Appeal No. 2006-0626 5
Application No. 09/316,990
more preferably 30 to 100 mil (see column 4, lines 22-26), and that suitable elastomers
have a Shore A hardness of at least 30, and preferably from about 35 to 55 (see column 4,
lines 28-30).
Combining Giuliani, Michaels and Roberts to reject claim 1 (see pages 2 and 3 in
the final rejection), the examiner submits that it would have been obvious to substitute
elastomeric members or bristles, i.e., finger elements, for the bristles of Giuliani to obtain
the advantages taught by Michaels, and further to provide such elastomeric finger
elements with rounded tops, a cross sectional diameter and a Shore A hardness as
specified in the claim to enhance performance as taught by Roberts. Recognizing that
Giuliani, Michaels and Roberts do not expressly mention the length of the bristles or
finger elements described therein, the examiner contends that a length responsive to that
recited in claim 1 would have been a “simple design choice encompassing the range of
standard bristles on a tooth brush” (final rejection, page 3).
The appellants do not take issue with these proposed structural modifications of
the device disclosed by Giuliani, and indeed appear to allow that such would have been
obvious for the purpose of producing a desirable toothbrush/gum massager (see page 5 in
the brief). The appellants do contend, however, that the rejection is unsound because the
applied references would not have suggested the reference combination and associated
modifications to Giuliani proposed by the examiner for the purpose of solving the
problem of xerostomia. The following passage from the brief fairly summarizes the
appellants’ position:
. . . there is no teaching or motivation which [would] lead one
skilled in the art to use the Michaels brushhead structure with the Giuliani
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