The Procter & Gamble Company

Patent Trials and Appeals Board

Dec 30, 2021

2021001415 (P.T.A.B. Dec. 30, 2021)

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.
14/645,245 03/11/2015 Ulrich STOERKEL CM4051Q 1863
27752 7590 12/30/2021
THE PROCTER & GAMBLE COMPANY
GLOBAL IP SERVICES
CENTRAL BUILDING, C9
ONE PROCTER AND GAMBLE PLAZA
CINCINNATI, OH 45202
EXAMINER
MARKMAN, MAKENA
ART UNIT PAPER NUMBER
3723
NOTIFICATION DATE DELIVERY MODE
12/30/2021 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):
centraldocket.im@pg.com
mayer.jk@pg.com
pair_pg@firsttofile.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ULRICH STOERKEL, SIMONE BERTRAND,
MARTIS HUEBNER, ANDREAS BIRK, FRANZISKA SCHMID,
ALEXANDER HILSCHER, HEIDRUN SCHMELCHER,
JOCHEN GANNINGER, JOCHEN KAWERAU, UWE JUNGNICKEL,
BENEDIKT HEIL, CHRISTIAN MANDL, EVA KAISER,
KATHI BALLMAIER, CHRISTINE HIELSCHER, and
BRITTA STOCKINGER

Appeal 2021-001415
Application 14/645,245
Technology Center 3700
____________

Before MICHAEL C. ASTORINO, JAMES A. WORTH, and
AMEE A. SHAH, Administrative Patent Judges.

ASTORINO, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), the Appellant1 appeals from the
Examiner’s decision to reject claims 1–3, 6–12, 14, and 15. We have
jurisdiction under 35 U.S.C. § 6(b). We REVERSE.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. The Appellant identifies the real party in interest as The
Procter & Gamble Company. Appeal Br. 1.
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Application 14/645,245

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STATEMENT OF THE CASE
Claimed Subject Matter
Claims 1 and 15 are the independent claims on appeal. Claim 1,
reproduced below with indents and some paragraphing added, is illustrative
of the claimed subject matter.
1. A head for an oral care implement comprising:
a mounting surface, and
at least one cross-shaped tuft mounted on the mounting
surface,
the at least one cross-shaped tuft having a tuft
longitudinal axis and a cross-shaped cross-sectional area
extending in a plane perpendicular to the tuft longitudinal
axis,
the at least one cross-shaped tuft comprising a plurality
of cross-shaped filaments, each having a filament
longitudinal axis and a cross-shaped cross-sectional area
extending in a plane perpendicular to the filament
longitudinal axis,
wherein the cross-sectional area of the at least one
cross-shaped tuft has a scaled-up shape of the cross-
sectional area of each of the plurality of cross-shaped
filaments comprising the at least one cross-shaped tuft.

Rejection
Claims 1–3, 6–12, 14, and 15 are rejected under 35 U.S.C. § 103 as
unpatentable over Mintel et al. (US 9,538,836 B2, iss. Jan. 10, 2017)
(hereinafter “Mintel”) in view of Kang (US 2015/0257525 A1, pub.
Sept. 17, 2015) (hereinafter “Kang”).

