Ex Parte Huisinga et al

Patent Trial and Appeal Board

Jun 20, 2016

13315694 (P.T.A.B. Jun. 20, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/315,694 12/09/2011
27752 7590 06/22/2016
THE PROCTER & GAMBLE COMPANY
Global Patent Services - Legal IP
Central Building, CS
One Procter and Gamble Plaza
CINCINNATI, OH 45202
FIRST NAMED INVENTOR
Matthias Huisinga
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
Z-8496Q 3800
EXAMINER
NGUYEN, VIX
ART UNIT PAPER NUMBER
3731
NOTIFICATION DATE DELIVERY MODE
06/22/2016 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address( es):
centraldocket.im @pg.com
pair_pg@firsttofile.com
mayer.jk@pg.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MATTHIAS HUISINGA, RALF KLUG,
JUDITH VON DAHLEN, MICHAEL MAICHEL,
STEFAN SINDLINGER, and THOMAS STEINER
Appeal2014-006206
Application 13/315,694
Technology Center 3700
Before LINDA E. HORNER, THOMAS F. SMEGAL, and
LISA M. GUIJT, Administrative Patent Judges.
GUIJT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Matthias Huisinga et al. (Appellants)1 appeal under 35 U.S.C.
§ 134(a) from the Examiner's decision to reject claims 1-8. We have
jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM-IN-PART.
1 Appellants identify the real party in interest as The Proctor & Gamble
Company. Br. 1.
Appeal2014-006206
Application 13/315,694
THE CLAIMED SUBJECT MATTER
Claims 1 and 8 are the independent claims on appeal. Claim 1,
reproduced below, is illustrative of the subject matter on appeal.
1. An epilation head for an epilation device particularly for
plucking hair from human skin having a rotating cylinder
rotating around a rotational axis having a number of plucking
units for grasping and plucking out hair, wherein each plucking
unit comprises a movable clamping unit, a stationary clamping
unit, wherein the movable clamping unit and the stationary
clamping unit form a closable plucking gap, wherein the movable
clamping unit has a hair guiding device which is associated with
the movable clamping unit.
THE REJECTIONS
Claims 1, 5, 6, and 8 stand rejected on the ground of provisional
nonstatutory obviousness-type double patenting as unpatentable over claims
1, 6, 8, and 9 of U.S. Application No. 13/315,736.
Claims 1-5 and 8 stand rejected under 35 U.S.C. § 102(b) as
anticipated by Sanchez-Martinez (US 2007/0212923 Al; pub. Sept. 13,
2007).
Claims 1--4, 6, and 8 stand rejected under 35 U.S.C. § 102(b) as
anticipated by Oliveau (US 5,041,123; iss. Aug. 20, 1991).
Claims 6 and 7 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Sanchez-Martinez.
OPINION
Claims 1, 5, 6, and 8-Provisional Nonstatutory Obvious-type Double
Patenting
We summarily affirm the Examiner's rejection of claims 1, 5, 6, and 8
on the grounds of provisional nonstatutory obvious-type double patenting,
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Application 13/315,694
because Appellants chose not to present any arguments addressing the
Examiner's rejection.
Claims 1-5 and 8-Anticipation by Sanchez-Martinez
Regarding independent claims 1 and 8, the Examiner finds, inter alia,
that clamping device 8 (and particularly, first clamping element 10), as
disclosed in Sanchez-Martinez, corresponds to the claimed movable
clamping unit and that clamping structure 14, as disclosed in Sanchez-
Martinez, corresponds to the claimed hair guiding device. Final Act. 3--4.
Appellants argue that the Examiner's finding with respect to clamping
structure 14 of Sanchez-Martinez "is an inaccurate characterization of the
structure." Br. 2. Appellants submit that Sanchez-Martinez describes
clamping structure 14 as "a clamping structure not a hair guiding element,"
and that "[t]he stated purpose of [clamping structure 14 of Sanchez-
Martinez] is to provide an improved clamping performance not to guide or
direct hairs." Id.
The Examiner responds that clamping structure 14 of Sanchez-
Martinez "is capable of [being] used as a guide [or to] direct hairs,"
concluding that because clamping structure 14 engages the hair, clamping
structure 14 "has some kind of guiding element to guide or direct hair."
Ans. 6 (citing Sanchez-Martinez ,-i 27). The Examiner also finds that
"[t]here is nothing claimed which prohibits this interpretation of the prior
art" (id.), in that "the features upon which [Appellants] rel[y] (i.e., a hair
guiding device to guide or direct hairs) [is] not recited in the rejected
claim(s)" (Ans. 6).
Appellants' Specification describes a hair guiding device as "hav[ing]
any form suitable to guide hair," explaining that "[g]enerally, the hair
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Application 13/315,694
guiding device will guide hair in such [a] way, that it is directed into a
plucking gap." Spec. p. 3, 11. 7-10. Thus, the claim term "hair guiding
device" means a device that is suitable to guide (or direct in a way2) hair, for
example, into a desired position such as the plucking gap. The Examiner
erred in interpreting the claims as not requiring the hair guiding device to
guide hair, in that this functional limitation is implicit in the meaning of the
claim term.
Sanchez-Martinez discloses that first clamping element 10 tilts toward
and away from second clamping element 11, such that their contact surfaces
12, 13 are pressed against one another to clamp hairs. Sanchez-Martinez ,-i
23. Sanchez-Martinez further discloses that "[i]n order to prevent the hairs
from sliding out of the closed clamping device[] 8 during the plucking
process, a clamping structure 14 ... is provided in the region of the first
contact surface[] 12 of the first clamping element[] 10." Id. at ,-i 25.
Sanchez-Martinez is silent regarding clamping structure 14 functioning as a
device to guide hair, in addition to clamping or holding hair in place.
We do not agree with the Examiner that movement of clamping
element 10 to push (or arguably guide) hairs against clamping element 11
may be attributed to clamping structure 14 for guiding hairs, such that by
"engaging" hairs, clamping structure 14 "guides" hair. See Ans. 6. Instead,
clamping structure 14 (and specifically, the topography of clamping
structure 14) prevents hairs from sliding out of the closed clamping devices
8. See Id. at ,-i 25. Thus, the Examiner's interpretation of clamping structure
14 in Sanchez-Martinez as a hair guiding device is unreasonable. Further,
2 An ordinary definition of the term "guide" is "to direct in a way."
WEBSTER'S THIRD NEW INT'L DICTIONARY, 1009 (1993).
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Application 13/315,694
the Examiner does not provide sufficient factual support for the Examiner's
determination that clamping structure 14 is capable of guiding hair;
engagement alone as a result of movement of clamping element 11
functioning to clamp hair does not explain how clamping structure 14 is
capable of guiding hair.
Accordingly, we do not sustain the Examiner's rejection of
independent claims 1 and 8, and claims 2-5 depending therefrom, as
anticipated by Sanchez-Martinez.
Claims 1--4, 6, and 8-Anticipation by Oliveau
Regarding independent claims 1 and 8, the Examiner finds, inter alia,
that Oliveau's blade 9 corresponds to the claimed movable clamping unit,
and that Oliveau's end 9c of blade 9 corresponds to the claimed hair guiding
device. Final Act. 4.
Appellants argue, inter alia, that "9c is described as 'the other end' of
movable element 9," and as such, end of blade 9c "cannot also be the
claimed hair guiding element." Br. 2-3.
The Examiner responds that "element 9c of Oliveau [] is considered
as the hair guiding element since an opening under the disks 2 [is] arranged
and the hair is brought in contact between the area 9 and 9c," and "[t]hus,
[end 9c of blade 9] has some kind of guiding element to guide or direct
hair." Ans. 7.
Claims 1 and 8 recite that "the movable clamping unit has a hair
guiding device which is associated with the movable clamping unit." Br. 5,
6 (Claims App.). We agree with Appellants that because the hair guiding
device must be "associated with" the movable clamping unit, this claim
limitation requires that the hair guiding device is a separate and distinct
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structure from the movable clamping unit itself (although this claim
limitation does not preclude the hair guiding device from being integral with
the movable clamping unit). For example, the Specification describes hair
guiding devices as elevations or recesses, which may be attached to the top
of the moveable clamping unit. Spec., p. 3, 11. 12-25; Fig. 2 (recess 62).
Thus, the Examiner's finding that end 9c of blade 9 is a hair guiding device
associated with blade 9 (the movable clamping unit) is an error, because end
9c is simply the end of the movable clamping unit (blade 9) and not a
separate structure (even integral with end 9c) identified as "associated with"
the movable clamping unit.
Accordingly, we do not sustain the Examiner's rejection of
independent claims 1 and 8, and claims 2--4 and 6 depending therefrom, as
anticipated by Oliveau.
Claims 6 and 7- Obviousness over Sanchez-Martinez
Because we do not sustain the Examiner's rejection of independent
claim 1, we also do not sustain the Examiner's rejection of claims 6 and 7
depending therefrom, as obvious in view of Sanchez-Martinez.
DECISION
The Examiner's decision to reject claims 1, 5, 6, and 8 on the ground
of provisional nonstatutory obviousness-type double patenting is affirmed.
The Examiner's decision to reject claims 1-5 and 8 under 35 U.S.C. §
102(b) as anticipated by Sanchez-Martinez is reversed.
The Examiner's decision to reject claims 1--4, 6, and 8 under 35
U.S.C. § 102(b) as anticipated by Oliveau is reversed.
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The Examiner's decision to reject claims 6 and 7 under 35 U.S.C.
§ 103(a) over Sanchez-Martinez is reversed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § l.136(a). See 37 C.F.R.
§ l.136(a)(l )(iv).
AFFIRMED-IN-PART
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