Appeal No. 2006-1504 Page 6
Application No. 09/935,297
received within the head-receiving space defined by the fingers. Given the described resiliency
of Robbins’ fingers, which may, like the fingers of the appellant’s device, be composed of
copper or other metal or metal alloy (col. 2, ll. 61-62), the fingers will spread over at least a
portion of the scalp and receive a portion of the head in the space therebetween.
The examiner recognizes that Robbins lacks a vibrator coupled to opposite ends of the
fingers as required by the appellant’s claims. As noted by the examiner, however, the provision
of vibrators on head and scalp massagers, to stimulate the scalp, was well known in the art at the
time of the appellant’s invention, as evidenced by Rabin and Blachly. The examiner’s position
that it would have been obvious to include a vibrator in the Robbins massage device to enhance
the stimulating or massaging effect on the scalp as taught by Rabin or Blachly is well supported.
The appellant argues in the paragraph bridging pages 8 and 9 of the brief that Robbins’
mention of the Rabin scalp massager having a helmet-like shape in the background section of the
Robbins patent and subsequent reference to problems in the art in providing a device “meeting
the above requirements” instructs the reader away from prior art such as that of Rabin. We find
in the portions of the Robbins patent referenced by the appellant no such instruction.
The appellant’s argument on page 9 of the brief that the use of elongated fingers as
disclosed in Robbins would be at odds with the functionality of Blachly because such fingers
would simply bend under the force required to remove dandruff is likewise unpersuasive. The
examiner’s rejection does not propose that the Robbins device be used to remove dandruff.
Rather, the examiner’s position is that it would have been obvious to modify Robbins to provide
a vibrator to enhance the massaging effect of the Robbins device.
In light of the above, the appellant’s arguments fail to persuade us of any error on the part
of the examiner in rejecting claims 1-4, 6-14 and 23-29 as being unpatentable over Robbins in
view of Rabin or Blachly. The rejection of these claims is sustained.
The like rejection of claims 15-22 and 30-33, however, is not sustained. Each of these
claims recites each of the fingers having a transversely extending portion immediately adjacent
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