Ex Parte MilesDownload PDFPatent Trial and Appeal BoardMar 25, 201612788807 (P.T.A.B. Mar. 25, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 121788,807 05/27/2010 Will Miles 44305 7590 03/25/2016 WITHERS & KEYS, LLC P. 0. BOX 2049 MCDONOUGH, GA 30253 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. 10097.000lUSOl 7410 EXAMINER NOBREGA, TATIANA L ART UNIT PAPER NUMBER 3776 MAILDATE DELIVERY MODE 03/25/2016 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte WILL MILES Appeal2014-000867 Application 12/788,807 Technology Center 3700 Before JENNIFER D. BAHR, BRANDON J. WARNER, and FREDERICK C. LANEY, Administrative Patent Judges. LANEY, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Will Miles (Appellant) appeals under 35 U.S.C. § 134(a) from the Examiner's decision rejecting claims 1, 2, 4, 5, 7, 8, 11, 13-15, and 17-25. 1 We have jurisdiction over this appeal under 35 U.S.C. § 6(b). SUMMARY OF DECISION We AFFIRM-IN-PART. 1 Claims 3, 6, 9, 10, 12, and 16 have been canceled. See Appeal Br. 3. Appeal2014-000867 Application 12/788,807 INVENTION Appellant's invention relates "generally to flossing toys and devices." Spec. 1, 11. 4--5. Claims 1, 18, and 20 are independent. Claim 1 is illustrative of the claimed invention and reads as follows: 1. A flossing toy comprising: a central base portion, two, spaced floss-supporting members extending downward from said central base portion, a fixed length of floss extending between and connected to each of said two, spaced floss-supporting members, wherein said fixed length of floss is substantially equal to or less than an overall width of said flossing toy, and two finger-engaging members extending upward from said central base portion, wherein each of said two finger-engaging members independently comprises (i) a first end connected to said central base portion and (ii) a second end opposite said first end, said two finger-engaging members combining with one another to form an open expandable loop having a disconnecting slot therein, said disconnecting slot being positioned between opposing and separated end surfaces of said second ends of said two finger-engaging members, said disconnecting slot being positioned a distance from said central base portion and a further distance from said fixed length of floss, said open loop being sized to adjustably extend over and grasp a finger positioned therein. REJECTIONS The following rejections are before us for review: I. The Examiner rejected claims 17, 20, and 23-25 under 35 U.S.C. § 112, second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the applicant regards as the invention. II. The Examiner rejected claims 1, 2, 4, 5, 7, and 8 under 35 U.S.C. § 103(a) as unpatentable Zuehlsdorf (US 5,222,510, 2 Appeal2014-000867 Application 12/788,807 issued June 29, 1993) and Stelmach (US 6,116,252, issued Sept. 12, 2000). III. The Examiner rejected claims 11 and 13 under 35 U.S.C. § 103(a) as unpatentable Zuehlsdorf, Stelmach, and Landis (US 5,881,745, issued Mar. 16, 1999). IV. The Examiner rejected claim 14 under 35 U.S.C. § 103(a) as unpatentable Zuehlsdorf, Stelmach, Landis, and Little (US 2007/0186453, pub. Aug. 16, 2007). V. The Examiner rejected claim 15 under 35 U.S.C. § 103(a) as unpatentable Zuehlsdorf, Stelmach, Landis, and Stitt (US 3,861,406, issued Jan. 21, 1975). VI. The Examiner rejected claim 17 under 35 U.S.C. § 103(a) as unpatentable Zuehlsdorf, Stelmach, and Little. VII. The Examiner rejected claims 18, 19, and 22 under 35 U.S.C. § 103(a) as unpatentable Zuehlsdorf, Stelmach, and Landis. VIII. The Examiner rejected claim 21under35 U.S.C. § 103(a) as unpatentable Zuehlsdorf, Stelmach, and Curtis (US 5,033,488, issued July 23, 1991). IX. The Examiner rejected claim 23 under 35 U.S.C. § 103(a) as unpatentable Zuehlsdorf, Stelmach, Landis, and Stitt. X. The Examiner rejected claim 24 under 35 U.S.C. § 103(a) as unpatentable Zuehlsdorf, Stelmach, Landis, and Curtis. XI. The Examiner rejected claims 20 and 25 under 35 U.S.C. § 103(a) as unpatentable Zuehlsdorf, Stelmach, Landis, and Curtis. 