DETAILED ACTION
Claims 14-26 were subject to restriction requirement mailed on 11/07/2025.
Applicant filed a response, and elected Group I, claims 14-25, and withdrew claim 26, without traverse on 11/14/2025.
Applicants further elected species (a-i) and (b-ii), claims 14-22 and 24, and withdrew claim 23 and 25, without traverse, over phone on Jan. 26th, 2026.
Claims 14-26 are pending, and claims 23 and 25-26 are withdrawn.
Claims 14-22 and 24 are rejected.
Election/Restrictions
Applicant’s election without traverse of Group I, claims 14-25, in the reply filed on 11/14/2025 is acknowledged.
Claim 26 is withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected Group, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 11/14/2025.
Upon further consideration, the elected claims contain two groups of species. Therefore, an additional species election requirement is set forth below.
This application contains claims directed to more than one species of the generic invention. These species are deemed to lack unity of invention because they are not so linked as to form a single general inventive concept under PCT Rule 13.1.
The species are as follows:
Category A
Species (a-i) – wherein: the mass content of the powder composition is comprised between 43% and 52%, the mass content of binder is comprised between 0.5% and 1%, the liquid medium is non aqueous, and its mass content is comprised between 30% and 40%, the product comprises a radiopaque contrast agent in a mass content comprised between 5% and 15%, and the product comprises a cement setting accelerator in a mass content comprised between 4% and 7%.
Species (a-ii) – wherein: the mass content of the powder composition is comprised between 43% and 52%, the mass content of binder is comprised between 3% and 3.5%, the liquid medium comprises water and its mass content is comprised between 30% and 40%, and the product comprises a radiopaque contrast agent in a mass content comprised between 5% and 15%.
Category B
Species (b-i) – wherein the radiopaque contrast agent comprises barium sulfate and wherein the mass content of the powder composition is comprised between 43% and 48%.
Species (b-ii) – wherein the radiopaque contrast agent comprises zirconium oxide and wherein the mass content of the powder composition is comprised between 48% and 52%.
NOTE: If applicant elects Group I, applicant must also elect one of the species in Category A, AND one of the species in Category B, as set forth above.
Applicant is required, in reply to this action, to elect a single species to which the claims shall be restricted if no generic claim is finally held to be allowable. The reply must also identify the claims readable on the elected species, including any claims subsequently added. An argument that a claim is allowable or that all claims are generic is considered non-responsive unless accompanied by an election.
Upon the allowance of a generic claim, applicant will be entitled to consideration of claims to additional species which are written in dependent form or otherwise require all the limitations of an allowed generic claim. Currently, the following claim(s) are generic: claims 14-22 and 24.
Species (a-i) and (a-ii), and species (b-i) and (b-ii) lack unity of invention because species (a-i) and (a-ii) are drawn to different dental product compositions, specifically regarding the liquid medium, and species (b-i) and (b-ii) are drawn to dental product with different radiopaque contrast agents, these species do not share common properties or are regarded as being of a similar nature.
During a telephone conversation with Justin J. Cassell on 01/28/2026 a provisional election was made without traverse to prosecute the invention of species (a-i) and species (b-ii), claims 14-22 and 24. Affirmation of this election must be made by applicant in replying to this Office action. Claims 23 and 25 are withdrawn from further consideration by the examiner, 37 CFR 1.142(b), as being drawn to a non-elected invention.
Applicant is reminded that upon the cancellation of claims to a non-elected invention, the inventorship must be corrected in compliance with 37 CFR 1.48(a) if one or more of the currently named inventors is no longer an inventor of at least one claim remaining in the application. A request to correct inventorship under 37 CFR 1.48(a) must be accompanied by an application data sheet in accordance with 37 CFR 1.76 that identifies each inventor by his or her legal name and by the processing fee required under 37 CFR 1.17(i).
The examiner has required restriction between product or apparatus claims and process claims. Where applicant elects claims directed to the product/apparatus, and all product/apparatus claims are subsequently found allowable, withdrawn process claims that include all the limitations of the allowable product/apparatus claims should be considered for rejoinder. All claims directed to a nonelected process invention must include all the limitations of an allowable product/apparatus claim for that process invention to be rejoined.
