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 .
Specification
The abstract of the disclosure is objected to because “the invention relates to” can be implied.
Applicant is reminded of the proper language and format for an abstract of the disclosure.
The abstract should be in narrative form and generally limited to a single paragraph on a separate sheet within the range of 50 to 150 words in length. The abstract should describe the disclosure sufficiently to assist readers in deciding whether there is a need for consulting the full patent text for details.
The language should be clear and concise and should not repeat information given in the title. It should avoid using phrases which can be implied, such as, “The disclosure concerns,” “The disclosure defined by this invention,” “The disclosure describes,” etc. In addition, the form and legal phraseology often used in patent claims, such as “means” and “said,” should be avoided.
A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
This application includes one or more claim limitations that use the word “means” or “step” but are nonetheless not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph because the claim limitation(s) recite(s) sufficient structure, materials, or acts to entirely perform the recited function. Such claim limitation(s) is/are: “means of a spacer” in claim 13.
Because this/these claim limitation(s) is/are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are not being interpreted to cover only the corresponding structure, material, or acts described in the specification as performing the claimed function, and equivalents thereof.
If applicant intends to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to remove the structure, materials, or acts that performs the claimed function; or (2) present a sufficient showing that the claim limitation(s) does/do not recite sufficient structure, materials, or acts to perform the claimed function.
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 1-13 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.
In claim 1, line 6, “a user” lacks consistent antecedent basis as a user was previously set forth.
Claim 1, line 14, “preferably” renders the claim indefinite because the scope of the claim cannot be determined, as there is ambiguity in whether the claim requires the limitation that follows this term.
Claim 3, line 5, “the first and second parts each preferably being one-piece” creates ambiguity in the claim. This phraseology makes unclear whether each part itself is one-piece, or various other part combinations are one-piece. In addition, the term “preferably” renders the claim indefinite because the scope of the claim cannot be determined, as there is ambiguity in whether the claim requires the limitation that follows this term.
Claim 4, line 4, “preferably” renders the claim indefinite because the scope of the claim cannot be determined, as there is ambiguity in whether the claim requires the limitation that follows this term.
Claim 5, line 3, “preferably” renders the claim indefinite because the scope of the claim cannot be determined, as there is ambiguity in whether the claim requires the limitation that follows this term. In addition, the term makes unclear if other materials are within the scope of the claim.
Claim 7, line 1, “the rods” lacks antecedent basis. As best understood, and for purposes of examination, claim 7 will be treated as depending from claim 6 where rods are introduced.
Claim 12, line 2, the terms “preferably” and “optionally” render the scope of the claim indefinite because the scope of the claim cannot be determined, as there is ambiguity in whether the claim requires the limitations that follow these terms.
Claim 13, lines 1-2, “The method of acquiring 2D or 3D representations” lacks antecedent basis.
Claim 13, line 3, “the mouth of the user” lacks antecedent basis.
Claim 13, line 5, “the lips of the user” lacks antecedent basis.
Claim 13, line 6, “preferably” renders the claim indefinite because the scope of the claim cannot be determined, as there is ambiguity in whether the claim requires the limitation that follows this term.
Claim 13, line 8, “the positioning of the oral opening” lacks antecedent basis.
Claim 13, line 9, “the position of the tubular portion” lacks antecedent basis.
Dependent claims are also rejected because they include the limitations of their respective parent claim(s).
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-5, 9 and 11-13, as best understood, are rejected under 35 U.S.C. 103 as being unpatentable over Salah (WO-2020089248-A1; see translation).
Regarding claim 1, Salah discloses a spacer for acquiring 2D or 3D representations of teeth of a user with an image acquisition device (e.g., Figs. 4D, 5B and 6; Abstract; page 2, lines 15-21), comprising:
- a tubular portion (Fig. 4D and annotated Fig. 5B, below) having a longitudinal axis, e.g., O (id.) and
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- a support assembly 14 (Fig. 6) attached to the tubular portion (Fig. 5B), comprising at least one edge, e.g., 22a and 22b (Fig. 6; page 7, lines 3-6), defining an oral opening 24 (id.) and at least two wings 26a, 26b (Fig. 6) comprising free ends (id.) for separating the cheeks of a user (page 7, line 11) the support assembly 14 being elastically deformable when pressure is applied to the wings in the direction of the longitudinal axis so as to rotate the free ends about a center of rotation V (page 7, lines 7-10; page 9, lines 3-4; cf. annotated Fig. 11b, below),
the support assembly 14 being deformable between a rest configuration wherein the distance between the free ends of the wings 26a, 26b is at its maximum and a contracted configuration (i.e., the insertion configuration) wherein the distance between the free ends of the wings is less than that of the rest configuration to enable insertion into the mouth (page 13, lines 6-12),
the center of rotation V of the free ends appears to be located, in the rest configuration, at a distance from the edge 22a/22b (cf. annotated Fig. 11B, below), measured in a direction parallel to the longitudinal axis O, of less than or equal to 2 cm (id.) and situated between the ends of the edges 22a, 22b, but a particular distance is not explicitly provided.
