DETAILED ACTION
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 with traverse of Group I, Claims 1-16 and Species A, Figures 13-16 in the reply filed on June 9, 2026 is acknowledged. The traversal is on the ground(s) that the substructures of Species B, C, and D are not mutually exclusive. This is found persuasive and Species B, C, and D will be considered with the elected Species.
Claims 17-20 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse to the election requirement between the device and the process of manufacturing in the reply filed on June 9, 2026.
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the “resilient member” of Claims 3, 4, 11, and 12 must be shown or the feature canceled from the claims. No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. 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). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
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 1-16 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.
Regarding Claims 1 and 9, it is unclear what is meant by “the bracket receiving structure comprising a cavity structured to detachably retain an orthodontic bracket including a bonding surface for bonding to a tooth of the patient’s teeth engaged with the alignment body.” It is unclear what element includes the “bonding surface for bonding a tooth.” The sentence structure is such that it is unclear if the “bonding surface” is included in the bracket receiving structure or the orthodontic bracket. Appropriate punctuation or re-phrasing of the claimed elements should be applied to add clarity to the limitations claimed.
Claims 8 and 16 recite the limitation "the orthodontic bracket" in line 1. There is insufficient antecedent basis for this limitation in the claim.
All claims not specifically addressed above are rejected based on their dependency on Claims 1 and 9.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
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 1-16 are rejected under 35 U.S.C. 103 as being unpatentable over Marshall ( US 2017/0325911).
Regarding Claims 1, 3, 4, and 9, 11, and 12, Marshall discloses an orthodontic device (Figure 1A, 10) comprising a an alignment body (20), a support member (38A) comprising a bracket receiving structure (40A and 40B), the bracket receiving structure comprising a cavity (40A) structured to detachably retain an orthodontic bracket (finger 40A resiliently engages with an arch wire slot of the bracket as described in [0025]) including a bonding surface for bonding to a tooth of the patient’s teeth engaged with the alignment body (as seen in Figure 1A), and a positioning mechanism (14, 28, and 30 taken together) connected to the alignment body and the support member, the positioning mechanism being structured to allow movement of the bracket receiving structure to a bonding position to permit the bonding of the bonding surface to the tooth engaged with the alignment body, and the positioning mechanism being structured to allow movement of the bracket receiving structure to a non-bonding position away from the tooth (as seen in Figures 4 and 5). Marshall further discloses that the positioning mechanism further comprises a resilient member biasing the bracket receiving structure toward the non-binding position (as seen in Figure 5, when bar 96 is secured between bar guides 98, the bracket receiving structure would be biased in the non-binding position). It would have been obvious to one having ordinary skill in the art at the time the invention was filed to utilize the moveable bracket structure of the embodiment of Figures 4 and 5 with the device of Figures 1A and 1B as Marshall teaches that the features of the examples of the embodiments can be combined ([0040]).
Additionally, Marshall discloses that the positioning mechanism comprises a first member (30) connected to the alignment body and a second member (14) connected to the support member where the first member includes an interior space (space between 14 and 28 would receive a portion of the second member during movement during pivoting motion) receiving a portion of the second member with the resilient member (28) between the first member and the second member within the interior space (see Figure 1A).
Marshall also discloses a recess in the alignment body structured to engage portions of a plurality of a patient’s teeth (as seen in Figure 1A, tray 12 has recesses in surface 16 that engage the portions of the tooth with a use for a plurality of teeth as described in [0006]).
Regarding Claims 2 and 10, Marshall discloses that the positioning mechanism comprises a lock mechanism (32) structured to lock the positioning mechanism with the bracket receiving structure in the bonding position and lock the positioning mechanism with the bracket receiving structure in the non-bonding position (as described in [0023]).
Regarding Claims 5 and 13, Marshall discloses that the recesses are structured to receive at least occlusal surfaces of the patient’s teeth (as seen in Figure 1A, the recesses in the surface 16 conform to the occlusal surface of the teeth).
Regarding Claims 6, 7, 14, and 15, and the device of Marshall is capable of being created from trays that are created from a 3D scan and the device is capable of being made by an additive manufacturing process and the recesses comprise receiving contours structured to receive at least occlusal surfaces of the patient’s teeth and depicted in a three-dimensional model of the patient’s dentition such that the bracket receiving structure, when in the bonding position, is structured to place the bonding surface of the bracket for bonding to the tooth depicted in the three-dimensional model of the patient’s dentition. Please note: as Claims 6 and 7 do not add structure to the claims as they are product by process limitations (see MPEP 2113).
Regarding Claims 8 and 16, Marshall discloses that an orthodontic bracket (26) is detachably retained in the cavity (as seen in Figure 1A, cavity 40A retains the bracket, and as the bracket is a separate element it is capable of being detached).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHRISTINE L NELSON whose telephone number is (571)270-5368. The examiner can normally be reached M - F 9-5 ET.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Eric Rosen can be reached at 571-270-7855. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/CHRISTINE L NELSON/ Examiner, Art Unit 3772
/HEIDI M EIDE/ Primary Examiner, Art Unit 3772
9/8/2026
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