Ex Parte Hegemann et al

Board of Patent Appeals and Interferences

Aug 31, 2009

11223365 (B.P.A.I. Aug. 31, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte KENNETH HEGEMANN, ROB HEGEMANN
and JAY HEGEMANN
____________________

Appeal 2009-001560
Application 11/223,365
Technology Center 3700
____________________

Decided: August 31, 2009
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Before JENNIFER D. BAHR, STEVEN D.A. McCARTHY
and FRED A. SILVERBERG, Administrative Patent Judges.

McCARTHY, Administrative Patent Judge.

DECISION ON APPEAL

The Appellants appeal under 35 U.S.C. § 134 (2002) from the 1
Examiner’s decision finally rejecting claims 9-14 under 35 U.S.C. § 102(e) 2
(2002) as being anticipated by Porper (US 6,401,288 B1, issued Jun. 11, 3
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2002) and also under 35 U.S.C. § 102(b) as being anticipated by Middleton 1
(US 4,603,448, issued Aug. 5, 1986); finally rejecting claims 1 and 3-8 2
under 35 U.S.C. § 103(a) (2002) as being unpatentable over Gross (US 3
5,033,150, issued Jul. 23, 1991), Caliendo (US 3,925,841, issued Dec. 16, 4
1975) and Lam (US 6,920,660 B2, issued Jul. 26, 2005); finally rejecting 5
claims 2 and 6 under § 103(a) as being unpatentable over Gross, Caliendo, 6
Lam and Porper; and finally rejecting claim 15 under § 103(a) as being 7
unpatentable over Porper and deBlois (US 5,718,014, issued Feb. 17, 1998). 8
An oral hearing was held on August 4, 2009. We have jurisdiction under 35 9
U.S.C. § 6(b) (2002). 10
We REVERSE. 11
Claim 9 is independent: 12
13
9. An oral cleansing system comprising: 14
an oral brush device having: 15
a handle including: 16
a housing structure; 17
a movable connection structure 18
stemming from the housing structure; and 19
at least one control assembly 20
disposed within the housing structure; the at least 21
one control assembly including a power-driven 22
sub-assembly, the power-driven sub-assembly 23
providing movement for the movable connection 24
structure; 25
a power assembly; the power assembly 26
being adapted to be connected to the power-driven 27
sub-assembly of the at least one control assembly; 28
and, 29
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1
at least one brush assembly adapted to be 2
detachably attachable to the movable connection 3
structure of the handle; 4
whereby the at least one brush 5
assembly includes at least one brush having at 6
least one resilient arm adapted to be connected to 7
the connection structure, the at least one resilient 8
arm having a resilient brush head connected 9
thereto, the at least one brush head having at least 10
one first set of side bristles and at least one of an 11
opposing set of side bristles and a set of crown 12
bristles; 13
whereby the first set of side bristles 14
and the one or both of the opposing set of side 15
bristles and a set of crown bristles are operatively 16
disposed such that the first and second brush heads 17
are adapted to be self-positioning in relation to an 18
oral feature. 19
20
[Emphasis added.] 21
The present appeal involves issues of claim interpretation. The 22
Appellants do not define the term “resilient arm” in the Specification. Both 23
the Specification and dictionary definitions submitted by the Appellants 24
provide guidance in construing the term, however. 25
The Appellants submit the following dictionary definitions of the 26
word “resilient:” 27
“[a]bility of a strained body, by virtue of high yield 28
strength and low elastic modulus, to recover its size and form 29
following deformation” (MCGRAW-HILL DICTIONARY OF 30
SCIENTIFIC & TECHNICAL TERMS 1693 (5th ed. 1994); 31
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“returning to an original shape or position, as after 1
having been compressed” (AMERICAN HERITAGE DICTIONARY 2
1535 (3rd ed. 1992)); and 3
“[t]he property of a material that enables it to resume its 4
original shape or position after being bent, stretched or 5
compressed; elasticity” (The Free Dictionary, 6
www.thefreedictionary.com) 7
(App. Br. 7) 8
Appellants state in their Specification that: 9
