For my non-patent attorney/litigator readers -- the inventor's patent application is directed to a new type of razor-head. The razor-head has a cross shape, which imparts a cutting and rotary action on the hair being shaved.
The Examiner said it wasn't new and it was obvious in light of the prior art. What was the prior art? A pizza cutter.
The applicant's argument -- you can't use a pizza cutter as a razor to shave. The Examiner said the pizza cutter is inherently capable of being used for shaving. But the Examiner went even further -- an experiment was conducted! The Examiner used a rotary pizza cutter and an elongated pizza cutter to shave a block of pork with skin on it. Seriously, that had to be a fun day at work.
Co-worker: "Hey, what's that slab of pork doing in here?"
Examiner: "I'm going to shave it with a pizza cutter."
Co-worker: "Ok. Have fun. Let me know how that goes."
Unfortunately, the Examiner didn't swear to the accuracy of his experiment, or provide sufficient details, so the Board of Patent Appeals and Interferences found it unpersuasive. Rather, the Board held that the applicant rebutted the Examiner's argument.
In particular, we agree with Appellant that Romanoff's pizza cutter is not capable of being used to shave hair because Romanoff's pizza cutter, which is the size of at least one pizza, is too large and unwieldy to be suitable for use for shaving, and because the "blade" of a pizza cutter is typically much duller than a razor blade and thus is not inherently capable of being used for shaving.
I think I'll try shaving tomorrow with my rotary pizza cutter. Or maybe I won't, because the Applicant also conducted an experiment.
The declaration evidence further establishes that pizza cutters do not inherently possess the capability of being used for cutting hairs during shaving. See Elmore Decl. (in which Ms. Elmore declared that she was unable to remove hair by shaving her leg or her dog using an ordinary, household, rotary pizza cutter.")