In the event of rejoinder, the requirement for restriction between the product/apparatus claims and the rejoined process claims will be withdrawn, and the rejoined process claims will be fully examined for patentability in accordance with 37 CFR 1.104. Thus, to be allowable, the rejoined claims must meet all criteria for patentability including the requirements of 35 U.S.C. 101, 102, 103 and 112. Until all claims to the elected product/apparatus are found allowable, an otherwise proper restriction requirement between product/apparatus claims and process claims may be maintained. Withdrawn process claims that are not commensurate in scope with an allowable product/apparatus claim will not be rejoined. See MPEP § 821.04. Additionally, in order for rejoinder to occur, applicant is advised that the process claims should be amended during prosecution to require the limitations of the product/apparatus claims. Failure to do so may result in no rejoinder. Further, note that the prohibition against double patenting rejections of 35 U.S.C. 121 does not apply where the restriction requirement is withdrawn by the examiner before the patent issues. See MPEP § 804.01.
Specification
The disclosure is objected to because of the following informalities:
It is noted that abstract filed 06/01/2023 contains fewer than 50 words.
Applicant is reminded of the proper language and format for an abstract of the disclosure.
The abstract should be in narrative form and generally limited to a single paragraph on a separate sheet within the range of 50 to 150 words in length. The abstract should describe the disclosure sufficiently to assist readers in deciding whether there is a need for consulting the full patent text for details.
The language should be clear and concise and should not repeat information given in the title. It should avoid using phrases which can be implied, such as, “The disclosure concerns,” “The disclosure defined by this invention,” “The disclosure describes,” etc. In addition, the form and legal phraseology often used in patent claims, such as “means” and “said,” should be avoided.
Appropriate correction is required.
Claim Objections
Claims 15-22 and 24 are objected to because of the following informalities:
In order to provide consistency of the term “A dental product” recited in claim 1, line 1, it is suggested to
amend “The product” to “The dental product” in each line 1 of claims 15-22 and 24.
Appropriate correction is required.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 14-15, 18 and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Chow et al., US 2002/137812A1 (Chow) (provided in IDS received on 07/14/2025) in view of Burguera et al., Injectable and rapid-setting calcium phosphate bone cement with dicalcium phosphate dihydrate, Wiley InterScience, 2005 (Burguera).
Regarding claims 14-15 and 18, Chow teaches dental implant material in the form of a paste includes a mixture of calcium phosphate powders (reading upon a powder composition), that are capable of forming hydroxyapatite, with liquid glycerol (reading upon a liquid medium) and hydroxypropyl methylcellulose and Na2HPO4 (Chow, Abstract);
cement paste of the type referenced mixed with glycerol was studied for root canal filling, sealing, and injectability (reading upon a dental product for forming an endodontic cement in a dental canal) (Chow, [0003]);
hydroxypropyl methylcellulose (HMC) (reading upon a binder) and Na2HPO4 were also added to improve the paste cohesiveness and accelerate cement hardening upon delivery to a desired repair site (Chow, [0005]).
Chow further teaches for CPC-III samples, CPC pastes were prepared by mixing the prepared CPC powder with the liquid glycerol mixture at powder-to-liquid ratios (i.e., weight ratio) of 1.5 to 1.8 (Chow, [0007]), which corresponds to a powder mass content of 45% (i.e., 1.5/(1.5+1.8)=45%); and a liquid medium content of 55% (1.8/(1.5+1.8)=55%).
Further regarding claims 14 and 18, Chow does not explicitly disclose the binder in a mass content comprised between 0.5% and 5%; or wherein the mass content of the binder is comprised between 0.5% and 3.5%.
With respect to the difference, Burguera teaches calcium phosphate cement for dental implant (Burguera, Abstract). Burguera specifically teaches hydroxypropyl methylcellulose at a mass% of 0.5% and 1% (Burguera, page 129, Figure 2).
As Burguera expressly teaches, hydroxypropyl methylcellulose addition dramatically increased the paste injectability, and maximum can be reaches at 0.5% or 1% for specific calcium phosphate cement compositions (Burguera, page 130, left column, 2nd paragraph).
Burguera is analogous art as Burguera is drawn to calcium phosphate cement for dental implant.
In light of the motivation of using sufficient amount of hydroxypropyl methylcellulose in calcium phosphate cement paste, as taught by Burguera, it therefore would have been obvious to a person of ordinary skill in the art, to use sufficient amount of hydroxypropyl methylcellulose, such as at a mass% of 0.5% and 1%, in the dental implant material of Chow, in order to produce a cement paste that is injectable, and thereby arrive at the claimed invention.
Regarding claim 21, as applied to claim 14, Chow in view of Burguera further teaches for CPC-III samples, the liquid contains 7.5% of Na2NPO4, which corresponds to 4.1% (i.e., 7.5*1.8/(1.8+1.5)=4.1%) in the dental implant material in the form of a paste (Chow, page 2, Table 1); phosphate generally decrease hardening time (therefore Na2NPO4 reads upon a cement setting accelerator) (Chow, [0010]).
