Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-2, 5, 7-8, 11-12, 14, 19-20, 24, 26-35, and 42 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The claim(s) recite(s) a method for remote monitoring the position of a patient’s teeth. This judicial exception is not integrated into a practical application because the claim is directed towards an abstract idea with additional generic computer elements. The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the additional limitations only retrieve a model which is well understood, routine and conventional computer functions.
Step 1: The claims directed to “a method of dental treatment”, that apparently is intended to use a generic system, including a camera to obtain a digital representation of the teeth. The “method” is within the 35 U.S.C. 101 statutory category of a “process” (MPEP 2106.03), but falls into the judicial exception (MPEP 2106.06).
Step 2A: In regards to the claimed, the claimed invention is directed to an abstract idea (MPEP 2106.04(a)) without reciting additional elements that amount to significantly more than the judicial exception (MPEP 2106305). The claimed invention is directed towards a mental process and organizing human activity, both of which are abstract ideas. The concepts that are capable of being performed in the human mind including observations, evaluations and judgements. Such that the claimed modeling may be done mentally, such that the dentist and/or patient draws the teeth in the target position and the updated position and then the models are mentally compared. The step of sending a reminder to the patient, does not require a transformation, such that a message can be provided to the patient that they should provide an updated model. Further the step of “administer a therapeutic or a preventive treatment to the patient” does not require a procedure to be performed on the patient, such that it can be provided to the patient orally or written. The claimed limitation “designing a physical orthodontic appliance to manufacture” does not require the actual manufacture of the appliance and therefore, the claims does not require a transformation. It is noted that dentist have long practiced their art/trade of orthodontics well before the advent of computers and are most certainly capable of comparing target and updated models. It is noted that there is no claimed transformation of the information. Such that the comparing can be done by the patient at home and that comparison will inform the patient as to what they should do and the designing of the appliance can be done on a piece of paper or in a user’s head. The claimed method is further an abstract idea of generally organizing human behavior, such as managing interactions between people.
Step 2B: In regards to the claims, the claims steps are all algorithms capable of being performed mentally and represent nothing more than concepts related to performing mathematical calculations which fall within the judicial exception. The claimed invention is the intended use of computer or data processing device, however, there is no disclosure in the written that the processing unit is anything more than a generic component, nor is there any disclosure that the method improves the manner in which the processing unit operates. The mere recitation in the claims of a generic conventional processing unit that is used in a conventional manner to perform conventional computer functions that are well understood and routine does not amount to “significantly more” than the judicial exception. The claims do not go beyond “determining” and “calculating” numerical values based on mathematical algorithms with a standard generic computer. The analysis of data in a particular field and the stating those functions in general terms, without limiting them to technical means for performing the functions is an abstract idea and does not meet the requirements of 365 U.S.C. 101. The claims do not require that the method be implemented by a particular machine and they do not require that the method particularly transform a particular article. The claims set forth a process of analyzing information of a specific content and are not directed to any particularly asserted inventive technology for performing those functions. Nothing in the claims or specification requires anything more than a conventional prior art computer for analyzing number according to a mathematical algorithm. The claimed method falls with the judicial exception to patent eligible subject matter of an abstract idea without significantly more.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-2, 5, 7-8, 12, 14, 19-20, 24, 26-35, and 42 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. The new amendment including the limitation “physical orthodontic appliance” and “to manufacture” is not supported in the originally filed specification. It is noted that the applicant has support for designing an orthodontic appliance, however, does not have support for manufacturing a physical appliance.
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-2, 5, 7-8, 11-12, 14, 19-20, 24, 26-35, and 42 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 claims the limitation of “an updated model” and “to create an updated position of said teeth in the form of said updated model”. It is unclear from the claim limitations what the model is “updated” relative to as the applicant has not claimed a model to be updated. It is noted that for examination purposes, the claimed updated model is being interpreted as being a model of the teeth during orthodontic treatment, such that it is updated relative to previous arrangements of the teeth during the orthodontic treatment or a starting position of the teeth prior to the start of the orthodontic treatment, however, the applicant should amend the claim to clarify what is being claimed.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 1-2, 7-8, 14, 19-20, 24, 26, 28, 33, and 35 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kitching et al. (2008/0306724) in view of Recknor (2014/0088607) in view of Cam et al. (2014/0257051) in view of Vendittelli (2012/0288818) in view of Ariff et al. (2006/0270935).
