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 .
DETAILED ACTION
In the amendments filed 19 March 2026:
Claim 26 is pending
Claims 24, 27, 30 are amended
Claims 24-25, 27-48 are pending
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 24-25, 27-48 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
Claims 24, 30, 40 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Step 1
The claims recite methods, which are within a statutory category.
Step 2A1
The limitations of:
Claims 20, 30, 40 (Claim 40 being representative)
receiving images of the patient's arches, the images including left, center and right buccal images, the images being captured;
evaluating the images of the patient's arches, the evaluation involving comparing the images of the patient's arches to a treatment plan stored, the treatment plan including a predetermined number of brackets, a predetermined bracket position and a predetermined archwire, the comparison including identifying a number of brackets in the images of the patient's arches, a bracket position in the images of the patient's arches and an archwire in the images of the patient's arches and comparing the predetermined number of brackets to the number of brackets, the predetermined bracket position to the bracket position and the predetermined archwire to the archwire;
and transmitting a check-out message indicating whether the predetermined number of brackets is equal to the number of brackets, the predetermined bracket position complies with the bracket position and the predetermined archwire complies with the archwire,
as drafted, is a process that, under the broadest reasonable interpretation, covers certain methods of organizing human activity (i.e., managing personal behavior including following rules or instructions) but for recitation of generic computer components. The claims encompass a series of rules or instructions for a person or persons to follow, with or without the aid of a computer, to evaluate a patient’s orthodontic treatment in the manner described in the identified abstract idea, supra. The rules or instructions are the claimed steps of “receiving, comparing and transmitting” as indicated supra.
Other than reciting generic computer components (discussed infra), i.e., a system implemented by a data processor (computer), the claimed invention amounts to managing personal behavior or interaction between people. If a claim limitation, under its broadest reasonable interpretation, covers managing personal behavior or interactions between people but for the recitation of generic computer components, then it falls within the “certain methods of organizing human activity” grouping of abstract ideas. Accordingly, the claim recites an abstract idea.
Step 2A2
This judicial exception is not integrated into a practical application. In particular, the claims recite the additional element of a central processor and providing elastics to the patient that implements the identified abstract idea. The central processor and providing elastics to the patient is not described by the applicant and is recited at a high-level of generality (i.e., a generic computer performing generic computer functions) such that it amounts no more than mere instructions to apply the exception using a generic computer component. Accordingly, this additional element does not integrate the abstract idea into a practical application because it does not impose any meaningful limits on practicing the abstract idea. The claims are directed to an abstract idea.
The claims further recite the additional elements of a camera of a smartphone or tablet and an image capture device. The camera of a smartphone or tablet and an image capture device containing an image capture guide merely generally links the abstract idea to a particular technological environment or field of use. MPEP 2106.04(d)(I) indicates that generally linking an abstract idea to a particular technological environment or field of use cannot provide a practical application. Accordingly, even in combination, these additional elements do not integrate the abstract idea into a practical application.
Step 2B
The claim does not include additional elements that are sufficient to amount to significantly more than the judicial exception. As discussed above with respect to integration of the abstract idea into a practical application, the additional element of using a central processor and providing elastics to the patient to perform the noted steps amounts to no more than mere instructions to apply the exception using a generic computer component. Mere instructions to apply an exception using a generic computer component cannot provide an inventive concept (“significantly more”).
Also, as discussed above with respect to integration of the abstract idea into a practical application, the additional elements of a camera of a smartphone or tablet and an image capture device containing an image capture guide were determined to generally link the abstract idea to a particular technological environment or field of use. This has been re-evaluated under the “significantly more” analysis and has also been found insufficient to provide significantly more. MPEP 2106.05(A) indicates that generally linking an abstract idea to a particular technological environment or field of use cannot provide significantly more. As such the claims are not patent eligible.
Claims 25,27-29, 31-39, 41-48 are similarly rejected because they either further define/narrow the abstract idea and/or do not further limit the claim to a practical application or provide as inventive concept such that the claims are subject matter eligible even when considered individually or as an ordered combination.
Claim(s) 25 merely describe(s) the error condition, which further defines the abstract idea.
Claim(s) 27 merely describe(s) the image capture guide, which further defines the abstract idea.
Claim(s) 28 merely describe(s) the image capture guide, which further defines the abstract idea.
Claim(s) 29 merely describe(s) images, which further defines the abstract idea.
Claim(s) 31 merely describe(s) observing images from the image capture device, which further defines the abstract idea.
