Ex Parte Cole

Patent Trial and Appeal Board

Mar 5, 2018

13469192 (P.T.A.B. Mar. 5, 2018)

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.
13/469,192 05/11/2012 Suzanne K. Cole 519935-2000 6655
20999 7590 03/07/2018
HAUG PARTNERS LLP
745 FIFTH AVENUE - 10th FLOOR
NEW YORK, NY 10151
EXAMINER
NOBREGA, TATIANA L
ART UNIT PAPER NUMBER
3776
NOTIFICATION DATE DELIVERY MODE
03/07/2018 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):
docket@haugpartners.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SUZANNE K. COLE1
Appeal 2017-003361
Application 13/469,192
Technology Center 3700
Before ERIC B. GRIMES, RICHARD M. LEBOVITZ, and
DEVON ZASTROW NEWMAN, Administrative Patent Judges.
GRIMES, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35U.S.C. § 134 involving claims to a method
of using a shower cap, which have been rejected as obvious. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.
STATEMENT OF THE CASE
Claims 8, 9, and 11—16 are on appeal. Claim 8 is illustrative and
reads as follows:
8. A method of using a hair protection cap, comprising:
1 Appellant identifies the Real Party in Interest as Suzanne K. Cole. (Appeal
Br. 2.)
Appeal 2017-003361
Application 13/469,192
providing a hair protection cap having an inside surface and outside
surface, forming an interior space having a first opening and a second
opening opposite the first opening, wherein a first closing device is
associated with the first opening and a second closing device is associated
with the second opening;
putting a user’s head through the first opening and then the second
opening with the inside surface disposed against the user’s neck;
positioning the first opening to surround the user’s head at the user’s
hair line;
reducing the perimeter of the first opening using the first closing
device so that the first opening is secured at the position surrounding the
user’s hair line forming a substantially water resistant fit at the user’s
hairline;
confining dry hair of the user inside of the cap;
closing the second opening of the cap using the second closing device
to reduce the possibility of the entry of water from the outside through the
second opening and into the interior space;
rolling the second opening towards the first opening;
securing the rolled second opening with a securing device to hold the
rolled position of the protective cap; and
subjecting the cap with the user’s dry hair inside to water in a shower
such that the user’s dry hair remains substantially dry,
wherein the outside surface is a pliable material that extends over the
perimeter of the first opening on the inside surface and also extends over a
perimeter of the second opening on the inside surface.
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Application 13/469,192
DISCUSSION
The Examiner has rejected claims 8, 9, and 11—15 under 35 U.S.C.
§ 103(a) as obvious based on Duffin,2 Kahn,3 and Finan.4 (Ans. 2.) The
Examiner has rejected claim 16 under 35 U.S.C. § 103(a) as obvious based
on Duffin, Kahn, Finan, and Hickey.5 (Ans. 9.) Because Appellant has
waived arguments based on Hickey (see Appeal Br. 9), the same issue is
dispositive for both rejections.
The Examiner finds that Duffin discloses a method similar to that of
claim 8, except that
Duffin does not disclose the user’s hair being dry when the cap
is donned and rolling the second opening towards the first
opening; securing the rolled second opening with a securing
device to hold the rolled position of the protective cap; and
subjecting the cap with the user’s hair inside to water in a shower.
(Ans. 3.)
The Examiner finds, however, that Duffin teaches that its hair cap can
have a water-proof or water-resistant outer layer, and Kahn discloses a
similar hair cap that can be used for protecting hair in a shower. (Id.) The
Examiner finds that Finan also teaches a shower cap, and teaches
“rolling/furling the second opening towards the first opening and securing
the rolled second opening.” (Id. at 4.)
The Examiner concludes that it would have been obvious to use
Duffin’s cap to keep dry hair from getting wet in the shower, as taught by
2 US 2012/0030858 Al, published Feb. 9, 2012.
3 US 2,568,399, issued Sept. 18, 1951.
4 GB 2463272, published Mar. 10, 2010.
5 US 5,950,636, issued Sept. 14, 1999.
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Application 13/469,192
Kahn, and to achieve the turban-styled configuration described by Duffm
“by rolling the second opening toward the first opening as taught by Finan et
al. in order to arrange the hair and cap in a neat and compact configuration
which prevents the cap from opening.” {Id. at 4—5.)
We agree with the Examiner that the cited references would have
made the method of claim 8 obvious to a person of ordinary skill in the art.
Duffm discloses “an absorbent sleeve to dry a user’s head, face, and hair.”
(Duffm 113.) “The absorbent sleeve 10 includes a cylindrical member 12.”
{Id. 139.) “[Cylindrical member 12 includes a looped layer of absorbent
material,” which “may include: cotton, terry cloth, wool, textiles, fabric,
synthetic materials, or the like or combinations thereof. There may be a
water-proof or water resistant layer disposed on an exterior surface, interior
surface, and/or sandwiched between absorbent layers.” {Id. 140.) In one
embodiment, “[t]he cylindrical member 12 includes a waterproof layer 77
disposed on an exterior surface thereof. The waterproof-layer 77 is
configured to keep water from saturating an interior surface from an exterior
surface of the cylindrical member 12.” {Id. 1 63.)
Duffm’s device includes cinch loops (24, 30) at the top and bottom of
the cylindrical member 12, allowing a user to open the cylinder to insert
their head through it and also to close off the openings partially or
completely. {Id. ^fl[ 42^43.) Duffm describes the use of its device as
follows:
[A] user takes a shower or a bath and prepares to dry their face
and hair afterwards. The user disposes the absorbent sleeve over
the user’s head and disposes the absorbent sleeve around the neck
region of the user by positioning the head through the first and
second apertures of the cylindrical member. The user pulls out
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Application 13/469,192
their hair from the absorbent sleeve thereby disposing the hair
outside thereof. The user pulls the absorbent sleeve back over
