Ex Parte Bowsher

Board of Patent Appeals and Interferences

Mar 9, 2011

10810245 (B.P.A.I. Mar. 9, 2011)

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.
10/810,245 03/25/2004 M. William Bowsher BOMDENUS 1755
20738 7590 03/09/2011
THOMAS P O'CONNELL
1026A MASSACHUSETTS AVENUE
ARLINGTON, MA 02476
EXAMINER
DOAN, ROBYN KIEU
ART UNIT PAPER NUMBER
3776
MAIL DATE DELIVERY MODE
03/09/2011 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte WILLIAM M. BOWSHER
____________

Appeal 2009-014854
Application 10/810,245
Technology Center 3700
____________

Before RICHARD E. SCHAFER, MICHAEL P. TIERNEY, and
RICHARD M. LEBOVITZ, Administrative Patent Judges.

LEBOVITZ, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
Appeal 2009-014854
Application 10/810,245

2
This is a decision on the appeal under 35 U.S.C. § 134 by the Patent
Applicant from the Patent Examiner’s rejection of claims 4-23 and 64-68 as
anticipated and obvious. The Board’s jurisdiction for this appeal is under 35
U.S.C. § 6(b). We affirm.

BACKGROUND
All the rejected claims are directed to a dental hygiene apparatus for
flossing teeth. The claims stand rejected as follows:
1. Claims 4-6 and 64 under 35 U.S.C. § 103(a) as obvious in view of
Cheng,2 Altshuler,3 and Winters;4
2. Claims 7, 8, and 67 under 35 U.S.C. § 103(a) as obvious in view of
Cheng and Winters;
3. Claims 9, 10, 12-17, 22, 23, 65, and 68 under 35 U.S.C. § 103(a) as
obvious in view of Cheng, Winters, and Alvarez;5
4. Claims 18 and 66 under 35 U.S.C. § 103(a) as obvious in view of
Cheng, Alvarez, Winters, and Altshuler;
5. Claims 19-21 under 35 U.S.C. § 103(a) as obvious in view of
Cheng, Winters, and Sullivan;6 and
6. Claim 11 under 35 U.S.C. § 102(b) as anticipated by Cheng.
Claims 4, 7, 9, 11, and 67 were argued separately. However, we
reproduce only claims 4 and 11 for illustrative purposes, and refer to the

2 U.S. Patent No. 5,199,452 issued Apr. 6, 1993.
3 U.S. Patent No. 5,415,188 issued May 16, 1995.
4 U.S. Patent No. 5,680,875 issued Oct. 28, 1997.
5 U.S. Patent App. Pub. 2004/0163665 A1 published Aug. 26, 2004.
6 U.S. Patent No. 3,745,788 issued July 17, 1973.
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Appeal Brief for the full text of the appealed claims. Claims 4 and 11 read
as follows:
4. A dental hygiene apparatus for enabling a flossing of teeth,
the dental hygiene apparatus comprising:
a dispensing member comprising an annular
dispensing ring with an aperture for receiving a finger of a
user;
an annular dispensing bobbin for retaining dental floss
relative to the dispensing member wherein the dispensing
bobbin is rotatably retained for substantially concentric
rotation relative to the dispensing ring member;
an activating switch operably associated with the means
for retaining dental floss relative to the dispensing member
dispensing bobbin for selectively enabling a dispensing of
dental floss from the dispensing member;
a means for preventing an accumulation of dental floss
relative to the dispensing member including during a
triggering of the activating switch comprising a means for
ensuring unidirectional, dispensing rotation of the dispensing
bobbin;
an accumulating member structurally separate from the
dispensing member; and
a means for accumulating dental floss relative to the
accumulating member;
whereby dental floss can be dispensed from the dispensing
member and accumulated by the accumulating member.

11. A dental hygiene apparatus for enabling a flossing of
teeth, the dental hygiene apparatus comprising:
a dispensing member;
a means for retaining dental floss relative to the
dispensing member;
an accumulating member structurally separate from the
dispensing member; and
a means for accumulating dental floss relative to the
accumulating member;
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Application 10/810,245

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wherein the dispensing member and the accumulating
member are color coded;
whereby dental floss can be dispensed from the
dispensing member and accumulated by the accumulating
member.