Also directed to a maximal bristle cleaning activity 10
may be an option of flexible, resilient brush arms, 11
e.g., arms 28a, 28b, 29a and/or 29b, which can 12
contribute to the preferred maintenance of the tips 13
of the long and short bristles 34, 35 in contact with 14
the respective deeper and shallower tooth portions 15
by alternately flexing outwardly during an 16
encounter with a wider tooth or shallower oral 17
feature and then upon encountering a deeper or 18
narrower feature, flexing or resiling inwardly to 19
reach inwardly toward the deeper surfaces and/or 20
the narrower teeth. 21
(Spec. 9, ¶ 0021.) 22
The dictionary definitions and the passage from the Specification 23
suggest that an arm must meet two criteria to be a “resilient arm” as that 24
term would be understood by one of ordinary skill in the art: The arm must 25
be capable to flexing outwardly when subjected to suitable forces and then 26
returning to its original shape once those forces are removed. 27
Porper discloses an electric toothbrush 10 including a power handle 28
portion 12 and a brush head portion 14. (Porper, col. 5, ll. 56-56). The 29
brush head portion 14 includes two matched halves 56, 58 (Porper, col. 9, ll. 30
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29-34) depicted in Figures 1 and 2 of Porper as including arms ending in 1
bristle head portions 40, 42. The matched halves 56, 58 are manufactured 2
from acrylonitrile butadiene styrene (ABS) polymer. (Porper, col. 9, ll. 44-3
47). Porper does not disclose a preferred formulation of ABS for 4
manufacturing the matched halves 56, 58 nor any mechanical properties of a 5
suitable ABS polymer. Citing a statement in an article entitled 6
“Acrylonitrile butadiene styrene (ABS)” from the Granta Design Ltd. 7
website (http://www.grantadesign.com/solutions/education/ABS.htm (last 8
visited Sep. 12, 2006)), that “ABS . . . is tough, resilient, and easily molded,” 9
the Examiner finds that Porper’s matched halves 56, 58 inherently are 10
resilient arms. (Ans. 4). 11
The statement ABS as a material is “resilient” does not imply that 12
Porper’s matched halves 56, 58 necessarily must be capable of flexing 13
outwardly when subjected to suitable forces and then returning to their 14
original shapes once those forces are removed. As the Appellants point out 15
(see, e.g., Reply Br. 17), Porper’s matched halves 56, 58 could be tough, 16
rigid and unyielding even though other parts formed from particular 17
formulations of ABS polymer might exhibit meaningful resiliency. 18
Consequently, the matched halves 56, 58 are not inherently “resilient arms.” 19
Since the Examiner finds no other structure in Porper which might 20
inherently correspond to the recited “at least one resilient arm,” the 21
Appellants have shown that the Examiner erred in rejecting independent 22
claim 9 and its dependent claims 10-14 under § 102(e) as being anticipated 23
by Porper. 24
Claim 15 depends from claim 9. deBlois discloses a battery operated 25
cleaning apparatus 10, 200 including a subassembly housing or handle 22; a 26
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shaft 208; and a brush head 20 detachable from the shaft 208 when a button 1
202 is pushed. (deBlois, col. 3, ll. 33-37 and col. 10, l. 61 – col. 11, l. 12). 2
deBlois does not supply the deficiency in the disclosure of Porper. That is, 3
the Examiner has not articulated any reasoning having some rational 4
underpinning sufficient to support the conclusion that the teachings of 5
Porper and deBlois would have provided one of ordinary skill in the art a 6
reason to combine a resilient arm with an electric toothbrush of the type 7
disclosed by Porper in a manner meeting the limitations of claim 9. The 8
Appellants have shown that the Examiner erred in rejecting claim 9 under 9
§ 103(a) as being unpatentable over Proper and deBlois. 10
Middleton discloses an electric toothbrush 10, 110 including a power 11
handle 12, 112; a longitudinally extending brush stem 14, 114 removably 12
attached to the handle 12, 112; and a brush cartridge 21, 121 either 13
permanently or removably attached to the brush stem 14, 114. (Middleton, 14
col. 4, l. 56 – col. 5, l. 2; col. 9, ll. 19-28; and col. 10, l. 65 – col. 11, l. 5). 15
The brush cartridge 14, 114 includes two generally cylindrical brushes 74, 16
174. (Middleton, col. 7, ll. 4-5 and col. 11, ll. 47-49). Each of the two 17
brushes 74, 174 includes a central spindle 92, 192. (Middleton, col. 7, ll. 4-6 18
and col. 11, ll. 50-53). One end of each central spindle 92, 192 is held in an 19
end bearing. (Middleton, col. 7, ll. 9-13). The central spindle 92 of brush 74 20
has a flattened spade end 94 for coupling to a drive shaft 32, 132. 21
(Middleton, col. 7, ll. 7-9 and col. 9, ll. 4-9). The central spindle 192 of 22
brush 174 is continuous with a portion 220 of the drive shaft 132 separable 23
from a brush stem portion 189 of the drive shaft 132. (Middleton, col. 11, ll. 24
50-53). 25
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The Examiner finds that the portion 220 of the drive shaft 132 1
continuous with the central spindle 192 of the brush 174 is a resilient arm. 2
(Ans. 4). Figures 5 and 7 of Middleton depict the central spindle 192 and 3
the portion 220 as a continuous wire or shaft. The Examiner bases the 4
finding that the portion 220 is resilient on Middleton’s disclosure that, 5
“[a]lternatively, the brushes 74 could be made stiff enough not to require 6
support at both the headward and footward end” (Middleton, col. 7, ll. 41-7
43), which the Examiner interprets to imply that Middleton’s preferred 8
embodiment of the portion 220 is resilient. (Ans. 5). 9
The Appellants’ arguments are persuasive. (See, e.g., Reply Br. 17-10
18). At most, Middleton’s disclosure permits one to draw an inference that 11
the preferred embodiment of the central spindle 192 and the portion 220 of 12
the drive shaft 132 lacks sufficient stiffness to avoid requiring support at 13
both the headward and footward ends. This inference does not imply that 14
the central spindle 192 and the portion 220 necessarily must be capable of 15
returning to their original shapes once forces bending those structures are 16
removed. (See, e.g., Reply Br. 17-18). Middleton’s preferred central 17
spindle 192 and portion 220 could be flexible and plastic. Consequently, the 18
central spindle 192 and the portion 220 are not inherently “resilient arms.” 19
Since the Examiner finds no other structure in Middleton which might 20
inherently correspond to the recited “at least one resilient arm,” Appellants 21
have shown that the Examiner erred in rejecting independent claim 9 and its 22
dependent claims 10-14 under § 102(b) as being anticipated by Middleton. 23
Independent claim 1 recites an oral cleansing device including a 24
double cam gear as well as upper and lower cam followers. The upper and 25
lower cam followers are each disposed in respective operative contact with 26
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the respective upper and lower cams of the double cam gear. The double 1
cam gear, by contact through the respective upper and lower cams, is 2
adapted to move the two cam followers in a linear fashion. 3
Gross discloses a toothbrush 8 including a brush head 12 supported by 4
a handle 10. Gross’ toothbrush 8 also includes a housing 2 and a sleeve 6 5
received in an open end 2a of a housing 2. The handle 10 passes into the 6
housing 2 through an opening 6b of the sleeve 6. Within the housing 2, an 7
end 10b of the handle 10 is pivotally connected to a disc 20 by an eccentric 8
pin 22. The disc 20 is fixed coaxially to a ring gear 16. (Gross, col. 2, 9
ll. 15-36 and fig. 1). When an electric motor 4 drives the ring gear 16 and 10
the disc 20 to rotate about their common axis, the handle 10 and the brush 11
head 12 oscillate. (Gross, col. 2, ll. 42-47). Figure 1 of Gross indicates that 12
the disc 20 is adapted to move the pin 22 in a circular fashion. 13
The Examiner identifies in Gross, the disc 20 with the gear recited in 14
claim 1 and the pin 22 with the cam follower recited in that claim. (Ans. 5). 15
The Examiner concludes that the term “the double-cam gear . . . adapted to 16
move the two cam followers in a linear fashion” in claim 1 does not require 17
that the double-cam gear be adapted to move the cam followers along a path 18
which is a straight line. Instead, the Examiner concludes that “any line in 19
any shape can be considered linear.” (Ans. 9). From this conclusion, the 20
Examiner infers that “ . . . the rotational movement of Gross can be 21
considered linear.” (Id.) Alternatively, the Examiner concludes that Gross 22
discloses linear movement of the handle 10 and brush head 12 in and out of 23
the housing 2 since the shaft and brush head rock back and forth in a 24
reciprocating manner. (Id.) 25
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Our reviewing court disfavors any claim interpretation which renders 1
a claim term superfluous. Stumbo v. Eastman Outdoors, Inc., 508 F.3d 2
1358, 1362 (Fed. Cir. 2007). If any path may be considered linear regardless 3
of its shape, then the term “adapted to move the two cam followers in a 4
linear fashion” ceases to limit the device of claim 1. The term “linear” 5
becomes superfluous. Consequently, any reasonable interpretation of the 6
term “adapted to move the two cam followers in a linear fashion” must be 7
limited to adaptations which move the previously recited cam followers 8
along a straight path. 9
Gross’ disc 20 causes the pin 22, as well as the end 10 of the handle 10
pivotally connected to the disc 20 by the pin 22, to move in a circular 11
fashion rather than a linear fashion. Therefore, assuming for purposes of 12
this appeal only that either the pin 22 or the end 10b of the handle 10 is a 13
cam follower, Gross does not disclose or suggest a gear adapted to move the 14
pin 22 or the end 10b of the handle 10 in a linear fashion. Likewise, the 15
Examiner provides no evidence or technical reasoning sufficient to provide 16
even a reasonable basis for belief that the handle 10 or the brush 12 moves in 17
a linear fashion. Therefore, even assuming for purposes of this appeal only 18
that either the handle 10 or the brush 12 corresponds to a cam follower 19
(which the Examiner does not conclude), Gross does not disclose or suggest 20
a gear adapted to move either the handle 10 or the brush 12 in a linear 21
fashion. 22
Caliendo describes a rotary toothbrush including a double-sided worm 23
gear 29 which transmits rotary motion to brushes through gears 23-28. 24
(Caliendo, col. 3, ll. 40-68). Lam discloses an electric toothbrush including 25
a gear train 12-16 for transmitting rotary motion from an electric motor 6 to 26
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a drive shaft 19. The drive shaft 19 includes a dogleg portion 33 received 1
within a slot in a bristle head 18 to cause the round bristle head 18 to 2
undergo rotary oscillation about an axis through a positioning shaft 20. 3
(Lam, col. 2, ll. 21-24 and 36-59; col. 3, ll. 1-22). The Examiner does not 4
explain, nor is it apparent to us, how the teachings of Caliendo and Lam 5
would have made up the deficiencies in the teachings of Gross. 6
The Examiner has not articulated reasoning with some rational 7
underpinning sufficient to support the conclusion that the subject matter of 8
independent claim 1, properly construed, would have been obvious from 9
Gross, Caliendo and Lam. The Appellants have shown that the Examiner 10
erred in rejecting independent claim 1 as well as dependent claims 3-8 under 11
§ 103(a) as being unpatentable over Gross, Caliendo and Lam. 12
Likewise, the Examiner does not explain, nor is it apparent to us, how 13
the teachings of Porper would have made up the deficiencies in the teachings 14
of Gross, Caliendo and Lam. The Appellants have shown that the Examiner 15
erred in rejecting claims 2 and 6, which depend from claim 1, under 35 16
U.S.C. § 103(a) as being unpatentable over Gross, Caliendo, Lam and 17
Porper. 18
19
DECISION 20
We REVERSE the Examiner’s decision rejecting claims 1-14. 21
22
REVERSED 23
24
25
26
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Klh 1
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