Ex Parte Toy

Patent Trial and Appeal Board

Jan 10, 2019

13017248 (P.T.A.B. Jan. 10, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/017,248 01/31/2011
49376 7590
Christopher M. Goff
7700 Forsyth Boulevard
Suite 1800
St. Louis, MO 63105
01/14/2019
FIRST NAMED INVENTOR
David Yet Toy
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.
27861-869 (SP-1861) 6309
EXAMINER
AYALA, FERNANDO A
ART UNIT PAPER NUMBER
3724
NOTIFICATION DATE DELIVERY MODE
01/14/2019 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):
uspatents@armstrongteasdale.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID YET TOY
Appeal2018-000348
Application 13/017 ,248
Technology Center 3700
Before BENJAMIN D. M. WOOD, WILLIAM A. CAPP, and
LISA M. GUIJT, Administrative Patent Judges.
GUIJT, Administrative Patent Judge.
DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner's
rejection2 of claims 1, 3-5, 7, 13-15, and 17-19. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
STATEMENT OF THE CASE
1 Appellant identifies the real party in interest as Spectrum Brands, Inc.
Appeal Br. 1.
2 Appeal is taken from the Final Office Action dated November 2, 2016.
Appeal 2018-000348
Application 13/017 ,248
Claims 1 and 15 are the independent claims on appeal. Claim 1,
reproduced below, is exemplary of the subject matter on appeal.
1. An electric hair trimmer comprising:
a handle including a drive motor; and
a cutter head connected to the handle, the cutter
head comprising:
a housing having an end;
a toothed stationary cutting blade extending
from the end of the housing; and
a toothed movable cutting blade disposed
adjacent to the stationary cutting blade and
extending from the end of the housing, the movable
cutting blade adapted for a back-and-forth sweeping
motion relative to the stationary cutting blade to cut
hair, and each of the cutting blades having a
terminal end with a curved shaped such that a radial
distance between the terminal ends of the cutting
blades is to remain constant during the back-and-
forth sweeping motion, wherein the terminal end of
the movable cutting blade moves along an arc
having a radius in the range of 18 mm to 2 8 mm.
THE REJECTIONS
I. Claims 1-3 and 13 stand rejected under 35 U.S.C. § I03(a) as
unpatentable over Royle (US 2009/0056137 Al; published Mar. 5, 2009),
Kobler (US 2,562,104; issued July 24, 1951), and Otsuka (US 5,463,813;
issued Nov. 7, 1995) (Final Act. 2--4), and alternatively, as unpatentable
over Royle and Kobler (Ans. 9).
II. Claims 5, 7, and 17 stand rejected under 35 U.S.C. § I03(a) as
unpatentable over Royle, Kobler, Otsuka, Bifkord (US 6,378,210 Bl; issued
Apr. 30, 2002), and Mack (US 4,498,237; issued Feb. 12, 1985). Final Act.
4--5, 9-10.
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Appeal 2018-000348
Application 13/017 ,248
III. Claim 14 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Royle, Kobler, Otsuka, and Ihasz (US 4,125,940; issued
Nov. 21, 1978). Final Act. 6.
IV. Claim 15 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Royle, Kobler, Otsuka, and Bifkord. Final Act. 6-9.
V. Claim 18 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Royle, Kobler, Otsuka, Bifkord, Mack, and Ihasz. Final
Act. 10.
ANALYSIS
Independent claim 1 and dependent claims 3-5, 7, 13, and 14
Regarding independent claim 1, the Examiner finds, inter alia, that
Royle discloses an electric hair trimmer having a cutter head comprising a
toothed movable cutting blade (i.e., second trimmer blade 49) adapted for a
back-and-forth sweeping motion relative to a stationary cutting blade (i.e.,
first trimmer blade 48), each blade having a curved shape, as claimed. Final
Act. 2 ( citing Royle ,r 23, Fig. 8). The Examiner relies on Kobler for
disclosing cutting head knives, "wherein the inner knife slidably sweeps in a
curvature motion relative to the outer knife ... , to keep the space between
the two knives in a sliding fit." Id. at 3 ( citing Kobler 2:20-25, Fig. 4).
Indeed, Kobler discloses that "[t]he reciprocally moved clapper 13 ... is
pivoted on an axle pin centrally fitted in the curvature of both cutting
surfaces of the cutting head" (Kobler 2:33-36; see also id., Fig. 4), and that
"[ o ]wing to the arc-like shape of the cutting surfaces, the inner knife moves
oscillatorily around the center of the arc, the same serving simultaneously as
the axle for the clapper, thus, causing the carrier space 7 and the axle point
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Appeal 2018-000348
Application 13/017 ,248
14 to remain identical in all moving positions" (id. at 2:43-52) (emphasis
added). Notably, Kohler's Figure 4 depicts the curved end of inner knife 4
having a radius that also defines the arc along which inner knife 4 moves. In
other words, the radius of the end of Kobler' s curved blade is the same
radius as the arc along which inner knife 4 moves, and this relationship is
not disputed by Appellant. The Examiner reasons that it would have been
obvious to modify Royle's blades to have the radial distance, as disclosed by
Kobler, "such that the spacing between the moving and stationary blades of
Royle remains constant throughout such oscillating movement in order to
allow for a cleaner shave as taught by Kobler." Final Act. 3 (citing Kobler
1 :20-30). Appellants do not challenge these findings or reasoning. Appeal
Br. 4--10; Reply Br. 2-3.
The Examiner also finds that Kobler discloses that "a curvature of the
trimmer cutting elements may have a radius in the range of 50 to 200 mm,
and preferably 30 mm or more." Final Act. 3 (citing Kobler 3:5-10). Thus,
as discussed supra, Kobler discloses that the terminal end of inner knife 4
moves along an arc having a radius in the range of 30 mm or more. The
Examiner finds that Kobler alone discloses that
it would have been within the knowledge of one of ordinary skill
in the art at the time of the invention to choose from or
