DETAILED ACTION
This action is in response to the Request for Continued Examination (RCE) filed 2/26/2026. Currently, claims 1-5 and 8-18 are pending in the application. Claims 6, 7 and 19 are cancelled by Applicant.
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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 2/6/2026 has been entered.
Response to Arguments
Applicant’s amendment to claim 1 is sufficient to overcome the previous rejection of claim 1 under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph.
Applicant’s arguments that Washburn does not teach the protective member being fully embedded have been fully considered and are persuasive. However, upon further consideration, a new ground(s) of rejection is made in view of Radmand (US 20180/014912 A1).
Applicant's remaining argument(s) filed 2/6/2026 have been fully considered but they are not persuasive.
In response to Applicant’s argument that Washburn does not teach the protective member comprising a curved outward-facing portion that extends continuously from one buccal side of the user's dental arch, across the labial side of the dental arch, to the other buccal side of the dental arch; and a curved interarch portion that extends continuously from one occlusal side of the user's dental arch, across the incisal side of the user's dental arch, to the other occlusal side of the user's dental arch, the examiner respectfully disagrees. As detailed below, Figure 3B of Washburn teaches the protective member (embedded elastomeric frame 278) comprising a curved outward-facing portion (exterior, perimeter surface of frame 278) that extends continuously from one buccal side of the user's dental arch, across the labial side of the dental arch, to the other buccal side of the dental arch (as shown in Figure 3B, the exterior, perimeter surface of frame 278 is an unbroken, curved surface that extends from one buccal side of the user's dental arch at the exterior, perimeter surface of first posterior portion 281, across the labial side of the dental arch at the exterior, perimeter surface of anterior portion 279, and to the other buccal side of the dental arch at the exterior, perimeter surface of second posterior portion 281); and a curved interarch portion (bottom edge of frame 278; positioned between the user’s upper and lower dental arches in use) that extends continuously from one occlusal side of the user's dental arch, across the incisal side of the user's dental arch, to the other occlusal side of the user's dental arch (as shown in Figure 3B, the bottom edge of frame 278 is an unbroken, curved edge that extends from one buccal side of the user's dental arch at the bottom edge of first posterior portion 281, across the labial side of the dental arch at the bottom edge of anterior portion 279, and to the other buccal side of the dental arch at the bottom edge of second posterior portion 281).
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-5 and 8-18 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. Claim 1 recites the protective member including “a curved outward-facing portion that extends continuously from one buccal side of the user's dental arch, across the labial side of the dental arch, to the other buccal side of the dental arch.” No support is provided for this claim limitation in Applicant’s specification as originally filed. Applicant’s original disclosure does not teach the outward-facing portion (encircled in the annotated copy of Figure 12 provided below) of the protective member (60) being continuous, as claimed. Rather, it is clear from at least Applicant’s Figure 12 that the outward-facing portion is discontinuous at least at the central notch for accommodating the user’s frenulum portion (encircled in the annotated copy of Figure 12 provided below). Claims 2-5 and 8-18 depend on claim 1 and therefore, include the same error.
Claims 1-5 and 8-18 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. Claim 1 recites the protective member including “a curved interarch portion that extends continuously from one occlusal side of the user's dental arch, across the incisal side of the user's dental arch, to the other occlusal side of the user's dental arch.” No support is provided for this claim limitation in Applicant’s specification as originally filed. Applicant’s original disclosure does not teach the interarch portion (encircled in the annotated copy of Figure 12 provided below) of the protective member (60) being continuous, as claimed. Rather, it is clear from at least Applicant’s Figure 12 that the interarch portion is discontinuous at least at holes/bores (66). Claims 2-5 and 8-18 depend on claim 1 and therefore, include the same error.
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Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-5 and 8-18 are rejected under 35 U.S.C. 101 because Section 33(a) of the America Invents Act reads as follows:
Notwithstanding any other provision of law, no patent may issue on a claim directed to or encompassing a human organism.