3 Appeal2014-000867 Application 12/788,807 ANALYSIS Rejection I The Examiner determines "[r]egarding claims 17, 20 and 23-25, the phrase 'optional' renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention." Final Act. 2 (citing MPEP § 2173.05(d)). The Examiner further explains: The word "optional" renders the claims indefinite as it is unclear whether the optional features are a requirement of the claimed invention or if they are not required. Applicant states the optional limitation may be included or not included in the scope of the claim; however, a proper form of claiming an alternative configuration would be to explicitly state both alternatives. For example, in the case of claim 17, the flossing toy either is void of printed matter or has printed matter along a surface of the flossing toy. However, the term "optional" does not properly state the alternatives as Appellant intends; instead, the term leads to confusion over the intended scope of the claim. Ans. 21. Thus; the issue is whether the Examiner has properly made a prima facie showing that "optional" in the context of claims 17, 20, and 23-25 creates confusion. Appellant alleges the use of the term "optional" does not create confusion. As support, Appellant points to "the fact that at least 15,013 issued U.S. patents, as of July 21, 2012, contain the word "optional" in at least one claim." Appeal Br. 8. It is clear, according to Appellant, a skilled artisan would understand claims 17, 20, and 23-25 as covering both alternative structures - i.e., a structure with or without "optional printed material" (claim 17) or a structure with or without "optional additive materials" (claims 20, 24, and 25). Id. at 9-10. 4 Appeal2014-000867 Application 12/788,807 When the term "optionally" or "optional" is used, some analysis is required before concluding whether or not the language is indefinite. Absent some relevant analysis, the fact that a word search identifies a large number of patents use the word "optional" in at least one claim has little, if any, probative value. It has little value because we have no context surrounding the use of the term "optional" in those claims. As with any analysis assessing the meaning of claim language, context is an important consideration. Phillips v. AWH Corp., 415 F.3d 1303, 1314 (Fed. Cir. 2005) (en bane). In determining whether a claim is definite under 35 U.S.C. § 112, second paragraph, "[t]he USPTO, in examining an application, is obliged to test the claims for reasonable precision." In re Packard, 751F.3d1307, 1313 (Fed. Cir. 2014), cert. denied, 2015 WL 2340862 (May 18, 2015). Importantly, "we employ a lower threshold of ambiguity when reviewing a pending claim for indefiniteness than those used by post-issuance reviewing courts." Ex parte Miyazaki, 89 USPQ2d 1207, 1211 (BP AI 2008) (precedential). In particular, we have held that "if a claim is amenable to two or more plausible claim constructions, the [Examiner] is justified in requiring the applicant to more precisely define the metes and bounds of the claimed invention by holding the claim unpatentable under 35 U.S.C. § 112, second paragraph, as indefinite." Id. The Examiner "has a duty to guard the public against patents of ambiguous and vague scope" and "is justified in using a lower threshold ... because the applicant has an opportunity and a duty to amend the claims during prosecution to more clearly and precisely define the metes and bounds of the claimed invention and to more clearly and precisely put the public on notice of the scope of the patent." Id. 5 Appeal2014-000867 Application 12/788,807 After considering the relevant claims at issue, and the Specification, we conclude, for the reasons discussed below, the Examiner erroneously rejected claim 17 as indefinite, but properly rejected claims 20, 24, and 25 as indefinite. Turning first to dependent claim 17, "optional" appears in the following context: 17. The flossing toy of claim 1, wherein said flossing toy consists of said central base portion, said two, spaced floss- supporting members, said fixed length of floss, said two finger- engaging members, and optional printed material along a surface of said flossing toy. Appeal Br. 48 (Claims App., emphasis added). In this context, "optional" is modifying "printed material" and plainly characterizing the printed material as an option of the device covered by claim 1 7. We note the claim uses the term "optional" in accordance with its ordinary meaning and neither the Examiner nor Appellant has alleged a special definition is justified. Moreover, the use of "optional" throughout the Specification is consistent with its plain and ordinary meaning. See e.g., Spec. 7, 11. 