COLGATE-PALMOLIVE COMPANY

Patent Trials and Appeals Board

Jun 18, 2020

14979224 - (D) (P.T.A.B. Jun. 18, 2020)

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.
14/979,224 12/22/2015 Scott Demarest 11066-00-US-01-OC 2835
23909 7590 06/18/2020
COLGATE-PALMOLIVE COMPANY
909 RIVER ROAD
PISCATAWAY, NJ 08855
EXAMINER
WRIGHT, SHANNEL N
ART UNIT PAPER NUMBER
3772
NOTIFICATION DATE DELIVERY MODE
06/18/2020 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):
Patent_Mail@colpal.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SCOTT DEMAREST, FRANCIS TATU, MARK BARTLETT,
EVARISTO DELGADO, KATHRYN NEAL,
PATRIK JOHANSSON, and MARK LOWENTHAL
Appeal 2019-006512
Application 14/979,224
Technology Center 3700
Before MICHELLE R. OSINSKI, JEREMY M. PLENZLER, and
AMANDA F. WIEKER, Administrative Patent Judges.
PLENZLER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1, 2, 5, 7, 8, 11, 12, and 14–21. We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the real party in interest as Colgate-Palmolive
Company. Appeal Br. 2.
Appeal 2019-006512
Application 14/979,224

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CLAIMED SUBJECT MATTER
The claims are directed to an oral treatment device. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. An oral treatment device comprising:
an intraoral mouthpiece comprising:
a first light emitting surface configured to emit light
onto a user’s maxillary teeth, the first light emitting
surface being a smooth exposed surface having a concave
curvature;
a second light emitting surface configured to emit
light onto a user’s mandibular teeth, the second light
emitting surface being a smooth exposed surface having a
concave curvature;
the first and second light emitting surfaces located
on opposite sides of a horizontal reference plane;
the first light emitting surface inclined so that a first
acute angle is formed between the first light emitting
surface and the horizontal reference plane; and
the second light emitting surface inclined so that a
second acute angle is formed between the second light
emitting surface and the horizontal reference plane;
wherein the first light emitting surface is inclined at the
first acute angle and the second light emitting surface is inclined
at the second acute angle when the intraoral mouthpiece is in an
unbiased state; and
wherein the first and second acute angles are different.
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Application 14/979,224

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REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Osborn US 2008/0063999 A1 Mar. 13, 2008
Levine US 2012/0183919 A1 July 19, 2012
Chetiar US 2013/0045457 A1 Feb. 21, 2013
Brawn US 2015/0140502 A1 May 21, 2015
Min KR 10-1525123 B1 June 3, 2015
REJECTIONS
Claims 1, 8, 14, 15, and 21 are rejected under 35 U.S.C. § 103 as
being unpatentable over Osborn and Levine.
Claims 2, 11, 16–18, and 20 are rejected under 35 U.S.C. § 103 as
being unpatentable over Osborn, Levine, and Brawn.
Claims 5 and 7 are rejected under 35 U.S.C. § 103 as being
unpatentable over Osborn, Levine, Brawn, and Min.
Claims 12 and 19 are rejected under 35 U.S.C. § 103 as being
unpatentable over Osborn, Levine, Brawn, and Chetiar.
OPINION
Independent claims 1, 18, and 21 each require that the “first light
emitting surface” and the “second light emitting surface” of the “intraoral
mouthpiece” extend at first and second acute angles, respectively. The
claims additionally require that “the first and second acute angles are
different.”
Appellant addresses only claim 1, and relies on those contentions for
the patentability of claims 2, 5, 7, 8, 11, 12, and 14–21. See Appeal Br. 7–
11.
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Application 14/979,224

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In each of the rejections, the Examiner finds that Osborn teaches an
intraoral mouthpiece having first and second light emitting surfaces, but is
silent as to whether those surfaces extend at acute angles. Final Act. 3–5, 9.
The Examiner finds that Levine teaches the disposition of first and second
surfaces at acute angles. Id. at 3, 5, 9–10. Appellant does not dispute these
findings. See Appeal Br. 8–10.
The Examiner explains that it would have been obvious to include the
acute angles for Osborn’s light emitting surfaces to “position[] the first and
second light emitting surface[s] in an ergonomic position.” Final Act. 3, 5,
10. Appellant responds that “Osborn relies on LEDs 14 embedded into
smooth upper and lower portions 17, 18” and alleges that “[a] person of
ordinary skill would be led away from inclining [Osborn’s] upper and lower
portions 17, 18 without also incorporating [Levine’s] textured bands 16.”
Appeal Br. 9–10. The Examiner has the better position.
The Examiner finds that “Levine discloses the light emitted being
guided and directed to more evenly illuminate the surface of the teeth
([¶] 39),” which is undisputed.2 Ans. 17. The Examiner explains that
although Levine describes the use of the light emitting surface at an incline
having an acute angle in combination with the textured band, “one of
ordinary skill in the art would also understand that angulation of the light
emitting surface would result in a difference in the distribution of light,”
which “would result in the distribution of light more evenly across the tooth
surface and would be an obvious advantage based on the disclosure of
Levine.” Id. As the Examiner explains, “Levine is used to teach the

