Ex Parte Meijer et al

Patent Trial and Appeal Board

Jul 31, 2018

13501988 (P.T.A.B. Jul. 31, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/501,988 04/13/2012 Hans Meijer
24737 7590 08/02/2018
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
465 Columbus A venue
Suite 340
Valhalla, NY 10595
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.
2009P01589WOUS 7576
EXAMINER
MACFARLANE, EV ANH
ART UNIT PAPER NUMBER
3724
NOTIFICATION DATE DELIVERY MODE
08/02/2018 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):
patti. demichele@Philips.com
marianne.fox@philips.com
katelyn.mulroy@philips.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HANS MEIJER and OEGE SMEDINGA
Appeal2017-008826
Application 13/501,988
Technology Center 3700
Before JOHN C. KERINS, EDWARD A. BROWN, and
ANNETTE R. REIMERS, Administrative Patent Judges.
KERINS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Hans Meijer and Oege Smedinga ("Appellants") appeal under
35 U.S.C. § 134(a) from the Examiner's final decision rejecting claims 3-11.
We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
Appeal2017-008826
Application 13/501,988
CLAIMED SUBJECT MATTER
Appellants' invention relates to a shaver comprising a shaving head
unit having at least two shaving elements. Spec. 1, 11. 2-3, 14.
Claims 10 and 11 are independent. Claim 10 is illustrative of the
claimed invention and reads as follows:
10. A shaver including a shaving head comprising at least
first and second shaving elements, each of said shaving
elements including:
a. a cap having a plurality of openings for receiving hairs
to be cut off;
b. a cutter member connected to a pivot pin and
including a plurality of cutters arranged for cutting off hairs
extending through the openings of the cap when said cutter
member is rotated around an axis of said pivot pin;
c. a base portion including a drive shaft for coupling to
the pivot pin to rotatably drive the cutter member, the cap being
pivotably connected to the base portion to enable movement of
the cap to a closed position in which the pivot pin is coupled to
the drive shaft and retains cut off hairs within a hair-receiving
space of the shaving element and to an open position in which
the cutter member and cut-off hairs can be removed from the
shaving element; and
d. a support member disposed so as to be pivotably
movable between the cap and the base portion, while remaining
attached to the shaving head, and including a latch member for
detachably latching the support member to the cap, said support
member:
being configured to retain the cutter member in the
cap when in a latched position and to removably hold the
cutter member in the shaving head when in an unlatched
position;
having at least one opening positioned for
facilitating passing of the cut-off hairs into the hair-
receiving space; and
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including a first annular portion shaped for
automatically positioning the pivot pin to align with the
drive shaft when the support member is in the latched
position and the cap is pivoted from the open position to
the closed position.
THE REJECTIONS
The Examiner has rejected:
(i) claims 3-7 and 9-11 under 35 U.S.C. § I03(a) as being
unpatentable over Schneider (WO 2008/010139 Al, published Jan. 24,
2008) in view of Shimizu (US 2009/0320295 Al, published Dec. 31, 2009),
as evidenced by Vaes (US 2,952,909, issued Sept. 20, 1960);
(ii) claim 8 under 35 U.S.C. § I03(a) as being unpatentable over
Schneider in view of Shimizu and Bijl (US 4,257,161, issued Mar. 24,
1981 );
(iii) claims 3-7 and 9-11 under 35 U.S.C. § I03(a) as being
unpatentable over Schneider in view of Shimizu and Vaes; and
(iv) claim 8 under 35 U.S.C. § I03(a) as being unpatentable over
Schneider in view of Shimizu, Vaes, and Bijl.
Claim 11 was objected to because of an informality in the Final Office
Action. Final Act. 2. Appellants amended claim 11 in an Amendment filed
subsequent to the Final Office Action and that Amendment was entered in
an Advisory Action dated November 15, 2016. As such, the objection to
claim 11 appears to be moot, notwithstanding that the Examiner's Answer
does not identify this objection as having been withdrawn.
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Application 13/501,988
ANALYSIS
Claims 3-7 and 9-11--0bviousness--Schneider/Shimizu
The Examiner finds that Schneider discloses a shaving head
comprising a cap 7, a cutter member 9, a base portion ( outer housing 25),
and a support member ( cutter member holder 10). Final Act. 2--4 ( citing
Schneider, Figs. 2, 6-8). The Examiner acknowledges that Schneider does
not disclose that the support member is pivotably movable between the cap
and the base portion. Id. at 4. The Examiner relies on Shimizu as disclosing
a support member ( cutter retaining plate 26) that is pivotably movable
relative to a cap (cutter circumferential rim 24). Id. at 5 (citing Shimizu
,r 37); see also id. at Fig. 7 A. The Examiner concludes that it would have
been obvious to modify the shaving head of Schneider to include a support
member of Shimizu to allow easily separating a cutter member for easy
cleaning. Id. at 6.
Appellants contend that the Examiner's use of "the term [']pivotable
support member['] of Shimizu is mis-descriptive" and that "[ m Jore
correctly, the part referred to is a detachable cutter retaining plate and it does
not perform any pivotable function." Appeal Br. 13 (emphasis omitted;
citing Shimizu ,r 33).
The Examiner responds that
the broadest reasonable interpretation of "pivot" includes "to
tum on or as if on a pivot." As described at paragraph 37 of
Shimizu, the support member "26" of Shimizu is first engaged
to the cap "24" via lug "50", and then the latch "52" of the
support member "26" is engaged with the cap "24". As can be
seen in Fig. 3, if the lug "50" is engaged with the cap "24" and
the latch "52" is not engaged with the cap "24", then the
support member "26" is angled relative to the cap "24". Then,
if latch "52" is brought into engagement with the cap "24", the
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Application 13/501,988
support member "26" must be turned relative to an axis at lug
"50". This turning motion of the support member "26" falls
within the broadest reasonable interpretation of "pivoting".
Ans. 15.
Appellants have the better position. Figure 7B of Shimizu shows that
lug 50 allows the cutter retaining plate 26 to be held in place at one end of
the cutter circumferential rim 24. See Shimizu, Fig. 7B, ,r 36. Thus, the lug
50 acts as a cantilever. The turning motion or movement of the cutter
retaining plate 26 as its latch moves into engagement with cap 24, or the
reverse of that movement, is effected by deformation of the cutter retaining
plate material, and not by pivoting some portion of the retaining plate about
a pivot axis. Thus, the Examiner's finding that Shimizu discloses "a support
member disposed so as to be pivotably movable between the cap and the
base portion" as claimed, is not supported by the evidence.
The Examiner additionally takes the position that Figure 1 of Vaes
evidences that "pivoting is required when one end of a support member 6 is
engaged with a cap 2 until the opposing end of the support member 6 is also
engaged with the cap 2." Final Act. 5. Notwithstanding the Examiner's
position that Vaes discloses a support member that is pivotably movable,
Vaes does not evidence that Shimizu's support member is pivotably
movable.
Accordingly, the Examiner has not established a prima facie case of
obviousness directed to claims 10 and 11, over Schneider in view of
Shimizu. The rejection of claims 10 and 11, and claims 3-7 and 9
depending therefrom, is not sustained.
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Claim 8--0bviousness--Schneider/Shimizu/Bijl
The Examiner does not rely on Bijl in any manner that would remedy
the above-noted deficiency in the rejection of claim 11, from which claim 8
indirectly depends, over Schneider and Shimizu. Final Act. 6-7. For the
same reasons discussed supra, we do not sustain the rejection of claim 8 as
being unpatentable over Schneider, Shimizu, and Bijl.
Claims 3-7 and 9-11--0bviousness--Schneider/Shimizu/Vaes
Appellants argue claims 3-7 and 9-11 as a group. See Appeal Br. 22-
24; see also Reply Br. 32-34. We take claim 10 as representative of this
group, and claims 3-7, 9, and 11 stand or fall with claim 10.
The Examiner finds that Schneider discloses a shaving head including
at least first and second shaving elements 6, each shaving element
comprising a cap 7, a cutter member 9, a base portion (outer housing 25),
and a support member ( cutter member holder 10). Final Act. 7-8 ( citing
Schneider, Figs. 2, 6-8). The Examiner further finds that Schneider
discloses that the base portion includes a drive shaft ( coupling member 18)
for coupling to a pivot pin to rotatably drive the cutter member. Id. at 8.
The Examiner additionally finds that the cap in Schneider is pivotably
connected to the base portion to enable movement of the cap to (1) a closed
position in which a pivot pin is coupled to the drive shaft and in which cut
off hairs are retained within a hair-receiving space 24 of the shaving
element, and to (2) an open position in which the cutter member and cut-off
hairs can be removed from the shaving element. Id. ( citing Schneider, Figs.
2, 6). The Examiner also finds that Schneider discloses that the support
member ( cutter member holder 10) is disposed between the cap and the base
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Application 13/501,988
portion while remaining attached to the shaving head, with the support
member being capable of retaining the cutter member in the cap, and that the
support member has at least one opening positioned to facilitate passing of
the cut-off hairs into the hair receiving space, with the cap being pivotable
from an open position to a closed position. Id. at 9 ( citing Schneider, Figs.
2, 6-8).
The Examiner acknowledges that Schneider does not disclose that: (i)
the support member is pivotally movable between the cap and the base
portion; (ii) the support member includes a latch member for detachably
latching the support member to the cap; (iii) the support member is capable
of retaining the cutter member in the cap when in a latched position and of
removably holding the cutter member in the shaving head when in an
unlatched position; and (iv) the support member includes a first annular
portion shaped for automatically positioning the pivot pin to align with the
drive shaft when the support member is in the latched position and the cap is
pivoted from the open position to the closed position. Id.
The Examiner relies on Shimizu as disclosing: (i) a support member
( cutter retaining plate 2 6) that is movable relative to a cap ( cutter
circumferential rim 24); (ii) that the support member includes a latch
member (hook 52) capable of detachably latching the support member to the
cap; (iii) that the support member is capable of retaining a cutter member
(inner cutter 28) in the cap when in a latched position and of removably
holding the cutter member in the shaving head when in an unlatched
position; and (iv) that the support member includes a first annular portion
( defining inner opening 2 6a) shaped to provide the ability to automatically
position a pivot pin (inner cutter shaft 30) to align with a drive shaft (inner
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cutter drive shaft 5 6) when the support member is in the latched position and
the cap is moved from a detached position to an attached position. Id. at 9--
10 (citing Shimizu, Figs. 3, 7A, ,r,r 36, 37); see also Shimizu, Figs. 2, 7B.
The Examiner concludes that it would have been obvious to modify the
shaving head of Schneider to have the internal shaving element structures of
Shimizu to allow for easily separating the cutter member for easy cleaning.
Id. at 11.
The Examiner relies on V aes as disclosing a support member (U-
shape spring/member keeper 6) that is pivotably movable relative to a cap
( cutting plate 2) with the support member being pivoted from an unlatched
position to a latched position. 1 Id. (citing Vaes, Figs. 1-2, col. 1, 11. 32-35,
col. 2, 11. 7-10). The Examiner concludes that it would have been obvious to
substitute the pivoting connection structure of the Vaes support member for
the connection structure resulting from modifying the shaving head of
Schneider in view of Shimizu, to provide a support member that can be
moved between a latched cutter member retaining position and an unlatched
cutter member releasing position by pivoting movement. Id. at 11-12. The
Examiner explains that the shaving head of Schneider as modified by the
teachings of Shimizu and V aes would yield a support member that is
pivotably movable between the cap and the base because the support
member in Schneider is located between the cap and the base and, with the
proposed modifications, is to be pivotable relative to the cap. Id. at 12.
