DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-6, 8-9 and 12 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 recites “a plurality of light emitters coupled to the flexible sheet, the plurality of light emitters comprising a first row of light emitters located adjacent to the top edge of the flexible sheet and arranged in a spaced apart manner in a direction between the first and second side edges of the flexible sheet, the first row of light emitters comprising a first light emitter located adjacent to the first side edge of the flexible sheet, a second light emitter located adjacent to the second side edge of the flexible sheet, and a plurality of central light emitters located between the first and second light emitters”, it is unclear if the first and second light emitters and central light emitters are a part of the claimed plurality of light emitters which are coupled to the flexible sheet. For the purpose of examination, the limitation is interpreted as the first and second light emitters, and the central light emitters are all part of the plurality of light emitters, but do not require all be on a row. Claims 2-6, 8-9 and 12 are rejected based on claim dependency on claim 1.
Claim 2 recites “none of the plurality of light emitters is located between the first light emitter and the first side edge of the flexible sheet or between the second light emitter and the second side edge of the flexible sheet”, however it is unclear how this relates to the central light emitters, does this mean that the none of the plurality of light emitters includes the central light emitters and how are none of the plurality of light emitters not located between the first and second light emitters when the first and second light emitters are considered part of the plurality of light emitters. For the purpose of examination, the limitation is interpreted as none of the additional central light emitters are located between the first side edge and the first light emitter and the second side edge and the second light emitter.
Claim 3 recites “third light emitter that is adjacent to the first light emitter and a fourth light emitter that is adjacent to the second light emitter, and wherein at least one of the plurality of central light emitters that is located between the third and fourth light emitters is positioned between the second axis and the top edge of the flexible sheet”, it is unclear if the third and fourth light emitters are a part of the plurality of light emitters and central light emitters introduced in claim 1 or if the third and fourth light emitters are not considered central light emitters but are just additional plurality of light emitters. Claims 4-6 are rejected based on claim dependency on claim 3.
Claim 4 recites “comprising a fifth light emitter adjacent to the third light emitter, a sixth light emitter adjacent to the fourth light emitter, a seventh light emitter adjacent to the fifth light emitter, and an eighth light emitter adjacent to the sixth light emitter”, it is unclear if the fifth, sixth, seventh, and eighth light emitters are considered a part of the central light emitters located on a row or the plurality of light emitters recited in previous claims. For the purpose of examination, the limitation is interpreted as being some of the plurality of light emitters but not a part of the central light emitters which are disclosed as on a first row. Claims 5-6 are rejected based on claim dependency on claim 4.
Claim 9 recites “a third light emitter adjacent to the first light emitter, a fourth light emitter adjacent to the second light emitter, a fifth light emitter adjacent to the third light emitter, and a sixth light emitter adjacent to the fourth light emitter, the third and fourth light emitters being spaced a second distance from the longitudinal axis and the fifth and sixth light emitters being spaced a third distance from the longitudinal axis, the third distance being greater than the second distance and the second distance being greater than the first distance; a seventh light emitter adjacent to the fifth light emitter and an eighth light emitter adjacent to the sixth light emitter, the seventh and eighth light emitters located a fourth distance from the longitudinal axis, the fourth distance being greater than the second distance and less than the third distance; and a ninth light emitter located between the seventh and eighth light emitters, the ninth light emitter being located a fifth distance from the longitudinal axis, the fifth distance being greater than the third distance.”, it is unclear if the claimed third, fourth, fifth, sixth, seventh, eighth and ninth light emitters are considered one of the plurality of light emitters recited in previous claim 1 and if they are considered one of the row of light emitters comprising central light emitters. For the purpose of examination, the limitation is interpreted as being a part of the plurality of light emitters.
