Ex Parte Follo et al

Board of Patent Appeals and Interferences

Jul 16, 2009

10816657 (B.P.A.I. Jul. 16, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte THOMAS A. FOLLO, JOCHEN THOENE,
STEPHAN FISHER and WILLIAM VREELAND
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Appeal 2009-002296
Application 10/816,657
Technology Center 3700
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Decided:1 July 17, 2009
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Before JENNIFER D. BAHR, STEVEN D.A. McCARTHY
and STEFAN STAICOVICI, Administrative Patent Judges.

McCARTHY, Administrative Patent Judge.

DECISION ON APPEAL

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304 (2008), begins to run from the
Decided Date shown on this page of the decision. The time period does not
run from the Mail Date (paper delivery) or the Notification Date (electronic
delivery).

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STATEMENT OF THE CASE 1
The Appellants appeal under 35 U.S.C. § 134 (2002) from the 2
Examiner’s decision finally rejecting claims 1, 4, 8, 10 and 28 under 35 3
U.S.C. § 103(a) (2002) as being unpatentable over Coffin ’982 (EP 1 252 4
982 A1, publ. Oct. 30, 2002); finally rejecting claims 23 and 24 under 5
§ 103(a) as being unpatentable over Coffin ’982 and Gilder (US 6,212,777 6
B1, issued Apr. 10, 2001); finally rejecting claims 29 and 30 under § 103(a) 7
as being unpatentable over Coffin ’982 and Trotta (US 4,407,067, issued 8
Oct. 4, 1983); and finally rejecting claim 31 under § 103(a) as being 9
unpatentable over Coffin ’982 and Coffin ’665 (US 5,365,665, issued Nov. 10
22, 1994). We have jurisdiction under 35 U.S.C. § 6(b) (2002). 11
We AFFIRM. 12
Claim 1 is the sole independent claim on appeal: 13
14
1. A razor cartridge comprising: 15
a guard portion; 16
a cap portion; 17
at least four razor blades positioned between 18
said guard portion and said cap portion, including 19
a first razor blade being positioned adjacent to said 20
guard portion, a last razor blade being positioned 21
adjacent to said cap portion, and at least two 22
interior razor blades being positioned between said 23
first razor blade and said last razor blade, each 24
having a cutting edge and an overall exposure 25
relative to at least two skin engaging surfaces 26
defined by said razor cartridge; 27
said overall exposure of each of said four 28
razor blades being equal to an average of four 29
individual exposures measured along a length 30
defined by said razor blade for which exposure is 31
sought; 32
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said individual exposures being equal to the 1
length of an exposure line extending between the 2
cutting edge of the razor blade for which exposure 3
is being sought and a tangent line, said exposure 4
line being approximately perpendicular to said 5
tangent line and wherein 6
said tangent line is defined by two points, 7
one of said points being positioned on a skin 8
engaging surface immediately preceding said razor 9
blade for which exposure is being sought, and the 10
other of said two points being located on a skin 11
engaging surface immediately aft of said razor 12
blade for which exposure is being sought, wherein 13
said overall exposure of said first razor 14
blade is negative; and wherein 15
said razor cartridge defines a non-16
progressive blade geometry such that said overall 17
exposures of said interior razor blades are 18
substantially the same. 19
20
The Specification specially defines a “skin engaging surface” to 21
encompass the cutting edges of the razor blades along with contact surfaces 22
of the guard portion and the cap portion of the razor cartridge. (Spec. 7, 23
¶ 0033). Claim 1 specially defines the terms “individual exposure” as being 24