1 In this ground of rejection that specifically relies on Vaes as well as
Schneider and Shimizu, the Examiner does not rely on a finding that
Shimizu teaches a supporting member that is pivotably movable between a
cap and a base. Final Act. 11; see also id. at 7.
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Appellants contend that Schneider does not disclose the limitation "a
base portion including a drive shaft for coupling to the pivot pin to rotatably
drive the cutter member, the cap being pivotably connected to the base
portion to enable movement of the cap to a closed position in which the
pivot pin is coupled to the drive shaft." Appeal Br. 8; 2 see also Reply Br. 8.
More particularly, Appellants argue that the Examiner incorrectly finds that
coupling member 18 of Schneider is a drive shaft as claimed, but rather, the
drive shaft in Schneider is element 17, and thus, the limitations associated
with the drive shaft are not met by Schneider. Appeal Br. 8.
Appellants' contentions are unpersuasive. As the Examiner advises,
coupling member 18 of Schneider engages with and drives the rotation of
cutter member 9. Ans. 13 (citing Schneider 10, 11. 20-26). The Examiner
takes the position, with which we agree, that elements 17 and 18 in
Schneider collectively can be considered a drive shaft. Id. In terms of the
coupling member 18 meeting other limitations required of the drive shaft,
the coupling member is coupled to cutter member 9 when the cap is in a
closed position. Id. We thus determine that the Examiner reasonably finds
that coupling member 18 of Schneider corresponds to the claimed drive
shaft.
Appellants point out that Schneider's shaving head has a pivotably-
openable cap, whereas Shimizu's shaving head has components that are held
together by a hook and then coupled to a shaving head. Appeal Br. 10. As
2 A substantial number of Appellants' arguments against the rejection of the
claims as being unpatentable over Schneider, Shimizu, and Vaes are
presented in their arguments against the rejection of the claims as being
unpatentable over Schneider and Shimizu. See Appeal Br. 22.
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such, Appellants argue that an ordinary artisan would not look to Shimizu
for improving the shaving head of Schneider. Id.; see also id. at 12-13;
Reply Br. 12.
This contention is in the vein of arguing that Shimizu is nonanalogous
art, and is unpersuasive. Both Schneider and Shimizu are in the same field
of endeavor as the claimed invention. Appellants do not provide evidence or
adequate technical reasoning showing that any particular features disclosed
by Shimizu, and particularly those relied on by the Examiner, would be
inappropriately considered for possible use in modifying the shaving head of
Schneider.
Appellants contend that the Examiner does not provide any clear
articulation of reasons for the modification of Schneider's shaving head, and
instead makes conclusory statements without any rational underpinning.
Appeal Br. 11-12; 3 see also id. at 12-13; Reply Br. 13-15.
This argument is unavailing. The Examiner concludes that it would
have been obvious to modify the shaving head of Schneider to have the
identified internal shaving elements of Shimizu to allow for easily separating
the cutter member from the unit for easy cleaning. Final Act. 11; see also
Ans. 14 ( citing Shimizu ,r 21 ). Whereas Schneider does not allow for
readily separating its support member from its cap, once pivoted away from
the shaving head, Shimizu discloses the desirability of doing so. Ans. 14.
3 We note that any of Appellants' intimations that Shimizu does not disclose
a pivotable support member are unconvincing because, in this rejection, the
Examiner does not consider Shimizu as disclosing that feature. See, i.e.,
Appeal. Br. 12; see also Appeal Br. 13 as discussed further below.
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Accordingly, the Examiner proposes to modify Schneider to have a support
member that may be attached and detached from its cap as desired. Id.
To the extent that Appellants are simply contending that the Examiner
does not explain the proposed modification in a step-by-step manner, that
contention is unavailing. We agree with the Examiner that an ordinary
artisan is not an automaton, and that the proposed modification is within the
level of skill in the art.