Claim 12 recites “the plurality of light emitters comprises a second row of light emitters arranged in a spaced apart manner in a direction between the first and second side edges of the flexible sheet” and “tenth light emitter adjacent to the first side edge of the flexible sheet and an eleventh light emitter adjacent to the second side edge of the flexible sheet, the tenth and eleventh light emitters being located a sixth distance from the longitudinal axis; a twelfth light emitter adjacent to the tenth light emitter and a thirteenth light emitter adjacent to the eleventh light emitter, the twelfth and thirteenth light emitters being located a seventh distance from the longitudinal axis; a fourteenth light emitter adjacent to the twelfth light emitter and a fifteenth light emitter adjacent to the thirteenth light emitter, the fourteenth and fifteenth light emitters being located an eighth distance from the longitudinal axis; a sixteenth light emitter adjacent to the fourteenth light emitter and a seventeenth light emitter adjacent to the fifteenth light emitter, the sixteenth and seventeenth light emitters being located a ninth distance from the longitudinal axis; an eighteenth light emitter between the sixteenth and seventeenth light emitters, the eighteenth light emitter being located a tenth distance from the longitudinal axis; and wherein the tenth distance is greater than the eighth distance, the eighth distance is greater than the ninth distance, the ninth distance is greater than the seventh distance, and the seventh distance is greater than the sixth distance”, it is unclear if the tenth through eighteenth light emitters of the row are also considered part of the claimed plurality of the light emitters and if so how they relate to the central light emitters set forth in the previous claim. Additionally, it is unclear if the unclaimed third through ninth light emitters are necessary and how do they relate to the claimed second row of the tenth through eighteenth light emitters. For the purpose of examination, the limitation is interpreted as one of the plurality of light emitters in the mouthpiece on the flexible sheet and are unrelated and do not require the third through ninth light emitter and do not require central light emitters.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1-6, 8-9 and 12 are rejected under 35 U.S.C. 103 as being unpatentable over Kodama (US 2016/0235511) in view of Mackie (US 2021/0267738).
Regarding claim 1, Kodama discloses an oral cavity treatment device (dental whitening system 10) comprising:
a mouthpiece (dental tray 60) comprising:
a lamp (heating component 40) comprising a sheet (heating plate 42) having a first side edge, a second side edge, and a top edge and a bottom edge each extending between the first and second side edges (see figure 2) and a plurality of light emitters (LEDs 56) coupled to the sheet (see figure 2); and
a lens member (cover plate 50) covering the front surface of the sheet (see figure 2).
Kodama fails to disclose the sheet is flexible and that the plurality of light emitters comprising a first row of light emitters located adjacent to the top edge of the flexible sheet and arranged in a spaced apart manner in a direction between the first and second side edges of the flexible sheet, the first row of light emitters comprising a first light emitter located adjacent to the first side edge of the flexible sheet, a second light emitter located adjacent to the second side edge of the flexible sheet, and a plurality of central light emitters located between the first and second light emitters, the first and second light emitters being intersected by a first axis that extends between the first and second side edges of the flexible sheet, and wherein each of the central light emitters is located between the first axis and the top edge of the flexible sheet without being intersected by the first axis;
Mackie teaches a sheet which is flexible (flexible printed board 720) for the purpose of allowing desired placement/arrangement or positioning within a carrier (par 51).
Therefore, it would be obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify Kodama to have the sheet be flexible as taught by Mackie for the purpose of allowing positioning of the lamp into a desired position within the mouthpiece.
Mackie further teaches the flexible sheet (720) having plurality of light emitters (LEDS 705 and 706) comprising a first row of light emitters (705) located adjacent to a top edge of the flexible sheet and arranged in a spaced apart manner in a direction between the first and second side edges of the flexible sheet (see figure 8), the first row of light emitters comprising a first light emitter located adjacent to the first side edge of the flexible sheet, a second light emitter located adjacent to the second side edge of the flexible sheet (see annotated figure 8), and a plurality of central light emitters located between the first and second light emitters (see annotated figure 8), the first and second light emitters being intersected by a first axis that extends between the first and second side edges of the flexible sheet (see annotated figure 8), and wherein each of the central light emitters is located between the first axis and the top edge of the flexible sheet without being intersected by the first axis (the plurality of central light emitters are interpreted as those that are between the first and second light emitter and are above the drawn axis in annotated figure 8, the claim does not require every light emitter between the first and second light emitter be a central light emitter and the claim is open ended using “comprising” language).
