Ex Parte Braun et al

Board of Patent Appeals and Interferences

Nov 18, 2010

10364148 (B.P.A.I. Nov. 18, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte PHILLIP M. BRAUN, WILLIAM R. BROWN, JR.,
ALEXANDER T. CHENVAINU, and THOMAS A. CHRISTMAN
____________

Appeal 2009-009190
Application 10/364,148
Technology Center 3700
____________

Before WILLIAM F. PATE, III, MICHAEL W. O’NEILL, and
KEN B. BARRETT, Administrative Patent Judges.

O’NEILL, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown in the PTOL-90A cover letter attached to this decision.

Appeal 2009-009190
Application 10/364,148

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STATEMENT OF THE CASE
Phillip M. Braun et al. (Appellants) appeal under 35 U.S.C. § 134
from the Examiner’s decision rejecting:
(1) claims 1, 7-10, 12, 15-21, and 33 under 35 U.S.C.
§ 103(a) as unpatentable over Gavney, Jr. ’417 (U.S. Patent No.
6,571,417 B1, issued Jun. 3, 2003) and Calabrese (U.S. Patent
No. 6,513,182 B1, Feb. 4, 2003);2

(2) claim 36 under 35 U.S.C. § 103(a) as unpatentable
over Gavney, Jr. ’417, Calabrese, and Kott (U.S. Patent No.
3,196,299, issued Jul. 20, 1965); and

(3) claim 42 under 35 U.S.C. § 103(a) as unpatentable
over Gavney, Jr. ’417, Calabrese, and Gavney, Jr. ’959 (U.S.
Patent Application Publication No. 2003/0229959 A1,
published Dec. 18, 2003).

Appellants cancelled claims 2-6, 11, 13, 14, 22-32, 34, 35, and 37-41. We
have jurisdiction under 35 U.S.C. § 6(b). We REVERSE.

The Invention
The claims on appeal relate to a head for a power toothbrush and a
power toothbrush.
Claims 1 and 36, reproduced below, with emphasis added, are
representative of the subject matter on appeal.

2 We have consolidated the Examiner’s rejection of claims 1, 7-10, 12, and
15-21 on pages 3-5 of the Examiner’s Answer and the Examiner’s rejection
of claim 33 on pages 5-6 of the Examiner’s Answer since both rejections are
under 35 U.S.C. § 103(a) as unpatentable over Gavney, Jr. ‘417 and
Calabrese.

Appeal 2009-009190
Application 10/364,148

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1. A head for a power toothbrush comprising:
a support member configured for releasable
attachment to a power toothbrush,
a cup-shaped member extending from the
support member, the cup-shaped member
including a plurality of fin members extending
inwardly from an inner surface of the cup-shaped
member, and
a plurality of tufts of bristles extending from
the support member and at least partially
surrounding the cup-shaped member, wherein at
least some of the tufts of bristles are about 20 to 30
percent taller than the cup-shaped member.

36. A power toothbrush comprising:
(a) a handle;
(b) a head configured for releasable attachment to
the handle, the head including:
(i) a support member,
(ii) a cup-shaped member extending from the
support member, the cup-shaped member
including a plurality of fin members extending
inwardly from an inner surface of the cup-shaped
member, and
(iii) a plurality of tufts of bristles extending
from the support member and at least partially
surrounding the cup-shaped member, wherein at least
some of the tufts of bristles are about 20 to 30 percent
taller than the cup-shaped member; and
(c) a drive mechanism, disposed within the
handle, configured to drive the head.

