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 .
Response to Amendment
Applicant’s amendments to claims 1, 5, 7-8, 10-13, 15-16, and 18, the cancellation of claims 14, 17, and 19-20, and the addition of claims 21-28 filed 04/17/2026 is acknowledged by the examiner.
Claims 1-13, 15-16, 18, and 21-28 are currently pending and under examination.
Response to Arguments
Applicant’s arguments with respect to claim(s) 1 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
In light of the amendments to the claims, the office action has been updated. Therefore, prior art references Carrillo Gonzalez and Kondo are no longer disclosed and thus the arguments are moot.
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1-3, 5, 7, 9, 11, 21-22, 24, and 27 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Piancino (US 2014/0315139 A1).
Regarding claim 1, Piancino discloses a single-arch dynamic dental appliance for bruxism treatment (see Fig. 6 and Abstract; the device shown in Fig. 6 is a single-arch dynamic dental appliance as it is a single device for either the lower or upper dental arch capable of treating bruxism) comprising:
a base (6) configured to fit on either an upper dental arch or a lower dental arch of an individual (see Fig. 6 and [0028] which describes how anterior bite 6 is configured to freely float between the upper and lower dental arch, and once a user bites down, is configured to fit on either an upper or lower dental arch of an individual);
a pair of occlusal pads (2), one of the occlusal pads (2) configured to overlie left posterior teeth and the other of the occlusal pads configured to overlie right posterior teeth of the dental arch onto which the base (6) is fitted (see Fig. 6; two posterior lateral bites 2 are a pair of occlusal pads as they are set to be in contact with occlusal surfaces of molar/posterior teeth, and one posterior lateral bite 2 is configured to overlie left posterior teeth and the other posterior lateral bite 2 is configured to overlie right posterior teeth once a user bites down of the dental arch onto which the anterior bite 6 is fitted, see [0023]); and
a biasing mechanism (4, 5, 7, 8) acting between the base (6) and the pair of occlusal pads (2) (see Fig. 6; wire 4, 5 + springs 7, 8, are biasing mechanisms that act between the anterior bite 6 and posterior lateral bites 2, as the wires 4, 5 are disposed in between the two posterior lateral bites 2 and thus act between the posterior lateral bites 2), the biasing mechanism (4, 5, 7, 8) configured to exert an adjustable force against each of the occlusal pads (2) when the occlusal pads (2) are moved from a flat orientation towards a generally angled activated position (see Fig. 6 and [0030]-[0031]; the springs 7,8 are configured to exert an adjustable force against each of the posterior lateral bites 2 when the posterior lateral bites 2 are moved from a flat orientation towards a generally angled activated position, as the springs 7,8 are designed to exert a slight pressure on the posterior teeth through the posterior lateral bites 2 from a flat orientation when a user bites down towards an angled position when the posterior lateral bites 2 are freely floating).
Regarding claim 2, Piancino discloses the invention as discussed in claim 1. Piancino further discloses wherein the biasing mechanism (4,5,7,8) comprises a pair of adjustable spring mechanisms (7,8), each adjustable spring mechanism (7,8) acting between the base (6) and a respective one of the occlusal pads (2) (see Fig. 6 and [0030]-[0031]; expansion springs 7, 8 are part of the biasing mechanism and comprises a pair of adjustable springs, and expansion springs 7, 8 act between the anterior bite 6 and a respective one of the posterior lateral bites 2 as the expansion spring 8 and other end 7b of spring 7 are disposed or arranged in between the anterior bite 6 and lateral ends of the posterior lateral bites 2).
Regarding claim 3, Piancino discloses the invention as discussed in claim 2. Piancinco further discloses wherein each adjustable spring mechanism (7,8) comprises at least one spring acting between the base (6) and the respective one of the occlusal pads (2) (see Fig. 6 and [0030]-[0031]; expansion springs 7,8 are both springs which act between the anterior bite 6 and respective one of the posterior lateral bites 2 as the expansion springs 8 and other end 7b of spring 7 are disposed or arranged in between the anterior bite 6 and lateral ends of the posterior lateral bites 2).