Therefore, it would be obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention to modify Kodama to have the light emitters organized as set forth above in Mackie for the purpose of delivering irradiation in a desired area of the patient’s mouth.
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Annotated figure 8
Regarding claim 2, Kodama/Mackie disclose the claimed invention as set forth above in claim 1. Mackie further teaches none of the plurality of light emitters is located between the first light emitter and the first side edge of the flexible sheet or between the second light emitter and the second side edge of the flexible sheet (see annotated figure 8), for the reasons set forth above.
Regarding claim 3, Kodama/Mackie discloses the claimed invention as set forth above in claim 1. Brawn further teaches a second axis that is parallel to the first axis and located between the first axis and the top edge of the flexible sheet, the second axis intersecting a third light emitter that is adjacent to the first light emitter and a fourth light emitter that is adjacent to the second light emitter central emitters that is located between the third and fourth light emitters is positioned between the second axis and the top edge of the flexible sheet (see annotated figure 8a, where the third and fourth light emitters are pointed out and adjacent to the first and second light emitters , and wherein at least one of the central light emitters positioned between the second axis and the top edge and extends through the third and fourth emitters and parallel to the first axis).
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Annotated figure 8a
Regarding claim 4, Kodama/Mackie disclose the claimed invention as set forth above in claim 3. Mackie further teaches a fifth light emitter adjacent to the third light emitter, a sixth light emitter adjacent to the fourth light emitter, a seventh light emitter adjacent to the fifth light emitter, and an eighth light emitter adjacent to the sixth light emitter, wherein the second axis intersects the third, fourth, seventh, and eighth light emitters, and wherein the fifth and sixth light emitters are located between the second axis and the top edge of the flexible sheet (see figure 8a), for the reasons set forth above.
Regarding claim 5, Kodama/Mackie disclose the claimed invention as set forth above in claim 4. Mackie further teaches the third and fourth light emitters are aligned in a direction between the top and bottom edges of the flexible sheet and wherein the seventh and eighth light emitters are aligned in the direction between the top and bottom edges of the flexible sheet, the seventh and eighth light emitters being staggered in the direction between the top and bottom edges of the flexible sheet relative to the third and fourth light emitters (see figure 8a), for the reasons set forth above.
Regarding claim 6, Kodama/Mackie disclose the claimed invention as set forth above in claim 4. Mackie further teaches a ninth light emitter located between the seventh and eighth light emitters, and wherein a third axis that is parallel to the first and second axes and located between the second axis and the top end of the flexible sheet intersects the fifth, sixth, and ninth light emitters, wherein the fifth and sixth light emitters are aligned in the direction between the top and bottom edges of the flexible sheet and wherein the ninth light emitter is staggered in the direction between the top and bottom edges of the flexible sheet relative to the fifth and sixth light emitters (see annotated figure 8c).
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Annotated figure 8c
In regard to claim 8, Kodama/Mackie disclose the claimed invention as set forth above in claim 1. Mackie further teaches the flexible sheet (720) has a longitudinal axis extending between the first and second side edges and located equidistantly between the top and bottom edges (see figure 8), wherein the first and second light emitters are spaced a first distance from the longitudinal axis, and wherein each of the plurality of central light emitters is located a distance from the longitudinal axis that is greater than the first distance (see annotated figure 8, where the central light emitters are closer to the top edge than the first and second light emitters), for reasons set forth above.