Claims 17 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Chow in view of Burguera as applied to claim 14 above, and further in view of Asgary et al., US 2008/0206716 A1 (Asgary).
Regarding claim 17, as applied to claim 14, Chow in view of Burguera does not explicitly disclose wherein the powder composition has an average particle size D50 of less than or equal to 50 µm.
With respect to the difference, Asgary teaches cement as endodontic material for filling the tooth and bone cavities (Asgary, Abstract). Asgary specifically teaches nanometer-size particles of calcium compounds (Asgary, [0043])
As Asgary expressly teaches, nanometer-size particles of calcium compounds will promote and accelerate hydroxyapatite formation and cement hardening (Asgary, [0043]).
Asgary is analogous art as Asgary is drawn to cement as endodontic material for filling the tooth and bone cavities.
In light of the motivation of using nanometer-size particles of calcium compound to form the cement, as taught by Asgary, it therefore would have been obvious to a person of ordinary skill in the art to use nanometer-size particles to from the calcium phosphate powder of Chow in view of Burguera (reading upon wherein the powder composition has an average particle size D50 of less than or equal to 50 µm), in order to accelerate hydroxyapatite formation and cement hardening, thereby arrive the claimed invention.
Regarding claim 19, as applied to claim 14, Chow in view of Burguera does not explicitly disclose further comprising a radiopaque contrast agent in a mass content of less than or equal to 15%.
With respect to the difference, Asgary specifically teaches the radiopacifiers can be incorporated in composition in the range of up to about 48 (preferably up to about 24) percent by weight (Asgary, [0044]).
As Asgary expressly teaches, the term "radiopaque" refers to a material that allows the composition to be more easily seen using an X-ray. The radiopaque filler provides the ability to determine how well the endodontic material has penetrated into and filled the tooth cavity, root canal(s) and a bone defect (Asgary, [0044]).
In light of the motivation of including a radiopacifier material in the dental implant material, as taught by Asgary, it therefore would have been obvious to a person of ordinary skill in the art to include a radiopacifier material in the dental implant material in the form of a paste of Chow in view of Burguera, in the range of up to about 48 (preferably up to about 24) percent by weight, in order to allow provide the ability to determine how well the endodontic material has penetrated into and filled the tooth cavity, root canal(s) and a bone defect, and therefore arrive at range that encompasses that of the presently claimed.
As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Chow in view of Burguera as applied to claim 14 above, and further in view of Liu et al., CN 102049062 A (Liu).
The examiner has provided a machine translation of Liu et al., CN 102049062 A (Liu). The citation of the prior art set forth below refers to the machine translation.
Regarding claim 20, as applied to claim 14, Chow in view of Burguera does not explicitly disclose further comprising a cement setting accelerator in a mass content of less than or equal to 10%.
With respect to the difference, Liu teaches calcium phosphate cement (Liu, Abstract). Liu specifically teaches a suspension stabilizer, said suspension stabilizer is gas phase silicon dioxide (Liu, [0017]) and component (c) the weight ratio of component (b) is 0. 1 to 5: 100 (weight ratio of silicon dioxide to calcium phosphate) (Liu, [0020]).
As Liu expressly teaches, applying the gas-phase silicon dioxide and modified product to the injectable calcium phosphate cement, thereby improving the suspension stability of the primary calcium phosphate cement, maintaining the solidification feature of the calcium phosphate cement without reducing the injection performance and the tensile strength (Liu, Abstract).
Liu is analogous art as Liu is drawn to calcium phosphate cement.
In light of the motivation of using silicon dioxide as suspension stabilizer (reading upon a suspending agent), it therefore would have been obvious to a person of ordinary skill in the art to include silicon dioxide in the dental implant material in the form of a paste of Chow in view of Burguera, e.g., with a weight ratio of silicon dioxide to powder mass of 0.1 to 5: 100, in order to improve the suspension stability of the primary calcium phosphate cement, maintaining the solidification feature of the calcium phosphate cement without reducing the injection performance and the tensile strength.
Given that Chow in view of Burguera teaches a powder mass content of 45%, it can be derived that Chow in view of Burguera and Liu teaches a silicon dioxide as suspension stabilizer, at a mass content of: 0.05% to 2.3% (i.e., 45%*0.1/100=0.05%; 45%*5/100=2.3%), which overlaps the range of the presently claimed.
As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Claim 22 is rejected under 35 U.S.C. 103 as being unpatentable over Chow in view of Burguera as applied to claim 14 above, and further in view of Asgary and Takagi et al., Premixed calcium-phosphate cement pastes, Wiley Periodicals, 2003 (Takagi).
