Ex Parte Vassileva

Patent Trials and Appeals Board

Mar 28, 2019

14735980 - (D) (P.T.A.B. Mar. 28, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/735,980 06/10/2015
23117 7590 04/01/2019
NIXON & V ANDERHYE, PC
901 NORTH GLEBE ROAD, 11 TH FLOOR
ARLINGTON, VA 22203
FIRST NAMED INVENTOR
Margarita Vassileva
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.
AMK-6144-3 4370
EXAMINER
YABUT,DIANED
ART UNIT PAPER NUMBER
3771
NOTIFICATION DATE DELIVERY MODE
04/01/2019 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):
PTOMAIL@nixonvan.com
pair_nixon@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARGARITA V ASSILEV A
Appeal2018-002528
Application 14/735,980
Technology Center 3700
Before DANIEL S. SONG, JEREMY M. PLENZLER, and
JEFFREY A. STEPHENS, Administrative Patent Judges.
STEPHENS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant1 seeks our review under 35 U.S.C. § 134(a) from the
Examiner's Final Office Action (Feb. 23, 2017) ("Final Act.") rejecting
claims 1-6, 8, and 9, which are all the claims pending in the application. 2
We have jurisdiction under 35 U.S.C. § 6(b ).
1 The named inventor is identified by the Appeal Brief as the real party in
interest. Appeal Br. 3.
2 The Final Office Action is supplemented by additional explanation in an
Advisory Action (May 1, 2017).
Appeal2018-002528
Application 14/735,980
For the reasons explained below, we are not informed of error in the
rejection. Accordingly, we AFFIRM.
Claimed Subject Matter
Claims 1 and 6 are independent. Claim 1, reproduced below,
illustrates the claimed subject matter.
1. A method of exfoliating skin from a skin surface, the
method comprising:
providing a silk panel using a woven silk material;
wetting the silk panel; and
scrubbing the skin surface with the wet silk panel.
Rejection
Claims 1-6, 8, and 9 stand rejected under 35 U.S.C. § 103 as
unpatentable over Eknoian (US 2007/0299410 Al, published Dec. 27,
2007). Final Act. 3-5.
DISCUSSION
Appellant argues all claims as a group, but provides additional
argument specific to a subgroup of claims 3 and 6. Appeal Br. 7-8. For
purposes of this decision, we select claim 1 as representative of claims 1 and
2, and claim 6 as representative of claims 3---6, 8, and 9. 37 C.F.R.
§ 4I.37(c)(l)(iv).
Claims 1 and 2
In rejecting claim 1, the Examiner finds Eknoian teaches a method of
exfoliating skin from a skin surface, including providing a silk panel using a
silk material, wetting the silk panel, and scrubbing the skin surface with the
wet silk panel. Final Act. 3 (citing Eknoian ,r,r 8, 9, 27-33). The Examiner
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Application 14/735,980
states that Eknoian does not disclose the silk material being woven, but
discloses that the skin treatment article can be made from either nonwoven
or woven material, and that the woven material is not limited to woven
cotton or polyester substrates. Id. (citing Eknoian ,r,r 27, 41). The Examiner
further explains the basis for finding one of ordinary skill in the art would
have had reason to use woven silk:
Although Eknoian acknowledges the structural differences
between nonwoven and woven materials (see paragraph [0030]),
it is suggested that either type of material is suitable for treating
the skin for customizable tactile stimulation (see paragraphs
[0027] and [0041] and abstract). Therefore it would have been
obvious to one of ordinary skill in the art before the effective
filing date of the invention to provide a silk panel using a woven
silk material instead of a nonwoven silk material, since doing so
would have yielded predictable results, namely treating the skin
with tactile stimulation. See KSR International Co. v. Teleflex
Inc., 550 U.S. 398, 82, USPQ2d 1385 (2007). In addition, it has
been held to be within the general skill of a worker in the art to
select a known material on the basis of its suitability for the
intended use as a matter of obvious design choice. In re Leshin,
125 USPQ 416.
Final Act. 3--4.
Appellant argues one of ordinary skill in the art would not have used a
woven silk material for Eknoian's skin treatment article. Appeal Br. 7-8.
Appellant acknowledges that Eknoian teaches the skin treatment article may
be made from woven or non-woven material, and that Eknoian includes silk
fibers as an example of a natural material that is non-woven, but argues that
the only examples Eknoian provides of woven materials are woven cotton
and polyester substrates. Id. ( citing Eknoian ,r 41 ). "Appellant thus submits
that Eknoian does not provide a sufficient teaching that would lead those of
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Appeal2018-002528
Application 14/735,980
ordinary skill in the art to use a woven silk material for its skin treatment
article." Appeal Br. 8. In the Reply Brief, Appellant acknowledges that
woven cotton and polyester substrates are "non-limiting examples" of woven
materials in Eknoian, but states that these examples "are structurally