Claim(s) 31 also includes the additional element of “an image screen” which is analyzed the same as the “image capture device” and does not provide a practical application or significantly more for the same reasons.
Claim(s) 32 merely describe(s) the customized prompts, which further defines the abstract idea.
Claim(s) 33 merely describe(s) the updated treatment plan, which further defines the abstract idea.
Claim(s) 34 merely describe(s) the image capture guide, which further defines the abstract idea.
Claim(s) 35 merely describe(s) the updated treatment plan, which further defines the abstract idea.
Claim(s) 36 merely describe(s) the messages, which further defines the abstract idea.
Claim(s) 37 merely describe(s) the messages, which further defines the abstract idea.
Claim(s) 38 merely describe(s) the wire, which further defines the abstract idea.
Claim(s) 39 merely describe(s) the coating, which further defines the abstract idea.
Claim(s) 41 merely describe(s) evaluating the images, which further defines the abstract idea.
Claim(s) 42 merely describe(s) the images, which further defines the abstract idea.
Claim(s) 43 merely describe(s) the images, which further defines the abstract idea.
Claim(s) 44 merely describe(s) the check-out messages, which further defines the abstract idea.
Claim(s) 45 merely describe(s) determining when new archwires are recommended, which further defines the abstract idea.
Claim(s) 46 merely describe(s) determining when the stop in installed on the archwire, which further defines the abstract idea.
Claim(s) 47 merely describe(s) the actuating arm, which further defines the abstract idea.
Claim(s) 48 merely describe(s) providing custom length wire, which further defines the abstract idea.
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 Examiner notes that the rejection will reference the translated documents (attached) corresponding to any foreign documents recited in the rejection.
Claims 24-25,27-29,31-32,34-35,38,39 is/are rejected under 35 U.S.C. 103(a) as being unpatentable over Ozerov et al (US Publication No. 20200037848) in view of CARRIER et al (US Publication No. 20200229901) in view of MATSUMURA et al (Foreign Publication WO-2019082227-A1).
Regarding Claim 24
Ozerov teaches a method for evaluating a patient's orthodontic treatment following application of a plurality of brackets to the patient's teeth and mounting a wire to the plurality of brackets wherein the plurality of brackets and the wire are applied to the patient's teeth based on a first treatment plan, the method comprising the steps of:
comparing the images of the patient's teeth with the plurality of brackets mounted thereon and the wire to the first treatment plan and previous images of the patient's teeth stored in the central processor [Ozerov at Para. 0050 teaches dental issue identifier 115 compares current image data 135 of a dental arch to past image data 132 of the dental arch to identify changes that have occurred to the dental arch; Ozerov at Para. 0051 teaches in embodiments, a first intraoral scan that produces past image data 132 is performed at the start of orthodontic treatment, and a second intraoral scan that produces the current image data 135 is performed during the orthodontic treatment (e.g., during an intermediate stage of a multi-stage orthodontic treatment plan); Ozerov at Para. 0053 teaches a multi-stage orthodontic treatment plan may be for a multi-stage orthodontic treatment or procedure. The term orthodontic procedure refers, inter alia, to any procedure involving the oral cavity and directed to the design, manufacture or installation of orthodontic elements at a dental site within the oral cavity, or a real or virtual model thereof, or directed to the design and preparation of the dental site to receive such orthodontic elements. These elements may be appliances including but not limited to brackets and wires, retainers, aligners, or functional appliances (current images interpreted as imaged with brackets during treatment)];
and transmitting a message from the central processor to the patient regarding an error condition or a confirmation condition, an updated treatment plan being developed based on the images of the patient's teeth [Ozerov at Para. 0057 teaches any deviation between the actual condition of the patient's dental arch and the planned condition of the patient's dental arch for the current treatment stage may then be determined. The dental practitioner may then take one or more corrective actions based on the detected deviation; Ozerov at Para. 0097 teaches display module 118 may output the representations and/or visual overlays generated by other modules for display to a user (user interpreted as the patient); Ozerov at Para. 0151 teaches FIG. 10 illustrates a flow diagram for a method 1000 of generating a visual overlay for a virtual model of a dental arch, in accordance with an embodiment. The visual overlay may show compliance with an orthodontic treatment plan and deviation from the orthodontic treatment plan, in accordance with an embodiment].
