Status under America Invents Act
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
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 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.
Rejections based on Prior Art
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.
Claims 1-8 are rejected under 35 U.S.C. 103 as being unpatentable over Mullaly et al (US 6,981,871) in view of Honkura et al (US 6,203,325).
Mullaly et al disclose a dental attachment assembly comprised of a retention member 14 adapted for a snap engagement with abutment member 12 and a cap 15 having a cavity sized and dimensioned to receive and engage the retention member 14 in a swivelling manner (column 4, line 30)(note annotated Figures 2 and 3 of Mullaly et al below).
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Mullaly et al do not disclose the limitation of claim 1 requiring “an interior top surface of the cavity comprises a central portion, and wherein when the cap engages the retention member the central portion is in contact with a portion of the retention member while maintaining a space between a non-central portion of the cap and the retention member.”
Honkura et al, however for a similar dental attachment assembly teaches that it is desirable to provide for a soft resin button (227, 227’) on an interior top central portion surface of a cap cavity 2 in order to provide for cushioning (note column 16, lines 18-20) in the denture/prosthetic worn by the patient. The soft resin button 227, 227’ provides for spacing S between the cap and the retention member allowing for the button to deform when compressed by the pressure of biting (note column 16, lines 45-56). Note particular Figure 21 of Honkura et al below.
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To have added a soft resin button to the interior top cavity surface of the Mollally et al cap 15 central portion as taught by Honkura et al in order to provide for cushioning in in the denture/prosthesis when the patient is biting as taught by Honkura et al would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention.++
In regard to claim 2, note the abutment member 12 in Mullay et al. In regard to claims 3 and 4, note the annular recess extending from the top along to along the sides in Mullaly et al. In regard to claim 5, the soft resin button in the Mullay et al/Honkura et al dental attachment assembly protrudes axially into the cavity. In regard to claim 6, note the flat upper surface of the Mullaly et al retention member 14 with skirt extending therefrom. In regard to claim 7, note the Mullay et al abutment member 12 with axially spaced retention portions/annular projections 22 and 24 that are snap engaged by the retention member 14. In regard to claim 8, the space in the Mullay et al/Honkura et al dental attachment assembly is circular and meets the broad and vague “series of consecutive tangent circular arcs” limitation.
Double Patenting Rejection
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp.
Claims 1-8 are rejected on the ground of nonstatutory double patenting as being unpatentable over
Claims 1-10 of U.S. Patent No. 9,033,709;
Claims 1-13 of U.S. Patent No. 9,452,030;
Claims 1-10 of U.S. Patent No. 9,925,022;
Claims 1-11 of U.S. Patent No. 10,687,920;
Claims 1-9 or U.S. Patent No. 11,696817; and
Claims 1-9 of U.S. Patent No. 12,150,833.
Although the claims at issue are not identical, they are not patentably distinct from each other because the patented claims of ‘709, ‘030, ‘022, ‘920, ‘817 and ‘833 each set forth a dental attachment assembly comprised of a retention member and a cap with a cavity that receives the retention member and allows for the cap to swivel with respect to the retention member. The presently pending claims are broader than and/or use different language to describe the same subject matter previously patented, and consequently fail to set forth a patentably distinct invention from that previously claimed and patented.
For example, with respect to pending claim 1, patented claim 1 of ‘709 sets forth a dental attachment assembly (preamble) comprised of a retention member adapted for snap engagement (second claimed element) and a cap with a cavity that receives the retention member and allows for the cap to swivel with respect to the retention member (third claimed element). Patented dependent claim 2 specifies that the cap has a central portion that protrudes into the cavity and claim 3 specified that the retention member is in contact with the cap protrusion – the protruding central portion of the cap that contacts the retention member teaches the current claim 1 limitation that allows for a space between a non-central portion of the cap and the retention member. Currently pending claim 1 claims the same subject matter as that previously patented in ‘709 without any patentable distinctions.
Patented claim 1 of ‘030 sets forth a dental attachment assembly (preamble) comprised of a retention member adapted for attachment (second claimed element) and a cap with a cavity that receives the retention member and allows for the cap to swivel with respect to the retention member (third claimed element). Patented dependent claim 2 specifies that the cap has a central portion that protrudes into the cavity that contacts the retention member– the protruding central portion of the cap that contacts the retention member teaches the current claim 1 limitation that allows for a space between a non-central portion of the cap and the retention member. Currently pending claim 1 claims the same subject matter as that previously patented in ‘030 without any patentably distinctions.
Patented claim 1 of ‘022 sets forth a dental attachment assembly (preamble) comprised of a retention member (line 7) adapted for attachment and a cap (cup shaped member) with a cavity that receives the retention member and allows for the cap to swivel with respect to the retention member. Patented claim 1 further specifies that the cap has a central portion that protrudes into the cavity and dependent claim 10 specifies a space between a non-central portion of the cap and the retention member. Currently pending claim 1 claims the same subject matter as that previously patented in ‘022 without any patentably distinctions.
Patented claim 1 of ‘920 sets forth a dental attachment assembly (preamble) comprised of a retention member (first claimed element) adapted for engagement and a cap (second element) with a cavity that receives the retention member and allows for the cap to swivel with respect to the retention member. Patented claim 1 further specifies that the cap has a central portion that protrudes into the cavity and claim 2 specifies that the retention member is in contact with the cap protrusion – the protruding central portion of the cap that contacts the retention member teaches the current claim 1 limitation that allows for a space between a non-central portion of the cap and the retention member. Currently pending claim 1 claims the same subject matter as that previously patented in ‘920 without any patentable distinctions.
Patented claim 1 of ‘817 sets forth a dental attachment assembly (preamble) comprised of a retention member adapted for engagement (first claimed element) and a cap with a cavity that receives the retention member and allows for the cap to swivel with respect to the retention member (third claimed element). Patented dependent claim 2 specifies that the cap has a central portion that protrudes into the cavity and that the retention member is in contact with the cap protrusion – the protruding central portion of the cap that contacts the retention member teaches the current claim 1 limitation that allows for a space between a non-central portion of the cap and the retention member. Currently pending claim 1 claims the same subject matter as that previously patented in ‘817 without any patentably distinctions.
Patented claim 1 of ‘833 sets forth a dental attachment assembly (preamble) comprised of a retention member adapted for snap engagement (first claimed element) and a cap with a cavity that receives the retention member and allows for the cap to swivel with respect to the retention member (third claimed element). Patented claim 1 further specifies that the cap has a central portion that protrudes into the cavity and claim 3 specified that the retention member is in contact with the cap protrusion and allows for a space between a non-central portion of the cap and the retention member. Currently pending claim 1 claims the same subject matter as that previously patented in ‘833 without any patentably distinctions.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Ralph Lewis whose telephone number is (571)272-4712. The examiner can normally be reached Monday-Friday from 9AM-4PM.
If attempts to reach the examiner by telephone are unsuccessful, please contact the examiner’s supervisor, Edelmira Bosques 571 270-5614. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/RALPH A LEWIS/Primary Examiner, Art Unit 3772 (571) 272-4712