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 I, claims 13-21 in the reply filed on 1/7/2026 is acknowledged.
Claims 22 and 23 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected group, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 1/7/2026.
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 13-21 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 13 recites “origin cross-section”. It is unclear what is meant by the term “origin”. The specification does not appear to use the term and it does not have an ordinal meaning that makes it clear what the scope of the claim is. As best understood, this is a cross-section of an original wire that is used before it is processed and/or formed into the twisted shape of the wire in the brush.
Claim 15 recites the limitation "the turns" in line 1. There is insufficient antecedent basis for this limitation in the claim.
Claim 15 recites the limitation "the maximum outer diameter" in lines 2 and 3. There is insufficient antecedent basis for this limitation in the claim.
Claim 17 recites the limitation “a number of brush filaments”. It is unclear if this is referring back to the filaments previously set forth in claim 13.
Claim 18 recites the limitation "the maximum outer diameter" in line 4. There is insufficient antecedent basis for this limitation in the claim.
Claim 19 recites the limitation "the maximum outer diameter" in lines 1-2. There is insufficient antecedent basis for this limitation in the claim.
Claim 20 recites the limitation "the maximum outer diameter" in lines 3-4. There is insufficient antecedent basis for this limitation in the claim.
Claim 20 recites “a free brush end” but it is unclear if this is a free end the previously set forth brush or a free end of another brush not positively claimed. For the purpose of examination, “a free brush end” is understood to be a free end of a brush that is not positively claimed.
For the purpose of examination, all recitations of "the maximum outer diameter” are understood to be a maximum outer diameter of the wire section.
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) 13, 15, 16, 20 and 21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Rees (US 20180235358 A1) and in view of Breitschmid (US 20040211017 A1).
Regarding claims 13, 16 and 21, Rees discloses an interdental brush 1 with a brush part 2 comprising two twisted-together legs of a wire section 3 and brush filaments 5 held clamped between the legs whereby the wire section comprises an oval cross-section (paragraph 0024; 0042; 0072), and a wire of the wire section comprises an elliptical origin cross-section (paragraphs 0052, 0078; the origin cross-section is also understood to not be a part of the final device, wherein a wire with an “origin cross-section” as claimed could be machined, compressed and/or stretched to a different final shape; this is understood to be a product-by-process limitation).
Rees is silent regarding the oval cross-section having an ovality in a range between 0.4 to 0.9, wherein the ovality is dimensioned as a ratio between a length of a small transverse axis to a length of a large transverse axis of the cross-section.
However, paragraph 0072 of Rees sets forth the desire to minimize the free space 10 (figure 6). Doing this would result in an oval with a small transverse axis equal to the radius of the circle and a length of a large transverse axis of the cross-section equal to approx. 0.57(radius), resulting in a ratio of 0.57. Therefore, it would have been obvious to one of ordinary skill in the art, at the time of filing, to provide an ovality as claimed in order to minimize the free space 10, since it has been held that when the general conditions are disclosed in the art, discovering the optimum or workable ranges involves only routine skill in the art (In re Aller, 105 USPQ 233 (See MPEP § 2144.05)).
Rees does not specifically disclose the elliptical cross-section having a ratio of a length of a major semi-axis of the ellipse to a length of a minor semi-axis of the ellipse being between 1.4 and 1.6 or Re. claim 16, the ratio of the length of the major semi-axis of the ellipse to the length of the minor semi-axis of the ellipse is between 1.5 and 1.55.
However, this is deemed to be a product-by-process limitation, wherein the elliptical cross-section is claimed as an “origin cross-section”, that is a cross-section of the wire sometime before it is used to form the claimed device. The claimed device has wire section with an oval cross-section different from the elliptical origin cross-section. It appears that the device claimed is the same or similar to that made obvious by the prior art since the original wire could have the claimed origin cross-section and then stretched or compressed to arrive at a different shape that is then used to make the device made obvious by the prior art.
