Ex Parte Boucherie

Patent Trials and Appeals Board

Mar 13, 2019

13259357 - (D) (P.T.A.B. Mar. 13, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/259,357 10/12/2011
26096 7590 03/15/2019
CARLSON, GASKEY & OLDS, P.C.
400 WEST MAPLE ROAD
SUITE 350
BIRMINGHAM, MI 48009
UNITED ST A TES OF AMERICA
FIRST NAMED INVENTOR
Bart Gerard Boucherie
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.
B5150US; 67267-041 7292
EXAMINER
JENNINGS, MICHAEL DEANGILO
ART UNIT PAPER NUMBER
3723
NOTIFICATION DATE DELIVERY MODE
03/15/2019 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):
ptodocket@cgolaw.com
cgolaw@yahoo.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BART GERARD BOU CHERIE
Appeal2018-004870
Application 13/259,357
Technology Center 3700
Before MICHAEL L. HOELTER, JAMES P. CAL VE, and
JEREMY M. PLENZLER, Administrative Patent Judges.
PLENZLER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134(a) of the
Examiner's Decision rejecting claims 1, 2, 5, 6, and 8-22. 1 We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 Claims 3, 4, and 7 are cancelled. App. Br. 11, Claims App.
Appeal2018-004870
Application 13/259,357
CLAIMED SUBJECT MATTER
Claims 1, 10, and 17 are independent. Claims 2, 5, 6, 8, 9, 11-16, and
18-22 depend from claim 1, 10, or 17. Claims 1 and 10 are reproduced
below:
1. A bristle insert, in particular for a brush, comprising:
at least one bristle pack with a plurality of plastic
bristles having ends that are fused to each other to form a
self-supporting holding element, wherein the at least one
bristle pack includes different bristles that differ from each
other in at least one of bristle thickness, bristle material, or
bristle color, and wherein the self-supporting holding
element is a plate, and wherein the bristle pack includes a
cavity adjacent to the self-supporting holding element, and
wherein the cavity is comparatively sharply delimited in
direct vicinity of the self-supporting holding element, and
wherein more bristles extend into the cavity at an
increasing distance away from the self-supporting holding
element than at a location near the self-supporting holding
element.
10. A brush comprising:
a brush body comprising a handle;
a bristle insert attached to the handle and including
at least one bristle pack with a plurality of plastic bristles
having ends that are fused to each other to form a self-
supporting holding element, wherein the at least one
bristle pack includes different bristles that differ from each
other in at least one of bristle thickness, bristle material, or
bristle color; and
wherein the self-supporting holding element is a
plate, and wherein the bristle pack includes a cavity
adjacent to the self-supporting holding element, and
wherein the cavity is comparatively sharply delimited in
direct vicinity of the self-supporting holding element, and
wherein more bristles extend into the cavity at an
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Application 13/259,357
increasing distance away from the self-supporting holding
element than at a location near the self-supporting holding
element.
REJECTIONS
1. Claims 1, 2, 5, 6, and 9-22 are rejected under 35 U.S.C. § I03(a)
as being unpatentable over Weihrauch '939 (EP 0329939 A2, published
August 30, 1989) and Weihrauch '884 (US 2003/0163884 Al, published
Sep. 4, 2003).
2. Claim 8 is rejected under 35 U.S.C. § I03(a) as being unpatentable
over Weihrauch '939, Weihrauch '884, and Hobbs (US 2008/0313836 Al,
published Dec. 25, 2008).
OPINION
Claims l, 5, and 9
Appellant argues claims 1, 5, and 9 as a group. Appeal Br. 4--5. We
select claim 1 as representative. Claims 5 and 9 stand or fall with claim 1.
See 37 C.F.R. § 4I.37(c)(l)(iv).
The Examiner finds that Weihrauch '939 teaches the majority of
features recited in claim 1, including "plastic bristles having ends that are
fused to each other to form a self-supporting holding element." Final Act.
2-3. The Examiner finds that element 12 in Weihrauch '939 corresponds to
the recited "self-supporting holding element." Id. at 3.