Appeal 2009-009190
Application 10/364,148

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DISCUSSION
Issue
The determinative issue in this appeal is:
Did the Examiner err in interpreting Gavney, Jr. ’417 to disclose “a
plurality of tufts extending from the support member and at least partially
surrounding the cup-shaped member” as recited in the claims?
Analysis
Appellants contend that the rejection of claims 1, 7-10, 12, 15-21, and
33 under 35 U.S.C. § 103(a) as unpatentable over Gavney, Jr. ’417 and
Calabrese is improper. App. Br. 3. More particularly, Appellants contend
that the Examiner’s interpretation that the Figure 3n embodiment of Gavney,
Jr. ’417 discloses a plurality of tufts of bristles, as recited in the claims, is
incorrect because the Gavney, Jr. ’417 reference does not include any
statement to suggest that the squeegee arrangement shown in the Figure 3n
embodiment includes tufts of bristles. Appellants also contend that the
Examiner’s reliance on column 2, lines 43-51 as support for the Figure 3n
embodiment having tufts of bristles is misplaced because that portion of
Gavney, Jr. ’417 only makes a general statement that “[t]he squeegee may
be used in combination with bristles or bristle sections . . .”, but does not
state that the Figure 3n embodiment actually discloses squeegees in
combination with tufts of bristles. Appellants also contend that Gavney, Jr.
’417 discloses over 20 different squeegee arrangements and the Examiner
has not provided a single reason why one of ordinary skill in the art would
add tufts of bristles at least partially surrounding the squeegee arrangement
of the Figure 3n embodiment of Gavney, Jr. ’417. Appellants take exception
to the Examiner’s allegation that the unlabeled O-shaped members at the
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ends of the outwardly flaring squeegees in Figure 3n of Gavney, Jr. ’417
appear to be bristles or elastomeric tubes resembling bristles because
Appellants contend nothing in Gavney, Jr, ’417 would indicate to one of
ordinary skill in the art that the terminal portions of the flaring out squeegees
251 bear any resemblance to bristles. Reply Br. 3. Appellants also contend
that although Gavney, Jr. ’417 does generally disclose that squeegees may
be used with bristles or bristle sections and shows embodiments having both
squeegees and bristles, Gavney, Jr. ’417 does not disclose any embodiments
having bristles surrounding a cup-shaped member. Finally, Appellants
contend that “it is clear that Gavney[, Jr.] ’417 contemplates some
embodiments without bristles and does not contemplate bristles with the
arrangement of Fig. 3n.” Id.
The Examiner’s position is that Gavney, Jr. ’417 discloses a head for
power toothbrushes which includes a support member, a cup-shaped
member, and plurality of tufts of bristles extending from the support member
and at least partially surrounding the cup-shaped member. Ans. 3. More
particularly, the Examiner posits that “in the embodiment of [Figure] 3n[,]
there appears to be bristles (the ‘o’ shape at the ends of 251) and further that
the member is used in combination with bristles or bristle sections that also
contact and clean the teeth while brushing (Column 2 Lines 39-51).” Ans. 4.
In the Response to Argument section of the Examiner’s Answer, the
Examiner maintains that “in Figure 3n[,] it appears that the unlabeled ‘o’
shapes formed at the ends of outwardly extending fins may be bristles or
elastomeric tubes which may resemble a bristle.” Ans. 8. The Examiner
also posits that regardless of what the O-shaped members are Gavney, Jr.
’417 discloses that squeegees may be used in combination with bristles or
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bristle sections. Id. The Examiner also posits that a tuft is considered to be
a grouping of two or more bristles and the “although Figure 3n does not
display tufts of bristles, Gavney[, Jr.] ’417 teaches the use of tufts of bristles
at least partially surrounding the cup-shaped squeegee member.” Id.
Finally, the Examiner posits that “[g]iven the squeegee arrangement in
Figure 3n, the bristles or bristle sections must inherently be positioned
outside the cup-shaped member and thus ‘at least partially surround’ it.”
Ans. 9.
Gavney, Jr. ’417 discloses a dentition cleaning device and system.
Title. The dentition cleaning device utilizes squeegees that protrude from a
cleaning head to provide efficient contact of dentition surfaces for cleaning
teeth because the squeegee contact surfaces remove residues, such as plaque,
without causing significant abrasion to surrounding gum tissue which can
lead to gum recession. Abstract. The dentition cleaning device 100 includes
a cleaning head 50. Figs. 1a and 1b and col. 5, ll. 6-17. In the Figure 3n
embodiment, squeegees are configured to produce a variety of squeegee
compartments. Col. 8, ll. 40-42. The squeegee configuration 226 illustrates
a complex arrangement of squeegees that form scale-shaped squeegee
compartments 249 within a circular squeegee 248. Col. 8, ll. 42-45. In
addition, squeegees 251 flare out from the circular squeegee 248 to add other
cleaning features. Col. 8, ll. 45-47.
We agree with Appellants that the Figure 3n embodiment of Gavney,
Jr. ’417 does not disclose a plurality of tufts of bristles in order to meet the
claim language of “a plurality of tufts of bristles extending from the support
member and at least partially surrounding the cup-shaped member.” We
note that the Examiner interpreted Gavney, Jr. ’417 to meet the claim
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language of “a plurality of tufts of bristles extending from the supports” in
two alternative ways. Namely, either the o-shaped members at the end of
the flaring out squeegees 251 of Gavney, Jr. ‘417 are bristles or elastomeric
tubes resembling bristles, or else the disclosure at column 2, lines 43-44, of
Gavney, Jr. ’417 supports that the squeegees may be used in combination
with bristles or bristle sections. However, we note that Gavney, Jr. ’417 is
completely silent as to what the o-shaped members at the end of the flaring
out squeegees 251 in Figure 3n represent. Further, even if Gavney, Jr. ’417
generally discloses that squeegees may be used with bristles or bristle
sections, this does not mean that the Figure 3n embodiment has bristles or
bristle sections because Gavney, Jr. ‘417 clearly contemplates embodiments
with just squeegees (i.e., no bristles).
In view of the foregoing, we do not sustain the Examiner’s rejection
of claims 1, 7-10, 12, 15-21, and 33 under 35 U.S.C. § 103(a) as
unpatentable over Gavney, Jr. ’417 and Calabrese. Since neither Kott nor
Gavney, Jr. ’959 cure the defects of the Gavney, Jr. ’417 reference as
discussed above, we also do not sustain the Examiner’s rejection of claim 36
under 35 U.S.C. § 103(a) as unpatentable over Gavney, Jr. ’417, Calabrese,
and Kott and the Examiner’s rejection of claim 42 under 35 U.S.C. § 103(a)
as unpatentable over Gavney, Jr. ’417, Calabrese, and Gavney, Jr. ’959.

CONCLUSION
The Examiner erred in finding that Gavney, Jr. ’417 discloses a
plurality of tufts extending from the support member and at least partially
surrounding the cup-shaped member as recited in the claims.

Appeal 2009-009190
Application 10/364,148

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DECISION
We reverse the Examiner’s rejections of: claims 1, 7-10, 12, 15-21,
and 33 under 35 U.S.C. § 103(a) as unpatentable over Gavney, Jr. ’417 and
Calabrese; claim 36 under 35 U.S.C. § 103(a) as unpatentable over Gavney,
Jr. ’417, Calabrese, and Kott; and claim 42 under 35 U.S.C. § 103(a) as
unpatentable over Gavney, Jr. ’417, Calabrese, and Gavney, Jr. ’959.

REVERSED

Klh

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