Regarding claims 22, as applied to claim 14, Chow in view of Burguera teaches a powder mass content of 45%; hydroxypropyl methylcellulose (reading upon a binder) at a mass% of 0.5% and 1%;
with a liquid glycerol (reading upon non aqueous liquid medium) (Chow, Abstract).
further teaches for CPC-II samples, the liquid contains 7.5% of Na2NPO4, which corresponds to 4.1% (i.e., 7.5*1.8/(1.8+1.5)=4.1%) in the dental implant material in the form of a paste (Chow, page 2, Table 1); phosphate generally decrease hardening time (therefore Na2NPO4 reads upon a cement setting accelerator) (Chow, [0010]);
Chow in view of Burguera does not explicitly (a) the product comprises a radiopaque contrast agent in a mass content comprised between 5% and 15%, or (b) wherein: the liquid medium mass content is comprised between 30% and 40%.
With respect to the difference (a), Asgary specifically teaches the radiopacifiers can be incorporated in composition in the range of up to about 48 (preferably up to about 24) percent by weight (Asgary, [0044]).
As Asgary expressly teaches, the term "radiopaque" refers to a material that allows the composition to be more easily seen using an X-ray. The radiopaque filler provides the ability to determine how well the endodontic material has penetrated into and filled the tooth cavity, root canal(s) and a bone defect (Asgary, [0044]).
In light of the motivation of including a radiopacifier material in the dental implant material, as taught by Asgary, it therefore would have been obvious to a person of ordinary skill in the art to include a radiopacifier material in the dental implant material in the form of a paste of Chow in view of Burguera, in the range of up to about 48 (preferably up to about 24) percent by weight, in order to allow provide the ability to determine how well the endodontic material has penetrated into and filled the tooth cavity, root canal(s) and a bone defect, and therefore arrive at range that encompasses those of the presently claimed.
As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
With respect to the difference (b), Takagi teaches calcium phosphate cement for repairing bone defects (Takagi, Abstract).
As Takagi expressly teaches, the powder to liquid ratios are chosen in order to produce pastes that exhibit workable consistency (Takagi, page 690, right column, bottom paragraph).
Takagi is analogous art as Takagi is drawn to calcium phosphate cement for repairing bone defects.
In light of the motivation of controlling the powder to liquid ratios, as taught by Takagi, it therefore would have been obvious to a person of ordinary skill in the art to vary the powder to liquid ratio, when preparing the dental implant material in the form of a paste of Chow in view of Burguera and Asgary, including the mass content of the liquid medium as claimed, in order to achieve desired consistency.
Although there are no disclosures on the amounts of liquid medium as presently claimed, it has long been an axiom of United States patent law that it is not inventive to discover the optimum or workable ranges of result-effective variables by routine experimentation. In re Peterson, 315 F.3d 1325, 1330 (Fed. Cir. 2003) ("The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages."); In re Boesch, 617 F.2d 272, 276 (CCPA 1980) ("[D]iscovery of an optimum value of a result effective variable in a known process is ordinarily within the skill of the art."); In re Aller, 220 F.2d 454, 456 (CCPA 1955) ("[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation."). "Only if the 'results of optimizing a variable' are 'unexpectedly good' can a patent be obtained for the claimed critical range." In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997) (quoting In re Antonie, 559 F.2d 618, 620 (CCPA 1977)).
At the time of the invention, it would have been obvious to one of ordinary skill in the art to vary the amounts of liquid medium, including over the amounts presently claimed, in order to achieve desired consistency, and thereby arrive at the claimed invention.
Claim 24 is rejected under 35 U.S.C. 103 as being unpatentable over Chow in view of Burguera as applied to claim 14 above, and further in view of Asgary and Jia et al., US 2007/0197683 A1 (Jia).
Regarding claim 24, as applied to claim 14, Chow in view of Burguera does not explicitly disclose wherein the radiopaque contrast agent comprises zirconium oxide and wherein the mass content of the powder composition is comprised between 48% and 52%.
With respect to the difference, Asgary specifically teaches the radiopacifiers can be incorporated in composition in the range of up to about 48 (preferably up to about 24) percent by weight (Asgary, [0044]); the radiopacifier includes bismuth subcarbonate and barium sulfate (Asgary, [0044]).
Jia teaches a dental composition (Jia, Abstract). Jia specifically teaches inert, non-toxic radiopaque materials such as zirconium oxide, barium sulfate, and bismuth subcarbonate may be used (Jia, [0043]).
Jia is analogous art as Jia is drawn to a dental composition.
As Asgary expressly teaches, the term "radiopaque" refers to a material that allows the composition to be more easily seen using an X-ray. The radiopaque filler provides the ability to determine how well the endodontic material has penetrated into and filled the tooth cavity, root canal(s) and a bone defect (Asgary, [0044]).
In light of the motivation of including a radiopacifier material in the dental implant material, as taught by Asgary, and in light of the disclosure of Jia of the equivalence and interchangeability of using barium sulfate, and bismuth subcarbonate, and zirconium oxide as the radiopacifier for dental composition, it therefore would have been obvious to a person of ordinary skill in the art to include a radiopacifier material, such as zirconium oxide, in the dental implant material in the form of a paste of Chow in view of Burguera, in the range of up to about 48 (preferably up to about 24) percent by weight, in order to allow provide the ability to determine how well the endodontic material has penetrated into and filled the tooth cavity, root canal(s) and a bone defect, and therefore arrive at range that encompasses that of the presently claimed.
As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Given that Chow in view of Burguera teaches a powder mass content of 45%, and therefore Chow in view of Burguera, Asgary and Jia teaches a powder mass content (i.e., calcium phosphate cement and zirconium oxide radiopacifier material combined) of up to about 93% (preferably up to about 69%) (i.e., 45%+48%=93%; 45%+24%=69%), which encompasses the range of the presently claimed.
As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Claims 14 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Chow, in view of Takagi.
Regarding claims 14 and 16, Chow teaches dental implant material in the form of a paste includes a mixture of calcium phosphate powders (reading upon a powder composition), that are capable of forming hydroxyapatite, with liquid glycerol (reading upon a liquid medium) and hydroxypropyl methylcellulose and Na2HPO4 (Chow, Abstract);
cement paste of the type referenced mixed with glycerol was studied for root canal filling, sealing, and injectability (reading upon a dental product for forming an endodontic cement in a dental canal) (Chow, [0003]);
hydroxypropyl methylcellulose (HMC) (reading upon a binder) and Na2HPO4 were also added to improve the paste cohesiveness and accelerate cement hardening upon delivery to a desired repair site (Chow, [0005]).
Chow further teaches for CPC-I samples, the calcium phosphate cement is an equimolar mixture of TTCP (tetra calcium phospate) and DCPA (dicalcium phosphate); CPC pastes were prepared by mixing the prepared CPC powder with the liquid glycerol mixture at powder-to-liquid ratios (i.e., weight ratio) of 3.5 to 1 (Chow, [0007]).
HMC mass fraction includes 2.2% in glycerol (Chow, Table 1), which corresponds to a binder in a mass content of the dental implant material of 0.5% (i.e., 2.2%*1/(3.5+1)=0.5%).
Chow does not explicitly disclose the powder composition in a mass content comprised between 40% and 55%, and a liquid medium in a mass content comprised between 30% and 50%.
With respect to the difference, Takagi teaches calcium phosphate cement for repairing bone defects (Takagi, Abstract).
As Takagi expressly teaches, the powder to liquid ratios are chosen in order to produce pastes that exhibit workable consistency (Takagi, page 690, right column, bottom paragraph).
Takagi is analogous art as Takagi is drawn to calcium phosphate cement for repairing bone defects.
In light of the motivation of controlling the powder to liquid ratios, as taught by Takagi, it therefore would have been obvious to a person of ordinary skill in the art to vary the powder to liquid ratio, when preparing the dental implant material in the form of a paste of Chow, including the mass contents of the powder composition and of the liquid medium as claimed, in order to achieve desired consistency.
Although there are no disclosures on the amounts of powder composition and liquid medium as presently claimed, it has long been an axiom of United States patent law that it is not inventive to discover the optimum or workable ranges of result-effective variables by routine experimentation. In re Peterson, 315 F.3d 1325, 1330 (Fed. Cir. 2003) ("The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages."); In re Boesch, 617 F.2d 272, 276 (CCPA 1980) ("[D]iscovery of an optimum value of a result effective variable in a known process is ordinarily within the skill of the art."); In re Aller, 220 F.2d 454, 456 (CCPA 1955) ("[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation."). "Only if the 'results of optimizing a variable' are 'unexpectedly good' can a patent be obtained for the claimed critical range." In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997) (quoting In re Antonie, 559 F.2d 618, 620 (CCPA 1977)).
At the time of the invention, it would have been obvious to one of ordinary skill in the art to vary the amounts of powder composition and liquid medium, including over the amounts presently claimed, in order to achieve desired consistency, and thereby arrive at the claimed invention.
Conclusion
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/KELING ZHANG/
Primary Examiner
Art Unit 1732