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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted on April 24, 2026, is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Response to Arguments
Applicant’s amendment to claim 26 filed on April 24, 2026, overcomes the rejection under 35 U.S.C. §112, second paragraph. Applicant's arguments filed April 24, 2026, with respect to the rejection under 35 U.S.C. §103, have been fully considered but they are not persuasive.
Claims 14-23 and 27-29 are rejected under 35 USC 203 as being unpatentable over Richard (US 2013/0025498) in view of Kendall (WO 00/50362).
Applicant argues that to qualify as prior art, obviousness references must be “analogous art” to the application disclosure. Applicant argues that Kendall is non-analogous art to the present composition, as it relates to a curable cementitious composition intended to be used for a variety of end uses. Applicant further argues that the examples taught by Kendall “provide solutions intended to be resolve issues in the building industry, and makes it clear when discussing ‘cementitious product,’ that this is based on lime or sources of lime like Portland cement.” While Kendall does not specifically disclose dental or medical uses for the cement mixture, the list of uses provided by Kendall is non-exhaustive. Additionally, on page 6, paragraph 3, Kendall specifically teaches that the cement in the cementitious composition found on page 8, first paragraph may be a “dental/medical cement,” which would indicate that the cementitious composition could be used as a medical/dental composition, making it analogous art.
Applicant cites MPEP 2141.01(a), noting that to be “analogous art,” the prior art must either be “from the same field of endeavor as what is provided in Applicant’s application disclosure, or the references lend themselves to the problem the application disclosure is attempting to solve to the point where the proposed reference would be ‘reasonably pertinent’ to what is being disclosed by the Applicant.” Applicant argues that Kendall is non-analogous art because it does not meet these standards. The examiner respectfully disagrees.
Kendall does teach that a pozzolan is a material that will effectively react with lime or sources of lime, like Portland cement. However, Portland cement is only one of the types of cement taught by the Kendall reference. On page 6, paragraph 3, Kendall teaches that, “[a]lternatively, the cement may be… calcium sulphate based, calcium aluminate cement, glass based, oxide based, dental/medical cement, or mixtures of these cements.” It would have been obvious to one having ordinary skill in the art at the time of the invention that if the cement used in the curable cementitious composition is a dental/medical cement, or mixtures of a dental/medical cement and others listed, the cementitious composition could be used for dental/medical purposes. Based on Kendall’s disclosure of “dental/medical cement” being a potential cement used in the cementitious mixture taught on page 8, paragraph 1, the art is analogous because it is from a “relevant field of endeavor.” Furthermore, while applicant argues that Portland cement is not the same as dental cement, Richard ‘184 teaches the use of Portland cement for fixing root canals as being well known in the prior art [0017].
Applicant also argues that Kendall is not from the same field of endeavor, as it teaches examples using Portland cement in the cementitious mixture, which relate to cement being used in the building industry. While the examiner agrees that it would be unlikely for a person of ordinary skill in the art to look to a building cement for additives to use in a dental cement, as noted above, Kendall also teaches the use of dental cement in the cementitious composition on page 6, paragraph 3. Additionally, the problems addressed by Kendall extend beyond industrial building cement. For example, high workability and excellent surface finish would also be useful in a dental/medical cementitious product.
For the reasons above, the examiner submits that the present claims are obvious in view of Richard ‘498 in view of Kendall.
Claim Objections
Claim 25 is objected to because of the following informalities: “the crown” and “the root” lack proper antecedent basis and should be re-written as “a crown” and “a root.” Appropriate correction is required.
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.
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 14-23 and 26-29 are rejected under 35 U.S.C. 103 as being unpatentable over Richard (US 2013/0025498) in view of Kendall (WO 00/50362).
Regarding claim 14, Richard teaches a dental composition comprising: from 15% to 98% in weight of the total weight of the composition of calcium silicate [0015]; from 0.5% to 80% in weight of the total weight of the composition of calcium carbonate [0016]; optionally from 2% to 35% in weight of the total weight of the composition of a radiopacifier [0029]; and optionally one or more additive selected from setting accelerators, pigments, water reducing agents, texturing agents, pH stabilizing agents, surfactants, and fillers [0028].
Richard does not specifically teach from 0.5% to 20% in weight of the total weight of the composition of at least one pozzolanic material. Kendall teaches a dental composition comprising calcium silicate (page 6, paragraph 3), a calcium carbonate (page 9, paragraph 2, item iv); and from 0.5% to 20% in weight of the total weight of the composition of at least one pozzolanic material. (page 5, paragraph 2). It would have obvious to one having ordinary skill in the art at the time of filing to modify Richard with Kendall in order to create a higher quality cement at a lower cost.
Regarding claim 15, Richard does not teach the at least one pozzolanic material comprises silica fume. Kendall teaches the at least one pozzolanic material comprises silica fume (page 5, paragraph 1). It would have obvious to one having ordinary skill in the art at the time of filing to modify Richard with Kendall in order to create a higher quality cement at a lower cost.
