DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Priority
Applicant’s claim for the benefit of a prior-filed application under 35 U.S.C. 119(e) or under 35 U.S.C. 120, 121, 365(c), or 386(c) is acknowledged. Applicant has not complied with one or more conditions for receiving the benefit of an earlier filing date under 35 U.S.C. 119(e) as follows:
The later-filed application must be an application for a patent for an invention which is also disclosed in the prior application (the parent or original nonprovisional application or provisional application). The disclosure of the invention in the parent application and in the later-filed application must be sufficient to comply with the requirements of 35 U.S.C. 112(a) or the first paragraph of pre-AIA 35 U.S.C. 112, except for the best mode requirement. See Transco Products, Inc. v. Performance Contracting, Inc., 38 F.3d 551, 32 USPQ2d 1077 (Fed. Cir. 1994)
The disclosure of the prior-filed application, Application No. 61/624,177 fails to provide adequate support or enablement in the manner provided by 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph for one or more claims of this application. The prior filed application fails to provide support for the mouthpiece, or the pump being operable to create oscillatory movement, the movement be variable as recited in independent claim 65, nor where the change in frequencies is random as recited in claim 70.
As such claims 65-79 will receive only a priority date of 03/15/2013.
Response to Arguments
Applicant's arguments filed 03/31/2026 have been fully considered but they are not persuasive.
Applicant has argued that the prior art of Binner et al. fails to provide for new limitation of the “the mouthpiece comprising an outlet along the outer surface thereof, the system is configured to maintain a balanced amount of the treatment fluid within the mouth”, however upon further review and consideration such new limitation are found to be provided for in the prior art of Binner et al. as cited the following action.
No other arguments were presented.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: “pressure wave generator” in claims 65 and 70.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of pre-AIA 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for a patent.
Claims 65-73, and 76-79 are rejected under pre-AIA 35 U.S.C. 102(a) as being anticipated by Binner et al. (US 2012/0021375 A1).
Regarding claims 65, 70, 76, and 77, Binner discloses a system for cleaning one or more teeth within in a mouth of a mammal ([0049]),
a fluid pump (Fig. 3 element 402),
a fluid reservoir in communication with the fluid pump (Fig. 3 element 470),
a mouthpiece in communication (Fig. 18a element 2100 connected to entire device, Fig. 3 element 100) with the fluid pump (Fig. 3 element 400), the mouth piece including a fluid port through which treatment fluid can be delivered to at least partially fil the mouth ( Fig. 3 elements 434/432), the mouthpiece including an inlet opening along an outer surface thereof (Fig. 5/6 inlet openings 132, Fig. 9 elements 1132 connected fluidly to manifold 1146 which can function as inlet openings in paragraph [0206] all disclosing that during use one of manifold 1146/1148 would be supplying fluid while the other removes fluid and thus when manifold 1146 is supplying fluid elements 1132 would be inlet openings) and an impingement surface at a distal portion thereof (Fig. 5/6 elements 116 and 118 being wall surfaces opposite the fluid jet devices of 132, which include in Fig. 7 elements 132/134 at the distal end of the mouthpiece, Figs. 5-15 showing various generators 132/134/1134/1132 that would cause impingement of the liquid jets on the walls, further when in use there would be teeth surfaces opposite the inlet openings and the teeth surfaces would be the impinged upon surfaces opposite the fluid jet device openings, the opening being the lip/walls of the mouthpiece into such opening the teeth would be placed),
the mouthpiece comprising an outlet along the outer surface thereof, the system is configured to maintain a balanced amount of the treatment fluid within the mouth (Fig. 9 elements 1134 on wall of manifold 1148 which in paragraph [0206] all discloses that when manifold 1146 would be supplying fluid as an inlet manifold and associated elements 1134 would be an outlet opening along the outer/outside surface of the mouth piece, further the fluid out and fluid in are being pumped in a balanced amount by a matching push/pull as recited in paragraph [0176] all),
a pressure wave generator coupled to the mouthpiece to direct the treatment fluid along a channel within the mouthpiece towards the impingement surface (Figs. 5-7/9 showing channels at 142/144 or 1142/1144 that direct the treatment fluid along each channel and ultimately towards the impingement surface) for forming liquid jets from liquid jet devices (Applicant discloses that the pressure wave generator can include liquid jet devices as a channel or lumen in paragraph [0069] or openings in paragraph [0101], and Binner discloses Figs. 5-15 showing various generators 132/134/1134/1132 etc., paragraph [0106] lines 1-6, jets, slots, nozzles that perform the function of generating pressure waves by concentrating fluid into streams that are under pressure from the pump and thus when release create waves of their pressure. Because both applicant’s disclosure and Binner disclose the pressure wave generator liquid jet devices as openings for performing the same function, the structures are considered to be identical structures under the 112f analysis. Should applicant disagree the structures are identical, examiner maintains the openings of Binner would be functionally equivalent structure), and the pressure wave generator is configured to direct the treatment fluid to impact an impingement surface at