2 Appellant did not respond to the Examiner’s Answer with a Reply Brief.
Appeal 2019-006512
Application 14/979,224

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obviousness of providing an inclined light emitting surface,” and “while the
textured band is a part of the distribution of the light to the surface of the
teeth this does not render modifying the light emitting surfaces of Osborn to
be inclined by an acute angle unobvious as Levine provides clear advantages
to the modification.” Id. at 18.
Appellant’s main dispute with the Examiner’s rejections is with
respect to the claim recitation that “the first and second acute angles are
different.” The Examiner determines that “the first and second acute angles
being different is considered an obvious matter of design choice lacking in
criticality, well within the skill of an ordinary artisan, for the purpose of
providing a specific contact with the patient.” Final Act. 4; see also id. at 5–
6, 10.
Appellant alleges that “[t]he Final Rejection improperly relies on
design choice.” Appeal Br. 8. Appellant contends that “equal angles appear
to be sufficient to provide adequate sealing,” and “inclining these portions at
different angles would not accomplish any known purpose in view of the
disclosures of Osborn and Levine.” Id. at 9. Without citation to evidence,
Appellant further alleges, for example, that “[t]he present oral treatment
device improves on the teachings of both Osborn and Levine because it
provides a superior distribution of light onto the user’s teeth as a result of the
use of light emitting surfaces inclined at different acute angles.” Id. at 10.
The Examiner has the better position.
“[D]esign choice” is appropriate where the applicant fails to set forth
any reasons why the differences between the claimed invention and the prior
art would result in a different function. In re Chu, 66 F.3d 292, 298–99
(Fed. Cir. 1995). Appellant’s Specification explains, without further
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discussion, that “[i]n one embodiment, the first and second acute angles θ1,
θ2 are different from one another,” and “[i]n another embodiment, the first
and second acute angles θ1, θ2 are the same.” Spec. ¶ 123. There is no
particular benefit assigned to either arrangement. The Examiner explains
that the use of different angles would simply be the result of “modifying the
inclination or angle of inclination of the light emitting surface based on
anatomical differences between the upper and lower teeth.” Ans. 17. That
is, there is no real difference in function. Rather, the use of different angles
is simply to accommodate fitting a given structure (i.e., the particular
geometry of an individual’s upper and lower jaw structure). Appellant does
not persuasively dispute this determination.
Appellant additionally contends that use of design choice is somehow
inappropriate in this instance because “the present invention is not directed
to ranges, but to structural features of a mouth guard.” Appeal Br. 9. This,
too, is unpersuasive because design choice is not limited to ranges, as
Appellant alleges. See, e.g., In re Dailey, 357 F.2d 669, 672–73 (CCPA
1966) (determining a change in shape was obvious as a matter of design
choice where an appellant did not show the shape was significant or beyond
what was obvious to perform the same function).
Appellant does not present arguments other than those discussed
above in connection with independent claim 1.
For the reasons set forth above, Appellant does not apprise us of error
in the Examiner’s decision to reject claims 1, 2, 5, 7, 8, 11, 12, and 14–21.
CONCLUSION
The Examiner’s rejections are affirmed.

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Application 14/979,224

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DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 8, 14, 15,
21
103 Osborn, Levine 1, 8, 14, 15,
21

2, 11, 16–
18, 20
103 Osborn, Levine,
Brawn
2, 11, 16–
18, 20

5, 7 103 Osborn, Levine,
Brawn, Min
5, 7
12, 19 103 Osborn, Levine,
Brawn, Chetiar
12, 19
Overall
Outcome
1, 2, 5, 7, 8,
11, 12, 14–
21

TIME PERIOD FOR RESPONSE
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)(1)(iv).
AFFIRMED