With respect to claim 1, Kitching teaches a method of dental treatment, the method comprising the following steps a) informing the patient of the need for a three-dimensional updated digital model to be created (par. 38, such that appointments are created and at the appointments updated 3D models are created, see steps 270, 272), b) after a time interval following step a) processing photos to create an updated position of the teeth in the form of the updated model (par. 73 regarding the model being a 3d digital model, pars. 36, 38, the submitted photos being the updated model), wherein the processing is done with a computer (pars. 36, 38, 73), c) comparing a target and the updated model using an algorithm to supply a distance between characteristic points on the target model and same characteristic points on the updated model, the target model being a modeling of a target position of said teeth and being an image or three-dimensional digital model (par. 34, 44, 62, 64-71), wherein different practical information is supplied depending on a position of the distance with respect to at least one threshold (see pars. 71-72, table 1, such that depending on if the teeth are on track or not is determined such that if they are within the threshold they are on track and if they are outside the threshold, they are off track, the practical information being supplied is different depending if the teeth are on track or off track, pars. 36, 38 such that if they are on track the practical information is that the treatment is progressing as planned, if they are off track the practical information being an assessment is made as to how to proceed, such as the information being a revised treatment plan), and d) based on the information supplied designing a physical orthodontic appliance to manufacture (pars. 36, 38, 61, such that if the teeth are not tracking an appliance to be manufactured is designed) and, administer a therapeutic or a preventive treatment to the patient (pars. 36, 38, 59, 61, 69-72, such that if on track a therapeutic treatment is received in that the subsequent appliances are provided to the patient to be used and if off track a preventive treatment is provided such that the aligners of the revised treatment plan are provided to the patient to get the teeth back on track and thereby preventing improper movement of the teeth if they were to continue with the original treatment plan). Kitching teaches the updated model being a photo remotely taken (par. 38, such that the photo is sent to the practitioner) and the terminal which the photos are sent from can be a personal computer (par. 37), however, does not specifically teach sending to the patient at least one reminder informing the patient of the need for a three-dimensional updated digital model to be created, wherein the updated model is photo and/or film acquired using an individual apparatus by the patent or by one of the patient’s relations to create a updated position of the teeth in the form of the updated model, the individual apparatus being one or more of a cell phone, a smart watch or a digital tablet, wherein the acquiring of the photos is carried out outside of an orthodontic practice and wherein in step b) error prevention means guide the patient or the one of the patient’s relation by visual messages and/or audio messages and/or written messages and/or voice messages and/or on the basis of information supplied by the target model.
Recknor teaches a method for dental treatment (see par. 68), the method comprising the following steps: b) processing measurements of the patients’ teeth, the measurements being acquired using an individual apparatus by the patient or by one of the patient’s relations to create an updated model, the individual apparatus being one or more of a cell phone, a smart watch and a digital tablet (pars. 68, 63, 65, such that it is a phone); c) tracking the progression of movement of the teeth between office visits, wherein different practical information is supplied depending on the tracking of the progression (par. 64, 68, such that depending on the review of the data, different information is provided to the patient such that the information being that the user should visit the physician or they are sent information regarding adjustments to me made at home) and d) depending on the information supplied, a treatment is supplied to the patient (pars. 68, 64, such that the user visits the physician so that the treatment can be changed/adjusted). It would have been obvious to one having ordinary skill in the art before the effective filling date of the invention to modify the source of the updated model to be from a cell phone to be used by the patient and initiation a visit based on the updated model as taught by Recknor in order to save the patient a trip to the office. Such that if the treatment is tracking, then the patient does not need to make a trip to the office, but if it is determined that the treatment is not properly tracking then they can be alerted that they need to schedule a visit to the office to modify the treatment. Kitching/Recknor teaches the invention as substantially claimed and discussed above, however, does not specifically teach the image of the updated model is created by processing photos or a film acquired by the patient from the individual apparatus and the patient is sent at least one reminder informing the patient of the need for a three-dimensional updated digital model to be created and wherein in step b) error prevention means guide the patient or the one of the patient’s relation by visual messages and/or audio messages and/or written messages and/or voice messages and/or on the basis of information supplied by the target model.
