Althausv.Oldroyd

Board of Patent Appeals and Interferences

Mar 28, 2001

08742280 (B.P.A.I. Mar. 28, 2001)

Patent No. 5,535,518, granted July 16, 1996, based 1
on Application Serial No. 08/414,405, filed March 31, 1995.
Application Serial No. 08/742,280, filed October 31,2
1996.
1
The opinion in support of the decision being entered today was
not written for publication and is not binding precedent of
the Board.
Paper No. 77
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
WOLFGANG ALTHAUS
Junior Party,1
v.
BRIAN OLDROYD,
Senior Party.2

_____________
Patent Interference No. 104,158
______________
FINAL HEARING: February 14, 2001
_______________
Interference No. 104,158

The Althaus Record will be abbreviated AR followed by3
the appropriate page number.
2
Before CALVERT, PATE, and MARTIN, Administrative Patent
Judges.
PATE, Administrative Patent Judge.
FINAL DECISION UNDER 37 CFR §1.658(a)
This is a final decision in Interference No.
104,158. The junior party patentee is Wolfgang Althaus,3
involved on his U.S. Patent No. 5,535,518. The patent is
assigned to Warner-Lambert Company, and was filed for on March
31, 1995. The senior party is Brian Oldroyd, involved on his
application Serial No. 08/742,280, filed for on October 31,
1996. Oldroyd has been accorded benefit of three prior
applications as follows: U.S. Serial No. 08/313,055 filed May
8, 1995; PCT application Serial No. US93/03439, filed April
12, 1993; and U.K. Serial No. 9208098, filed April 13, 1992.
The Oldroyd PCT application was published on October 28, 1993
and is 35 U.S.C. § 102(b) prior art against Althaus’ involved
patent claims. Oldroyd’s application is assigned to The
Gillette Company.
Interference No. 104,158

3
The claimed invention is directed to a razor
cartridge mounted on a handle through the agency of a four-bar
linkage for pivoting motion of the cartridge about an axis
perpendicular to cutting edge. The count reads as follows:
Count 1
A wet razor comprising
(a) a handle,
(b) a razor head having at least one razor blade,
and
(c) a connecting device for connection of the razor
head to the handle,
(d) wherein the razor head is pivotable in two
directions relative to the handle about a first pivot axis
located essentially perpendicular to a cutting edge of the at
least one razor blade and essentially in or above a plane of
the razor blade, and
(e) wherein the connecting device comprises at least
one four-bar mechanism having a lower transverse link, an
upper transverse link and two connecting extension links, of
which at least one of the transverse links is pivotally
mounted about a second axis which is essentially parallel to
the first pivot axis and intersects with at least one of the
transverse links of the four-bar mechanism.
The claims of the parties that correspond to the
count
are:
Interference No. 104,158

Pursuant to redeclaration after the decision on 4
preliminary motions. See Paper No. 48.
4
Althaus: Claims 1-8, 12, 13 4
Oldroyd: Claims 9-28
Issues
In a decision on preliminary motions (Paper No. 47),
the Administrative Patent Judge (APJ) held claims 1-8, 12 and
13 of Althaus unpatentable over the prior art. Althaus does
not challenge the holding with respect to claims 1-6, 8, 12
and 13.
The following issues were raised by the parties in
their briefs at final hearing:
a) whether Althaus has sustained his burden of
showing that the involved claims of Oldroyd, viz., claims 9-
28, are unpatentable to Oldroyd under 35 U.S.C. § 103;
b) whether Althaus has sustained his burden of
showing that Althaus claim 9 should be designated as not
corresponding to the count;
c) whether Althaus has sustained his burden of
showing that Althaus claim 7 recites a separate patentable
Interference No. 104,158

5
invention from the subject matter of the interference and
should be designated as not corresponding to the count.
Standard of Review
On March 16, 1999, the Patent and Trademark Office
issued an interim rule change of patent interference rule 37
CFR § 1.655(a). 64 Fed. Reg. 12900. The rule deals with the
application of the abuse of discretion standard by a merits
panel when considering an interlocutory order entered by a
lone APJ acting in an interlocutory capacity. The rule has
been changed to emphasize that a panel of the Board will
resolve the merits of an interference without deference to any
interlocutory order. Panels will, however, continue to apply
the abuse of discretion standard but only with respect to
procedural matters decided by the lone APJ acting in an
interlocutory capacity.
With regard to the date of effectiveness of the
amended rule, the interim rule notice states that the amended
rule is
Interference No. 104,158