Ozerov does not teach receiving images of the patient's teeth at a central processor from a camera of a smartphone, the images being captured with the assistance of an image capture guide having an arm that is configured to orient the smartphone relative to the patient's teeth outside of the patient's mouth and consistently space the camera relative to the patient's teeth;
CARRIER teaches receiving images of the patient's teeth at a central processor from a camera of a smartphone [CARRIER at Para. 0175 teaches in one example, described herein is a photo uploading mobile app (control software) that may be installed on a mobile device such as a smartphone and may control the smartphone camera to take dental images of a patient in a particular manner; CARRIER at Para. 0185 teaches a non-transitory, computer-readable storage medium storing a set of instructions capable of being executed by a processor of an imaging device having a camera, that, when executed by the processor, causes the processor to], … [ … ]
It would have been prima facie obvious skill in the art, at the time of effective filing, to combine image comparison of Ozerov with the smartphone camera of CARRIER with the motivation to improve image quality.
Ozerov/CARRIER do not teach [ … ] … the images being captured with the assistance of an image capture guide having an arm that is configured to orient the smartphone relative to the patient's teeth outside of the patient's mouth and consistently space the camera relative to the patient's teeth;
MATSUMURA teaches [ … ] … the images being captured with the assistance of an image capture guide having an arm that is configured to orient the smartphone relative to the patient's teeth outside of the patient's mouth and consistently space the camera relative to the patient's teeth [MATSUMURA at Page 8 Para 3 teaches below the pivoting arm 10, a jaw positioning unit 50 for supporting the jaws of the subject B is provided. As shown in FIGS. 2 and 3, the jaw positioning unit 50 includes a support frame 51 and a main body 52. One end of the support frame 51 is attached to the elevating body 32, and the main body 52 is disposed at the other end of the support frame 51. Thus, the jaw positioning unit 50 is supported by the column unit 30 so as to be capable of moving up and down, and along with the vertical movement of the elevating body 32, the swing arm 10 and the jaw positioning unit 50 integrally move up and down (interpret to combine with camera of CARRIER)];
It would have been prima facie obvious skill in the art, at the time of effective filing, to combine the references of Ozerov, CARRIER with the image capture guide of MATSUMURA with the motivation to provide better dental radiography.
Regarding Claim 25
Ozerov/CARRIER/MATSUMURA teach the method of claim 24,
Ozerov/CARRIER/MATSUMURA further teach wherein the error condition is comprised of a first number of brackets of the first treatment plan is not equal to an identified number of brackets of the images of the patient's teeth, a bracket in the images is identified as being open, an end of the wire extends beyond a last molar bracket of the plurality of brackets in the images, a wire size of the wire in the images deviates from a plan wire size of the first treatment plan, or a position of a gum line of the patient in the images deviates from a plan position of the first treatment plan [Ozerov at Para. 0080 teaches for example, a gum recession detection rule may apply feature detection techniques to identify the gum line and the teeth in the dental arch in both representations. The gum recession detection rule may then measure a minimal distance between the gum line and peaks of each of the teeth in both representations. These minimal distance measurements may then be compared between the representations. If, for example, the detected distance between the gum line and the peak of tooth 1 is greater in the third representation of the dental arch than in the first representation of the dental arch, then gum recession is identified. The distance measured in the first representation may be subtracted from the distance in the third representation to measure the actual amount of gum recession. A rate of recession may then be determined by determining the amount of time that elapsed between generation of the first image data 162 and the second image data 163, and the distance may be divided by the elapsed time to compute a rate of the gum recession (Interpreted as position of a gum line of the patient in the images deviates from a plan position of the first treatment plan.)].
Regarding Claim 27
Ozerov/CARRIER/MATSUMURA teach the method of claim 24,
Ozerov/CARRIER/MATSUMURA further teach wherein the image capture guide is comprised of a chin rest and the arm, the arm comprised of an actuating arm, the actuating arm including a horizontal arm connected to the chin rest and a pivoting arm, the smartphone connected to the actuating arm.
The Examiner notes that image capture guide comprising a chin rest and series of actuating arms have no functional relevance to the Claim and is non-functional descriptive information.
Regarding Claim 28
Ozerov/CARRIER/MATSUMURA teach the method of claim 24,
Ozerov/CARRIER/MATSUMURA further teach wherein the image capture guide includes a cheek retractor configured to create distance between soft tissue and the patient's teeth to produce relatively clear and consistent images of the patient's teeth [CARRIER at Para. 0051 teaches as mentioned, any of the methods and apparatuses described herein may be configured to include instructing the user to retract the patient's cheek with a cheek retractor].
