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 .
Priority
Acknowledgment is made of applicant’s claim for foreign priority under 35 U.S.C. 119 (a)-(d). The certified copy has been filed in parent Application No. DE102023110194.3, filed on 04/21/2023.
Drawings
Figures should include reference numbers and lines that are uniformly thick and well defined. Hand drawn reference numbers and lines should be avoided.
The subject matter of this application admits of illustration by a drawing to facilitate understanding of the invention. Applicant is required to furnish a drawing under 37 CFR 1.81(c). No new matter may be introduced in the required drawing. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d).
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.
Claim 1 recites the phrase “has a minimum” (line23). The phrase is indefinite because it is unclear what characteristic is being limited by the “minimum”, as it could refer to multiple different parameters.
Additionally, claim 1 recites “sum of the two arm cross-sections” and “minimum cross-section”. The term “cross-section” is not a unit of measurement, and it is unclear whether these phrases refer to a cross-sectional area, width, thickness, surface roughness, or another property. Therefore, the scope is unclear.
Claim 3 recites, “maximum cross-section”. It is unclear what property of the cross-section” itself is not a measurable quantity. Therefore, the scope of the claim is indefinite.
Claims 10-13 recites “the oblong access opening”. However, no antecedent basis for this phrase is provided in the claims. Accordingly, the scope of these claims is unclear.
Claim 15 recites “the first clamp”. There is insufficient antecedent basis for this phrase, and it is unclear whether this term refers to the first clamp leg or another previously recited structure.
Claim 17 recites, “the wall assigned to the clamp bend”. There is insufficient antecedent basis for “the wall”, and it is unclear which previously recited wall this phrase refers to. Accordingly, the scope of the claim is indefinite.
Claim Rejections - 35 USC § 103
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 1 is rejected under 35 U.S.C. 103 as being unpatentable over Sommer et al (US 10,111,731 B2) in the view of Falcone et al (US 10555793B2)
Regarding claim 1, Sommer teaches a self-ligating bracket for orthodontics, comprising: a base (59) (figure 3);
an occlusal wall (19) extending from the base (Figure 3);
a gingival wall (18) extending from the base (Figure 3);
a groove (20) separating the occlusal wall (19) and the gingival wall (18) and extending continuously in a direction from mesial to distal (Figure 3);
a fastening side (bottom of 12) facing away from the groove for adhesively bonding the bracket to a lingual or vestibular surface of a tooth (Figure 4);
a slit extending in a direction from gingival to occlusal (see annotated Figure 1 below);
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and a resilient clamp (22), which comprises a first clamp leg and a second clamp leg (36), which are connected to each other by an occlusally or gingivally arranged clamp bend (44), wherein the first clamp leg is inserted in the slit and can be moved therein in gingival-occlusal direction between a closed position and an open position of the clamp (Figure 1);
wherein the clamp has an access opening (40) in the area of the clamp bend for engagement of a bracket opener;
wherein the access opening (40), in a view along the longitudinal direction of the first clamp leg or in a top view of the clamp unwound into a plane, is delimited laterally by two arms running in a V-shape (42) towards each other (Figure 1);
wherein the cross-section of the clamp in the area of the clamp bend outside the access opening has a minimum which is referred to as the minimum cross-section (annotated figure 8 shows the cross section of element 22);
wherein each of the arms has an arm cross-section in the area of the access opening (annotated figure 8 shows the cross section of the element 36);
While Sommer discloses a similar bracket, the access opening dimensions relative to the mesial and distal arm width is not clearly disclosed. Falcone shows a similar bracket with a larger access opening (Fig 17L), where the distance measured from mesial to distal between the mesial arm and the distal arm is at least as large as the arm width of each of the two arms measured from mesial to distal. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Sommer to have a larger access opening where ‘the distance measured from mesial to distal between the mesial arm and the distal arm is at least as large as the arm width of each of the two arms measured from mesial to distal’.
However, while Sommer appears to show the two arm cross-sections being the same diameter, the reference does not explicitly disclose the cross-sectional diameter of either arm and therefore does not explicitly disclose the claims range of "not more than 10% less than the minimum cross section". It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Sommer to have the arm cross-sectional diameters as claimed 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 MPEP 2144.04 IV. In the instant case, modifying the device of Sommer to have the claimed diameters would not adversely affect the function of the device.
