Arthur Putzer et al.

Patent Trials and Appeals Board

Aug 6, 2019

14774215 - (D) (P.T.A.B. Aug. 6, 2019)

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.
14/774,215 09/10/2015 ARTHUR PUTZER 2012P02146WOUS 8703
24737 7590 08/06/2019
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
465 Columbus Avenue
Suite 340
Valhalla, NY 10595
EXAMINER
STEITZ, RACHEL RUNNING
ART UNIT PAPER NUMBER
3772
NOTIFICATION DATE DELIVERY MODE
08/06/2019 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):
katelyn.mulroy@philips.com
marianne.fox@philips.com
patti.demichele@Philips.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ARTHUR PUTZER and TAMARA EBERHARTER
____________

Appeal 2019-001509
Application 14/774,2151
Technology Center 3700
____________

Before JOSEPH A. FISCHETTI, MICHAEL C. ASTORINO, and
AMEE A. SHAH, Administrative Patent Judges.

ASTORINO, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), the Appellants appeal from the
Examiner’s decision rejecting claims 1–16. We have jurisdiction over the
appeal under 35 U.S.C. § 6(b).
We REVERSE.

1 According to the Appellants, the real party in interest is Koninklijke
Philips Electronics N. V. Appeal Br. 1.
Appeal 2019-001509
Application 14/774,215

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STATEMENT OF THE CASE
Claimed Subject Matter
Claim 1, the sole independent claim, is representative of the subject
matter on appeal and is reproduced below.
1. A hair care device for straightening, curling and/or
volumizing hair, the hair care device comprising:
- a first jaw that extends along a first longitudinal axis
and comprises a first handle part which is coupled to a first
heating tip, wherein the first heating tip has a convex-
shaped first heating surface;
distance elements that comprise a plurality of
bristles or ribs arranged at and extending outwardly from
a planar flat bottom surface of the first heating tip opposite
the convex-shaped first heating surface; and
- a second jaw that extends along a second longitudinal
axis and comprises a second handle part which is coupled
to a second heating tip,
wherein the first and the second jaw are coupled to
each other, and via the handle parts moveable relative to
each other between an open position and a closed position,
and
wherein the first heating tip is rotatably coupled to
the first handle part to permit a user to rotate the first
heating tip relative to first handle part about the first
longitudinal axis to switch between (i) a first position for
a curling mode in which the distance elements (i)(a) face
towards, (i)(b) are kept at a distance away from, and (i)(c)
do not contact the second heating tip in response to the first
and the second jaws being in the closed position, and (ii) a
second position for a straightening and volumizing mode
in which the distance elements face away from the second
heating tip and keep the first and second heating tips away
from a user’s scalp to prevent the user from getting burned.

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Application 14/774,215

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Rejections
I. Claims 1–6 are rejected under 35 U.S.C. § 103 as unpatentable
over Diamond (US 2007/0033754 A1, pub. Feb. 15, 2007), Savone
(US 6,627,852 B1, iss. Sept. 30, 2003), and Marquez (US 5,865,188, iss.
Feb. 2, 1999).
II. Claims 7–11 and 14 are rejected under 35 U.S.C. § 103 as
unpatentable over Diamond, Savone, Marquez, and Altamore
(US 6,070,596, iss. June 6, 2000).
III. Claim 12 is rejected under 35 U.S.C. § 103 as unpatentable
over Diamond, Savone, Marquez, and Fung (US 2006/0076032 A1, pub.
Apr. 13, 2006).
IV. Claim 13 is rejected under 35 U.S.C. § 103 as unpatentable
over Diamond, Savone, Marquez, Altamore, and Fung.
V. Claim 16 is rejected under 35 U.S.C. § 103 as unpatentable
over Diamond, Savone, Marquez, and Thaler et al. (US 4,492,241, iss.
Jan. 8, 1985) (hereinafter “Thaler”).
VI. Claim 15 is rejected under 35 U.S.C. § 103 as unpatentable
over Diamond, Savone, Marquez, and Kaizuka (US 2014/0332023 A1, pub.
Nov. 13, 2014).

