Ex Parte Meijer et alDownload PDFPatent Trial and Appeal BoardJul 31, 201813501988 (P.T.A.B. Jul. 31, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/501,988 04/13/2012 Hans Meijer 24737 7590 08/02/2018 PHILIPS INTELLECTUAL PROPERTY & STANDARDS 465 Columbus A venue Suite 340 Valhalla, NY 10595 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. 2009P01589WOUS 7576 EXAMINER MACFARLANE, EV ANH ART UNIT PAPER NUMBER 3724 NOTIFICATION DATE DELIVERY MODE 08/02/2018 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): patti. demichele@Philips.com marianne.fox@philips.com katelyn.mulroy@philips.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte HANS MEIJER and OEGE SMEDINGA Appeal2017-008826 Application 13/501,988 Technology Center 3700 Before JOHN C. KERINS, EDWARD A. BROWN, and ANNETTE R. REIMERS, Administrative Patent Judges. KERINS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Hans Meijer and Oege Smedinga ("Appellants") appeal under 35 U.S.C. § 134(a) from the Examiner's final decision rejecting claims 3-11. We have jurisdiction under 35 U.S.C. § 6(b ). We AFFIRM. Appeal2017-008826 Application 13/501,988 CLAIMED SUBJECT MATTER Appellants' invention relates to a shaver comprising a shaving head unit having at least two shaving elements. Spec. 1, 11. 2-3, 14. Claims 10 and 11 are independent. Claim 10 is illustrative of the claimed invention and reads as follows: 10. A shaver including a shaving head comprising at least first and second shaving elements, each of said shaving elements including: a. a cap having a plurality of openings for receiving hairs to be cut off; b. a cutter member connected to a pivot pin and including a plurality of cutters arranged for cutting off hairs extending through the openings of the cap when said cutter member is rotated around an axis of said pivot pin; c. a base portion including a drive shaft for coupling to the pivot pin to rotatably drive the cutter member, the cap being pivotably connected to the base portion to enable movement of the cap to a closed position in which the pivot pin is coupled to the drive shaft and retains cut off hairs within a hair-receiving space of the shaving element and to an open position in which the cutter member and cut-off hairs can be removed from the shaving element; and d. a support member disposed so as to be pivotably movable between the cap and the base portion, while remaining attached to the shaving head, and including a latch member for detachably latching the support member to the cap, said support member: being configured to retain the cutter member in the cap when in a latched position and to removably hold the cutter member in the shaving head when in an unlatched position; having at least one opening positioned for facilitating passing of the cut-off hairs into the hair- receiving space; and 2 Appeal2017-008826 Application 13/501,988 including a first annular portion shaped for automatically positioning the pivot pin to align with the drive shaft when the support member is in the latched position and the cap is pivoted from the open position to the closed position. THE REJECTIONS The Examiner has rejected: (i) claims 3-7 and 9-11 under 35 U.S.C. § I03(a) as being unpatentable over Schneider (WO 2008/010139 Al, published Jan. 24, 2008) in view of Shimizu (US 2009/0320295 Al, published Dec. 31, 2009), as evidenced by Vaes (US 2,952,909, issued Sept. 20, 1960); (ii) claim 8 under 35 U.S.C. § I03(a) as being unpatentable over Schneider in view of Shimizu and Bijl (US 4,257,161, issued Mar. 24, 1981 ); (iii) claims 3-7 and 9-11 under 35 U.S.C. § I03(a) as being unpatentable over Schneider in view of Shimizu and Vaes; and (iv) claim 8 under 35 U.S.C. § I03(a) as being unpatentable over Schneider in view of Shimizu, Vaes, and Bijl. Claim 11 was objected to because of an informality in the Final Office Action. Final Act. 2. Appellants amended claim 11 in an Amendment filed subsequent to the Final Office Action and that Amendment was entered in an Advisory Action dated November 15, 2016. As such, the objection to claim 11 appears to be moot, notwithstanding that the Examiner's Answer does not identify this objection as having been withdrawn. 