Cam teaches a method for obtaining dental images including processing photos being acquired using an individual apparatus, wherein the individual apparatus is one of a cell phone, a smart watch and a digital tablet) and the photos are processed to create a 3D digital model (see par. 56, such as a phone is used to take pictures and the photos are reconstructed, i.e. processed to make a 3D model). It would have been obvious to one having ordinary skill in the art before the effective filling date of the invention to modify the data obtained by the user from their cell phone as taught by Kitching/Recknor with the images taught by Kitamura to create a 3D model of the teeth in order to provide for more accurate results. Such that the images are processed in a 3D model and can be compared in three dimensions with the target model to provide for more accurate comparison in three dimensions. Kitching/Recknor/Cam teaches the invention as substantially claimed and discussed above, however, does not specifically teach the patient is sent at least one reminder informing the patient of the need for a three-dimensional updated digital model to be created and wherein in step b) error prevention means guide the patient or the one of the patient’s relation by visual messages and/or audio messages and/or written messages and/or voice messages and/or on the basis of information supplied by the target model.
Vendittelli teaches a method for monitoring orthodontic treatment including sending the patient at least one reminder (par. 35, i.e. “create and send automatic reminders in real time to the patient”, “a first email or text message is sent to the patient to remind the patient to end use of the current alinger”, par. 36 “automatically generating reminders of upcoming orthodontist appointments”). It would have been obvious to one having ordinary skill in the art before the effective filling date of the invention to modify the method of Kitching/Recknor/Cam with the step of providing the patient with a reminder for a step of the orthodontic treatment process that they need to perform in order to ensure that the treatment stays on track. It is noted that the modification of Kitching/Recknor/Cam/Vendittelli teaches the invention as substantially claimed, such that reminder of Vendittelli would include reminding the patient that an updated image is needed, as it is part of the orthodontic treatment. Kitching/Recknor/Cam/Vendittelli teaches the invention as substantially claimed and discussed above, however, does not specifically teach wherein in step b) error prevention means guide the patient or the one of the patient’s relation by visual messages and/or audio messages and/or written messages and/or voice messages and/or on the basis of information supplied by the target model.
Ariff teaches a method of dental treatment comprising processing images being acquired using an apparatus to create a model (pars. 87, 102, 135, claim 8) and wherein in step b) error prevention means guide the patient or the one of the patient’s relation by visual messages and/or audio messages and/or written messages and/or voice messages (see par. 135, such that if the image was not properly captured audio or visual signals are provided to the user to re-test/image the last tooth. Such that signals are an error prevention means in that it prevents incomplete images, further see pars. 351 and 365). It would have been obvious to one having ordinary skill in the art before the effective filling date of the invention to modify the method Kitching/Recknor/Cam/Vendittelli to include the error prevention means taught by Ariff in order to ensure a usable image has been taken in order to save the user from having to redo the image at a later date.
With respect to claim 2, Kitching/Recknor/Cam/Vendittelli/Ariff teaches the invention as substantially claimed and discussed above, Recknor further teaches wherein the individual apparatus is a cell phone (par. 65).
With respect to claim 7, Kitching/Recknor/Cam/Vendittelli/Ariff teaches the invention as substantially claimed and discussed above, Kitching further teaches the time interval between steps a) and b) is indeterminate and depends on decision of the patient (pars. 51-52, such that there is “suggested timing” and therefore depends on the patient’s decision, note that the appointment can be for tracking, such that when the photo is taken for tacking is dependent on the patient’s decision, par. 55, such that the user can select the appointment).