Claims 1-5 and 8-18 are rejected under 35 U.S.C. 101 and section 33(a) of the America Invents Act as being directed to or encompassing a human organism. See also Animals - Patentability, 1077 Off. Gaz. Pat. Office 24 (April 21, 1987) (indicating that human organisms are excluded from the scope of patentable subject matter under 35 U.S.C. 101). Claim 1 recites “a curved outward-facing portion that extends continuously from one buccal side of the user's dental arch, across the labial side of the dental arch, to the other buccal side of the dental arch; and a curved interarch portion that extends continuously from one occlusal side of the user's dental arch, across the incisal side of the user's dental arch, to the other occlusal side of the user's dental arch,” which is a claim limitation indicating that Applicant is attempting to claim the user’s dental arch (which is non-statutory subject matter). Applicant should utilize “adapted to” or “capable of” language to avoid this error. Claims 2-5 and 8-18 depend on claim 1 and therefore, include the same error.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 1 and 2 is/are rejected under 35 U.S.C. 103 as being unpatentable over Washburn (US 6,082,363 A) in view of Radmand (US 20180/014912 A1).
In regards to claim 1, Washburn teaches in Figures 2-7 a U-shaped body (thermoplastic mouthguard base 261; column 4, line 4 teaches “the thermoplastic mouthguard base 261 is U-shaped”) comprising (column 4, lines 4-9 teaches “The thermoplastic mouthguard base 261 is U-shaped with a top side 264 and a bottom side 266. Extending upward on the top side 264 are inner and outer side walls 268 and 270 forming an upper channel 271 therebetween for receiving the upper jaw and teeth 12, 18 and 22 (FIG. 1).”) a posterior wall (side wall 268), an anterior wall (side wall 270), and a middle bite portion (uppermost surface of top side 264) disposed between (as shown in Figure 3A) the posterior wall (side wall 268) and the anterior wall (side wall 270), wherein the posterior wall (side wall 268) and the anterior wall (side wall 270) extend from (as shown in Figure 3A) the middle bite portion (uppermost surface of top side 264) to define a groove (upper channel 271) (column 4, lines 5-9 teaches “extending upward on the top side 264 are inner and outer side walls 268 and 270 forming an upper channel 271 therebetween for receiving the upper jaw and teeth 12, 18 and 22 (FIG. 1)”);
a protective member (embedded elastomeric frame 278) embedded within (Figures 3A and 3B teach the embedded elastomeric frame 278 being embedded within the thermoplastic mouthguard base 261; column 4, line 2 teaches “embedded elastomeric frame 278;” column 4, lines 31-32 teaches “the frame 278 is formed within the mouthguard base 261;” column 4, lines 62-64 teaches “the mouthguard base 261 surrounds the anterior cushion pads 292 to embed the frame 278 in the anterior portion 274 of the mouthguard base 261;” column 5, lines 27-30 teaches “the elastomeric frame 278 is initially molded or formed after which the thermoplastic mouthguard base 261 may be injection molded therearound”) the U-shaped body (thermoplastic mouthguard base 261), wherein the protective member (embedded elastomeric frame 278) is formed as a single piece (Figure 3B teaches all portions of the embedded elastomeric frame 278 being connected to form a single unit) of rigid material (column 5, lines 1-5 teaches the embedded elastomeric frame 278 being made of a “non-softening” material that has exhibits “low compression” and “shape maintenance”) and comprises:
a curved outward-facing portion (exterior, perimeter surface of frame 278) that extends continuously from one buccal side of the user's dental arch, across the labial side of the dental arch, to the other buccal side of the dental arch (as shown in Figure 3B, the exterior, perimeter surface of frame 278 is an unbroken, curved surface that extends from one buccal side of the user's dental arch at the exterior, perimeter surface of first posterior portion 281, across the labial side of the dental arch at the exterior, perimeter surface of anterior portion 279, and to the other buccal side of the dental arch at the exterior, perimeter surface of second posterior portion 281); and
a curved interarch portion (bottom edge of frame 278; positioned between the user’s upper and lower dental arches in use) that extends continuously from one occlusal side of the user's dental arch, across the incisal side of the user's dental arch, to the other occlusal side of the user's dental arch (as shown in Figure 3B, the bottom edge of frame 278 is an unbroken, curved edge that extends from one buccal side of the user's dental arch at the bottom edge of first posterior portion 281, across the labial side of the dental arch at the bottom edge of anterior portion 279, and to the other buccal side of the dental arch at the bottom edge of second posterior portion 281);
