COLGATE-PALMOLIVE COMPANY

Patent Trials and Appeals Board

Jun 5, 2020

14847837 - (D) (P.T.A.B. Jun. 5, 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.
14/847,837 09/08/2015 Douglas Joseph Hohlbein 10794-00-US-01-TB 9173
23909 7590 06/05/2020
COLGATE-PALMOLIVE COMPANY
909 RIVER ROAD
PISCATAWAY, NJ 08855
EXAMINER
GUIDOTTI, LAURA COLE
ART UNIT PAPER NUMBER
3723
NOTIFICATION DATE DELIVERY MODE
06/05/2020 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 DOUGLAS JOSEPH HOHLBEIN and ROBERT MOSKOVICH
Appeal 2019-005969
Application 14/847,837
Technology Center 3700
Before JOHN C. KERINS, LISA M. GUIJT, and
MICHAEL L. WOODS, Administrative Patent Judges.
WOODS, 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, 4, 8–11, 14–19, and 21–25. Appeal
Br. 2. The Examiner withdrew the rejection of claims 8–11, 24, and 25 in
the Answer (see Ans. 7), so only claims 1, 4, 14–19, and 21–23 stand
rejected on appeal (see id. at 3–7). We have jurisdiction under
35 U.S.C. § 6(b).

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as the Colgate-
Palmolive Company. Appeal Br. 2.
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Application 14/847,837

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We AFFIRM.
CLAIMED SUBJECT MATTER
The application is titled “Oral Care Implement” and describes a need
“for an oral care implement [(e.g., a toothbrush)] that readily informs the
consumer of the unique benefits of using that oral care implement.” See
Spec. 1, Title, ¶ 1. Claims 1, 8, and 18 are independent. Appeal Br. 13–15
(Claims App.). We reproduce claim 1, below, which is illustrative of the
claimed subject matter:
1. An oral care implement comprising:
a body comprising a handle portion and a head portion;
at least one bristle mounted to and extending from the
head portion, the at least one bristle having an oral care feature;
the body comprising a core component and a sheath
component surrounding the core component;
the core component comprising a structural feature that
corresponds to the oral care feature and that is visible through
the sheath component;
wherein the oral care feature is a tapered bristle tip
portion and the structural feature is a tapered end portion; or
wherein the oral care feature is intertwined bristle strand
components and the structural feature is intertwined core strand
components.
Id. at 13 (Claims App.).
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REFERENCES2
The references relied upon by the Examiner are:
Name Reference Date
Driesen US 6,141,819 Nov. 7, 2000
Weihrauch US 6,163,918 Dec. 26, 2000
Williams US 2005/0050662 A1 Mar. 10, 2005
Hohlbein US 2007/0209263 A1 Sept. 13, 2007
REJECTIONS3
The following rejections are before us on appeal:
Claims Rejected 35 U.S.C. § Reference(s)/Basis
1, 4, 14–17 103 Driesen, Williams
18, 19, 21–23 103 Hohlbein, Weihrauch
Ans. 3–7.
OPINION
I. Claims 1, 4, and 14–17 – Unpatentable Over Driesen and Williams
The Examiner rejects claims 1, 4, and 14–17 as unpatentable over
Driesen in view of Williams. Final Act. 4. Appellant argues claims 1, 4,
and 14–17 as a group. See Appeal Br. 4–5 (“Appellants will not be
separately arguing the patentability of dependent claims 4, 9-11, 14-17, 19,
and 21-25. Thus, Appellants acknowledge that dependent claims 4, 9-11,
14-17, 19, and 21-25 will stand or fall with independent claims 1, 8, and
18.”).4 We select claim 1 as the representative claim, with dependent
claims 4 and 14–17 standing or falling with claim 1. 37 C.F.R.
§ 41.37(c)(1)(iv)(2018).
In rejecting independent claim 1, the Examiner relies on Driesen for
disclosing an oral care implement comprising several of the claimed

2 We do not list references relied upon in withdrawn rejections. Ans. 7.
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Application 14/847,837

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features, citing in-part Driesen’s Figures 4 and 7 (see Final Act. 3), copies of
which we reproduce, below:

Driesen’s Figure 7 (left) is a schematic view of a field of bristles on a
toothbrush head. Driesen 4:14–15. Driesen’s Figure 4 (right) is a schematic
view of the free end of bristles. Id. at 4:9–10. In citing these figures, the
Examiner finds that Driesen has “at least one bristle having an oral care
feature,” namely, “intertwined bristle strand components.” Final Act. 3
(citing in-part Driesen 4:30–54).
The Examiner acknowledges, however, that Driesen does not disclose
“that the body comprises a core component and a sheath component
surrounding the core component.” Id. at 3–4.
To address this limitation, the Examiner relies on Williams, finding
that Williams teaches a handle with a core component that “comprises a
structural feature of intertwined core strand components.” See id. at 4
(citations omitted). We reproduce Williams’s Figure 3 below:

3 We do not list those rejections withdrawn by the Examiner. Ans. 7. Also,
claim 13 is objected to as being dependent upon a rejected base claim, but
would be allowable if rewritten in independent form. Final Act. 11.
4 The rejections of independent claim 8, along with its dependent claims,
were withdrawn by the Examiner. See Ans. 7; see also id. at 3–7 (listing the
grounds of rejection maintained by the Examiner).
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Williams’s Figure 3 is a “perspective view of a second embodiment of
a brush handle.” Williams ¶ 13. The Examiner finds that the handle of this
embodiment has a core component and sheath component in which “the core
component comprises a structural feature of intertwined core strand
components,” namely, intertwined segments 29. Final Act. 4 (citing
Williams ¶¶ 25, 26, 28).
In combining Driesen with Williams, the Examiner reasons that a
skilled artisan would have substituted Driesen’s handle for one taught by
Williams, including Williams’s “core component . . . visible through the
sheath and has colored intertwined core strand components . . . in order to
provide aesthetically pleasing effects for consumers.” Id. at 4–5.
In contesting the rejection of claim 1, Appellant presents two
arguments.
First, Appellant argues, “Nowhere in either Driesen or Williams is
there any teaching of the desirability of pairing a[n] intertwined core
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component of Williams with the intertwined strand feature of Driesen.”
Appeal Br. 8. Appellant argues that the Examiner’s reasoning—providing a
pleasing visual effect for consumers—is based on impermissible hindsight.
See id. Appellant submits that “other countervailing considerations like cost
reduction may preclude incorporation of an ornate handle incorporating the
helix of Driesen onto an already expensive toothbrush incorporating
intertwined bristle strand components.” Id. at 9.
Appellant’s first argument is not persuasive.
Williams teaches that its “helical flight” 26 “can be seen through
brush handle” 38. Williams ¶ 25. Williams further discloses, “As an
advantage of the present invention, the brush handle and resulting brush will
be aesthetically pleasing to consumers.” Id. ¶ 27. We find this disclosure to
teach the proposed combination, and because Williams teaches that the
feature would have been aesthetically pleasing, Appellant’s hindsight
argument is not persuasive.
As to Appellant’s argument that the modification would have added
cost that would have discouraged a skilled artisan from making the
modification (see Appeal Br. 9), it is not sufficient to obviate a reason to
combine when a different course of action would have advantages over
another. Winner Int’l Royalty Corp. v. Wang, 202 F.3d 1340, 1349 n.8 (Fed.
Cir. 2000) (“The fact that the motivating benefit comes at the expense of
another benefit, however, should not nullify its use as a basis to modify the
disclosure of one reference with the teachings of another. Instead, the
benefits, both lost and gained, should be weighed against one another”)). In
other words, even if the proposed modification would have added
undesirable cost to Driesen’s handle, the modification would have improved
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Driesen’s design by making it more aesthetically-pleasing to consumers, as
taught by Williams (see, e.g., Williams ¶¶ 25, 27). Moreover, Appellant
fails to provide any evidence to support its position that the modification
would have added so much additional cost as to discourage a skilled artisan
from making the change. See Appeal Br. 9.
Second, Appellant argues, “Williams fails to disclose intertwined
strand components in a core” and that “there is no basis whatsoever for the
assertion that [Williams’s] three segments are intertwined. It seems equally
likely that they may extend without rotating about the central axis of the
helix.” Id.
Appellant’s second argument is not persuasive. Williams discloses
that its helical flight 26 can be partitioned into a plurality of segments.
Williams ¶ 25. We agree with the Examiner’s finding that “segments 29 are
twisted in a helical flight at 26 as shown in Figures 3 and 5 and best
described in paragraphs 0025-0036, each segment 29 is intertwined with the
other segments 29.” Ans. 8. Indeed, by definition, a helix is “a spiral form
or structure.” The American Heritage Dictionary, Fifth Edition (©2020),
https://www.ahdictionary.com/word/search.html?q=helix (last visited June
2, 2020).5 The record supports the Examiner’s finding that Williams’s three
segments are intertwined to form a helical flight, satisfying the claimed
limitation. See Ans. 8.
Accordingly, we affirm the rejection of independent claim 1, as well
as claims 4 and 14–17, which fall with claim 1, as unpatentable over Driesen
and Williams.

