COLGATE-PALMOLIVE COMPANY

Patent Trials and Appeals Board

Jul 8, 2021

2020006699 (P.T.A.B. Jul. 8, 2021)

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.
15/641,960 07/05/2017 Eduardo Jimenez 8931-00-US-C3-TB 9112
23909 7590 07/08/2021
COLGATE-PALMOLIVE COMPANY
909 RIVER ROAD
PISCATAWAY, NJ 08855
EXAMINER
LEWIS, RALPH A
ART UNIT PAPER NUMBER
3772
NOTIFICATION DATE DELIVERY MODE
07/08/2021 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 EDUARDO JIMENEZ, ROBERT MOSKOVICH,
SHARON KENNEDY, JOHN GATZEMEYER,
JOACHIM STORZ, and RAIMUND KLAUSEGGER
Appeal 2020-006699
Application 15/641,960
Technology Center 3700
Before DANIEL S. SONG, CARL M. DEFRANCO, and
MICHAEL L. WOODS, Administrative Patent Judges.

DEFRANCO, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–15. Claims 17, 19, and 20 are
currently allowed, while claim 16 would be allowable if rewritten in
independent form to include the limitations of rejected base claim 8. We
have jurisdiction under 35 U.S.C. § 6(b). We affirm.

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies Colgate-Palmolive Company as the real party
in interest. Appeal Br. 2.
Appeal 2020-006699
Application 15/641,960

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CLAIMED SUBJECT MATTER
The claimed subject matter relates to “an efficient, compact, and
portable oral care system that combines an oral care implement such as a
toothbrush with an oral care product or agent dispenser in a highly portable
housing.” Spec. ¶ 7. Of the pending claims, two are independent—claims 1
and 8. Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. An oral care system comprising:
a toothbrush comprising:
a handle defining a longitudinal axis and having a
proximal end, a distal end, and a cantilevered top portion;
and
a head connected to the distal end of the handle; and
a dispenser comprising:
a longitudinally elongated housing having a distal end
with an applicator thereon and an opposite proximal end;
and
a reservoir disposed in the housing for holding an oral
care agent, the reservoir in fluid communication with the
applicator, wherein the dispenser is removably attached
to the cantilevered top portion of the handle of the
toothbrush; and
wherein the applicator is configured to dispense and apply the
oral care agent from the reservoir to an oral surface of a user
through the applicator which remains positioned on the distal
end of the dispenser.
Appeal Br. 9 (Claims App.) (emphasis added).
Appeal 2020-006699
Application 15/641,960

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EXAMINER’S REJECTIONS
Claims 1–15 stand rejected under 35 U.S.C. § 102(b) as being
anticipated by Pfenniger (US 7,237,974 B2, iss. July 3, 2007). See Final
Act. 2–3.
ANALYSIS
In contesting the Examiner’s anticipation rejection, Appellant argues
independent claims 1 and 8 together. See Appeal Br. 4. Appellant does not
argue dependent claims 2–7 and 9–15 separately from the independent
claims. See id. As such, we select claim 1 as representative, with the
remaining claims standing or falling therewith. See 37 C.F.R.
§ 41.379(c)(1)(iv).
Central to this appeal is whether Pfenniger discloses the “wherein”
clause of claim 1, requiring that “the applicator is configured to dispense and
apply the oral care agent from the reservoir to an oral surface of a user,” for
example, the user’s teeth. The Examiner finds that Pfenniger teaches all the
features of claim 1, including “a dispenser having an elongated housing 10
with an applicator 34, 38 at the distal end.” Ans. 3 (citing Pfenniger, Figs. 2,
3); see also Final Act. 2 (essentially same). As for the “wherein” clause, the
Examiner finds that Pfenniger’s applicator 38 is “inherently capable of
dispensing the oral care agent to a user’s oral surface (e.g. teeth)” through
“outlet opening 34” on Pfenniger’s applicator 38. Ans. 3 (citing Pfenniger,
4:38–52); see also id., Fig. 2 (depicting outlet opening 34 on Pfenniger’s
applicator). In so finding, the Examiner notes the similarity between
Pfenniger’s disclosure of an outlet opening on the applicator for dispensing
toothpaste and Appellant’s Specification that “applicator 309 can be any
type of surface and/or configuration that can apply a viscous substance onto
Appeal 2020-006699
Application 15/641,960