Regarding Claim 29
Ozerov/CARRIER/MATSUMURA teach the method of claim 24,
Ozerov/CARRIER/MATSUMURA further teach wherein the images include left, center, and right buccal images [CARRIER at Para. 0071 teaches FIGS. 4A-4H illustrate 8 specific overlay images for the required types of photos according to the orthodontic standard, including an anterior view in FIG. 4A, an another anterior view in FIG. 4B, an upper jaw view in FIG. 4C, a lower jaw view in FIG. 4D, a left buccal view in FIG. 4E, an another left buccal view in FIG. 4F, a right buccal view in FIG. 4G, and an another right buccal view in FIG. 4H (interpreted to include central buccal view)].
Regarding Claim 31
Ozerov/CARRIER/MATSUMURA teach the method of claim 24,
Ozerov/CARRIER/MATSUMURA further teach wherein the image capture device includes an image screen, during the capture of the images the patient observes the images being captured on the image screen [CARRIER at Para. 0121 teaches for example, a method to obtain an image of the teeth may include displaying, on the screen, an overlay comprising an outline of teeth in one of an anterior view, a buccal view, an upper jaw view, or a lower jaw view, wherein the overlay is displayed atop the view of the patient's teeth.], the image screen also including customized prompts from the central processor directing the patient regarding a number of images and orientation of images [CARRIER at Para. 0099 teaches in particular, these apparatuses and methods may include the use of an ‘overlay’ on a real-time image of the screen, providing immediate feedback on each of the desired orientations, which may also be used to adjust the lighting and/or focus, as described herein; CARRIER at Para. 0122 teaches In FIG. 5A, eight views (including three external/head or facial views) are included as part of the predetermined set, including a profile view 501 of the patient's head, a front view 503 of the patient's head, a front view of the patient's head with the patient smiling 505, a view of the upper jaw (from the occlusal surface) 507, a view of the lower jaw (from the occlusal surface) 509, a right buccal view 511 with the jaw closed, an anterior view 513 with the jaw closed, a left buccal view 515 with the jaw closed, a right buccal view with the jaw open, an anterior view with jaw open, and a left buccal view with the jaw open].
Regarding Claim 32
Ozerov/CARRIER/MATSUMURA teach the method of claim 31,
Ozerov/CARRIER/MATSUMURA further teach wherein the customized prompts include a straight-on shot with the patient looking at the image capture device and using a panoramic sweep motion with the image capture device traversing a generally U-shape around the teeth.
The Examiner notes that the customized prompts have no functional relevance to the Claim and is non-functional descriptive information.
Regarding Claim 34
Ozerov/CARRIER/MATSUMURA teach the method of claim 24,
Ozerov/CARRIER/MATSUMURA further teach wherein the image capture device is comprised of a camera tethered to a smart phone [Ozerov at Para. 0049 teaches for example, the additional image capture device 160 may be a mobile phone, a laptop computer, an image capture accessory attached to a laptop or desktop computer (e.g., a device that uses Intel® RealSense™ 3D image capture technology), and so on].
Regarding Claim 35
Ozerov/CARRIER/MATSUMURA teach the method of claim 24,
Ozerov/CARRIER/MATSUMURA further teach wherein the updated treatment plan includes a suggested date for submission of new images of the patient's teeth, the new images being taken in the same sequence as the images of the patient's teeth [Ozerov at Para. 0093 teaches accordingly, image difference extrapolator 184 may determine a recommended future time to generate next image data and re-evaluate the possible tooth wear problem. Additional image data may be generated at the recommended future time, and the above discussed operations may be performed to determine clinical changes between the additional image data and the second image data 163].
Regarding Claim 38
Ozerov/CARRIER/MATSUMURA teach the method of claim 24,
Ozerov/CARRIER/MATSUMURA further teach wherein the wire includes a coating, printed lines or an indentation that identifies a wire diameter, the central processor determines whether the wire is an identified wire of the first treatment plan in the comparing step based on the coating, printed lines or the indentation.
The Examiner notes that the wire has no functional relevance to the Claim and is non-functional descriptive information.
Regarding Claim 39
Ozerov/CARRIER/MATSUMURA teach the method of claim 38,
Ozerov/CARRIER/MATSUMURA further teach wherein the coating is comprised of a color that will dissolve or fade relatively quickly, a coating in a non-visible light spectrum or a permanent color on a portion of the wire.
The Examiner notes that the wire has no functional relevance to the Claim and is non-functional descriptive information.
Claim 30 is/are rejected under 35 U.S.C. 103(a) as being unpatentable over Ozerov et al (US Publication No. 20200037848) in view of CARRIER et al (US Publication No. 20200229901) in view of MATSUMURA et al (Foreign Publication WO-2019082227-A1) in view of Kopelman et al (US Publication No. 20180206940) in view of Sanchez et al (US Publication No. 20130297275).
