ALBEA SERVICESDownload PDFPatent Trials and Appeals BoardMay 7, 202014908324 - (D) (P.T.A.B. May. 7, 2020) Copy Citation 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. 14/908,324 01/28/2016 Camille Schreiber 008165.00113 7265 22908 7590 05/07/2020 BANNER & WITCOFF, LTD. 71 SOUTH WACKER DRIVE SUITE 3600 CHICAGO, IL 60606 EXAMINER STEITZ, RACHEL RUNNING ART UNIT PAPER NUMBER 3772 NOTIFICATION DATE DELIVERY MODE 05/07/2020 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): eofficeaction@bannerwitcoff.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte CAMILLE SCHREIBER, ANNE RUTIGLIANO, OSVALDO URESTI and MARK EDMONDSON Appeal 2019-006982 Application 14/908,324 Technology Center 3700 ____________ Before DANIEL S. SONG, MICHAEL L. HOELTER, and BENJAMIN D. M. WOOD, Administrative Patent Judges. HOELTER, 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 1, 2, 4, 5, and 7–12, which constitute all 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. We understand the real party in interest is “Albea Services.” Appeal Br. 2. Appeal 2019-006982 Application 14/908,324 2 the claims pending in this application. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. CLAIMED SUBJECT MATTER The disclosed subject matter “relates to a cosmetic product applicator.” Spec. 1:5. Apparatus claim 1 is the sole independent claim, is representative of the claims on appeal, and is reproduced below. 1. Applicator for a cosmetic product, comprising: a core having a first end, referred to as a proximal end, and a second, free end, referred to as a distal end, and a plurality of protrusions projecting from the core, wherein said protrusions are moulded with the core and are arranged in a plurality of rows (R1-R12) which extend in the direction of extension of the core and are parallel to an axis of the core, and wherein the protrusions of at least one of said rows, referred to as the first row (R1), progressively decrease in length from said distal end towards a central portion of the applicator and then progressively increase in length from said central portion towards said proximal end, while the length of the protrusions varies in the opposite manner in each of the two rows, referred to as second rows (R2, R12), adjacent to said first row(s) (R1), wherein each of the rows (R1-R12) has a wave-shaped profile (V1, V2) defined by the free end of the protrusions, the waves (V1) of the first rows (R1, R3, R5, R7, R9, R11) being in antiphase with a wave (V2) of the second rows (R2, R4, R6, R8, R10, R12), wherein the wave of each of said first and second rows is undulated or sinusoidal, out of phase and in antiphase, thereby creating loading and combing regions in succession around the core of the applicator and along the entire length of the core. Appeal 2019-006982 Application 14/908,324 3 EVIDENCE Name Reference Date Hartstock et al. (“Hartstock”) US 2006/0076031 A1 Apr. 13, 2006 Gueret US 2010/0310295 A1 Dec. 9, 2010 REJECTION Claims 1, 2, 4, 5, and 7–12 are rejected under 35 U.S.C. § 103 as unpatentable over Hartstock and Gueret.2 ANALYSIS Appellant argues all the claims (i.e., claims 1, 2, 4, 5, and 7–12) together. See Appeal Br. 5–12. We select claim 1 for review, with the remaining claims standing or falling therewith. See 37 C.F.R. § 41.37(c)(1)(iv). The Examiner relies on the teachings of Hartstock for teaching the limitations “said protrusions are moulded with the core” and “a wave-shaped profile . . . defined by the free end of the protrusions.” See Final Act. 2–3; see also Ans. 3. The Examiner, however, acknowledges that “Hartstock et al. does not disclose the first rows [of protrusions] alternate with the second rows [of protrusions] around the entire core.” Final Act. 3. The Examiner relies on Gueret for this teaching. See Final Act. 3 (referencing Gueret ¶¶ 157–159); see also Ans. 4. The Examiner concludes that it would have been obvious “to have the first rows of Hartstock et al. alternate with the 2 Claim 3 is listed as being rejected, but claim 3 has been canceled. See Amendment After Final Action dated March 18, 2019. Appeal 2019-006982 Application 14/908,324 4 second rows around the entire core as taught by Gueret to allow for a 360 degree core with alternating envelopes.” Final Act. 3. Appellant contends that the “envelopes” discussed in Hartstock “are not synonymous and do not mean the same thing” as the “rows” in Gueret. Appeal Br. 5. This is because Hartstock’s “exemplary embodiments utilize a bent twisted wire as a core” and that the various embodiments disclosed therein “are made by the process of twisting a wire core as shown in Fig. 9.” Appeal Br. 5. Accordingly, “[s]uch a process simply will not result in the applicator having the rows as claimed” (Appeal Br. 5) because the bristles will be spirally oriented about the wire core into “a near cylindrical envelope” as the wire core is twisted. Hartstock ¶ 31. However, utilization of a “bent twisted wire as a core” is but one method of manufacture discussed in Hartstock. See Hartstock ¶ 10. Claim 1 recites the limitation “wherein said protrusions