In regard to claim 9, Kodama/Mackie disclose the claimed invention as set forth above in claim 8. Mackie further teaches third light emitter adjacent to the first light emitter, a fourth light emitter adjacent to the second light emitter, a fifth light emitter adjacent to the third light emitter, and a sixth light emitter adjacent to the fourth light emitter, the third and fourth light emitters being spaced a second distance from the longitudinal axis and the fifth and sixth light emitters being spaced a third distance from the longitudinal axis, the third distance being greater than the second distance and the second distance being greater than the first distance; a seventh light emitter adjacent to the fifth light emitter and an eighth light emitter adjacent to the sixth light emitter, the seventh and eighth light emitters located a fourth distance from the longitudinal axis, the fourth distance being greater than the second distance and less than the third distance; and a ninth light emitter located between the seventh and eighth light emitters, the ninth light emitter being located a fifth distance from the longitudinal axis, the fifth distance being greater than the third distance (see figure 8 and annotated figure 8c, where the lights closest to the top edge are at a center and become farther away and closer to the longitudinal axis as they move outwards towards the first and second light emitters. .
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Kodama et al in view of Mackie as applied to claim 1 above, and further in view of Brawn et al (US 2013/0280671).
Regarding claim 12. Kodama/Mackie disclose the claimed invention as set forth above in claim 1. Mackie further teaches the plurality of light emitters comprises a second row of light emitters (706) arranged in a spaced apart manner in a direction between the first and second side edges of the flexible sheet (see figure 8), the first row of light emitters being adjacent to the top end of the flexible sheet and the second row of light emitters being adjacent to the bottom end of the flexible sheet (see figure 8), wherein the flexible sheet has a longitudinal axis extending between the first and second side edges and located equidistantly between the top and bottom edges (see figure 8), and
wherein the second row of light emitters comprises: a tenth light emitter adjacent to the first side edge of the flexible sheet and an eleventh light emitter adjacent to the second side edge of the flexible sheet the tenth and eleventh light emitters being located a sixth distance from the longitudinal axis; a twelfth light emitter adjacent to the tenth light emitter and a thirteenth light emitter adjacent to the eleventh light emitter, the twelfth and thirteenth light emitters being located a seventh distance from the longitudinal axis; a fourteenth light emitter adjacent to the twelfth light emitter and a fifteenth light emitter adjacent to the thirteenth light emitter, the fourteenth and fifteenth light emitters being located an eighth distance from the longitudinal axis; a sixteenth light emitter adjacent to the fourteenth light emitter and a seventeenth light emitter adjacent to the fifteenth light emitter, the sixteenth and seventeenth light emitters being located a ninth distance from the longitudinal axis; an eighteenth light emitter between the sixteenth and seventeenth light emitters, the eighteenth light emitter being located a tenth distance from the longitudinal axis (see figure 8), but fails to disclose the tenth distance is greater than the eighth distance, the eighth distance is greater than the ninth distance, the ninth distance is greater than the seventh distance, and the seventh distance is greater than the sixth distance.
However, Brawn teaches configuring light emitters in any suitable configuration for delivering therapeutic light (par 165). The current application discloses that the arrangement of the light “may optimize coverage of the teeth with light”, but additionally discloses that variations in distance and staggering does not limit the scope of invention (par 71). Brawn discloses the distribution of light being a configuration suitable for the application (par 165), it would be obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention to rearrange the light emitters of Mackie/Brawn as disclosed in claim 12, as an obvious matter of design choice within the skill of one in the art, to enable a desired irradiation of the teeth of the patient (par 165, Brawn). Furthermore, the rearrangement of parts is unpatentable over prior art when the operation of the device is not changed. In re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950)
Claims 56-57 are rejected under 35 U.S.C. 103 as being unpatentable over Kodama in view of Brawn et al.
Regarding claim 56, Kodama discloses an oral cavity treatment device (10) comprising: a mouthpiece (60) comprising:
a lamp (heating component 40) comprising a sheet (heating plate 42) having a front surface and a rear surface and a plurality of light emitters (LEDs 56, see figure 2) light emitters protruding from the front surface of the sheet (see figure 5);
a support member (cover plate 46) covering the rear surface of the sheet (see figure 2 and par 31), the support member (46) having an exposed rear surface (see figure 1); and
a lens member (second cover plate 50) covering the front surface of the flexible sheet (see figure 2 and par 31), the lens member having an exposed front surface (see par 34); and
a power cord (26) extending from the mouthpiece (see figure 1) which engages an electronic device to power the plurality of light emitters (see figure 1 and par 24);
wherein the mouthpiece comprises a first side portion, a second side portion, and a central portion between the first and second side portions (see figure 1); and
Kodama fails to disclose the sheet being flexible, the power cord comprising the plug for engaging a socket of an electronic device to power the plurality of light, and
wherein the mouthpiece is flexible such that each of the first and second side portions is configured to be folded relative to the central portion in a first direction so that the exposed front surface of the lens member along the first and second side portions contacts the exposed front surface of the lens member along the central portion and a second direction so that the exposed rear surface of the support member along the first and second side portions contacts the exposed rear surface of the support along the central portion.