Claims 2-19 are rejected under 35 U.S.C. 103 as being unpatentable over Sommer et al (US 10,111,731 B2).
Regarding claim 2, Sommer appears to show the two arms are half as width of the clamp bend. The reference does not explicitly disclose the “two arms is half as wide as the smallest width of the clamp bend”. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Sommer to have the two arms is half as wide as the smallest width of the clamp bend 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 MPEP 2144.04 IV. In the instant case, modifying the device of Sommer to have the claimed diameters would not adversely affect the function of the device.
Regarding claim 3, Sommer appears to show the two arm cross-sections being the same diameter (figures 8, 15), the reference does not explicitly disclose the cross-sectional diameter of either arm and therefore does not explicitly disclose the claims range of "not more than 20% larger than the minimum cross-section."
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Sommer to have the arm cross-sectional diameters as claimed 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 MPEP 2144.04 IV. In the instant case, modifying the device of Sommer to have the claimed diameters would not adversely affect the function of the device.
Regarding claim 4, Sommer appears to show the two arm cross-sections being the same diameter, the reference does not explicitly disclose the cross-sectional diameter of either arm and therefore does not explicitly disclose the claims range of "more than 10% larger than the minimum cross-section extend over maximally 20% of total bending angle."
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Sommer to have the arm cross-sectional diameters as claimed 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 MPEP 2144.04 IV. In the instant case, modifying the device of Sommer to have the claimed diameters would not adversely affect the function of the device.
Regarding claim 5, Sommer teaches a self-ligating bracket with an access opening (40) delimited laterally by two arms running in a V-shape (42) towards each other, the arms bordering the access opening on opposite sides (Figure 1). Sommer further teaches that the distance between the two arms is at least as large as the arm width. However, Sommer does not explicitly disclose the distance between the two arms being at least 0.7mm. It would have been obvious to one having ordinary skill in the art before the effective filling date of the claimed invention to provide a distance between the arms of at least 0.7mm, since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). Further, applicant appears to have placed no criticality on the claimed range (see pp. [0010] indicating the value might be vary).
Regarding claim 6, Sommer teaches a self-ligating bracket with an access opening (40) delimited laterally by two arms running in a V-shape (42) towards each other, the arms bordering the access opening on opposite sides forming an angle. However, Sommer does not explicitly disclose the angle between two arms are in range 40° to 75°. It would have been obvious to one having ordinary skill in the art before the effective filling date of the claimed invention to provide an angle between two arms in range 40° to 75°, since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). Further, applicant appears to have placed no criticality on the claimed range (see pp. [0022] indicating the angles might vary).
Regarding claim 7, Sommer teaches a self-ligating bracket with an access opening delimited laterally by two arms running in a V-shape towards each other, the arms bordering the access opening on opposite sides. However, Sommer does not explicitly disclose the angle between two arms are in range 45° to 70°. It would have been obvious to one having ordinary skill in the art before the effective filling date of the claimed invention to provide an angle between two arms in range 45° to 70°, since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). Further, applicant appears to have placed no criticality on the claimed range (see pp. [0022] indicating the angles might vary).
Regarding claim 8, Sommer teaches a self-ligating bracket with a clamp (22), However does not explicitly disclose the angle when unwound into a plane is in range 20° to 45°. It would have been obvious to one having ordinary skill in the art before the effective filling date of the claimed invention to provide an angle when unwound into a plane be in range 20° to 45°, since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). Further, applicant appears to have placed no criticality on the claimed range (see pp. [0022] indicating the angles might vary).
Regarding claim 9, Sommer teaches a self-ligating bracket with a clamp (22), However does not explicitly disclose the angle when unwound into a plane is in range 23° to 33°. It would have been obvious to one having ordinary skill in the art before the effective filling date of the claimed invention to provide an angle when unwound into a plane be in range 23° to 33°, since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). Further, applicant appears to have placed no criticality on the claimed range (see pp. [0023] indicating the angles might vary).