The Patent Office bears a lesser burden of proof in making out a case of prima facie obviousness for product-by-process claims because of their peculiar nature" than when a product is claimed in the conventional fashion. In re Fessmann, 489 F.2d 742, 744, 180 USPQ 324, 326 (CCPA 1974). Once the examiner provides a rationale tending to show that the claimed product appears to be the same or similar to that of the prior art, although produced by a different process, the burden shifts to applicant to come forward with evidence establishing an nonobvious difference between the claimed product and the prior art product. In re Marosi, 710 F.2d 799, 803, 218 USPQ 289, 292-33 (Fed. Cir. 1983)
Alternatively, Rees sets forth that the ratio of the minor and major axis is a result effective variable, wherein the change from a circular cross-section to an oval cross-section (elliptical) minimizes passable hole diameter increases durability and minimizes free space 10 (paragraph 0072).
Therefore, it would have been obvious to one of ordinary skill in the art, at the time of filing, to provide an ovality as claimed in order to select an elliptical origin cross-section with the claimed ratio, since it has been held that when the general conditions are disclosed in the art, discovering the optimum or workable ranges involves only routine skill in the art (In re Aller, 105 USPQ 233 (See MPEP § 2144.05)).
Rees is silent regarding the wire section is made of an austenitic steel having a chromium content of 15 to 17 wt.%, a manganese content of 12 to 16 wt.%, a molybdenum content of 0 to 4 wt.% and re. claim 21, whereby the austenitic steel comprises a nitrogen content of 0.5 wt.%, a silicon content of 0.25 wt.%, a carbon content of 0.11 wt.% and a nickel content of less than 0.05 wt.%.
However, Breitschmid teaches a wire section for a brush, wherein the wire section is made of an austenitic steel (paragraph 0019) having a chromium content of 15 to 17 wt.% (17 wt.% disclosed), a manganese content of 12 to 16 wt.% (14 wt.% disclosed), a molybdenum content of 0 to 4 wt.% (2 wt.% disclosed) and re. claim 21, whereby the austenitic steel comprises a nitrogen content of 0.5 wt.% (0.5 wt.% disclosed), a silicon content of 0.25 wt.% (0.25 wt.% disclosed), a carbon content of 0.11 wt.% (0.11 wt.% disclosed) and a nickel content of less than 0.05 wt.%. (0.04 wt.% disclosed as well as “below 0.05% by weight”).
Therefore, it would have been obvious to one of ordinary skill in the art, at the time of filing, to modify Rees by making the wire section of an austenitic steel with the wt. %’s claimed, as set forth above and taught by Breitschmid, for the purpose of using a wire with desired tensile strength, increased rigidity and improved restoring force using method known in the art for making wires for the desired use.
Regarding claim 15, Rees is silent regarding a depth of the turns measured as a difference between the maximum outer diameter and a minimum inner diameter is smaller than 0.05 to 0.2 times the maximum outer diameter. However, paragraph 0072 of Rees sets forth the desire to minimize the free space 10 (figure 6). Therefore, it would have been obvious to one of ordinary skill in the art, at the time of filing, to provide an minimize the free space 10 and have a depth of the turns as claimed, since it has been held that when the general conditions are disclosed in the art, discovering the optimum or workable ranges involves only routine skill in the art (In re Aller, 105 USPQ 233 (See MPEP § 2144.05)).
Regarding claim 20, Rees discloses a free brush end comprises a rounding and a maximum rounding diameter of the rounding is larger than the maximum outer diameter (as set forth in the 112b rejection above, it is understood that the free brush is a not positively claimed as part of the claimed invention; the device of Rees is of a structure that can be used with a second brush having a free brush end as claimed).
Claim(s) 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Rees (US 20180235358 A1), in view of Breitschmid (US 20040211017 A1) and further in view of Kearney (US 20080041407 A1).
Regarding claim 14, Rees/Breitschmid discloses the claimed invention substantially as claimed, as set forth above for claim 13. Rees/Breitschmid is silent regarding the twisted legs comprise turns having a turn length, measured parallel to a longitudinal axis of the brush, which is smaller than 1.5 times a maximum outer diameter of the wire section.