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ANALYSIS
The Appellant persuasively argues that the Examiner’s rejection of
independent claims 1 and 15 fails to articulate adequate reasoning with
rational underpinning to support the legal conclusion of obviousness. See
Appeal Br. 4–10. For the following reasons, we determine that the
Appellant’s argument is persuasive.
The Examiner’s rejection of independent claims 1 and 15 include a
finding that Mintel teaches substantially all of the subject matter of the
independent claims. See Final Act. 4–5, 8–9. Indeed, Mintel teaches an oral
care instrument (e.g., a toothbrush) including a tuft of bristles (i.e.,
filaments). Mintel, Abstract, col. 2, ll. 27–31, 40–45, Figs. 2a, 2b, 5, 6.
Mintel includes an embodiment where the tuft and the bristles that make up
the tuft have corresponding cross-sectional areas (i.e., shapes). Id. at col. 5,
l. 64 – col. 6, l. 9, Figs. 2a–b. For example, the corresponding cross-
sectional shapes may be a diamond shape, an elongated rectangular shape, or
other desired shapes. See id.
The Examiner finds that Mintel fails to explicitly teach that the cross-
sectional area of the tuft and its bristles are cross-shaped. Final Act. 5, 9.
The Examiner relies on Kang to teach a bristle having a cross-sectional area
that is cross-shaped. Id. (citing Kang, Fig. 1 bristle 40). The Examiner does
not find that Kang teaches a tuft having cross-sectional area that is cross-
shaped.
Based on the foregoing, the Examiner determines:
Thus, it would have been obvious to one having ordinary skill
in the art . . . to implement the bristle of Kang into the invention
of Mintel such that the corresponding shape properties of the
tuft and bristle as disclosed by Mintel are maintained. One
would be motivated to do so not only for design purposes, but
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also because Mintel discloses in Column 4, line 65-Column 5,
line 3 that the cross-sectional profile of the bristle may take on
other polygonal shapes; see also column 4, lines 7-12,
Column 5, lines 6-12.
Regarding the limitation that recited wherein the at least one
cross-shaped tuft having a longitudinal axis and a cross-shaped
cross-sectional area as amended in, the combination of the
invention of Mintel as modified by Kang teaches this recitation
in at least Column 6, lines 3-13. Mintel discloses that the
bristles and the resulting bristle tufts could have corresponding
cross-sectional shapes as desired. Thus, the limitations of the
claim are met by the combination of Mintel as modified by
Kang, wherein the cross-shape of the bristles corresponds to a
cross-shape cross-sectional area of the tuft.
Final Act. 5–6, 9.
We are unable to identify from this determination, or elsewhere in the
record, an articulated reason with rational underpinning as to why one of
ordinary skill in the art would have modified Mintel’s tuft to have a cross-
sectional area that is cross-shaped. See In re Kahn, 441 F.3d 977, 988 (Fed.
Cir. 2006) (“[R]ejections on obviousness grounds . . . [require] some
articulated reasoning with some rational underpinning to support the legal
conclusion of obviousness.”) (cited with approval in KSR Int’l Co. v.
Teleflex Inc., 550 U.S. 398, 418 (2007)).2 Here, the Examiner offers support
for the modification of the bristle’s cross-sectional area to be cross-shaped as
a substitution based on Kang’s teachings. Ans. 5 (“The Examiner maintains
that it would have been obvious for one of ordinary skill in the art . . . to
substitute the cross[-]shaped bristle of Kang into the invention of Mintel.”).

2 The Examiner explains that the modification of the cross-sectional shape of
Mintel’s tuft to be cross-shaped is not based on inherency. See Ans. 13.
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However, we fail to understand from the Examiner’s determination an
articulated reason with rational underpinning as to why one of ordinary skill
in the art would have modified Mintel’s tuft to have a cross-sectional area
that is cross-shaped. Generally, it appears that much of the Examiner’s
statements and responses to the Appellant’s arguments are directed to the
notion that one of ordinary skill in the art could have modified Mintel’s
bristle to have a cross-sectional area that is cross-shaped, but not why one of
ordinary skill in the art would have done so.
To the extent the Examiner provides a reason for a modification of the
cross-sectional area of Mintel’s tuft to be cross-shaped, it seems to relate to
one or more of the following concepts. See Final Act. 5–6; Ans. 4–6, 7–10,
11–14.
First, the Examiner appears to rely on Mintel’s teaching of
correspondence between the cross-sectional shapes of the tuft and the
bristles that make-up the tuft. See Final Act. 5; Ans. 5, 7–8, 9; Mintel,
col. 5, l. 64 – col. 6, l. 9. Although we agree with the Examiner that Mintel
teaches correspondence between the cross-sectional shapes of the tuft and
the bristles that make-up the tuft, the Examiner fails to offer adequate
evidence or technical reasoning that one of those shapes would have been a
cross-shape or why it would have been obvious to one of ordinary skill in
the art that it would be.
As pointed out by the Appellant, a cross-sectional area that is cross-
shaped includes concave portions. See Appeal Br. 4–5; Reply Br. 2–3; see
also Spec. 6:23–32, Figs. 1–3. Additional examples of cross-sectional
shapes that have concave portions are a clover-leaf shapes or a shape that is
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substantially trilobal.3 See Spec. 6:23–32, Figs. 13, 14, 16. Mintel does not
teach a tuft or a bristle with a cross-sectional shape that includes concave
portions. Appeal Br. 5. Rather, Mintel teaches that its cross-sectional
polygonal shapes are diamond-shaped, elongated rectangular-shaped,
triangular, square, pentagonal, hexagonal, octagonal, or the like ––in the
Appellant’s words, “regular ‘convex’ polygons.” See id.; Reply Br. 2–3;
Mintel, col. 5, l. 64 – col. 6, l. 9, col. 11, ll. 13–15. Mintel also teaches an
elongated oval shape and small gaps between adjacent bristles (Ans. 8
(citing Mintel col. 5, ll. 15–27); see Reply Br. 3); and an alternative
embodiment where the cross-sectional area of the tuft and its bristles have
shapes that are different (Mintel, col. 6, ll. 10–13).
An aspect of Mintel’s selection for the cross-sectional shape of its tuft
and bristles that make-up the tuft is the “packing factor,” i.e., “the sum total
of the transverse cross-sectional areas of the tapered bristles 10 in the tuft
hole divided by the transverse cross-sectional area of the tuft hole.” Mintel,
col. 5, ll. 42–45; see Spec. 7:3–5 (“In the context of this disclosure the term
'packing factor' means the sum of all cross sectional areas of the filaments
divided by the cross-sectional area of the overall tuft.”). Mintel teaches that
having its bristles tightly packed with little to no gaps enhances: comfort of