Regarding claims 10, Sommer teaches a self-ligating bracket with an access opening (40), However does not explicitly disclose that the access opening extends over at least 50% of the total clamp bend. It would have been obvious to one having ordinary skill in the art before the effective filling date of the claimed invention to provide an access opening that extends over at least 50% of the total clamp bend, since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). Further, applicant appears to have placed no criticality on the claimed range (see pp. [0022] indicating the angles might vary).
Regarding claims 11, Sommer teaches a self-ligating bracket with an access opening (40), However does not explicitly disclose that the access opening extends over at least 55% of the total clamp bend. It would have been obvious to one having ordinary skill in the art before the effective filling date of the claimed invention to provide an access opening that extends over at least 55% of the total clamp bend, since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). Further, applicant appears to have placed no criticality on the claimed range (see pp. [0023] indicating the angles might vary).
Regarding claim 12, Sommer teaches a self-ligating bracket with an access opening (40), and a clamp (22) which bends at an angle. However, does not explicitly disclose that the clamp bend has an angle of at least 100°. It would have been obvious to one having ordinary skill in the art before the effective filling date of the claimed invention to provide a clamp bend has an angle of at least 100°, since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). Further, applicant appears to have placed no criticality on the claimed range (see pp. [0023] indicating the angles might vary).
Regarding claim 13, Sommer teaches a self-ligating bracket with an access opening (40), and a clamp (22) which bends at an angle. However, does not explicitly disclose that the clamp bend has an angle of at least 120°. It would have been obvious to one having ordinary skill in the art before the effective filling date of the claimed invention to provide a clamp bend has an angle of at least 120°, since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). Further, applicant appears to have placed no criticality on the claimed range (see pp. [0023] indicating the angles might vary).
Regarding claim 14, Sommer teaches a self-ligating bracket wherein a segment of the clamp bend (22) in which the two arms run parallel to each other adjoins the segment of the clamp bend in which the two arms run in a V-shape towards each other (see annotated figure below).
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Regarding claim 15, Sommer shows a clamp bend, the reference does not explicitly disclose the relative heights of each section of the bend and therefore does not explicitly disclose the claims range of "first height (0.8 * H1) reduced by 20% and the first height (1.2 * H1) increased by 20%"
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Sommer to have the clamp bend height ratio as disclosed "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 MPEP 2144.04 IV. In the instant case, modifying the device of Sommer to have the claimed heights would not adversely affect the function of the device.
Regarding claim 16, Sommer teaches a self-ligating bracket with an access opening (40). However, does not explicitly disclose that the clamp bend has an angle of at least 120°. It would have been obvious to one having ordinary skill in the art before the effective filling date of the claimed invention to provide a clamp bend has an angle of at least 120°, since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). Further, applicant appears to have placed no criticality on the claimed range (see pp. [0023] indicating the angles might vary).
Regarding claim 17, Sommer teaches a self-ligating bracket wherein the wall assigned to the clamp bend, as viewed along the longitudinal direction of the first clamp leg, comprises a recess (26) at its end facing away from the base of the groove (Figure 14).
Regarding claim 18, Sommer teaches a recess (26), the reference does not explicitly disclose the thickness of the recess and therefore does not explicitly disclose the claims range of "is at least 80% of the thickness (D) of the clamp."
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Sommer to have the thickness of recess as claimed 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 MPEP 2144.04 IV. In the instant case, modifying the device of Sommer to have the claimed thickness would not adversely affect the function of the device.
Regarding claim 19, Sommer teaches similar self-ligating bracket. However, while Sommer appears to show the two arm cross-sections being the same diameter, the reference does not explicitly disclose the cross-sectional diameter of either arm and therefore does not explicitly disclose the claims range of "not more than 10% less than the minimum cross section". It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Sommer to have the arm cross-sectional diameters as claimed 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 MPEP 2144.04 IV. In the instant case, modifying the device of Sommer to have the claimed diameters would not adversely affect the function of the device.
Conclusion
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/SARA N SAMARASEKARA/Examiner, Art Unit 3772
/THOMAS C BARRETT/SPE, Art Unit 3799