the user’s face through the second aperture and dries the user’s
face with the interior surface of the absorbent sleeve. Wherein
the user has long hair, the hair is then hanging outside and over
a back portion of the sleeve. The user then pulls the absorbent
sleeve over the user’s face through the first aperture and disposes
the absorbent sleeve over the user’s hair. The user dries the hair
with the interior of the absorbent sleeve. The absorbent sleeve is
configured to securely hold the user’s hair away from the user’s
face.
{Id. 144.)
Kahn discloses “headgear for drying the hair after the hair has been
washed, and for other purposes.” (Kahn 1:1—3.) Kahn discloses that its
device can be made with multiple layers: “For example,. . . the inner layer
may be made of toweling or other absorbent material, and the outer layer of
a relatively water-resistant material.” {Id. at 3:56—59.) “[T]he toweling may
be removably attached ... to enable the user to remove the toweling for
laundering, or for independent use. When thus separated, the waterproof
outer covering may also be used for protecting the hair in a shower bath.”
{Id. at 3:61-67.)
Finan discloses “a shower cap comprising a layer or laminate of a
flexible material that is substantially waterproof. . . and having an
elasticated annular portion surrounding a first opening to serve as a
headband to grip to the head of a wearer in use.” (Finan 2.) “Being an
open-ended tube, it may be pulled on to the head down beyond the length of
the hair in a single motion so that all of the hair may be swept up together
and enveloped in the tube.” {Id.)
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Application 13/469,192
“The layer or laminate may then be folded, twisted or furled to close
the second opening.” (Id.) Finan states that “closing of the second opening
of the tube, can be simple to perform and intuitive, making use of the length
of the flexible tubular form to fold it back and suitably allowing the second
end of the tubular form to be tucked under the band into the cap.” (Id.)
These disclosures would have made obvious the method of claim 8.
Duffin discloses a hair protection cap having the structure recited in claim 8,
including two openings with closing devices (cinch loops) associated with
them. Duffin states that the device is used by putting a user’s head through
both openings so that the sleeve is around the user’s neck, then disposing the
user’s hair inside cylindrical member, with the cinch loops closed around the
hairline and against the end of the hair. (Duffin 161.)
Duffin suggests including a water-proof or water-resistant layer on the
exterior surface of its device, and Kahn discloses that a similar device with
an absorbent inner layer and water-resistant outer layer can be used for
protecting hair in the shower. (Kahn 3:56—59.) Thus, it would have been
obvious to a skilled artisan to use Duffin’s device—with a water-proof or
water-resistant exterior layer—to keep a user’s hair dry during a shower.
Finally, it would have been obvious to roll the second opening of
Duffin’s device toward the first opening and to secure it there because Finan
discloses a shower cap shaped as an open-ended tube and suggests that, after
the hair is enveloped in the tube, the device can be furled (i.e., rolled) to
close the second opening, which is then secured under cap’s elastic band.
Thus, all of the limitations of claim 8 would have been obvious based on the
teachings of Duffin, Kahn, and Finan.
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Application 13/469,192
Appellant argues that it would not have been obvious to combine
Finan and Duffin because Finan states that using its open-ended tube
involves ‘“twisting and tucking of the cap second end’ to capture the user’s
hair,” while “Duffin explicitly states, ‘Advantageously, a sleeve [i.e., the
shower cap] does not requires a user to twist or tangle hair during the use
thereof.’” (Appeal Br. 7, alteration in original.)
This argument is not persuasive, because Finan states that the second
opening can be closed by folding, twisting, or furling. (Finan 2.) Thus,
twisting Finan’s shower cap is not essential to its operation. In addition,
Duffin states that its device can include coupling members at the first and
second ends, and these coupling members “permit[] the user to create a
‘turban’ styled configuration where the hair is bunched” (Duffin 1 63),
similar to the configuration of Finan’s device after closing the second end by
furling it, and then tucking it under the cap’s elastic band.
Appellant also argues that Duffin and Finan cannot be reasonably
combined, because Duffin’s device is directed to drying wet hair, while
Finan’s device is directed to keeping hair dry during a shower. (Appeal Br.
8.) For essentially the same reason, Appellant argues that Duffin and Finan
are nonanalogous art. (Reply Br. 11—12.)
These arguments are also unpersuasive, because Kahn provides
evidence that a device with an absorbent inner layer and a water-resistant
outer layer is useful both for drying hair after it has been washed and for
protecting hair during a shower. Thus, a skilled artisan would have
recognized, based on Kahn’s teachings, that Duffin and Finan are in the
same field of endeavor and therefore analogous art.
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Application 13/469,192
We affirm the rejection of claim 8 under 35 U.S.C. § 103(a) based on
Duffm, Kahn, and Finan. Claims 9 and 11—15 have not been argued
separately and therefore fall with claim 8. 37 C.F.R. § 41.37(c)(l)(iv).
Claim 16 stands rejected under 35 U.S.C. § 103(a) based on Duffm,
Kahn, Finan, and Hickey. Appellant has waived arguments based on
Hickey. (Appeal Br. 9.) We therefore affirm the rejection of claim 16 for
the reasons set out in the Examiner’s Answer and as discussed above. See
37 C.F.R. § 41.37(c)(l)(iv) (Appeal Brief must contain “[t]he arguments of
appellant with respect to each ground of rejection.”); Hyatt v. Dudas, 551
F.3d 1307, 1314 (Fed. Cir. 2008) (“When the appellant fails to contest a
ground of rejection to the Board, ... the Board may treat any argument with
respect to that ground of rejection as waived.”).
SUMMARY
We affirm both of the rejections on appeal.
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).
AFFIRMED
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