distinguishable from a woven silk material." Reply Br. 1.
Appellant also contends Eknoian does not provide any basis for the
suitability of woven silk for the intended use recited in the claim, thus
disputing the applicability of In re Leshin, 277 F.2d 197 (CCPA 1960).
Appeal Br. 8. Appellant argues that since Eknoian references the use of silk
as an exemplary natural material suitable for its non-woven embodiment of
the skin treatment article, "Eknoian would reference woven silk as a
potential material for its skin treatment article if Eknoian in fact recognized
its suitability." Reply Br. 1.
The Examiner responds that Eknoian does not limit woven materials
to woven cotton or polyester substrates, and that one of ordinary skill in the
art would have had reason to use a woven silk material in Eknoian, "since a
skilled artisan would have explored other woven materials to achieve a
particular degree of tactile stimulation." Ans. 2-3. For support, the
Examiner points to Eknoian's teaching of a need for customizable or
adjustable tactile stimulation that may be provided by the texture of the skin
treatment article. Ans. 3 ( citing Eknoian ,r,r 5---6). The Examiner finds that
"[ s ]ince woven silk is well known as a soft and luxurious fabric, it would
occur to one of ordinary skill in the art to use it in the method of Eknoian for
gentle cleansing and exfoliating of the skin." Ans. 3.
Appellant's arguments do not inform us of error in the rejection. As
noted by the Examiner, Eknoian teaches its skin treatment article "is
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Appeal2018-002528
Application 14/735,980
preferably made from a woven or nonwoven material." Eknoian ,r 27.
Eknoian teaches that "[ n ]on woven materials may be made of a variety of
natural and/or synthetic materials," ,r 32, and silk fibers are specifically
mentioned as a non-limiting example of natural materials, ,r 3 3. "Examples
of woven structures include, but are not limited to, woven cotton and
polyester substrates." Eknoian ,r 41. Although Eknoian does not list silk as
an example of a woven material, Appellant does not dispute the Examiner's
finding that woven silk is well known. We agree with the Examiner that
selection of woven silk, a known material, to make Eknoian' s skin treatment
article, based on the suitability of such a material for gentle exfoliation,
would have been within the ordinary skill of those in the art. Cf In re
Leshin, 277 F.2d at 911 ("Mere selection of known plastics to make a
container-dispenser of a type made of plastics prior to the invention, the
selection of the plastics being on the basis of suitability for the intended use,
would be entirely obvious; and in view of 35 U.S.C. 103 it is a wonder that
the point is even mentioned."). In our view, Eknoian's mention of silk fibers
as an example of a nonwoven material that is suitable for Eknoian's purpose
supports the Examiner's finding that silk would have been considered
suitable, and the absence of silk from the two non-limiting examples of
woven materials is not strong evidence that woven silk would not have been
considered.
Accordingly, for the reasons discussed above and by the Examiner,
we are not informed of error in the Examiner's rejection of representative
claim 1 under 35 U.S.C. § 103 as unpatentable over Eknoian. For the same
reasons, we sustain the rejection of dependent claim 2, which is rejected on
the same ground and not argued separately.
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Appeal2018-002528
Application 14/735,980
Claims 3-6, 8, and 9
Independent claim 6 recites a hand-held product for exfoliating skin,
the product comprising a main panel of material, wherein, among other
things, "the material consists of woven silk." Appellant argues "[ n ]owhere
does Eknoian remotely disclose or suggest a material formed exclusively of
silk as part of its skin treatment article." Appeal Br. 7.
As the Examiner finds, Ans. 3, paragraph 27 of Eknoian teaches that
"[t]he skin treatment article can be made of a single layer or multiple layers
of the same or different material." We agree with the Examiner that, for the
reasons discussed above with respect to claim 1, and in light of paragraph 27
of Eknoian, one of ordinary skill in the art would have had reason to use a
main panel consisting of woven silk to construct Eknoian's skin treatment
article.
Accordingly, for the reasons discussed above and by the Examiner,
we are not informed of error in the Examiner's rejection of representative
claim 6 under 35 U.S.C. § 103 as unpatentable over Eknoian. For the same
reasons, we sustain the rejection of claims 3-5, 8, and 9, which are rejected
on the same ground and not argued separately.
DECISION
We affirm the Examiner's decision to reject claims 1---6, 8, and 9
under 35 U.S.C. § 103.
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Appeal2018-002528
Application 14/735,980
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
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