Ex Parte Huy et al

Patent Trial and Appeal Board

Aug 22, 2018

13098505 (P.T.A.B. Aug. 22, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/098,505 05/02/2011
45980 7590 08/24/2018
CHURCH & DWIGHT CO., INC.
Princeton North Technical Center
ATTN: PATENT GROUP
469 NORTH HARRISON STREET
PRINCETON, NJ 08543-5297
FIRST NAMED INVENTOR
Gerhart P. Huy
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.
99204 us 8918
EXAMINER
BERRY, STEPHANIE R
ART UNIT PAPER NUMBER
3723
NOTIFICATION DATE DELIVERY MODE
08/24/2018 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):
JANET.RUBINSTEIN@CHURCHDWIGHT.COM
PAUL.FAIR@CHURCHDWIGHT.COM
dorian.grumet@churchdwight.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Exparte GERHART P. HUY,
VIVEK M. PATEL, CHRISTOPHER B. KING,
ABDUL RAHMAN KADIR, and WILLIAM JAMES BABBS 1
Appeal2017-011068
Application 13/098,505
Technology Center 3700
Before JAMES P. CALVE, JEFFREY A. STEPHENS, and
NATHAN A. ENGELS, Administrative Patent Judges.
CAL VE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Office Action
finally rejecting claims 7-13 and 15-21. See Br. 4. We have jurisdiction
under 35 U.S.C. § 6(b).
We REVERSE.
1 Church & Dwight Co., Inc. is identified as the real party in interest. Br. 1.
Appeal 2017-011068
Application 13/098,505
CLAIMED SUBJECT MATTER
Claims 7 and 16 are independent. Claim 7 is reproduced below.
7. A toothbrush, comprising:
a handle portion having opposed first and second ends,
said handle portion designed to allow a user to grasp said
toothbrush when the toothbrush is in a teeth-cleaning operating
mode;
a head portion that is at least partially transparent or
translucent and that contains bristles;
a neck portion that is at least partially transparent or
translucent position between the first end of said handle portion
and said head portion;
a first housing that is at least partially transparent or
translucent extending from the first end of the handle portion
and into the neck portion;
a first light source disposed within said first housing;
a control circuit disposed within said handle portion
configured to control said first light source to interactively
switch said first light source from a first color to a second color
for a first predetermined time interval and a second
predetermined time interval, respectively;
a second housing that is at least partially transparent or
translucent extending from the second end of the handle
portion;
a second light source disposed within said second
housing; and
said control circuit configured to control said second
light source to interactively switch said second light source
from a first color to a second color for a first predetermined
time interval and a second predetermined time interval,
respectively.
Br. 17 (Claims App.) 2.
2 We herein refer to the Final Office Action, mailed Oct. 3, 2016 ("Final
Act."); Appeal Brief, filed Feb. 24, 2017 ("Br."); and the Examiner's
Answer, mailed June 6, 2017 ("Ans."). No Reply Brief has been filed.
2
Appeal 2017-011068
Application 13/098,505
REJECTIONS
Claims 7-12 and 15-20 are rejected under 35 U.S.C. § I03(a) as
unpatentable over Salmon (US 6,202,242 B 1, iss. Mar. 20, 2001 ), Misner
(US 2010/0050357 Al, pub. Mar. 4, 2010), and Ferber (US 6,954,961 B2,
iss. Oct. 18, 2005).
Claim 13 is rejected under 35 U.S.C. § I03(a) as unpatentable over
Salmon, Misner, Ferber, and Gatzemeyer (US 2008/0196185 Al, pub. Aug.
21, 2008).
Claim 21 is rejected under 35 U.S.C. § I03(a) as unpatentable over
Salmon, Misner, Ferber, and Holden (US 2004/0205915 Al, pub. Oct. 21,
2004).
ANALYSIS
Claims 7-12 and 15-20
Rejected Over Salmon, Misner, and Ferber
The Examiner finds that Salmon teaches a toothbrush, as recited in
independent claims 7 and 16, including head portion (brush head 106), neck
portion (toothbrush shaft 104), and a first housing (lampholder 118) that are
partially transparent or translucent, and lampholder 118 extends from a first
end of handle 102 to head portion 106 with lamp 120 therein. Final Act. 3.
The Examiner finds that Misner teaches a second housing as surfaces
that encase light source 60 in handle 15 including base 25 extending from a
second end of the handle. Id. at 3. The Examiner determines it would have
been obvious to include such a second housing and light source in Salmon to
improve lighting and brushing habits. Id. at 3--4. The Examiner illustrates
these findings with annotations added to identify the cited "Surfaces of
Second Housing" on Figure 2 of Misner, reproduced below. Ans. 4.
3
Appeal 2017-011068
Application 13/098,505
Surfaces of Secund
IJousim! .......
Figure 2 of Misner above is a section view of toothbrush 10 with first
light 65 and second light 60 positioned within handle portion 15 and base
portion 25 coupled to and extending from a second end of handle portion 15
with suction cup 35 included as part of base portion 25. Misner ,r,r 8, 11.
