Wang, Xiandong

Patent Trials and Appeals BoardMar 3, 2020

12712542 - (D) (P.T.A.B. Mar. 3, 2020)

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. 12/712,542 02/25/2010 Xiandong Wang Z-8418 2911 27752 7590 03/03/2020 THE PROCTER & GAMBLE COMPANY GLOBAL IP SERVICES CENTRAL BUILDING, C9 ONE PROCTER AND GAMBLE PLAZA CINCINNATI, OH 45202 EXAMINER DAVIES, SAMUEL ALLEN ART UNIT PAPER NUMBER 3724 NOTIFICATION DATE DELIVERY MODE 03/03/2020 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 XIANDONG WANG Appeal 2019-004164 Application 12/712,542 Technology Center 3700 ____________ Before MICHAEL J. FITZPATRICK, WILLIAM A. CAPP, and RICHARD H. MARSCHALL, Administrative Patent Judges. FITZPATRICK, Administrative Patent Judge. DECISION ON APPEAL Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s final decision rejecting claims 1, 2, 4–8, 10–13, 15–24, and 26–31.1 We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 Appellant is the “applicant” under 37 C.F.R. § 1.42(a) and identifies The Gillette Company LLC, as the real party in interest. Appeal Br. 1. Appeal 2019-004164 Application 12/712,542 2 STATEMENT OF THE CASE The Specification The Specification’s disclosure “relates to razor blades, and more particularly to an improved cap structure.” Spec. 1:6. The Claims Claims 1, 2, 4–8, 10–13, 15–24, and 26–31 are rejected. Final Act. 1. No other claims are pending. Id. Claim 1 is illustrative and reproduced below. 1. A razor cartridge comprising: one or more blades, each of said blades having a cutting edge; and a cap structure, disposed behind said blades and extending across a length of said edges, having a plurality of flexible skin engaging elements, disposed such that a first one of said elements is disposed behind a second one of said skin engaging elements and projecting in a direction parallel to the cutting edge(s) of the blade(s) and at least one shaving aid portion wherein said flexible skin engaging elements are disposed substantially in a central portion of said cap structure behind said blades, and wherein one of said at least one shaving aid portions is disposed in back of at least one of said plurality of flexible skin engaging elements. Claims App. 2 (filed October 5, 2018). Appeal 2019-004164 Application 12/712,542 3 The Examiner’s Rejections The following rejections are before us: 1. claims 1, 2, 4–8, 10–13, 15–24, and 26–31, under 35 U.S.C. § 112 ¶2, as indefinite (Final Act. 4);2 2. claims 1, 2, 4–6, 12, 13, 15, 17, 18, 20, 21, 24, 26–29, and 31, under 35 U.S.C. § 102(b), as anticipated by Clark3 (id. at 7); 3. claims 7, 8, 10, and 11, under 35 U.S.C. § 103(a), as unpatentable over by Clark and Guimont4 (id. at 12); 4. claims 16, 18, 19, and 22, under 35 U.S.C. § 103(a), as unpatentable over by Clark and Brown5 (id. at 13); and 5. claims 23 and 30, under 35 U.S.C. § 103(a), as unpatentable over by Clark and Zhuk6 (id. at 15).7 DISCUSSION Rejection 1—Indefiniteness The Examiner’s indefiniteness rejection is based primarily on limitations that include terms of approximation. Final Act. 4–6. For example, the Examiner determined that claim 1’s “limitation ‘at least one shaving aid portion wherein said flexible skin engaging elements are 2 The Final Action also includes claims 3 and 9 in this rejection (Final Act. 4), but claims 3 and 9 are not pending. See id. at 1; see also Claims App. 2– 3 (omitting claims 3 and 9). 3 US 2003/0159291 A1, published Aug. 28, 2003 (“Clark”). 4 US 2003/0154832 A1, published Aug. 21, 2003 (“Guimont”). 5 US 5,416,973, issued May 23, 1995 (“Brown”). 6 US 2007/0227008 A1, published Oct. 4, 2007 (“Zhuk”). 