are molded with the core” and the Examiner identifies Paragraph 10 of Hartstock as disclosing such a molding operation. See Final Act. 2; see also Hartstock ¶¶ 10 (“A brush according to the invention can be produced by injection molding or, conventionally, by the bristles being fixed between intertwisted wire sections.”), 13 (“[t]he invention also relates to a method of manufacturing an intertwisted brush”) (emphasis added); see also Ans. 3. To be clear, the Examiner states “the Examiner did not make the combination using the twisted wire branches.” Ans. 3; see also Ans. 4 (“the production of a twisted wire core which is not used in the rejection by the Examiner”). Hence, Appellant’s arguments premised on a method employing “twisted wire” or “twisting a wire” are not persuasive of Examiner error. See Appeal Br. 5–8; Reply Br. 2–3. Appeal 2019-006982 Application 14/908,324 5 Further, regarding Appellant’s distinction between Hartstock’s “envelopes” and Gueret’s “rows,” it is understood that the Examiner is relying upon Gueret for teaching “first rows [that] alternate with the second rows” (Final Act. 3; see also Ans. 4), not Hartstock’s “envelopes” which are achieved via the aforesaid twisting (see Appeal Br. 5–8, Reply Br. 2–3). It is not disputed that Gueret also teaches a “molded applicator” and further, “at least three rows, better at least six rows, of teeth that are connected to the core, the rows extending along the longitudinal axis of the core.” Gueret ¶¶ 157, 159. Hence, the Examiner’s reliance on Gueret’s disclosure of multiple, longitudinally aligned rows of teeth or bristles, which are also “moulded with the core” as recited, is sound. Claim 1 additionally recites that the rows of protrusions have “a wave-shaped profile . . . being in antiphase with” each other and also that “each of said first and second rows is undulated or sinusoidal.” The Examiner relies on Figure 5 of Hartstock (Final Act. 3 (below left)) and Figure 20a of Gueret (Ans. 4 (below right)) for such teachings. Figure 5 of Hartstock (left) is described as depicting “a mascara brush with a baseball-type, convexly bulging outer envelope and a continuously concave inner envelope with truncated end zones.” Hartstock ¶ 21. Figure 20 of Gueret (right) is described as depicting “a diagrammatic and fragmentary side view of a variant embodiment.” Gueret ¶ 175; see also id. at ¶ 260 Appeal 2019-006982 Application 14/908,324 6 (“the two rows of teeth 17 have different profiles, one being in the shape of a camel’s back, presenting a central concavity, and the other presenting a central flat”). As noted above, claim 1 recites rows that are “undulated or sinusoidal.” It is not altogether clear how the above depictions fail to at least disclose or suggest undulating rows of teeth that are “out of phase and in antiphase” (as recited) with each other to one skilled in the art. This is because Figure 5 of Hartstock (absent being “truncated”) clearly discloses same, as does the middle portion of Figure 20a of Gueret. In other words, understanding that a skilled person is not an automaton, but instead is a person of ordinary creativity, Appellant is not persuasive when contending, “[e]ven if one skilled in the art combined the teachings of Hartstock and Gueret, one still does not end up with the wave-shaped profiles as claimed.” Reply Br. 5. Further, and specifically addressing Gueret’s Figure 20a depicting two rows of teeth 17 (see above), Appellant states that this figure “does not teach the alternating profiles as claimed.” Reply Br. 4. While the term “alternating” does not appear in claim 1, any such “alternating” profile that may be required by the claim is a relationship between different rows, and does not pertain to an alternating bristle profile along a row. Thus, Appellant’s contentions are not persuasive that the figures replicated above fail to at least teach or suggest the above noted “wave” limitations. See Appeal Br. 9–10; Reply Br. 4–5. Appellant also addresses the claim 1 limitation that these bristles or teeth create regions “around the core of the applicator and along the entire length of the core.” Appellant contends that Hartstock fails to teach this Appeal 2019-006982 Application 14/908,324 7 limitation. See Appeal Br. 10–12; see also Reply Br. 3. The Examiner, however, relies on Gueret for such teachings. Final Act. 3; see also Ans. 5 (referencing “Figure 4 of Gueret”). As expressed above, Gueret teaches teeth “that are connected to the core, the rows extending along the longitudinal axis of the core.” Gueret ¶ 159; see also Gueret Figs. 2, 4, 5, 7. Hence, Appellant’s focus on Hartstock, and not Gueret, is not persuasive of Examiner error. Accordingly, and based on the record presented, we sustain the Examiner’s rejection of claims 1, 2, 4, 5, and 7–12 as being obvious in view of Hartstock and Gueret. CONCLUSION In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 2, 4, 5, 7–12 103 Hartstock, Gueret 1, 2, 4, 5, 7–12 No period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Copy with citationCopy as parenthetical citation