Appeal No. 2004-1246
Application No. 09/960,948
(CCPA 1981). Here, while Kemmerer is silent in regard to a need to
enhance the grip of the brush, Beals expressly teaches that the
composite handle thereof provides, among other things, increased
comfort and a non-slippery gripping area. As we see it, the
incentive on the part of one having ordinary skill in the art for
modifying Kemmerer in the manner proposed by the examiner would
have simply been to gain the advantages Beals’ soft, compressible
overshell construction provides, which advantages the ordinarily
skilled artisan would have readily appreciated as being applicable
to Kemmerer’s mascara applicator brush as well. In this regard, it
is skill in the art, rather than the converse, which we are to
presume. In re Sovish, 769 F.2d 738, 743, 226 USPQ 771, 774 (Fed.
Cir. 1985).
Accordingly, we shall sustain the rejection of claims 1 and 12
as being unpatentable over Kemmerer in view of Beals. We also
shall sustain the rejection of claims 2, 3, 5, 6, 8, 13, 14, 16, 17
and 19 as being unpatentable over Kemmerer in view of Beals since
appellant states on page 14 of the main brief with respect to this
rejection that claims 1-3, 5, 6 and 8 stand or fall together and
that claims 12-14, 16, 17 and 19 stand or fall together.
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