Appeal No. 2003-1778 Page 7
Application No. 08/988,292
On the other hand, the examiner makes reference to members
(14, fig. 2) of Lerner and tines (5, fig. 2) of Kellett and
argues that those elements correspond to appellants’ claimed
protrusions and would be capable of piercing a body surface.
According to the examiner (answer, page 5), appellants’ “body
surface” definition includes, inter alia, surfaces of plants,
which plant surfaces the protrusion members (14) of Lerner or the
protruding tines (5) of Kellett are capable of piercing.
We are cognizant that Lerner is directed to an applicator
useful for applying treating liquid, such as a permanent waving
lotion, to hair and that Kellett is concerned with a hair styling
brush that includes a foam pad that can be used for applying
coloring materials to hair. However, the question before us is
not restricted to whether the applicator of Lerner includes
protruding members (14) or the brush of Kellett includes tines
(5) that are capable of penetrating the scalp, as focused on by
appellants (brief, pages 6-9). Concerning this matter,
representative appealed claim 1 does not require protrusions
capable of penetrating the scalp. As correctly determined by the
examiner, the capability of penetrating the outer surface of a
plant is sufficient for the tines (5) of Kellett or the members
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