Regarding claim 5, Piancino discloses the invention as discussed in claim 3. Piancino further discloses wherein each adjustable spring mechanism (7,8) comprises a pair of springs acting between the base (6) and the respective one of the occlusal pads (2) (see Fig. 6 and [0030]-[0031]; expansion springs 7,8 are both springs which act between the anterior bite 6 and respective one of the posterior lateral bites 2 as the expansion springs 8 and other end 7b of spring 7 are disposed or arranged in between the anterior bite 6 and lateral ends of the posterior lateral bites 2), the pairs of springs (7,8) being positioned on respective buccal and lingual sides of the dynamic dental appliance (see Fig. 6; the expansion springs 7 are each positioned on respective buccal and lingual sides of the dynamic dental appliance as one end 7a of spring 7 is directly connected to vestibular shield 3 and is disposed on a buccal side and the other end 7b of spring 7 is disposed on a lingual side).
Regarding claim 7, Piancino discloses the invention as discussed in claim 2. Piancino further discloses wherein a fulcrum of each of the adjustable spring mechanisms (7,8) is located at an anterior end of the respective one of the occlusal pads (2) (see Annotated Fig. 6 of Piancino which has labeled a fulcrum of each expansion spring 7, which is located at an anterior end of the respective posterior lateral bite 2 as the labeled fulcrum is a fixed point acts as a hinge for the spring 7 to move).
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Annotated Fig. 6 of Piancino.
Regarding claim 9, Piancino discloses the invention as discussed in claim 1. Piancino further discloses wherein the base (6) is configured to fit passively on either the upper dental arch or the lower dental arch (see Fig. 6 and [0028]; the anterior bite 6 is capable of fitting passively on either the upper or lower dental arch when a user bites down as the anterior bite 6 passively supports the teeth of the individual).
Regarding claim 11, Piancino discloses the invention as discussed in claim 1. Piancino further discloses wherein each of the occlusal pads (2) is flat and smooth to allow the individual’s teeth to skate freely thereacross (see Fig. 6 and [0023]; the posterior lateral bites 2 are made of metal plates and thus are flat and smooth to allow individual’s teeth to skate freely thereacross as seen in Fig. 6).
Regarding claim 21, Piancino discloses a single-arch dynamic dental appliance for bruxism treatment (see Fig. 6 and Abstract; the device shown in Fig. 6 is a single-arch dynamic dental appliance as it is a single device for either the lower or upper dental arch capable of treating bruxism) comprising:
a tray (6) configured to fit on one of an upper dental arch and a lower dental arch of an individual (see Fig. 6 and [0028] which describes how anterior bite 6, which is a tray as it is a flat receptacle to receive a user’s teeth, is configured to freely float between the upper and lower dental arch, and once a user bites down, is configured to fit on either an upper or lower dental arch of an individual);
a pair of occlusal pads (2), one occlusal pad of the pair (2) configured to overlie left posterior teeth and the other of the occlusal pad of the pair (2) configured to overlie right posterior teeth of the dental arch onto which the tray (6) is fitted (see Fig. 6; two posterior lateral bites 2 are a pair of occlusal pads as they are set to be in contact with occlusal surfaces of molar/posterior teeth, and one posterior lateral bite 2 is configured to overlie left posterior teeth and the other posterior lateral bite 2 is configured to overlie right posterior teeth once a user bites down of the dental arch onto which the anterior bite 6 is fitted, see [0023]), each occlusal pad (2) configured to present a generally planar surface facing posterior teeth of the other of the upper dental arch and the lower dental arch (see Fig. 6; each of the posterior lateral bites 2 are configured to present a generally planar or flat surface facing posterior teeth of the other of the upper and lower dental arch, as the posterior lateral bites 2 are made of metal and are free of texture as seen in Fig. 6); and
adjustable spring mechanisms (7,8), each adjustable spring mechanism (7,8) acting between the tray (6) and an associated one of the occlusal pads (2) (see Fig. 6 and [00310]-[0031]; expansion springs 7,8 are adjustable springs and act between the anterior bite 6 and an associated one of the posterior lateral bites 2 as the expansion spring 8 and other end 7b of spring 7 are disposed or arranged in between the anterior bite 6 and lateral ends of the posterior lateral bites 2), each spring mechanism configured to exert an adjustable force against the associated occlusal pad (2) when the occlusal pad (2) is moved from a flat orientation towards a generally angled activated position (see Fig. 6 and [0030]-[0031]; the springs 7,8 are configured to exert an adjustable force against each of the posterior lateral bites 2 when the posterior lateral bites 2 are moved from a flat orientation towards a generally angled activated position, as the springs 7,8 are designed to exert a slight pressure on the posterior teeth through the posterior lateral bites 2 from a flat orientation when a user bites down towards an angled position when the posterior lateral bites 2 are freely floating).