FINDINGS OF FACT (“FF”)

Cheng
FF1. Cheng describes a dental hygiene apparatus for dispensing
dental floss. “A supply of dental floss is wound on a supply reel turnably
mounted in one housing, while another housing mounts a take-up reel for
receiving spent floss.” (Abstract.)
FF2. The housings are held in opposite hands to be used “in comfort”
without cutting off the circulation in the user’s fingers as occurs with
flossing techniques when the floss is wound tightly around the user’s fingers
(col. 1, ll. 13-18 & 31-33, & Abstract).
FF3. Cheng’s Figure 2 is reproduced below:

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Figure 2 is an exploded view of Cheng’s dental flossing arrangement
having the following elements: cylindrical supply housing 12 (each half is
shown and described as “semi-circular”), cylindrical take-up housing 14,
supply reel 24 mounted for turning movement on the supply housing 12, and
take-up reel 32 mounted for turning movement on the take-up housing 14
(col. 2, ll. 60-66; col. 3, ll. 3-5 & 16-31).
FF4. The ratchet wheel 36 on the take-up housing (see Fig. 2
reproduced in FF2) “is prevented by the catch 54 from being rotated in the
counter-clockwise direction, thereby assuring that the user will not floss his
or her teeth with spent floss” (col. 4, ll. 29-32).
FF5. Cheng discloses that color or other indicia codings can be
applied to the housings so that the user can distinguish between them (col. 4,
ll. 42-44).

Winters
FF6. Figure 7 of Winters is reproduced below:

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As shown in Figure 7, Winters describes a floss dispenser 50,
wrapped with floss, that can be placed around a finger (col. 11, ll. 60-65).
The dispenser has a hollow area 54 for placing on the finger (id.).
FF7. Figure 6A of Winters is reproduced below:

Figure 6A shows the circular dispenser 50 with hollow area 54 for
placing on the finger.
FF8. “Some users will find this spool [with the hollow area 54 for
inserting a finger] more comfortable than grasping an elongated member.”
(Col. 12, ll. 10-12.)

Altshuler
FF9. Altshuler describes a dental floss dispenser with a delivery and
draw-in reel (col. 2, ll. 9-10). Each reel is attached to a one-way clutch “so
that the delivery reel can only rotate in the direction of unwinding the floss
and the draw-in reel can only rotate in the direction of winding the floss on.”
(Col. 2, ll. 15-18.)

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OBVIOUSNESS REJECTIONS
Claim 4
Claim 4 is drawn to a dental hygiene apparatus comprising a floss-
dispensing member and a floss-accumulating member.
FF10. The dispensing member has “an annular dispensing ring with
an aperture for receiving a finger of a user.”
FF11. An “annular dispensing bobbin for retaining dental floss” is
recited in the claim to be “rotatably retained for substantially concentric
rotation relative to the dispensing ring member.”
FF12. The apparatus has an “activating switch” for enabling
dispensing of the dental floss and a means to ensure “unidirectional,
dispensing rotation of the dispensing bobbin.”
The Examiner found that Cheng described a device as claimed, but
not with an annular ring to receive a finger (FF10) or a structure to ensure
unidirectional rotation of the bobbin (FF12) (Ans. 4). However, the
Examiner found that Winters described a dispensing member with a ring for
receiving a user’s finger (FF6 & FF7) and Altshuler described a means for
unidirectional movement of the supply reel (the “reel” corresponding to the
“bobbin” in claim 4) (FF9). The Examiner determined it would have been
obvious to the skilled worker in the art to modify Cheng’s device with a
finger receiving ring member in order to give the user a better and more
comfortable grip on the dispensing member (Ans. 4-5 & 8-9; FF8). The
Examiner also determined that modifying Cheng’s dispensing member with
a one-way unidirectional clutch, as taught by Altshuler, would have been
obvious to prevent the used floss from being rewound on the dispensing
bobbin (Ans. 4-5 & 8; FF9).
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Appellant contends that
Neither Cheng, Winters, Altshuler, nor any obvious
combination or modification discloses an annular dispensing
ring with a concentrically retained dispensing bobbin. As
defined in The American Heritage® Dictionary of the English
Language: Fourth Edition, a “ring” is “A circular object, form,
line, or arrangement with a vacant circular center.” Cheng’s
barrel-shaped housings do not comprise rings and,
consequently, do not provide apertures for receiving a finger of
a user as claim 4 demands.
(App. Br. 15.)
Appellant’s arguments do not outweigh the factual evidence in the
Cheng and Winters publications. The Examiner found that Winters’
dispenser 50 with hollow area 54 for receiving a finger served as the claimed
“annular dispensing ring with an aperture for receiving a finger of a user.”
(FF6 & FF7; Ans. 47). The dispenser is shown in Winters as circular with a
hollow center, meeting the definition of “ring” supplied by Appellant.
Cheng’s device is described as cylindrical with semi-circular halves (FF3).
With both cited references describing circular flossing devices, the ordinary
skilled worker would logically have been led to this shape in making the
claimed invention. Consequently, the Examiner’s determination that
combining Cheng with Winters would lead to a circular “ring” shape is
supported by a preponderance of the evidence before us.
Appellant contends that the Examiner utilized the claimed invention
as a blueprint to reconstruct it by hindsight from the prior art (App. Br. 16).