6
effective as of the date of publication, viz., March 16, 1999.
Accordingly, the review of the APJ’s decision on the
preliminary motions has been decided in the following decision
without deference to the prior decision by the lone APJ.
Patentability of Oldroyd claims 9-28
Althaus has moved for judgment under 37 CFR §
1.633(a) that claims 9 through 28 of Oldroyd are unpatentable
under 35 U.S.C. § 103. It is noted that the parties are in
agreement that, under this motion for judgment, Oldroyd claims
10-28 will stand or fall with Oldroyd independent claim 9.
See Oldroyd Brief at 29.
Althaus argues that these claims 9-28 are
unpatentable over the combined teachings of the following
references:
Terry et al. (Terry) 1,460,732 Jan. 6,
1977
(British patent)
Kirk 2,116,470 Sept. 28,
1983
(British patent)
Ishida 61-54433 Nov. 21,
1986
Interference No. 104,158

The three references are of record as Althaus 5
exhibits 1-3.
7
(Japanese Laid Open Application)
The following findings represent the scope and
content of the prior art cited by Althaus as providing a prima
facie case of obviousness. All three references are in the5
field of wet
shaving razors with elongate handles topped with a
transversely extending blade-carrying head or cartridge. The
handle is used to drag the blade-carrying head over the skin
to cut body hair thereon.
The U.K. document to Kirk discloses a razor with a
head 1 that can pivot about two perpendicular axes. One axis,
designated as YY, is parallel with the cutting edge and is
conventional. Page 1, lines 11-33. Another axis is a rocking
axis that extends transversely of the length of the head for
rocking motion so that the ends of the head can move relative
to one another. Id. at 59-67.
Turning to the structure of Kirk’s disclosed razor,
the razor handle 2 is provided with an integral plate-like
Interference No. 104,158

8
portion 3 which contains an arcuate wall portion 6. In this
arcuate wall portion is mounted a generally C-shaped yoke
member 10. The free ends of the yoke portion carry pivot pins
11 for mounting the
lugs of the blade-containing head. Page 2, lines 1-5. Thus,
the head 1, when mounted on the pivot pins 11 can rock about
an axis. The rocking axis, located at XX in Figures 1 and 2
of Kirk, is substantially parallel with the tangent plane T
and transverse to the length of the head. Id. at 16-19. The
two axes XX and YY may intersect or be slightly offset, but
both are preferably
close to the blade edge in order to provide maximum
conformance
to the skin surface during shaving. Id. at 37-40. From the
orthogonal view in Figure 2, it is difficult to determine the
exact spatial relationship of axes XX and YY in this
embodiment. Certainly any attempt to locate the center of
rotation of the C-shaped yoke member 10 is highly
Interference No. 104,158

9
conjectural. At most, going by the discussion at page 2, axis
XX must be considered as merely adjacent or intersecting axis
YY. There is no disclosure of axis XX lying on or below a
surface to be shaved.
In a second embodiment of Kirk, in Figures 4-9, a
swivel plate 30 has at its center a pivot pin 31 which engages
in hole 22 on integral head plate 21. The pivot pin 31
defines axis XX in the embodiment of Figures 4-9. From the
orientation of pivot pins 51 which define axis YY in Figure 4,
it is our finding that the pivot pin 31 and thus the axis XX
of this embodiment is somewhat below the blade-containing
cartridge or head, and thus
somewhat above the surface to be shaved, as argued by Oldroyd
in his fact statement 37 on page 2 of the Oldroyd brief. Axis
XX does not lie on or below the surface to be shaved.
The last embodiment disclosed by Kirk uses an arched
metallic foil F with a plurality of apertures A therein. The
apertures have sharpened edges. Page 3 at 56-61. In this
embodiment, axis XX is clearly marked in Figure 12. It is not
on or below a surface to be shaved.
Interference No. 104,158

10
To summarize our findings with respect to the
location of axis XX in Kirk, the first embodiment teaches that
axis XX
intersect axis YY or be adjacent thereto. If it intersects
YY, it is not at or below the surface to be shaved. With
respect to the “adjacent to” language, the reference is silent
as to in which direction the axis is displaced from axis YY
and by what amount. To expand this to a teaching of an axis
at or below the surface to be shaved is to base a necessary
factual finding on speculation or conjecture. The two other
embodiments of Kirk clearly disclose axis XX as well above the
surface to be shaved. Thus, it is our finding that Kirk never
teaches nor suggests a pivot axis XX at or below the surface
to be shaved.
The differences between the Kirk reference and
Oldroyd’s claimed subject matter are two. As explained above,
Kirk does not teach a pivot axis XX below the surface to be
shaved. Kirk also does not teach a four-bar linkage to carry
the cartridge carrier.
The Terry reference discloses a wet shaver with a
handle 10 which supports a shaving unit 20 containing the
Interference No. 104,158

