Ex Parte Boyd et al

Patent Trial and Appeal Board

May 26, 2016

11679675 (P.T.A.B. May. 26, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
111679,675 02/27/2007
20686 7590 05/31/2016
DORSEY & WHITNEY, LLP - Denver
INTELLECTUAL PROPERTY DEPARTMENT
1400 W ewatta Street
Suite 400
DENVER, CO 80202-5549
FIRST NAMED INVENTOR
Brian Boyd
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.
187586/US/2 3951
EXAMINER
SINGH, SUNIL K
ART UNIT PAPER NUMBER
3722
NOTIFICATION DATE DELIVERY MODE
05/31/2016 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):
docketing-dv@dorsey.com
docketingDV @dorsey.foundationip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BRIAN BOYD, BRIAN R. WILLIAMS, and
KURT. M. TAYLOR
Appeal2014-004016
Application 11/679,675
Technology Center 3700
Before HUBERT C. LORIN, CYNTHIA L. MURPHY, and
BRADLEY B. BAY AT, Administrative Patent Judges.
MURPHY, Administrative Patent Judge.
DECISION ON APPEAL
The Appellants 1 appeal under 35 U.S.C. § 134 from the Examiner's
rejections of claims 1-3, 5-13, and 15-21. We have jurisdiction over this
appeal under 35 U.S.C. § 6(b ).
We AFFIRM.
1 The Appellants identify the real party in interest as "Water Pie, Inc."
(Appeal Br. 3.)
Appeal2014-004016
Application 11/679,675
STATEMENT OF THE CASE
The Appellants' invention "relates generally to dental hygiene, and
more particularly to a tip for an oral irrigator." (Spec. i-f 3.)
Illustrative Claim2
1. An oral irrigator tip, comprising
a shaft portion defining a fluid passage;
a nozzle portion extending from the shaft portion and
having an outlet opening in fluid communication with the shaft
portion;
a bristle element comprising a plurality of bristles spaced
apart from the outlet opening of the nozzle, wherein
the bristle element includes a first section of bristles of
substantially the same length extending in an orientation that is
substantially parallel to a longitudinal axis of the nozzle and
forming concentric rows of bristles surrounding the longitudinal
axis of the nozzle to define a cylindrical void and a second
section of bristles extending in an orientation that is substantially
parallel to the longitudinal axis of the nozzle that is radially
further from the longitudinal axis of the nozzle than the first
section of bristles, wherein the bristles forming the second
section of bristles decrease in length as a radial distance of the
bristles forming the second section of bristles increases from the
longitudinal axis of the nozzle; and
a connector that supports the bristle element and is
configured to connect with the shaft portion.
Loge
Hanson
Tam
References
us 5,653,591
US 6,293,792 Bl
US 6,647,577 B2
Aug. 5, 1997
Sept. 25, 2001
Nov. 18, 2003
2 This illustrative claim is quoted from the Claims Appendix ("Claims
App.") of the Appeal Brief.
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Appeal2014-004016
Application 11/679,675
Rejections3
The Examiner rejects claims 1-3, 5-13, 15-19, and 21under35 U.S.C.
§ 103(a) as unpatentable over Loge and Tam. (Non-Final Action 3.)4
The Examiner rejects claim 20 under 35 U.S.C. § 103(a) as
unpatentable over Loge, Tam, and Hanson. (Id. at 5.)
ANALYSIS
Claims 1 and 21 are the independent claims on appeal, with the rest of
the claims on appeal (i.e., claims 2, 3, 5-13, and 15-20) depending from
independent claim 1. (See Claims App.)
Independent Claim 1
Independent claim 1 is directed to "[a Jn oral irrigator" wherein "a
bristle element" comprises "a plurality of bristles spaced apart from the
outlet opening of [a] nozzle." (Claims App.) The Examiner finds Loge
discloses an oral irrigation tip compnsmg such a bristle element. (See Non-
Final Action 3--4.) In Loge, a cleaning head 18 has a plurality of bristles 31.