6-12; 9, 11. 22-27; 11, 11. 21-30; 12, 11. 19-30. We do not agree with the Examiner that Appellant was required to state explicitly both alternatives. Reciting optional limitations, without more, does not make a claim indefinite. See Ex parte Cordova, 1988 WL 252403, at *1(BPAI1987) ("[T]he use of the alternative expression 'optionally' in the rejected claims does not obfuscate the subject matter appellants regard as their invention."); Ex parte Wu, 1989 WL 281900, at * 1 (BPAI 1988) (finding no difficulty in determining the scope of a claim reciting composition consisting of three components and, optionally, a fourth component). The question is, in light of the Specification, whether the 6 Appeal2014-000867 Application 12/788,807 context in which a claim uses the term "optional" would cause reasonable uncertainty about the scope of what the claim covers. In claim 17, "optional" immediately precedes the last element, thereby clearly setting it apart and signaling what follows is an alternative that may or may not be present in the claimed invention - an alternative a skilled artisan can readily ascertain. As Appellant asserts, the skilled artisan would recognize claim 17 covers the described device with both alternatives, namely with or without the "printed material along a surface of said flossing toy." Appeal Br. 9. We agree. Therefore, we do not sustain the Examiner's rejection of claim 17 as indefinite. The context in which claims 20, 24, and 25 use the term "optional" is problematic, however. Each of those claims recites "one or more optional additive materials" and subsequently identifies, directly or indirectly, a list of potential additive materials. Claim 20 is representative, which states, in relevant part: one or more optional additive materials coated onto said flossing toy or incorporated into said flossing toy, said one or more optional additive materials being selected from (i) a fluoride- containing component, (ii) an anti-bacterial component, (iii) a colorant, (iv) a flavor, (v) a scent, or any combination or (i) to (v). Appeal Br. 50 (Claims App.) (emphasis added). In the above context, we agree with the Examiner it is unclear whether the optional feature is or is not a requirement of the claimed invention. Ambiguity exists because there are at least two reasonable interpretations of "optional" in the above context. "Optional" is reasonably understood as signaling all of the listed additive materials are an option, any one of which, or all, may or may not be used. On the other hand, the claim 7 Appeal2014-000867 Application 12/788,807 element could also be understood as atlirmatively representing at least "one or more" of the additive materials subsequently listed must be included in the flossing toy in some way (e.g., "coated on" or "incorporated into"). See Appeal Br. 50, 51 (Claims App.). "Optional" is reasonably understood as being descriptive of the fact that, for the at least one additive material used, any particular one of listed materials may or may not be selected as an option. The first interpretation allows the option of not including any additive materials; whereas, the second interpretation requires at least one additive material, but with the option to choose or not to choose any particular one of the listed materials. Both are reasonable applications of the plain and ordinary meaning of "optional" in the context of claim 20, and thus both are plausible claim constructions. Appellant has not pointed to anything in the Specification that requires limiting one interpretation over the other. Therefore, because claim 20 is amenable to two or more plausible interpretations, we sustain the Examiner's indefiniteness rejection. Because claims 24 and 25 include the same language and issues discussed for claim 20, we also sustain the Examiner's indefiniteness rejections of those claims for the same reasons. Regarding the Examiner's rejection of claim 23, we note the term "optional" is not present in that claim. See Appeal Br. 51 (Claims App.). Therefore, we do not sustain the Examiner's indefiniteness rejection of claim 23. Rejection II Central to the Examiner's rejection of claims 1, 2, 4, 5, 7, and 8 is the determination that it would have been obvious to modify Zuehlsdorf with Stelmach