4
the hard surface of teeth including merely an uncovered opening/orifice.”
Id. at 3–4 (citing Spec. ¶ 65).
Appellant disputes that Pfenniger satisfies the “wherein” clause of
claim 1. Appeal Br. 6–7. At the outset, we note that Appellant does not
dispute the Examiner’s finding that Pfenniger’s “dispensing head 38”
equates to the claimed “applicator.” See id. Rather, Appellant argues that
Pfenniger’s applicator (i.e., dispensing head 38) “is not configured for
dispensing oral care material to the user’s teeth.” Id. at 6; see also id. at 7
(asserting that Pfenniger’s applicator “is simply not configured for
application of the dentifrice . . . directly to the user’s teeth”). In support,
Appellant points to Pfenniger’s disclosure of a “variety of configurations”
that include a cap 48 or membrane 50 over outlet opening 34 in the end of
Pfenniger’s applicator 38. Id. at 6–7 (citing Pfenniger, 7:25–54, Figs. 4, 5).
Appellant then asserts:
However, none of these configurations are configured for
applying the fluid therein to the user’s teeth. Instead, they are
merely openings in the end of the dispenser. In the case of the
embodiment where the cap 45 is present, the user could not
apply the oral care material within the dispenser 10 to the teeth
due to the presence of the cap 45. Similarly, the punctured
membrane 48, 50 would prevent the user from applying the oral
care material to the user’s teeth because it would also extend
from the dispenser’s orifice and potentially injure the user.

Id. at 6. From those disclosures, Appellant surmises that “[t]he person of
ordinary skill would recognize that Pfenniger is not capable of dispensing
directly to the user’s teeth because it would present too great a risk of injury,
would not work well, and is specifically disclosed as being designed to
dispense dentifrice to the bristles of the toothbrush.” Id. at 6–7.
Appeal 2020-006699
Application 15/641,960

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We disagree with Appellant’s attempt to distinguish the claimed
applicator from Pfenniger’s applicator. As the Examiner notes, Appellant’s
own Specification betrays Appellant’s attempt by admitting that the ability
of applicator 309 to apply oral care agent onto the surface of the teeth
derives from the applicator “including merely an uncovered
opening/orifice.” See Spec. ¶ 65. Pfenniger’s applicator 38 (also depicted
as element 45 in Figures 4 and 5) is no different, as it also includes an outlet
opening in the end of the applicator. See Pfenniger, 7:41–45, Figs. 1, 4, 5.
We also reject Appellant’s contention that Pfenniger’s applicator has a
“permanently installed” closure over the outlet opening. See Appeal Br. 7.
That is because Pfenniger states expressly that the closure over the opening
is removed before the toothbrush is ever used—“A closure, for example a
sheet material 48 or a membrane 50, as shown in FIGS. 4 and 5 respectively,
is opened, when the toothpaste container 10 is used for the first time, by the
closure pin 36, as is shown in FIG. 2, or by an additional spike 40 positioned
in extension of the closure pin 36.” Pfenniger, 8:67–9:5 (emphasis added);
see also id. at 7:41–43 (disclosing that cap 48 or membrane 50 is provided
“to prevent the tooth paste 26 from running out of the toothpaste container
10 or from drying out therein before being used for the first time” (emphasis
added)).
In the end, Appellant fails to apprise us of any error in the Examiner’s
rejection. The record evidence amply supports the Examiner’s finding that
the applicator as claimed by Appellant does not patentably distinguish over
the applicator as disclosed by Pfenniger—they both include an opening at
their distal end for dispensing and applying an oral care agent to a surface.
Because Appellant’s assertions to the contrary are purely speculative in
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Application 15/641,960

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nature and lack evidentiary support, we find them unpersuasive. Thus, we
sustain the Examiner’s rejection of claim 1, as well as claims 2–15 falling
therewith.
CONCLUSION
Claims
Rejected
35
U.S.C. §
Basis Affirmed Reversed
1–15 102(b) Pfenniger 1–15

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)(1)(iv).
AFFIRMED