ANALYSIS
The Examiner finds Diamond’s hair care device includes first jaw 42
with first handle 48 and first heating tip 52, distance elements 64 (i.e.,
bristles), and second jaw 44 with second handle 50 and second heating
tip 54. Final Act. 2–3 (citing Diamond ¶¶ 19–20, Figs. 2a–d).
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The Examiner finds “Diamond fails to show the first heating tip
rotatably coupled to the first handle part about the longitudinal axis.” Id.
at 3. The Examiner relies on Savone’s teachings to remedy this deficiency.
Among other things, the Examiner finds Savone’s “heating tips [are] . . .
rotatable relative to the handle parts to switch between a straightening and a
curling mode.” Id.
The Examiner finds “Diamond does not disclose the first position for
a curling mode in which the distance elements face towards the second
heating tip, are kept at a distance from, and do not contact with the second
heating tip in response to the first and second jaws being in the closed
position.” Id. Additionally, the Examiner does not rely on Savone’s
teachings to remedy this deficiency. Instead, the Examiner relies on
Marquez’s teachings to remedy this deficiency. Indeed, the Examiner finds:
Marquez teaches hair care device having a first jaw (10)
and a second jaw (12), wherein the first position for a
curling mode in which the distance elements face towards
the second heating tip, are kept at a distance from, and do
not contact with the second heating tip in response to the
first and second jaws being in the closed position (see
Figure 2).
Id. at 3–4 (emphasis added). The Examiner concludes:
It would have been obvious to one having ordinary skill in
the art . . . to have the jaws of [D]iamond be in a curling
mode in which the distance elements face towards the
second heating tip, are kept at a distance from, and do not
contact with the second heating tip in response to the first
and second jaws being in the closed position as taught by
Marquez to help allow additional hair to be inserted
between jaws.
Id. at 4 (emphases added).
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The Appellants point out Marquez’s hair care device does not include
a curling mode, rather the device is used for straightening hair. Appeal
Br. 16–17. The Appellants point is persuasive. See, e.g., Marquez, Title
(“BRUSH FOR STRAIGHTENING HAIR”), Abstract (“A hair brush useful for
temporarily straightening curly or wavy hair”). Marquez does not teach that
its brush and/or bristle arrangement is for curling hair. See also Marquez,
Claim 1 (“the first plurality of bristles and the second plurality of bristles
overlap with one another to grasp the lock of hair without curling it”).
Additionally, the Examiner does not explain how Marquez’s brush and/or
bristle arrangement may be used for curling hair, i.e., has a position for a
curling mode.
In the Answer, the Examiner reasons that the proposed modification is
based on a simple substitution of one known element (Diamond’s brush
bristles) for another known element (Marquez’s brush bristles). See Ans. 11.
However, the Examiner’s reasoning does not account for the failure of
Marquez to disclose a brush with bristles for curling hair. In this case,
without a sufficient explanation from the Examiner concerning how
Marquez’s brush and/or bristle arrangement may function to curl hair (i.e.,
have a curling mode), the Examiner’s conclusion is not adequately
supported. See Reply Br. 5–7.
Thus, we do not sustain the Examiner’s rejection of claims 1–6 as
unpatentable over Diamond, Savone, and Marquez (Rejection I).
The remaining rejections based on Diamond, Savone, and Marquez in
combination with Altamore, Fung, Thaler, or Kaizuka rely on the same
deficiency as discussed above. Each of the remaining rejections is not cured
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by additional findings and reasoning associated therewith. Thus, we do not
sustain the Examiner’s rejections of claims 7–16 (Rejections II–VI).

DECISION
We REVERSE the Examiner’s decision rejecting claims 1–16.

REVERSED