DETAILED ACTION
Notice of Pre-AIA or AIA Status
1. The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Objections
2. Claim 16 is objected to because of the following informalities: claim 16 recites “thirds” (line 12) which is a typographical error of “third”.
Appropriate correction is required.
Claim Rejections - 35 USC § 102
3. The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
4. Claims 1, 5-10, 12, 16, and 20, are rejected under 35 U.S.C. 102(a)(1) as being unpatentable over Wallshein (US 3,961,421).
Regarding claim 1, Wallshein discloses:
an orthodontic device 8 having a first end and a second end and defining a central longitudinal axis between the first end and the second end, the orthodontic device 8 comprising a single wire 8 (Figs. 3-6, 8-9) or a single wire bundle (Figs. 7a-7b) which forms an endless loop and including a portion of the single wire/bundle 8 passing over another portion of the single wire/bundle 8 to form first and second openings around brackets 2 (i.e. openings between X-junctions);
the single wire/bundle 8 having a retracted state prior to mounting the device in a mouth of a patient, and wherein the device includes in the retracted state the first opening for receiving a first anchoring structure/bracket 2 attached in a mouth of a subject, and the second opening for receiving a second anchoring structure/bracket 2 attached in the mouth of the subject, the first, and second openings being substantially aligned along the central longitudinal axis (see Fig. 1);
wherein the orthodontic device 8 is configured to deform by increasing its length and one or more of the openings are stretchable to transition to an extended (stretched) state when mounted around the first and second anchoring structures/brackets 2 in the mouth of the patient (Fig. 1; column 4 lines 10-14 “elastic ban 8 will tend to grip the edge of the opening of the bracket channels and be prevented by this action from relaxing from its stretched condition”; column 5 lines 4-6 “the elastic band… is fabricated of an elastomeric material which can be stretched…”).
As to claims 5-6, Wallshein shows the first and second openings (around brackets 2) being formed by a single woven or braided wire (see Fig. 7a).
As to claims 7-8, Wallshein shows a third opening (around third bracket 2) and further openings (around other brackets 2).
As to claim 9, Wallshein discloses the orthodontic wire device is made from a shape memory material (column 4 lines 10-14 “elastic ban 8 will tend to grip the edge of the opening of the bracket channels and be prevented by this action from relaxing from its stretched condition”; column 5 lines 4-6 “the elastic band… is fabricated of an elastomeric material which can be stretched…”).
Regarding claim 10, Wallshein discloses: an orthodontic device 8 having a first end and a second end and defining a central longitudinal axis between the first end and the second end (Figs. 1-9), and comprising in a retracted state of the orthodontic device: a first opening, a second opening, and a third opening, for receiving a first, second, and third anchoring structures/brackets 2, respectively, wherein the first, the second, and the third anchoring structures/brackets 2 are attached in a mouth of a subject, and wherein the first, the second and the third openings are substantially aligned along the central longitudinal axis (see Fig. 1). Note that the X-junction 22 is equivalent to an intermediate structure connecting the first, second and third openings. The orthodontic device is configured to deform by increasing its length and reducing its width and one or more of the first, second and third openings are stretchable to transition the orthodontic device to an extended state, wherein the orthodontic device is made from a single integrally formed wire, and wherein the first, the second and the third opening are formed by passing portions of the single wire over or under other portions of the single wire (column 3 lines 28-30 “elastic band 8 is “woven” through… the brackets 2 in a stretched condition so as to provide orthodontic forces”; column 5 lines 30-33 “reduce in size when stretched”).
As to claims 12, the X-junction connection 22 is formed by a portion of the wire passes over or under another portion. Note that the claim language "welded" is a product-by-process recitation in a product claim. Even though product-by-process recitation is limited by and defined by the recited process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process. In re Thorpe, 777 F.2d 695, 227 USPQ 964 (Fed. Cir. 1985). In this case, Wallshein discloses the end product and the structures thereof as claimed; thus the burden is shifted to applicant to show an unobvious difference. to an intermediate structure connecting the first, second and third openings
Regarding claim 16, Wallshein discloses a kit (Fig. 1) comprising: a first, second, third brackets 2 for attachment to a first, second, third tooth, respectively;
an orthodontic device (elastic band 8) having a first end and a second end and defining a central longitudinal axis between the first end and the second end, and the orthodontic device 8 comprising: a first opening, a second opening, and a third opening, for receiving a first, second, and third brackets 2; wherein the first, second, and third openings being substantially aligned along the central longitudinal axis (see Fig. 1).
The orthodontic device 8 is configured to transition from a retracted state prior to mounting the orthodontic device around the first, second and third brackets and including the first, second and third openings, to an extended state after mounting the orthodontic device around the first, second and third brackets wherein the first, second and third openings have an increased length and reduced width compared to the retracted state, and wherein the orthodontic device is made from a single wire or single wire bundle which is woven or braided to form the first, second and third openings.
(column 4 lines 10-14 “elastic ban 8 will tend to grip the edge of the opening of the bracket channels and be prevented by this action from relaxing from its stretched condition”; column 5 lines 4-6 “the elastic band… is fabricated of an elastomeric material which can be stretched…”).
As to claim 20, Wallshein shows the brackets 2 comprising an archwire slot, and wings surrounding the archwire slot, wherein the first, second, and third openings fit around the wings of the bracket (see Fig. 1).
Claim Rejections - 35 USC § 103
5. 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.
6. Claims 2-4, 11, 14-15, and 17-19, are rejected under U.S.C. 103 as being unpatentable over Wallshein in view of Kotteman (US 4,585,414).
Wallshein discloses the orthodontic wire device made from elastic material (abstract), particularly elastomeric material such as rubber or plastic (column 3 lines 56-58). However, as per claims 2-4, 11, 14-15, and 17-19, Wallshein is silent to the specifically claimed creep resistant polymer, a high performance thermoplastic such as polysulfones. Kotteman discloses an orthodontic wire (Fig. 1) formed of polysulfone resin for its increased flexibility (column 3 lines 34-41), biocompatibility, hardness to withstand chewing force, and no permanent deformation i.e. creep (column 4 lines 11-41). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify Wallshein by utilizing polysulfone resin as taught by Kotteman as to its suitability to form such orthodontic wire yielding predictable success.
7. Claim 13 is rejected under U.S.C. 103 as being unpatentable over Wallshein in view of Northcutt (US 3,775,850).
Wallshein discloses the invention substantially as claimed as applied to claim 10 as detailed above. However, as per claim 13, Wallshein fails to disclose a silicone or metal ring fixing the junction connection. Northcutt discloses archwires being fixed relative to each other by metal rings 42, 44, 46 (see Northcutt Figs. 13-15). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify Wallshein by including such ring as taught by Northcutt in order to effectively fix the wire portions at the X-junction relative to each other.
Conclusion
8. Any inquiry concerning this communication or earlier communications from the examiner should be directed to HAO D MAI whose telephone number is (571)270-3002. The examiner can normally be reached Mon-Fri 8:00-4:30.
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, 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.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/Hao D Mai/
Examiner, Art Unit 3772
Prosecution Insights