to have "two finger-engaging members ... [with] an open expandable loop having a disconnecting slot therein ... [that is] positioned a 8 Appeal2014-000867 Application 12/788,807 distance from said central base portion and a further distance from said fixed length of floss, said open loop being sized to adjustably extend over and grasp a finger positioned therein." See Final Act. 4--5. Zuehlsdorf, according to the Examiner, "teaches a flossing toy having a loop portion for accommodating a user's finger, a base connecting the loop portion to two floss supporting members and a fixed length of floss extending between the floss supporting members." Id. at 4. Moreover, "the floss is tied to two tie- posts (38, 39) such that the tension in the floss does not change or remains substantially constant." Id. The Examiner finds Zuehlsdorf does not disclose positioning a slot between the second ends of the two finger-engaging members at a point that is "a distance from said central base portion and a further distance from said fixed length of floss." Id. at 4. The Examiner, however, finds Stelmach teaches a finger mounted dental device with a mounting ring having a slot to accommodate various size fingers, wherein "the slot is placed in a portion of the ring opposite the base and a maximum distance from the brush and floss." Id. The articulated reason for modifying Zuehlsdorf to include the mounting ring of Stelmach is "to allow the loop or ring portion to accommodate various finger sizes while maintaining a substantially constant amount of tension in the floss." Id. Appellant challenges the Examiner's obviousness conclusion as "ignor[ing] the principle of operation within the teaching of Zuehlsdorf." Appeal Br. 13. Appellant argues the operating principles taught by the Zuehlsdorf dental ring flosser require adjusting the length of floss to create the desired amount of floss tension and accommodate various finger sizes. Id. at 11. Quoting In re Ratti, 270 F.2d 810 (CCPA 1959), Appellant refers 9 Appeal2014-000867 Application 12/788,807 us to the legal principle that, "If the proposed modification or combination of the prior art would change the principle of operation of the prior art invention being modified, then the teachings of the references are not sufficient to render the claims primafacie obvious." Id. at 13. Appellant alleges that, because the Examiner's modification would result in such a change to the principle of operation of Zuehlsdorf, the Examiner "fails to establish a prima facie case of obviousness in view of the proposed combination of Zuehlsdorf and Stelmach." Id. Although a close case, Appellant has the better position regarding the proposed combination of Zuehlsdorf and Stelmach. We find the Fluor Tee, Corp. v. Kappas, 499 F. App'x 35 (Fed. Cir. 2012), decision to be instructive. In that case, the primary reference disclosed two different configurations for gas separation, which depend on the pressure of the feed gas. Id. at *38-39. One configuration, designed for use with low-pressure feed gas, did not involve the use of an expander. Id. at *39. The other configuration, designed for use with high-pressure feed gas, did involve an expander. Id.at *39--40. The reference further discussed advantages derived from not using an expander for the low-pressure system. Id. at 41. Fluor Tee, in that case, argued "it would have been a mere design choice for a skilled artisan to add an expander when utilizing ... [the] low-pressure system with a high-pressure feed gas in order to improve the efficiency of the absorber, since the need to match the feed gas pressure with the absorber pressure was well-known in the prior art." Id. The Federal Circuit disagreed because "a skilled artisan desiring to utilize a high-pressure feed gas would have been directed to follow the alternative systems disclosed in the ... [prior art] that are specifically designed to accommodate a high-pressure 10 Appeal2014-000867 Application 12/788,807 feed gas, rather than attempt to modify ... [the prior art's] low-pressure configuration." Id. at *42. Similarly, in this case, Zuehlsdorf discloses two different configurations for a dental ring flosser. One configuration, designed to have a solid ring without an open section, is "manufactured in exact predetermined sizes, to fit children as well as adults." Zuehlsdorf 