Ex Parte Chenvainu et al

Board of Patent Appeals and Interferences

Sep 6, 2012

11114987 (B.P.A.I. Sep. 6, 2012)

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.
11/114,987 04/26/2005 Alexander T. Chenvainu Z-03519 1861
27752 7590 09/06/2012
THE PROCTER & GAMBLE COMPANY
Global Legal Department - IP
Sycamore Building - 4th Floor
299 East Sixth Street
CINCINNATI, OH 45202
EXAMINER
EIDE, HEIDI MARIE
ART UNIT PAPER NUMBER
3732
MAIL DATE DELIVERY MODE
09/06/2012 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 ALEXANDER T. CHENVAINU, THOMAS A CHRISTMAN,
and MANFRED KLAWUHN
__________

Appeal 2011-007730
Application 11/114,987
Technology Center 3700
__________

Before TONI R. SCHEINER, JEFFREY N. FREDMAN, and
JACQUELINE WRIGHT BONILLA, Administrative Patent Judges.

FREDMAN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to an oral
care device. The Examiner rejected the claims as obvious. We have
jurisdiction under 35 U.S.C. § 6(b). We reverse.

Appeal 2011-007730
Application 11/114,987

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Statement of the Case
Background
“Small valves have been used to control delivery of a fluid from a
personal care device, for example delivery of a dentifrice from a toothbrush .
. . . It is desirable that such valves be compact, to minimize the space
occupied on the personal care device” (Spec. 1, ll. 6-9).
The Claims
Claims 1, 3-5, 7-9, 12, 25-29, 31-33, 35, 40, 84, and 85 are on appeal.
Claim 1 is representative and reads as follows:
1. An oral care device, the device comprising:
a body, constructed to be held by a user, including two or
more passageways through which a fluid can flow, and
a head, extending from the body and being sized to fit in
a user‟s mouth and comprising a plurality of tooth-cleaning_
elements [sic]; and
a valve body positioned on the head, wherein the valve
body comprises an upper portion and a base, wherein the upper
portion defines a plurality of lumens, each lumen terminating in
a valve having an exit; and
a mixing member disposed above the valves and wherein
the mixing member and the valves move relative to each other
to create a shear force in the fluid that exits the valves.
All other pending claims depend directly or indirectly on claim 1.

The Issues

A. The Examiner rejected claims 1, 3-5, 8, 9, 12, 25-29, 31-33, 35, 40,
84, and 85 under 35 U.S.C. § 103(a) as obvious over Viltro,
1
Weihrauch,
2

and Rosenstatter
3
(Ans. 3-7).

1
Viltro et al., US 6,648,641 B1, issued Nov. 18, 2003.
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Application 11/114,987

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B. The Examiner rejected claim 7 under 35 U.S.C. § 103(a) as obvious
over Viltro, Weihrauch, Rosenstatter, and Hoffman
4
(Ans. 7).
A. 35 U.S.C. § 103(a) over Viltro, Weihrauch, and Rosenstatter
The Examiner finds that
Viltro teaches the invention as substantially claimed and
discussed above, however, does not specifically teach a
single valve body defining a plurality of lumens and a
mixing member disposed above the valves and wherein the
mixing member and the valves move relative to each other
to create a shear force in the fluid that exits the valve

(Ans. 4). The Examiner finds that “Weihrauch teaches a single valve body
defining a plurality of lumens including a first and second lumen that shares
a common wall” (Ans. 4). The Examiner finds Rosenstatter teaches “a
mixing member 12 disposed above the valves or fluid outlet . . . and wherein
the mixing member and the valves move relative to each other” (Ans. 4).
The Examiner finds that Rosenstatter‟s “mixing member is capable of
creating a shear force on the fluid once it exits” (Ans. 5).
The Examiner finds it obvious to “to modify Viltro‟s values with the
integral value taught by Weihrauch in order to reduce the number of parts
and make assembling the apparatus easier” (Ans. 4). The Examiner finds it
obvious to “modify the apparatus taught by Viltro/Weihrauch with the
mixing member taught by Rosenstatter ensure a proper reaction of the
mixture as close as possible to the application site and provide a better
cleaning of the teeth” (Ans. 5).