Regarding Claim 30
Ozerov teaches a method for evaluating a patient's orthodontic treatment following application of a plurality of brackets to the patient's teeth and mounting a wire to the plurality of brackets wherein the plurality of brackets and the wire are applied to the patient's teeth based on a first treatment plan, the method comprising the steps of:
comparing the images of the patient's teeth with the plurality of brackets mounted thereon and the wire to the first treatment plan and previous images of the patient's teeth stored in the central processor [Ozerov at Para. 0050, 0053 (see Claim 24 for explanation)];
transmitting a message from the central processor to the patient regarding an error condition or a confirmation condition, an updated treatment plan being developed based on the images of the patient's teeth [Ozerov at Para. 0057, 0097, 0151 (see Claim 24 for explanation)];
Ozerov does not teach receiving images of the patient's teeth at a central processor from a camera of one of a smartphone and a tablet, the images being captured with the assistance of an image capture guide having an arm that is configured to orient the camera relative to the patient's teeth and consistently space the camera relative to the patient's teeth;
and providing elastics to the patient with instructions regarding which of the elastics to apply to the plurality of brackets.
CARRIER teaches receiving images of the patient's teeth at a central processor from a camera of one of a smartphone and a tablet [CARRIER at Para. 0175, 0185 (see Claim 24 for explanation)], … [ … ]
It would have been prima facie obvious skill in the art, at the time of effective filing, to combine image comparison of Ozerov with the smartphone camera of CARRIER with the motivation to improve image quality.
Ozerov/CARRIER do not teach [ … ] … the images being captured with the assistance of an image capture guide having an arm that is configured to orient the camera relative to the patient's teeth and consistently space the camera relative to the patient's teeth;
and providing elastics to the patient with instructions regarding which of the elastics to apply to the plurality of brackets.
MATSUMURA teaches [ … ] … the images being captured with the assistance of an image capture guide having an arm that is configured to orient the camera relative to the patient's teeth and consistently space the camera relative to the patient's teeth [MATSUMURA at Page 8 Para 3 (see Claim 24 for explanation)];
It would have been prima facie obvious skill in the art, at the time of effective filing, to combine the references of Ozerov, CARRIER with the image capture guide of MATSUMURA with the motivation to provide better dental radiography.
Ozerov/CARRIER/MATSUMURA do not teach and providing elastics to the patient with instructions regarding which of the elastics to apply to the plurality of brackets.
Kopelman teaches and providing elastics to the patient [Kopelman at Table 4], … [ … ]
It would have been prima facie obvious skill in the art, at the time of effective filing, to combine the references of Ozerov, CARRIER, MATSUMURA with the elastics of kopelman with the motivation to improve treatment results of orthodontic treatment.
Ozerov/CARRIER/MATSUMURA/Kopelman do not teach [ … ] … with instructions regarding which of the elastics to apply to the plurality of brackets;
Sanchez teaches [ … ] … with instructions regarding which of the elastics to apply to the plurality of brackets [Sanchez at Para. 0146 teaches it may be further understood from FIG. 4 that, when accessing the screen display 711 of the graphical (sub)module 710 of the clinical module 700, the screen display may be configured to permit the user to manipulate the graphical depiction thereon of a patient's teeth and associated orthodontic hardware (e.g., brackets, elastics, and the like). As will be described in further detail below, such manipulation may include the non-limiting examples of applying or removing brackets, applying or removing elastics, rotating the view of the teeth in a substantially horizontal plane, opening the teeth in a substantially vertical plane, and/or selectively removing or inserting teeth (interpret to combine with Kopelman)].
It would have been prima facie obvious skill in the art, at the time of effective filing, to combine the references of Ozerov, CARRIER, MATSUMURA, Kopelman with the instructions of Sanchez with the motivation to better allow orthodontists and their staff to maintain an accurate and intuitive record of the placements of various brackets, elastics, and/or arch-wires over the course of the treatment.
Claims 33, 36-37 rejected under 35 U.S.C. 103(a) as being unpatentable over Ozerov, CARRIER, MATSUMURA as applied to claim 24 above, and further in view of KITCHING et al (Foreign Publication EP-3158967-A1).
Regarding Claim 33
Ozerov/CARRIER/MATSUMURA teach the method of claim 24,
Ozerov/CARRIER/MATSUMURA do not teach wherein the updated treatment plan includes a recommended date for the patient to attend an appointment at a clinical setting for an adjustment.
