Status under America Invents Act
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
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 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.
Acknowledgment of Election
Applicant’s election without traverse on July 30, 2025 of Invention identified as an Orthodontic Appliance, claims 1-24 in the restriction requirement of June 10, 2025 is acknowledged.
Applicant in response has cancelled the non-elected claims 25-27. It is noted that non-elected claim 28 remains pending and has been withdrawn from further consideration. It appears that applicant had intended to cancel claim 28, but did not.
Rejections based on Prior Art
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-7 and 9 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Chen et al (US 2020/0078137).
Chen et al discloses an orthodontic appliance comprised of a resilient member configured to extend along and reposition a patient’s teeth (paragraph [0005]). The appliance includes securing portions, cavities shaped for receiving and securing the appliance to individual teeth (paragraph [0077]). The Chen et al appliance further includes a laser engraved marker (326, 556) with indicia for conveying information about the appliance (paragraph [0007], [0076]). It is noted that particular content of the information that applicant intends for the indicia to convey (e.g. patient name, dates, serial numbers etc.) fails to impose any objectively ascertainable structural distinctions from the Chen et al device. In regard to claim 9, the manner in which applicant intends for the claimed device to be manufactured fails to impose any objectively ascertainable structural distinctions from the Chen et al device. It is noted that orthodontic aligners like that of Chen et al are typically manufactured in a thermoforming process from a sheet of material.
Claims 1, 2, 4-12, 14-16, 18-24 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Roein Peikar et al (US 20200345455).
Roein Peiker et at discloses (see Figures 1A-2B, 16) an orthodontic appliance configured to be secured to a patient's teeth, the appliance comprising: an anchor (120) configured to be disposed along the patient's teeth; a plurality of arms (130) extending from the anchor (120), each of the arms including (i) a first end portion extending from the anchor, (ii) a free second end portion, (iii) a connector portion (140) configured to be coupled to one of the teeth, and (iv) a spring portion (150) configured to apply a biasing force to at least one of the teeth, the spring portion disposed along the arm between the first end portion and the connector portion, wherein the anchor and at least some of the arms comprise a three-dimensional unitarily-formed structure (see Figures 16); and a marker configured to communicate information corresponding to an intended position of the appliance relative to the teeth once installed (see Figure 16: each window shaped attachment portion 140 is per se a marking indicating that it should be positioned on a corresponding bracket on the tooth), or an origin of the appliance: the appliance is made from a sheet of metal cut and then 3D shaped into the patient specific configuration, such a process leaves traces that a skilled person can interpret thus giving him indication of the origin, e.g. origin= device made from a sheet of metal).
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.
Claims 1-24 are rejected under 35 U.S.C. 103 as being unpatentable over Roein Peikar et al (US 20200345455) in view of Giegerich (US 2023/040709).
Roein Peiker et at discloses (see Figures 1A-2B, 16) an orthodontic appliance configured to be secured to a patient's teeth, the appliance comprising: an anchor (120) configured to be disposed along the patient's teeth; a plurality of arms (130) extending from the anchor (120), each of the arms including (i) a first end portion extending from the anchor, (ii) a free second end portion, (iii) a connector portion (140) configured to be coupled to one of the teeth, and (iv) a spring portion (150) configured to apply a biasing force to at least one of the teeth, the spring portion disposed along the arm between the first end portion and the connector portion, wherein the anchor and at least some of the arms comprise a three-dimensional unitarily-formed structure (see Figures 16).
In regard to the “marker including indicia” limitation, the Roein Peikar et al device includes window shaped attachment portions that act as a markers to indicate placement, and the shaped custom manufacture of the Roein Peikar et al device in itself acts as a marker/indicia – but to the extent that such physical characteristics are interpreted as not meeting the marker/inidicia limitation, then Giegerich is cited as teaching that it is desirable to provide such marking/indicia marks on similar such orthodontic arch wires 136 so that it may be readily determined what orthodontic arch wire member is being used with a particular patient (see paragraph [0045]). Giegerich further teaches that such indicia may be a distinct color coding, a bar code type mark, indentations or other permanent markings (see paragraph [0045]). To have provided similar such conventional prior art markings as taught by Giegerich on the Roein Peikar et al device so that it may be readily determined the characteristics of the orthodontic device being used would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention. Again, it is noted that particular content of the information that applicant intends for the indicia to convey (e.g. patient name, dates, serial numbers etc.) fails to impose any objectively ascertainable structural distinctions from the prior art informational markers as those taught by Giegerich.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Ralph Lewis whose telephone number is (571)272-4712. The examiner can normally be reached Monday-Friday from 9AM-4PM.
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/RALPH A LEWIS/Primary Examiner, Art Unit 3772 (571) 272-4712