Regarding claim 22, Piancino discloses the invention as discussed in claim 21. Piancino further discloses wherein each adjustable spring mechanism (7,8) comprises a pair of springs acting between the tray (6) and the associated occlusal pad (2) (see Fig. 6 and [0030]-[0031]; expansion springs 7,8 are both springs which act between the anterior bite 6 and respective one of the posterior lateral bites 2 as the expansion springs 8 and other end 7b of spring 7 are disposed or arranged in between the anterior bite 6 and lateral ends of the posterior lateral bites 2), the pairs of springs (7,8) being positioned on respective buccal and lingual sides of the dynamic dental appliance (see Fig. 6; the expansion springs 7 are each positioned on respective buccal and lingual sides of the dynamic dental appliance as one end 7a of spring 7 is directly connected to vestibular shield 3 and is disposed on a buccal side and the other end 7b of spring 7 is disposed on a lingual side).
Regarding claim 24, Piacino discloses the invention as discussed in claim 21. Piacino further discloses wherein a fulcrum of each adjustable spring mechanism (7,8) is located at an anterior end of the associated occlusal pad (2) (see Annotated Fig. 6 of Piancino which has labeled a fulcrum of each expansion spring 7, which is located at an anterior end of the respective posterior lateral bite 2 as the labeled fulcrum is a fixed point acts as a hinge for the spring 7 to move).
Regarding claim 27, Piacino discloses the invention as discussed in claim 21. Piacino further discloses wherein the generally planar surface of each occlusal pad (2) is flat and smooth to allow posterior teeth of the other of the upper dental arch and the lower dental arch to skate freely thereacross (see Fig. 6 and [0023]; the posterior lateral bites 2 are made of metal plates and thus are flat and smooth as they are free of texture to allow posterior/molar teeth of the other of the upper and lower dental arch to skate freely thereacross).
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(s) 4, 6, 10, 23, and 26 is/are rejected under 35 U.S.C. 103 as being unpatentable over Piancino in view of Hung (US 10,932,887 B2).
Regarding claim 4, Piancino discloses the invention as discussed in claim 3.
Piancino is silent on wherein each spring is a coil spring.
However, Hung teaches an analogous spring (13, 14), and wherein each spring (13, 14) is a coil spring (see Col. 5 lines 47-48 which discusses how spring elements 13, 14 are coil springs), providing a coil spring to absorb and dissipate bite forces for better comfort.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified each spring (7) in the device of Piancino to be a coil spring as taught by Hung to have provided an improved dynamic dental appliance that provides a coil spring to absorb and dissipate bite forces for better comfort.
Regarding claim 6, Piancino discloses the invention as discussed in claim 5.
Piancino is silent on wherein each spring is a coil spring.
However, Hung teaches an analogous spring (13, 14), and wherein each spring (13, 14) is a coil spring (see Col. 5 lines 47-48 which discusses how spring elements 13, 14 are coil springs), providing a coil spring to absorb and dissipate bite forces for better comfort.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified each spring (7) in the device of Piancino to be a coil spring as taught by Hung to have provided an improved dynamic dental appliance that provides a coil spring to absorb and dissipate bite forces for better comfort.