a position opposite the inlet opening and produce pressure waves that eject through the opening (Fig. 5/6 elements 116 and 118 and Fig. 9 elements wall that have element 1132/1134 being wall surfaces opposite the fluid jet devices Figs. 5-15 showing various generators 132/134/1134/1132 that would cause impingement of the liquid jets on the walls, further when in use there would be teeth surfaces opposite the jets and the teeth surfaces would be the impinged upon surfaces opposite the fluid jet devices and the resulting pressure waves would eject through the opening of the lips/walls of the trough that the teeth would enter into as the term opening is not limited to any particular opening shape or configuration and thus provided by the opening of the trough made by elements 114/156/116), and to the mouth after impacting the impingement surface (Figs. 5-8 the fluid would be direct into the mouth by exiting the mouth piece),
a fluid pump operable to create oscillatory movement of the treatment fluid within a mouth, the volume of oscillatory movement being variable by providing the liquid to the fluid port of the mouthpiece (Fig. 3 element 410/420, paragraph [0178] lines 1-8),
the pressure wave generator is configured by connection to a variable fluid pump with a controller to (Fig. 6 elements 132/134, paragraph [0106] lines 1-5) produce and form pressure waves resulting as liquid jets forming multiple/one or more frequencies through the variable functions of the pump which being an analogue system creates continuous ranges which propagate through the treatment fluid retained in the mouth (paragraph [0053] lines 1-10, paragraph [0106] lines 10-11 disclosing the jet opening for “jets of liquid” and paragraph [0122] lines 9-10 the liquid jets are form the treatment fluid by being directed onto the teeth which is retained within the mouth when the fluid is jetted onto the teeth),
further where the pressure wave generator is configured to simultaneously produce pressure waves that propagate within the treatment fluid having multiple frequencies and thus multiple ranges (paragraph [0207] lines 6-9, 13-16, disclosing valves allowing the different portions of the pressure wave generator of the LLC to having different portions engaging at different times and at different intervals, thus different frequencies with the jets resulting in the pressure waves of the fluid when the jets hit a surface) with the controller (paragraph [0163]) configured to control the operation of the fluid pump to cause the fluid pump to create oscillatory movement of the liquid to and from the mouth (paragraph [0163] all disclosing that only the pump causes the back and forth motion thus causing fluid to travel into and out of the mouth) where the controller is configured to cause the fluid pump to automatically and randomly vary the volume and frequency of the oscillatory movement of the liquid to and from the mouth during the treatment procedure (paragraph [0112] lines 1-7, paragraph [0243] lines 1-19, disclosing variable movement by a specialized pump which reverses direction and automatically changes direction and volume and frequency over different times of a treatment procedure), with a first volume of oscillatory movement of the liquid in the mouth and to produce one or more frequencies in a second frequency range when the fluid pump creates a second volume of oscillatory movement of liquid within the mouth (paragraph [0178] lines 1-7, paragraph [0243] lines 1-19, the variable reciprocation of the pump by the controller causes the jets to impinge and thus generate some frequencies in relation to the variable back and forth motion of the pump and thus jets) these first and second frequency ranges would be propagated in the oral fluids retained within the mouth that the liquid jets would hit at those frequencies and transfer the fluid dynamics to the retained oral fluids (paragraph [0123] all disclosing the teeth can be submerged fulling in fluid during treatment).
Regarding claims 66-68, Binner further discloses where the controller is configured to cause the pressure wave generator to produce one or more frequencies in a first frequency range when the pump creates a first volume of oscillatory movement of the liquid in the mouth and to produce one or more frequencies in a second frequency range when the fluid pump creates a second volume of oscillatory movement of liquid within the mouth (paragraph [0178] lines 1-7, paragraph [0243] lines 1-19, the variable reciprocation of the pump by the controller causes the jets to impinge and thus generate some frequencies in relation to the variable back and forth motion of the pump and thus jets) and where the volumes of oscillatory movements are larger and smaller than each other in different uses (paragraph [0053] lines 12-16), thus lower frequencies would create greater volumes and higher frequency would generate lower volumes.
Regarding claim 69, Binner discloses where the fluid pump is operable to create the first volume of oscillatory movement before it creates the second volume of oscillatory movement (The pump is operated by the controller and thus would be programmable to create the first volume before the second, paragraph [0243] all disclosing the pump can operate to deliver larger or small volumes that the timing of the larger or smaller volume can be customized per stroke thus providing for the pump to be operable as claimed).
Regarding claim 71, Binner discloses where one of the frequency ranges is a smaller bandwidth that the other range of frequencies (paragraph [0053] lines 7-10 with 0.5-50Hz larger than 5-25Hz).
Regarding claims 72 and 73, Binner further discloses where one frequency range is about 0.Hz to about 100Hz (paragraph [0053] lines 7-10 with 0.5-50Hz larger than 5-25Hz thus being configured due to the operable capability of the pump).