a brace member (liner 400) receivable in (as shown in Figures 3A, 4 and 7; column 5, lines 31-34 teaches “the mouthguard apparatus 200 includes a liner 400 molded to the top side 264 of the U-shaped base 261 and to the inner side wall 268 and outer side wall 270”) the groove (upper channel 271) of the U-shaped body (thermoplastic mouthguard base 261), the brace member (liner 400) comprising (column 5, lines 43-44 teaches “the liner 400 is defined by side walls 410 and a bottom wall 412”) a posterior wall (posterior liner side wall 410), an anterior wall (anterior liner side wall 410), and a middle bite portion (bottom wall 412) disposed between (as shown in Figure 6) the posterior wall (posterior liner side wall 410) and the anterior wall (anterior liner side wall 410), wherein the posterior wall (posterior liner side wall 410) and the anterior wall (anterior liner side wall 410) extend from the middle bite portion (bottom wall 412) to define a trough (as shown in Figure 6; column 5, lines 34-35 teaches “the liner 400 has a receiving channel 402 therein which is adapted to engage the teeth of the upper jaw (FIG. 1)”).
Washburn does not teach the protective member being fully embedded.
However, Radmand teaches in [0044] and Figure 2 an analogous device with the protective member (splint 100) being fully embedded ([0044] teaches “the splint 100 (shown in dashed lines) may be embedded entirely within (i.e., completely surrounded by or encapsulated within) the body or shell of the appliance, such that the anterior/buccal portion 102 of the splint 100 is embedded within the anterior wall 202 of the polymeric shell, the posterior/lingual portion 104 of the splint 100 is embedded within the posterior wall 204 of the polymeric shell, and the transverse/occlusal portion 106 of the splint 100 is embedded within the transverse plate 206 of the polymeric shell”).
It would have been obvious to one having ordinary skill in the art before the effective filing of the present application to modify the protective member of Washburn to be fully embedded as taught by Radmand because this element is known in the art to be a suitable alternative to a partially embedded protective member that “is operative for preventing movement of the user's dentition over time when wearing the oral appliance,” as Radmand teaches in the abstract and [0005].
In regards to claim 2, Washburn and Radmand teach the apparatus of claim 1. Washburn teaches in column 2, lines 33-35, column 3, lines 47-49 and column 6, lines 15-23 that the mouthguard assembly (mouthguard apparatus 200) is custom sized for a particular user to achieve a tight fit (column 2, lines 33-35 teaches “the triple layer mouthguard permits the formation of a customized thermoplastic mouthguard base protecting the teeth, jaws and gums;” column 3, lines 47-49 teaches “a mouthguard apparatus 200 is provided which permits the formation of a customized thermoplastic mouthguard base protecting the teeth, jaws and gums;” column 6, lines 15-23 teaches “The liner 400 will easily conform to all of the contours of the teeth while the mouthguard base 261 is not appreciably deformed, except to conform somewhat to the outer dimensions of the teeth and gums. The fitting process causes displacement of the thermoplastic liner 400 around the individual teeth, allowing the liner to conform to the exact tooth shape, unlike standard mouthguards which only conform to the outside of the teeth.”).
Applicant should note that claim 2 limitation “custom sized for a particular user to achieve a tight fit” is a product-by-process claim limitation. “Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (citations omitted).
Claim(s) 3 and 5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Washburn (US 6,082,363 A), in view of Radmand (US 20180/014912 A1) and further in view of Chodorow (US 2010/0147315 A1).
In regards to claim 3, Washburn and Radmand teach the apparatus of claim 1. Washburn and Radmand do not teach that the posterior wall, anterior wall, and middle bite portion are comprised of a material selected from any one or more of the following: natural rubber, styrene-butadiene rubber, butyl rubber, nitrile butadiene rubber, chloroprene rubber, ethylene propylene diene monomer rubber, silicone elastomers, fluorine rubbers, ester-based polyurethanes, hydrogenated acrylonitrile butadiene rubber, and fluorosilicone rubber.
