Appeal No. 2004-1246
Application No. 09/960,948
that it may be used for applying a dentifrice4 (Funcke, page 1,
lines 65 and 80). We also are of the view that Kemmerer is in the
same broad field of endeavor as the claimed invention in that
Kemmerer clearly pertains to a combination container and
applicator.5 Thus, we consider that Funcke and Kemmerer satisfy
the first prong of the above noted test. Appellant’s arguments on
pages 10 and 15 of the main brief and pages 6-7 of the reply brief
urging that appellant’s field of invention comprises cosmetic
applicators and/or nail polish applicators are not persuasive in
that they are not commensurate in scope with the actual claimed
invention.
Concerning Beals, we note that the “Background of the
Invention” section of appellant’s specification indicates at page
3, last two paragraphs, that applicator caps constructed of hard
material are uncomfortable to hold, and that hard applicator cap
surfaces accelerate the feeling of discomfort and fatigue. We
further note that the “Objects and Summary of the Invention”
4The word “dentifrice” may mean “A paste or powder for
cleaning the teeth.” Webster’s II New Riverside University
Dictionary, copyright © 1984 by Houghton Mifflin Company.
5Kemmerer is likewise in the same field of endeavor as
appellant’s disclosed invention, i.e., an applicator for applying
cosmetics, in that Kemmerer relates to a combination container
and applicator for applying mascara.
7
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