7 On page 4 of the Final Office Action dated January 9, 2008, the Examiner
referred to Figure 10 of Winters as showing a ring for receiving a finger.
This was an error. Figures 6 through 8 of Winters show the device for
receiving a finger, not Figure 10. The Examiner acknowledged this error on
page 8 of the Answer.
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This position is not supported by the record. The Examiner provided
an express reason for modifying Cheng’s device with a finger-receiving
opening: to give it a better grip (Ans. 4-5 & 8-9). This reason is supported
by Cheng and Winters. Both publications teach dental floss devices with
improved grips to alleviate user discomfort from the conventional finger-
wrapped type (FF2 & FF8). Modifying Cheng with a finger-receiving hole
is not destroying its purpose but simply using Winters’ prior art alternative
to ease finger discomfort (see App. Br. 17).
Likewise, there is fact-based reasoning for adding the unidirectional
structure of Altshuler to Cheng, i.e., to prevent the user from using spent
floss (Ans. 4; FF4 & FF9). The Examiner’s obviousness determination is
reasonable and supported by a preponderance of the evidence.

Claim 7
Independent claim 7 is directed to a similar apparatus as claim 4, but
further requires that the accumulating ring has a concentrically retained
annular bobbin, a feature that Appellant contends is taught away from
because Winters describes a take-up member which is a stick (App. Br. 18).
Appellant’s argument fails to take into account that the rejection is
based on Cheng and Winters. Cheng describes a cylindrical and circular
take-up housing 14 (FF3). Winters gives a reason to add an opening to it for
receiving a finger (FF8). Consequently, the Examiner’s obviousness
determination is reasonable and supported by a preponderance of the
evidence.
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Claim 67
Independent Claim 67 is directed to a similar structure as in claim 4,
but further recites that the “dispensing bobbin is enclosed within a housing
of the dispensing member and wherein the accumulating bobbin is enclosed
within a housing of the dispensing member.”
Contrary to Appellant’s arguments, this structure is shown by Cheng,
where the reels 24 and 32 are inside housings 12 and 14, respectively (FF3).

Claim 9
Independent claim 9 is directed to a similar apparatus as in claim 4,
but also requires a means “for inducing an automatic accumulation of dental
floss relative to the accumulating member during triggering of the activating
switch.” Appellant argues that this feature is not shown by the combination
of Cheng and Winters. However, the Examiner expressly acknowledged this
deficiency and cited Alvarez for this structure (Ans. 6).

Claims 19-21
We affirm the rejection of claims 19-21 for the reasons set forth by
the Examiner (Ans. 7).

ANTICIPATION
The dental hygiene apparatus of claim 11 comprises a dispensing
member and a separate accumulating member, where the dispensing member
and accumulating member are color-coded. Appellant contends that the
latter feature is not described in Cheng. However, the Examiner clearly
pointed to the disclosure in Cheng where it is stated that color coding can be
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applied to the housing members to distinguish them (Final Rejection 7; Ans.
9; FF5).

SUMMARY
We affirm the obviousness rejection of claims 4, 7, 9, 67, and 19-21.
Claims 5, 6, 8, 10, 12-18, 22, 23, 64-66, and 68 fall with them (App. Br. 4).
We affirm the anticipation rejection of claim 11.

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).

AFFIRMED

bim

Appeal 2009-014854
Application 10/810,245

12
THOMAS P. O'CONNELL
1026A MASSACHUSETTS AVENUE
ARLINGTON, MA 02476