11
shaving blades. In the Figure 1 embodiment, the shaving unit
20 is
mounted on an inner yoke 14 by means of rails 21. In use, the
shaving unit 20 is able to pivot about the axis of the pivot
pins 13 which is adjacent to and parallel to the cutting edges
of the blades 22 and 23. Terry at 2, lines 76-95.
In the second embodiment shown and discussed,
shaving unit 20 is mounted on stationary yoke 26 by pivot pins
29. Here again, pivoting about an axis defined by pins 29 is
parallel to the blade edges. The razor shown in Figures 3,
4a, and 4b uses a bar linkage 33 to pivotally mount the
cartridge carrier for pivotal movement about an axis parallel
to the blade edges. The four-bar linkage of Terry has two
transverse links 36 and 37 each pivotally mounted to the
handle 31 via spindles 40 and 41. Terry also shows the
claimed extension links 34 and 35 which are pivotally mounted
to the cartridge carrier 38. Terry at 2, line 122, to 3,
line 15. Terry discloses rails to mount the cartridge on the
four-bar linkage.
Finally, Terry further discloses an additional
embodiment in which the pivoting motion is provided by a shell
Interference No. 104,158

12
bearing 44 with an axis of rotation parallel to the blade edge
in cartridge 20. We agree with Althaus that the shell bearing
44 is a yoke-like structure. We further agree that the yoke-
like shell bearing 44 and the four-bar linkage are similar
mechanical
elements in the same position in the razor. Inasmuch as Terry
discloses this shell bearing, which has a structure analogous
to the yoke in Kirk, and inasmuch as Terry suggests that the
four- bar linkage is an expedient mechanical substitute for
the yoke-like shell bearing, Althaus’ argument that it would
have been obvious to use the four-bar linkage in Kirk is well
taken.
Terry differs from the subject matter of Oldroyd
claim 9, in that while it shows the claimed four-bar linkage
for mounting a razor cartridge for pivotal movement, the
movement is only about an axis parallel to the blade edge.
Terry does not show pivoting on an axis perpendicular to the
blade edge, nor does Terry show such an axis at or below the
surface to be shaved.
Finally, Ishida discloses a wet shaving razor with a
handle 1 and support arms 8 pivotally mounted to the handle by
Interference No. 104,158

13
pins 1a. On the opposite end of the pins 8, mounted by pivots
8a
is a cartridge support platform 13 provided with rails 16 for
receiving a blade containing cartridge 17. Although the
translation of Ishida refers to the mounting as a four-bar
linkage at 4, paragraph 3, Ishida is not a four-bar linkage as
claimed and as disclosed in Terry. The razor of Ishida does
not pivot about an axis but shifts or translates as a unit
always remaining parallel
to the hemispherical base 2. According to Althaus, Ishida has
been cited to teach a linkage connecting the cartridge to the
handle with the linkage lying in the correct plane. Be that
as it may, Ishida differs from the claimed invention in not
showing
the claimed four-bar linkage, in not showing the correct
pivotal movement, and in not showing a pivot axis on or below
the surface being shaved.
We are in agreement with Althaus and both parties’
experts as to the level of skill in this art. The level of
Interference No. 104,158

See Jacobson at AR30.6
14
skill has been described as a mechanical engineering degree
and several years of experience in the wet shaving razor art. 6
With the above-noted factual findings in mind, it is
our determination that the subject matter of Oldroyd claim 9
would not have been obvious to one of ordinary skill in view
of the combined teachings of these references. We do not
reach the
issue of motivation to combine vis-a-vis impermissible
hindsight in view of our finding, in agreement with factual
finding 37 of Oldroyd, that the references taken singly or
together do not teach the claim limitation that the pivot axis
lies on or beneath the surface being shaved. Only Kirk
teaches a pivot axis perpendicular to the edge of the blades,
and Kirk teaches that this
axis XX should be adjacent to the pivot axis YY in one
embodiment
Interference No. 104,158

15
and well above the surface to be shaved in the other two
embodiments. To extrapolate such a disclosure into a teaching
of an
axis on or below the surface being shaved is not supported by
the teachings of Kirk. As we stated previously, it is based
on mere speculation or conjecture.
For the reasons above, Althaus has not sustained his
burden of showing claims 9-28 of Oldroyd are unpatentable
under 35 U.S.C. § 103.
Althaus Claim 7
We turn to the issue of whether Althaus has
established that claim 7 of the Althaus patent should be
designated as not corresponding to the count in interference.
The test we must apply is found in 37 CFR § 1.601(n). The
rule reads as follows:
Invention (A) is the same patentable
invention as an invention "B" when
invention "A"
is the same as (35 U.S.C. 102) or is
obvious (35 U.S.C. 103) in view of
invention "B" assuming invention "B" is
Interference No. 104,158

