Ex Parte Lund et alDownload PDFPatent Trial and Appeal BoardJan 30, 201512135289 (P.T.A.B. Jan. 30, 2015) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte MARK THOMAS LUND and PAUL JAMES SMITH ____________ Appeal 2013-001269 Application 12/135,289 Technology Center 3700 ____________ Before MURRIEL E. CRAWFORD, BIBHU R. MOHANTY, and CYNTHIA L. MURPHY, Administrative Patent Judges. MURPHY, Administrative Patent Judge. DECISION ON APPEAL The Appellants1 appeal under 35 U.S.C. § 134 from the Examiner’s rejection of claims 1–8 and 10. We have jurisdiction over this appeal under 35 U.S.C. § 6(b). We AFFIRM. 1 According to the Appellants, “[t]he real party in interest is The Procter & Gamble Company.” (Appeal Br. 1.) Appeal 2013-001269 Application 12/135,289 2 STATEMENT OF THE CASE The Appellants’ invention relates to an applicator for application of a hair treatment composition to a hair strand. (Abstract.) Illustrative Claim 1. An applicator for applying a hair treatment composition to the hair, wherein said applicator comprises a plate and a well, wherein said plate and well are movably joined by a connection so that the applicator may alternate between a closed and an open state, and wherein said plate has an external surface and an internal surface, and said internal surface comprises at least one hair orientation means which extends beyond said internal surface towards said well, and wherein said well comprises a rim and wherein said applicator further comprises a first metering layer positioned on said rim of said well, and a second metering layer positioned on said internal surface of said plate, such that when said applicator is in said closed state said first metering layer and said second metering layer are substantially juxtaposed. Prior Art De Laforcade US 6,626,599 B2 Sept. 30, 2003 Kennedy US 7,156,885 B2 Jan. 2, 2007 Roher US 2007/0144550 A1 June 28, 2007 Rejections The Examiner rejects claims 1–8 under 35 U.S.C. § 103(a) as unpatentable over De Laforcade and Kennedy. The Examiner rejects claim 10 under 35 U.S.C. § 103(a) as unpatentable over De Laforcade, Kennedy, and Roher. Appeal 2013-001269 Application 12/135,289 3 FINDINGS OF FACT We have determined that the findings of fact in the Analysis section below are supported at least by a preponderance of the evidence.2 ANALYSIS Independent claim 1 sets forth an applicator comprising a “plate” and a “well” that “are movably joined by a connection so that the applicator may alternate between a closed and an open state.” (Appeal Br., Claims App.) The Examiner finds De Laforcade discloses an applicator as set forth in independent claim 1, except that its well (part 20a) and its plate (part 20b) are not “movably joined.” (Answer 5.) The Examiner determines that it would have been obvious, in view of Kennedy, to modify De Laforcade’s applicator to have a movable connection between parts 20a and 20b. (Id.) The Examiner articulates that this modification would “allow the user to apply more hair between the plate and [the] well.” (Id.) We are not persuaded by the Appellants’ argument that the Examiner’s modification would render De Laforcade’s applicator “unsatisfactory for its intended purpose.” (See Appeal Br. 3.) And we are not persuaded by the Appellants’ argument that the Examiner’s modification “would change the principle of operation” of De Laforcade’s applicator. (Id.) The Appellants’ arguments are premised on the importance of a “seal” that is created when De Laforcade’s applicator is in use. (Appeal Br. 3.) 2 See Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for proceedings before the Patent Office). Appeal 2013-001269 Application 12/135,289 4 The so-created seal “contains any outflow of product during use,” when a section of hair is situated between parts 20a and 20b. (Id.) According to the Appellants, this seal would be eliminated if De Laforcade’s applicator is modified to have a movable connection between parts 20a and 20b. (Id.) The Appellants warn that, with this “open structure,” the hair treatment product would be able flow out of a reservoir located inside parts 20a and 20b. (Id.) However, as explained by the Examiner, such a seal would still be created in the modified De Laforcade applicator. (See Answer 6–7.) With a movable connection between parts 20a and 20b, the applicator alternates between open and closed states. (Id.) In the open state, hair enters the device, and the device is “then closed again to connect the seal.” (Id.) In other words, when the modified De Laforcade applicator is in use, the structure is closed, a seal is created, and this seal “contains any outflow of product during use.” As for the Appellants’ comment regarding Kennedy’s use of solid or semi-solid hair color (see Appeal Br. 3), we note that the “hair treatment composition” is not a positively recited element in independent claim 1. Accordingly, we agree with the Examiner that De Laforcade and Kennedy can be properly combined, and that this combination would render obvious the applicator set forth in independent claim 1. It would have been obvious to one having ordinary skill in the art, at the time the invention was made, to modify DeLaforcade’s device to have a connection means as taught by Kennedy to allow the user to apply more hair between the plate and the well. Appeal 2013-001269 Application 12/135,289 5 Dependent claims 2–8 are not argued separately from independent claim 1, so they fall therewith. (See Appeal Br. 2–4.) And the Appellants’ remarks regarding dependent claim 10 do not further argue the points addressed above in connection with independent claim 1. (Id. at 4.) Thus, we sustain the Examiner’s rejection of independent claim 1, and the claims depending therefrom. CONCLUSIONS OF LAW We conclude the Examiner did not error in rejecting claims 1–8 and 10 as unpatentable under 35 U.S.C. § 103(a). DECISION We AFFIRM the Examiner’s rejections of claims 1–8 and 10. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED hh Copy with citationCopy as parenthetical citation