3 Appeal2017-008826 Application 13/501,988 ANALYSIS Claims 3-7 and 9-11--0bviousness--Schneider/Shimizu The Examiner finds that Schneider discloses a shaving head comprising a cap 7, a cutter member 9, a base portion ( outer housing 25), and a support member ( cutter member holder 10). Final Act. 2--4 ( citing Schneider, Figs. 2, 6-8). The Examiner acknowledges that Schneider does not disclose that the support member is pivotably movable between the cap and the base portion. Id. at 4. The Examiner relies on Shimizu as disclosing a support member ( cutter retaining plate 26) that is pivotably movable relative to a cap (cutter circumferential rim 24). Id. at 5 (citing Shimizu ,r 37); see also id. at Fig. 7 A. The Examiner concludes that it would have been obvious to modify the shaving head of Schneider to include a support member of Shimizu to allow easily separating a cutter member for easy cleaning. Id. at 6. Appellants contend that the Examiner's use of "the term [']pivotable support member['] of Shimizu is mis-descriptive" and that "[ m Jore correctly, the part referred to is a detachable cutter retaining plate and it does not perform any pivotable function." Appeal Br. 13 (emphasis omitted; citing Shimizu ,r 33). The Examiner responds that the broadest reasonable interpretation of "pivot" includes "to tum on or as if on a pivot." As described at paragraph 37 of Shimizu, the support member "26" of Shimizu is first engaged to the cap "24" via lug "50", and then the latch "52" of the support member "26" is engaged with the cap "24". As can be seen in Fig. 3, if the lug "50" is engaged with the cap "24" and the latch "52" is not engaged with the cap "24", then the support member "26" is angled relative to the cap "24". Then, if latch "52" is brought into engagement with the cap "24", the 4 Appeal2017-008826 Application 13/501,988 support member "26" must be turned relative to an axis at lug "50". This turning motion of the support member "26" falls within the broadest reasonable interpretation of "pivoting". Ans. 15. Appellants have the better position. Figure 7B of Shimizu shows that lug 50 allows the cutter retaining plate 26 to be held in place at one end of the cutter circumferential rim 24. See Shimizu, Fig. 7B, ,r 36. Thus, the lug 50 acts as a cantilever. The turning motion or movement of the cutter retaining plate 26 as its latch moves into engagement with cap 24, or the reverse of that movement, is effected by deformation of the cutter retaining plate material, and not by pivoting some portion of the retaining plate about a pivot axis. Thus, the Examiner's finding that Shimizu discloses "a support member disposed so as to be pivotably movable between the cap and the base portion" as claimed, is not supported by the evidence. The Examiner additionally takes the position that Figure 1 of Vaes evidences that "pivoting is required when one end of a support member 6 is engaged with a cap 2 until the opposing end of the support member 6 is also engaged with the cap 2." Final Act. 5. Notwithstanding the Examiner's position that Vaes discloses a support member that is pivotably movable, Vaes does not evidence that Shimizu's support member is pivotably movable. Accordingly, the Examiner has not established a prima facie case of obviousness directed to claims 10 and 11, over Schneider in view of Shimizu. The rejection of claims 10 and 11, and claims 3-7 and 9 depending therefrom, is not sustained. 5 Appeal2017-008826 Application 13/501,988 Claim 8--0bviousness--Schneider/Shimizu/Bijl The Examiner does not rely on Bijl in any manner that would remedy the above-noted deficiency in the rejection of claim 11, from which claim 8 indirectly depends, over Schneider and Shimizu. Final Act. 6-7. For the same reasons discussed supra, we do not sustain the rejection of claim 8 as being unpatentable over Schneider, Shimizu, and Bijl. Claims 3-7 and 9-11--0bviousness--Schneider/Shimizu/Vaes Appellants argue claims 3-7 and 9-11 as a group. See Appeal Br. 22- 24; see also Reply Br. 32-34. We take claim 10 as representative of this group, and claims 3-7, 9, and 11 stand or fall with claim 10. The Examiner finds that Schneider discloses a shaving head including at least first and second shaving elements 6, each shaving element comprising a cap 7, a cutter member 9, a base portion (outer housing 25), and a support member ( cutter member holder 10). Final Act. 7-8 ( citing Schneider, Figs. 2, 6-8). The Examiner further finds that Schneider discloses that the base portion includes