Appellants argue that Misner teaches light sources 60, 65 disposed in
the toothbrush handle and "nowhere teaches a separate housing extending
from a second end of its handle 15" as claimed. Appeal Br. 12. Appellants
argue that Misner "already teaches that the end of its toothbrush has a base
25 with a suction cup 35 attached thereto and an on/off button 40 positioned
therein" [ so that] "there remains no option in Misner to provide a separate,
different housing extending from the second end of the handle 15." Id.
We agree with the Examiner that Misner illustrates light source 60 as
encased in elements (unnumbered in Fig. 2) within handle portion 15 so that
light source 60 ( the second light source) may be considered to be disposed
within a second housing. However, this "housing" element in which light
source 60 is disposed is not "extending from the second end of the handle
portion" as claimed. Instead, base portion 25 is coupled to a second end of
handle portion 15 and includes suction cup 3 5 but no light. Misner ,r 8.
4
Appeal 2017-011068
Application 13/098,505
Both parties recognize and agree that the second end of handle portion
15 is located where base 3 5 and suction cup 3 5 attach to handle portion 15.
This understanding comports with an ordinary meaning of "end" which is
"the point where something ceases to exist" or "the extreme or last part
lengthwise: tip." Definition of end in Merriam-Webster online dictionary at
http://www.merriam-webster.com/dictionary/end (viewed Aug. 13, 2018).
This interpretation also is consistent with the Specification, which
discloses handle 120 as defining opposite ends 320, 340 with middle portion
360 therebetween. Spec. 6:3-10, Fig. 1. Second LED housing 440 attaches
to lower handle end 340 and "is sufficiently transparent to allow a user to
see the light emitted by the third and fourth LEDs 460 and 480." Id. at
7: 16-17. Notably, other than the portion required for attachment to handle
120, all of second housing 440, including the portion housing second dual
LED 500, extends from second end 340 of handle 120 in Appellants' Figures
1 and 2. Second dual LED 500 is disposed within second housing 440, as
claimed, and also extends from second end 340. Id. at 7:12-18, Figs. 1, 2.
To the extent the Examiner's findings are based on an interpretation
of the second housing extending from within the handle portion to beyond
the second end of the handle portion and including a light source within a
part of the housing that is within the handle portion, such an interpretation is
unreasonably broad and inconsistent with the language of claims 7 and 16
interpreted in light of the Specification. Consistent with the Specification,
we interpret this limitation to refer to a housing structure that extends from
the second end of the handle portion, and the second light source is disposed
within this second housing structure so that the second light source extends
from the second end of the handle portion.
5
Appeal 2017-011068
Application 13/098,505
Misner does not teach this configuration. Even if base 25 and suction
cup 3 5 are treated as a housing that extends from a second end of handle
portion 15, light 60 is not "disposed within said second housing" (base 25 or
suction cup 35), as claimed. Nor has the Examiner established that base 25
and suction cup 35 are at least partially transparent or translucent as claimed.
We agree with the Examiner that Misner' s handle portion 15 includes
substantially translucent and/or transparent materials. Misner ,r 8; see Final
Act. 3; Ans. 3. We find no comparable teachings in Misner that base 25 and
suction cup 3 5 are made of such materials. Figure 2 of Misner shows base
25 and suction cup 35 with different cross-hatching than handle portion 15.
The Examiner relies on Ferber to teach a control circuit as claimed
and not to teach a second housing and second light source. Final Act. 4--5.
Thus, we do not sustain the rejection of independent claims 7 and 16, or
their respective dependent claims 8-13, 15, 21, and claims 17-20.
Claim 13
Rejected Over Salmon, Misner, Ferber, and Gatzemeyer
The Examiner's reliance on Gatzemeyer to teach time intervals recited
in claim 13 does not cure the above-noted deficiencies of Salmon, Misner,
and Ferber as to claim 7, from which claim 13 depends. Thus, we do not
sustain the rejection of claim 13.
Claim 21
Rejected Over Salmon, Misner, Ferber, and Holden
The Examiner's reliance on Holden to teach vibration intensities of
the neck and handle portion recited in claim 21 does not cure the above-
noted deficiencies of Salmon, Misner, and Ferber as to claim 7, from which
claim 21 depends. Thus, we do not sustain the rejection of claim 21.
6
Appeal 2017-011068
Application 13/098,505
DECISION
We reverse the rejection of claims 7-13 and 15-21.
REVERSED
7