(See Loge, col. 4, lines 39--40, Fig. 1.)
Independent claim 1 requires the bristle element to include "a first
section of bristles" that extend "in an orientation that is substantially parallel
to the longitudinal axis of the nozzle" and "second section of bristles" that
3 The Examiner's rejections under 35 U.S.C. § 112, first and second
paragraphs (see Non-Final Action 2-3) are withdrawn (see Notice of Panel
Decision from Pre-Appeal Brief Review).
4 Claims 4 and 14 have been cancelled (see Claims App.), and so we
consider the Examiner's references to "claims 1-13" (see Non-Final
Action 1, 3; Answer 2) as referring to pending claims 1-3 and 4--13.
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Appeal2014-004016
Application 11/679,675
extend "in an orientation that is substantially parallel to the longitudinal axis
of the nozzle." (Claims App.) The Examiner finds that Loge's bristles 31
extend in a substantially parallel orientation. (See Non-Final Action 5.) In
Loge, bristles 31 "are arranged axis parallel" and "cleaning tips 27" lie in "a
working surface 29" which is shown as "flat and radial" in Figure 2
(reproduced partially below). (Loge, col. 4, lines 34--41.)
38
37
36
1';:t :f...."..V
In other words, bristles 31 shown in Loge's Figure 2 (reproduced partially
above) are all of substantially the same length.
Independent claim 1 further requires the first section of bristles to be
"of substantially the same length," and requires the second section of bristles
to "decrease in length" as the radial distance from the nozzle's longitudinal
axis increases. (Claims App.) As indicated and shown above, Loge's
illustrated bristles 31 are all of substantially the same length. However, the
Examiner finds that Tam teaches tapering-bristle sections. (See Non-Final
Action 5.) The Examiner determines that it would have been obvious to
modify "the tip section of Loge to taper as taught by Tam" as this tapering
will allow the brush head "to reach areas between teeth that a normal flat
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Appeal2014-004016
Application 11/679,675
brush could not reach." (Answer 7-8.) The Examiner provides an annotated
version of Loge's Figure 2 (reproduced below) to explain the proposed
modification.
"S~: t~~ ~-:;:;:~'.~\.: ;i! i-:,." p«r~ ~~~=
::1> H~0 !:):-"';.~,~~1.,.~(3~.~~..:.~~
~· $:.- .:.q~ ~>...i: ~.:~.:~:~ ;,.:._":"~·~ .. (:·?"
tc~~:;:'~~:~ ~-h-~t :.«~:-~:}
In the Examiner's annotated drawing (reproduced above), a radially-inner
section of axis-parallel bristles 31 have substantially the same length, while
a radially-outer section of axis-parallel bristles 31 decrease in length as the
radial distance from the axis increases.
The Appellants argue that the combination of the teachings of Tam
and Loge would not result in the claimed bristle element. (See Appeal
Br. 12-13; see also Reply Br. 2--4.) According to the Appellants, "Tam only
describes bristle arrangements in which the outer rows of bristles are angled
outward rather than maintaining a cylindrical formation." (Appeal Br. 12.)
Thus, also according to the Appellants, "[i]f one were to combine the
teaches of Loge with Tam, the explicit result would be that an outer set of
bristles forming an angled brush surface must necessarily be set at an angle
with respect to the longitudinal axis." (Id.)