a drive shaft ( coupling member 18) for coupling to a pivot pin to rotatably drive the cutter member. Id. at 8. The Examiner additionally finds that the cap in Schneider is pivotably connected to the base portion to enable movement of the cap to (1) a closed position in which a pivot pin is coupled to the drive shaft and in which cut off hairs are retained within a hair-receiving space 24 of the shaving element, and to (2) an open position in which the cutter member and cut-off hairs can be removed from the shaving element. Id. ( citing Schneider, Figs. 2, 6). The Examiner also finds that Schneider discloses that the support member ( cutter member holder 10) is disposed between the cap and the base 6 Appeal2017-008826 Application 13/501,988 portion while remaining attached to the shaving head, with the support member being capable of retaining the cutter member in the cap, and that the support member has at least one opening positioned to facilitate passing of the cut-off hairs into the hair receiving space, with the cap being pivotable from an open position to a closed position. Id. at 9 ( citing Schneider, Figs. 2, 6-8). The Examiner acknowledges that Schneider does not disclose that: (i) the support member is pivotally movable between the cap and the base portion; (ii) the support member includes a latch member for detachably latching the support member to the cap; (iii) the support member is capable of retaining the cutter member in the cap when in a latched position and of removably holding the cutter member in the shaving head when in an unlatched position; and (iv) the support member includes a first annular portion shaped for automatically positioning the pivot pin to align with the drive shaft when the support member is in the latched position and the cap is pivoted from the open position to the closed position. Id. The Examiner relies on Shimizu as disclosing: (i) a support member ( cutter retaining plate 2 6) that is movable relative to a cap ( cutter circumferential rim 24); (ii) that the support member includes a latch member (hook 52) capable of detachably latching the support member to the cap; (iii) that the support member is capable of retaining a cutter member (inner cutter 28) in the cap when in a latched position and of removably holding the cutter member in the shaving head when in an unlatched position; and (iv) that the support member includes a first annular portion ( defining inner opening 2 6a) shaped to provide the ability to automatically position a pivot pin (inner cutter shaft 30) to align with a drive shaft (inner 7 Appeal2017-008826 Application 13/501,988 cutter drive shaft 5 6) when the support member is in the latched position and the cap is moved from a detached position to an attached position. Id. at 9-- 10 (citing Shimizu, Figs. 3, 7A, ,r,r 36, 37); see also Shimizu, Figs. 2, 7B. The Examiner concludes that it would have been obvious to modify the shaving head of Schneider to have the internal shaving element structures of Shimizu to allow for easily separating the cutter member for easy cleaning. Id. at 11. The Examiner relies on V aes as disclosing a support member (U- shape spring/member keeper 6) that is pivotably movable relative to a cap ( cutting plate 2) with the support member being pivoted from an unlatched position to a latched position. 1 Id. (citing Vaes, Figs. 1-2, col. 1, 11. 32-35, col. 2, 11. 7-10). The Examiner concludes that it would have been obvious to substitute the pivoting connection structure of the Vaes support member for the connection structure resulting from modifying the shaving head of Schneider in view of Shimizu, to provide a support member that can be moved between a latched cutter member retaining position and an unlatched cutter member releasing position by pivoting movement. Id. at 11-12. The Examiner explains that the shaving head of Schneider as modified by the teachings of Shimizu and V aes would yield a support member that is pivotably movable between the cap and the base because the support member in Schneider is located between the cap and the base and, with the proposed modifications, is to be pivotable relative to the cap. Id. at 12. 1 In this ground of rejection that specifically relies on Vaes as well as Schneider and Shimizu, the Examiner does not rely on a finding that Shimizu teaches a supporting member that is pivotably movable between a cap and a base. Final Act. 11; see also id. at 7. 