equal to the normal distance between the line of the cutting edge of a razor 25
blade and a tangent line defined by two points, one of the points being 26
positioned on a skin engaging surface immediately preceding the razor blade 27
for which the exposure is being sought and the other of the two points being 28
located on a skin engaging surface immediately aft of the razor blade for 29
which the exposure is being sought. Claim 1 also specially defines the term 30
“overall exposure” of a razor blade as being equal to an average of four 31
individual exposures measured along a length defined by the razor blade. 32
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“Neutral” exposure implies that the cutting edge of the razor blade lies on 1
the tangent lines being employed to determine exposure while “negative” 2
individual exposure implies that the cutting edge of the blade lies below the 3
tangent lines. (Spec. 7, ¶ 0033). 4
The razor blades are positioned in a “non-progressive orientation” 5
relative to one another if the overall exposure of each blade from the guard 6
to the cap does not become progressively more and more positive. (Spec. 8, 7
¶ 0034). By this definition, four razor blades in a razor cartridge are 8
positioned in a non-progressive orientation if the overall exposures of the 9
two interior razor blades are substantially the same. (Id.) Any arrangement 10
of four razor blades in a razor cartridge such that the cutting edges of the 11
blades lie along a common plane must have non-progressive blade geometry. 12
If the cutting edges of all four blades lie in a common plane, then any 13
tangent line connecting the cutting edges of any two blades must lie in the 14
same plane. This implies that the cutting edge of the second razor blade 15
must intersect any tangent line connecting the cutting edges of the first and 16
third razor blades. The cutting edge of the third razor blade must intersect 17
any tangent line connecting the cutting edges of the second and fourth razor 18
blades. Therefore, if the cutting edges of all four blades lie in a common 19
plane, the two internal razor blades must have the same neutral overall 20
exposure and the blade geometry must be non-progressive. 21
22
ISSUES 23
The Appellants argue claims 1, 4, 8, 10 and 28 for purposes of the 24
rejection of the claims under § 103(a), addressing their substantive 25
arguments solely to claim 1. (See, e.g., App. Br. 6). Claim 1 is 26
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representative of the group. See 37 C.F.R. § 41.37(c)(1)(vii) (2008). The 1
Appellants contend that a four-bladed razor cartridge having a first or 2
forward-most blade with a negative overall exposure and interior razor 3
blades each having substantially the same overall exposure as the other 4
interior blades would not have been obvious from the teachings of Coffin 5
’982. (App. Br. 5). The Examiner concludes that these limitations would 6
have been mere matters of design choice. That is, the Examiner concludes 7
that these limitations would have been met by routine optimization of the 8
razor cartridge disclosed by Coffin ’982 to accommodate a user’s 9
requirements. (Ans. 4). 10
The Appellants contest the rejections of claims 23, 24 and 29-31 11
under § 103(a) on the basis that the teachings of Coffin ’982 in combination 12
with the teachings of the secondary reference cited against each claim would 13
not have provided one of ordinary skill in the art reason to provide a four-14
bladed razor cartridge having a first or forward-most blade with a negative 15
overall exposure and interior razor blades each having substantially the same 16
overall exposure as the other interior blades.2 (App Br. 8, 10 and 11). In 17
addition, the Appellants contend that Gilder teaches away from such a razor 18

