Ex Parte Bullard et al

Board of Patent Appeals and Interferences

Nov 30, 2007

10644329 (B.P.A.I. Nov. 30, 2007)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte HOKE V. BULLARD, DANIEL LANTZ
and CHARLES QUINN
__________

Appeal 2007-4024
Application 10/644,329
Technology Center 3700
__________

Decided: November 30, 2007
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Before, TONI R. SCHEINER, DEMETRA J. MILLS, and
RICHARD M. LEBOVITZ, Administrative Patent Judges.

MILLS, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134. The Examiner has rejected
the claims for anticipation. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Claim 10 is representative.
10. A feeding implement, comprising:
a) a handle portion shaped to permit grasping by a user;
b) a transport portion connected to said handle portion for dipping into solid
food;
Appeal 2007-4024
Application 10/644,329

c) a mouth guard connected in between said transport portion and said
handle portion; and
d) said transport portion having at least two substantially flat surfaces, each
substantially flat surface having a plurality of grooves located thereon.

Cited Reference
Smith US 5,711,759 Jan. 27, 1998

DISCUSSION
Background
The claimed invention is directed to feeding implements designed for
use by small children and individuals having disabilities. (Specification 1.)

Anticipation
Claims 10-15 stand rejected under 35 U.S.C. § 102(b) as anticipated
by Smith. We select claim 10 as representative of the rejection before us
since Appellants have not separately argued the claims. 37 C.F.R. § 41.37
(c)(1)(vii).
The standard under § 102 is one of strict identity. “Under 35 U.S.C.
§ 102, every limitation of a claim must identically appear in a single prior art
reference for it to anticipate the claim.” Gechter v. Davidson, 116 F.3d
1454, 1457 (Fed. Cir. 1997). “Every element of the claimed invention must
be literally present, arranged as in the claim.” Richardson v. Suzuki Motor
Co., Ltd., 868 F.2d 1226, 1236 (Fed. Cir. 1989).
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Application 10/644,329

The Examiner contends that the implement of Figures 1-3 of Smith
evidences all of the claimed structure. (Answer 3.)
Figures 1 and 3 of Smith are reproduced below.

Figure 1 shows a perspective view of the oral hygiene device of Smith.
Figure 3 is a cross-sectional view of a group of nodules of the oral hygiene
device of Smith. Smith discloses at col. 4, ll. 9-13, that the head member 8
can be oval or rectangular in shape.
Figure 1 of Smith shows an oral device which meets the limitations of
claim 10 in the following ways: a) a handle portion 20 shaped to permit
grasping by a user; b) a head portion 8 connected to the handle portion,
which serves as the “transport portion” for dipping into solid food of instant
claim 10; and c) a mouth guard 14 connected in between the transport
portion and the handle portion. Claim 10 also requires, in d), that the
transport portion have at least two substantially flat surfaces, with “each
substantially flat surface having a plurality of grooves located thereon.”
Thus, claim 10 encompasses a transport portion with plurality of grooves
located on top of the flat surface. The Examiner finds that there is nothing
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Application 10/644,329

that “prohibits the recessed area between the nodules 12 of Smith from being
considered … a plurality of grooves.” (Answer 3.)
According to Appellants’ Specification the term “substantially flat” in
reference to the transport portion of the feeding implement refers to either a
flat or slightly curved arc of less than or equal to 90º. (Specification 6.) We
find that the surfaces surrounding and supporting (such as the “nodule
support surface 10” shown in Fig. 2) the nodules of the hygiene device
shown in Smith’s Figure 1 meets Appellant’s definition of “substantially
flat.” Each side of the support surface can be considered to be “two
substantially flat surfaces” as recited in claim 10. We further agree with the
Examiner that the recessed areas between the nodules of Smith can be
considered “a plurality of grooves” located on top of the substantially flat
surface. Thus, we find that the Examiner has established a prima facie case
of anticipation on the evidence before us.
Appellants contend that Figures 1-3 of Smith show head member 8 as
a curved structure, presumably arguing that the head member of Smith is not
a flat surface. (Br. 3.) As indicated herein, we find that we find that the
support surface of the hygiene device of Smith’s Figures 1 and meets
Appellant’s definition of “substantially flat.” Appellants further argue that
Smith does not disclose “a plurality of grooves located upon a substantially
flat surface of the head member (8).” (Br. 3.) Claim 10 requires that the
plurality of grooves be located on the flat surface. Fig. 3 clearly shows
grooves that are located on the substantially flat surface (e.g., 10 shown in
Fig. 2) of Smith’s device as claimed.
The anticipation rejection is affirmed.
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Application 10/644,329

SUMMARY
The rejection of claims 10-15 under 35 U.S.C. § 102(b) as anticipated
by Smith is affirmed.
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

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