Appellant acknowledges that Weihrauch '939's "bristles 2 are melted
to form an annular disc 12," but contends that because "disc 12 is still
mechanically inserted into a bristle carrier 1 O" it "cannot be considered as
comprising a self-supporting holding element." Appeal Br. 4. Appellant
contends that "disc 12 is not self-supporting" because "[t]he structure 12
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identified by the [E]xaminer clearly requires additional support from an
additional structure, i.e. the bristle carrier 10, which contacts all sides of the
disc 12." Id. at 5. Appellant contends that "[s]omething is either 'self-
supporting' or it is not, there is no 'partially self-supporting"' and "under the
Examiner's interpretation, the term 'self-supporting' is rendered
meaningless." Id.
Appellant's contentions are not persuasive. Claim 1 does not require
the "bristle pack" to be "self-supporting" relative to any particular structure.
Claim 1 requires "plastic bristles having ends that are fused to each other to
form a self-supporting holding element" that is a "plate." Appellant admits
that Weihrauch '939 teaches bristle ends melted (fused) to each other to
form a disc. Appeal Br. 4.
Weihrauch '939's Figure 2 is reproduced below for reference.
---· 3 .......... -·:-""
/_,/, _. ____ _.,,..
Fig.2
Figure 2 is a section view of a bristle bundle and carrier.
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Application 13/259,357
There is no dispute that Weihrauch '939's disc 12, which corresponds
to the recited plate, is self-supported within bristle carrier 10. Rather,
Appellant's contentions appear to be based on an unfounded and
unexplained requirement that an intermediate structure, such as bristle
carrier 10, cannot be used to couple bristle bundle 1, which includes disc 12,
to another unspecified structure.
Appellant's contentions are not commensurate with the scope of claim
1, and are also inconsistent with Appellant's own Specification. Appellant's
Figure 4 is reproduced below for reference.
Fig. 4
,.--20
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Application 13/259,357
"Figure 4 shows a schematic sectional view of a brush according to an
embodiment of the invention." Spec. ,r 31.
The Specification explains that "[a]fter having been combined to a
dense pack, all bristles 12 have been heated at one end to such an extent that
the plastic material has liquefied, whereby the ends of the plastic bristles 12
are fused with each other." Id. ,r 35. "After the plastic material has cooled
and solidified, a self-supporting structure or a self-supporting holding
element 14 has been formed in this way, which is made of the material of the
bristles, and in which all bristles are anchored." Id. The structure of
Weihrauch '939's disc 12 appears to be virtually identical to Appellant's
"self-supporting holding element 14." Appellant's Specification proceeds to
explain that its brush "includes a brush body 20, a sleeve 22 and the bristle
insert 1 O" and "sleeve 22 includes a circumferential shoulder 24, with the
plate-like holding element 14 resting on the shoulder 24." Id. ,r 39. That
holding element is effectively the same structure as Weihrauch '939's bristle
carrier 10, which Appellant alleges is prohibited by the claim.
Because Appellant's contentions in connection with claim 1 are not
commensurate with the scope of that claim, we are not apprised of error in
the rejection of claims 1, 5, and 9.
Claim 2
Claim 2 depends from claim 1 and recites that "the self-supporting
holding element forms a fixing structure for fixing the bristle insert at a
brush body comprising a handle." Appellant faults the Examiner for citing
Weihrauch '939's element 2 as a "brush body," but acknowledges that
"carrier 10 is ... fastened to a brush body." Appeal Br. 6. Appellant
additionally alleges fault in the rejection because "[t]here is no handle shown
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in [Weihrauch '939's] Figure 2." Id. Appellant's contentions do not
identify reversible error.
Claim 2 recites a "bristle insert," and does not require a "brush body,"
let alone a "brush body" that has a handle. Rather, claim 2 defines the
"fixing structure" of the "self-supporting holding" relative to a "brush
body." That is, the "fixing structure" is arranged in a manner that allows it
to be fixed "at a brush body." Whether that "brush body" includes a handle
does not appear to affect the arrangement of the "fixing structure."