With respect to claim 8, Kitching/Recknor/Cam/Vendittelli/Ariff teaches the invention as substantially claimed and discussed above, Kitching further teaches in which the time interval between steps a) and b) is determined by an orthodontist according to a monitoring schedule (pars. 51-52, such that the timing can be specific).
With respect to claim 14, Kitching/Recknor/Cam/Vendittelli/Ariff teaches the invention as substantially claimed and discussed above, Kitching further teaches in which the target model is a photo or a view of a 3D model (pars. 24, 79-74, fig. 11).
With respect to claim 19, Kitching/Recknor/Cam/Vendittelli/Ariff teaches the invention as substantially claimed and discussed above, Kitching further teaches wherein the target model is a three-dimensional digital model (pars. 24, 79-74, fig. 11) and Cam further teaches wherein the processing of photos and/or film is a processing of photos (par. 56, i.e. pictures).
With respect to claim 20, Kitching/Recknor/Cam/Vendittelli/Ariff teaches the invention as substantially claimed and discussed above, Kitching further teaches in which at step c) the comparison is carried out automatically or semi-automatically using and the algorithm is a 3D best fit algorithm (pars. 59, 65-69).
With respect to claim 24, Kitching/Recknor/Cam/Vendittelli/Ariff teaches the invention as substantially claimed and discussed above, Kitching further teaches wherein in step c) the different practical information is supplied, depending on a position of said distance with respect to several thresholds fixed by a dental professional (pars. 71, 78, table 1, such that the different practical information is that if the teeth are on track or off-track and the thresholds being the different thresholds for the different movement types and teeth).
With respect to claim 26, Kitching/Recknor/Cam/Vendittelli/Ariff teaches the invention as substantially claimed and discussed above, Recknor further teaches the cell phone displays images showing the position of the teeth at different dates (pars. 66, 68, such that it can show progression).
With respect to claim 28, Kitching/Recknor/Cam/Vendittelli/Ariff teaches the invention as substantially claimed and discussed above, Kitching further teaches, in which steps b) and c) are repeated (see fig. 5, such that there are at least two process track steps) to evaluate the speed at which an orthodontic treatment causes the position of the teeth to change (such that the speed at which the teeth moving a evaluated with respect to being on track or off track as planned, par. 77-78).
With respect to claim 33, Kitching/Recknor/Cam/Vendittelli/Ariff teaches the invention as substantially claimed and discussed above, Kitching further teaches the method further comprising using a result of the comparing to evaluate the efficacy of an orthodontic treatment (such as if the treatment is on-track or off track).
With respect to claim 35, Kitching/Recknor/Cam/Vendittelli/Ariff teaches the invention as substantially claimed and discussed above, Kitching further teaches comprising remotely monitoring the position of a patient’s teeth, in a course of an orthodontic treatment (see fig. 3c, pars. 37-38, such that there is a third-party practitioner where the photos are sent to an analyzed, therefore it is remote from the patient). Recknor further teaches remotely monitoring a course of an orthodontic treatment (par. 68).
Claim(s) 5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kitching et al. (2008/0306724) in view of Recknor (2014/0088607) in view of Cam et al. (2014/0257051) in view of Vendittelli (2012/0288818) in view of Ariff et al. (2006/0270935) as applied to claim 2 above, and further in view of Matsumiya (2004/0136580).
Kitching/Recknor/Cam/Vendittelli/Ariff teaches the invention as substantially claimed and discussed above including Cam teaching acquiring multiple photos (par. 56, “pictures”), however, does not specifically teach the updated model is produced from three photos including a front view, a right view and a left view.
Matsumiya teaches a method of modeling a position of the teeth including the model is produced by at least three photos corresponding to a view of the patient’s teeth from the front, a view of the patient’s teeth from the right and a view of the patient's teeth from the left (see figs. 2, 6, abstract). It would have been obvious to one having ordinary skill in the art before the effective filling date of the invention to modify the multiple images as taught by Kitching/Recknor/Cam/Vendittelli/Ariff to include all side of the dentition in order to ensure a complete image of the dentition is received.
