Ex parte VANRAES

Board of Patent Appeals and Interferences

Dec 23, 1997

08142381 (B.P.A.I. Dec. 23, 1997)

Application for patent filed November 29, 1993. 1
According to the appellant, the application is the national
stage application of PCT/FR92/00456, filed May 21, 1992.
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered
today (1) was not written for publication in a law
journal and (2) is not binding precedent of the
Board.
Paper No. 20
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte PIERRE VANRAES
____________
Appeal No. 96-3480
Application No. 08/142,3811
____________
ON BRIEF
____________
Before McCANDLISH, Senior Administrative Patent Judge, and
NASE and CRAWFORD, Administrative Patent Judges.
NASE, Administrative Patent Judge.
Appeal No. 96-3480
Application No. 08/142,381
The examiner withdrew all the rejections made in the2
final rejection and rendered a new ground of rejection under
35 U.S.C. § 103 against claims 1 through 6 in the examiner's
answer.
DECISION ON APPEAL
This is a decision on appeal from the examiner's
rejection of claims 1 through 6, which are all of the claims
pending in this application.2
We AFFIRM-IN-PART.
Appeal No. 96-3480 Page 3
Application No. 08/142,381
In determining the teachings of Choppy, we will rely on3
the translation provided by the FLS, Inc. A copy of the
translation is attached for the appellant's convenience.
BACKGROUND
The appellant's invention relates to a device,
particularly intended for the hygiene of human auditory
canals. Claims 1 through 3 are representative of the subject
matter on appeal and a copy of those claims, as they appear in
the appendix to the appellant's brief, is attached to this
decision.
The prior art references of record relied upon by the
examiner as evidence of obviousness under 35 U.S.C. § 103 are:
Tolman 896,338 Aug. 18,
1908
Hartman 3,110,304 Nov. 12,
1963
Choppy 2,277,557 Feb. 6, 19763
(France)
Claims 1 through 6 stand rejected under 35 U.S.C. § 103
as being unpatentable over Tolman in view of Hartman and
Choppy.
Appeal No. 96-3480 Page 4
Application No. 08/142,381
Rather than reiterate the conflicting viewpoints advanced
by the examiner and the appellant regarding the § 103
rejection, we make reference to the examiner's answer (Paper
No. 15, mailed December 14, 1995) and the supplemental
examiner's answer (Paper No. 19, mailed January 15, 1997) for
the examiner's complete reasoning in support of the rejection,
and to the appellant's brief (Paper No. 14, filed October 30,
1995) and reply brief (Paper No. 16, filed January 29, 1996)
for the appellant's arguments thereagainst.
OPINION
In reaching our decision in this appeal, we have given
careful consideration to the appellant's specification and
claims, to the applied prior art references, and to the
respective positions articulated by the appellant and the
examiner. As a consequence of our review, we make the
determinations which follow.
Claim 1
We sustain the rejection of claim 1.
Appeal No. 96-3480 Page 5
Application No. 08/142,381
Claim 1 recites an auriaular hygiene device comprising,
inter alia, a cylindrical body having a longitudinal axis and
two opposed extremities and an active portion on one of the
extremities. The active portion includes, inter alia, a
substantially circular active edge and a depression or cavity,
having a hemispherical outer surface shape with a
predetermined radius.
Tolman discloses an implement having a shank 2 and an ear
wax spoon 3 shaped as shown in Figures 1 and 2.
Hartman discloses a conventional otoscope speculum having
a base 11, a conical portion 10 and a projection 12. Hartman
teaches at the paragraph beginning at column 1, line 63, that
[p]rojection 12 may assume a wide variety of shapes.
In general, any shape which is adapted to engage and
remove wax in the ear canal may be used. Such shapes
include spoons, loops, and the like. A particularly
suitable shape, because of its efficiency for the
purpose, comprises a substantially cylindrical extension
13 from a portion of the distal end of the speculum 10
having a hood-like tip 14 on the end thereof. Tip 14,
may have a substantially hemispherical shape.
Appeal No. 96-3480 Page 6
Application No. 08/142,381
Apparently from shading of the stick 5 in Figure 1.4
The test for obviousness is what the combined teachings5
of the references would have suggested to one of ordinary
skill in the art. See In re Young, 927 F.2d 588, 591, 18
USPQ2d 1089, 1091 (Fed. Cir. 1991) and In re Keller, 642 F.2d
413, 425, 208 USPQ 871, 881 (CCPA 1981).
Choppy discloses an ear swab. The ear swab includes a
stick 5 and a small spoon 4 at one end of the stick.
Additionally, the examiner determined that the stick 5 was
cylindrical.4
The examiner, in applying the test for obviousness,5