2
Weihrauch, G., US 7,036,179 B1, issued May 2, 2006.
3
Rosenstatter, O., US 4,619,009, issued Oct. 28, 1986.
4
Hoffman, A., US 4,524,805, issued Jun. 25, 1985.
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Application 11/114,987

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Appellants contend that the “non-valved, multi-passage per
compartment arrangement of Weihrauch, which appears to operate in a
different manner from Viltro, would not have taught or suggested combining
the separate duckbills of Viltro into a unitary valve body, wherein each of
the duckbill passages shares a common wall” (App. Br. 5).
Appellants contend that “the „mixing member‟ as taught by
Rosenstatter are the bristles (12). In contrast, independent claim 1 requires a
head comprising a plurality of tooth-cleaning elements (bristles), a valve
body positioned on the head and a mixing member disposed above the
valve” (App. Br. 6).
Appellants contend that there “is simply no motivation, teaching, or
suggestion, other than using impermissible hindsight reconstruction, to
combine the cited art as suggested by the Office. The unsupported
contention that certain elements can be combined doesn‟t prove that the
suggested combination would have been obvious” (App. Br. 6).
The issue with respect to this rejection is: Does the evidence of record
support the Examiner‟s conclusion that Viltro, Weihrauch, and Rosenstatter
render the device of claim 1 obvious?
Findings of Fact
1. Viltro teaches “[t]oothbrush 110 consists of duckbills 117,
brush head 113, bristles 11, neck 115, body 116, and connector 118” (Viltro,
col. 7, ll. 62-64).
2. Viltro teaches that as “used herein, a „duckbill‟ is generally
described as a resilient flow regulator or check valve that includes a pair of
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Application 11/114,987

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lips arranged in a converging relationship to define an open end and a
normally closed end” (Viltro, col. 7, l. 64 to col. 8, l. 1).
3. A portion of Figure 5 of Viltro is reproduced below:

“FIG. 5 is an exploded view of rigid cartridge brushing system 500,
including tooth brush 110” (Viltro, col. 3, ll. 56-57)
4. Figure 32 of Weihrauch is reproduced below:

“FIG. 32 shows a horizontal section through a bristle carrier comprising a
multiple chamber cavity” (Weihrauch, col. 6, ll. 48-49).
5. Weihrauch teaches that a “preferred design of the inventive
brush provides at least one cavity below and/or within the cap-like bristle
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carrier. . . . the cavity can be used to accommodate a medium to be applied
during use of the brush” (Weihrauch, col. 3, ll. 24-31).
6. Figure 5 of Weihrauch is reproduced below:

“FIG. 5 shows a sectional view of a further alternative embodiment of a
brush with attached bristle carrier” (Weihrauch, col. 5, ll. 60-61).
7. Weihrauch teaches that
the covering part 13a of the bristle carrier 13 has a convex
shape and is disposed at a separation from the surface of the
projection 11a thereby forming a cavity 14 between the
bristle carrier 13 and the projection 11. Upon exertion of
external pressure onto the bristles 12, the bristle carrier 13
may resiliently yield towards the inside, whereby the fluid
contained in the cavity 14, e.g. air, damps deformation of the
bristle carrier 13.

(Weihrauch, col. 7, ll. 56-63).
8. Weihrauch teaches a “medium to be applied, wherein the
medium may exit through passages 16 . . . formed in the covering part 13a
of the bristle carrier 13” (Weihrauch, col. 8, ll. 1-3).
9. Weihrauch teaches that “the cavity 14 may be subdivided by
inner dividing walls 32 into several separate chambers 14a, 14b, 14c which
can accommodate various media which flow together and react following
exit” (Weihrauch, col. 9, ll. 64-67).
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10. Figure 4 of Rosenstatter is reproduced below:

“FIG. 4-An enlarged partial section through the head of the brush part,
whereby this corresponds to the assembled condition” (Rosenstatter, col. 8,
ll. 14-16).
11. Rosenstatter teaches that for “supplying different treating fluids
at least two fluid conduits can be provided which allow common discharge
of the fluids at least in the outlet region” (Rosenstatter, col. 4, ll. 49-51).
12. Rosenstatter teaches that “a mixing occurs directly before the
treatment and a reactionable mixture can be brought together directly in the
treating zone” (Rosenstatter, col. 4, ll. 57-59).
13. Rosenstatter teaches that the “mixing of a fluid out of the
conduit 27 with medium out of the conduit 27 is thus first possible in the
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bristle middle space so that a possible reaction mixing is first produced in
the area of application” (Rosenstatter, col. 11, ll. 19-22).
14. The Specification teaches that:
non-moving dual valve is 200 covered by a mixing member
802, which extends over the body of the dual valve, leaving
exposed a portion of the slits of the dual valve. Upon exiting
the dual valve, the components of the dentifrice are mixed
by the mixing member, which rotates with the head when
the toothbrush is in use. The dual valve is generally
surrounded by cleaning elements (not shown) such as
bristles and/or fins.

