"Nonanalogous Art" Argument Fails Again

In IN RE BIGIO, No. 03-1358 (Fed Cir. August 24, 2004), the nonanalogus art argument was unsuccessful for overcoming a combination references to obviate a utility patent claim for a hairbrush. According to the Federal Circuit,

In this case, both the examiner and the Board found that toothbrush art is analogous to Bigio's hair brush invention. In support of that finding, the Board referred to the structure and function of the claimed invention in the application. The Board further assessed the field that one of skill in this art would consider within the same endeavor as the claimed invention. In other words, the Board applied the test for analogous art in keeping with the counsel of this court's predecessor: "The differences are mere change of size and substitution of material of the most obvious kind, on a par with the differences between a hairbrush and a toothbrush." In re Wolfe, 251 F.2d 854, 856 (CCPA 1958) (emphasis added).

In this case, the term "hair brush" alone does not specify the kind of hair to be groomed by the claimed invention. Thus, the term may reasonably encompass not only scalp hair brushes but also facial hair brushes. The Board correctly declined to accept Bigio's invitation to narrow the interpretation only to scalp hair by importing a limitation from the specification. Moreover, the Board's interpretation does not strain the bounds of the "broadest reasonable interpretation" of the term "hair brush." Indeed that term may reasonably encompass more than a grooming device for scalp hair. This court therefore affirms the Board's interpretation of "hair brush."

Because there is no dispute that the combination of the three toothbrush references renders Bigio's invention obvious, this court's affirmance of the Board's finding that toothbrush art is analogous to Bigio's invention disposes of all remaining issues in this appeal.