DETAILED ACTION
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 .
Response to Amendment
This action is in response to Applicant’s amendment filed 2/6/26.
The amendments to the abstract have been entered.
Response to Arguments
Applicant's arguments filed 2/6/26 have been fully considered but they are not persuasive.
Applicant first argues that the device of Geier is not “elongate” as required by claim 1, as the device is too tall to be considered as such, and must be “much longer than it is wide”. However, the Examiner disagrees for several reasons. First, Applicant’s definition is not the broadest reasonable interpretation of the term; the BRI is instead the broader definition of “extended”, or “lengthened” or “long and thin” (see dictionary.com). The shape shown in Geier is longer (along the axis identified below) than it is wide (along edges D and E), thus being elongate and meeting the limitations as claimed. Further, there is no requirement in any definition above regarding the height of said object. As such, merely because the object has a larger height does not exclude it from the BRI of “elongate”. Further, even in Applicant’s argued definition, the shape of the device body is much longer (along the axis) than it is wide (along the end D and E, as explained above), from the top view. It is unclear how height of the object excludes the shape from being considered elongate. Finally, the Examiner notes that the claim only defines the term “elongate” relative to the implant axis, which is not positively recited or required by the claim, and is variable person to person or tooth to tooth. In order to further prosecution the Examiner suggests limiting the height of the device relative to the other dimensions; no new matter should be entered.
Next Applicant argues that sides D and E as previously indicated and indicated below cannot be considered “long sides”. However, the Examiner disagrees; specifically since the claim does not specify what the sides are “long” relative to, so long as they are “long” relative to another structure of the device, the Examiner sees no reason why they cannot be considered long under the broadest reasonable interpretation of the claim. In order to further prosecution the Examiner suggests adding clarifying language stating what the long sides are relative to (e.g. the other sides of the polygon), or the like. No new matter should be entered.
Next, Applicant argues that the identified sidewalls of the Geier device do not read on the claims as recited, however the Examiner disagrees. Specifically, the Examiner reiterates that the sidewalls are interpreted as chamfered surfaces F, G, H and I, AND the vertical surfaces connecting the chamfered walls to the bottom surface, in combination. In other words, the left sidewall of the annotated figure is formed by chamfered surface F in combination with the vertical surface below F that connects F to the bottom surface. Accordingly, the “side wall” is formed by an angled wall formed by a respective chamfered and a vertical surface, thereby extending from the top surface to the bottom surface; being observable from above (at least in part as the chamfered surface is observable form above); extending downward (at least in part as the vertical surface extends downward) and outward (at least in part as the chamfered surfaces extend outward) to the bottom surface (surfaces in combination); are planar (each of the vertical and chamfered surfaces are located in respective planes); and extend from the upper to the lower surface (chamfered surface connects to upper surface, with vertical surface connection to bottom surface). The Examiner notes there is no reasons claimed or presented as to why the chamfered surfaces cannot be considered part of the sidewall, as they are part of a wall structure connecting the planar top to the planar bottom, and no reasons claimed or presented that would otherwise exclude the above interpretation. The claim does not require the sidewall to be constantly sloped outward and downward, and/or be in a singular plane. Accordingly, the Examiner suggests amending the claim to include such requirements in order to further prosecution. No new matter should be entered.
Regarding Applicant’s arguments to claims 11-12, Applicant argues it would not have been obvious to modify the device Geier to include the side cut out portions of Thome, as combined below, due to the height and hollow construction of Thome. However, the Examiner does not find such arguments persuasive as should the device of Geier be modified with the cutouts, as taught by Thome, as previously recited and listed below, the cutouts would still allow for identification of the orientation of the device from a side facing scan, providing improved use and/or operability of the device.
Regarding Applicant’s arguments to claim 21, Applicant argues that Hirose does not teach a hexagonal shape with trapezoidal side walls as required. However, the Examiner notes that Geier already teaches trapezoidal sidewalls (e.g. at the chamfered surface), and Hirose is only relied on to teach a mere change of shape of the overall device. Applicant’s arguments do not address the obviousness of a change in shape rationale, and the Examiner reiterates that Hirose is not relied on to modify the sidewalls to be trapezoidal, instead just modifying the polygonal shape of the device, which Geier already contemplates (see below).
Therefore, Applicant’s arguments have been fully considered, but respectfully, are not persuasive.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 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)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1, 3, 5-7, 9-10 and 13-14 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Geier (US 2014/0121500 A1).
