The Gillette Company

Patent Trials and Appeals BoardJun 1, 2021

2020005202 (P.T.A.B. Jun. 1, 2021)

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. 14/737,074 06/11/2015 Ming Laura Xu 13844 5647 27752 7590 06/01/2021 THE PROCTER & GAMBLE COMPANY GLOBAL IP SERVICES CENTRAL BUILDING, C9 ONE PROCTER AND GAMBLE PLAZA CINCINNATI, OH 45202 EXAMINER DONG, LIANG ART UNIT PAPER NUMBER 3724 NOTIFICATION DATE DELIVERY MODE 06/01/2021 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 mayer.jk@pg.com pair_pg@firsttofile.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MING LAURA XU, CHARLES SAMUEL WHITE, NORIHIDE FUKUZAWA, and TOMONORI UENO Appeal 2020-005202 Application 14/737,074 Technology Center 3700 Before BENJAMIN D. M. WOOD, JILL D. HILL, and LEE L. STEPINA, Administrative Patent Judges. STEPINA, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1, 3–5, 14, 16, and 17.2 See Final Act. 1. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as The Gillette Company LLC. Appeal Br. 2. 2 Claims 6–13 and 18–22 are withdrawn. Claims 2 and 15 are cancelled. See Amendment filed on February 13, 2019. Appeal 2020-005202 Application 14/737,074 2 CLAIMED SUBJECT MATTER The claims are directed to a razor blade composed of a type of steel containing an amount of molybdenum in a specific range. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A razor blade formed of a substrate, the substrate comprising an amount of Molybdenum (Mo) ranging from about 1.7% to about 5% by weight of composition, said razor blade further comprising a bent portion in a bend zone. Appeal Br. 15 (Claims App.). REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Nakatsu US 2002/0174549 A13 Nov. 28, 2002 Peterson US 2011/0314678 A1 Dec. 29, 2011 REJECTIONS4 I. Claim 3 is rejected under 35 U.S.C. § 112(b) as indefinite. Final Act. 2. II. Claims 1, 3–5, 14, 16, and 17 are rejected under 35 U.S.C. § 103 as unpatentable over Peterson and Nakatsu.5 Final Act. 3. 3 In the heading for Rejection II, the Examiner’s listing of the applied references includes a typographical error. See Final Act. 3. Specifically, the Examiner’s heading presents the publication number of Nakatsu as US 2002/0174649 rather than US 2002/0174549. See id. 4 The Examiner withdrew a rejection of claim 4 as indefinite. See Final Act. 2; Ans. 6. 5 Although the heading for this rejection indicates that both Peterson and Nakatsu are applied, the body of the rejection indicates that the Examiner also considers Peterson, alone, to meet all the requirements of claim 1. See Final Act. 3. Appeal 2020-005202 Application 14/737,074 3 OPINION Rejection I—Indefiniteness Claim 3 The Examiner determines that the word “substantially” in claim 3 is a relative term not defined by the Specification, and, therefore, a person of ordinary skill in the art would not be apprised of the scope of the claimed invention. Final Act. 2–3. Arguing that the scope claim 3 would be clear to a person of ordinary skill in the art, Appellant relies on disclosed examples of material (i) having cracks, (ii) having substantially no cracks, and (iii) having no cracks. Appeal Br. 5. Specifically, Appellant argues that Table 1 and Figures 2B and 2C describe an arrangement of steel having several (or many) cracks. Id. In contrast, Appellant argues, Figures 3C is described as having substantially no cracks. Id. Appellant further argues that Figures 4B and 4C are described as having no cracks. Id. In reply, the Examiner finds that Appellant’s Figure 3C is not described as having any particular level of magnification, which, according to the Examiner, undermines Appellant’s argument. Ans. 6. Additionally, the Examiner states, “looking at Figure 3C, there is a portion of the razor blade that can be considered ‘cracks,’ thus it is unclear what level or threshold of cracks would meet the phase ‘substantially no cracks.’” Id. Appellant has the better position because, contrary to the Examiner’s finding, Appellant’s Specification indicates that Figure 3C (which is described as including substantially no cracks) is taken at a magnification of 5000X. See Spec. 15:31–16:10. Based on Figure 3C and its description in the Specification, a person of ordinary skill in the art would understand the word “substantially” in claim 3 to mean that the bent portion, when viewed Appeal 2020-005202 Application 14/737,074 4 at a magnification of 5000X, does not contain a significant number of cracks. We do not sustain the rejection of claim 3 as indefinite. Rejection II—Peterson and Nakatsu The Examiner finds that Peterson discloses all the elements of claim 1 based on an interpretation of claim 1 in