KITCHING teaches wherein the updated treatment plan includes a recommended date for the patient to attend an appointment at a clinical setting for an adjustment [KITCHING at Para. 0039 teaches as a treatment plan will typically include a series of one or more appointments, guidelines will typically include one or more recommended patient/practitioner appointments that may include suggested timing for the appointments. Suggested timing can be specific and may more particularly identify a date or specific date range for scheduling one or more appointments, or can be more generalized and for each appointment may list a broader timing range (e.g., 1 week appointment, 2 week, 3 week, etc.). Appointment timing can be identified to coincide with another treatment event, such as administering an appliance or set of appliance, or wearing of an appliance(s) by the patient for a period of time. Guidelines corresponding to a particular appointment can include a list of recommended tasks to be completed during the practitioner's appointment with the patient; KITCHING at Para. 0003 teaches Over time and with a series of clinical visits and adjustments to the braces, the practitioner adjusts the appliances to move the teeth toward their final destination].
It would have been prima facie obvious skill in the art, at the time of effective filing, to combine the references of Ozerov, CARRIER, MATSUMURA with the treatment plan of KTICHING with the motivation to improve facilitation of orthodontic practices.
Regarding Claim 36
Ozerov/CARRIER/MATSUMURA teach the method of claim 24,
Ozerov/CARRIER/MATSUMURA further teach wherein the message includes an indication of a specific area of the patient's gums that are of concern [Ozerov at Para. 0086 teaches an overlay generator 182 of the representation generator 179 may generate a graphical overlay (e.g., a color overlay) that marks regions of the dental arch for which image differences associated with clinical changes have been identified. For example, a first color (e.g., purple) may be used to indicate teeth associated with tooth movement opposite to what was planned, a second color (e.g., yellow) may be used to indicate teeth associated with tooth movement that is less than planned, a third color (e.g., green) may be used to indicate teeth that have moved as planned, and a fourth color (e.g., blue) may be used to indicate teeth associated with tooth movement that is greater than planned. The graphical overlay may also color in regions of the gums where recession has occurred with a particular color, regions of the gums where swelling has occurred with another color, teeth (or regions of teeth) that have been worn down with another color, and so on]… [ … ]
Ozerov/CARRIER/MATSUMURA does not teach [ … ] … and recommended proactive measures to improve the specific area of concern.
KITCHING teaches [ … ] … and recommended proactive measures to improve the specific area of concern [KITCHING at Para. 0038 teaches as set forth above, once a treatment plan is in place the present invention includes generating customized treatment guidelines that can be provided to the dental practitioner for facilitating administration of treatment and improving desired treatment outcomes].
It would have been prima facie obvious skill in the art, at the time of effective filing, to combine the references of Ozerov, MATSUMURA with the recommendation of KTICHING with the motivation to improve facilitation of orthodontic practices.
Regarding Claim 37
Ozerov/CARRIER/MATSUMURA teach the method of claim 24,
Ozerov/CARRIER/MATSUMURA do not teach wherein the message includes instructions regarding where and when subsequent treatment of the teeth is planned in the updated treatment plan.
KITCHING teaches wherein the message includes instructions regarding where and when subsequent treatment of the teeth is planned in the updated treatment plan [KITCHING at Para. 0039 (see Claim 33 for explanation)].
It would have been prima facie obvious skill in the art, at the time of effective filing, to combine the references of Ozerov, CARRIER, MATSUMURA with the treatment plan of KTICHING with the motivation to improve facilitation of orthodontic practices.
Response to Arguments
Rejection under 35 U.S.C. § 101
Regarding the rejection of Claims 24-25, 27-48, the Examiner has considered the Applicant’s arguments; however the arguments are not persuasive. Any arguments inadvertently not addressed are unpersuasive for at least the following reasons. Applicant argues:
Applicant respectfully asserts the claims, and particularly independent claims 24, 30 and 40, are patentable subject matter in accordance with 35 USC 101. Initially, the Examiner overgeneralizes the claimed invention under Step 2A, Prong 1 of the Section 101 analysis by only considering part of the independent claims abstracted away from the core of the claims. The Examiner also only considers additional elements of the claims in a vacuum under Step 2A, Prong 2 of the Section 101 analysis and does not consider the ordered combination of the claims. Further, the Examiner's admission that claims 40-48 are free of prior art contradicts the Examiner's assertion under Step 2B of the Section 101 analysis that the claims are conventional.
Regarding (a), the Examiner respectfully disagrees. Whether a claim is subject matter free of prior art has no merit as to whether it is subject matter eligible.
