Appeal No. 2004-1246
Application No. 09/960,948
NASE, Administrative Patent Judge. Concurring-in-part and
dissenting-in-part.
I concur with my colleagues in the affirmance of the rejection
of claims 1-3, 5, 6, 8, 10, 12-14, 16, 17 and 19 under 35 U.S.C.
§ 103(a) as being unpatentable over Funke in view of Beals.
I dissent from my colleagues affirmance of the rejection of
claims 1-3, 5, 6, 8, 10, 12-14, 16, 17 and 19 under 35 U.S.C.
§ 103(a) as being unpatentable over Kemmerer in view of Beals for
the reasons which follow.
Kemmerer’s invention relates to the application of cosmetics,
and more particularly to applicator devices for applying cosmetics,
such as mascara, to the eyelashes. As shown in Figure 1,
applicator 10 comprises a central core 12 having bristles 18, 20
disposed at one end 14 defining a brush section 16, while the other
end 30 comprises handle 32 to facilitate the application of the
mascara and which also serves as a cap for a container 26 when not
in use. Handle 32 has threaded portion 34 designed so as to be
received by complementary threaded portion 36 of container 26 to
seal cap 32 to container 26 so that mascara is stored in a
relatively air-tight manner.
Beals’ invention relates to toothbrushes. Beals teaches that
it is well known that frequent and thorough toothbrushing is
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