Ex Parte Daneshvar

Patent Trial and Appeal Board

Sep 10, 2014

11717529 (P.T.A.B. Sep. 10, 2014)

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.
11/717,529 03/13/2007 Yousef Daneshvar 9611
12937 7590 09/10/2014
Yousef Daneshvar, MD FACC.
3425 Lone Pine Rd.
West Bloomfield, MI 48323
EXAMINER
DOAN, ROBYN KIEU
ART UNIT PAPER NUMBER
3776
MAIL DATE DELIVERY MODE
09/10/2014 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 PATENT TRIAL AND APPEAL BOARD
____________

Ex parte YOUSEF DANESHVAR
____________

Appeal 2012-007574
Application 11/717,5291
Technology Center 3700
____________

Before HUBERT C. LORIN, BIBHU R. MOHANTY, and
CYNTHIA L. MURPHY, Administrative Patent Judges.

MURPHY, Administrative Patent Judge.

DECISION ON APPEAL

The Appellant appeals under 35 U.S.C. § 134 from the Examiner’s
decision rejecting claims 25, 27–30, 32, 34, and 38–45. We have
jurisdiction over this appeal under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.

1 According to the Appellant, the real party in interest is Yousef Daneshvar,
the applicant and inventor. (Appeal Br. 2.)

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Application 11/717,529

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STATEMENT OF THE CASE
The Appellant’s invention is directed towards a brush for applying or
removing hair dye. The brush can be used in conjunction with a dye-holding
pan. (Spec. 1.)

Representative Claims
25. A brush for applying hair dye to hair or
removing hair dye from hair comprising:
a base;
multiple dye-holding units disposed on the base,
a handle that extends from the base for grasping by
a person’s hand,
wherein each dye-holding unit comprises an
absorbent medium disposed on a respective stem that
is disposed on the base.

32. The combination of a brush for applying hair
dye to hair, and a dye-holding pan,
the brush comprising a base and multiple dye-
holding units disposed on the base in a pattern
comprising multiple side-by-side rows with each row
comprising multiple dye-holding units;
the dye-holding pan comprising multiple open-top
receptacles for holding hair dye that are arranged on
the base in a pattern comprising multiple side-by-side
rows with each row comprising multiple receptacles
arranged in a pattern that allows the dye-holding
units to be inserted into the receptacles on a basis of
only one dye-holding unit to one receptacle.

40. A brush for applying hair dye to hair or
removing hair dye from hair comprising:
a base;
multiple dye-holding units supported on and
projecting from of the base, each unit comprising a
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wall having a hollow interior each wall comprising
at least one aperture for allowing dye to be forced out
of and into the hollow interiors through the at least
one aperture by respective pressure and suction
applied through a hollow interior of the base to the
hollow interiors of the dye-holding units.

Prior Art References
Friedman US 2,175,344 Oct. 10, 1939
O’Connor US 4,585,018 Apr. 29, 1986
Wong US 5,337,765 Aug. 16, 1994
Foreman US 5,555,899 Sep. 17, 1996
Martinez US 5,765,253 Jun. 16, 1998
Wakat US 5,983,437 Nov. 16, 1999
Christensen US 6,539,949 B2 Apr. 1, 2003
Kelloyan US 2006/0283472 A1 Dec. 21, 2006

Rejections on Appeal
Claims 25, 29 and 30 are rejected under 35 U.S.C. § 102(b) as
anticipated by O’Connor.
Claim 27 is rejected under 35 U.S.C. § 103(a) as unpatentable over
O’Connor in view of Friedman.
Claim 28 is rejected under 35 U.S.C. § 103(a) as unpatentable over
O’Connor in view of Friedman, and further in view of Kelloyan.
Claim 32 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Kelloyan in view of Wong.
Claims 34, 38 and 39 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Kelloyan in view of Wong, and further in view of Wakat.
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Claims 40, 42 and 43 are rejected under 35 U.S.C. § 102(b) as
anticipated by Christensen.
Claim 41 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Christensen in view of Foreman.
Claim 44 is rejected under 35 U.S.C. § 103(a) as unpatentable over
O'Connor in view of Kelloyan.
Claim 45 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Kelloyan in view of Wong, and further in view of Martinez.