experiment with ranges slightly below or above the ranges
disclosed by ... Kobler to vary the radius of the cutting edges
depending on the surface from which hairs are desired to be cut.
Ans. 9.
Appellant argues that "Kobler does not cure the deficiencies of
Royle," relative to disclosing a cutting blade movable along an arc having a
radius in the range of 18 mm to 28 mm, as claimed. Appeal Br. 6.
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Appeal 2018-000348
Application 13/017 ,248
Appellant submits that "Kobler teaches one of ordinary skill in the art to
choose 'as large a radius as possible for the cutting surfaces of the cutting
head, for instance, from 500 to 200 mm, but at least about 30 mm,"' (id. at 7
( citing Kobler 3 :3-6); Reply Br. 3), and "teaches away from a smaller
radius, such as that recited in claim 1, in disclosing that 'round cutting
surfaces with a smaller radius do not rest entirely in their whole length on
the skill to be shaved thus rendering the shaving of convex skin surfaces
more difficult"' (Appeal Br. 6 (citing Kobler 3:6-10); Reply Br. 3).
Appellant further argues that Kohler's range includes "values between 30
mm and 35 mm," which are not within the claimed range. Appeal Br. 10.
Similar to Royle, Kobler discloses an electric hair trimmer wherein
"[the] cooperating spaced cutting faces of both knives are convex curved in
their longitudinal direction." Id. at 1:8-1 O; see Royle, ,r 23, Fig. 8. Notably,
similar to Appellant's invention, Kobler improves on conventional linear
blades by providing a curved blade. See, e.g., Kobler 1: 5-21 ( disclosing that
an object of the invention is to provide "convex curved" blades, as in
improvement over "known cutting faces which are straight in their
longitudinal direction"); cf Spec. ,r,r 3, 4 ("[ m Jost conventional electric hair
trimmers include blades ... ha[ ving] a straight or linear edge," wherein "the
amount of detail that can be achieved is limited"); id. ,r 7 ("[i]n one aspect
[ of the invention,] ... each of the blades has a curved shape at the terminal
end"). More particularly, Kobler discloses that
[i]t is expedient to choose as large a radius as possible for the
cutting surfaces of the cutting head, for instance from 50 to 200
mm., but at least about 30 mm., as round cutting surfaces with
smaller radius do not rest entirely in their whole length on the
skin to be shaved thus rendering the shaving of convex skin
surfaces more difficult.
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Appeal 2018-000348
Application 13/017 ,248
Kobler 3:3-10. Kobler further discloses that curved cutting blades are
advantageous over "known cutting faces which are straight in their
longitudinal direction," because the "the lengthwise outwardly curved
cutting head allows concave parts of the skin to be cleanly shaven." Id.
at 1:33-34.
Appellant's argument does not apprise us of error in the Examiner's
determination that Kobler recognizes, as did Appellant, that curved cutting
blades have advantages over linear cutting blades, and further, that the
curvature of a movable cutting blade ( or more particularly, the radius of the
arc along which the movable cutting blade moves) is a variable that effects
the contact between the electric hair trimmer and the surface to be trimmed.
In other words, the Examiner has presented sufficient evidence that the prior
art recognizes that the curvature of the movable cutting blade is a result-
effective variable. 3 In In re Aller, 220 F .2d 454, 456 (CCP A 1955), the
court set forth the rule that the discovery of an optimum value of a variable
in a known process is normally obvious. See also In re Boesch, 617 F .2d
272, 276 (CCPA 1980). Exceptions to this general rule include where the
parameter optimized was not recognized in the art to be a result effective
variable and where the results of optimizing a variable, which was known to
3 See also Otsuka 1:44--58 ( disclosing an improved dry shaver "designed to
give increased curvature of the arcuate outer sharing foil and the inner cutter
for intimate contact with locally convex or concave areas in the user's
skin"); Mack 1: 16-18 ( disclosing that a hair trimmer "[ u ]sing blades with a
curved cutting edge further facilitates trimming and proper shaping of the
hair"); cf Spec. ,r 4 ("[b ]ecause most known detail trimmers have cutter
blades with cutting edges that are linear, the amount of detail that can be
achieved is limited").
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Application 13/017 ,248
be result effective, were unexpectedly good. In re Antonie, 559 F.2d 618,
621 (CCPA 1977); In re Waymouth, 499 F.2d 1273, 1276 (CCPA 1974).
Appellant has not provided sufficient argument or evidence that the claimed
radius is unexpectedly good for providing a detailed trim.
Accordingly, we sustain the Examiner's rejection of independent
claim 1. Appellant chose not to present separate arguments, apart from the
arguments presented supra with respect to independent claim 1, for claims
3-5, 7, 13, and 14, which depend from claim 1. Appeal Br. 10. Therefore,
for essentially the same reasons stated supra, we also sustain the Examiner's
rejection of claims 3-5, 7, 13, and 14.
Independent claim 15 and dependent claims 17 and 18
Regarding independent claim 15, and claims 17-19 depending
therefrom, Appellant argues that "Bickford does not cure the deficiencies of
Royle, Kobler, and Otsuka." Appeal Br. 11. However, because we do not
agree that the Examiner's findings and reasoning based on Royle and Kobler
is deficient, as set forth supra, we sustain the Examiner's rejection of claims
15 and 17-19 for essentially the same reasons as set forth supra.
DECISION
The Examiner's rejections of claims 1, 3-5, 7, 13-15, and 17-19 is
AFFIRMED.
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)(l )(iv).
AFFIRMED
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