As noted above, Appellant fails to identify any meaningful structural
difference between the recited "self-supporting holding element," or even
"self-supporting holding element 14" described in its Specification, and
Weihrauch '939's disc 12. Indeed, Appellant acknowledges that Weihrauch
'939's "bristles 2 are melted to form an annular disc 12," which are
"mechanically inserted into a bristle carrier 10." Appeal Br. 4.
Accordingly, Weihrauch '939 teaches the "fixing structure" recited in
claim 2.
For at least these reasons, we are not apprised of error in the rejection
of claim 2. 2
Claim 6
Claim 6 depends from claim 1 and further recites that "the at least one
bristle pack comprises includes a plurality of bristle packs." Appellant
acknowledges the Examiner's finding in connection with claim 6, and
simply alleges, without citation or further explanation, that "element 12
2 Any defects in the rejection identified by Appellant are not fatal to the
rejection.
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comprises an annular disc that is melted from one bundle of bristles."
Appeal Br. 6.
This conclusory assertion does not apprise us of Examiner error in the
rejection of claim 6.
Claim 8
Claim 8 depends from claim 1 and further recites that "the at least one
bristle pack includes an amount of natural bristles." Appellant does not
dispute that Hobbs discloses using natural bristles or the Examiner's
rationale. Rather, Appellant alleges, generally, that "the process disclosed in
[Weihrauch '939] and [Weihrauch '884] is incompatible with using natural
bristles." Appeal Br. 10. Appellant contends that "[Weihrauch '884] shows
an injection molding method that only works with a liquid synthetic material
and cannot be used with natural bristles" and "[i]f natural bristles were to be
incorporated into this method a completely different type of injection mold
is required." Id.
That contention is not persuasive because the Examiner simply
proposes modifying Weihrauch '939's bristles to "include[] different bristles
that differ from each other in at least one of bristle thickness, bristle
material, or bristle color" based on Weihrauch '884's teachings. See Final
Act. 3 (discussing modification to Weihrauch '939's disclosure based on
Weihrauch '884' s teachings) ( emphasis omitted). The Examiner relies on
Hobbs to teach natural bristles as a way to vary the height of bristles (Final
Act. 9) and the natural bristles would be included in the finished product of
Weihrauch '939 and Weihrauch '884 without altering how those products
are made (Ans. 12-13). Therefore, the general allegation, without further
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explanation or evidence, that Weihrauch '939's process "is incompatible
with using natural bristles" also fails to identify Examiner error.
Accordingly, we are not apprised of Examiner error in the rejection of
claim 8.
Claims 10 and 17-22
Appellant argues claims 10 and 17-22 as a group. Appeal Br. 6-7.
We select claim 1 as representative. Claims 1 7-22 stand or fall with
claim 10. Claim 10 is similar to claim 1, but rather than reciting only "a
bristle insert," claim 10 is directed to "[a] brush" and additionally recites "a
brush body comprising a handle" with the "bristle insert attached to the
handle."
Appellant reiterates the contentions presented with respect to claim 1,
which are unpersuasive as explained above. Appeal Br. 6. Appellant also
takes issue with the portion of the Examiner's rejection related to the recited
"handle." Id. at 6-7. Initially, Appellant faults the Examiner's identification
of "handle (B)" in the rejection. Id. at 6-7 (noting there is no element (B) in
either Weihrauch '939 or Weihrauch '884). That does not identify error,
however, as the Examiner makes clear in the Answer that "[a] handle (8) is
shown in FIG. 1 of ([Weihrauch] '939), which has the capability of being
grasped with the hand." Ans. 12. Accordingly, Appellant's additional
arguments that "bristle bundle 1 ... does not form a handle for the brush"
are also unpersuasive. Appeal Br. 7.
Appellant's only response with respect to the Examiner's finding that
Weihrauch '939's element 8 forms the recited handle is that "structure 8
comprises a container that holds a fluid" and "container 8 ... is attached to a
brush handle (not shown in the figures)." Reply Br. 4. That element 8 holds
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a fluid does not identify error in the Examiner's rejection because it fails to
provide any reason why that element could not also be a handle.
