Dora Ricci et al.

Patent Trials and Appeals Board

Apr 22, 2020

14564310 - (D) (P.T.A.B. Apr. 22, 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.
14/564,310 12/09/2014 Dora Ricci DR-P01US 6716
40690 7590 04/22/2020
Kloss, Stenger & LoTempio
8555 Main Street
Williamsville, NY 14221
EXAMINER
KALACH, BRIANNE E
ART UNIT PAPER NUMBER
3772
NOTIFICATION DATE DELIVERY MODE
04/22/2020 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):
uspto@dockettrak.com
vgldocket@gmail.com
vglotempio@lotempiolaw.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte DORA RICCI and KARYN RIGGIONE

Appeal 2019-006523
Application 14/564,310
Technology Center 3700
____________

Before DANIEL S. SONG, MICHAEL L. HOELTER, and
BRETT C. MARTIN, Administrative Patent Judges.

HOELTER, 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 1–3, 8–14, 22, and 25, which constitute
all the claims pending in this application. See Appeal Br. 3. 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. We understand the real party in interest are the
Appellants, Dora Ricci and Karyn Riggione.
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Application 14/564,310

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CLAIMED SUBJECT MATTER
The disclosed subject matter “relates generally to an adjustable
ornamental hair restraining apparatus.” Spec. ¶ 1. Claim 22 is on appeal
and is reproduced below.
22. An apparatus for restraining at least a portion of hair, the
apparatus comprising:
an elastic strap comprising a first end and a second end,
the strap configured to wrap around at least a portion of hair for
restraining the hair;
a toggle closure disposed to join with the second end, the
toggle closure comprising an opening, the opening comprising a
diameter;
wherein the toggle closure is tangentially connected to a
toggle closure extension;
wherein the second end of the strap is attached to the
toggle closure extension;
a bar, the bar comprising a length, the bar configured to
pass through the opening and rotate to extend generally in a
plane perpendicular to the opening for forming a locked
position, the locked position configured to fasten the first end to
the second end for locking the strap wrapped around at least a
portion of the hair,
wherein the length of the bar is greater than the diameter
of the opening, such that the bar is restricted from passing
through the opening in the locked position;
wherein the bar is transversely connected to a bar
extension to form a T-shaped bar;
wherein the first end of the elastic strap is attached to the
bar extension;
wherein the first end of the elastic strap is affixed within
the bar extension, and
wherein the second end of the elastic strap is affixed
within the toggle extension.
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EVIDENCE
Name Reference Date
Turnbull US 425,115 Apr. 8, 1890
Tsai US 5,913,319 June 22, 1999
Neary US 6,397,857 B2 June 4, 2002
Klug US 6,688,316 B1 Feb. 10, 2004
Grimm US 2009/0032044 A1 Feb. 5, 2009
Olson US 2009/0178690 A1 July 16, 2009
Bourque US 2010/0306902 A1 Dec. 9, 2010
REJECTIONS
Claims 1–3 and 8–14 are rejected under 35 U.S.C. § 112(a) or 35
U.S.C. § 112 (pre-AIA), first paragraph, as failing to comply with the
written description requirement.
Claims 1–3, 8, 22, and 25 are rejected under 35 U.S.C. § 103 as
unpatentable over Tsai, Bourque, Turnbull, and Olson.
Claims 9–11 are rejected under 35 U.S.C. § 103 as unpatentable over
Tsai, Bourque, Turnbull, Olson, and Grimm.
Claim 12 is rejected under 35 U.S.C. § 103 as unpatentable over Tsai,
Bourque, Turnbull, Olson, and Neary.
Claims 13 and 14 are rejected under 35 U.S.C. § 103 as unpatentable
over Tsai, Bourque, Turnbull, Olson, and Klug.
ANALYSIS
Appellant does not respond to most of the Examiner’s rejections
above, and instead only addresses the rejection of independent claim 22 as
being obvious over Tsai, Bourque, Turnbull, and Olson. See Appeal Br. 4
(where Appellant acknowledges the many claims pending, but only
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addresses the rejection of claim 22).2 Appellant does not respond to any
rejection of any other independent claim (i.e., claims 1 and 25) nor any
dependent claim (i.e., claims 2, 3, 8–14). See Ans. 9. We thus summarily
sustain their rejections (i.e., of claims 1–3, 8–14, and 25).
Independent claim 22 recites, among other limitations, an elastic strap
having first and second ends, and a bar transversely connected to a bar
extension (forming a T-shape) wherein the bar extension is attached to the
first end of the elastic strap. The Examiner relies on the combination of Tsai
and Turnbull for such teachings, but Appellant contends that such structure
is missing from these references. See Final Act. 4–7; Appeal Br. 5–8.
Appellant specifically contends, “Turnbull does not disclose a feature
similar to the bar extension 118” of Appellant’s Figures and Specification.
Appeal Br. 7. Thus, according to Appellant, “Turnbull does not disclose a
T-shaped bar.” Appeal Br. 7, 8.
Indeed, the Examiner did initially rely on Turnbull for such bar
extension teachings (see Final Act. 6, 7), but subsequently states, “by
considering Tsai in totality would result in the element 122 [of Tsai] holding
the bar of Turnbull in place of the sphere, resulting in the claimed shape.”
Ans. 10. In other words, the Examiner relies on Tsai’s element 122 for
teaching the recited “bar extension” to hold the bar of Turnbull to thereby
form the recited T-shape. Appellant does not challenge this reliance on Tsai
for disclosing the “bar extension” limitation, nor does Appellant argue that
this combination of Turnbull’s bar and Tsai’s bar extension (for holding
Turnbull’s bar) is non-obvious, i.e., would not have been obvious to one

