Ex Parte De La Mettrie et alDownload PDFPatent Trial and Appeal BoardSep 10, 201311080633 (P.T.A.B. Sep. 10, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE __________ BEFORE THE PATENT TRIAL AND APPEAL BOARD __________ Ex parte ROLAND DE LA METTRIE and DIDIER SAINT-LEGER __________ Appeal 2012-001848 Application 11/080,633 Technology Center 1600 __________ Before TONI R. SCHEINER, FRANCISCO C. PRATS, AND SUSAN L.C. MITCHELL, Administrative Patent Judges. SCHEINER, Administrative Patent Judge. DECISION ON APPEAL This is an appeal1 under 35 U.S.C. § 134 from the final rejection of claims 1-14, 17-24, and 36-39, directed to a hair treatment product. The Examiner has rejected the claims as obvious. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 Appellants identify the Real Party-In-Interest as L’Oreal (App. Br. 1). Appeal 2012-001848 Application 11/080,633 2 STATEMENT OF THE CASE Claims 1-14, 17-24, and 36-39 are pending and on appeal. Claims 15, 16, and 25-35 have been canceled (App. Br. 3). The Examiner relies on the following evidence: Roberts US 5,181,529 Jan. 26, 1993 Rath et al. US 5,993,792 Nov. 30, 1999 Pruche et al. US 2003/0065523 A1 Apr. 3, 2003 Ogle et al., INTRODUCTION TO THE ATLAS OF HUMAN HAIR MICROSCOPIC CHARACTERISTICS, CRC Press, LLC, Chapters 1 and 2 (1998). Claims 1-14, 17-24, and 36-39 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Roberts, Rath, Pruche, and Ogle et al. As Appellants do not provide separate arguments for the claims, we select claim 1 as representative, and claims 2-14, 17-24, and 36-39 will stand or fall accordingly. 37 C.F.R. § 41.37(c)(1)(vii). Claim 1 (emphasis added) is as follows: 1. A product comprising: i) at least one hair-treatment composition; ii) at least a first item of information representative of at least one measurable parameter associated with a form of at least one hair from at least one of a head of hair for which said composition is suitable and a head of hair likely to be obtained after applying the composition; and iii) at least one of a ruler configured to measure a degree of curl of a single hair and a gauge configured to measure a degree of curvature of at least one hair, the ruler comprising a graduated scale configured to have a hair extended along the scale and a securing member configured to secure the hair at one end, the gauge comprising a transparent sheet with at least one of circular arcs and circles of different diameters, the gauge for flattening a hair and comparing the curvature of the hair to the at least one of circular arcs and circles. Appeal 2012-001848 Application 11/080,633 3 FINDINGS OF FACT The following findings of fact (FF) are supported by a preponderance of the evidence of record. 1. Roberts discloses: [A] hair treatment kit for use in a combined hair treatment regime. The kit comprises a combination of (a) a hair setting mousse and b) a hair treatment concentrate. This all purpose kit contains all one needs for any type of hair texture or condition of the hair shaft. The kit can be used by all members of the family no matter what their hair texture or condition, with each person determining the combination that is best for them and adjusting the application to meet their hair's requirements. (Roberts, col. 2, ll. 22-32.) 2. Rath discloses a hair care system and kit for “provid[ing] a customized shampoo, conditioner or styling composition that is specially formulated for [an] individual’s hair” (Rath, col. 2, ll. 32-34). The kit for the hair care system includes a base, a thickener and separate enhancing additives, wherein each component is packaged in a separate container such as a vial, jar, pouch, or tube. The kit further includes instructions for formulating the hair care product or using the hair care product. The instructions can provide one or more formulations of the components, including combinations of the base with the thickener and desired enhancing additives, to achieve a desired shampoo, conditioner or styling composition. The components of the kit, i.e., the base, thickener, enhancing additives and instructions can be contained or separately packaged within a packaging material, such as a box or bag. (Id. at col. 13, ll. 24-36.) Appeal 2012-001848 Application 11/080,633 4 3. Figure 2.1 of Ogle is reproduced below: Figure 2.1 depicts Ogle’s hair curvature measurement template. Ogle teaches that “[t]he template was designed so that a study hair can be placed between two clear plates and set over the template” (Ogle 11). 