Regarding claim 78, Binner further discloses wherein the pressure wave generator is configured to automatically transition between generating pressure waves in the first frequency range and the second frequency range (paragraph [0103] disclosing the change in treatment is automated, paragraph [0243] lines 1-25 disclosing the pump and connected pressure wave generator can automatically have the volume/velocity and pressure be automatically controlled by AI).
Regarding claim 79, Binner further discloses wherein the first frequency range is configured to generate larger first volumetric motions of the treatment fluid to remove larger volumes of dental deposits (paragraph [0243] lines 17-23, relatively large volumes can be provided and the pump volume being changed per stroke) , wherein the second frequency range is configured to generate smaller second volumetric motions of the treatment fluid to remove smaller volumes of dental deposits (paragraph [0243] lines 23-29 a low or no pulses and thus relatively small volumes compared with lines 17-23, further paragraph [0053] all disclosing the volume of delivery for a first frequency can be different than a second frequency range by different pulses and relative velocities).
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under pre-AIA 35 U.S.C. 103(a) are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims under pre-AIA 35 U.S.C. 103(a), the examiner presumes that the subject matter of the various claims was commonly owned at the time any inventions covered therein were made absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and invention dates of each claim that was not commonly owned at the time a later invention was made in order for the examiner to consider the applicability of pre-AIA 35 U.S.C. 103(c) and potential pre-AIA 35 U.S.C. 102(e), (f) or (g) prior art under pre-AIA 35 U.S.C. 103(a).
Claims 74 and 75 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Binner (US 2012/0021375 A1) in view of Bergheim et al. (2012/0237893 A1).
Binner discloses structure substantially identical to the instant application as discussed above but fails to explicitly disclose where the controller is configured to cause the pressure wave generator to produce a second range of 100 kHz to 500 kHz.
However Bergheim discloses an apparatus and method of cleaning root canals (title and abstract) with fluid pressure wave generation in the range of 100kHz (paragraph [0056] lines 12-13) for cleaning a portion of the tooth.
Therefore it would have been obvious to one having ordinary skill in the art at the time of the invention to incorporate the use of the second range of 100kHz into the pump frequencies configuration as taught by Bergheim into the pump frequencies as taught by Binner for the purpose of providing improved cleaning and cavitation through the cleaning system as taught by Bergheim (paragraph [0167] lines 21-33). Further it has been held that a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus satisfying the claimed structural limitations. Ex Parte Masham, 2 USPQ F.2d 1647 (1987).
Claims 74 and 75 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Binner (US 2012/0021375 A1) in view of Van Hauwermeiren et al. (WO 01/36117 A1).
Binner discloses structure substantially identical to the instant application as discussed above but fails to explicitly disclose where the controller is configured to cause the pressure wave generator to produce a second range of 100 kHz to 500 kHz.
However Van Hauwermeiren discloses an apparatus and method of cleaning root canals (title and abstract, page 6 lines 23-24) with fluid pressure wave generation in the range of 100kHz (page 11 line 4 disclosing 100kHz) for cleaning a portion of the tooth.
Therefore it would have been obvious to one having ordinary skill in the art at the time of the invention to incorporate the use of the second range of 100kHz into the pump frequencies configuration as taught by Bergheim into the pump frequencies as taught by Binner for the purpose of providing improved cleaning efficacy as taught by Van Hauwermeiren (page 7 lines 9-10). Further it has been held that a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus satisfying the claimed structural limitations. Ex Parte Masham, 2 USPQ F.2d 1647 (1987).
Claims 74 and 75 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Binner (US 2012/0021375 A1) in view of Gharib et al. (US 2007/0248932 A1).
Binner discloses structure substantially identical to the instant application as discussed above but fails to explicitly disclose where the controller is configured to cause the pressure wave generator to produce a second range of 10kHz to 1000kHz or 100kHz to 500kHz.
However Gharib discloses an apparatus and method of cleaning root canals (title and abstract) with fluid pressure wave generation with multiple frequency ranges (paragraph [0071] lines 14-15) in with a portion of frequencies in the range of 10kHz-1000kHz including 20kHz(paragraph [0071] lines 12-17) for cleaning a portion of the tooth.
Therefore it would have been obvious to one having ordinary skill in the art at the time of the invention to incorporate the use of the second range of 10-1000kHz into the pump frequencies configuration as taught by Bergheim into the pump frequencies as taught by Binner for the purpose of providing improved cleaning and cavitation through the cleaning system as taught by Bergheim (paragraph [0167] lines 21-33). Further regarding the limitation of 100-500khz it would have been obvious to one having ordinary skill in the art at the time the invention was made to further select the second range of 100-500kHz, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MATTHEW P SAUNDERS whose telephone number is (571)270-3250. The examiner can normally be reached M-F 9am-5pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Edelmira Bosques can be reached at (571) 270-5614. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/M.P.S/Examiner, Art Unit 3772 06/08/2026
/EDELMIRA BOSQUES/Supervisory Patent Examiner, Art Unit 3772
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