However, Chodorow teaches in Figures 1-3 and [0065] an analogous device wherein the U-shaped body (protective device 10) is comprised of a material selected from any one or more of the following: natural rubber, styrene-butadiene rubber, butyl rubber, nitrile butadiene rubber, chloroprene rubber, ethylene propylene diene monomer rubber, silicone elastomers ([0065] teaches “a one-piece molded device of a flexible and resilient plastic such as a thermoplastic elastomer, for example DuPont's Elvaloy.TM., PVC, silicones and other plastics”), fluorine rubbers, ester-based polyurethanes, hydrogenated acrylonitrile butadiene rubber, and fluorosilicone rubber.
It would have been obvious to one having ordinary skill in the art before the effective filing of the present application to modify the posterior wall, anterior wall, and middle bite portion of Washburn as modified by Radmand to be comprised of a material selected from any one or more of the following: natural rubber, styrene-butadiene rubber, butyl rubber, nitrile butadiene rubber, chloroprene rubber, ethylene propylene diene monomer rubber, silicone elastomers, fluorine rubbers, ester-based polyurethanes, hydrogenated acrylonitrile butadiene rubber, and fluorosilicone rubber as taught by Chodorow because this element is known in the art to be a suitable alternative thermoplastic material from which the U-shaped body can be made, which is “flexible and resilient” such that “the required softness-toughness and resilient cushion characteristics may be achieved,” as Chodorow teaches in [0065].
In regards to claim 5, Washburn and Radmand teach the apparatus of claim 1. Washburn and Radmand do not teach that the protective layer (top side 264) is comprised of a material selected from any one or more of the following: natural rubber, styrene-butadiene rubber, butyl rubber, nitrile butadiene rubber, chloroprene rubber, ethylene propylene diene monomer rubber, silicone elastomers, fluorine rubbers, ester-based polyurethanes, hydrogenated acrylonitrile butadiene rubber, and fluorosilicone rubber.
However, Chodorow teaches in Figures 1-3 and [0065] an analogous device wherein the protective layer (bite pad 14) is comprised of a material selected from any one or more of the following: natural rubber, styrene-butadiene rubber, butyl rubber, nitrile butadiene rubber, chloroprene rubber, ethylene propylene diene monomer rubber, silicone elastomers ([0065] teaches “a one-piece molded device [which includes bite pad 14] of a flexible and resilient plastic such as a thermoplastic elastomer, for example DuPont's Elvaloy.TM., PVC, silicones and other plastics”), fluorine rubbers, ester-based polyurethanes, hydrogenated acrylonitrile butadiene rubber, and fluorosilicone rubber.
It would have been obvious to one having ordinary skill in the art before the effective filing of the present application to modify the protective layer of Washburn as modified by Radmand to be comprised of a material selected from any one or more of the following: natural rubber, styrene-butadiene rubber, butyl rubber, nitrile butadiene rubber, chloroprene rubber, ethylene propylene diene monomer rubber, silicone elastomers, fluorine rubbers, ester-based polyurethanes, hydrogenated acrylonitrile butadiene rubber, and fluorosilicone rubber as taught by Chodorow because this element is known in the art to be a suitable alternative thermoplastic material from which the protective layer can be made, which is “flexible and resilient” such that “the required softness-toughness and resilient cushion characteristics may be achieved,” as Chodorow teaches in [0065].
Claim(s) 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over Washburn (US 6,082,363 A), in view of Radmand (US 20180/014912 A1) and further in view of Shantha (US 2012/0234332 A1).
In regards to claim 4, Washburn and Radmand teach the apparatus of claim 1. Washburn and Radmand do not teach that the protective member is comprised of a material selected from any one or more of the following: gold stainless steel, aluminum, chromium, brass, bronze, tin, pewter, nickel, silver, iron, steel, magnesium, duralumin, carbon steel, solder, platinum, cast iron, aluminum bronze, gunmetal, copper, zinc, tungsten, molybdenum, and alloys thereof.