Claim(s) 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kitching et al. (2008/0306724) in view of Recknor (2014/0088607) in view of Cam et al. (2014/0257051) in view of Vendittelli (2012/0288818) in view of Ariff et al. (2006/0270935) as applied to claim 11 above, and further in view of Taub et al. (6,695,613).
Kitching/Recknor/Cam/Vendittelli/Ariff teaches the invention as substantially claimed and discussed above however, does not specifically teach at least part of the target model or at least part of a reference model appears in transparency to the patient or to said one of his relation during the acquisition.
Taub teaches a method of providing the user with the target model during acquisition and providing in transparency the model being imaged (see fig. 4c). It would have been obvious to one having ordinary skill in the art before the effective filling date of the invention to modify the acquisition module of Kitching/Recknor/Cam/Vendittelli/Ariff to include an overlay of the model with what is being images to help guide the user in acquainting the correct image. While it is noted that Taub teaches the reverse, i.e. the target model being solid and the model to be acquired in transparency, it would have been obvious to one having ordinary skill in the art before the effective filling date of the invention to reverse how the models as a matter of obvious design choice. Such that the user may prefer the reverse.
Claim(s) 29-31 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kitching et al. (2008/0306724) in view of Recknor (2014/0088607) in view of Cam et al. (2014/0257051) in view of Vendittelli (2012/0288818) in view of Ariff et al. (2006/0270935) as applied to claim 2 above, and further in view of Quadling et al. (2007/0211081).
Kitching/Recknor/Cam/Vendittelli/Ariff teaches the invention as substantially claimed and discussed above including Kitching teaching the target model is a 3D model and Recknor teaching the target model is rendered visible on a screen of a cell phone operated by the patient (see fig. 8H, par. 68), however, does not specifically teach the target model being represented, on a preview image representing a real scene observed by a camera of the cell phone, as said target model would appear to said camera if it was in the real scene.
Quadling teaches a method with respect to claim 29, a method comprising providing a target model being represented, on a preview image representing a real scene observed by a camera, the target model would appear to the camera as if it was in the real scene (see abstract, such that a real object is displayed with a digital model, pars. 10-11, par. 32 regarding use in orthodontics). It would have been obvious to one having one having ordinary skill in the art before the effective filling date of the invention to modify Kitching/Recknor/Cam/Vendittelli/Ariff with the displaying of the model in an augmented reality as taught by Quadling in order to help the patient better envision the outcome of the treatment.
With respect to claim 30, Kitching teaches the modeling of the target position of the teeth in the form of a target model involves a generation of two-dimensional images (par. 38, such that the target model is created using photos).
With respect to claim 31, Kitching/Recknor/Cam/Vendittelli/Ariff the invention as substantially claimed and discussed above, including using both 3D and 2D images, the target model being a 3D target model, however, does not specifically teach the two-dimensional images are images from the three dimensional target model.
Quadling teaches using 2D images to from the 3D target model (pars. 24, 26, 35, such that the 3D model is made from the 2D images, therefore, the 2D images used are from the 3D model). It would have been obvious to one having one having ordinary skill in the art before the effective filling date of the invention to modify Kitching/Recknor/Cam/Vendittelli/Ariff with the displaying of the model in an augmented reality as taught by Quadling in order to help the patient better envision the outcome of the treatment. Further it is noted that the prior art teaches several different method of acquiring images including using a device to acquire a 3D images or processing 2D images to obtain a 3D model. It is noted that both method are known and result in the same outcome, a 3D model. Therefore, the specific method of acquiring and 3D model would have been an obvious matter of design choice.
Claim(s) 27 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kitching et al. (2008/0306724) in view of Recknor (2014/0088607) in view of Cam et al. (2014/0257051) in view of Vendittelli (2012/0288818) in view of Ariff et al. (2006/0270935) as applied to claim 26 above, and further in view of Andreiko (2009/0098502).
