Kreyer fails to disclose finger projections
that are necessarily arranged to extend inwardly toward and substantially
normal to a single longitudinal plane defined by the spill inhibitor body.
App. Br. 9; Reply Br. 6. However, we agree with the Examiner's finding
that Figure 3 of Kreyer shows brushes 22 that extend "substantially normal"
to a longitudinal plane between facing brushes.
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Appellants also contend that Kreyer fails to disclose finger projections
that are necessarily arranged substantially co-planar and substantially
parallel to one another in one or more layers spaced from each other along
the longitudinal plane. App. Br. 9; Reply Br. 6. However, Appellants have
not persuasively apprised us of any error in the Examiner's finding that
Figure 4 of Kreyer shows brushes that are arranged "substantially" co-planar
and "substantially" parallel to one another in one or more layers spaced from
each other along the longitudinal plane. Thus, we sustain the rejection of
claim 11.
Claims 37 and 47
The Examiner's application of Kreyer and Hayman for the rejection of
claims 37 and 47 does not cure the deficiencies of the Examiner's reliance on
Blazer and Gueret for the rejection of claims 34 and 4, respectively, as
discussed supra. Thus, we do not sustain the rejection of claims 37 and 47.
Rejection of Claim 43
Claim 43 depends from claim 34. The Examiner's application of
Yakopcic with respect to claim 43 (Ans. 10) does not cure the deficiencies
of the Examiner's reliance on Blazer and Gueret for the rejection of claim
34. Thus, we do not sustain the rejection of claim 43.
DECISION
The rejection of claim 11 is AFFIRMED, and the rejection of claims
1, 2, 4-6, 12-15, 34, 37-40, 43, 44, and 46-51 is REVERSED.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

Appeal 2010-006262
Application 12/023,165

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AFFIRMED-IN-PART

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