8 Appeal2017-008826 Application 13/501,988 Appellants contend that Schneider does not disclose the limitation "a base portion including a drive shaft for coupling to the pivot pin to rotatably drive the cutter member, the cap being pivotably connected to the base portion to enable movement of the cap to a closed position in which the pivot pin is coupled to the drive shaft." Appeal Br. 8; 2 see also Reply Br. 8. More particularly, Appellants argue that the Examiner incorrectly finds that coupling member 18 of Schneider is a drive shaft as claimed, but rather, the drive shaft in Schneider is element 17, and thus, the limitations associated with the drive shaft are not met by Schneider. Appeal Br. 8. Appellants' contentions are unpersuasive. As the Examiner advises, coupling member 18 of Schneider engages with and drives the rotation of cutter member 9. Ans. 13 (citing Schneider 10, 11. 20-26). The Examiner takes the position, with which we agree, that elements 17 and 18 in Schneider collectively can be considered a drive shaft. Id. In terms of the coupling member 18 meeting other limitations required of the drive shaft, the coupling member is coupled to cutter member 9 when the cap is in a closed position. Id. We thus determine that the Examiner reasonably finds that coupling member 18 of Schneider corresponds to the claimed drive shaft. Appellants point out that Schneider's shaving head has a pivotably- openable cap, whereas Shimizu's shaving head has components that are held together by a hook and then coupled to a shaving head. Appeal Br. 10. As 2 A substantial number of Appellants' arguments against the rejection of the claims as being unpatentable over Schneider, Shimizu, and Vaes are presented in their arguments against the rejection of the claims as being unpatentable over Schneider and Shimizu. See Appeal Br. 22. 9 Appeal2017-008826 Application 13/501,988 such, Appellants argue that an ordinary artisan would not look to Shimizu for improving the shaving head of Schneider. Id.; see also id. at 12-13; Reply Br. 12. This contention is in the vein of arguing that Shimizu is nonanalogous art, and is unpersuasive. Both Schneider and Shimizu are in the same field of endeavor as the claimed invention. Appellants do not provide evidence or adequate technical reasoning showing that any particular features disclosed by Shimizu, and particularly those relied on by the Examiner, would be inappropriately considered for possible use in modifying the shaving head of Schneider. Appellants contend that the Examiner does not provide any clear articulation of reasons for the modification of Schneider's shaving head, and instead makes conclusory statements without any rational underpinning. Appeal Br. 11-12; 3 see also id. at 12-13; Reply Br. 13-15. This argument is unavailing. The Examiner concludes that it would have been obvious to modify the shaving head of Schneider to have the identified internal shaving elements of Shimizu to allow for easily separating the cutter member from the unit for easy cleaning. Final Act. 11; see also Ans. 14 ( citing Shimizu ,r 21 ). Whereas Schneider does not allow for readily separating its support member from its cap, once pivoted away from the shaving head, Shimizu discloses the desirability of doing so. Ans. 14. 3 We note that any of Appellants' intimations that Shimizu does not disclose a pivotable support member are unconvincing because, in this rejection, the Examiner does not consider Shimizu as disclosing that feature. See, i.e., Appeal. Br. 12; see also Appeal Br. 13 as discussed further below. 10 Appeal2017-008826 Application 13/501,988 Accordingly, the Examiner proposes to modify Schneider to have a support member that may be attached and detached from its cap as desired. Id. To the extent that Appellants are simply contending that the Examiner does not explain the proposed modification in a step-by-step manner, that contention is unavailing. We agree with the Examiner that an ordinary artisan is not an automaton, and that the proposed modification is within the level of skill in the art. Appellants contend that the proposed modification of Schneider in view of Shimizu is not a simple substitution but would require substantial modification. Appeal Br. 13. Appellants offer no discussion