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prior art with respect to invention "A".
Invention "A" is a separate patentable
invention with respect to invention "B"
when invention "A" is new (35 U.S.C. 102)
and non-obvious (35 U.S.C. 103) in view of
invention "B" assuming invention "B" is
prior art with respect to invention "A".
The issue of whether Althaus has shown that Althaus’
claim 7 does not correspond to the count is complicated by the
proper construction to be placed on the claim term that one
side
is longitudinally adjustable. Althaus’ main brief argues that
this limitation should be construed as adjustable in length.
The
APJ in his motion decision interpreted this limitation to
refer
to the buckling of the sides of the four-bar linkage as shown
in
Figure 3 of the involved patent. The Althaus patent is
notably silent as to how any side of the four-bar linkage can
be made adjustable. The Althaus brief, similar to the Althaus
patent, does not explain how any side is made adjustable in
length, and all panel members understood Althaus’ counsel to
Interference No. 104,158

This seems to be the construction advanced by Ortiz at7
AR4-5. See also AR19-23.
17
be arguing that the length of a side of Althaus can be changed
or adjusted during design and manufacture. Accordingly, we7
will adopt the interpretation urged by counsel during the
hearing and construe
claim 7 of Althaus to be directed to subject matter wherein
the length of a side of the four-bar linkage can be changed
during design and manufacture.
In our view, the subject matter of claim 7 as
construed by counsel would have been obvious under the 37 CFR
§ 1.601(n) test in view of the teachings of the Oldroyd PCT
publication or the documentary evidence from Kirk, Terry or
Ishida when combined
with the subject matter of Althaus claims 1-6 taken as prior
art. The various sizes and shapes of links or sides in a
four-bar linkage are evidence of a recognition in this art
that the amount or nature of pivoting is changed by modifying
the size and shape of the sides in the four-bar linkage.
Consequently, changing the size of the links during design and
Interference No. 104,158

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manufacture must be held to be a mere designer’s choice,
obvious as well within the ordinary skill in this art. Since
the subject matter of claim 7 would have been obvious from the
prior art, including the references stated above, in
combination with Althaus claims 1-6, under the 37 CFR §
1.601(n) test, claim 7 is properly designated as corresponding
to the count.
Althaus Claim 9
In his decision on motions, the APJ determined that
the subject matter of claim 9 was directed to a separate
patentable invention. We review the showing by Althaus that
was a basis for the motion granted by the APJ. The test for
separate patentable invention is the already articulated 37
CFR § 1.601(n).
The reason given by the APJ was that the subject
matter of guide rails would not have been an obvious inclusion
on the razor of Althaus’ claims 1-6. However, as we have
noted above, Kirk, Terry and Ishida all show guide rails to be
conventional in
Interference No. 104,158

19
this art to attach a cartridge to a razor handle. In our
view, it would have been obvious to use guide rails in the
apparatus of Althaus’ claim 1 taken as prior art. Thus, we
reverse the decision of the APJ, and we will redeclare the
interference with claim 9 of the Althaus patent designated as
corresponding to the count.
Inasmuch as guide rails are an obvious inclusion,
based on the teachings found in Kirk, Terry and Ishida, on the
device disclosed in the Oldroyd PCT document, which is prior
art to Althaus, we hereby further conclude that the subject
matter of
claim 9, newly reinstated in the interference, is unpatentable
over the prior art. Accordingly, judgment as to claim 9 based
on unpatentablity over the prior art will be entered against
Althaus, hereinbelow.
Judgment
Interference No. 104,158

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Judgment in Interference No. 104,158 is entered
against Wolfgang Althaus, the junior party. Wolfgang Althaus
is not entitled to his patent claims 1-9, 12 and 13, which
claims correspond to the count in interference. Judgment is
entered in favor of Brian Oldroyd, the senior party. Brian
Oldroyd is entitled to a patent containing claims 9-28, which
claims correspond to the count in interference.
IAN A. CALVERT )
Administrative Patent Judge )
)
)
) BOARD OF
PATENT
WILLIAM F. PATE, III ) APPEALS AND
Administrative Patent Judge )
INTERFERENCES
)
)
)
JOHN C. MARTIN )
Administrative Patent Judge )
Interference No. 104,158

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WFP:psb
Interference No. 104,158

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Counsel for Junior Party Althaus:
Theodore Naccarella
Synnestvedt & Lechner LLP
2600 Aramark Tower
1101 Market Street
Philadelphia, PA 19107-2950
Counsel for Senior Party Oldroyd:
William E. Booth, Esq.
Fish & Richardson P.C.
225 Franklin Street
Boston, MA 02110-2804