Kitching/Recknor/Cam/Vendittelli/Ariff teaches the invention as substantially claimed and discussed above including Recknor teaching obtaining, storing and displaying images on a cell phone throughout treatment, however, does not specifically teach displaying an image having first and second portions showing the positions of the teeth at different first and second dates.
Andreiko teaches displaying an image having first and second portions showing the positions of the teeth at different first and second dates (par 87, such that they are comparing two different models which could be images at different date during the treatment). It would have been obvious to one having ordinary skill in the art before the effective filling date of the invention to modify Kitching/Recknor/Cam/Vendittelli/Ariff to allow the patient to compare the progress of their treatment during different stages of treatment.
Claim(s) 32 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kitching et al. (2008/0306724) in view of Recknor (2014/0088607) in view of Cam et al. (2014/0257051) in view of Vendittelli (2012/0288818) in view of Ariff et al. (2006/0270935) in view of Quadling et al. (2007/0211081) as applied to claim 31 above, and further in view of Taub et al. (6,695,613).
Kitching/Recknor/Cam/Vendittelli//Ariff/Quadling teaches the invention as substantially claimed and discussed above, however, does not specifically teach the screen displays a view of the target model corresponding to a photo to be taken with the cell phone.
Taub teaches a method of using a camera including the screen displays a view of the target model corresponding to a photo of the camera (see fig. 4c, such that the camera photo 33’ is displayed over the model 33). It would have been obvious to one having ordinary skill in the art before the effective filling date of the invention to modify Kitching/Recknor/Cam/Vendittelli/Ariff/Quadling to include the screen displaying the model and the photo to be taken as taught by Taub to help guide the user to ensure the photo being taken includes the proper teeth.
Claim(s) 34 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kitching et al. (2008/0306724) in view of Recknor (2014/0088607) in view of Cam et al. (2014/0257051) in view of Vendittelli (2012/0288818) in view of Ariff et al. (2006/0270935) as applied to claim 2 above, and further in view of Lemchen et al. (5,278,756).
Kitching/Recknor/Cam/Vendittelli/Ariff teaches the invention as substantially claimed and discussed above, however, does not specifically teach the result of the comparing to monitor the development of the position of teeth independently of an orthodontic treatment.
Lemchen teaches a method comprising monitoring the development of the position of teeth independently of an orthodontic treatment (col. 1, ll. 65-68, col. 2, ll. 1-9, such that the images are taking several years after orthodontic treatment, and therefore, the monitoring of the position is independent of an orthodontic treatment). It would have been obvious to one having ordinary skill in the art before the effective filling date of the invention to modify Kitching/Recknor/Cam/Vendittelli/Ariff to include the step of monitoring the position of teeth independently of an orthodontic treatment as taught by Lemchen in order to determine treatment success.
Claim(s) 42 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kitching et al. (2008/0306724) in view of Recknor (2014/0088607) in view of Cam et al. (2014/0257051) in view of Vendittelli (2012/0288818) in view of Ariff et al. (2006/0270935) as applied to claim 1 above, and further in view of Carlsson et al. (6,208,813).
Kitching/Recknor/Cam/Vendittelli/Ariff teaches the invention as substantially claimed and discussed above, however, does not specifically teach the target model supplies information concerning the position of the teeth with an error of less than 5/10 mm.
Carlsson teaches a method including taking a photo of the mouth with an error of less than 5/10 mm (see claim 1, such that the error is +/- 0.02mm). It would have been obvious to one having ordinary skill in the art before the effective filling date of the invention to modify the quality of the images taught by Kitching/Recknor/Cam/Vendittelli/Ariff with that of Carlsson in order to ensure a high-quality image/model to ensure that proper treatment is carried out.
Response to Arguments
Applicant's arguments filed March 2, 2026 have been fully considered but they are not persuasive.
