Appeal No. 2006-0276
Application 10/144,463
and thus, “one of ordinary skill in the art would not make the connection between hairbrushes,
hair curlers and breadsticks without the benefit of impermissible hindsight” (id., page 6).
Appellant further submits that the “main teaching of both Hays and [Wellman] is the advent of
‘portable pasta,’” and that “[a]lthough the use of winding spaghetti with a breadstick is taught in
these references, there is no specific teaching that portable pasta would necessarily employ a
breadstick utensil . . . [as in] fact, most people eat spaghetti by winding it about the smooth sides
of a fork” and “[m]odifying a fork to include radial, random projections would be
counterintuitive” (id., pages 7-8).
The examiner responds that the motivation to combine is based on the teaching in
Vecchiola that spaghetti and hair can analogously be wound around rod-shaped utensils (answer,
page 7). The examiner further argues that Hays and Wellman teach “winding elongated pasta
around a breadstick as an alternative to the use of conventional tableware,” and thus, in view of
the teachings of Vecchiola and Magee, “one of ordinary skill in this art would have recognized
that an improvement over the breadstick of Hays/[Wellman] . . . would be to include projections
on the breadstick” (id., pages 7-9).
Appellant replies that “[t]he common definition of ‘utensil’ is ‘an instrument, implement,
or container used domestically, especially in a kitchen,” citing www.dictionary.com, arguing that
to hold “that a hair groom device, such as the hair curlers taught by Magee . . . is equivalent to a
utensil is simply erroneous” (reply brief, pages 1-2 and 4-5). Appellant, quoting col. 1, ll. 26-40,
of Vecchiola, argues that “although some of the characteristics of human hair and spaghetti are
similar, these characteristics alone would not motivate one of ordinary skill in the art to combine
hair grooming devices with utensils for eating spaghetti,” contending that the similarities are
“superficial” (id., page 3).
We find substantial evidence in the record supporting the examiner’s position. We find
that Hays (page 2) and Wellman (page 1) both report that during interviews, a Mr. Robert (Bob)
Berman states that on a dinner occasion, his daughter Ashley “twirled” “spaghetti” or “linguini,”
both well known to be elongated strands of pasta, “around a bread stick” and “held it up” just as
she did using a fork, and “ate her linguini without benefit of tableware.” Thus, as a matter of
fact, the use of a breadstick to wind and retain elongated pasta such that the elongated pasta-
wound breadstick can be held up in the air and eaten, was described in a printed publication
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