Brawn teaches a power cord (cable 2315) comprising a plug the plug for engaging a socket of an electronic device to power the plurality of light emitters (charger 2317, which is disclosed as a medical grade USB charger in par 184 and is disclosed as providing power to the light emitting array 2302 of the intra-oral housing 2380 and the controller 2314) for the purpose of controlling the operation and providing power to the light emitting array (par 183).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention to modify Kodama to have the power cord comprising the plug for engaging a socket of an electronic device to power the plurality of light emitters as taught by Brawn for the purpose of controlling the operation and providing power to the light emitting array.
Brawn further teaches a sheet (light emitting panel 2102) which is flexible (see par 77 which discloses the panels that hold the light emitters are constructed of a flexible and soft polymer) and wherein a mouthpiece (intra-oral housing 2180) is flexible such that each of the first and second side portions is configured to be folded (see par 164 which discloses the material being highly flexible such as silicon and deformable under slight pressure) for the purpose of sufficiently dimensioning the mouthpiece to fit within the mouth of the patient (par 164).
Therefore, it would be obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify Kodama to have the sheet being flexible and the mouthpiece is flexible such that each of the first and second side portions is configured to be folded as taught by Brawn for the purpose of sufficiently dimensioning the mouthpiece to fit within the mouth of the patient.
The statement “wherein the mouthpiece is flexible such that each of the first and second side portions is configured to be folded relative to the central portion in a first direction so that the exposed front surface of the lens member along the first and second side portions contacts the exposed front surface of the lens member along the central portion and a second direction so that the exposed rear surface of the support member along the first and second side portions contacts the exposed rear surface of the support along the central portion” is interpreted as intended use and/or a functional statement that does not impose any structural limitations on the claims distinguishable over Kodama/Brawn which is capable of being used as claimed if one so desires to do so. This is supported by the disclosed structure of Kodama and flexible material of the sheet and mouthpiece taught by Brawn.
Regarding claim 57, Kodama/Brawn disclose the claimed invention as set forth above in claim 56. Kodama discloses a control unit (20) coupled to the power cord (26), the control unit (20) comprising an actuator (24), but does not disclose a processor for powering the plurality of light emitters in accordance with a treatment protocol and the control unit being located closer to the plug of the power cord than to the mouthpiece.
However, Brawn further teaches a control unit (2317) with an actuator (button 2318) and a processor (microprocessor 2196) that powers the device according to a treatment protocol (par 185, where the device includes the light emitting array 2302 disclosed in par 183) for the purpose of initiating a preconfigured treatment session (par 185)
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention is to modify Kodama/Brawn further to include a processor for powering the plurality of light emitters in accordance with a treatment protocol as disclosed by Brawn for the purpose of initiating and storing a preconfigured treatment protocol to encourage proper use and simplify operation.
Brawn further discloses the control unit (2314) being positioned between the mouthpiece and the plug (see par 57 and par 183-184), but fails to specifically disclose the control unit being located closer to the plug of the cord than to the mouthpiece. However, it would have been obvious to one of ordinary skill in the art at the time of applicant' s invention to have positioned the control unit closer to the plug than to the mouthpiece as this is considered rearrangement of parts which does not change the operation of the device, specifically to provide accessible control to the user without attachment of the control to the mouthpiece (par 183-185 of Brawn). One having ordinary skill in the art at the time of the invention would recognize that the invention would perform the same regardless of the positioning along the cord. Therefore, it would have been obvious to modify Kodama/Brawn to have the control unit being located closer to the plug of the cord than to the mouthpiece because such a modification would have been considered a design choice which would not change the operation of the device. Furthermore, the rearrangement of parts is unpatentable over prior art when the operation of the device is not changed. In re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950)
Claims 58 is rejected under 35 U.S.C. 103 as being unpatentable over Kodama in view of Brawn as applied to claim 56 above, and further in view of Heacock et al (US 2015/0164618).
