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 § 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 initial cross-section (paragraphs 0052, 0078; the initial cross-section is also understood to not be a part of the final device, wherein a wire with an initial 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 “initial 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 initial 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 initial 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 initial 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.
Response to Arguments
Applicant's arguments filed 6/8/2026 have been fully considered but they are not persuasive.
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
The Applicant’s arguments pertaining to the declaration under 35 C.F.R. 1.132 are not found persuasive.
A declaration should include a description of precisely what was tested. It must include both the invention as claimed and the closest prior art. The declaration should also include a description of all of the test conditions and all test results. While it appears that tests where performed, it is not clear if the tests where performed on the invention “as claimed” and whether the closets prior art was tested. The comparison must be under the substantially same conditions except for the novel features of the invention. Precisely what was done should be recited in the declaration, e.g., the actual steps caried out, the materials employed, and the results obtained should be clearly set forth.
It is also noted that the burden is on the applicant to establish that the results are in fact unexpected, unobvious, and of statistical and practical significance.
Lastly, it is noted that a submission of objective evidence of patentability does not mandate a conclusion of patentability and that a strong case of obviousness may be established such that the objective evidence of nonobviousness is not sufficient to outweigh the evidence of obviousness. In this case, there appears to be a very strong case of obviousness, wherein the alleged novelty (material of the wire) is clearly taught by the prior art with a strong motivation for modification.
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 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
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