7 The Final Action also includes a rejection of claims 2 and 6, under 35 U.S.C. § 112 ¶1, for lack of enablement. Final Act. 2. However, the Examiner withdrew that rejection. Ans. 14–15. Appeal 2019-004164 Application 12/712,542 4 disposed substantially in a central portion of said cap structure’ is indefinite.” Id. at 4. Similarly, the Examiner determined the claim 12’s recitation of “at least one skin engaging element extends across greater than about 50% of a length of said cutting edges” is also indefinite. Id. However, terms of approximation are not per se indefinite. “Such broadening usages as ‘about’ must be given reasonable scope; they must be viewed by the decisionmaker as they would be understood by persons experienced in the field of the invention. Although it is rarely feasible to attach a precise limit to ‘about,’ the usage can usually be understood in light of the technology embodied in the invention.” Modine Manufacturing Co. v. U.S. ITC, 75 F.3d 1545, 1554 (Fed. Cir. 1996); see also Anchor Wall Sys. v. Rockwood Retaining Walls, Inc., 340 F.3d 1298, 1310–11 (Fed. Cir. 2003) (“[W]ords of approximation, such as ‘generally’ and ‘substantially,’ are descriptive terms ‘commonly used in patent claims’ to avoid a strict numerical boundary to the specified parameter.). Further, the Examiner has not established that their use here, in the pending claims, renders those claims indefinite. For example, with respect to purportedly indefinite limitation of claim 1, the Examiner asks: “Does this claim limitation require the skin engaging member to be along the central axis of the razor cartridge?” Final Act. 4. Appellant responds that what the limitation requires “is that the [flexible skin engaging] elements be generally located in the center of the cap structure.” Appeal Br. 5. “During prosecution, an examiner’s indefiniteness rejection begins what is intended to be an interactive process in which the applicant has the opportunity to respond to the examiner by amending the claims or by providing evidence or explanation that shows why the claims are not Appeal 2019-004164 Application 12/712,542 5 indefinite.” Ex Parte McAward, No. 2015-006416, 2017 WL 3669566, at *2 (PTAB Aug. 25, 2017) (precedential). Appellant has provided an adequate explanation. Appeal Br. 4–6. The Examiner rejected claims 24 and 31, which respectively depend from claims 1 and 26, for additional reasons. Final Act. 5–6. Claim 24 recites: “The razor cartridge of claim 1 wherein there is a synergy between one of said skin engaging elements and said at least one shaving aid portion during shaving.” Claims App. 4 (emphasis added). Claim 31 recites: “The method of claim 26 wherein a synergy between said skin engaging element and said at least one shaving aid portion during shaving comprises a trapping and releasing of a shaving aid material.” Id. at 5 (emphasis added). The Examiner determined: “It is unclear what the scope of ‘synergy’ includes. Is there an interaction between the shaving aid and the skin engaging member? Does the skin engaging member increase the effectiveness of the shaving aid?” Final Act. 5–6. The Examiner further asked with respect to claim 31: “Is it trapped or is it released? This limitation seems to conflict with itself.” Id. at 6. Appellant argues that “the term ‘synergy’ is adequately described in Appellant’s specification.” Appeal Br. 6 (citing Spec. 14:2–5). Indeed, the Specification discloses: The advantages of having shaving aid portion 34 disposed in front of skin engaging element 32 may be to reduce the drag force of cartridge 30 on the skin and conceivably substantially increase the synergy between shaving aid portion 34 and skin engaging element 32 as may be compared with the cap structure 11 in FIG. 1. This synergy may be realized or enhanced by the trapping of the shaving aid material 35 (e.g., a lubricant material) that is released by shaving aid portion 34 within the fins 33 of skin engaging element 32. Thus, conceivably, during subsequent Appeal 2019-004164 Application 12/712,542 6 shaves, this trapped or additional shaving aid material may be released and delivered to the skin surface more uniformly. Spec. 13:31–14–5. The Specification also states that its invention “provides consumers with a pleasant, tactile sensation and a consistent, comfortable and close shave,” which we will abbreviate as simply a “better shave.” Spec. 4:29–30. Thus, we understand