Applicant respectfully asserts the Examiner improperly characterizes the claimed invention by overgeneralizing the claimed features. The Examiner reduces the claims to "receiving images, comparing images, transmitting messages," while stripping away specific technical claimed context in contradiction to Enfish, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016). Per Enfish, claims should not be characterized at such a high level of abstraction that nearly any claim involving data processing could be considered abstract. Amended claims 24, 25 and 27-48 are directed to a specific technical process of automated orthodontic evaluation using image comparison against a stored treatment plan, not generalized data management. Independent claims 24 and 30 specifically include a n image capture guide having an arm configured to orient the camera of the smartphone or tablet relative to the patient's teeth and consistently space the camera relative to the patient's teeth. The consistent spacing of the camera relative to the patient's teeth, which aids acquisition of consistent images of the patient's teeth, facilitates accurate comparisons between the images. The claimed arm, camera, smartphone and/or tablet are physical structures, far from abstract, that assists with consistency of the claimed method and image comparison. Independent claim 40 includes the bracket that changes position and the check-out message indicating whether the predetermined number of brackets is equal to the number of brackets, which is not abstract.
Regarding (b), the Examiner respectfully disagrees. The acts of receiving images, comparing images and transmitting messages are part of the abstract idea, which is certain methods of organizing human activity by providing a list of instructions for a human to follow.
Applicant also asserts the claims are not fairly characterized as "managing personal behavior." The core of the claims is not managing how people behave, as the claimed invention is directed to an automated, processor-implemented method for evaluating orthodontic treatment by receiving, comparing, and analyzing dental images against a treatment plan. The "managing personal behavior" characterization fails to account for the central processor comparing the images and generating the output. A human reading dental images is not what is claimed. The amended claims are directed to an automated system performing a specific technical evaluation. The Examiner's reasoning would render any computer-implemented method involving patient care an abstract "method of organizing human activity," which is an overbroad reading of Alice.
Regarding (c), the Examiner respectfully disagrees. Multiple CAFC decisions that the Office has characterized as Certain Method of Organizing Human Activity did not actively recite a person or persons performing the steps of the claims (see, e.g., EPG, TLI communications, Ultramercial). Because whether a human is required to perform the step of the claim is not a requirement for claims to encompass certain method of organizing human activity, this argument is not persuasive.
Applicant further respectfully asserts the Examiner fails to consider the claim as a whole in contradiction to MPEP § 2106.04(II). Under MPEP § 2106.04(II), the claim should be evaluated as a whole, not by dissecting individual limitations. The Examiner isolates "receiving, comparing, transmitting" but ignores the specific technological framework: image capture via a specialized device with a physical arm for consistent positioning, processor-based image analysis against a stored treatment plan with specific parameters (bracket count, bracket position, archwire compliance), and automated generation of error/confirmation messaging. Taken as a whole, this is a specific, technology-driven process, not an abstract concept.
Regarding (d), the Examiner respectfully disagrees. The Examiner considered the claims as a whole and the analysis for 101 was followed as exactly outlined in the MPEP.
Applicant respectfully submits the claims recite a practical application of any alleged abstract idea under Step 2A, Prong 2 of the Section 101 analysis, as is described below. Claim 24 includes the features of "an image capture guide having an arm that is configured to orient the smartphone relative to the patient's teeth outside of the patient's mouth and consistently space the camera relative to the patient's teeth." Claim 30 includes the features of "the images being captured with the assistance of an image capture guide having an arm that is configured to orient the camera relative to the patient's teeth and consistently space the camera relative to the patient's teeth." These specific structural limitations directly improve the quality and consistency of the captured images, which is a claimed initial step relative to the automated comparison step. Without consistent spacing and orientation of the smartphone/image capture device relative to the patient's teeth, the comparison to prior images and treatment plans would be unreliable.
Regarding (e), the Examiner respectfully disagrees. Applicant has not provided evidence in the Specification to support statement that an improvement was made, nor that there a technical problem regarding the quality and consistency of the images.
Applicant further asserts the claimed combination of elements provides a technological improvement. The claimed invention replaces a manual, error-prone, time-consuming in-office evaluation process with an automated image-based system (47, 51 and 61-63). The specification explicitly describes how the preferred system is "much faster than conventional evaluation" ( 51), "more accurate" ( 51) and addresses the problem that "some clinicians skip this important step" due to time pressures ( [0047]). This is a specific, measurable technological improvement to the orthodontic evaluation process, not merely organizing human activity.
