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 .
Election/Restrictions
Applicant’s election without traverse of Group II, claims 12-21 in the reply filed on 8/3/2026 is acknowledged. Other claims were canceled in the reply, thus no pending claims stand as withdrawn.
Claim Rejections - 35 USC § 102/103
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 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 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.
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.
Claim(s) 12-16 and 20-21 are rejected under 35 U.S.C. 102(a)(1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Lowe et al. (US 2014/0272761), hereinafter Lowe.
Regarding claim 12, Lowe discloses a method of making a personalized toothbrush comprising:
(a) obtaining a 3-D model of at least a portion of a user’s teeth and gums (par. 0017, implied);
(b) generating a 3-D model and (c) 3-D printing (par. 0017, 0046) a mouthpiece comprising
(i) a top dental tray (as shown in Fig. 5C) configured to receive at least a portion of the user’s teeth (par. 0028-0029, 0113-0116; Figs. 5A-5C; Figs. 7-8),
(ii) a bottom cleaning tray (as shown in, e.g., Fig. 5C), customized at least in part based on the model of the user’s teeth and gums (par. 0113-0116); and
(iii) a plurality of cleaning elements (“bristles 5099” – par. 0113; See Fig. 5A-5C), customized at least in part based on the 3D model of the user’s teeth and gums; wherein a first surface of a respective tray of the top cleaning tray has a first set of physical properties and a second surface of the respective tray has a second set of physical properties, different from the first set of physical properties (par. 0106 explains that there are various “surfaces” 3220, 3230, 3240, 3250, and 3260, which can be configured differently as to the hardness of the material to provide a massaging or acupressure effect).
See also par. 0117-0118 and Figs. 6A-6D, explaining that the bristles can be angled to clean surfaces of the tooth with braces, or alternatively, the gumline. The limitation(s) regarding the generation of the model that is customized at least in part based on the 3-D model are not explicitly described. Examiner’s position is that one of ordinary skill in the art would have “at once envisaged” this from the teaching of producing a model by scanning and then printing a 3D printed brush, which would have necessarily included the appropriate CAD software for designing the brush from the model.
However, Lowe, par. 0017 and 0046 together explain that there is a known toothbrush in the art that is made by 3D scanning and printing, and par. 0046 explicitly suggests 3-D printing. Therefore, additionally or alternatively to the above,.one of ordinary skill in the art would have found it obvious to have specified that the model and brush are printed based upon a scan of the user’s teeth, as is required in the claims, in order to have produced trays and a device that fits a particular user in accordance with Lowe above.
Regarding claims 13-14, Lowe discloses the subject matter of claim 12, and further discloses that the device is configured to vibrate (par. 0025, 0114), and the bristles and textured surfaces (par. 0025) are selected as to not impede the transfer of the vibrations to the teeth and jaw bone (where the first and second patterns of motion are substantially identical). See also par. 0029.
Regarding claims 15-16, Lowe discloses the subject matter of claim 12, and further discloses that the first surface of a tray (see Figs 4B and 5A) includes a plurality of openings (a “permeated surface”) and irregular spacing between some and regular spacing between other openings. These openings seem to allow for saliva/other liquids to transfer freely from the top and bottom portions of the brush.
Regarding claims 20-21, Lowe discloses the subject matter of claim 14, and further discloses that the first surface of the tray (see Fig. 2) includes one or more ribs/a variable thickness so that the tray vibrates with a similar motion (par. 0025).
Allowable Subject Matter
Claims 17-19 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
See also Lowe et al. (US 2008/0227047), showing how a tray is applied to a patient directly (see Fig. 2).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANDREW D GRAHAM whose telephone number is (469)295-9232. The examiner can normally be reached Monday - Friday 7:30AM-4:00PM (CST).
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Christina Johnson can be reached on (571) 272-1176. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ANDREW D GRAHAM/Primary Examiner, Art Unit 1742
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