2 More specifically, the Appellants state that, “[b]ecause claims 23 and
24 depend from claim 1 [these claims are] also believed to be allowable for
at least the same reasons, as well as by virtue of the additional claim
recitations included therein.” (App. Br. 8). The Appellants use similar
language to express their contentions regarding the rejections of claims 29-
31. (See App. Br. 10 and 11). “A statement which merely points out what a
claim recites will not be considered an argument for separate patentability of
the claims.” 37 C.F.R. § 41.37(c)(1)(vii). By the same token, an argument
which merely alludes to what a claim recites without even pointing out the
language on which the Appellants rely on will not be considered a separate
argument for patentability.
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cartridge by disclosing a razor cartridge having blades with progressively 1
increasing exposures. (App. Br. 7-8; Reply Br. 4). 2
This appeal turns on two issues: 3
Have the Appellants shown that the Examiner failed to 4
articulate reasoning with some rational underpinning sufficient 5
to support the conclusion that the teachings of Coffin ’982 6
would have provided one of ordinary skill in the art reason to 7
provide a four-bladed razor cartridge having a first or forward-8
most blade with a negative overall exposure and interior razor 9
blades each having substantially the same overall exposure as 10
the other interior blades? 11
Have the Appellants shown that the Examiner erred by 12
concluding that Gilder does not teach away from the subject 13
matter of claim 1? 14
15
FINDINGS OF FACT 16
The record supports the following findings of fact (“FF”) by a 17
preponderance of the evidence. 18
1. Coffin ’982 discloses a razor cartridge including a guard 19
portion, a cap portion and at least four razor blades positioned between the 20
guard portion and the cap portion. (Coffin ’982, col. 4, ¶ 0020). 21
2. Coffin ’982 uses the term “exposure” in a sense different from 22
the specialized sense in which the Appellants use the term in the 23
Specification and the claims on appeal. Coffin ’982 uses the term 24
“exposure” to mean “[t]he position of a razor blade’s cutting edge relative to 25
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the contact plane” that tangentially intersects the contact surfaces of the 1
guard portion and the cap portion. (Coffin ’982, col 2, ¶ 0006). 2
3. Coffin ’982 discloses positioning the four razor blades in the 3
embodiment of Fig. 5 so that the cutting edges of all four blades intersect the 4
contact plane. (Coffin ’982, col. 5, ¶ 0023). 5
4. Coffin ’982 discloses positioning the four razor blades in the 6
embodiment of Figure 6A so as to have an equal amount of change of 7
“exposure” from razor blade to razor blade beginning with the first or 8
forward-most razor blade to the last or aft-most blade. (Coffin ’982, col. 5, 9
¶ 0023). In other words, Coffin ’982 discloses positioning the four razor 10
blades so that the distance between the horizontally-extending cutting edges 11
of the blades and the contact plane varies linearly along the vertical 12
direction. This description implies that the cutting edges of the four razor 13
blades lie on a common plane. 14
5. Coffin ’982 discloses positioning the first or forward-most 15
razor blade in the embodiment of Figure 6A to have a “negative exposure.” 16
(Coffin ’982, col. 5, ¶ 0023). This description implies positioning the first 17
razor blade below the contact plane so that the blade does not intersect the 18
contact plane. (See Coffin ’982, col. 2, ¶ 0006). 19
6. Coffin ’982 teaches “[t]he blades can be positioned in a variety 20
of different exposure configurations to provide different ‘feels’ or to tune the 21
razor for different applications.” Coffin ’982 further teaches that placing 22
blades at neutral or slight negative “exposures” diminishes the likelihood of 23
skin irritation in a single pass but may necessitate multiple passes in order to 24
shave the skin with desired closeness. (Coffin ’982, col. 2, ¶ 0006). 25
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7. Gilder discloses a razor cartridge including a guard portion and 1
a cap portion. (Gilder, col. 3, ll. 3-4). 2
8. Gilder discloses a razor cartridge including three razor blades 3
having cutting edges intersecting a common “exposure” plane. (Gilder, col. 4
2, ll. 32-36 and col. 3, ll. 20-24). 5
6
PRINCIPLES OF LAW 7
“[W]here the general conditions of a claim are disclosed in the prior 8
art, it is not inventive to discover the optimum or workable ranges by routine 9
experimentation.” In re Aller, 220 F.2d 454, 456 (CCPA 1955). 10
“A reference may be said to teach away when a person of ordinary 11
skill, upon reading the reference, would be discouraged from following the 12
path set out in the reference, or would be led in a direction divergent from 13