Appellants contend that the proposed modification of Schneider in
view of Shimizu is not a simple substitution but would require substantial
modification. Appeal Br. 13. Appellants offer no discussion as to why this
would be the case.
Appellants additionally contend that: (1) Shimizu does not disclose
the limitation "a support member disposed so as to be pivotably movable
between the cap and the base portion, while remaining attached to the
shaving head" (id. at 15-16 (emphasis omitted)); (2) Shimizu does not
disclose the limitation "a latch member for detachably latching the support
member to the cap" which requires the support member remaining attached
to the shaving head (id. at 16-17 ( emphasis omitted)); and (3) Shimizu does
not disclose the limitation "said support member being configured to ...
removably hold the cutter member in the shaving head when in an unlatched
position" (id. at 17-18 (emphasis omitted)). See also Reply Br. 21-36.
These contentions are unavailing. As for (1) and (2) above, in this
ground of rejection, Shimizu is not relied upon as a support member that is
pivotable. Rather, Vaes is cited for this limitation. See Ans. 16-17, 19.
Further, although Appellants are correct that removal of a cutting member in
the Shimizu construction requires the Shimizu support member ( cutter
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retaining plate 26) to be separated from the shaving head (cutter
circumferential rim 24), this is a feature provided in the Schneider
construction, in which a support member ( cutter member holder 10) may be
exposed by the pivoting of the cap, yet remains attached to a shaving head.
See Schneider, Fig. 5.
As for (3) above, the shaving head of Schneider as modified based on
the teachings of Shimizu and Vaes would result in a shaving head having all
of the limitations at issue, and would be essentially the same structure as
Appellants' disclosed embodiment. Thus, to the extent that Appellants'
support member is capable of holding a cutter member in a shaving head
when in an unlatched position (seemingly by gravitational force), so too is
the modified Schneider construction, as shown in Appellants' Figure 5. See
Ans. 17; see also Appellants' Fig. 4.
Appellants contend that Shimizu does not disclose the limitation
directed to the support member "including a first annular portion shaped for
automatically positioning the pivot pin to align with the drive shaft when the
support member is in the latched position and the cap is pivoted from the
open position to the closed position." Appeal Br. 19 ( emphasis omitted).
Appellants argue that Shimizu discloses a two part alignment in which the
cutter assembly 20 must be closed and latched whereas the limitation
requires that the support member is capable of providing alignment when
cap is pivoted from an open position to a closed position. Id. at 20.
This argument is unpersuasive. As the Examiner advises, Appellants
again attack Shimizu individually. Ans. 17-18. As discussed above,
Schneider discloses a cap that is pivotable from an opened position to a
closed position. Further, Shimizu discloses that its cutter retaining plate 26
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comprises an inner opening 26b that aligns its components within the cap.
See Shimizu, Figs. 3, 7 A-7B. Schneider's shaving head as modified by the
teachings of Shimizu would have an annular portion of the support member
that performs the recited function, i.e., providing alignment when the cap is
pivoted from an open position to a closed position. Ans. 17-18.
Turning to Appellants' arguments directed to the V aes reference,
Appellants contend that the keeper member 6 does not pivot from an
unlatched position to a latched position but rather moves from a partly
opened position to a completely open position. Appeal Br. 23-24; see also
Reply Br. 20, 33-34.
Appellants mischaracterize the operation of the V aes structure, in
failing to recognize that it has a closed position in addition to a partly open
position and a completely open position. As the Examiner explains, the
keeper member 6 of Vaes is in a latched position when it is horizontal and
parallel to keeper member 7 and engaged with groove-like retaining means
12 as shown in Figure 2. Ans. 18-19. Thus, Vaes discloses that the keeper
member 6 can pivot from an unlatched position ( completely or partially
open) to a latched position. We further note that, even if we were to credit
Appellants' contention that Vaes does not disclose a latching feature,
Shimizu discloses a latching feature as discussed above.