the synergy recited in claims 24 and 31 to be that the skin engaging element and shaving aid portion produce a combined effect greater than the sum of their separate effects as it relates to providing a better shave. The Examiner determined claim 31 was indefinite also because of another limitation. More specifically, the Examiner found that the “trapped and released” limitation of claim 31 “seems to conflict with itself.” Final Act. 6. The words “trapped” and “released” do have opposing meanings, and their conjunction might seem indefinite in the absence of context. But we must read the claims in the context of the Specification. See, e.g., In re Sneed, 710 F.2d 1544, 1548 (Fed. Cir. 1983). The context of the Specification clarifies that trapped does not mean permanently trapped but rather trapped for subsequent release. Spec. 14:2–5. The term “trapped and released” is not indefinite. For the foregoing reasons, we reverse the indefiniteness rejection of claims 1, 2, 4–8, 10–13, 15–24, and 26–31. Rejection 2—Anticipation by Clark Appellant argues the rejected claims, namely claims 1, 2, 4–6, 12, 13, 15, 17, 18, 20, 21, 24, 26–29, and 31—together. Appeal Br. 6–9. We select claim 1 as representative. See 37 C.F.R. § 41.37(c)(1)(iv). Appeal 2019-004164 Application 12/712,542 7 The Examiner found that Clark anticipates claim 1. Final Act. 7–8 (citing Clark ¶19, Fig. 3). The Examiner provided an annotated version of Clark’s Figure 3 showing his detailed findings. Id. at 8. Of particular relevance on appeal are the Examiner’s findings that the upper most surface of 41 and 54 (see Clark Fig. 3) constitute “flexible skin engaging elements.” Id. at 7–8. Appellant argues that neither structure is flexible. Appeal Br. 7 (“Cap portion 54 is not flexible element.”), 8 (“Blade holder 41 is not a flexible element.”). The Examiner answers these arguments by pointing out description by Clark that these structures, in fact, are flexible. Ans. 16 (citing Clark ¶¶ 16, 19). Appellant did not file a reply brief, and Appellant’s argument does not apprise us of Examiner error. Appellant also argues that the blade holder 41 “is not part of the cap structure.” Appeal Br. 8. Appellant does not provide a construction for “cap structure” or otherwise explain its position. Id. The Examiner answers this Appellant’s conclusory argument, stating: “Any structure behind the blades in a shaving cartridge can be considered the cap structure if that respective portion of structure helps control how the skin interacts with the cutting edges of the blades and the shaving aid portion 60.” That construction is reasonable in light of the Specification as well as claim 1 itself. For example, claim 1 recites “a cap structure, disposed behind said blades and extending across a length of said [cutting] edges.” Again, Appellant did not file a reply brief. Appellant’s argument does not apprise us of Examiner error. Appeal 2019-004164 Application 12/712,542 8 For the foregoing reasons, we affirm the rejection of claim 1, along with that of claims 2, 4–6, 12, 13, 15, 17, 18, 20, 21, 24, 26–29, and 31, which fall therewith. See 37 C.F.R. § 41.37(c)(1)(iv). Rejection 3—Obviousness in View of Clark and Guimont The rejected claims—namely claims 7, 8, 10, and 11—all depend ultimately from claim 1. Claims App. 3. Appellant argues the rejected these claims together. Appeal Br. 10–12. We select claim 7 as representative. See 37 C.F.R. § 41.37(c)(1)(iv). Claim 7 recites “said at least one foam is impregnated with at least one shaving aid material.” Claims App. 3. The Examiner relied on Guimont for teaching this additional limitation. Final Act. 12 (citing Guimont ¶7). The Examiner concluded: It would have been obvious to one having an ordinary skill in the art at the time of the invention to modify the cartridge of Clark with the teaching of Guimont such that the shaving aid member of Clark 60 is made from a shaving aid impregnated foam, as taught by Guimont, because foam inserts are a cost effective alternative as