However, Shantha teaches in [0095], [0118] and Figures 4 and 6 an analogous device ([0095] teaches “the device 101 is provided with two adjustable incisors teeth receptacles or incisors teeth sockets for upper 106 and lower jaw incisors 107”) comprised of a material selected from any one or more of the following: gold stainless steel, aluminum, chromium, brass, bronze, tin, pewter, nickel, silver, iron, steel, magnesium, duralumin, carbon steel, solder, platinum, cast iron, aluminum bronze, gunmetal, copper, zinc, tungsten, molybdenum, and alloys thereof ([0118] teaches “the anti snoring and obstructive sleep apnea device may be made of thermoplastic or elastomeric resin or synthetic plastic or silicone resins with or without metal component such as stainless steel, aluminum, and copper rods added to strengthen the composite materials and add moldability to the user's mouth”).
It would have been obvious to one having ordinary skill in the art before the effective filing of the present application to modify the protective member of Washburn as modified by Radmand to be comprised of a material selected from any one or more of the following: gold stainless steel, aluminum, chromium, brass, bronze, tin, pewter, nickel, silver, iron, steel, magnesium, duralumin, carbon steel, solder, platinum, cast iron, aluminum bronze, gunmetal, copper, zinc, tungsten, molybdenum, and alloys thereof as taught by Shantha because this element is known in the art to be a suitable additive to the elastomeric material of the protective layer, which can be “added to strengthen the composite materials and add moldability to the user's mouth,” as Shantha teaches in [0118].
Claim(s) 8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Washburn (US 6,082,363 A), in view of Radmand (US 20180/014912 A1) and further in view of Cook et al. (US 2013/0247923 A1).
In regards to claim 8, Washburn and Radmand teach the apparatus of claim 1. Washburn and Radmand do not teach that the brace member is comprised of a material selected from any one or more of the following: polycarbonate, acrylic, polyamide, polystyrene, polypropylene, acrylonitrile butadiene styrene, polyester, polypropylene, glass-filled nylon, epoxy, polyethylene, polyoxymethylene, thermoplastic elastomers, thermoplastic polyurethane, and polyethylene terephthalate.
However, Cook et al. teaches in Figure 1, [0034] and [0049] an analogous device wherein the brace member (trough 20) is comprised of a material selected from any one or more of the following: polycarbonate, acrylic, polyamide, polystyrene, polypropylene, acrylonitrile butadiene styrene, polyester, polypropylene, glass-filled nylon, epoxy, polyethylene, polyoxymethylene, thermoplastic elastomers, thermoplastic polyurethane ([0034] teaches “a trough 20 formed at least in part from a heat-softenable material;” [0049] teaches “the heat-softenable material may be a thermoplastic polyurethane having a low melt point (e.g., less than 160.degree. F.) such as, for example, certain TEXIN thermoplastic polyurethanes (Bayer A G, Leverkusen, Germany)”), and polyethylene terephthalate.
It would have been obvious to one having ordinary skill in the art before the effective filing of the present application to modify the brace member of Washburn as modified by Radmand to provide that the brace member is comprised of thermoplastic polyurethane as taught by Cook et al. because this element is known in the art to be a suitable alternative thermoplastic material from which the brace member can be made, which can be “molded to the dentition of the user and then allowed to cool to produce a mouthguard custom fit to the user,” as Cook et al. teaches in [0031] and [0049].
Claim(s) 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Washburn (US 6,082,363 A), in view of Radmand (US 20180/014912 A1) and further in view of Tadros et al. (US 2005/0100853 A1).
In regards to claim 9, Washburn and Radmand teach the apparatus of claim 1. Washburn and Radmand do not teach that the brace member is comprised of a material selected from any one or more of the following: nylon 11, nylon 12, nylon 46, and nylon 66.