ANALYSIS
Claims 25, 27–30, and 44
Claims 25, 29, and 30 are rejected as anticipated by O’Connor.
Claims 27, 28, and 44 are rejected as obvious over O’Connor in view of
Friedman and/or Kelloyan.
Independent Claim 25
Independent claim 25 sets forth a brush with multiple dye-holding
units, and recites “wherein each dye-holding unit comprises an absorbent
medium disposed on a respective stem”. The Examiner finds O’Connor
discloses a brush comprising dye-holding units 16b. (Non-Final 2.) The
Examiner finds a tapered free end of the O’Connor member 16b is the
claimed “absorbent medium” and a non-tapered part this member 16b is the
claimed “stem.” (Answer 11.) The Examiner concludes the “absorbent
material” and the “stem” are shown as two elements in O’Connor. (Id.)
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The Appellant argues claim 25 unambiguously recites two distinct
elements: 1) a stem and 2) an absorbent medium disposed on the stem, and
O’Connor does not disclose such distinct elements. (Appeal Br. 8.)
The Appellant’s position is not persuasive. The Examiner relies upon
two distinct sections of the O’Connor member 16b when defining the “stem”
and the “absorbent medium.” One section is tapered and the other section is
non-tapered. The Appellant has not presented any reason precluding the
claim language from reading on two distinct, yet integral, elements under the
broadest reasonable interpretation.
As for the absorbency of the “absorbent medium,” the Examiner cites
to a sentence in the O’Connor Specification stating “[t]he porous wick-like
material 16b of the teeth 14 may be a foam, a fabric, a bundle of fibers, or
other materials that draws liquid through itself by capillary action.”
(O’Connor, col. 4, l. 36–38.)
The Appellant argues O’Connor does not describe its wicking
material as absorbent. (Appeal Br. 8.) The Appellant asserts capillary
action is movement of a liquid along an interior surface due to molecular
action and “this simply is not absorption.” (Id.) The Appellant contends the
Examiner is ignoring the fact that “the physical phenomenon of drawing a
liquid through itself by capillary action is different from the physical
phenomenon of absorption.” (Reply Br. 2.)
The Appellant’s position is not persuasive. The physical phenomenon
of a material drawing a liquid through itself by capillary action does not
prevent this same material from being absorbent. The O’Connor wick-like
material draws liquid by capillary action and is still absorbent. When the
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wick-like material is a bundle of fibers, for example, the fibers individually
draw the liquid by capillary action and the bundle absorbs the so-drawn
liquid.
Thus, we sustain the Examiner’s rejection of independent claim 25.
Dependent Claims 29 and 30
The Appellant does not argue separately the anticipation rejection of
claims 29 and 30 in the Appeal Brief. And the Appellant’s comments
addressing claim 30 in the Reply Brief are not considered for the purposes of
the present appeal.2 Thus, we sustain the Examiner’s rejection of dependent
claims 29 and 30.
Dependent Claims 27, 28, and 40
The Appellant argues the obviousness rejections of claims 27, 28, and
44 are in error only because the secondary references (Friedman, Kelloyan)
do not cure the above-discussed deficiencies in O’Connor. (Appeal Br. 9,
12.) Thus, we sustain the Examiner’s rejection of dependent claims 27, 28,
and 44.
Claim 32, 34, 38, 39 and 45
Claim 32 is rejected as obvious over Kelloyan in view of Wong.
Claims 34, 38, 39, and 45 are rejected as obvious over Kelloyan in view of
Wong and further in view Wakat or Martinez.

2The Appellant argues in the Reply Brief that O’Connor contains no
teaching that its handle is separable from its base as required by claim 30.
(Reply Br. 2.) This argument was not raised in the Appeal Brief and is not
responsive to an argument raised in the Examiner’s Answer. See 37 C.F.R.
§ 41.41 (2004 Rules for Notices of Appeal filed before January 23, 2012).