2:30-33, 4:4--16, Fig. 6. "Because the ... endless ring 48 is solid, the size of the Dental Ring Flosser 10 is not adjustable responsive to tension in the floss 22." Id. The other configuration, designed to have an open section (i.e., a slot) in the ring, is able to alter the ring's size "by varying the tension in the floss." Id. 2:29-30, Figs. 3, 7. Zuehlsdorf teaches placing the slot in the portion of the ring closest to the floss so that the opening changes responsive to varying tension in the floss. Id. 3:59---62. As a result, "a user can adjust the size ... by adjusting the tension in the floss 22 [and] pressure between the user's finger 12 and the radially-inner surface 16 of the open-ended ring 14 can be controlled." Id. 3:62---66. "Accordingly, slippage of the open- ended ring 14 from the user's finger 12 can be reduced by controlling the friction created from such pressure." Id. 3: 66-4: 1. Here, for Zuehlsdorf' s adjustable ring flosser, the principle of operation is to adjust the length of floss and, thereby, the tension in the floss controlling the clamping/closing force of the ring on a user's finger. By adjusting the length of the floss, a user has the ability to control the fit of the ring flosser to the user's finger. The modification of Zuehlsdorf by Stelmach proposed by the Examiner runs completely contrary to this principle of operation. By placing the slot a maximum distance away from the floss (i.e., the exact opposite end proposed by the claimed invention in 11 Appeal2014-000867 Application 12/788,807 this case), tensioning of the floss would create an opening/loosening force of the ring from the user's finger. Moreover, it would eliminate the benefit of being able to minimize slippage by controlling the friction created by clamping pressure, which locating the slot in a portion of the ring closest to the floss provides. Regarding the solid ring disclosed by Zuehlsdorf, a skilled artisan desiring to utilize a ring flosser with a slot to accommodate various finger sizes would have been directed to follow the alternative ring flosser disclosed in Zuehlsdorf that is specifically designed to accommodate various finger sizes, rather than attempt to modify Zuehlsdorf s solid ring configuration. See Fluor Tee, 499 F. App'x 35, at *42. The Examiner has not articulated a reason with a rational underpinning to support a skilled artisan doing otherwise. Although a person of ordinary skill is not an automaton and is presumed to have ordinary creativity, that hypothetical person is "also presumed to be one who thinks along the line of conventional wisdom in the art and is not one who undertakes to innovate." Standard Oil Co. v. American Cyanamid Co., 774 F.2d 448, 454 (Fed. Cir. 1985). Therefore, we do not sustain the Examiner's rejection of claims 1, 2, 4, 5, 7, and 8. Rejection III Claims 11 and 13 indirectly depend from claim 1. Appeal Br. 4 7 (Claims App). The Examiner's rejection of claims 11and13 as unpatentable over Zuehlsdorf, Stelmach, and Landis is based on the same erroneous determination that it would have been obvious to modify Zuehlsdorf with Stelmach to "have two finger-engaging members ... [with] an open expandable loop having a disconnecting slot therein ... [that is] 12 Appeal2014-000867 Application 12/788,807 positioned a distance from said central base portion and a further distance from said fixed length of floss, said open loop being sized to adjustably extend over and grasp a finger positioned therein." See Final Act. 6-7. The Examiner does not cite Landis to cure the deficiencies of claim 1.2 For similar reasons to those set forth above for independent claim 1 (supra, Rejection II), we likewise do not sustain the Examiner's rejection of claims 11 and 13 as unpatentable over Zuehlsdorf, Stelmach, and Landis. Rejection IV Claim 14 indirectly depends from claim 1. Appeal Br. 48 (Claims App). The Examiner's rejection of claim 14 as unpatentable over Zuehlsdorf, Stelmach, Landis, and Little is based on the same erroneous determination that it would have been obvious to modify Zuehlsdorf with Stelmach to have "two finger-engaging members ... [with] an open expandable loop having a disconnecting slot therein ... [that is] positioned a distance from said central base portion and a further distance from said fixed length of floss, said open loop being sized