Regarding claim 10, Piancino discloses the invention as discussed in claim 9.
Piancino is silent on wherein the base is in the form of a tray comprising an anterior portion configured to overlie anterior teeth and posterior portions configured to run along either lingual sides of posterior teeth, buccal sides of posterior teeth or both the lingual and buccal sides of the posterior teeth.
However, Hung teaches an analogous base (11), and wherein the base (11) is in the form of a tray comprising an anterior portion configured to overlie anterior teeth and posterior portions configured to run along either lingual sides of posterior teeth, buccal sides of posterior teeth or both the lingual and buccal sides of the posterior teeth (see Figs. 1-2; first tooth cap unit 11 is an analogous base as it is fitted on a dental arch M, and the first tooth cap unit 11 is configured to overlie anterior teeth via base wall 111A and posterior portions configured to run along the lingual/buccal sides of the posterior teeth via sidewalls 111B and 111C), providing better retainment of the device when a user bites down.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the base (6) in the device of Piancino to be in the form of a tray comprising an anterior portion configured to overlie anterior teeth and posterior portions configured to run along either lingual sides of posterior teeth, buccal sides of posterior teeth or both the lingual and buccal sides of the posterior teeth as taught by Hung to have provided an improved dynamic dental appliance that provides better retainment of the device when a user bites down.
Regarding claim 23, Piacino discloses the invention as discussed in claim 22.
Piacino is silent on wherein each spring is a coil spring.
However, Hung teaches an analogous spring (13, 14), and wherein each spring (13, 14) is a coil spring (see Col. 5 lines 47-48 which discusses how spring elements 13, 14 are coil springs), providing a coil spring to absorb and dissipate bite forces for better comfort.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified each spring (7) in the device of Piancino to be a coil spring as taught by Hung to have provided an improved dynamic dental appliance that provides a coil spring to absorb and dissipate bite forces for better comfort.
Regarding claim 26, Piancino discloses the invention as discussed in claim 9.
Piancino is silent on wherein the tray comprises an anterior portion configured to overlie anterior teeth and posterior portions configured to run along either lingual sides of posterior teeth, buccal sides of posterior teeth or both the lingual and buccal sides of the posterior teeth.
However, Hung teaches an analogous tray (11), and wherein the tray (11) comprises an anterior portion configured to overlie anterior teeth and posterior portions configured to run along either lingual sides of posterior teeth, buccal sides of posterior teeth or both the lingual and buccal sides of the posterior teeth (see Figs. 1-2; first tooth cap unit 11 is an analogous tray as it is fitted on a dental arch M, and the first tooth cap unit 11 is configured to overlie anterior teeth via base wall 111A and posterior portions configured to run along the lingual/buccal sides of the posterior teeth via sidewalls 111B and 111C), providing better retainment of the device when a user bites down.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the tray (6) in the device of Piancino to be in the form of a tray comprising an anterior portion configured to overlie anterior teeth and posterior portions configured to run along either lingual sides of posterior teeth, buccal sides of posterior teeth or both the lingual and buccal sides of the posterior teeth as taught by Hung to have provided an improved dynamic dental appliance that provides better retainment of the device when a user bites down.
Claim(s) 8 and 25 is/are rejected under 35 U.S.C. 103 as being unpatentable over Piancino.
Regarding claim 8, Piancino discloses the invention as discussed in claim 7.
Although Piancino does not explicitly disclose wherein, in an activated position, an angle of each of the occlusal pads is in a range of from about 5 degrees to about 45 degrees with respect to horizontal, it is noted that the applicant does not indicate that the claimed dimension is used for a particular purpose, solves a stated problem, or is otherwise critical (see paragraph [0058] of Applicant’s specification). Therefore, in Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), the Federal Circuit 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, and thus it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified in an activated position, an angle of the occlusal pads of Piancino to be in a range of from about 5 degrees to about 45 degrees with respect to horizontal to better protect a user’s teeth and jaws.