Appellant's allegation that "container 8 ... is attached to a brush
handle (not shown in the figures)" is also unpersuasive, as Appellant fails to
point to any evidence to support that allegation. Reply Br. 4. Moreover, to
the extent that allegation is true, Appellant has admitted that Weihrauch '939
teaches the handle structure recited in claim 10, as claim 10 does not
preclude an intermediate structure between the "bristle insert" and the
handle, and requires only that a "bristle insert [is] attached to the handle."
For at least these reasons, we are not apprised of reversible error in the
Examiner's rejection claims 10 and 17-22.
Claims 11 and 12
Claims 11 and 12 depend from claim 10. 3 Appellant's arguments are
similar to those addressed with respect to claims 1 and 10 and are
unpersuasive for similar reasons. See Appeal Br. 7-8. Accordingly, we are
not apprised of error in the Examiner's decision to rejection claims 11 and
12.
Claim 13
Claim 13 depends from claim 10 and further recites that "the self-
supporting holding element is adhered or welded to the brush body." The
Examiner explains that "Weihrauch ('884) as modified with Weihrauch
('939) as modified above teaches that the self-supporting holding element
3 Although not addressed in the arguments as distinguishing over the
references, we note that it is unclear how "positively accommodated" in
claim 12 differs in scope from "accommodated" recited in claim 11.
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(12) is adhered to the brush body (1) (See FIG. 2)." Final Act. 6; see also
Ans. 12.
Appellant contends that Weihrauch '939's "bristles are either molded
to the end face of the bristle carrier 10 or are melted to form the annular disc
12 which then is mechanically inserted into bristle carrier 1 O." Appeal Br. 8.
Appellant has the better position.
The Examiner has failed to identify a teaching in Weihrauch '939 that
includes both the "self-supporting holding element" and that element being
"adhered or welded to the brush body" as required by the claim. The
Examiner does not propose any modification to Weihrauch '939's teachings
to meet that limitation.
Accordingly, we do not sustain the Examiner's decision to reject
claim 13.
Claim 14
Claim 14 depends from claim 10, and further recites that "the bristle
insert is overmolded." Other than expressing disagreement with the
rejection, generally, and simply alleging that Weihrauch '939 "does not
disclose or teach this feature," Appellant fails to persuasively identify error
in the rejection. See Appeal Br. 9. For example, Appellant fails to identify
any particular structure required by the claim that is missing from the
structure identified by the Examiner in Weihrauch '939. Appellant's naked
assertion, without more, is insufficient to identify reversible error. See In re
Lovin, 652 F.3d 1349 (Fed. Cir. 2011).
Accordingly, we are not apprised of error in the rejection of claim 14.
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Claims 15 and 16
Claims 15 and 16 depend from claim 10, and are listed as being
rejected over Weihrauch '939 and Weihrauch '884. See Final Act. 2. 4
Appellant notes that "[t]he Examiner has presented no arguments regarding
claim 15. This has repeatedly been pointed out by Appellant in the prior
Appeal Brief and in the RCE amendment, yet the Examiner still has not
presented any arguments to reject claim 15." Appeal Br. 9 ( emphasis
omitted); see also Reply Br. 6 ("The Examiner's Answer also does not
present any rejections for claim 15.") (emphasis omitted). Appellant also
notes that "[t]he Examiner has presented no arguments regarding claim 16.
This has repeatedly been pointed out by Appellant in the prior Appeal Brief
and in the RCE amendment, yet the Examiner still has not presented any
arguments to reject claim 15." Appeal Br. 9 ( emphasis omitted); see also
Reply Br. 6 ("The Examiner's Answer also does not present any rejections
for claim 16.") (emphasis omitted).
Because the Examiner fails to provide any findings for any limitations
of claims 15 and 16 or any reasoning as to why the claims are unpatentable
in view of other findings made by the Examiner, or even mention these
claims, or the limitations recited therein, in the discussion of the rejection,
we do not sustain the Examiner's decision to reject claims 15 and 16.
4 The rejection of these claims does not appear to have been withdrawn in
the Answer. See Ans. 2.
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DECISION
We AFFIRM the Examiner's decision to reject claims 1, 2, 5, 6, and
8-12, 14, and 17-22.
We REVERSE the Examiner's decision to reject claims 13, 15, and
16.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED-IN-PART
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