to adjustably extend over and 2 For example, the Examiner does not rely on the combination of Landis, as modified by Stelmach, to demonstrate the obviousness of a flossing tool with a fixed length floss including, inter alia, a two finger-engaging member with an open expandable loop having a disconnecting slot therein that is positioned a distance from said central base portion and a further distance from said fixed length of floss, said open loop being sized to adjustably extend over and grasp a finger positioned therein. Our decision herein is a decision on the merits of the rejections before us and should not be interpreted to mean the claims at issue in this appeal are patentable, even over the prior art of record, nor should it preclude the Examiner from considering whether such a combination of Landis and Stelmach renders unpatentable the subject matter of any of the claims on appeal. See MPEP § 1213.02. 13 Appeal2014-000867 Application 12/788,807 grasp a finger positioned therein." See Final Act. 4--5, 6-8. The Examiner does not cite Landis or Little to cure the deficiencies of claim 1. For similar reasons to those set forth above for independent claim 1 (supra, Rejection II), we likewise do not sustain the Examiner's rejection of claim 14 as unpatentable over Zuehlsdorf, Stelmach, Landis, and Little. Rejection V Claim 15 indirectly depends from claim 1. Appeal Br. 48 (Claims App). The Examiner's rejection of claim 15, as unpatentable over Zuehlsdorf, Stelmach, and Landis is based on the same erroneous determination that it would have been obvious to modify Zuehlsdorf with Stelmach to a have "two finger-engaging members ... [with] an open expandable loop having a disconnecting slot therein ... [that is] positioned a distance from said central base portion and a further distance from said fixed length of floss, said open loop being sized to adjustably extend over and grasp a finger positioned therein." See Final Act. 4--5, 8-9. The Examiner does not cite Landis to cure the deficiencies of claim 1. For similar reasons to those set forth above for independent claim 1 (supra, Rejection II), we likewise do not sustain the Examiner's rejection of claim 15 as unpatentable over Zuehlsdorf, Stelmach, and Landis. Rejection VI Claim 17 depends from claim 1. Appeal Br. 48 (Claims App). The Examiner's rejection of claim 17 as unpatentable over Zuehlsdorf, Stelmach, and Little is based on the same erroneous determination that it would have been obvious to modify Zuehlsdorf with Stelmach to a have "two finger- engaging members ... [with] an open expandable loop having a disconnecting slot therein ... [that is] positioned a distance from said central 14 Appeal2014-000867 Application 12/788,807 base portion and a further distance from said fixed length of floss, said open loop being sized to adjustably extend over and grasp a finger positioned therein." See Final Act. 4--5, 9-10. The Examiner does not cite Little to cure the deficiencies of claim 1. For similar reasons to those set forth above for independent claim 1 (supra, Rejection II), we likewise do not sustain the Examiner's rejection of claims 11 and 13 as unpatentable over Zuehlsdorf, Stelmach, and Little. Rejection VII Claim 18 is an independent claim from which claims 19 and 22 depend, either directly or indirectly. Appeal Br. 48--49, 51 (Claims App). The Examiner's rejection of claims 18, 19, and 22 as unpatentable over Zuehlsdorf, Stelmach, and Landis is based on the same erroneous determination that it would have been obvious to modify Zuehlsdorf with Stelmach to a have "two finger-engaging members ... [with] an open expandable loop having a disconnecting slot therein ... [that is] positioned a distance from said central base portion and a further distance from said fixed length of floss, said open loop being sized to adjustably extend over and grasp a finger positioned therein." See Final Act. 10-13. The Examiner does not cite Landis to cure the deficiencies discussed regarding that same element also found in claim 1. For similar reasons to those set forth above for independent claim 1 (supra, Rejection II), we likewise do not sustain the Examiner's rejection of claims 18, 19 and 22 as unpatentable over Zuehlsdorf, Stelmach, and Landis. Rejection VIII Claim 21 indirectly depends from claim 1. Appeal Br. 50-51 (Claims App). The