Regarding claim 25, Piancino discloses the invention as discussed in claim 24.
Although Piancino does not explicitly disclose wherein, in an activated position, an angle of each of the occlusal pads is in a range of from about 5 degrees to about 45 degrees with respect to horizontal, it is noted that the applicant does not indicate that the claimed dimension is used for a particular purpose, solves a stated problem, or is otherwise critical (see paragraph [0058] of Applicant’s specification). Therefore, in Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), the Federal Circuit 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, and thus it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified in an activated position, an angle of the occlusal pads of Piancino to be in a range of from about 5 degrees to about 45 degrees with respect to horizontal to better protect a user’s teeth and jaws.
Claim(s) 12 and 28 is/are rejected under 35 U.S.C. 103 as being unpatentable over Piancino, as evidenced by Hanna (US 2011/0030704 A1).
Regarding claim 12, Piancino discloses the invention as discussed in claim 1.
Although Piancino does not explicitly disclose wherein the exerted adjustable force is in a range of from about 0.1 Newton to about 400 Newtons, it is noted that the applicant does not indicate that the claimed dimension is used for a particular purpose, solves a stated problem, or is otherwise critical (see paragraph [0061] of Applicant’s specification). Therefore, in Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), the Federal Circuit 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, and thus it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the exerted adjustable force of Piancino to be in the range from about 0.1 Newton to about 400 Newtons, as US 2011/0030704 A1 Hanna also discloses that children have an average occlusal force between 126.15 and 239 Newtons, and adults can have an occlusal force of 380-728 Newtons, see [0017] of Hanna, and thus modifying the exerted adjustable force to be in this range from about 0.1 Newton to about 400 Newtons allows the dental appliance to properly protect various user’s teeth and jaw more effectively while discouraging clenching.
Regarding claim 28, Piancino discloses the invention as discussed in claim 21.
Although Piancino does not explicitly disclose wherein the exerted adjustable force is in a range of from about 0.1 Newton to about 400 Newtons, it is noted that the applicant does not indicate that the claimed dimension is used for a particular purpose, solves a stated problem, or is otherwise critical (see paragraph [0061] of Applicant’s specification). Therefore, in Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), the Federal Circuit 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, and thus it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the exerted adjustable force of Piancino to be in the range from about 0.1 Newton to about 400 Newtons, as US 2011/0030704 A1 Hanna also discloses that children have an average occlusal force between 126.15 and 239 Newtons, and adults can have an occlusal force of 380-728 Newtons, see [0017] of Hanna, and thus modifying the exerted adjustable force to be in this range from about 0.1 Newton to about 400 Newtons allows the dental appliance to properly protect various user’s teeth and jaw more effectively while discouraging clenching.
Claim(s) 13 and 16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Piancino in view of Hanna.
Regarding claim 13, Piancino discloses the invention as discussed in claim 1. Piancino further discloses a bruxism treatment method comprising installing a dynamic dental appliance according to claim 1 (see claim 1; Fig. 6) in an individual’s mouth so that the dynamic dental appliance is fitted on either the upper dental arch or the lower dental arch (see claim 1 and Fig. 6; the dental appliance of Fig. 6 is fitted on either the upper or lower dental arch), the dynamic dental appliance exerting an adjustable force between the individual’s jaws during clenching (see claim 1 and Fig. 6 ; the dental appliance of Fig. 6 exerts an adjustable force between the individual’s jaws via the springs 7,8 when a user bites/clenches down)
Piancino is silent on exerting an adjustable force between the individual’s jaws during clenching to resist the clenching and counter brain-drive clench stimulus.