Kearney teaches twisted legs of a wire core brush comprising turns having a turn length, measured parallel to a longitudinal axis of the brush, which is smaller than 1.5 times a maximum outer diameter of the wire section (paragraph 0025: wire diameter of 0.028 inch and pitch of 0.04 inch; note that Rees discloses a brush for mascara or interdental while Kearney is for mascara). Therefore, it would have been obvious to one of ordinary skill in the art, at the time of filing, to modify Rees/Breitschmid by having the twisted legs comprise turns having a turn length, measured parallel to a longitudinal axis of the brush, which is smaller than 1.5 times a maximum outer diameter of the wire section, as taught by Kearney, for the purpose of providing a desired bristle density for application of a desired amount of material or surface area for removal of material.
Claim(s) 17 and 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Rees (US 20180235358 A1), in view of Breitschmid (US 20040211017 A1) and further in view of Montoli (US 20050133056 A1)
Regarding claim 17, Rees/Breitschmid discloses the claimed invention substantially as claimed, as set forth above for claim 13. Rees/Breitschmid is silent regarding a number of brush filaments per turn is greater than 10. However, Montoli teaches a wire core brush with a number of brush filaments per turn greater than 10 (paragraphs 0020-0025; note that Rees discloses a brush for mascara or interdental while Montoli is for mascara). Therefore, it would have been obvious to one of ordinary skill in the art, at the time of filing, to have a number of brush filaments per turn greater than 10, as taught by Montoli, for the purpose of providing a bristle density that will provide a desired surface area for application of material or removal of material.
Regarding claim 19, Rees/Breitschmid discloses the claimed invention substantially as claimed, as set forth above for claim 13. Rees/Breitschmid is silent regarding a ratio between the maximum outer diameter and/or a maximum wire diameter of the wire and a maximum filament diameter of the brush filaments is between 4 and 4.6. However, Montoli teaches a wire core brush with a ratio between the maximum outer diameter and/or a maximum wire diameter of the wire and a maximum filament diameter of the brush filaments is between 4 and 4.6 (paragraph 0021 for example discloses filament/bristle diameter of 0.010 inch and paragraph 0034 discloses wire diameter of 0.040 inch, which would result in a ratio of 4.0; note that Rees discloses a brush for mascara or interdental while Montoli is for mascara). It would have been obvious to one ordinary skill in the art, at the time of filing, to modify Rees/Breitschmid by making a ratio between the maximum outer diameter and/or a maximum wire diameter of the wire and a maximum filament diameter of the brush filaments is between 4 and 4.6, as taught by Montoli, for the purpose of providing desired flexibility and rigidity for the respective elements.
Claim(s) 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Rees (US 20180235358 A1), in view of Breitschmid (US 20040211017 A1) and further in view of Dunton et al (US 20050145262 A1).
Regarding claim 18, Rees/Breitschmid discloses the claimed invention substantially as claimed, as set forth above for claim 13. Rees/Breitschmid is silent regarding a useful length of the brush filaments measured transversely to the longitudinal axis of the brush between an outer contour of the twisted wire section and a free end of the brush filaments is between 3.8 and 16 times the maximum outer diameter.
Dunton teaches useful length of the brush filaments measured transversely to the longitudinal axis of the brush between an outer contour of the twisted wire section and a free end of the brush filaments is between 3.8 and 16 times the maximum outer diameter (paragraph 0053: wire diameter of 0.029 inch and bristle length of about 0.125 inches extending from the twisted wire core – results in ratio of about 4.3).
Therefore, it would have been obvious to one of ordinary skill in the art, at the time of filing, to modify Rees/Breitschmid by having the useful length of the brush filaments measured transversely to the longitudinal axis of the brush between an outer contour of the twisted wire section and a free end of the brush filaments is between 3.8 and 16 times the maximum outer diameter, as taught by Dunton, for the purpose of providing a bristle length that will provide a desired surface area for application of material or removal of material and a desired surface area for contact with a treatment area.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ERIC J ROSEN whose telephone number is (571)270-7855. The examiner can normally be reached Monday-Friday 930am-6pm.
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/ERIC J ROSEN/Supervisory Patent Examiner, Art Unit 3772