However, Tadros et al. teaches in Figure 3 and [0022] an analogous device wherein the brace member (upper layer of appliance 100; [0022] teaches “the appliance 100 of FIG. 3 preferably contains at least one layer manufactured from a sheet of a polymeric mixture”) is comprised of a material selected from any one or more of the following: nylon 11, nylon 12, nylon 46, and nylon 66 ([0022] teaches “the appliance 100 of FIG. 3 preferably contains at least one layer manufactured from a sheet of a polymeric mixture,” “polymeric mixtures used for such appliances, are generally physical mixtures of two or more thermoplastic polymers” and “suitable examples of thermoplastic polymers are polyolefins such as polyethylene, polypropylene; polyamides such as Nylon 4,6, Nylon 6, Nylon 6,6, Nylon 6, 10, Nylon 6, 12”).
It would have been obvious to one having ordinary skill in the art before the effective filing of the present application to modify the brace member of Washburn as modified by Radmand to be comprised of a material selected from any one or more of the following: nylon 11, nylon 12, nylon 46, and nylon 66 as taught by Tadros et al. because this element is known in the art to be a suitable alternative thermoplastic material from which the brace member can be made, which enables “thermoforming” and “molding” of the brace member, as Tadros et al. teaches in [0022] and [0080].
Claim(s) 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Washburn (US 6,082,363 A), in view of Radmand (US 20180/014912 A1) and further in view of Tomasi (US 5,313,960 A).
In regards to claim 10, Washburn and Radmand teach the apparatus of claim 1. Washburn and Radmand do not teach that the brace member defines a bottom side that comprises a pair of cantilever arms; and the U-shaped body defines corresponding holes aligned with the pair of cantilever arms of the brace member for indexing the pair of cantilever arms.
However, Tomasi teaches in Figures 1, 3 and 5 and column 3, lines 45-50 an analogous device wherein the brace member (impression tray portion 20 and upper core piece 50) defines a bottom side (bottom surface of upper core piece 50) that comprises (as shown in Figures 1, 3 and 5 an) a pair of cantilever arms (protruding connectors 60a, 60b, and 60c); and the U-shaped body (impression tray portion 30 and lower core piece 50) defines corresponding holes (“the holes of the core piece of lower mouthpiece portion 30” taught in column 3, lines 45-50) aligned with the pair of cantilever arms (protruding connectors 60a, 60b, and 60c) of the brace member (impression tray portion 20 and upper core piece 50) for indexing the pair of cantilever arms (column 3, lines 45-50 teaches “a core piece of identical configuration (such as contained within lower mouthpiece portion 30) will snap fit and attach to the upper core piece 50, the protruding connectors 60a-c in upper core piece 50 snap fitting into the holes of the core piece of lower mouthpiece portion 30”).
It would have been obvious to one having ordinary skill in the art before the effective filing of the present application to modify the device of Washburn as modified by Radmand such that the brace member defines a bottom side that comprises a pair of cantilever arms; and the U-shaped body defines corresponding holes aligned with the pair of cantilever arms of the brace member for indexing the pair of cantilever arms as taught by Tomasi because this element is known to provide a more secure “snap fit” attachment of the brace member to the body, as Tomasi teaches in column 3, lines 45-50.
Claim(s) 11-13, 15, 17 and 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Washburn (US 6,082,363 A), in view of Radmand (US 20180/014912 A1) and further in view of Chigbue et al. (US 2022/0023005 A1).
In regards to claims 11-13, 17 and 18, Washburn and Radmand teach the apparatus of claim 1. Washburn and Radmand do not teach that the brace member defines a slot in at least one of the anterior wall and posterior wall of the brace member, facing the trough, wherein the slot provides space for receiving a component of dental braces, wherein the slot is a bracket slot that opens towards the trough of the brace member and extends to the top of the wall it is defined in; and wherein the bracket slot is defined in the anterior wall of the brace member; and wherein the slot is a wire slot that defines a top-side opening and extends horizontally across the wall it is defined in; and wherein the brace member further comprises an intermediary portion defined between the wire slot and the trough of the brace member.
