Parris, Eric et al.

Patent Trials and Appeals Board

Apr 30, 2020

14128097 - (D) (P.T.A.B. Apr. 30, 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.
14/128,097 05/05/2014 Eric Parris 4000-539US 1092
61275 7590 04/30/2020
The Marbury Law Group, PLLC
11800 Sunrise Valley Drive
15TH FLOOR
Reston, VA 20191
EXAMINER
GILL, JENNIFER FRANCES
ART UNIT PAPER NUMBER
3772
NOTIFICATION DATE DELIVERY MODE
04/30/2020 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):
ptonotices@marburylaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ERIC PARRIS and GABIN VIC
Appeal 2019-000079
Application 14/128,097
Technology Center 3700
Before DANIEL S. SONG, CHARLES N. GREENHUT, and
LEE L. STEPINA, Administrative Patent Judges.
GREENHUT, 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 18–30, and 32–38. See Non-Final Act.
1. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as L’Oreal. Appeal Br.
2.
Appeal 2019-000079
Application 14/128,097
2
CLAIMED SUBJECT MATTER
The claims are directed to a process for treating keratin fibres with
input of heat. Claim 18, reproduced below, is illustrative of the claimed
subject matter:
18. A process for treating keratin fibres, the process comprising:
applying a hair treatment composition to the keratin fibres,
the hair treatment composition comprising at least one of fatty
substances, surfactants, polymers with a glass transition
temperature (Tg) ranging from about 40°C to about 150°C,
oxidation dye precursors, or direct dyes;
inserting the treated keratin fibres into a device comprising
two rigid elements that are moveable relative to each other
between an open position and a closed position, wherein, in the
closed position, the two rigid elements define a flat chamber
comprising a substantially leaktight closed space;
moving the two rigid elements into the closed position to
confine the keratin fibres in the closed space of the flat chamber;
and
heating the treated keratin fibres to a temperature ranging
from about 40°C to about 250°C while the keratin fibres are
confined in the closed space of the flat chamber, wherein at least
one of the two rigid elements comprises a heat source that
generates heat.
REFERENCES
The prior art relied upon by the Examiner is:
Reference Name Document ID Pub. Date
Cowan U.S. 2,263,718 A Nov. 25, 1941
Morrison U.S. 4,714,820 A Dec. 22, 1987
Smith U.S. 2008/0308119 A1 Dec. 18, 2008
Dutheil-Gouret U.S. 2010/0263683 A1 Oct. 21, 2010

Appeal 2019-000079
Application 14/128,097
3
REJECTIONS
I. Claims 18–30, 32, and 34–38 are rejected under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over Dutheil-Gouret in view of Smith
and Cowan. Non-Final Act. 5.
II. Claims 18–30, 32, 33, 37, and 38 are rejected under pre-AIA 35
U.S.C. § 103(a) as being unpatentable over Dutheil-Gouret in view of
Morrison. Non-Final Act. 10.
OPINION
Rejection I
Rejection I hinges on the Examiner interpreting Cowan’s steam
generator 36 as a component of rigid elements defining a flat chamber
according to claim 18. The Examiner cites Cowan’s shell casings 11, 12 as
satisfying the “two rigid elements” limitation of claim 18. Non-Final Act. 7.
However, if steam generator 36 were considered a component of casing 11
(see Cowan Fig. 3) the casings would cease to “define a flat chamber” as
required by claim 18. Appeal Br. 7. We are mindful that the Examiner cited
Smith’s device portions 10, 20 as defining the flat chamber. Non-Final Act.
6. However, the Examiner provides no explanation as to how the flat nature
of the chamber would be maintained by incorporating Cowan’s steam
generator. Thus, the Examiner has not adequately explained how the
Examiner’s proposed combination of reference teachings yields the precise
subject matter claimed. Accordingly, we do not sustain the Examiner’s
Rejection I on the basis presently set forth by the Examiner.
Rejection II
During examination of a patent application, pending claims are given
their broadest reasonable construction consistent with the specification. In
Appeal 2019-000079
Application 14/128,097
4
re Prater, 415 F.2d 1393, 1404–05 (CCPA 1969). Rejection II hinges on the
reasonableness of the Examiner interpreting Morrison’s wrapper 10 and flap
30 as the recited “rigid elements.” We agree with the Appellant’s ordinary
definition of rigid as “not bending.” Appeal Br. 9. Despite the fact that the
wrapper 10 includes stiffening wires 28, 29, because Morrison’s wrapper 10
and flap 30 are ultimately designed to be rolled up (Morrison Figs. 4–6),
they cannot reasonably be regarded as “rigid.” Exemplary rigid materials are
described in the first two lines of page 36 of the originally filed
Specification. Although elements may have varying degrees of rigidity (Ans.
15) the Examiner does not persuasively demonstrate that one skilled in the
art would have difficulty determining with a reasonable degree of certainty
whether chamber-defining elements according to claim 18 are properly
categorized as “rigid,” or that the recited rigid elements would have been
understood to encompass bendable wrapper and flap of Morrison.
Accordingly, we do not sustain Rejection II on the basis presently set forth
by the Examiner.
CONCLUSION
The Examiner’s rejections are REVERSED.
Appeal 2019-000079
Application 14/128,097
5
DECISION SUMMARY
Claims 35 U.S.C. § Basis/References Affirmed Reversed
18–30, 32,
34–38
103(a) Dutheil-Gouret,
Smith, Cowan
18–30, 32,
34–38
18–30, 32,
33, 37, 38
103(a) Dutheil-Gouret,
Morrison
18–30, 32,
33, 37, 38
Overall
Outcome
18–30, 32–
38

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). See 37 C.F.R.
§ 1.136(a)(1)(iv).
REVERSED