as to why this would be the case. Appellants additionally contend that: (1) Shimizu does not disclose the limitation "a support member disposed so as to be pivotably movable between the cap and the base portion, while remaining attached to the shaving head" (id. at 15-16 (emphasis omitted)); (2) Shimizu does not disclose the limitation "a latch member for detachably latching the support member to the cap" which requires the support member remaining attached to the shaving head (id. at 16-17 ( emphasis omitted)); and (3) Shimizu does not disclose the limitation "said support member being configured to ... removably hold the cutter member in the shaving head when in an unlatched position" (id. at 17-18 (emphasis omitted)). See also Reply Br. 21-36. These contentions are unavailing. As for (1) and (2) above, in this ground of rejection, Shimizu is not relied upon as a support member that is pivotable. Rather, Vaes is cited for this limitation. See Ans. 16-17, 19. Further, although Appellants are correct that removal of a cutting member in the Shimizu construction requires the Shimizu support member ( cutter 11 Appeal2017-008826 Application 13/501,988 retaining plate 26) to be separated from the shaving head (cutter circumferential rim 24), this is a feature provided in the Schneider construction, in which a support member ( cutter member holder 10) may be exposed by the pivoting of the cap, yet remains attached to a shaving head. See Schneider, Fig. 5. As for (3) above, the shaving head of Schneider as modified based on the teachings of Shimizu and Vaes would result in a shaving head having all of the limitations at issue, and would be essentially the same structure as Appellants' disclosed embodiment. Thus, to the extent that Appellants' support member is capable of holding a cutter member in a shaving head when in an unlatched position (seemingly by gravitational force), so too is the modified Schneider construction, as shown in Appellants' Figure 5. See Ans. 17; see also Appellants' Fig. 4. Appellants contend that Shimizu does not disclose the limitation directed to the support member "including a first annular portion shaped for automatically positioning the pivot pin to align with the drive shaft when the support member is in the latched position and the cap is pivoted from the open position to the closed position." Appeal Br. 19 ( emphasis omitted). Appellants argue that Shimizu discloses a two part alignment in which the cutter assembly 20 must be closed and latched whereas the limitation requires that the support member is capable of providing alignment when cap is pivoted from an open position to a closed position. Id. at 20. This argument is unpersuasive. As the Examiner advises, Appellants again attack Shimizu individually. Ans. 17-18. As discussed above, Schneider discloses a cap that is pivotable from an opened position to a closed position. Further, Shimizu discloses that its cutter retaining plate 26 12 Appeal2017-008826 Application 13/501,988 comprises an inner opening 26b that aligns its components within the cap. See Shimizu, Figs. 3, 7 A-7B. Schneider's shaving head as modified by the teachings of Shimizu would have an annular portion of the support member that performs the recited function, i.e., providing alignment when the cap is pivoted from an open position to a closed position. Ans. 17-18. Turning to Appellants' arguments directed to the V aes reference, Appellants contend that the keeper member 6 does not pivot from an unlatched position to a latched position but rather moves from a partly opened position to a completely open position. Appeal Br. 23-24; see also Reply Br. 20, 33-34. Appellants mischaracterize the operation of the V aes structure, in failing to recognize that it has a closed position in addition to a partly open position and a completely open position. As the Examiner explains, the keeper member 6 of Vaes is in a latched position when it is horizontal and parallel to keeper member 7 and engaged with groove-like retaining means 12 as shown in Figure 2. Ans. 18-19. Thus, Vaes discloses that the keeper member 6 can pivot from an unlatched position ( completely or partially open) to a latched position. We further note that, even if we were to credit Appellants' contention that Vaes does not disclose a latching feature, Shimizu discloses a latching feature as