which Peterson’s disclosure of steel having molybdenum in an amount from about 1.2% to about 1.4% satisfies the requirement for molybdenum in an amount ranging from about 1.7% to about 5%. See Final Act. 3. As an alternative basis for rejecting claim 1, the Examiner relies on Nakatsu to teach the use of molybdenum within the recited range of about 1.7% to about 5%. See id. (citing Nakatsu ¶¶ 12–14, 30, 31). The Examiner reasons that it would have been obvious to modify the steel of Peterson’s blade to have molybdenum in the range recited in claim 1 in order to improve corrosion resistance. Id. (citing Nakatsu ¶ 31). (i) Peterson Alone Claims 1, 3–5, 14, 16, and 17 First, Appellant argues that the Examiner relies on an unreasonable extension of Peterson’s range in order to find that Peterson discloses molybdenum in an amount within the range recited in claim 1. Appeal Br. 8. In this regard, Appellant contends that Peterson’s range spans only 0.2% and would have to be expanded by 0.3% in order to explicitly overlap the recited range. Id. In response, the Examiner states, since Appellant’s disclosure never discusses the meets and bounds of “about” with respect to both ends of the claimed Mo range (i.e., is it ±0.1 % or± 1.0% ?), the Examiner applied the Broadest Reasonable Interpretation (BRI) standard while taking into account the range of “about” to be± 1.0%, thus making Appeal 2020-005202 Application 14/737,074 5 Appellant’s allowable range to be inclusive of 0.7% to 6% of Mo. Ans. 7–8. Thus, the Examiner relies primarily on the word “about” in claim 1, and its lack of definition in the Specification, as a reason for interpreting claim 1 broadly enough to read on Peterson’s disclosed amount of molybdenum. We agree with Appellant that a person of ordinary skill in the art would not consider Appellant’s claimed range of from about 1.7% to about 5% to read on Peterson’s range of about 1.2% to about 1.4%. We note that Appellant’s Specification discusses the prior art and explains that one known example of steel alloy comprised of 1.0 to 1.6% molybdenum, and this example exhibited cracking and fracturing in blades non-flat (e.g., curved) shapes. See Spec. 2:17–25. The Specification goes on to explain the benefits of using alloys with molybdenum contents of “about” 1.6% to about 5% and “larger than 1.6%”. See Spec. 3:9–13, 4:6–14, 7:5–11. Thus, a person of ordinary skill in the art reading claim 1 in light of the Specification would have understood Appellant’s claimed range to exclude alloys with molybdenum content below 1.6%. We also agree with Appellant that Peterson’s disclosed range of about 1.2% to about 1.4% is narrow relative to the gap between its stated upper limit, “about 1.4%,” and the 1.7% lower limit of the range recited in claim 1. In light of the broadest reasonable interpretation of claim 1 in light of the Specification, it would be an overreach to read Peterson’s “about 1.2% to about 1.4%” range as falling within the range recited in claim 1. Accordingly, we do not sustain the Examiner’s rejection of claim 1, and claims 3–5, 14, 16, and 17 depending therefrom, on the basis of Peterson alone. Appeal 2020-005202 Application 14/737,074 6 (ii) Peterson and Nakatsu Claim 1 Appellant next argues that Peterson, before the Examiner’s proposed modification based on Nakatsu, solves any corrosion problem in its blade material. Appeal Br. 10 (citing Peterson ¶¶ 25, 29). Thus, according to Appellant and contrary to the Examiner’s stated rationale, “one of ordinary skill in the art would have no reason to (further) modify Peterson’s razor blade with the teachings of Nakatsu.” Id. The Examiner responds, and we agree, the portions of Peterson cited by Appellant address corrosion caused by cracks, not corrosion per se. Ans. 9; see also Peterson ¶¶ 25, 29. There is no question that Nakatsu discloses that molybdenum improves corrosion resistance. See Nakatsu ¶ 31. Even if Peterson teaches alleviating corrosion related to cracks by reducing the number of cracks (see Peterson ¶¶ 25, 29), a person of ordinary skill in the art would have found it obvious to further improve corrosion resistance by increasing the amount of molybdenum in Peterson’s blade material. We sustain the Examiner’s rejection of claim 1 as unpatentable over Peterson and Nakatsu. Claim 4 Claim 4 depends from claim 1 and recites, in part, “said bent portion comprises substantially no tempered carbides (M3C).” Appeal Br. 15 (Claims App.). The Examiner finds that Peterson discloses this limitation in paragraph 27. Appellant replies that Peterson’s paragraph 27 is silent regarding the presence vel non of carbides in any particular portion of its blade, much less a bent portion. Appeal Br. 11. The Examiner responds that paragraph 27 teaches the content of Peterson’s razor blade material, and, by Appeal 2020-005202 Application 14/737,074 7 not mentioning tempered carbides, teaches the absence of tempered carbides. Ans. 9–10. The Examiner has the better position because, in the context of paragraph 27 of Peterson, a person of ordinary skill in the art would understand Peterson’s blade material to be devoid of tempered carbides. Specifically, Peterson’s paragraph 27 appears to list the constituents of its blade, and by omitting any mention of carbides from this list, implies their absence. Accordingly, a preponderance of the evidence supports the Examiner’s finding of fact on this point. Appellant is correct in noting that the composition disclosed in Peterson’s paragraph 27 is not specific to the bent portion of the blade. However, a person of ordinary skill in the art would understand the disclosed composition (which omits tempered carbides) to make up the bent portion of the blade (as well as every other portion of the blade), meeting the requirements of claim 4. In this regard, claim 4 does not require the bent portion of the blade to be the only portion of the blade that comprises substantially no tempered carbides. See Appeal Br. 15 (Claims App.). We sustain the rejection of claim 4 as unpatentable over Peterson and Nakatsu. Claim 5 Claim 5 depends from claim 1 and recites, in part, “wherein said bent portion comprises tempered carbide of about 0.1 μm or smaller in diameter.” Appeal Br. 15 (Claims App.). The Examiner finds that Nakatsu teaches this limitation in paragraphs 10 and 14. Final Act. 4. The Examiner reasons it would have been obvious to implement tempered carbides, having a diameter of about 0.1 μm or smaller, in Peterson’s blade material because it would result in a sharper razor blade. Id. at 4–5 (citing Nakatsu ¶ 11). Appeal 2020-005202 Application 14/737,074 8 Appellant argues “there is no teaching or suggestion in the combination of Peterson and Nakatsu that any particular portion of the razor blade, specifically the bent portion of the razor blade, comprises tempered carbide with the recited diameter.” Appeal Br. 12. This argument does not apprise us of Examiner error because the Examiner’s proposed modification is to include carbides having a diameter of about 0.1 μm or smaller in Peterson’s entire blade. See Final Act. 4; Ans. 11. Once Peterson’s entire blade includes the recited carbides, the bent portion of the blade will include them as well. Appellant next argues that, “[i]n general, the presence of carbides is undesirable, as discussed in detail in both Appellant’s Specification and Nakatsu.” Appeal Br. 12 (citing Spec. 6:27–7:11; Nakatsu ¶¶ 5, 10). Appellant contends, “[i]t is believed that the improved properties such as sharpness discussed in cited paragraph [0011] of Nakatsu are achieved, at least in part, by reducing the amount of carbide (i.e., precipitate) formation.” Appeal Br. 12–13 (citing Nakatsu ¶¶ 11, 31). In response, the Examiner finds paragraphs 11 and 14 support the finding that the proposed modification would provide a sharper blade. Ans. 10. Appellant’s argument does not apprise us of Examiner error. Nakatsu discloses that carbides having diameters of 0.1 μm and larger cause a deterioration of corrosion resistance. See Nakatsu ¶ 10; see also id. ¶¶ 5–6. However, Nakatsu also discloses that providing a razor blade material with carbides having a diameter of less than 0.1 μm can result in “[t]he razor blade material [having] high hardness, high strength and good corrosion resistance.” Id. ¶ 14; see also id. ¶ 36. We understand these characteristics to assist in providing a sharp blade, in accordance with the Examiner’s stated Appeal 2020-005202 Application 14/737,074 9 reasoning. See Final Act. 4–5. Accordingly, we sustain the rejection of claim 5 as unpatentable over Peterson and Nakatsu. Claims 3, 14, 16, and 17 Appellant does not make arguments for the patentability of claims 3, 14, 16, and 17 aside from those discussed above regarding claim 1. See Appeal Br. 11–13. Accordingly, for the same reasons, we sustain the rejection of claims 3, 14, 16, and 17 as unpatentable over Peterson and Nakatsu. CONCLUSION The Examiner’s decision to reject claims 1, 3–5, 14, 16, and 17 is affirmed. More specifically, DECISION SUMMARY Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 3 112(b) Indefiniteness 3 1, 3–5, 14, 16, 17 103 Peterson, Nakatsu 1, 3–5, 14, 16, 17 Overall Outcome 1, 3–5, 14, 16, 17 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