As discussed above, the Examiner concludes that it would have been
obvious to substitute the lug-and-slot connection structure resulting from the
modification of the Schneider shaving head to include the latching support
member of Shimizu, with a pivoting connection structure as taught by Vaes
to provide a support member that can be moved by pivoting between a
latched cutter member retaining position and an unlatched cutter member
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releasing position. Final Act. 11-12. The Examiner does not suggest
replacing Schneider's cap 7, cutter member 9, and cutter member holder 10
with Shimizu's cutter assembly 20 as Appellants appear to believe. See
Reply Br. 16-17.
Appellants argue that the V aes arrangement4 is not relevant to either
the shaving head of Schneider or the shaving head of Shimizu because in
each, any or all of the multiple cutter assemblies are opened independently
of the other(s). Id. at 14; see also Reply Br. 19. As the Examiner advises,
V aes' keeper member 6 corresponds to the claimed support member and
retains a cutter member in a cap. Ans. 16. The Examiner explains that, as
the keeper member 6 is pivotable from a position retaining a cutter member
to a position that permits removal of the cutter member, Vaes is relevant to
the shaving heads of Schneider and Shimizu. Id.
In the Reply Brief, Appellants contend, for the first time, that
Schneider does not disclose the limitations "a cutter member connected to a
pivot pin" and "a base portion including a drive shaft for coupling to the
pivot pin," because the Examiner incorrectly refers to the center of
Schneider's cutter member 9 as a pivot pin. Reply Br. 9; see also id. at 18.
4 We note Appellants' traversal of the Examiner's position that Vaes
evidences that pivoting is required for a support member. See Appeal Br.
14. However, that contention is relevant to the combination of Schneider
and Shimizu and is not relevant to the combination of Schneider, Shimizu
and Vaes because the Examiner does not take the same position. See Final
Act. 7-12.
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This argument was not raised in the Appeal Brief, and does not appear
to be responsive to any new finding or argument set forth in the Examiner's
Answer. 5 As stated in 37 C.F.R. § 4I.41(b)(2):
Any argument raised in the reply brief which was not raised in
the appeal brief, or is not responsive to an argument raised in
the examiner's answer, including any designated new ground of
rejection, will not be considered by the Board for purposes of
the present appeal, unless good cause is shown.
(Emphasis added). The argument fails to qualify under any of these
conditions, and, accordingly, it will not be considered in the present appeal.
In light of the above, none of Appellants' contentions apprise us of
error in the obviousness rejection over Schneider, Shimizu, and Vaes. The
rejection of claim 10 is sustained, and claims 3-7, 9, and 11 fall with claim
10.
Claim 8--0bviousness--Schneider/Shimizu/Vaes/Bijl
Appellants do not provide any substantive arguments for claim 8, and
rely on the arguments presented for claims 10 and 11. See Appeal Br. 25;
Reply Br. 37. For the reasons discussed above with respect to claim 10, we
are not apprised of error in this rejection.
Accordingly, the rejection of claim 8 as being unpatentable over
Schneider, Shimizu, Vaes, and Bijl, is sustained.
5 In the Final Office Action, the Examiner finds that Schneider discloses "a
cutter member 9 connected to a pivot pin ( shown at a center of the holes 34
in the cutter element 9 in Fig. 6)." Final Act. 7. Thus, the Examiner did not
make this finding for the first time in the Answer.
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DECISION
The rejection of claims 3-7 and 9-11 under 35 U.S.C. § 103(a) as
being unpatentable over Schneider and Shimizu is reversed.
The rejection of claim 8 under 35 U.S.C. § 103(a) as being
unpatentable over Schneider, Shimizu, and Bijl is reversed.
The rejection of claims 3-7 and 9-11 under 35 U.S.C. § 103(a) as
being unpatentable over Schneider, Shimizu, and Vaes is affirmed.
The rejection of claim 8 under 35 U.S.C. § 103(a) as being
unpatentable over Schneider, Shimizu, Vaes, and Bijl is affirmed.
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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