Regarding claim 1, Geier discloses a scan gauge (16) capable of facilitating acquisition of a scan during an intraoral scanning procedure using an intraoral scanner in a patient’s mouth (capable of being used as such), comprising; an elongate body (17) having a first end (A, below) and a second end (B), and having an attachment portion, a bore or both (8/14) a bore and an attachment portion, configured to attach the elongate body to an implant or to an intermediate component attached to an implant in a patient’s mouth (configured to be used as such), wherein the implant has a longitudinal axis and the elongate body is elongated along a longitudinal axis (dashed line below) that extends substantially perpendicular to the longitudinal axis of the implant when attached to the implant or to the intermediate component, in the patient’s mouth (capable of extending perpendicular thereto due to arrangement of longitudinal axis, as shown below); wherein the elongate body comprises a substantially planar upper surface (6), and a substantially planar lower surface (C), wherein the upper and lower surfaces each define an elongate polygon (see Fig. 1b) having two long sides (D and E; long compared to diameter of bore 9, for example; further the Examiner notes Geier also contemplates the size and configuration is variable; see [0037] and [0044]) extending substantially parallel from the first to the second end (e.g. left and right sides/ends as shown below), and further comprising a plurality of sloped side wall (walls F, G, H, I below and vertical walls extending therefrom to bottom surface) extending downwardly and outwardly from a periphery of the upper surface to the lower surface of the elongate body, wherein at least one of the one or more sloped side walls is substantially planar (see below and Figs. 1-2); and wherein the upper surface and all of the plurality of sloped side walls are observable from above the upper surface (see Fig. 1b; at least in part) in a resulting scan when the intraoral scanner scans the scan gauge in a direction substantially perpendicular to the upper surface (capable of being used as such, see Fig. 1b).
Geier further discloses wherein the plurality of sloped side walls include at least two sloped side walls that are substantially planar (see F, G, H and I, below; per claim 3); wherein each of the plurality of side walls is substantially planar (see F, G, H and I below; per claim 5); wherein the plurality of substantially planar side walls define a plurality of interconnected facets (see facets formed by sidewall below), wherein each facet is observable in a resulting scan by the intraoral scanner when scanning in a direction substantially perpendicular to the upper surface (see below; per claim 6); wherein at least one of the first and second end has a generally pointed end shape (J) defined by two meeting facets that form an acute angle (see below; per claim 7); wherein the bore is configured to receive a fastener to fixedly attach the elongate body to the implant (see Fig. 2; per claim 9); wherein the upper surface (6) of the elongate body includes an aperture or recess (8) configured to receive an indicator that is identifiable in a resulting scan (configured to receive an appropriately sized and shaped indicator if so desired; indicator not positively recited, required nor part of claimed scan gauge; per claim 10); wherein one or more of the upper surface and side walls include an identifier (10/12) which enables identification of the scan gauge in a resulting scan (see [0041]; per claim 13); and wherein the identifier indicates one or more of height, length, width, or dimensional tolerance of the scan gauge (e.g. type or style of apparatus, as best understood, [0041]; per claim 14).
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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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 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.
Claim(s) 4 is rejected under 35 U.S.C. 103 as being unpatentable over Geier.
Regarding claim 4, Geier discloses wherein the at least two sloped, substantially planar side walls are inclined at an angle from the direction perpendicular to the upper surface (see above), but does not explicitly disclose an angle of between about 15 to about 40 degrees as required. However, the Examiner notes that the specific angle is a result effective variable dependent on the desired degree of visibility and/or size of the scan gauge. Further, Geier contemplates that the specific arrangement and size of the gauge is configurable based on the specific anatomical conditions of a particular patient (see [0037] and [0044]). Still further, the Examiner notes that the specific angulation and/or shape of the elongate body lacks any particular criticality and merely preferable, so long as the top and side surfaces are visible from above (e.g. angled, see [0052]-[0053] of the instant disclosure. As such, it would have been obvious to one of ordinary skill in the art before the filing date of the invention to modify the device of Geier to include a sidewall angle of between about 15 to about 40 degrees, as such modification would merely involve the optimization of a result effective variable, which has been held to be within the skill of the ordinary artisan obtained through routine experimentation in determining optimum results (see MPEP 2144.05(II)(A)).
