Ex Parte Lhoyer

Patent Trial and Appeal Board

Nov 7, 2016

12514473 (P.T.A.B. Nov. 7, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/514,473 05/12/2009 Patrick Lhoyer
22907 7590 11/09/2016
BANNER & WITCOFF, LTD.
1100 13th STREET, N.W.
SUITE 1200
WASHINGTON, DC 20005-4051
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.
008165.00048 1078
EXAMINER
STEITZ, RACHEL RUNNING
ART UNIT PAPER NUMBER
3776
NOTIFICATION DATE DELIVERY MODE
11/09/2016 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):
eofficeaction@bannerwitcoff.com
GPD@bannerwitcoff.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PA TRICK LHOYER
Appeal 2015-001259 1,2
Application 12/514,473
Technology Center 3700
Before HUBERT C. LORIN, PHILIP J. HOFFMANN, and
MATTHEWS. MEYERS, Administrative Patent Judges.
HOFFMANN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the final rejection of
claims 13, 15-23, and 25. We have jurisdiction under 35 U.S.C. § 6(b ).
We REVERSE.
According to Appellant, "[ t ]he invention relates to the field of
applicators for fluid or pasty products, particularly onto keratinous fibers,
typically applicators of cosmetic products such as mascaras." Spec. 1,
11. 6-7. Claims 13 and 21 are the only independent claims. See Br., Claims
1 Our decision references Appellant's Specification ("Spec.," filed May 12,
2009) and Appeal Brief ("Br.," filed June 30, 2014), as well as the
Examiner's Answer ("Answer," mailed Aug. 21, 2014).
2 According to Appellant, "[ t ]he real party in interest is AL CAN
PACKAGING BEAUTY SERVICES." Br. 3.
Appeal2015-001259
Application 12/514,473
App. Below, we reproduce claim 13, with formatting added, as
representative of the appealed claims.
Id.
13. A cosmetic product applicator comprising
a brush made up of fibers trapped between two twisted
arms extending in an axial direction and defining turns,
the arms on two adjacent turns being in contact on
a portion of a tum and the fibers being driven out on either
side of this portion of the tum.
REJECTIONS AND PRIOR ART
The Examiner rejects claims 13, 15, 18, 19, and21-23 under
35 U.S.C. § 102(b) as anticipated by Warner (US 5,609,398, iss. Mar. 11,
1997). 3
The Examiner rejects claims 16 and 17 under 35 U.S.C. § 103(a) as
unpatentable over Warren.
The Examiner rejects claims 20 and 25 under 35 U.S.C. § 103(a) as
unpatentable over Warren and Rousselet (US 7,089,946 B2, iss. Aug. 15,
2006).
See Answer 2--4.
ANALYSIS
Independent claim 13 recites "a brush made up of fibers trapped
between two twisted arms extending in an axial direction and defining turns,
the arms on two adjacent turns being in contact on a portion of a tum and the
3 Although the Answer refers to the rejection of claims 14 and 26, both of
these claims are canceled. See Answer 2; see also Br. 3.
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Appeal2015-001259
Application 12/514,473
fibers being driven out on either side of this portion of the tum." Br., Claims
App. Appellant argues the rejection is in error because Warner fails to
disclose the claimed brush. See id. at 6-12. Based on our review, we
determine that the Examiner does not establish, based on substantial
evidence, that Warner discloses the claimed brush with "the arms on two
adjacent turns being in contact on a portion of a tum and the fibers being
driven out on either side of this portion of the tum." The Examiner finds
that Warner's Figure 1, column 4, lines 5-12, column 2, lines 27-28, and
column 6, lines 1-3 teach the brush as set forth above. See Answer 2, 5.
But, we find that none of these portions of Warner shows or describes the
claimed brush. Warner's Figure 1 shows legs 27 and 28 in contact with one
another on a tum on a stem of the tool, but does not show fibers driven out
on either side of the tum. See Warner Figure 1. The cited portion of
column 4 describe this contact between legs 27 and 28. See id. at col. 4,
11. 5-12. Column 2 describes that during manufacture of the tool the
clamping fixture distributes a force over the interface between the legs and
the bristles---contrary to the Examiner's finding, this portion does not
describe anything about contact between legs 27 and 28 where bristles 21
are disposed between the legs. See id. at col 2, 11. 24--29; see also Answer 5.
Finally, Warner's column 6 describes swaging the legs together. See Warner
col. 6, 11. 1-3. Thus, after reviewing the above and other portions of Warner,
it appears that Warner is a tool in which only a stem portion, which is on the
end of the tool and does not have bristles on either side, includes arms that
contact one another.
Based on the foregoing, we do not sustain the anticipation rejection of
independent claim 13. Further, we do not sustain the anticipation rejection
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Appeal2015-001259
Application 12/514,473
of claims 15, 18, and 19 depending from claim 13. Still further, we do not
sustain the anticipation rejection of independent claim 21, which includes a
limitation similar to that discussed above with respect to claim 13, or the
anticipation rejection of claims 22 and 23 depending from claim 21. Finally,
because the Examiner does not establish that any other reference remedies
the rejection of the independent claims, we do not sustain the obviousness
rejections of dependent claims 16, 17, 20, and 25.
DECISION
We REVERSE the Examiner's anticipation and obviousness
rejections of claims 13, 15-23, and 25.
REVERSED
4