Ex Parte Zyla

Board of Patent Appeals and Interferences

Mar 8, 2011

11424794 (B.P.A.I. Mar. 8, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte HARLEY ZYLA
____________

Appeal 2009-012544
Application 11/424,794
Technology Center 3700
____________

Before LINDA E. HORNER, STEVEN D.A. McCARTHY, and
MICHAEL W. O’NEILL, Administrative Patent Judges.

HORNER, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
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STATEMENT OF THE CASE
Harley Zyla (Appellant) seeks our review under 35 U.S.C. § 134 of
the Examiner’s decision rejecting claims 1, 4, 5, and 9. We have jurisdiction
under 35 U.S.C. § 6(b).
Claims 1-12 are pending.2 Appellant’s Notice of Appeal appeals to
the Board from the last decision of the Examiner dated October 11, 2007.
This decision rejected claims 1-12. Appellant seeks review, however, of
only the rejections of claims 1, 4, 5, and 9 under 35 U.S.C. § 102(b) as being
anticipated by Galligan (US 4,914,817; issued April 10, 1990) and under
35 U.S.C. § 103(a) as being unpatentable over Chao (US 3,972,114; issued
August 3, 1976). Appellant does not seek review of the Examiner’s
rejection of claims 2, 3, and 5-12 under 35 U.S.C. § 112, second paragraph,
or of the rejection of claims 2, 3, 6-8, and 10-12 under 35 U.S.C. § 102(b) as
being anticipated by Galligan, or of the rejection of claims 2, 3, 6-8, and 10-
12 under 35 U.S.C. § 103(a) as being unpatentable over Chao.
Because Appellant does not appeal any of the rejections against
claims 2, 3, 6-8, and 10-12 in the Brief and limited the grounds of rejection
to be reviewed on appeal explicitly to rejections of claims 1, 4, 5, and 9, we
treat the appeal as withdrawn as to claims 2, 3, 6-8, and 10-12. Ex parte

2 Appellant asserts in the Brief that claims 2, 3, 6-8, and 10-12 have been
canceled. Br. 10. Appellant also asserts in the Brief that claims 1-12 are
pending. Br. 5. We can find no paper in the image file wrapper canceling
these claims. If Appellant intended to cancel these claims at the same time
as the filing of the Brief, Appellant would have needed to file a separate
Amendment under 37 C.F.R. § 41.33 to do so.
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Ghuman, 88 USPQ2d 1478, 1480 (BPAI 2008) (precedential). This
withdrawal of the appeal as to claims 2, 3, 6-8, and 10-12 operates as an
authorization for the Examiner to cancel these claims from the application
upon return of the application to the Examiner. Id. (citing MPEP
§ 1215.03).
THE INVENTION
Appellant’s claimed invention relates to a shaving device. Spec. 1,
para. [0002]. Claim 1, reproduced below, is representative of the subject
matter on appeal.
1. A shaving device comprising:
a head attached to a handle; and
multiple razor blades, aligned along one or more
substantially parallel planes, contained by said head, said
multiple razor blades separated longitudinally by one or more
removable partitions wherein said partitions are slidably
received along a longitudinal length of said multiple razor
blades, said partitions substantially flush with said razor blades
such that said razor blades contact a user’s skin during use of
said shaving device.
ISSUES
The issues presented by this appeal are:
Does Galligan disclose partitions that are slidably received along a
longitudinal length of multiple razor blades?
Would the disclosure in Chao have led one having ordinary skill in the
art to a shaving device having multiple razor blades separated longitudinally
by one or more removable partitions, as called for in claim 1?
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Would the disclosure in Chao have led one having ordinary skill in the
art to a shaving device having one or more parallel rows of razor blades
wherein each row of razor blades comprises multiple razor blade portions
segmented by a removable partition, as called for in claim 5?
Would the disclosure in Chao have led one having ordinary skill in the
art to a shaving device having multiple razor blades configured in one or
more parallel planes wherein each one or more planes include multiple
independent razor blade portions having removable partitions, as called for
in claim 9?
ANALYSIS
Rejection of claims 5 and 9 under 35 U.S.C. § 112, second paragraph
Appellant does not rebut the Examiner’s rejection of claims 5 and 9
under 35 U.S.C. § 112, second paragraph. Br. 10 (“applicant shall amend
claims 5 and 9 to overcome the technical request as suggested by the
examiner in the event the claims 1, 4-5 and 9 are allowed”). As such,
Appellant has waived any argument of error, and we summarily sustain the
rejection of claims 5 and 9 under 35 U.S.C. § 112, second paragraph. See In
re Berger, 279 F.3d 975, 984 (Fed. Cir. 2002) (holding that the Board did
not err in sustaining a rejection under 35 U.S.C. § 112, second paragraph
when the applicant failed to contest the rejection on appeal).
Anticipation rejection of claims 1, 4, 5, and 9
Independent claims 1, 5, and 9 call for a shaving device including a
partition “slidably received along a longitudinal length of” multiple razor
blades. Appellant’s Specification describes, with reference to Figure 3, that
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“the collar 150 is slidably attached to the head 120 of the razor 100”, so that
“the collar 150 may be positioned at any point along the length of the head
120.” Spec. 3, para. [0024]. The Specification further describes that “the
collar 150 should be snugly fitted to the head 120 to prevent undesired
movement during the shaving process”, and that “positioning the collar 150
should be accomplished by applying pressure (in the direction of arrow A) to
the collar 150 near a top portion 165 thereof.” Id.3
The Examiner found that Galligan’s “adhesive-backed partitions (24)
are considered as ‘slidably’ received along the longitudinal length of the
multiple razor blades (20,21) by simply loosening the partitions (24) and
sliding the same along the longitudinal length of the razor blades (20,21) to
reposition the partitions (24) at a desired location on the razor blades
(20,21).” Ans. 4-5.
Galligan discloses a safety razor structure 10 having a shaving head
14 and a pair of razor blades 20 and 21 having cutting edges 22 and 23,
respectively that extend outwardly from the razor head 14. Galligan, col. 2,
ll. 58-66; figs. 1 and 2. Galligan further discloses a plurality of strips 24 of
substantially thin material affixed to the shaving head and that extend across
and, are in contact with, the cutting edges 22 and 23 of blades 20 and 21 and