Claim(s) 4 is alternatively rejected under 35 U.S.C. 103 as being unpatentable over Geier in view of Lawitschka et al (US 2017/0354483 A9).
Regarding claim 4, Geier discloses wherein the at least two sloped, substantially planar side walls are inclined at an angle from the direction perpendicular to the upper surface (see above), but does not explicitly disclose an angle of between about 15 to about 40 degrees as required.
Lawitschka et al. further discloses wherein at least two sloped, substantially planar side walls (Lawitschka et al. 24) are inclined from the direction perpendicular to the upper surface (top 24 seen in Fig. 2e) by an angle between 30° to 60° [0014 lines 13-15](please note that Lawitschka et al. discloses the angles in comparison to the longitudinal axis, however the resulting angles from the top surface perpendicular to the longitudinal axis are the same). Therefore, it would have been obvious to one of ordinary skill in the art before the filing date of the invention to modify the device of Geier to include Lawitschka’s side wall angles as such modification would merely involve the optimization of a result effective variable, which has been held to be within the skill of the ordinary artisan obtained through routine experimentation in determining optimum results (see MPEP 2144.05(II)(A)). As noted above, the specific angle is a result effective variable dependent on the desired degree of visibility and/or size of the scan gauge. Further, Geier contemplates that the specific arrangement and size of the gauge is configurable based on the specific anatomical conditions of a particular patient (see [0037] and [0044]). Still further, the Examiner notes that the specific angulation and/or shape of the elongate body lacks any particular criticality and merely preferable, so long as the top and side surfaces are visible from above (e.g. angled, see [0052]-[0053] of the instant disclosure.
Claim(s) 11-12 are rejected under 35 U.S.C. 103 as being unpatentable over Geier in view of Thome et al (US 2017/0027667 A1).
Regarding the above claims, Geier discloses the device claim 1, but is silent wherein one or more of the plurality of side walls adjacent the attachment portion, bore, or both includes at least one cut-out portion configured to enable the scanner to retrieve data to assist in defining the longitudinal axis of the implant (claim 11), or wherein the cut-out portion(s) extend towards the attachment portion, bore, or both thereby enabling visualization beneath the elongate body (claim 12) as required.
Thome et al. discloses an abutment (20, Figs. 2A-2B) for scanning [abstract] which includes at least one cut-out portion (223, Fig. 2B)[0042 lines 7-8] configured to enable the scanner to retrieve data to assist in defining the longitudinal axis of the implant [0022 final sentence, 0042 final two lines], wherein the cut-out portion(s) (223, Fig. 2B) extend towards an attachment portion (26, Fig. 2A), thereby enabling visualization beneath the elongate body (Fig. 2B the cut-out portions 23 clearly allow for visualization of the base 26). Therefore, it would have been obvious to one of ordinary skill in the art before the filing date of the invention to modify the device of Geier to include a cut out portion as taught by Thome et al, as such modification would allow for rotational information to be measured ([0042] Thome) and allow visibility below the gauge.
Claim(s) 21 is rejected under 35 U.S.C. 103 as being unpatentable over Geier in view of Hirose (JP 6208905 B1).
Regarding claim 21, Geier teaches wherein the sloped side walls each have a substantially trapezoidal shape (see Figs above), but does not teach wherein the polygon is a hexagon as required.
Hirose, however, teaches a similar scan gauge (see Figs. 2-4) wherein the device is in the shape of a hexagon. Therefore, it would have been obvious to one of ordinary skill in the art before the filing date of the invention to modify the device of Geier to include a hexagonal shape, as taught by Hirose, as such modification would merely involve a change of shape of a known component of the device, which has been held to be within the skill of the ordinary artisan (see MPEP 2144.04(IV)(B)). As noted above, Geier contemplates that the specific arrangement and size of the gauge is configurable based on the specific anatomical conditions of a particular patient (see [0037] and [0044]). Still further, the Examiner notes that the specific angulation and/or shape of the elongate body lacks any particular criticality and merely preferable, so long as the top and side surfaces are visible from above (e.g. angled, see [0052]-[0053] of the instant disclosure.
Conclusion
THIS ACTION IS MADE FINAL. 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 EDWARD MORAN whose telephone number is (571)270-5349. The examiner can normally be reached Monday-Friday 7 AM-4 PM EST.
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/EDWARD MORAN/Primary Examiner, Art Unit 3772