a shaving aid portion to reduce manufacturing costs because polystyrene is a cheap and easy to manufacture product. Id. Appellant argues that “the mere demonstration that such an element independently found in the prior art is not enough of a reason to prompt a person of ordinary skill in the art to reconstruct the known elements the way the claimed invention does.” Appeal Br. 11. This argument does not apprise us of Examiner error, as the Final Action does not rely on the purported “mere demonstration” of the feature in the prior art. Appellant further argues that “[i]t is not disclosed anywhere that Clark’s shaving aid Appeal 2019-004164 Application 12/712,542 9 material is expensive to manufacture.” But the Examiner’s reasoning is not premised on Clark’s shaving aid material being “expensive” to manufacture; it’s merely that Guimont’s foam inserts are a cost effective alternative. Next, Appellant argues that a person of ordinary skill in the art could not modify Clark in view of Guimont, as proposed by the Examiner, without undue experimentation. Appeal Br. 11. Appellant does not explain why this would be so other than to point out that the Examiner “has stated that ‘razors are known to have vast combinations of various skin engaging members with different coatings.’” Id. (quoting Final Act. 12). Appellant’s argument does not apprise us of Examiner error. Finally, Appellant argues that “the Guimont cap structure is not described or shown as having a plurality of flexible skin engaging elements disposed one behind the other and projecting parallel to the cutting edges of the blades.” Id. This argument is not commensurate with the Examiner’s rejection, which relies on Clark for teaching “a plurality of flexible skin engaging elements, disposed such that a first one of said elements is disposed behind a second one of said skin engaging elements and projecting in a direction parallel to the cutting edge(s) of the blade(s),” as recited in independent claim 1. For the foregoing reasons, we affirm the rejection of claim 7, along with that of claims 8, 10, 11, which fall therewith. See 37 C.F.R. § 41.37(c)(1)(iv). Rejection 4—Obviousness in View of Clark and Brown The rejected claims—namely claims 16, 18, 19, and 22—all depend ultimately from claim 1. Claims App. 4. Appellant argues the rejected these Appeal 2019-004164 Application 12/712,542 10 claims together. Appeal Br. 12–15. We select claim 16 as representative. See 37 C.F.R. § 41.37(c)(1)(iv). Claim 16 recites “said plurality of skin engaging elements further comprise polymeric, elastomeric, urethane, olefin, rubber, textile or natural materials, or any combination thereof.” Claims App. 4. The Examiner relied on Brown for teaching this additional limitation, specifically the recited “elastomeric” species. Final Act. 13 (citing Brown 2:63–65). The Examiner concluded: It would have been obvious to one having an ordinary skill in the art at the time of the invention to modify the device of Clark substantially disclosed above with the teaching of Brown in order to produce a cheap structure that is resilient and meets the desired needs of the user. Id. at 13–14. Appellant argues: [O]ne of skill in the art would not ever turn to Brown in the first place since Brown does not have skin engaging elements projecting in a direction parallel to the cutting edges of the blades as in the present invention as well as Brown does not include a shaving aid portion in the cap structure at all and thus the materials, dimensions and spacing of the skin engaging element would not yield predictable results when introduced into the different arrangement of Clark which includes a shaving aid portion disposed on top of a cap portion and which can only accommodate one cap portion 54. The Office minimizes the research and development required in particular within the geometries of a razor cartridge, the latter which is meant to cut hair on a user’s skin as close as possible but also not cut through a user’s skin. There is no motivation