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Appeal2014-004016
Application 11/679,675
We are not persuaded by this argument because the Examiner's
combination of the prior art does not involve a bodily incorporation of
Tam's bristles into Loge's bristle element. 5 "[T]he Examiner is not
modifying the entire bristle section of Log[e] with Tam's bristle section,"
and "[ t ]he Examiner is only relying on Tam for only modifying the tip
portion of Log[e]'s bristle." (Answer 5, 6.) The Appellants do not
adequately address why one of ordinary skill in the art would not infer, from
the combined teachings of the prior art, that Loge's outer set of axis-parallel
bristles could not be tapered as taught by Tam. 6
The Appellants also argue that there is no teaching, suggestion, or
motivation to modify Loge in view of Tam to achieve the claimed bristle
configuration. (See Appeal Br. 15-16; see also Reply Br. 4--5.) As
discussed above, the Examiner finds that the tapering in Loge's modified
bristle element "will allow a brush head to reach areas between teeth that a
normal flat brush could not reach." (Answer 7.) The Appellants assert that
"Tam does not attribute" this ability "to the length of the bristles or the
angled tip formed by the bristles." (Reply Br. 4--5.) We are not persuaded
by this argument because Tam teaches multiple tip configurations, with
5 See In re Keller, 642 F.2d. 413, 425 (CCPA 1981 ("The test for
obviousness is not whether the features of a secondary reference may be
bodily incorporated into the structure of the primary reference," rather "the
test is what the combined teachings of the references would have suggested
to those of ordinary skill in the art").
6 See KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 419 (2007) (An
obviousness analysis "need not seek out precise teachings directed to the
specific subject matter of the challenged claim" as "the inferences and
creative steps that a person of ordinary skill in the art would employ" can be
taken into account).
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Appeal2014-004016
Application 11/679,675
different bristle lengths and different angles, implicating that these features
do indeed contribute to beneficial brushing abilities. (See Tam, col. 3,
lines 3-7, Figs. 11-24.) Loge likewise teaches the benefits of different tip
configurations or "forms" in teeth-cleaning circumstances. (See, e.g., Loge,
col. 5, lines 64---67.)
The Appellants further argue that the Examiner's proposed
combination of the prior art would "render the Loge brush unsatisfactory or
inoperable for its original intended purpose." (Appeal Br. 14; see also Reply
Br. 5.) We are not persuaded by this argument because it is premised upon
the modified version of Loge's bristle element directly incorporating Tam's
fanned bristles. As discussed above and illustrated in the Examiner's
annotated drawing, this is not the result of the proposed modification to
Loge's bristle element. In Loge's modified bristle element, the outer bristles
would not extend at an angle and the brush diameter would not be increased.
Moreover, Loge does not teach that a flat working surface is necessary to
effectively distribute its cleaning vibrations, in that it discloses that working
surface 29 may be either "flat" or "curved." (See Loge, col. 4, lines 34--38.)
Accordingly, we are not persuaded by the Appellants' arguments that
the oral irrigator tip recited in independent claim 1 would not have been
obvious over the combined teachings of Loge and Tam. Thus, we sustain
the Examiner's rejection of independent claim 1.
Dependent Claims 2, 3, 5-13, and 15-20
The Appellants state that "for purposes of this appeal" the dependent
claims "stand or fall" with independent claim 1. (Appeal Br. 5; see also id.
at 16.) Thus, they fall with independent claim 1; and we sustain the
Examiner's rejections of dependent claims 2, 3, 5-13, and 15-20.
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Appeal2014-004016
Application 11/679,675
Independent Claim 21
Independent claim 21 is directed to an oral irrigator tip wherein the
bristle element has "a plurality of bristles extending in a form of a frustum
atop a cylinder" and wherein "the frustum forms a flat annular surface at a
distal end of the bristle element." (Claims App.) The Examiner finds that
modified version of Loge's bristle element (reproduced above) "clearly
illustrates" this claimed shape. (See Answer 8.) The Appellants argue the
rejection of independent claim 21 by referring to or reiterating the
unpersuasive arguments discussed above in our analysis of independent
claim 1. (See Appeal Br. 16-1 7.) Thus, for the same reasons, we sustain
the Examiner's rejection of independent claim 21.
DECISION
We AFFIRM the Examiner's rejections of claims 1-3, 5-13, and 15-21.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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