Ex Parte Jollet

Patent Trial and Appeal Board

Aug 23, 2016

13378683 (P.T.A.B. Aug. 23, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/378,683 02/13/2012
116 7590 08/25/2016
PEARNE & GORDON LLP
1801EAST9TH STREET
SUITE 1200
CLEVELAND, OH 44114-3108
FIRST NAMED INVENTOR
Frederic Joliet
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.
N&P-48889 4404
EXAMINER
OLIVER, BRADLEY S
ART UNIT PAPER NUMBER
3754
NOTIFICATION DATE DELIVERY MODE
08/25/2016 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):
patdocket@peame.com
PTOL-90A (Rev. 04/07)
L11'-~ITED STATES PATENT AND TRADE~'v1ARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte FREDERIC JOLLET
Appeal2014-002926
Application 13/378,683
Technology Center 3700
Before LINDA E. HORNER, EDWARD A. BROWN, and JILL D. HILL,
Administrative Patent Judges.
HORNER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Frederic Jollet (Appellant) 1 seeks our review under 35 U.S.C. § 134 of
the Examiner's decision rejecting claims 1-15, which are all of the pending
claims. We conducted an oral hearing in this appeal on August 11, 2016.
We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
1 Appellant identifies the real party in interest as L'Oreal. Appeal Br. 2.
Appeal2014-002926
Application 13/378,683
CLAIMED SUBJECT MATTER
Appellant's claimed subject matter relates to "a device for applying a
cosmetic composition to macroscopic human keratinous fibers and/or for
combing said fibers, the device including an applicator having a brush that
gives off heat." Spec. 1, 11. 2-6. Claim 1 is the sole independent claim and
is reproduced below.
1. A device compnsmg an applicator including a
brush, said brush comprising:
· a core that is formed of at least two branches of a resistor
wire that are twisted together;
· bristles that are carried by the core; and
· a power supply that is connected to the branches in such
a manner that the core gives off heat while an electric current is
passing therethrough.
REJECTIONS
Appellant appeals from the Final Action, dated February 13, 2013
("Final Act."), which contained the following rejections:
1. Claims 1-10 and 12-15 under 35 U.S.C. § 102(b) as anticipated by
Marcotte (US 2005/0031400 Al, published February 10, 2005).
2. Claim 11 under 35 U.S.C. § 103(a) as unpatentable over Marcotte
and Bouix (US 2007/0286666 Al, published December 13, 2007).
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Appeal2014-002926
Application 13/378,683
ANALYSIS
Claim 1 recites, in pertinent part, a device comprising an applicator
including a brush, the brush comprising "a core that is formed of at least two
branches of a resistor wire that are twisted together." Appeal Br. 20 (Claims
App.). The Examiner found that "Marcotte discloses a device with a brush
(12) that has a core (53) formed of at least two branches of a resistor wire
that are twisted together (Fig. 4)." Final Act. 2.
Appellant argues that the Examiner erred in finding that the wire of
Marcotte's heating element 53 is twisted together to form a core. Appeal
Br. 13 (arguing that "there is a clear difference between twisting two wires
together to form the core of a brush in Appellant's claim 1 versus winding
wires around a core formed of a different material in Fig. 4 of Marcotte").
Marcotte discloses an applicator device 10 having a rod 13, which
includes on one end an applicating portion 12 compnsmg an arrangement of
bristles held between two strands of a twisted wire. Marcotte, paras. 47, 96.
In the embodiment of Figure 4 relied upon by the Examiner, applicating
portion 12 also comprises a heating element 53 in the form of a wire wound
onto the outer surface of rod 13 and slotted into the turns formed by the
arrangement of bristles on applicating portion 12. Id. at para. 107, Fig. 4.
The wire of Marcotte's heating element 53 is not "twisted together" to form
a core, as called for in claim 1. Rather, rod 13 is formed of wires twisted
together, and heating element 53 is wrapped around rod 13 and slotted
between the bristles held by rod 13.
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Appeal2014-002926
Application 13/378,683
"A claim is anticipated only if each and every element as set forth in
the claim is found, either expressly or inherently described, in a single prior
art reference." Verdegaal Bros., Inc. v. Union Oil Co. of Cal., 814 F.2d 628,
631 (Fed. Cir. 1987). To establish anticipation, every element and limitation
of the claimed invention must be found in a single prior art reference,
arranged as in the claim. Karsten Mfg. Corp. v. Cleveland Golf Co., 242
F.3d 1376, 1383 (Fed. Cir. 2001). In this case, because the wire of
Marcotte's heating element 53 is not twisted together to form a core of
applicating portion 12, each and every element as set forth in claim 1 is not
found in Marcotte. For this reason, we do not sustain the rejection of
claim 1 and dependent claim 2-10 and 12-15 under 35 U.S.C. § 102(b) as
anticipated by Marcotte.
The rejection of dependent claim 11under35 U.S.C. § 103(a)
similarly relies on the finding that iviarcotte discloses a core formed of at
least two branches of a resistor wire that are twisted together. Final Act. 4
(relying on Bouix to teach "an applicator (20) that changes color when the
applicator is heated to the appropriate temperature"). Thus, for the same
reasons set forth above for claim 1, we likewise do not sustain the rejection
of claim 11 under 35 U.S.C. § 103(a).
DECISION
The decision of the Examiner to reject claims 1-15 is REVERSED.
REVERSED
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