Appeal 2007-0122
Application 10/358,626
the McCall implement is different than that of the hairbrush of Cousty (id.).
Specifically, McCall is directed to implements with a working tip gripped by
the fingers, e.g., pens and pencils (id.). The hairbrush of Cousty has no
working tip and is not gripped by the fingers (id.).
Appellant further contends that the rejection is overcome by a
showing of indicia of non-obviousness, the invention filling a long-felt need
in the field of hairbrushes (Br. 4-7).
The Examiner contends that the finding of a suggestion to modify the
hairbrush is found in the nature of the problem the references seek to solve
(Answer 8-13). That problem is one of discomfort and fatigue in the fingers
users experience when using implements with handle grips (id.). Further,
the Examiner does not find Appellant’s evidence sufficient to establish a
long-felt need in the art of hairbrushes (Answer 13-16).
Based on the contentions advanced by Appellant and the Examiner
there are two issues: Does a preponderance of the evidence support the
Examiner’s finding that there was a suggestion in the prior art to provide a
hairbrush with a deformable grip? And, if so, has Appellant sufficiently
shown a long-felt need in the art such that the totality of the evidence
supports a conclusion of non-obviousness?
B. Facts
Cousty describes hairbrushes with a flexible and elastic material on
the handle. According to Cousty, there were problems with the hard handled
brushes of the prior art. Painful calluses or callosities would form on the
hairstylist’s fingers, especially on the thumb, due to the movement and
pressure of the fingers over the handle during hairstyling (Cousty, p. 1, col.
1, ll. 7-19). Cousty reduces injury to the fingers by using a using a material
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