4. Figure 1 of the Specification is reproduced below: Figure 1 of the Specification depicts a gauge that meets the limitations of claim 1. Gauge 10 “has circular arcs of various diameters” which are used “to characterize the degree of curvature of a hair” (Spec. 17: 27-31). Appeal 2012-001848 Application 11/080,633 5 DISCUSSION The Examiner finds, in relevant part, that Roberts and Rath each discloses a hair care kit containing at least one hair treatment composition (Ans. 6), but neither reference “teaches the addition of an analysis means in the package with the product, such as the . . . gauge recited in the claims” (id.). The Examiner finds that Ogle “teaches a gauge configured to measure a degree of curl or curvature of a single hair” (id. at 7), and concludes that it would have been obvious for one of ordinary skill in the art “to include a gauge, such as that taught by Ogle, for the measurement of various aspects of the treated hair” (id. at 8). The Examiner acknowledges that Ogle does not disclose that its gauge is printed on a transparent sheet (id. at 7, 9, and 10). However, the Examiner finds that “printing of the gauge of the prior art onto . . . a transparent sheet” would have been an obvious modification (id. at 8) because “placing a transparent sheet with circular arcs on top of a hair on a surface would meet the same experimental purpose as is described by Ogle, who describes laying a transparent sheet containing a hair on top of the template” (id. at 10), that is, “the inclusion of the circular arcs onto a transparent sheet would meet the same purpose described in the prior art, which is flattening of a hair . . . for measurement against a series of circular arcs” (id. at 11). We agree with the Examiner that it would have been obvious for one of ordinary skill in the art to print Ogle’s gauge, which is otherwise identical to the gauge show in Figure 1 of the Specification (compare FF3 and FF4), on a transparent sheet. We are not persuaded otherwise by Appellants’ arguments. Appeal 2012-001848 Application 11/080,633 6 Appellants argue that “the gauge of claim 1 would not have been obvious in view of Ogle” because “the Office Action fails to identify the problem to be solved by including circular arcs in the transparent sheets of Ogle” (App. Br. 10). Appellants contend that “including circular arcs in the clear plates of Ogle . . . would interfere with the measurement of degree of hair curl” (id.) because “the hair needs to be movable with respect to the circular arcs and curves” (id. at 11), and “including the circular arcs of the template onto one of the transparent sheets . . . [would mean that] the hair would no longer be movable with respect to the template because the transparent sheet securing the hair would also include the template” (Reply Br. 2). Alternatively, Appellants contend that moving the transparent sheets “against each other, thereby allegedly permitting the hair to be movable with respect to the transparent sheet that includes the circular arcs . . . would affect the hair so that the hair would not retain its original curvature” (id.). Nevertheless, claim 1 merely requires, in relevant part, a “gauge comprising a transparent sheet with . . . circular arcs . . . of different diameters . . . for flattening a hair and comparing the curvature of the hair to the . . . circular arcs.” Ogle discloses a template, with the very same circular arcs, printed on an unspecified substrate. Even if we assume that Ogle’s substrate is opaque, printing the template on a transparent sheet so that the template could simply be placed on top of a hair resting on a table would have been an obvious modification to one of ordinary skill in the art - and well within the ambit of “the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). Moreover, the modification would have yielded entirely predictable results. Id. at 416. Appeal 2012-001848 Application 11/080,633 7 Finally, Appellants contend that the references, “fail to disclose and would not have rendered obvious ‘a ruler . . . comprising a graduated scale configured to have a hair extended along the scale and a securing member configured to secure the hair at one end,’ as recited in independent claim 1” (App. Br. 11). This argument is not persuasive. As noted by the Examiner, claim 1 “recit[es] the two elements in the alternative,” thus, the claim requires “a ruler or a gauge” (Ans. 12), not both. SUMMARY The rejection of claims 1-14, 17-24, and 36-39 as unpatentable over Roberts, Rath, Pruche, and Ogle is affirmed. 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 cdc Copy with citationCopy as parenthetical citation