Regarding claim 16, Richard does not disclose the particles of the at least one pozzolanic material have a d90 granulometry from 5 µm to 100 µm, from 8 µm to 60 µm, from 15 µm to 35 µm or from 15 µm to 25 µm. Kendall teaches the at least one pozzolanic material comprises silica fume (page 5, paragraph 1). It would have obvious to one having ordinary skill in the art at the time of filing to modify Richard with Kendall in order to create a higher quality cement at a lower cost.
Regarding claim 17, Richard teaches the calcium silicate is pure tricalcium silicate [0015].
Regarding claim 18, Richard teaches the calcium silicate is a mixture of tricalcium silicate and dicalcium silicate, said mixture being such that it contains no more than 10% by weight of dicalcium silicate with respect to the total weight of the calcium silicates present in the composition [0025].
Regarding claim 19, Richard does not teach the calcium silicate is the calcium silicate of a Portland cement or of a mineral trioxide aggregate (MTA); however, Kendall teaches the calcium silicate is the calcium silicate of a Portland cement or of a mineral trioxide aggregate (MTA) (page 6, paragraph 3). It would have obvious to one having ordinary skill in the art at the time of filing to modify Richard with Kendall in order to create a higher quality cement at a lower cost.
Regarding claim 20, Richard teaches a setting accelerator [0028].
Regarding claim 21, Richard teaches a radiopacifier [0029].
Regarding claim 22, Richard teaches at least one pigment [0031].
Regarding claim 23, Richard does not teach at least one texturing agent; however, Kendall teaches a texturing agent (page 10, paragraph 4). It would have obvious to one having ordinary skill in the art at the time of filing to modify Richard with Kendall in order to create a higher quality cement at a lower cost.
Regarding claim 26, Richard in view of Kendall teach the dental composition of claim 14 for use in the treatment of the crown of a tooth and/or a root of a tooth [0053] - [0054] (Richard). However, they not specifically teach a method of treating a crown of a tooth and/or a root of a tooth by administering to a subject in need thereof the dental composition. It would have been obvious to one having ordinary skill in the art at the time of filing that as the composition taught by Richard is taught as being used for a root canal filling, said root canal would be treated using a method.
Regarding claim 27, Richard teaches the amount of calcium carbonate ranges from 0.5% to 20% in weight of the total weight of the composition [0016].
Regarding claim 28, Richard teaches the amount of calcium carbonate is 4% in weight of the total weight of the composition [0016].
Regarding claim 29, Richard does not teach the amount of at least one pozzolanic material is 10% in weight of the total weight of the composition. Kendall teaches the amount of at least one pozzolanic material is 10% in weight of the total weight of the composition (page 5, paragraph 2). It would have obvious to one having ordinary skill in the art at the time of filing to modify Richard with Kendall in order to create a higher quality cement at a lower cost.
Claims 24, 25, and 30 are rejected under 35 U.S.C. 103 as being unpatentable over Richard (US 2013/0025498) and Kendall (WO 00/50362), and further in view of Richard (US 2012/0270184).
Regarding claim 24, Richard and Kendall teach a hardened dental material; however, they do not teach a kit comprising: a first container containing a powder phase comprising the dental composition according to claim 14; and a second container containing a liquid aqueous phase; wherein the weight ratio of the powder phase present in the kit to the liquid aqueous phase present in the kit ranges from 2 to 5. Richard (‘184) teaches a kit comprising: a first container containing a powder phase comprising the dental composition according to claim 14; and a second container containing a liquid aqueous phase; wherein the weight ratio of the powder phase present in the kit to the liquid aqueous phase present in the kit ranges from 2 to 5 [0064]. It would have obvious to one having ordinary skill in the art at the time of filing to modify Richard and Kendall with Richard (‘184) in order to create a high-quality cement that is easily used.
Regarding claim 25, Richard and Kendall teach a hardened dental material; however, they do not specifically teach a medical device comprising a kit. Richard (‘184) teaches a medical device comprising a kit [0064]. It would have obvious to one having ordinary skill in the art at the time of filing to modify Richard and Kendall with Richard (‘184) in order to create a high-quality cement that is easily used.
Regarding claim 30, Richard and Kendall in view of Richard (‘184) teach the kit according to claim 24. Richard teaches the filling of a root canal [0053] – [0054] However, Richard in view of Kendall does not specifically teach a method of treating a crown of a tooth and/or a root of a tooth by administering to a subject in need thereof the dental composition. It would have been obvious to one having ordinary skill in the art at the time of filing that as the composition taught by Richard is taught as being used for a root canal filling, said root canal would be treated using a method. Furthermore, Richard (‘184) teaches a kit and method of filling a root canal (claims 15, 31, and 35). It would have obvious to one having ordinary skill in the art at the time of filing to modify Richard and Kendall with Richard (‘184) in order to create an adaptable product that can be easily renewed.
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 Laura Martin Sweeney whose telephone number is (571)272-2160. The examiner can normally be reached Monday - Friday, 7:30am - 3:30 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Andrea Wellington can be reached at (571) 272-4483. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/LAURA MARTIN SWEENEY/Supervisory Patent Examiner, Art Unit 2855
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