to utilize polymeric, elastomeric materials (claim 16), . . . with specific widths, thicknesses and spacing of Brown in the cap portion 54 of Clark and there is no Appeal 2019-004164 Application 12/712,542 11 motivation in Clark to warrant any of the purported modifications using Brown. Appeal Br. 13–14. Appellant’s argument do not apprise us of Examiner error. The Examiner’s proposed modification of Clark in view of Brown in rejecting claim 16 is straightforward and adequately supported on the record presented. See Final Act. 13–14 (citing Brown 2:63–65). Both references are directed to razors. That Clark employs an “elastomeric material” in skin- engaging elements that are not oriented and/or shaped the same as the elastomeric cap member of Brown does not undermine the rejection. Also, Appellant’s assertion of unpredictability is unsupported attorney argument. For the foregoing reasons, we affirm the rejection of claim 16, along with that of claims 18, 19, and 22, which fall therewith. See 37 C.F.R. § 41.37(c)(1)(iv). Rejection 5—Obviousness in View of Clark and Zhuk The rejected claims 23 and 30 respectively depend from independents claim 1 and 26. Claims App. 4–5. Appellant argues these claims together. Appeal Br. 16–17. We select claim 23 as representative. See 37 C.F.R. § 41.37(c)(1)(iv). Claim 23 recites “said cap structure has a cap exposure of about -0.10mm to about 0.2mm.” Claims App. 4. The Examiner relied on Zhuk for teaching this additional limitation, specifically an exposure of 0.06mm. Final Act. 15–16 (citing Zhuk ¶22, Fig. 1). The Examiner concluded: It would have been obvious to one having an ordinary skill in the art at the time of the invention to modify the device of Clark with the teaching of Zhuk by adjusting the exposure of the cap in order to adjust the cutting and safety performance of the blades of the razor. Id. at 16. Appeal 2019-004164 Application 12/712,542 12 Appellant argues “Clark fails to identify the need for changing blade or cap exposures, fails to identify why or how to modify these exposures, or any benefits thereof.” Appeal Br. 17 (emphasis added). However, the Examiner’s rejection relied on Zhuk, not Clark, for providing a reason to modify the cap exposure of Clark. In that regard, the Examiner cited paragraph 22 of Zhuk, which teaches: Blade exposure may be neutral, if the tip is in the plane; positive, if the tip extends beyond the plane towards the user; or negative, if the tip is recessed behind the plane, away from the user. Generally, the greater the exposure, the closer the blade will tend to shave, but also the more likelihood that the blade will nick or cut the user. Blades with negative exposures will nonetheless cut hair, due to the deformable nature of skin and thus the tendency of the skin bulge to flow into the recessed area and towards the blade. Zhuk ¶22 (cited at Final Act. 16). Appellant also argues that, “[w]hile Zhuk’s type of cartridge utilizes different exposures, it is not readily apparent that Clark’s razor cartridge could also utilize different exposures” and that “Zhuk’s benefit of different exposures is not readily transferrable to the blade arrangement of Clark.” Appeal Br. 16–17. Appellant does not support these arguments with any evidence. Accordingly, they do not apprise of us Examiner error. For the foregoing reasons, we affirm the rejection of claim 23, along with that of claim 30, which falls therewith. See 37 C.F.R. § 41.37(c)(1)(iv). Appeal 2019-004164 Application 12/712,542 13 SUMMARY Claims Rejected 35 U.S.C. § References/Basis Affirmed Reversed 1–13, 15–24, 26–31 112 ¶2 Indefiniteness 1, 2, 4–8, 10–13, 15–24, 26–31 1, 2, 4–6, 12, 13, 15, 17, 18, 20, 21, 24, 26–29, 31 102(b) Clark 1, 2, 4–6, 12, 13, 15, 17, 18, 20, 21, 24, 26– 29, 31 7, 8, 10, 11 103(a) Clark, Guimont 7, 8, 10, 11 16, 18, 19, 22 103(a) Clark, Brown 16, 18, 19, 22 23, 30 103(a) Clark, Zhuk 23, 30 Overall Outcome 1, 2, 4–8, 10–13, 15– 24, 26–31 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). AFFIRMED