2 We reference the Appeal Brief submitted on February 6, 2019, not the
amendment thereto submitted on March 13, 2019.
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skilled in the art. Accordingly, based on the record presented, we are not
persuaded of Examiner error on this point.
Appellant additionally argues the Examiner’s findings regarding
Tsai’s disclosure of first and second ends. See Final Act. 4; Appeal Br. 7.
Appellant contends that the referenced portion of Tsai (i.e., Tsai 1:7–8)
teaches a “band, similar to a rubber band, that does not have a first and
second end.” Appeal Br. 7. However, this analogy to a rubber band is not
accurate because the referenced section of Tsai clearly describes “a metal
clamp 3 fixedly fastened to the ends of the elastic band 31.” Tsai 1:7–8; see
also Tsai Fig. 1. Thus, Appellant’s contention regarding Tsai’s failure to
disclose first and second ends is not persuasive.
Appellant further states, “Tsai nowhere teaches that the cord of FIG.
6, referenced by the Office, is elastic.” Appeal Br. 7. To be clear, “the cord
of FIG. 6” of Tsai has a different reference numeral (i.e., 2) than its
counterpart elastic band 31 depicted in Figure 1. The Examiner addresses
this matter stating that Appellant “willfully ignores the totality of the Tsai
reference which takes a conventional hair binder which is comprised of an
elastic strap (Col 1, Lines 7–8) and improves upon this prior art.” Ans. 10.
In other words, “[a]s Tsai already teaches that hair binders (Col 1, Lines 57–
58) are made of elastic (Col 1, Lines 7–8) then the hair binder of Tsai (Col 1,
Lines 62–64) would have the same material.” Ans. 10. In short, the
Examiner is attributing the elastic characteristic of band 31 (“Col 1, Lines 7–
8”) shown in prior art Figure 1 (“Col 1, Lines 57–58”) into the main
embodiment of Tsai’s invention, Figure 4 (“Col 1, Lines 62–64”), as well as
its associated Figures 5–8 (see Tsai 2:16–17). Appellant does not dispute
the prior art teachings of an elastic band, or that such is disclosed as “part of
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the Background section of Tsai.” Appeal Br. 7 (referencing Tsai 1:7–8). In
fact, Appellant acknowledges, “Tsai is merely disclosing that an elastic hair
band is known in the art.” Appeal Br. 7.
In view of the use of elastic bands being well-known (see supra) and
explicitly disclosed in Tsai, and further based on the record presented, we
are not persuaded the Examiner erred in relying on Tsai in ascertaining that
the limitation, “an elastic strap comprising a first end and a second end,” is
satisfied by the cord of Figure 6, considering it is depicted substantially
identically to the elastic band of Figure 1, and Tsai is directed to improving
the coupling mechanism of such prior art elastic hair binders. See Final
Act. 4. In other words, we do not agree with Appellant that “Tsai does not
disclose an elastic band with a first and second end.” Appeal Br. 8. Even if
the cord of Figure 6 is considered to be inelastic, in view of the record
before us, we are not persuaded the Examiner erred in rejecting claim 22 as
being obvious to one of ordinary skill in the art. Cf. Boston Scientific v.
Cordis, 554 F.3d 982, 991 (Fed. Cir. 2009) (“[c]ombining two embodiments
disclosed adjacent to each other in a prior art patent does not require a leap
of inventiveness.”).
Consequently, we sustain the Examiner’s rejection of claim 22 as
being obvious in view of Tsai, Bourque, Turnbull, and Olson (the teachings
of Bourque and Olson, and the Examiner’s reliance thereon, are not disputed
by Appellant).

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CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–3, 8–14 112 Written Description 1–3, 8–14
1–3, 8, 22,
25
103 Tsai, Bourque,
Turnbull, Olson
1–3, 8, 22,
25

9–11 103 Tsai, Bourque,
Turnbull, Olson,
Grimm
9–11
12 103 Tsai, Bourque,
Turnbull, Olson,
Neary
12
13, 14 103 Tsai, Bourque,
Turnbull, Olson,
Klug
13, 14
Overall
Outcome
1–3, 8–14,
22, 25

No period for taking any subsequent action in connection with this
appeal may be extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED