Ex Parte Huisinga et alDownload PDFPatent Trial and Appeal BoardJun 20, 201613315694 (P.T.A.B. Jun. 20, 2016) Copy Citation 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, 2 Appeal2014-006206 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 3 Appeal2014-006206 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). 4 Appeal2014-006206 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 5 Appeal2014-006206 Application 13/315,694 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. 6 Appeal2014-006206 Application 13/315,694 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 7 Copy with citationCopy as parenthetical citation