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However, it would have been obvious to a person having ordinary skill in the art before the effective filing date to configure the center of rotation V of the free ends, in the rest configuration to be at a distance from the edge 22a/22b, measured in a direction parallel to the longitudinal axis O, of less than or equal to 2 cm (or less than or equal to 1 cm or 0.5 cm), e.g., to maintain the center or rotation V close to the edge 22a/22b, which supports the lips, to facilitate flexion and conform to the shape of a user’s mouth.
Regarding claim 2, the support assembly 14 comprises at least two parts 28a, 28b each supporting a wing 26a, 26b, respectively (the support assembly is one piece and made of plastic; Fig. 6 and page 7, line 17) and attached to the tubular portion (annotated Fig. 5b, above) by a first pivot connection 27’a (as well as by a second pivot connection 27’b) (Figs. 5b and 6; page 7, lines 18-30) allowing a relative movement of the wings 26a, 26b with respect to the tubular portion (supra).
Regarding claim 3, the support assembly 14 (Fig. 6) comprises two first parts 28a, 28b attached to the tubular portion by the first pivot connection 27’a and the second pivot connection 27’b and two second parts (annotated Fig. 6, below; page 7, lines 18-30) each attached to a first part (28b, 28a) by a second pivot connection 25 (id.; page 7, lines 7-10; page 9, lines 3-4) allowing a relative movement between the first parts 28a, 28b and the second parts (id.), the second parts supporting the wings (26b, 26a), the first and second parts each preferably being one-piece (Fig. 6 and page 7, line 17).
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Regarding claim 4, the support assembly 14 comprises two parts 28a, 28b each supporting a wing 26a, 26b, respectively, the at least one edge 22a, 22b connecting the two parts via a flexible section 25 configured to be elastically deformable when pressure is applied to the wings in the direction of the longitudinal axis O (page 7, lines 7-10; page 9, lines 3-4).
Regarding claim 5, the support assembly 14 comprises an integral elastic return member (e.g., the widened attachment area) at each end of the flexible section 25 (Fig. 6), which, because of its wider dimensions, would increase the rigidity of the flexible section 25 (cf. page, 7, lines 7-10 and Fig. 6).
Regarding claim 9, the support assembly 14 is a plastic one-piece structure (Fig. 6 and page 7, line 17).
Regarding claim 11, the tubular portion (annotated Fig. 5B, above) comprises a hollow passage (cf. Fig. 4D) configured to receive an image acquisition device 16 (Fig. 2A; page 2, lines 19-21; page 6, line 36 - page 7, line 1) in an acquisition position wherein the image acquisition device has at least a partial view of the oral opening (id.).
Regarding claim 12, the spacer of Salah is configured to receive and hold a mobile phone 16 (Fig. 2A; page 2, lines 19-21; page 6, line 36 - page 7, line 1), preferably releasably (page 2, line 19), the mobile phone 16 being attached to the spacer (Fig. 4D) so that the image acquisition device of the mobile phone 16 has at least a partial view of the oral opening (Fig. 2A; page 2, lines 19-21; page 6, line 36 - page 7, line 1).
Regarding claim 13, Salah discloses a method of acquiring a 2D or 3D representation by means of a spacer (e.g., Figs. 4D, 5B and 6; Abstract; page 2, lines 15-21) according to claim 1, said method comprising the following steps:
a) at least partial insertion, by the user, of the spacer into the mouth of the user to a service position (page 13, lines 6-15) wherein the image acquisition device has a view of the teeth of the user through the oral opening 24 (id; Fig. 6; page 7, lines 3-6), the wings 26a, 26b (Fig. 6) of the spacer separating the lips of the user to expose said teeth (Fig. 6; page 7, lines 3-6; page 13, lines 6-15);
b) activation, preferably by the user, of the image acquisition device so as to acquire said 2D or 3D representation (page 13, lines 6-20);
c) modification of the positioning of the oral opening 24 relative to the user, by rotation around the user, and/or modification of the position of the tubular portion (Figs. 4D, 5A and annotated Fig. 5B, above) with respect to the support assembly 14 (Fig. 6) (page 13, lines 21-23; page 14, lines 1-3), then return to step b) (id.).
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Salah (WO-2020089248-A1; see translation) in view of Sanders (CN-103957835-A; see translation).
Salah discloses the claimed invention, including wings 26a, 26b formed of plastic (page 7, line 17), which constitutes a core, but does not disclose the core being covered with a layer.
Sanders discloses a dental device that contacts oral tissue (i.e., gums) configured as a plastic (i.e., polymer) core covered with a protective layer (para. 0125) to offer protection to oral tissue.
It would have been obvious to a person having ordinary skill in the art before the effective filing date to cover the plastic wings 26a, 26b of Salah with a protective layer, in view of Sanders, to offer protection to oral tissue.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure (see attached PTO-892).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DAVID C COMSTOCK whose telephone number is (571)272-4710. The examiner can normally be reached M-F 9:00-5:00 PST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Eduardo Robert can be reached at 571-272-4719. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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DAVID C. COMSTOCK
Examiner
Art Unit 3773
/DAVID C COMSTOCK/Examiner, Art Unit 3773
/EDUARDO C ROBERT/Supervisory Patent Examiner, Art Unit 3773
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