The applicant argues that the claims recite features with enough particularity whereby the features cannot reasonably be considered to be something that could be done in the human mind. The applicant argues that the claims require specific characteristic point analysis and the human mind is not capable of reconstructing an accurate digital three dimensional model form 3D images to automatically identify characteristic points to calculate a numerical spatial distance between homologous point, to calculate precise dimensional deviations in the numerical coordinates, to apply a predefined numerical threshold, to automatically generate an updated digital model, to generate automatic conditional output. However, first is it noted that the accuracy of the model is not claimed and is further relative and therefore, the argument regarding the human mind is not capable of creating an accurate model is not persuasive. Further, it is noted that the applicant has only claimed using an algorithm to “supply a distance between characteristic points on the target model and same characteristic points on the updated model”. It is noted that a user can easily compare “points” on two different models, such as hand drawn models to determine a distance between those points and further determining a threshold, such as for example if it is greater than 1mm, then it is off track. It is noted that the applicant does not claim any limitations directed towards “numerical coordinates” and “a numerical spatial distance” and therefore, the arguments related to those arguments are not persuasive. It is noted that while the method may not be practical to carryout in the mind or on a piece of paper, it is still capable of being done and therefore, is still a judicial exception is not integrated into a practical application. The applicant argues that the new limitation of “designing a physical orthodontic appliance to manufacture” also overcome the 101, however, it is noted that the limitation does not require the transformation. Such that the appliance is only designed, i.e. digitally. It is suggested that the applicant amend the claim to positively claim manufacturing the appliance to overcome the 101 rejection.
With respect to the 112 rejection regarding the limitation of “an updated mode”, the applicant claims that an initial model does not need to be claimed. While it is noted that the applicant does not need to claim an initial model, the limitation of “an updated model” is unclear as it is unclear how it is updated or what it is updated relative to.
The applicant argues that the prior art of Kitching lacks the claimed steps including "sending to the patient at least one reminder informing the patient of the need for a three-dimensional updated digital model to be created, wherein the updated model is photo and/or film acquired using an individual apparatus by the patent or by one of the patient's relations to create a updated position of the teeth in the form of the updated model, the individual apparatus being one or more of a cell phone, a smart watch or a digital tablet, wherein the acquiring of the photos is carried out outside of an orthodontic practice." However, it is noted that the prior art of Kitching has not been used to teach all the above steps and therefore, the applicant’s arguments are moot. It is noted that Kitching does teach a remote computer-based model comparison that is used to administer a dental procedure. Such as discussed in pars. 37-38 of Kitching the prior art teaches a client terminal and a server terminal which are remote of each other and communicate via a network. Paragraph 86 also teaches the imaging element, i.e. the scanner, being at a remote location with respect to the other components of the system. Kitching also teaches that the server terminal is accessible by a third party that can participate in one or more steps of the preces including progress tracking (par. 37). Therefore, Kitching teaches the idea of remote monitoring such that photos and information is gathered at one location and sent through a network to a third party at a remote location for processing, such as the tracking as claimed. What Kitching does not specifically teach, that the secondary references are used to teach is that the remote location not being an orthodontics/practitioner’s office and the photos taken on a personal device.
The applicant further argues that one having ordinary skill in the art would not have been motivated to modify Kitching with the prior art of Recknor as it is directed towards measuring and evaluation kyphosis. However, it is noted that the prior art of Recknor teaches a method of remote monitoring of orthodontic treatment (par. 68) and therefore, the applicants’ arguments are not persuasive. The applicant further argues that Recknor does not teach any creation of a 3D model from a 2D model, however, it is noted that the prior art of Recknor has not been used to teach the limitation of the creating of a 3 model from a 2D model, therefore, the applicant’s arguments are not persuasive.
The applicant further argues that the prior art of Cam, Vendittello and Ariff are all directed towards different methods and not a method of remotely monitoring teeth for orthodontic treatment. However, it is noted that each of the cited arts is used in combination with the prior rat of Kitching and Recknor which teaches the remote monitoring of orthodontic treatment. It is noted that the arts are all analogous are as they are in the same field as the claimed invention, such as the dental field.
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
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.
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/HEIDI M EIDE/Primary Examiner, Art Unit 3772 3/30/2026
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