the path that was taken by the applicant.” In re Gurley, 27 F.3d 551, 553 14
(Fed. Cir. 1994). A reference does not teach away from a combination 15
merely by disclosing or suggesting a different combination, where the 16
reference does not criticize, discredit or otherwise discourage the claimed 17
combination. In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). 18
19
ANALYSIS 20
Coffin ’982 discloses a razor cartridge containing four blades 21
positioned so as to align the cutting edges of the four blades along a 22
common plane. (FF 3 and 4). Coffin ’982 also discloses varying the 23
positions of the razor blades in a four-bladed cartridge and provides criteria 24
for determining which arrangements are desirable. (See FF 6). For instance, 25
Coffin ’982 discloses that reducing the exposure of the razor blades relative 26
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to the contact plane diminishes skin irritation in a single pass (Id.) These 1
disclosures would have suggested to one of ordinary skill in the art that 2
positioning the blades in a four-bladed razor cartridge so as to align the 3
cutting edges of the four razor blades along a plane tilted to reduce the 4
overall exposure of the first razor blade would be reasonably likely to 5
diminish skin irritation in a single pass. Reasonable experimentation in 6
accordance with this suggestion would have resulted in a four-bladed razor 7
cartridge having a first or forward-most blade with a negative overall 8
exposure and interior razor blades each having substantially the same overall 9
exposure as the other interior blades. 10
The Appellants do not suggest any reason sufficient to show why a 11
course of experimentation which involved varying the relative positions of 12
the four razor blades in a four-bladed cartridge would have been 13
unreasonable. Neither do the Appellants suggest any reason sufficient to 14
show why one of ordinary skill in the art could not have predicted that such 15
a course of experimentation would not succeed in optimizing skin irritation 16
and closeness of shave. In other words, the Appellants fail to show why the 17
Examiner erred in concluding that the positioning of the blades would have 18
been a matter of design choice in view of the teachings of Coffin ’982. 19
Gilder does not teach away from the combination recited in claim 1. 20
Both Coffin ’982 and Gilder disclose positioning blades in a razor cartridge 21
so that the cutting edges of the blades intersect a common plane. (FF 3, 4 22
and 8). Even assuming that the Appellants are correct in contending that 23
Gilder teaches a progressive blade geometry, the Examiner is correct in 24
concluding (see Ans. 8) that Gilder merely discloses a different blade 25
exposure arrangement. The Appellants identify nothing in Gilder sufficient 26
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to show that Gilder would have discredited non-progressive blade 1
geometries or discouraged one of ordinary skill in the art from a course of 2
experimentation which would have yielded the subject matter of claim 1. 3
4
CONCLUSIONS 5
The Appellants have not shown that the Examiner failed to articulate 6
reasoning with some rational underpinning sufficient to support the 7
conclusion that the teachings of Coffin ’982 would have provided one of 8
ordinary skill in the art reason to provide a four-bladed razor cartridge 9
having a first or forward-most blade with a negative overall exposure and 10
interior razor blades each having substantially the same overall exposure as 11
the other interior blades. Therefore, the Appellants have not shown that the 12
Examiner erred in rejecting claims 1, 4, 8, 10 and 28 under § 103(a) as being 13
unpatentable over Coffin ’982. 14
The Appellants have not shown that the Examiner erred by concluding 15
that Gilder does not teach away from the subject matter of claim 1. 16
Therefore, the Appellants have shown that the Examiner erred in rejecting 17
claims 23 and 24 under § 103(a) as being unpatentable over Coffin ’982 and 18
Gilder. 19
No additional issues are raised concerning the remaining rejections. 20
Therefore, the Appellants have not shown that the Examiner erred in 21
rejecting claims 29 and 30 under § 103(a) as being unpatentable over Coffin 22
’982 and Trotta. Neither have the Appellants shown that the Examiner erred 23
in rejecting claim 31 under § 103(a) as being unpatentable over Coffin ’982 24
and Coffin ’665. 25
26
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DECISION 1
We AFFIRM the rejections of claims 1, 4, 8, 10, 23, 24 and 28-31. 2
No time period for taking any subsequent action in connection with 3
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. 4
§ 1.136(a)(1)(iv) (2007). 5
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AFFIRMED 7
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