5 A copy of this definition is appended to this opinion.
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II. Claims 18, 19, and 21–23 — Unpatentable over Hohlbein and
Weihrauch
The Examiner rejects claims 18, 19, and 21–23 as unpatentable over
Hohlbein and Weihrauch. Final Act. 7–9. Appellant argues claims 18, 19,
and 21–23 as a group. See Appeal Br. 4–5 (“Appellants will not be
separately arguing the patentability of dependent claims 4, 9–11, 14–17, 19,
and 21–25. Thus, Appellants acknowledge that dependent claims 4, 9–11,
14–17, 19, and 21–25 will stand or fall with independent claims 1, 8, and
18.”). We select claim 18 as the representative claim, with dependent
claims 19 and 21–23 standing or falling with claim 18. 37 C.F.R.
§ 41.37(c)(1)(iv)(2018).
In rejecting independent claim 18, the Examiner finds that Hohlbein
discloses several of the claimed features, citing its Figures 2 and 3 (Final
Act. 7), which we reproduce below:

These figures illustrate a front view (Figure 2) and a side view (Figure
3) of a toothbrush. See Hohlbein ¶ 7. The Examiner finds that Hohlbein
discloses the claimed handle portion 220 and head portion 210, with at least
one bristle mounted to and extending from the head portion. Final Act. 7
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(citing Hohlbein Fig. 2, ¶ 19). The Examiner further finds that Hohlbein
discloses visible structural material 242, which are the “particulates
dispersed in a carrier material of the body” that “correspond[] to an oral care
feature” 100, 193 “to reinforce this combination of products” and to
“strengthen the link between distinct features being aligned.” Id. (quoting
Hohlbein ¶ 19).
The Examiner acknowledges, however, that Hohlbein does not
disclose that its “oral care feature is an additive within the at least one
bristle.” Id. To address the missing limitation, the Examiner relies on
Weihrauch and finds that “Weihrauch teaches toothbrush bristles containing
an oral care feature that is an additive within a bristle” for adding “slight
abrasiveness and an increased reaming action to remove plaque from teeth.”
Id. at 7–8 (citing Weihrauch 2:35–40, 5:1–10). In combining Hohlbein with
Weihrauch, the Examiner reasons that a skilled artisan would have modified
at least one of Hohlbein’s bristles to include an oral care feature that is an
additive within the bristle, as taught by Weihrauch, so that the bristle “is
specifically designed for improved reaming during the brushing of teeth.”
Id. at 8. Appellant does not contest this aspect of the rejection. See Appeal
Br. 11.
Rather, in contesting the rejection of claim 18, Appellant argues that
the Examiner has failed to show particulates dispersed in a carrier material
of the body. Id. (referencing arguments made in connection with claim 8).
Appellant submits that Hohlbein’s “features are not particulate, but are
square shaped protuberances and recesses formed by the shape of the
molds.” Id. at 11 (presenting arguments made in relation to claim 8).
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Appellant’s argument is not persuasive. Hohlbein’s Figure 2,
reproduced above, along with its accompanying description in paragraph 19,
disclose “strip-like features” 242 embedded in a clear or translucent handle
material. See Ans. 9 (finding the same in referencing Figure 2 and quoting
Hohlbein ¶ 19). Indeed, paragraph 19 of Hohlbein teaches, “strip-like
features 240, 242, 250 could be represented in a number of ways, such as
outwardly or inwardly molded features in the handle, and/or embedded in a
clear or translucent handle material, offering similar visibility to the strip-
like features.” See Hohlbein ¶ 19 (emphasis added). Hohlbein further
discloses that these strip-like features provide visual cues to the consumer,
such as reminding the consumer to use the toothbrush with a second product,
such as breath-freshening strips. See id. We agree with the Examiner that
Hohlbein’s strip-like features 242 embedded within the clear or translucent
toothbrush handle reasonably satisfies the claimed “body comprising a
visible structural feature that corresponds to an oral care feature . . . and the
structural feature is particulates dispersed in a carrier material of the body.”
Appeal Br. 15 (Claims App.).
Accordingly, we affirm the rejection of independent claim 18, as well
as claims 19 and 21–23, which fall with claim 18, as unpatentable over
Hohlbein and Weihrauch.
CONCLUSION
The Examiner’s rejections of claims 1, 4, 14–19, and 21–23 are
affirmed.
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DECISION SUMMARY
In summary:
Claims
Rejected
35
U.S.C.
§
Reference(s)/Basis Reversed Affirmed
1, 4, 14–17 103 Driesen, Williams 1, 4, 14–17
18, 19, 21–23 103 Hohlbein, Weihrauch 18, 19, 21–23
Overall
Outcome
1, 4, 14–19,
21–23
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