Ex Parte Luxton

Board of Patent Appeals and Interferences

Aug 1, 2011

11337759 (B.P.A.I. Aug. 1, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
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.
11/337,759 01/23/2006 Richard Hart Luxton Z-03434C/4271 2737
7590 08/02/2011
Patent & Trademark Counsel
The Gillette Company
39th Floor
Prudential Tower Bldg.
Boston, MA 02199
EXAMINER
DEXTER, CLARK F
ART UNIT PAPER NUMBER
3724
MAIL DATE DELIVERY MODE
08/02/2011 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte RICHARD HART LUXTON
____________

Appeal 2010-002677
Application 11/337,759
Technology Center 3700
____________

Before SALLY G. LANE, RICHARD M. LEBOVITZ, and
SCOTT R. BOALICK, Administrative Patent Judges.

LEBOVITZ, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2010-002677
Application 11/337,759

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This is a decision on the appeal under 35 U.S.C. § 134 by the Patent
Applicant from the Patent Examiner’s rejections of claims 28-48 in U.S.
Application 11/337,759. The Board’s jurisdiction for this appeal is under 35
U.S.C. §§ 6(b). We affirm.

BACKGROUND
The claims are directed to a safety razor blade unit comprising a
plurality of main cutting edges and a “further cutting edge” at the rear of the
unit. The “further cutting edge” has a passage for “through flow of rinsing
water.” According to the patent application, the passage “allows effective
removal of soap and shaving debris from the underside of the blade so that
the performance of this blade will not be impaired by a space on the
underside of the blade clogging up.” (Spec. ¶ [008].)
The claims stand rejected by the Examiner as follows:
1. Claims 28-33 and 36 under 35 U.S.C. § 103(a) as obvious over
Brown1 in view of GP ‘486,2 Rodrigues,3 Meyer,4 Sellera,5 or Asano,6
2. Claims 34, 35, and 37-48 under 35 U.S.C. § 103(a) as obvious over
Brown in view GP ‘486, Rodrigues, Meyer, Sellera, or Asano, and further in
view of Apprille,7
3. Claims 28-33 and 36 under 35 U.S.C. § 103(a) as obvious over

1 U.S. Patent App. Pub. 2004/0055156 A1 published Mar. 25, 2004.
2 DE 3733486 A1 published Apr. 20, 1989.
3 U.S. Patent No. 2,048,565 issued July 21, 1936.
4 U.S. Patent No. 3,138,865 issued June 30, 1964.
5 U.S. Patent No. 4,077,119 issued Mar. 7, 1978.
6 U.S. Patent No. 4,265,015 issued May 5, 1981.
7 U.S. Patent No. 6,044,542 issued Apr. 4, 2000.
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Application 11/337,759

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Rozenkranc8 in view of GP ‘486, Rodrigues, Meyer, Sellera, or Asano; and
4. Claims 34, 35, 37-42, 43-45, and 46-48 under 35 U.S.C. § 103(a) as
obvious over Rozenkranc in view GP ‘486, Rodrigues, Meyer, Sellera, or
Asano, and further in view of Apprille.
Claim 28 is representative and reads as follows:
28. A safety razor blade unit comprising
an upper face, a bottom face, a front face and a rear face,
a plurality of cutting edges positioned between a first
guard surface and a first cap surface at the upper face, and
a further cutting edge positioned between a second guard
surface and a second cap surface at the rear face, a distance
between the first guard surface and the first cap surface,
measured in a plane tangential thereto, being greater than a
distance between the second guard surface and the second cap
surface, measured in a plane tangential thereto, and wherein a
passage for through flow of rinsing water connects a gap
between the further cutting edge and the second guard surface
with an opening at the bottom face.