However, Hanna teaches an analogous dynamic dental appliance (30) (see Figs. 3-8) exerting an adjustable force between the individual’s jaws during clenching to resist the clenching and counter brain-drive clench stimulus (see Figs. 3-8 and 11-12; spring assemblies 36 are an analogous biasing mechanism that is configured to exert an adjustable force between the individual’s jaws during clenching to resist the clenching and counter brain-drive clench stimulus, see [0066]-[0067]), providing to prevent bruxism while providing an open airway during sleep (see [0067]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the method of Piancino during clenching to resist the clenching and counter brain-drive clench stimulus as taught by Hanna to have provided an improved bruxism treatment method that prevents bruxism while providing an open airway during sleep (see [0067]).
Regarding claim 16, Piancino in view of Hanna discloses the method as discussed in claim 13.
Although Piancino in view of Hanna does not explicitly disclose wherein the exerted adjustable force is in a range of from about 0.1 Newton to about 400 Newtons, it is noted that the applicant does not indicate that the claimed dimension is used for a particular purpose, solves a stated problem, or is otherwise critical (see paragraph [0061] of Applicant’s specification). Therefore, in Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), the Federal Circuit 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, and thus it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the exerted adjustable force of Piancino in view of Hanna to be in the range from about 0.1 Newton to about 400 Newtons, as Hanna also discloses that children have an average occlusal force between 126.15 and 239 Newtons, and adults can have an occlusal force of 380-728 Newtons, see [0017] of Hanna, and thus modifying the exerted adjustable force to be in this range from about 0.1 Newton to about 400 Newtons allows the dental appliance to properly protect various user’s teeth and jaw more effectively while discouraging clenching.
Claim(s) 15 and 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hung in view of Hanna.
Regarding claim 15, Hung discloses a bruxism treatment method comprising fitting a single-arch dynamic dental appliance (10) on only one dental arch (M) of an individual that exerts an adjustable force between the individual’s jaws during clenching (see Figs. 1-2; device 10 is a single-arch dynamic dental appliance as it is fitted or placed on only one dental arch M as seen in Fig. 2, and exerts an adjustable force between the individual’s jaws during clenching via spring elements 13,14).
Hung is silent on exerting an adjustable force between the individual’s jaws during clenching to resist the clenching and counter brain-drive clench stimulus.
However, Hanna teaches an analogous dynamic dental appliance (30) (see Figs. 3-8) exerting an adjustable force between the individual’s jaws during clenching to resist the clenching and counter brain-drive clench stimulus (see Figs. 3-8 and 11-12; spring assemblies 36 are an analogous biasing mechanism that is configured to exert an adjustable force between the individual’s jaws during clenching to resist the clenching and counter brain-drive clench stimulus, see [0066]-[0067]), providing to prevent bruxism while providing an open airway during sleep (see [0067]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the method of Hung during clenching to resist the clenching and counter brain-drive clench stimulus as taught by Hanna to have provided an improved bruxism treatment method that prevents bruxism while providing an open airway during sleep (see [0067]).
Regarding claim 18, Hung in view of Hanna discloses the method as discussed in claim 15.
Although Hung in view of Hanna does not explicitly disclose wherein the exerted adjustable force is in the range of from about 0.1 Newton to about 400 Newtons, it is noted that the applicant does not indicate that the claimed dimension is used for a particular purpose, solves a stated problem, or is otherwise critical (see paragraph [0061] of Applicant’s specification). Therefore, in Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), the Federal Circuit 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, and thus it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the exerted adjustable force of Piancino to be in the range from about 0.1 Newton to about 400 Newtons, as Hanna also discloses that children have an average occlusal force between 126.15 and 239 Newtons, and adults can have an occlusal force of 380-728 Newtons, see [0017] of Hanna, and thus modifying the exerted adjustable force to be in this range from about 0.1 Newton to about 400 Newtons allows the dental appliance to properly protect various user’s teeth and jaw more effectively while discouraging clenching.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 ROBIN HAN whose telephone number is (408)918-7579. The examiner can normally be reached Monday - Thursday, 9-5 PM EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Alireza Nia can be reached at (571)270-3076. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ROBIN HAN/Examiner, Art Unit 3786
/ALIREZA NIA/Supervisory Patent Examiner, Art Unit 3786
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