Regarding (f), the Examiner respectfully disagrees. By applicant’s own admission, the problem is not a problem caused by a computer or technology. The claims merely automate a human task performed by humans. Therefore, no technical problem and subsequently, no practical application is found.
Applicant further asserts the ordered combination of the claims results in a claimed invention that is patent eligible subject matter. The Examiner analyzes each element individually (central processor, image capture device, image capture guide) but does not adequately evaluate whether the ordered combination of these elements integrates the exception into a practical application, per BASCOM Global Internet Services v. AT&TMobility LLC, 827 F.3d 1341 (Fed. Cir. 2016), even if individual elements are conventional, their specific arrangement in an ordered combination provide a practical application.
Given the strength of Applicant's positions under Step 2A, Prongs 1 and 2 of the 2019 Revised Guidance and the October 2019 update, Applicant respectfully submits that further analysis of the claims under Step 2B is not necessary. Namely, Applicant believes that just as the claim elements integrate the alleged judicial exception into a practical application, these same elements recite "significantly more" and provide a technical advancement over known methods and/or systems. Despite being unnecessary, should the analysis proceed to Step 2B, the claims recite "significantly more" because the way the claims are arranged and interact is not conventional.
Regarding (g,h), the Examiner respectfully disagrees. MPEP 2106.05(d) states: “Another consideration when determining whether a claim recites significantly more than a judicial exception is whether the additional element(s) are well-understood, routine, conventional activities previously known to the industry (emphasis added).” Further, MPEP 2106.05(I) states: “As made clear by the courts, the novelty of any element or steps in a process, or even of the process itself, is of no relevance in determining whether the subject matter of a claim falls within the § 101 categories of possibly patentable subject matter (internal quotations omitted, emphasis original).” As such, it is only the additional elements identified by the Examiner to not be part of the abstract idea that are analyzed to determine whether they represent well-understood, routine, conventional activities in the field of the invention.
In that regard, MPEP 2106.05(d)(I) indicates that in determining whether the additional elements represent are well-understood, routine, conventional activities, the Examiner should consider whether the additional elements (1) provide an improvement to the technological environment to which the claim is confined, (2) whether the additional elements are mere instructions to apply the judicial exception, or (3) whether the additional elements represent insignificant extra-solution activity. The additional elements of the claims do not provide significantly more based on this inquiry.
Taking these in turn, whether the additional elements of the claim provide an improvement was analyzed/addressed in the 2A2 analysis, no improvement was present because the problem is not one that is caused by the computer or technological environment. The technological environment to which the claims are confined (a general-purpose computer performing generic computer functions [see Spec. Para. 0012]) is recited at a high level of generality and has been found by the courts to be insufficient to provide a practical application (see MPEP 2106.05(d)(II); Alice Corp.).
Finally, none of the additional elements of the claim were found to represent extra-solution activity and thus no well-understood, routine, conventional analysis is required. MPEP 2106.07(a) states “At Step 2A Prong Two or Step 2B, there is no requirement for evidence to support a finding that the exception is not integrated into a practical application or that the additional elements do not amount to significantly more than the exception unless the examiner asserts that additional limitations are well-understood, routine, conventional activities in Step 2B.” This was not asserted. As such, when viewed either individually or as an ordered combination, the additional elements do not provide significantly more to the abstract idea and the claims are not subject matter eligible.
Rejection under 35 U.S.C. § 102/103
4. Regarding the rejection of Claims 24-25, 27-48, the Examiner has considered the Applicant' s arguments; however, the arguments are not persuasive. Applicant argues:
Prior art of record of Ozerov, MATSUMURA, Kopelman and Sanchez do not teach the images being taken on the camera of a smartphone.
Regarding (a), the Examiner respectfully disagrees. While the prior art mentioned do not teach the limitation, the prior art of CARRIER, previously cited in Claims 28-29,31 teaches the limitation. The Examiner respectfully points to the 103 rejections for full explanation.
Conclusion
The prior art made of record and not relied upon in the present basis of rejection are noted in the attached PTO 892 and include:
YOON et al (Foreign Publication KR-101583547-B1) discloses a remote orthodontic treatment system using a smartphone.
Powell et al (US Publication No. 20200193593) discloses a system for remotely determining patient compliance with an orthodontic device.
THIS ACTION IS MADE FINAL, necessitate by amendment. 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 extension fee 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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/JONATHAN C EDOUARD/Examiner, Art Unit 3683
/ROBERT W MORGAN/Supervisory Patent Examiner, Art Unit 3683
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