Ex Parte Lokken

Board of Patent Appeals and Interferences

Jun 29, 2010

10975064 (B.P.A.I. Jun. 29, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte JEFFERY LOKKEN
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Appeal 2009-014073
Application 10/975,064
Technology Center 1600
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Decided: June 29, 2010
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Before DONALD E. ADAMS, MELANIE L. McCOLLUM, and
STEPHEN WALSH, Administrative Patent Judges.

ADAMS, Administrative Patent Judge.

DECISION ON APPEAL
This appeal under 35 U.S.C. § 134 involves claims 1-24. Pending
“[c]laims 25-32 have been withdrawn from consideration as being drawn to
a non-elected invention” (App. Br. 2). We have jurisdiction under 35 U.S.C.
§ 6(b).
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STATEMENT OF THE CASE
The claims are directed to a tooth whitening product. Claim 1 is
illustrative:
1. A tooth whitening product comprising:
a dissolving strip for tooth whitening, said strip comprising: at least a
first tooth contacting layer and second outer layer, said first tooth contacting
layer comprising a solid tooth whitening active in an amount which reacts
within a predetermined time when placed on a tooth; said second outer layer
comprising a blend of polymers having different molecular weights, the
blend of polymers being selected to dissolve after said predetermined time
has elapsed, wherein said outer layer contains said tooth whitening active on
said tooth until said active is substantially used up; and
an openable package, said strip being packaged in said package.

The rejections presented by the Examiner follow:
1. Claims 1-8, 12, 13, 17-20, and 24 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over the combination of Prosise1 and Wiesel2.
2. Claims 9, 10, and 21-23 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Prosise, Wiesel, and Singh3.
3. Claim 11 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
the combination of Prosise, Wiesel, Singh, and Chen4.
4. Claims 14-16 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over the combination of Prosise, Wiesel, and Xu5.
We affirm.

1 Prosise et al., US 2004/0086468 A1, published May 6, 2004.
2 Wiesel, US 6,343,932 B1, issued February 5, 2002.
3 Singh et al., US 2003/0152528 A1, published August 14, 2003.
4 Chen, US 2003/0044361 A1, published March 6, 2003.
5 Xu et al., US 6,419,903 B1, issued July 16, 2002.
Appeal 2009-014073
Application 10/975,064

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Prosise and Wiesel:
ISSUE
Does the preponderance of evidence on this record weigh in favor of
the Examiner’s conclusion of obviousness?
ANALYSIS
The claims have not been argued separately and therefore stand or fall
together. See 37 C.F.R. § 41.37(c)(1)(vii). Upon consideration of the
evidence on this record and each of Appellant’s contentions and the
Examiner’s response thereto, we find no error in the Examiner’s conclusion
that claim 1 would have been obvious over the combination of Prosise and
Wiesel. Accordingly, we sustain the Examiner’s rejection for the reasons set
forth in the Answer, which we incorporate herein by reference.
CONCLUSION OF LAW
The preponderance of evidence on this record weighs in favor of the
Examiner’s conclusion of obviousness. The rejection of claim 1 under 35
U.S.C. § 103(a) as unpatentable over the combination of Prosise and Wiesel
is affirmed. Claims 2-8, 12, 13, 17-20, and 24 fall together with claim 1.

Prosise, Wiesel, and Singh:
ISSUE
Does the preponderance of evidence on this record weigh in favor of
the Examiner’s conclusion of obviousness?
ANALYSIS
The claims have not been argued separately and therefore stand or fall
together. See 37 C.F.R. § 41.37(c)(1)(vii). Appellant contends that Singh
fails to make up for the deficiency in the combination of Prosise and Wiesel
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(App. Br. 14). Having found no error in the combination of Prosise and
Wiesel we are not persuaded by Appellant’s contention.
CONCLUSION OF LAW
The preponderance of evidence on this record weighs in favor of the
Examiner’s conclusion of obviousness. The rejection of claim 9 under 35
U.S.C. § 103(a) as unpatentable over the combination of Prosise, Wiesel,
and Singh is affirmed. Claims 10 and 21-23 fall together with claim 9.

Prosise, Wiesel, Singh, and Chen:
ISSUE
Does the preponderance of evidence on this record weigh in favor of
the Examiner’s conclusion of obviousness?
ANALYSIS
Appellant contends that Chen fails to make up for the deficiency in
the combination of Prosise, Wiesel, and Singh (App. Br. 15). Having found
no error in the combination of Prosise, Wiesel, and Singh we are not
persuaded by Appellant’s contention.
CONCLUSION OF LAW
The preponderance of evidence on this record weighs in favor of the
Examiner’s conclusion of obviousness. The rejection of claim 11 under 35
U.S.C. § 103(a) as unpatentable over the combination of Prosise, Wiesel,
Singh, and Chen is affirmed.

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Prosise, Wiesel, and Xu:
ISSUE
Does the preponderance of evidence on this record weigh in
favor of the Examiner’s conclusion of obviousness?
ANALYSIS
The claims have not been argued separately and therefore stand or fall
together. See 37 C.F.R. § 41.37(c)(1)(vii). Appellant contends that Xu fails
to make up for the deficiency in the combination of Prosise and Wiesel
(App. Br. 16). Having found no error in the combination of Prosise and
Wiesel we are not persuaded by Appellant’s contention.
Appellant also contends that one of ordinary skill in the art would not
have combined Xu with Prosise and Wiesel, because Xu is directed to a
breath freshener not teeth whitening (App. Br. 16). We are not persuaded
for the reasons set forth in the Answer.
CONCLUSION OF LAW
The preponderance of evidence on this record weighs in favor of the
Examiner’s conclusion of obviousness. The rejection of claim 14 under 35
U.S.C. § 103(a) as unpatentable over the combination of Prosise, Wiesel,
and Xu is affirmed. Claims 15 and 16 fall together with claim 14.

Appeal 2009-014073
Application 10/975,064

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TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED

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