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Independent Claim 32
Claim 32 sets forth the “combination of a brush for applying hair dye
to hair, and a dye-holding pan.” The pan includes dye-holding receptacles
arranged in a pattern “comprising multiple side-by-side rows with each row
comprising multiple receptacles.” The Examiner finds Kelloyan discloses a
dye-holding pan including a row 4 of three open receptacles and a row 5 of
two receptacles. (Answer 12.) The three receptacles in row 4 are called
“channels,” and the two receptacles in row 5 are called “color bowls.”
(Kelloyan ¶ 32.)
Claim 32 sets forth “each row comprising multiple receptacles” is
“arranged in a pattern that allows the dye-holding units to be inserted into
the receptacles on a basis of only one dye-holding unit to one receptacle.”
The Examiner points to Kelloyan Figure 3 as showing this only-one-to-one
pattern of receptacles. (Answer 12.)
The Appellant argues the Examiner has not explained how Kelloyan
teaches the claimed only-one-to-one pattern. (Reply Br. 3.) The Appellant
asserts the Kelloyan channels 4 are arranged to fit only one bristle group 7 of
the Kelloyan brush into each channel. (Id.) The Appellant contends, if one
considers both the channels 4 and the color bowls 5, the only-one-to-one
pattern requirement is not met. (Id.)
The Appellant’s position is persuasive. The Examiner relies on both
row 4 and row 5 to establish Kelloyan discloses the claimed “multiple side-
by-side rows” of multiple receptacles. Claim 32 requires each row
comprising multiple receptacles to be arranged in the only-one-to-one
pattern, so this limitation applies to both row 4 and row 5. Kelloyan Figure
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3 does not show the two bowls in row 5 “arranged in a pattern that allows
the dye-holding units to be inserted into the receptacles on a basis of only
one dye-holding unit to one receptacle.” Thus, we do not sustain the
Examiner’s rejection of independent claim 32.
Dependent Claims 34, 38, 39, and 45
The obviousness rejections of claims 34, 38, 39, and 45 rest on the
Kelloyan-Wong combination. (Non-Final 5, 6, 8.) The Examiner does not
find that the additional references (Wakat, Martinez) teach anything related
to the “only-one-to-one pattern” not disclosed by Kelloyan. (Id.) Thus, we
do not sustain the rejection of dependent claims 34, 38, 39, and 45.
Claims 40–43
Claims 40, 42 and 43 are rejected as anticipated by Christensen.
Claim 41 is rejected as obvious over Christensen in view of Foreman.
Independent Claim 40
Independent claim 40 sets forth a brush wherein each dye-holding unit
has a wall with a hollow interior and wherein each wall has “at least one
aperture for allowing dye to be forced out of and into the hollow interiors
through the at least one aperture by respective pressure and suction applied
through a hollow interior of the base to the hollow interiors of the dye-
holding units.”
The Examiner finds Christensen discloses “all the claimed structure”
set forth in claim 40. (Answer 11.) The Examiner explains the “allowing”
limitation following the introduction of the aperture is “intended use
language.” (Id.) The Examiner concludes Christensen discloses at least one
aperture “capable” of “allowing dye to be forced out of and into the hollow
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interiors through the at least one aperture by respective pressure and suction
applied through a hollow interior of the base to the hollow interiors of the
dye-holding units.” (Id.)
The Appellant argues claim 40 recites at least one aperture for
allowing die to be forced into the hollow interiors . . . by suction applied
through a hollow interior of the base. (Appeal Br. 8.) The Appellant asserts
that Christensen does not anticipate claim 40 because “it uses only pressure
to dispense fluid, and lacks suction for drawing dispensed fluid back in.”
(Id. at 9.)
The Appellant’s argument is not persuasive. The Appellant points to
no structural differences between Christensen and the elements set forth in
claim 40. And the Appellant has not asserted the Christensen structure is not
capable of “allowing” dye to be forced into the hollow interiors by suction.
Thus, we sustain the Examiner’s rejection of independent claim 40.
Dependent claim 41
The Appellant argues the obviousness rejection of claim 41 only on
the grounds that Foreman does not cure the “suction” shortcoming in
Christensen. (Appeal Br. 12.) Thus, we sustain the Examiner’s rejection of
dependent claim 41.
Dependent Claim 42
The Appellant does not argue separately the anticipation rejection of
dependent claim 42. (Appeal Br. 8, 9.) Thus, we sustain the Examiner’s
rejection of dependent claim 42.
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Dependent Claim 43
Claim 43 sets forth, in its entirety, “[a] brush as set forth in Claim 40
further including such a device connected to the piece.” The Examiner finds
Christensen discloses a device (a reservoir) connected to a piece (a conduit).
(Non-Final 3.) The Examiner explains that claim 43 “merely recites a
device connected to the dispenser of claim 40, nothing more.” (Answer 11.)
The Appellant argues that claim 43 positively recites a machine which
Christensen does not disclose. (Appeal Br. 9.) The Appellant asserts that its
“clear intent” is to set forth a device for applying both pressure and suction
to enable the brush to apply dye or remove dye. (Reply Br. 2.)
The Appellant’s position is not persuasive. Claim 43 does not limit
the “device” to a machine which applies both pressure and suction, and
claim 32 does not tie this device to the “intended use” language in claim 40.
Thus, we sustain the Examiner’s rejection of dependent claim 43.

DECISION
We AFFIRM the rejections of claims 25, 27–30, and 44.
We REVERSE the rejections of claims 32, 34, 38, 39, and 45.
We AFFIRM the rejections of claims 40–43.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).
AFFIRMED-IN-PART

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