Ex Parte Kaweblum

Patent Trial and Appeal Board

Dec 22, 2014

11595098 (P.T.A.B. Dec. 22, 2014)

UNITED STATES PATENT AND TRADEMARKOFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
11/595,098 11/09/2006 Jonathan Kaweblum KL 749.001 6895
53437 7590 12/22/2014
ROBERT M. SCHWARTZ, P.A.
P.O. BOX 221470
HOLLYWOOD, FL 33022
EXAMINER
STEITZ, RACHEL RUNNING
ART UNIT PAPER NUMBER
3776
MAIL DATE DELIVERY MODE
12/22/2014 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
________________

Ex parte JONATHAN KAWEBLUM
________________

Appeal 2012-009260
Application 11/595,098
Technology Center 3700
________________

Before JENNIFER D. BAHR, BRANDON J. WARNER, and
LISA M. GUIJT, Administrative Patent Judges.

GUIJT, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Jonathan Kaweblum (Appellant) appeals under 35 U.S.C. § 134(a)
from the Examiner’s decision rejecting claims 14 and 15. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

Appeal 2012-009260
Application 11/595,098

2

THE CLAIMED SUBJECT MATTER
Claim 14, reproduced below, is representative of the subject matter of
this Appeal.
14. A skullcap comprising:
a. a material defining a dome shape with an inner surface,
an outer surface, and a circumferential edge;
b. at least two clips fastened to said inner surface of said
material and spaced apart substantially along an axis;
c. said clips each respectively having a faceplate and a
plurality of parallel members substantially perpendicular to said
faceplate and to said axis, said parallel members each having a
respective free end and a fixed end opposite said free end, said
fixed end being affixed to said faceplate, said clips being
disposed relative to one another such that said free ends of said
parallel members project from said axis in substantially the
same direction.

Appeal Br. 15, Claims App. (emphasis added).

THE REJECTION ON APPEAL
Claims 14 and 15 are rejected under 35 U.S.C. § 103(a) over
Perlsweig (US 6,079,419; iss. June 27, 2000), Wakisaka (US 2007/0131236
A1; iss. June 14, 2007), and Astrich (US 534,989; iss. Mar. 5, 1895).

ANALYSIS
The Examiner finds that Perlsweig discloses a skullcap with at least
two clips fastened to the inner surface of the material and spaced apart along
an axis” and that Wakisaka teaches clips having the claimed construction.
Ans. 5. The Examiner reasons, inter alia, that “[i]t would have been obvious
to one having ordinary skill in the art . . . to substitute Perlsweig’s hairclip
with the one taught by Wakisaka since such substitution would merely
constitute a substitution of functionally equivalent structures.” Id.
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Application 11/595,098

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The Examiner further finds that “Astrich discloses a hair fastening
means . . . [wherein] the fastening means is a device that grips and holds
tightly as defined by the term ‘clip.’” Id. at 6. The Examiner explains that
Astrich is “used as a teaching reference to show a hair fastening means that
has fastening members disposed relative to one another such that the free
ends of the substantially parallel members project form [sic] an axis in
substantially the same direction.” Ans. 6–7; see Astrich, Fig. 3. The
Examiner reasons that “[i]t would have been obvious to one having ordinary
skill in the art at the time the invention was made to modify the clips of
Perlsweig’s hairclip to point in a substantially same direction as shown by
Astrich in order to help secure the cap to the [wearer’s] hair with greater
ease and hold more securely.” Id. at 6.
Appellant argues that “[t]he Examiner improperly attempts to make
up for the deficiencies of Perlsweig and Wakisaka with Astrich.” Appeal
Br. 6. Regarding the Examiner’s findings, Appellant contends that “Astrich
discloses that the members of the pins are disposed at an angle relative to
one another (diverge from one another)” and therefore, Astrich does not
disclose clips or clips having parallel members. Id. at 7. Moreover,
Appellant argues that the Examiner erred by relying on Astrich’s Figure 3
alone to support the Examiner’s finding that Astrich teaches fastening
members with free ends projecting in the same direction. Id. at 8. Finally,
Appellant argues that Astrich’s “pins are not disposed on the hat in a
stationary position” but are “freely movable.” Reply Br. 3–4.
We are not persuaded by Appellant that the Examiner erred in finding
that Astrich discloses fastening members with their open ends, which trap
and engage hair strands, projecting in substantially the same direction. As
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Application 11/595,098

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noted by the Examiner, Wakisaka is relied upon for disclosing the specific
structure of the fastening members or clips, as claimed. With respect to the
Examiner’s reliance on Astrich’s Figure 3, a drawing teaches all that it
reasonably discloses and suggests to a person of ordinary skill in the art. See
In re Alsanian, 590 F.2d 911, 914 (CCPA 1979). Further regarding Astrich,
although the pins are slidably movable along the elastic in their respective
slots, Figure 3 depicts the pins with open ends for receiving or gripping hair
in substantially the same direction.
Regarding the Examiner’s rationale for the combination of teachings
used in the rejection, Appellant argues that the Examiner’s reasoning,
namely, “to modify the clips of Perlsweig’s hairclip to point in a
substantially same direction as shown by Astrich in order to help secure the
cap to the [wearer’s] hair” (Ans. 6), lacks rational underpinning and
impermissibly relies on hindsight. See Appeal Br. 9–10. Appellant argues
that “the adjustably affixed pins of Astrich do not provide any information
with respect to disposition of fixed clips as disclosed in Wakisaka and
Perlsweig.” Appeal Br. 9. Appellant, however, does not apprise us of any
error in the Examiner’s reasoning that it would have been obvious to modify
Perlsweig’s clips to point in the same direction as shown by Astrich’s Figure
3, in order to help secure the cap to the wearer’s hair with greater ease and
hold more securely, objectives recognized in the prior art and specifically by
Astrich. See Astrich, ll. 53–57.
Appellant has not presented separate arguments for the patentability
of claim 15, relying instead on the arguments for the patentability of claim
14, which are not persuasive as discussed supra. Accordingly, we sustain
the Examiner’s rejection of claims 14 and 15.
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Application 11/595,098

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DECISION
We AFFIRM the Examiner’s rejection of claims 14 and 15 under 35
U.S.C. § 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED

rvb