Regarding claim 58, Kodama/Brawn discloses the claimed invention as set forth above in claim 56, but fails to disclose the support member and the lens member are each formed of a thermoplastic elastomer having a Shore A hardness between 30 and 40.
Heacock teaches an intraoral mouthpiece composed of an elastomer having a shore A hardness between 30 and 40 (par 97) for the purpose of fitting a wide range of dentition (par 97).
Therefore, it would be obvious to one of ordinary skill in the art, before the effective claimed invention, to modify Kodama/Brawn to have the components of the mouthpiece, specifically an elastomer having a shore A hardness between 30 and 40 as taught by Heacock for the purpose of fitting a wide range of dentition.
Allowable Subject Matter
Claims 29-30, 32-35, and 40 are allowed.
The following is an examiner’s statement of reasons for allowance: See office action mailed 8/13/2025 for detailed reasons for allowance.
Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
Response to Arguments
Applicant’s arguments, see REMARKS page 11, paragraph 2, filed 11/07/2025, with respect to the rejection(s) of claim 1 under 103 in view of Brawn have been fully considered and are persuasive, specifically Brawn et al and Kodama failing to clearly disclose or render obvious to “the first and second light emitters intersected by a first axis that extends between the first and second side edges of the flexible sheet, and wherein each of the central light emitters is located between the first axis and the top edge of the flexible sheet without being intersected by the first axis”. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Kodama et al in view of Mackie et al.
Applicant's arguments filed 11/07/2025, regarding Kodama have been fully considered but they are not persuasive.
In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, applicant argues on page 9-10 and 14-15 of REMARKS that Kodama discloses the heating plate assembly be rigid and therefore modifying the sheet supporting the light emitters to be flexible would be non-obvious as it is incompatible with the heating plate assembly which is disclosed as rigid. The examiner disagrees. Kodama fails to explicitly disclose the heating plate assembly being rigid and only discloses in par 36 that the heating component be frictionally engaged with the dental tray and the heating plate be securely engaged within the heating component in par 31-32. Kodama further discloses alternative constructions to achieve the secure engagement of the heating plate in par 32, but does not disclose or imply incompatibility with a flexible sheet/heating plate 42. As set forth above, Mackie teaches a flexible sheet being a part of the lamp for the purpose of providing desired placement/arrangement or positioning within a carrier.
In response to applicant's argument that limitation “wherein the mouthpiece is flexible such that each of the first and second side portions is configured to be folded relative to the central portion in a first direction so that the exposed front surface of the lens member along the first and second side portions contacts the exposed front surface of the lens member along the central portion and a second direction so that the exposed rear surface of the support member along the first and second side portions contacts the exposed rear surface of the support along the central portion” is not considered intended use, a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. As set forth above, Kodama does not require or recite the material of construction be rigid. Additionally, Brawn teaches a material and configuration wherein the mouthpiece is flexible. Applicant argues that the material of the mouthpiece recited in the specification enables said flexibility and is therefore a part of the construction which is not disclosed by the prior art. However, it is noted that the features upon which applicant relies (i.e., the mouthpiece being formed of a highly flexible thermoplastic material with a Shore A hardness of between 30 and 40 and thickness of 0.5-2 mm) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SHANNEL N BELK whose telephone number is (571)272-9671. The examiner can normally be reached Mon. -Fri. 11:30 am - 3:30 pm.
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/S.N.B./ Examiner, Art Unit 3772
/HEIDI M EIDE/ Primary Examiner, Art Unit 3772
2/26/2026