(Spec. 11, ll. 23-28).
Principles of Law
“In proceedings before the Patent and Trademark Office, the
Examiner bears the burden of establishing a prima face case of obviousness
based upon the prior art.” In re Fritch, 972 F.2d 1260, 1265 (Fed. Cir. 1992).
To establish a prima facie case of obviousness, the examiner must find
“a reason that would have prompted a person of ordinary skill in the relevant
field to combine the elements in the way the claimed new invention does.”
KSR Int’l. Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007).
Analysis
The Examiner acknowledges that Viltro “does not specifically teach a
single valve body defining a plurality of lumens and a mixing member
disposed above the valves” (Ans. 4). The Examiner relies on Weihrauch for
a valve body with a plurality of lumens (Ans. 4). The Examiner relies upon
Rosenstatter for “a mixing member 12 disposed above the valves” (Ans. 4).
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However, element 12 of Rosenstatter represents the bristles, as seen in
Figure 4 of Rosenstatter (FF 10). Rosenstatter expressly teaches that the
mixing occurs in the bristle middle space, not in a region disposed above a
valve (FF 13). In fact, Rosenstatter teaches that for “supplying different
treating fluids at least two fluid conduits can be provided which allow
common discharge of the fluids at least in the outlet region” (Rosenstatter,
col. 4, ll. 49-51; FF 11). Even as we agree with the Examiner that bristles
can be interpreted as “mixing members”, Rosenstatter‟s teaching of a
common discharge to the outlet region is inconsistent with a mixing member
above the valves, since the mixing between the bristles in Rosenstatter does
not occur above the release valves (FF 11-13).
The Examiner finds that “Rosenstatter teaches the mixing member 12
mixing the components of the dentifrice upon their exit from the valves”
(Ans. 8). This is the exact opposite of the structure of claim 1, which
requires the mixing member is above, that is before, the valves, not after the
valves. The claim 1 embodiment is discussed in the Specification, which
teaches that:
non-moving dual valve is 200 covered by a mixing member
802, which extends over the body of the dual valve, leaving
exposed a portion of the slits of the dual valve. Upon exiting
the dual valve, the components of the dentifrice are mixed
by the mixing member, which rotates with the head when
the toothbrush is in use. The dual valve is generally
surrounded by cleaning elements (not shown) such as
bristles and/or fins.

(Spec. 11, ll. 23-28; FF 14). Again, while we agree with the Examiner that
the bristles can be reasonably interpreted as “mixing members”, claim 1
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Application 11/114,987

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requires the mixing member is disposed “above” the valves and the bristles
do not extend above the valve. By contrast, in the Specification, the mixing
member does extend “over the body of the dual valve” which is “above” the
valve as required by claim 1.
We therefore agree with Appellants that “Rosenstatter in no way
teaches a mixing member disposed above a valve, as required by claim 1”
(Reply Br. 3).
Conclusion of Law
The evidence of record fails to support the Examiner‟s conclusion that
Viltro, Weihrauch, and Rosenstatter render the device of claim 1 (and
therefore also dependent claims 3-5, 7-9, 12, 25-29, 31-33, 35, 40, 84, and
85) obvious.
B. 35 U.S.C. § 103(a) over Viltro, Weihrauch, Rosenstatter, and
Hoffman
This rejection relies upon the underlying obviousness rejection over
Viltro, Weihrauch, and Rosenstatter. Having reversed the rejection of claim
1 over Viltro, Weihrauch, and Rosenstatter, we necessarily reverse the
additional obviousness rejections which do not cure the failure to teach “a
mixing member disposed above the valves” as required by claim 1, and
therefore also dependent claim 7.

Appeal 2011-007730
Application 11/114,987

11

SUMMARY
In summary, we reverse the rejection of claims 1, 3-5, 8, 9, 12, 25-29,
31-33, 35, 40, 84, and 85 under 35 U.S.C. § 103(a) as obvious over Viltro,
Weihrauch, and Rosenstatter.
We reverse the rejection of claim 7 under 35 U.S.C. § 103(a) as
obvious over Viltro, Weihrauch, Rosenstatter, and Hoffman.

REVERSED
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