3 Appellant’s Specification describes that “the membranes may incorporate
an adhesive at upper and lower ends, rather than clips, for temporary
attachment to the head of the razor blade.” Spec. 5, para. [0033]. Although
the Specification describes using adhesive in place of the clips, the
Specification does not describe that the embodiment using adhesive would
be capable of being slid across the length of the razor blades.
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contain a plurality of riblets 25. Galligan, col. 3, ll. 6-11; figs. 1, 2, and 5.
Galligan discloses that the strips 24 are made from a commercially-available
tape produced by 3M Company, and that the riblets 25 have a backing which
is adhered to the razor head with a water resistant contact adhesive.
Galligan, col. 3, ll. 13-25.
Depending on the strength of the adhesive used in Galligan, the strips
24 may be capable of being removed and repositioned along the longitudinal
length of the razor blades 20, 21; however, we cannot find by a
preponderance of the evidence that Galligan’s strips 24 are “slidably
received along the longitudinal length of”, i.e., capable of being slid across,
the razor blades 20, 21 given that Galligan uses adhesive used to attach the
strips 24 to the razor head 14. As such, we reverse the rejection of claims 1,
4, 5 and 9 under 35 U.S.C. § 102(b) as being anticipated by Galligan.
Obviousness rejection of claims 1, 4, 5, and 9
The Examiner’s obviousness determination is based on a finding that
Chao discloses “partitions (18) separating the upper surface of the lower
blade (12) and the lower surface of the upper blade (11) into independent
blade portions.” Ans. 5. Appellant argues that “[t]he partitions of
independent claims 1, 5 and 9 separate or segment the razor blades into
individual sections preventing certain portions of the razor blades from
contacting a user’s skin” and that the teeth 18 of Chao’s cleaning mechanism
13 do not “partition” the blades 11, 12 because they do not pass over the
shaving edges of the blades 11, 12. Br. 11-12 (citing Chao, Figs. 1 and 2).
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An ordinary and customary meaning of “partition”, when used as a
noun, is “[s]omething that divides or separates, as a wall dividing one room
or cubicle from another.” THE AMERICAN HERITAGE DICTIONARY OF THE
ENGLISH LANGUAGE (2007), available at http://www.credoreference.com/
entry/hmdictenglang/partition. We agree with the Examiner that Appellant’s
claims do not require the partitions to “pass over the shaving edges of the
blades” or to “prevent[] certain portions of the razor blades from contacting
a user’s skin,” as argued by Appellant to distinguish the structure disclosed
in Chao from the claimed shaving razor. Ans. 6; Br. 12. The independent
claims do, however, call for the blades to be separated longitudinally by, or
the blade portions to be segmented by, a removable partition. We examine
the language used in each independent claim in turn.
Claim 1 calls for multiple razor blades to be “separated longitudinally
by one or more removable partitions.” The claim is worded broadly so that
it encompasses a partition that separates longitudinally an upper blade from
a lower blade. Chao discloses a shaving razor having an upper blade 11
separated from a lower blade 12 by teeth 18 of a self-cleaning mechanism
13. Chao, col. 1, ll. 40-41; figs. 1, 2. Likewise, claim 9 is worded broadly,
simply calling for multiple razor blades configured in one or more parallel
planes wherein each plane includes multiple independent razor blade
portions having removable partitions. This claim language encompasses
removable partitions, such as the teeth 18 of Chao’s self-cleaning
mechanism 13, which divide or separate an upper blade from a lower blade.
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Claims 1 and 9 further call for the partitions to be “slidably received
along a longitudinal length of said multiple razor blades.” Chao discloses
that the self-cleaning mechanism 13 has slots 16 which allow the teeth 18 of
the self-cleaning mechanism 13 to slide back and forth against posts 17.
Chao, col. 1, ll. 44-46; fig. 3.
Claims 1 and 9 further call for the partitions to be “substantially flush
with said razor blades” and to allow “said razor blades [to] contact a user’s
skin during use of said shaving device.” As visible in Figure 2 of Chao, the
teeth 18 of cleaning mechanism 13 are disposed at an angle so that they are
substantially flush with the blades 11 and 12 such that the blades 11 and 12
contact a user’s skin during use of the shaving device.
As such, we affirm the Examiner’s rejection of claims 1 and 9 as
being unpatentable over Chao. Appellant does not present separate
arguments for the patentability of dependent claim 4. Thus, claim 4 falls
with claim 1. See 37 C.F.R. § 41.37(c)(1)(vii).
Independent claim 5 calls for “one or more parallel rows of razor
blades wherein each row of razor blades comprises multiple razor blade
portions segmented by a removable partition.” While the cleaning
mechanism 13 of Chao partitions an upper blade from a lower blade, we
cannot find by a preponderance of the evidence that each row of razor blades
in Chao comprises multiple razor blade portions segmented by a removable
partition, as called for in claim 5. For example, the upper blade 11 of Chao
does not have multiple razor blade portions segmented by the teeth 18 of
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cleaning mechanism 13. As such, we reverse the rejection of claim 5 as
being unpatentable over Chao.
CONCLUSIONS
Galligan does not disclose partitions that are slidably received along a
longitudinal length of multiple razor blades.
The disclosure in Chao would have led one having ordinary skill in
the art to a shaving device having multiple razor blades separated
longitudinally by one or more removable partitions.
The disclosure in Chao would not have led one having ordinary skill
in the art to a shaving device having one or more parallel rows of razor
blades wherein each row of razor blades comprises multiple razor blade
portions segmented by a removable partition.
The disclosure in Chao would have led one having ordinary skill in
the art to a shaving device having multiple razor blades configured in one or
more parallel planes wherein each one or more planes include multiple
independent razor blade portions having removable partitions.
DECISION
The decision of the Examiner to reject claims 5 and 9 under 35 U.S.C.
§ 112, second paragraph, is summarily AFFIRMED.
The decision of the Examiner to reject claims 1, 4, 5, and 9 under
35 U.S.C. § 102(b) as being anticipated by Galligan is REVERSED.
The decision of the Examiner to reject claims 1, 4, and 9 under
35 U.S.C. § 103(a) as being unpatentable over Chao is AFFIRMED.
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The decision of the Examiner to reject claim 5 under 35 U.S.C.
§ 103(a) as being unpatentable over Chao is REVERSED.

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)(1)(iv).

AFFIRMED

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