However, Chigbue et al. teaches in Figure 1 and [0023-0024] an analogous device wherein the brace member (orthodontic appliance covering device 10) defines a slot (plurality of cavities 14 and slot 18; [0024] teaches “the plurality of cavities 14 may comprise a slot 18”) in (as shown in Figure 1) at least one of the anterior wall (anterior wall of shell 2) and posterior wall of the brace member (orthodontic appliance covering device 10), facing (as shown in Figure 1) the trough ([0024] teaches “the shell 12 has a first face 16, which is open and thus configured for insertion of a set of teeth having the orthodontic appliance engaged thereto”), wherein the slot (plurality of cavities 14 and slot 18) provides space for receiving a component of dental braces ([0023] teaches “each cavity 14 is complementary to at least one of a tooth and a portion of an orthodontic appliance, which should be interpreted to mean only a tooth, only a portion of an orthodontic appliance, or both a tooth and a portion of an orthodontic appliance;” [0023] teaches “each cavity 14 has an associated at least one of a tooth and a portion of an orthodontic appliance positioned therein;” thus, it is clear that the cavities 14 are configured to receive a portion of an orthodontic appliance like dental braces; [0024] teaches “the slot 18 is configured for insertion of a wire of a set of braces that is engaged to the set of teeth”), wherein the slot (plurality of cavities 14 and slot 18) is a bracket slot (plurality of cavities 14 and slot 18; [0023] teaches “each cavity 14 is complementary to at least one of a tooth and a portion of an orthodontic appliance, which should be interpreted to mean only a tooth, only a portion of an orthodontic appliance, or both a tooth and a portion of an orthodontic appliance;” [0023] teaches “each cavity 14 has an associated at least one of a tooth and a portion of an orthodontic appliance positioned therein;” thus, it is clear that the cavities 14 are configured to receive brackets of an orthodontic appliance like dental braces) that opens towards (as shown in Figure 1) the trough ([0024] teaches “the shell 12 has a first face 16, which is open and thus configured for insertion of a set of teeth having the orthodontic appliance engaged thereto”) of the brace member (orthodontic appliance covering device 10) and extends to the top of the wall (anterior wall of shell 2) it is defined in (Figure 1 teaches the plurality of cavities 14 and slot 18 each having a height that extends vertically in a direction toward the top of the anterior wall of shell 2); and wherein the bracket slot (plurality of cavities 14 and slot 18) is defined in (as shown in Figure 1) the anterior wall (anterior wall of shell 2) of the brace member (orthodontic appliance covering device 10); and wherein the slot (plurality of cavities 14 and slot 18) is a wire slot (plurality of cavities 14 and slot 18; [0024] teaches “the slot 18 is configured for insertion of a wire of a set of braces that is engaged to the set of teeth”) that defines a top-side opening (Figure 1 teaches the slot 18 being open at the top side thereof) and extends horizontally across the wall (anterior wall of shell 2) it is defined in (as shown in Figure 1); and wherein the brace member (orthodontic appliance covering device 10) further comprises an intermediary portion (as defined in the annotated copy of Figure 1 provided below) defined between (as shown in Figure 1, the intermediary portion is positioned between the depth of the plurality of cavities 14 and the trough of the orthodontic appliance covering device 10) the wire slot (plurality of cavities 14 and slot 18) and the trough ([0024] teaches “the shell 12 has a first face 16, which is open and thus configured for insertion of a set of teeth having the orthodontic appliance engaged thereto”) of the brace member (orthodontic appliance covering device 10).
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It would have been obvious to one having ordinary skill in the art before the effective filing of the present application to modify the brace member of Washburn as modified by Radmand to provide that the brace member defines a slot in at least one of the anterior wall and posterior wall of the brace member, facing the trough, wherein the slot provides space for receiving a component of dental braces; wherein the slot is a bracket slot that opens towards the trough of the brace member and extends to the top of the wall it is defined; and wherein the bracket slot is defined in the anterior wall of the brace member; and wherein the slot is a wire slot that defines a top-side opening and extends horizontally across the wall it is defined in; and wherein the brace member further comprises an intermediary portion defined between the wire slot and the trough of the brace member as taught by Chigbue et al. because this element is known to enable the brace member to be “complementary” to dental braces and “configured for insertion of a wire of a set of braces that is engaged to the set of teeth” and thus, enable the brace member to comfortably accommodate braces if worn by the user, as Chigbue et al. teaches in [0023-0024].
