Ex Parte De Laforcade

Board of Patent Appeals and Interferences

Jul 7, 2010

10840295 (B.P.A.I. Jul. 7, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte VINCENT De LAFORCADE
____________

Appeal 2009-007282
Application 10/840,295
Technology Center 3700
____________

Before WILLIAM F. PATE, III, STEFAN STAICOVICI, and
FRED A. SILVERBERG, Administrative Patent Judges.

STAICOVICI, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.

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Application 10/840,295

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STATEMENT OF THE CASE
Vincent de Laforcade (Appellant) appeals under 35 U.S.C. § 134
(2006) from the Examiner’s decision finally rejecting claims 28 and 29
under 35 U.S.C. § 102(b) as anticipated by Morrison (US 578,652, issued
Mar. 9, 1897) and claims 25 and 26 under 35 U.S.C. § 103(a) as
unpatentable over Morrison and Braun (US 5,972,044, issued Oct. 26,
1999). Appellant’s representative presented oral argument on June 17, 2010.
We have jurisdiction over this appeal under 35 U.S.C. § 6 (2006).

THE INVENTION
Appellant’s invention relates to a device for holding a lock of hair so
that a hair care substance may be applied to the lock of hair. Spec., para
[0006].
Claim 28 is representative of the claimed invention and reads as
follows:
28. A device for holding a lock of hair, the
device comprising:

a base portion including a surface for resting
on the scalp;

a holding portion comprising a clip arranged
to hold a portion of said lock in a substantially
upstanding position between the holding portion
and the scalp, the holding portion comprising two
branches extending along an axis substantially
parallel to the surface, said branches having
diverging portions, when the device is observed
substantially perpendicularly to the surface, that
facilitate insertion of hair between the two
branches; and

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a link portion obliquely disposed relative to
the holding portion or the base portion when
viewed from a side view in a direction
substantially perpendicular to the axis along which
the branches extend, the link portion connecting
the base portion to the holding portion, the link
portion being configured to allow access to the
portion of said lock, wherein the link portion is
made integrally with at least one of the base
portion and the holding portion.

SUMMARY OF DECISION
We REVERSE.
OPINION
Each of independent claims 25, 28, and 29 requires a link portion that
is disposed obliquely2 relative to the base portion when viewed from a side
view in a direction substantially perpendicular to the axis along which the
branches of the holding portion extend. See App. Br., Claims Appendix.
We agree with the Examiner that Morrison teaches a device including
a base portion 10, a holding portion 15 having a clip with divergent portions,
and a link portion 12 that connects the base portion 10 and the holding
portion 15. See Ans. 3. We further find that the device of Morrison also
includes horizontal bars 13. Morrison, col. 2, ll. 55-57 and fig. 1.

2 An ordinary and customary meaning of the term “oblique” is “neither
perpendicular nor parallel.” MERRIAM-WEBSTER’S COLLEGIATE
DICTIONARY (10th Ed. 1997).
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Pointing to Figure 3 of Morrison, the Examiner opines that:
The link portion (12) is obliquely disposed
relative to the holding portion or the base portion
when viewed from a side view in a direction
substantially perpendicular to the axis along which
the clip extends (see Figure 3).
Ans. 3.
Appellant argues that Figure 3 represents a rear view of Morrison’s
holder and not a side view. According to Appellant, Figure 2 of Morrison
constitutes a side view and the side view shows link portion 12 disposed in a
vertical position with respect to the base portion 10, and not obliquely, as
required by each of independent claims 25, 28, and 29. App. Br. 10 and 12.
The Examiner responds that, “Appellant has not clearly defined what
a ‘side view’ is.” Ans. 5. We disagree with the Examiner’s position that
Appellant has not defined the claimed “side view.” Each of independent
claims 25, 28, and 29 specifically defines a “side view” as a direction
substantially perpendicular to the axis along which the clip (as per claims 25
and 29) or the branches (as per claim 28) of the holding portion extend.
However, each of independent claims 25, 28, and 29 also requires a holding
portion having a clip (as per claims 25 and 29) or branches (as per claim 28)
extending along an axis substantially parallel to the surface of a base portion.
If the base portion is element 10 of Morrison, as the Examiner asserts, then
in order for the clip or branches of holding portion 15 to extend along an
axis substantially parallel to the surface of base portion 10, the clip or
branches of holding portion 15 must extend along the direction of horizontal
bars 13. See Morrison, fig. 1. Accordingly, the view in a direction
substantially perpendicular to the horizontal bars 13 is the view shown in
Figure 2 of Morrison, and not Figure 3 as the Examiner opines. The view
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shown in Figure 3 of Morrison is in a direction parallel to the horizontal bars
13, hence parallel to the axis along which the clips or branches of the
holding portion extend.
In conclusion, we agree with Appellant that the side view shown in
Figure 2 of Morrison shows link portion 12 disposed in a vertical position
with respect to the base portion 10, and not obliquely, as required by each of
independent claims 25, 28, and 29. See App. Br. 10. Since, Morrison does
not teach all the limitations of independent claims 28 and 29, the rejection of
claims 28 and 29 under 35 U.S.C. § 102(b) as anticipated by Morrison
cannot be sustained.
With respect to claims 25 and 26, the disclosure of Braun does not
cure the deficiencies of Morrison as described above. Therefore, the
rejection of claims 25 and 26 under 35 U.S.C. § 103(a) as unpatentable over
Morrison and Braun likewise cannot be sustained.

SUMMARY
The decision of the Examiner to reject claims 25, 26, 28, and 29 is
reversed.

REVERSED

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