discussed above. As discussed above, the Examiner concludes that it would have been obvious to substitute the lug-and-slot connection structure resulting from the modification of the Schneider shaving head to include the latching support member of Shimizu, with a pivoting connection structure as taught by Vaes to provide a support member that can be moved by pivoting between a latched cutter member retaining position and an unlatched cutter member 13 Appeal2017-008826 Application 13/501,988 releasing position. Final Act. 11-12. The Examiner does not suggest replacing Schneider's cap 7, cutter member 9, and cutter member holder 10 with Shimizu's cutter assembly 20 as Appellants appear to believe. See Reply Br. 16-17. Appellants argue that the V aes arrangement4 is not relevant to either the shaving head of Schneider or the shaving head of Shimizu because in each, any or all of the multiple cutter assemblies are opened independently of the other(s). Id. at 14; see also Reply Br. 19. As the Examiner advises, V aes' keeper member 6 corresponds to the claimed support member and retains a cutter member in a cap. Ans. 16. The Examiner explains that, as the keeper member 6 is pivotable from a position retaining a cutter member to a position that permits removal of the cutter member, Vaes is relevant to the shaving heads of Schneider and Shimizu. Id. In the Reply Brief, Appellants contend, for the first time, that Schneider does not disclose the limitations "a cutter member connected to a pivot pin" and "a base portion including a drive shaft for coupling to the pivot pin," because the Examiner incorrectly refers to the center of Schneider's cutter member 9 as a pivot pin. Reply Br. 9; see also id. at 18. 4 We note Appellants' traversal of the Examiner's position that Vaes evidences that pivoting is required for a support member. See Appeal Br. 14. However, that contention is relevant to the combination of Schneider and Shimizu and is not relevant to the combination of Schneider, Shimizu and Vaes because the Examiner does not take the same position. See Final Act. 7-12. 14 Appeal2017-008826 Application 13/501,988 This argument was not raised in the Appeal Brief, and does not appear to be responsive to any new finding or argument set forth in the Examiner's Answer. 5 As stated in 37 C.F.R. § 4I.41(b)(2): Any argument raised in the reply brief which was not raised in the appeal brief, or is not responsive to an argument raised in the examiner's answer, including any designated new ground of rejection, will not be considered by the Board for purposes of the present appeal, unless good cause is shown. (Emphasis added). The argument fails to qualify under any of these conditions, and, accordingly, it will not be considered in the present appeal. In light of the above, none of Appellants' contentions apprise us of error in the obviousness rejection over Schneider, Shimizu, and Vaes. The rejection of claim 10 is sustained, and claims 3-7, 9, and 11 fall with claim 10. Claim 8--0bviousness--Schneider/Shimizu/Vaes/Bijl Appellants do not provide any substantive arguments for claim 8, and rely on the arguments presented for claims 10 and 11. See Appeal Br. 25; Reply Br. 37. For the reasons discussed above with respect to claim 10, we are not apprised of error in this rejection. Accordingly, the rejection of claim 8 as being unpatentable over Schneider, Shimizu, Vaes, and Bijl, is sustained. 5 In the Final Office Action, the Examiner finds that Schneider discloses "a cutter member 9 connected to a pivot pin ( shown at a center of the holes 34 in the cutter element 9 in Fig. 6)." Final Act. 7. Thus, the Examiner did not make this finding for the first time in the Answer. 15 Appeal2017-008826 Application 13/501,988 DECISION The rejection of claims 3-7 and 9-11 under 35 U.S.C. § 103(a) as being unpatentable over Schneider and Shimizu is reversed. The rejection of claim 8 under 35 U.S.C. § 103(a) as being unpatentable over Schneider, Shimizu, and Bijl is reversed. The rejection of claims 3-7 and 9-11 under 35 U.S.C. § 103(a) as being unpatentable over Schneider, Shimizu, and Vaes is affirmed. The rejection of claim 8 under 35 U.S.C. § 103(a) as being unpatentable over Schneider, Shimizu, Vaes, and Bijl is affirmed. 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 16 Copy with citationCopy as parenthetical citation