Ex Parte Fujinuma et alDownload PDFPatent Trial and Appeal BoardOct 2, 201812532934 (P.T.A.B. Oct. 2, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 12/532,934 09/24/2009 Hiroyuki Fujinuma 22428 7590 10/04/2018 Foley & Lardner LLP 3000 K STREET N.W. SUITE 600 WASHINGTON, DC 20007-5109 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 106343-0102 1998 EXAMINER KALACH, BRIANNE E ART UNIT PAPER NUMBER 3772 NOTIFICATION DATE DELIVERY MODE 10/04/2018 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): ipdocketing@foley.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte HIROYUKI FUJINUMA, KAZUHIRO OKADA, TOMOHITO KOSHIKA, and MITSUHIKO YAMAMOTO Appeal2016-007396 Application 12/532,934 1 Technology Center 3700 Before LINDA E. HORNER, LYNNE H. BROWNE, and BRENT M. DOUGAL, Administrative Patent Judges. DOUGAL, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1, 3-14, and 16-19. We have jurisdiction under 35 U.S.C. § 6(b ). A hearing was held on September 26, 2018. We reverse. 1 The real party in interest is Kao Corporation. Appeal Br. 2. Appeal2016-007396 Application 12/532,934 CLAIMED SUBJECT MATTER The claims are directed to a hair dyeing or bleaching method. Claim 1, reproduced below, is the sole independent claim and is illustrative of the claimed subject matter: 1. A method for hair dyeing or bleaching using a two-part hair dye or bleach composition which is applied on hair comprising: providing a solution comprising a first agent containing an alkaline agent and a second agent containing hydrogen peroxide in a container body of a squeeze container; mixing the solution to obtain a mixed solution by moving the container body in a cycle of moving the container body from a roughly upright state to a state between an inverted state and a sideways state, and then once again returning to a roughly upright state such that the mixing does not produce a foam in the container body of the squeeze container, and the mixing of the solution is carried out by moving the container body in the cycle 1 to 15 times at a speed of 1 to 20 times per 10 seconds; inserting a squeeze foamer at a top end of the container body of the squeeze container, the squeeze foamer comprising an air induct path, a gas-liquid mixing chamber, a foam homogenizing means and a discharge outlet; squeezing the squeeze container to mix air in the container body with the mixed solution in the gas-liquid mixing chamber of the squeeze foamer to cause the mixed solution to foam; discharging a foam of the mixed solution from the discharge outlet of the squeeze foamer via the foam homogenizing means, wherein at least one of the first or second agents contains a foaming agent, and the mixed solution has a viscosity (25 °C) of from 1 mPa· s to 100 mPa· s, and the mixed solution does not reach the air induct path of the squeeze foamer. 2 Appeal2016-007396 Application 12/532,934 REFERENCES The Examiner's evidence relied upon to reject the claims on appeal is: Bucaria Schmitt Wayne Fujinuma Kao us 3,823,231 us 5,888,484 US 2004/0079383 Al US 2004/0213752 Al JP 07-215352 A REJECTIONS 2 July 9, 1974 Mar. 30, 1999 Apr. 29, 2004 Oct. 28, 2004 Aug. 15, 1995 Claims 1, 4--14, and 16-19 are rejected underpre-AIA 35 U.S.C. § I03(a) as being unpatentable over Fujinuma, Kao, Wayne, and Schmitt. Claim 3 is rejected under pre-AIA 35 U.S.C. § I03(a) as being unpatentable over Fujinuma, Kao, Wayne, Schmitt, and Bucaria. OPINION The Examiner finds that Fujinuma's method of dying hair teaches most of the features of claim 1. Final Act. 4--5. However, the Examiner determines that, though Fujinuma teaches mixing a solution, it does not teach mixing the solution in the manner required by the claim. Id. at 5. The Examiner turns to Wayne for disclosure of the claimed method of mixing the solution. Id. at 6 (citing Wayne ,r 100). Wayne teaches "inverting the dispenser 40 several times" in order to mix a multi-part solution hair dye. Wayne ,r 100. The Examiner determines that this disclosure "encompass[ es 2 The rejection under 35 U.S.C. § 112, first paragraph (see Final Act. 3) was withdrawn in the Examiner's Interview Summary dated April 10, 2015. The Examiner's inclusion of this rejection in the Answer without discussion (see Ans. 2) appears to have been a typographical error. 3 Appeal2016-007396 Application 12/532,934 a cycle of] 'moving the container body from a roughly upright state to a state between an inverted state and a sideways state, and then once again returning to a roughly upright state,[']" as required by claim 1. Final Act. 7. The Examiner further determines that it would have been obvious to use this mixing cycle in Fujinuma "in order to more effectively blend the contents of the container." Id. The method of claim 1 also requires that the mixing cycle be done a particular number of times and at a particular rate: "the mixing of the solution is carried out by moving the container body in the cycle 1 to 15 times at a speed of 1 to 20 times per 10 seconds." Concerning this limitation, the Examiner finds that "Schmitt et al. teaches blending hair dye components ( which implies at least once) by shaking for 10 seconds ( ... where if one mixing step is done within the 10 seconds provided, then the claimed rate is met)." Final Act. 7. The Examiner determines that "[i]t would have been obvious ... to modify the blending method of modified Fujinuma et al. to be the step of blending for 10 seconds, as taught by Schmitt et al. in order to provide optimal blending for the components." Id. Appellants correctly argue that Schmitt "does not describe or suggest specific mixing speeds." Appeal Br. 8. 3 The Examiner's finding that Schmitt implies shaking once within 10 seconds is not supported by Schmitt's disclosure. Schmitt teaches shaking for 20 seconds in one 3 Appellants also offer the declaration of Dr. Takashi Itou concerning the vigorous shaking in many conventional mixing methods. Dec. of Dr. Takashi Itou dated December 16, 2013. The Examiner does not address this declaratory evidence in the 2015-02-27 Final Action or the Answer. At the same time, it is not clear that Dr. Itou' s December 16, 2013 declaration is directed to the mixing of two-part hair bleach or dyes with a foaming agent, such as that taught in Fujinuma. 4 Appeal2016-007396 Application 12/532,934 embodiment and for 10 to 15 seconds in another. Schmitt 4:37--41, 5:49--51 ( cited at Final Act. 7). The Examiner does not identify where Schmitt suggests a rate of shaking or that shaking for 10-20 seconds actually means shaking only once, instead of shaking for the entire 10-20 seconds. Further, the Examiner provides no reason why one of skill in the art would mix a hair dye or bleach "1 to 15 times at a speed of 1 to 20 times per 10 seconds" as claimed. Thus, the Examiner has not shown how all of the features of claim 1 are taught or suggested by the prior art. For this reason we do not sustain the rejection of claim 1 or its dependent claims. DECISION The Examiner's rejections of claims 1, 3-14, and 16-19 are reversed. REVERSED 5 Copy with citationCopy as parenthetical citation