Appeal No. 1997-2027
Application 08/417,419
bristles of the color not making up the pattern, the above
quoted remarks apply as well to at least independent claim 16.
In affirming the examiner’s rejection of the appealed
claims in the prior appeal based on Best, the merits panel
went on to state:
The amount of surface area covered, as well as all
of these “other factors,” normally very among users
dependent upon the habits of a particular user, and
may even vary from day-to-say with respect to a
particular user. Considering all these variables,
we believe that the examiner had a reasonable basis
to conclude that when the toothbrush of Best is used
in a normal and customary manner that, at least at
some point in time, the claimed amount of dentifrice
would be deposited on Best’s pattern by the users
thereof. This is particularly the case, considering
the relatively large ranges being claimed as to the
amount of dentifrice deposited (0.1 to 0.75 grams in
the case of claims 1-3, 5-11 and 13-15 and 0.1 to
0.4 grams in the case of claims 4 and 12). [Prior
decision, page 7; emphasis added.]
In light of the above, the examiner is urged to consider
the Best reference cited by the examiner against the claims2
in the parent application and the rationale of the merits
panel in affirming the examiner’s rejection based thereon. In
2 The Best reference (i.e., French patent 1,233,465, with
translation) has been made of record in the present
application by appellants in an Information Disclosure
Statement filed August 25, 1995 (Paper No. 6).
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