Appeal No. 2006-1504 Page 7
Application No. 09/935,297
the handle followed by a contiguous portion extending downwardly and inwardly from the
transversely extending portion. Robbins does not disclose fingers having such a shape. While
the fingers of Robbins are very probably capable of being bent into such a configuration, there is
no specific suggestion in Robbins or Rabin or Blachly to do so. Even when the Robbins
massage device is applied to the human scalp, there is no indication that the fingers will be
flexed or bent into such a configuration.
We turn next to the rejection of claims 1, 4, 6-8, 10, 13-17, 19, 22-27 and 30-32 as being
unpatentable over Erickson in view of Rabin. This rejection cannot be sustained. Each of these
claims requires that at least a portion of the head-receiving space have a circumference which
exceeds that of the opening formed by a juxtaposition of the free ends of the fingers. Erickson’s
scalp massaging apparatus S, as illustrated in Figures 2 and 3, has its largest circumference at the
opening defined by the ends of the fingers 19 and thus lacks a portion of the head-receiving
space having a circumference exceeding the circumference at said opening. Rabin’s scalp
massager, with its frame having a bias so as to curl up on itself, provides absolutely no support
for the examiner’s determination (answer, p. 6) that it would have been obvious to one of
ordinary skill in the art to extend the fingers 19 of Erickson around the head with the ends
curving inwardly to “provide a more complete coverage of the person’s head.”
The examiner’s additional reliance on the teachings of Rowe provides no cure for the
deficiency of the combination of Erickson in view of Rabin discussed above. It thus follows that
the rejection of claim 33 cannot be sustained.
Finally, we turn our attention to the rejection of claims 1-4 and 6-33 as being
unpatentable over Lacey in view of Rabin or Blachly. The appellant does not contest the
examiner’s position that it would have been obvious to modify Lacey to include a vibrator as
taught by Rabin or Blachly to enhance the massaging treatment of the head (answer, p. 8). We
thus adopt the examiner’s position, which is reasonable on its face.
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