Examiner's rejection of claim 21 as unpatentable over 15 Appeal2014-000867 Application 12/788,807 Zuehlsdort~ Stelmach, and Curtis is based on the same erroneous determination that it would have been obvious to modify Zuehlsdorf with Stelmach to a have "two finger-engaging members ... [with] an open expandable loop having a disconnecting slot therein ... [that is] positioned a distance from said central base portion and a further distance from said fixed length of floss, said open loop being sized to adjustably extend over and grasp a finger positioned therein." See Final Act. 4--5, 13-14. The Examiner does not cite Curtis to cure the deficiencies of claim 1. For similar reasons to those set forth above for independent claim 1 (supra, Rejection II), we likewise do not sustain the Examiner's rejection of claim 21 as unpatentable over Zuehlsdorf, Stelmach, and Curtis. Rejection IX Claim 23 depends from claim 18. Appeal Br. 51 (Claims App). The Examiner's rejection of claim 23 as unpatentable over Zuehlsdorf, Stelmach, Landis, and Stitt is based on the same erroneous determination that it would have been obvious to modify Zuehlsdorf with Stelmach to a "have "two finger-engaging members ... [with] an open expandable loop having a disconnecting slot therein ... [that is] positioned a distance from said central base portion and a further distance from said fixed length of floss, said open loop being sized to adjustably extend over and grasp a finger positioned therein." See id.; Final Act. 10-11, 14--15. The Examiner does not cite Landis or Stitt to cure the deficiencies discussed regarding that same element also found in claim 1. For similar reasons to those set forth above for independent claim 1 (supra, Rejection II), we likewise do not sustain the Examiner's rejection of claim 23 as unpatentable over Zuehlsdorf, Stelmach, Landis, and Stitt. 16 Appeal2014-000867 Application 12/788,807 RejectionX Claim 24 indirectly depends from claim 18. Appeal Br. 51 (Claims App). The Examiner's rejection of claim 24 as unpatentable over Zuehlsdorf, Stelmach, Landis, and Curtis is based on the same erroneous determination that it would have been obvious to modify Zuehlsdorf with Stelmach to have "two finger-engaging members ... [with] an open expandable loop having a disconnecting slot therein [that is] positioned a distance from said central base portion and a further distance from said fixed length of floss, said open loop being sized to adjustably extend over and grasp a finger positioned therein." See Final Act. 10-11; 14--15. The Examiner does not cite Landis or Curtis to cure the deficiencies discussed regarding that same element also found in claim 1. For similar reasons to those set forth above for independent claim 1 (supra, Rejection II), we likewise do not sustain the Examiner's rejection of claim 24 as unpatentable over Zuehlsdorf, Stelmach, Landis, and Curtis. Rejection XI Claim 20 is an independent claim, from which claim 25 depends. Appeal Br. 49-51 (Claims App). The Examiner's rejection of claims 20 and 25 as unpatentable over Zuehlsdorf, Stelmach, Landis, and Curtis is based on the same erroneous determination that it would have been obvious to modify Zuehlsdorf with Stelmach to have "two finger-engaging members ... [with] an open expandable loop having a disconnecting slot therein ... [that is] positioned a distance from said central base portion and a further distance from said fixed length of floss, said open loop being sized to adjustably extend over and grasp a finger positioned therein." See Final Act. 16-20. The Examiner does not cite Landis or Curtis to cure the deficiencies 17 Appeal2014-000867 Application 12/788,807 discussed regarding that same element also found in claim 1. For similar reasons to those set forth above for independent claim 1 (supra, Rejection II), we likewise do not sustain the Examiner's rejection of claims 20 and 25 as unpatentable over Zuehlsdorf, Stelmach, Landis, and Curtis. SUMMARY The Examiner's decision to reject claims 17 and 23 as indefinite is reversed. The Examiner's decision to reject claims 20, 24, and 25 as indefinite is affirmed. The Examiner's decision to reject claims 1, 2, 4--5, 7-8, 11, 13-15, and 17-25 for obviousness is reversed. 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 18 Copy with citationCopy as parenthetical citation