3 The Specification, at page 13, lines 24–29, discloses:
the term "substantially" refers to an arrangement of elements or
features that, while in theory would be expected to exhibit exact
correspondence or behavior, may, in practice embody
something slightly less than exact. As such, the term denotes
the degree by which a quantitative value, measurement or other
related representation may vary from a stated reference without
resulting in a change in the basic function of the subject matter
at issue.
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the bristle tuft; the ability of dentifrice to flow to the tips of the bristles,
which promotes contact of the dentifrice with the user’s oral cavity; and
light reflection so that tufts shiner and more attractive to consumers. Mintel,
col. 5, ll. 28–38. Mintel teaches that the packing factor is greater than 90%,
which logically includes the possibility of small gaps between adjacent
bristles. See Mintel, col. 5, ll. 24–26; 39–63.
The Examiner does not use sufficient evidence and/or technical
reasoning to explain what the packing factor would have been if both of
Mintel’s tuft and the bristles that makeup the tuft would have been modified
to be cross-shaped. See also Appeal Br. 6, 8; Reply Br. 2, 4. Further, we
note that the Examiner determines that Mintel does not preclude or discredit
the modification of the tuft to have a cross-sectional area that is cross-
shaped. See Final Act. 2; Ans. 8, 13. The foregoing determination, even if
supported by Mintel, does not provide adequate support for the modification
of Mintel’s tuft to have a cross-sectional area that is cross-shaped. See
Appeal Br. 9.
Second, the Examiner suggests that the modification of the tuft to
have a cross-sectional area that is cross-shaped may be related to a design
purpose, design incentive, or the like. See Final Act. 3, 5, 9; Ans. 10, 12.
However, the Examiner fails to identify a design purpose or design incentive
to support the modification.
Third, the Examiner determines “[o]ne having ordinary skill in the art
would choose any known shape based on its desired functionality and
optimization would subsequently result from routine engineering practices.”
Ans. 8. However, the Examiner fails to identify a desired functionality to
support the modification and fails to explain what aspect of Mintel’s device
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would have been optimized by modifying the tuft to have a cross-sectional
area that is cross-shaped. See Reply Br. 4–5.
Lastly, we have considered the remaining statements advanced by the
Examiner in the Answer and fail to ascertain an articulated reason with
rational underpinning as to why one of ordinary skill in the art would have
modified Mintel’s tuft to have a cross-sectional area that is cross-shaped.
Thus, we do not sustain the Examiner’s rejection of independent
claims 1 and 15, and claims 2, 3, 6–12, and 14 that depend from claim 1.

CONCLUSION
In summary:
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–3, 6–12,
14, 15
Mintel, Kang

1–3, 6–12,
14, 15

REVERSED