DISCUSSION
The facts are not in dispute in this appeal. The Brown and
Rozenkranc publications were found by the Examiner to describe a safety
razor with almost all the features of the claimed safety razor blade unit, but
not with a rinse-through passage for the trimming blade (the “further cutting
edge”) as recited in claim 28 (Ans. 4 & 9). However, the Examiner found
this element to have been described in GP ‘486, Rodrigues, Meyer, Sellera,
and Asano. The Examiner determined it would have been obvious to
include a rinse-through passage for the trimming blade since “such passages

8 U.S. Patent No. 6,276,061 B1 issued Aug. 21, 2001.
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Application 11/337,759

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are old and well known” and have the “benefit” of “facilitating cleaning” of
the blade after shaving (Ans. 5 & 9-10).
Appellant contends that the concept of passages for “through flow of
rinsing water” was readily available to both Brown and Rozenkranc, but
neither “elected” to use a rinse-through passage for the additional trimming
blade (Br. 5 & 7). Rather, Appellant contends that each of Brown and
Rozenkranc utilized rinse-through passages for the primary blade, but not
the trimming blade (id.). Thus, Appellant argues the skilled worker would
have been led away from the idea of providing a rinse-through passage for
the trimming blade (id.).
Appellant also contends that a trimming blade would cut considerably
less hair than the main shaving blades, and that the benefit of a rinse-through
passage for it would not have been apparent to the ordinary skilled worker
(id.).
The fact that rinse-through passages were available to Brown and
Rozenkranc, but not utilized for their trimming blades does not constitute a
teaching away from the claimed subject matter. Appellant has not invoked
the proper standard of obviousness.
Under 35 U.S.C. § 103(a):
A patent may not be obtained though the invention is not
identically disclosed or described as set forth in section 102 of
this title, if the differences between the subject matter sought to
be patented and the prior art are such that the subject matter as a
whole would have been obvious at the time the invention was
made to a person having ordinary skill in the art to which said
subject matter pertains.
Thus, obviousness is determined through the eyes of “a person having
ordinary skill in the art.” The issue in these rejections is whether the
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ordinary skilled worker would have had reason to use a rinse-through
passage in the trimming blade of Brown and Rozenkranc, not whether
Brown or Rozenkranc individually made or suggested such a modification to
their invention.
The Examiner provided a logical and fact-based reason as to why the
skilled worker would have incorporated a rinse-through passage into the
trimming blade of Brown and Rozenkranc (Ans. 5 & 9-10). Appellant has
not identified disclosure in either publication that would have dissuaded the
skilled worker from having made such a modification, other than the fact
that rinse-through passages were available to Brown and Rozenkranc, but
not used by them for the trimming blade. Nor has the Appellant directed us
to other evidence that might show that the prior art taught away from the
modification. See Spectralytics, Inc. v Cordis Corp., 99 USPQ2d 1012,
1017 (Fed. Cir. 2011) (“It is indeed of interest if the prior art warned against
the very modification made by the patentee, but it is not the sole basis on
which a trier of fact could find that the prior art led away from the direction
taken by the patentee. Instead, the jury could find, based on the expert
testimony, that prior Swiss-style machines taught away from embracing
vibrations to improve cutting accuracy because all prior machines improved
accuracy by dampening vibrations [footnote omitted].”).
This, alone, is insufficient to rebut obviousness since an inventor is
free to describe the subject matter he or she regards as his invention with the
features he or she so chooses. There may be a variety of reasons as to why
Brown and Rozenkranc did not include a rinse-through passage for the
trimming blade, but without additional evidence, this omission is not
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Application 11/337,759

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sufficient basis to infer the nonobviousness of it, rather than some other
reason.
Appellant also contends that it would have not have been obvious to
have placed a rinse-through passage underlying the trimming blade because
it would accumulate considerable less hair than the main blades. This
argument is not persuasive. As long as there is some hair present, the blade
would require cleaning and the Examiner’s logic that a passageway would
facilitate cleaning still holds.
Obviousness rejections 1 and 3 of claim 28 are affirmed. Rejections 2
and 4 are affirmed for the reasons set forth by the Examiner. Claims 29-48
were not separately argued, and therefore fall together. 37 C.F.R. §
41.37(c)(1)(vii). See Br. 6 & 8.

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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