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 § 102
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 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 1-7,12,17 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Veis 20170135850.
With regard to claim 1, Veis discloses a shell-shaped dental instrument configured to be worn over a set of teeth attached to gingiva in a mouth having labial muscle and buccal muscle, comprising:
a shell-shaped body 202 having a plurality of tooth receiving cavities 240, wherein the shell-shaped body 202 has a labial side and a buccal side, and includes a screen block, and wherein the screen block includes:
a blocking portion 232 disposed on at least one of the labial side and the buccal side of the shell- shaped body and being protruded in a direction away from the plurality of tooth receiving cavities; and
a contact portion (see below annotated figure) connected with the blocking portion 232, wherein the blocking portion 232 is configured to be in contact with at least one of the labial muscle and the buccal muscle, and the contact portion has a structure configured to be in stable contact with the gingiva when the shell-shaped dental instrument is worn over the set of teeth; and
when the shell-shaped dental instrument is worn over the set of teeth, such that force exerted by at least one of the labial muscle and the buccal muscle on the blocking portion 232 is at least partially transmitted to the gingiva through the contact portion.
[AltContent: textbox (Contact portion configured to be in contact with gingiva)][AltContent: arrow][AltContent: arrow][AltContent: textbox (Ellipse cross section)][AltContent: arrow][AltContent: textbox (Blocking portion)]
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With regard to claim 2, note that each of at least one of the plurality of tooth receiving cavities 240 has a geometric structure, and the geometric structure is configured to allow a respective received tooth to be moved from a corresponding first position to a corresponding second position. See paragraph 87 which describes how the device can be used to move teeth via expansion.
With regard to claim 3, note that a side surface of the contact portion close to the gingiva has a shape substantially consistent with a shape of the gingiva. This occurs when the device is worn by a patient.
With regard to claim 4, note that the blocking portion 232 is protruded from at least one of a labial side and a buccal side of at least one tooth receiving cavity 240 of the plurality of tooth receiving cavities in the direction away from the plurality of tooth receiving cavities; and
wherein an inner surface of the blocking portion 232 is at least partially not in contact with an outer surface of at least one tooth adjacent to the inner surface of the blocking portion 232 when the shell-shaped dental instrument is worn over the set of teeth. See figure 6.
With regard to claim 5, note that the blocking portion 232 is protruded in the direction away from the plurality of tooth receiving cavities and disposed on gingiva corresponding to at least one of the labial side and the buccal side of the shell-shaped body 202. See above annotated figure.
With regard to claim 6, note that the blocking portion 232 is a bubble structure protruding in the direction away from the plurality of tooth receiving cavities, in response to the blocking portion and the contact portion being integrally formed. Portion 232 is considered to be a “bubble structure” and comprises both blocking portion 232 and contact portion (see above annotated figure).
With regard to claim 7, note that the blocking portion 232 has a cross section in a shape of one of or a combination of two or more of an ellipse, a water droplet, and a polygon in a direction of a length axis of a corresponding tooth; and wherein there is a filler disposed inside the blocking portion for enhancing strength of the blocking portion. See above annotated figure, where the cross section of blocking portion 232 appears to be elliptical in cross section.
With regard to claim 12, note that the blocking portion has a length equal to a total width of 1 to 6 teeth in a dental arch direction. See above annotated figure, as the length of blocking portion 232 appears to be at least as long as the width of one tooth held in a tooth receiving cavity 240.
With regard to claim 17, note that the shell-shaped body 202 further includes an arch expanding device 216 cooperated with the blocking portion 232, and wherein the arch expanding device 216 and the shell-shaped body 202 are integrally formed; and wherein one end of both ends of the arch expanding device 216 is connected to a gingival margin or an adjacent gingival margin of a lingual surface in a posterior tooth region on one side of the shell-shaped body 202, and another end of the both ends of the arch expanding device is connected to a gingival margin or an adjacent gingival margin of a lingual surface in a posterior tooth region on another side of the shell-shaped body 202. See above annotated figure.
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.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Veis 20170135800.
With regard to claim 11, Veis does not disclose the maximum height of the blocking portion being in a range of 3mm to 8mm.
It would have been obvious to one skilled in the art to form the blocking portion of Veis with a maximum height in a range of 3mm to 8mm as a matter of routine optimization, since it has been held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. See In Gardnerv.TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984). It is clear that the Veis device would not perform differently than the instant claimed device, if the Veis blocking portion were formed with a maximum height from 3mm to 8mm.
Response to Arguments
Applicant's arguments filed 1/13/26 have been fully considered but they are not persuasive.
Applicant’s arguments are based on the assertion that Veis does not disclose the limitation in claim 1 of the contact portion having a structure configured to be in stable contact with the gingiva, because of the disclosure of Veis that the appliance is used with aligners and covers them when in use.
This is not found persuasive. Although Veis discloses that the appliance may be used with aligners, so as to treat sleep apnea, Veis does not disclose that the appliance must be used with aligners. This can be seen by the disclosure in paragraph 83 that the clasps contact a tooth surface. Therefore, if/when the appliance is used directly on the teeth (without an aligner), the contact portion and blocking of Veis performs the same functions as claimed by applicant.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NICHOLAS D LUCCHESI whose telephone number is (571)272-4977. The examiner can normally be reached M-F 800-430.
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/NICHOLAS D LUCCHESI/Primary Examiner, Art Unit 3772