In regards to claim 15, Washburn, Radmand and Chigbue et al. teach the apparatus of claims 1, 11 and 12. Washburn, Radmand and Chigbue et al. do not teach that the bracket slot is defined in the posterior wall of the brace member.
However, it would have been obvious to one having ordinary skill in the art before the effective filing of the present application to provide that the bracket slot is defined in the posterior wall of the brace member, since it has been held that rearranging parts of an invention involves only routine skill in the art. In re Japikse, 86 USPQ 70. One having ordinary skill in the art before the effective filing of the present application would find it obvious that the bracket slot could be defined in the posterior wall in order to accommodate lingual braces.
Claim(s) 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Washburn (US 6,082,363 A), in view of Radmand (US 20180/014912 A1), in view of Chigbue et al. (US 2022/0023005 A1) and further in view of Breads et al. (US 4,856,991 A).
In regards to claim 14, Washburn, Radmand and Chigbue et al. teach the apparatus of claims 1 and 11-13. Washburn, Radmand and Chigbue et al. do not teach that the bracket slot is orientated at a rear-to-front downward angle.
However, Breads et al. teaches in Figure 24, column 4, lines 40-43 and column 14, lines 40-44 an analogous device wherein the bracket slot (indentation 176; column 4, lines 40-43 teaches “the coupling members 21 are in the form of retaining brackets 28 of the type commonly used in connection with arch wires (not shown) of orthodontic braces;” column 14, lines 40-44 teaches “a body 172 in which is defined a recess 174 and an associated indentation 176 for nestingly receiving the teeth 3 and tooth-mounted coupling member 178, respectively”) is orientated at a rear-to-front downward angle (as indicated by the arrow in the annotated copy of Figure 24 provided below).
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It would have been obvious to one having ordinary skill in the art before the effective filing of the present application to modify the bracket slot of Washburn as modified by Radmand and Chigbue et al. to be orientated at a rear-to-front downward angle as taught by Breads et al. because this element is known to provide the bracket slot with a “cup-like” configuration that “nestingly accepts and thereby completely encircles” the bracket in a more secure “snap-fit arrangement” to “to releasably secure the body 172 to the teeth J” as Breads et al. teaches in column 14, lines 40-56.
Claim(s) 16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Washburn (US 6,082,363 A), in view of Radmand (US 20180/014912 A1), in view of Chigbue et al. (US 2022/0023005 A1) and further in view of Amstutz et al. (US 4,559,013 A).
In regards to claim 16, Washburn, Radmand and Chigbue et al. teach the apparatus of claims 1, 11, 12 and 15. Washburn, Radmand and Chigbue et al. do not teach that the bracket slot extends entirely through the posterior wall of the brace member.
However, Amstutz et al. teaches in column 3, lines 46-51, column 5, lines 34-36 and Figure 4 an analogous device wherein the bracket slot (indentions 9; taught in column 5, lines 34-36 to be “formed exactly to” braces 2, which are known to include wires and brackets) extends entirely through (the lateral width of) the posterior wall of the brace member (column 3, lines 46-51 teaches the shield 8 being applied to lingual braces; thus, it is understood that the shield 8 is structured as a posterior wall positioned behind the user’s teeth in use).
It would have been obvious to one having ordinary skill in the art before the effective filing of the present application to modify the bracket slot of Washburn as modified by Radmand and Chigbue et al. such that the bracket slot extends entirely through the posterior wall of the brace member as taught by Amstutz et al. because this element is known to enable the bracket sot to accommodate the entirety of the expanse of lingual braces worn by the user.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to VICTORIA H FISHER whose telephone number is (571)270-7033. The examiner can normally be reached M-TH 6:00AM-4:00PM EST.
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/VICTORIA HICKS FISHER/Primary Examiner, Art Unit 3786 3/5/2026