determined (answer, p. 4) that it would have been obvious to
one of ordinary skill in the art at the time of the invention
to
(1) make the active portion of Tolman in hemispherical shape
in order to make a larger receptacle for accommodating more
ear wax, and (2) make the body (i.e., shank 2) of Tolman
cylindrical as taught by Choppy. We agree.
The arguments advanced by the appellant (reply brief, p.
2 and brief, pp. 7-11) are unpersuasive for the following
Appeal No. 96-3480 Page 7
Application No. 08/142,381
reasons. First, we agree with the examiner that Hartman's
hemispherically shaped tip does have an outer surface with a
predetermined radius. Second, it is our opinion that
Hartman's teaching that the shape of his projection 12 is
particularly suitable, because of its efficiency for removing
wax provides the artisan with ample motivation to modify the
shape of Tolman's spoon.
Claim 2
We sustain the rejection of claim 2.
Dependent claim 2 adds to claim 1 the limitation that the
substantially circular edge of the active portion is located
in a plane approximately at a tangent to one of the external
qeneratrices defining the cylindrical body.
The appellant argues (brief, p. 11) that this limitation
is "neither disclosed nor suggestion by the prior art." We do
not agree. It is our opinion that the combined teachings of
the applied prior art would maintain the relationship of
Tolman's shank 2 to the substantially circular edge of the
Appeal No. 96-3480 Page 8
Application No. 08/142,381
spoon as shown in Figure 2. That is, when Tolman's shank 2 is
modified to be cylindrical as suggested by both Hartman and
Choppy, the substantially circular edge of the spoon would
have still been located in a plane approximately at a tangent
to one of the external qeneratrices defining the cylindrical
body.
Claim 3
We do not sustain the rejection of claim 3.
Dependent claim 3 adds to claim 1 or claim 2 the
limitation that the point of origin of any radius of the
active portion is located approximately in a plane that
contains the longitudinal axis of the cylindrical body.
The appellant argues (brief, pp. 11-12) that this
limitation is not disclosed or suggestion by the prior art.
We agree. This limitation requires that the center of
curvature of the hemispherical outer surface be located
approximately in the plane that contains the longitudinal axis
of the cylindrical body. The applied prior art does not teach
Appeal No. 96-3480 Page 9
Application No. 08/142,381
or suggest this limitation and the examiner has not given any
reasoning as to why this limitation would have been obvious to
one of ordinary skill in the art at the time of the
appellant's invention. Accordingly, we will not sustain the
rejection of claim 3.
Claims 4 through 6
We do not sustain the rejection of dependent claims 4
through 6 which depend directly or indirectly from claim 3 for
the reasons express supra with respect to claim 3.
CONCLUSION
To summarize, the decision of the examiner to reject
claims 1 and 2 under 35 U.S.C. § 103 is affirmed and the
decision of the examiner to reject claims 3 through 6 under 35
U.S.C. § 103 is reversed.
Appeal No. 96-3480 Page 10
Application No. 08/142,381
No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
AFFIRMED-IN-PART
HARRISON E. McCANDLISH, SENIOR )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
JEFFREY V. NASE ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
MURRIEL E. CRAWFORD )
Administrative Patent Judge )
Appeal No. 96-3480 Page 11
Application No. 08/142,381
EDWARD J. KONDRACKI
KERKAM, STOWELL, KONDRACKI & CLARKE
SUITE 600
5203 LEESBURG PIKE
FALLS CHURCH, VA 22041
Appeal No. 96-3480
Application No. 08/142,381
Page 1
APPENDIX
1. An auriaular hygiene device comprising external
generatrices defining a cylindrical body having a longitudinal
axis and two opposed extremities, at least one of which has an
active portion that includes a substantially circular active
edge intended for detaching a material from a predetermined
surface and a depression or cavity intended for collecting
said material,
wherein said active portion has a hemispherical
outer surface shape with a predetermined radius.
2. The device of claim 1, wherein the substantially
circular edge of the active portion is located in a plane
approximately at a tangent to one of the external qeneratrices
defining the cylindrical body that carries said active
portion.
3. The device of claim 1 or 2, wherein the point of
origin of any radius of the active portion is located
approximately in a plane that contains the longitudinal axis
of the cylindrical body.
APPEAL NO. 96-3480 - JUDGE NASE
APPLICATION NO. 08/142,381
APJ NASE
APJ CRAWFORD
APJ McCANDLISH
DECISION: AFFIRMED-IN-PART
Prepared By: Delores A. Lowe
DRAFT TYPED: 19 Dec 97
FINAL TYPED: