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 .
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 1-9 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.
Claim 1 recites the limitation " bracket surface". There is insufficient antecedent basis for this limitation in the claim. For the purpose of examination, this limitation is interpreted as the bracket body surface. Claims 2-9 are rejected based on claim dependency on claim 1.
Claim Rejections - 35 USC § 102
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.
Claims 1-4 and 9 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Pospisil et al (US 5,692,896).
Regarding claim 1, Pospisil discloses a bracket (10), comprising:
a bracket base (12) adapted to attach to a tooth of a dental arch (col 3, line 36-37), said bracket base having a bracket base surface (external surface that faces the tooth, see figures 1-3);
a bracket body (14) extending from said base (see figure 2), said bracket body having a bracket body surface (outer or exterior surface of the body between the tie wings and the base 12, including the ligature channels 26 and/or 28);
a pair of spaced apart tie wings (tie wings 18/20/22/24) extending from said bracket body (see figures 1-3), each tie wing of said pair of tie wings having a tie wing surface, each of said tie wing surfaces having a margin (see annotated figure 1);
a first identification mark (33) disposed on one of said bracket surface, tie wing surfaces, or bracket base surfaces (located on the tie wig see figures 1-3);
a second identification mark (colorant 32) disposed on one of said bracket surface, tie wing surfaces, or bracket base surfaces (within channel 26 and/or 28, which is part of the bracket surface body);
wherein said first identification mark and said second identification mark each selected from a group of identification marks consisting of an identification mark which identifies placement of said bracket on a tooth in an upper dental arch or a tooth in said lower dental arch; an identification mark which identifies angulation of said bracket body in relation to said bracket base; and an identification mark which identifies bracket body height (wherein the colorant marking 32 extends along the height of the bracket body which is defined by the channel 28 and therefore identifies the height of the bracket body and the marker 33 is positioned pm the tie wing 24 such that it can insure bondage to the right tooth, upper or lower as seen in figure 4 the marker distinguishes if the bracket is on an upper or lower tooth by if the marker is positioned adjacent the gingiva, see col 5, lines 14-23); and
said first identification mark and said second identification mark each corresponding to a different one of said identification marks from said group of identification marks (see above).
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Annotated figure 1
Regarding claim 2, Pospisil discloses said first identification mark (33) identifies placement of said bracket on a tooth in an upper dental arch or a tooth in said lower dental arch (the marker 33 is positioned on the tie wing 24 such that it can insure bondage to the right tooth, upper or lower as seen in figure 4 the marker distinguishes if the bracket is on an upper or lower tooth by if the marker is positioned adjacent the gingiva, see col 5, lines 14-23).
Regarding claim 3, Pospisil discloses said second identification mark (32) is disposed on said margin of one of said tie wing surfaces; a gingival side of said bracket body surface; or a gingival side of said bracket base surface (a gingival side of the bracket body, more specifically within the gingival ligature channel 28, see col 4, lines 29-32).
Regarding claim 4, Pospisil discloses said second identification mark (32) identifies a bracket body height of said bracket (wherein the colorant marking 32 extends along the height of the bracket body which is defined by the channel 28/26 and therefore identifies the height of the bracket body).
Regarding claim 1, Pospisil discloses a bracket (10), comprising:
a bracket base (12) adapted to attach to a tooth of a dental arch (col 3, line 36-37), said bracket base having a bracket base surface (external surface that faces the tooth, see figures 1-3);
a bracket body (14) extending from said base (see figure 2), said bracket body having a bracket body surface (outer or exterior surface of the body between the tie wings and the base 12, including the ligature channels 26 and/or 28),
a pair of spaced apart tie wings (tie wings 18/20/22/24) extending from said bracket body (see figures 1-3), each tie wing of said pair of tie wings having a tie wing surface, each of said tie wing surfaces having a margin (see annotated figure 1);
a first identification mark (colorant 32) disposed on one of said bracket surface, tie wing surfaces, or bracket base surfaces (within channel 26 and/or 28, which is part of the bracket surface body, see col 4, lines 29-32);
a second identification mark (33) disposed on one of said bracket surface, tie wing surfaces, or bracket base surfaces (located on the tie wig see figures 1-3);
wherein said first identification mark and said second identification mark each selected from a group of identification marks consisting of an identification mark which identifies placement of said bracket on a tooth in an upper dental arch or a tooth in said lower dental arch; an identification mark which identifies angulation of said bracket body in relation to said bracket base; and an identification mark which identifies bracket body height (wherein the colorant marking 32 extends along the height of the bracket body which is defined by the channel 28 and therefore identifies the height of the bracket body and the marker 33 is positioned on the tie wing 24 such that it can insure bondage to the right tooth, upper or lower as seen in figure 4 the marker distinguishes if the bracket is on an upper or lower tooth by if the marker is positioned adjacent the gingiva, see col 5, lines 14-23); and
said first identification mark and said second identification mark each corresponding to a different one of said identification marks from said group of identification marks (see above).
Regarding claim 9, Pospisil discloses said first identification mark (32) is disposed on said margin of one of said tie wing surfaces; a gingival side of said bracket body surface; or a gingival side of said bracket base surface (a gingival side of the bracket body, more specifically within the gingival ligature channel 28, see col 4, lines 29-32).
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.
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.
Claims 1-2 and 5 are rejected under 35 U.S.C. 103 as being unpatentable over Rahimi (US 2015/0064642) in view of BUKHARY et al (US 2017/0281317).
Regarding claim 1, Rahimi discloses a bracket (bracket system 190A), comprising:
a bracket base (frame 180A) adapted to attach to a tooth of a dental arch (par 62 discloses the frames are bonded to the teeth), said bracket base having a bracket base surface (first surface 9 and second surface 10);
a bracket body (bracket 170) extending from said base (see figure 11), said bracket body (170) having a bracket body surface (16);
a pair of spaced apart tie wings (wing arms 154 A-D) extending from said bracket body (see figure 10), each tie wing of said pair of tie wings having a tie wing surface (see figure 10), each of said tie wing surfaces having a margin (extensions 164A-D);
a second identification mark (course orthogonal markings 132A-K, fine orthogonal markings 134A-L) disposed on one of said bracket surface, tie wing surfaces, or bracket base surfaces (see figures 9-13, the markings are located on a bracket base surface 190) ;
wherein said second identification mark is an identification mark which identifies angulation of said bracket body in relation to said bracket base (par 70 discloses that the markings can be used during both rotation and translational movement of the bracket with respect to the frame/receiving member to register the position of the bracket, this includes the angulation of the bracket relative to the frame member as seen in figure 12);
Rahimi fails to disclose a first identification mark disposed on one of said bracket surface, tie wing surfaces, or bracket base surfaces each selected from a group of identification marks consisting of an identification mark which identifies placement of said bracket on a tooth in an upper dental arch or a tooth in said lower dental arch and an identification mark which identifies bracket body height.
However, Bukhary teaches a first identification mark (second indicia 127) disposed on a tie wing surfaces (127 is located on tie-wing surface 123), the first identification marks (127) being an) identification mark which identifies placement of said bracket on a tooth in an upper dental arch (par 16 discloses the indicia 127 corresponding to the area of the month based on quadrants which includes an upper or lower portion of the dental arch and par 15 discloses the indicia being indicative of the specific tooth in the patient’s mouth designed for attachment).
Therefore, it would be obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify Rahimi to have a first identification mark disposed on one of said tie wing surface each selected from a group of identification marks consisting of an identification mark which identifies placement of said bracket on a tooth in an upper dental arch or a tooth in said lower dental arch and an identification mark which identifies bracket body height, resulting in said first identification mark and said second identification mark each corresponding to a different one of said identification marks from said group of identification marks as taught by BUKHARY for the purpose of providing a visual aid in positioning the bracket on the desired tooth in the desire orientation.
Regarding claim 2, BUKHARY further teaches said first identification mark (127) identifies placement of said bracket on a tooth in an upper dental arch or a tooth in said lower dental arch. (par 16 discloses the indicia being corresponding to a quadrant of placement which can be upper or lower are of the mouth), for the reasons set forth above.
Regarding claim 5, Rahami further discloses said second identification mark identifies angulation of said bracket body in relation to said bracket base (par 70 discloses that the markings can be used during both rotation and translational movement of the bracket with respect to the frame/receiving member to register the position of the bracket, this includes the angulation of the bracket relative to the frame member as seen in figure 12).
Claims 6 and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Rahami in view of BUKHARY et al as applied to claim 1 above, and further in view of Pospisil.
Regarding claim 6 and 8, Rahami/BUKHARY fail to disclose a third identification mark disposed on said margin of one of said tie wing surfaces; a gingival side of said bracket body surface; or a gingival of said bracket base surface and third identification mark identifies bracket body height.
However, Pospisil teaches an indication mark (32) disposed on a gingival side of said bracket body (a gingival side of the bracket body, more specifically within the gingival ligature channel 28, see col 4, lines 29-32), said identification mark identifying a bracket body height (wherein the colorant marking 32 extends along the height of the bracket body which is defined by the channel 28) for the purpose of facilitating positioning of the bracket on a tooth (col 2, lines 35-36).
Therefore, it would be obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention is to modify Rahami/BUKHARY to have a third identification mark disposed on said margin of one of said tie wing surfaces; a gingival side of said bracket body surface; or a gingival of said bracket base surface and third identification mark identifies bracket body height as taught by Pospisil for the purpose of facilitating positioning of the bracket on a tooth.
Double Patenting
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 filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual 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/apply/applying-online/eterminal-disclaimer.
Claims 1-4, 6-7, and 9-11 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 9 and 11 of U.S. Patent No. 12,343,232. Although the claims at issue are not identical, they are not patentably distinct from each other for the following reasons:
Regarding claim 1, the patent discloses a bracket (claim 11, col 10, line 55), comprising:
a bracket base adapted to attach to a tooth of a dental arch, said bracket base having a bracket base surface (claim 11, col 10, line 56-58);
a bracket body extending from said base, said bracket body having a bracket body surface (claim 11, col 10, line 59-60);
a pair of spaced apart tie wings extending from said bracket body, each tie wing of said pair of tie wings having a tie wing surface, each of said tie wing surfaces having a margin (claim 11, col 10, lines 61-63);
a first identification mark disposed on one of said bracket surface, tie wing surfaces, or bracket base surfaces (claim 11, col 10, lines 64-67) ;
a second identification mark disposed on one of said bracket surface, tie wing surfaces, or bracket base surfaces (claim 11, col 11, lines 1-4);
wherein said first identification mark and said second identification mark each selected from a group of identification marks consisting of an identification mark which identifies placement of said bracket on a tooth in an upper dental arch or a tooth in said lower dental arch; an identification mark which identifies angulation of said bracket body in relation to said bracket base; and an identification mark which identifies bracket body height (claim 11, col 11, lines 9-13); and
said first identification mark and said second identification mark each corresponding to a different one of said identification marks from said group of identification marks (see above, each of the first and second identification mark is different).
Regarding claim 2, the patent discloses said first identification mark identifies placement of said bracket on a tooth in an upper dental arch or a tooth in said lower dental arch (claim 11, col 11, lines 9-11).
Regarding claim 3, the patent discloses second identification mark is disposed on said margin of one of said tie wing surfaces; a gingival side of said bracket body surface; or a gingival side of said bracket base surface (claim 11, col 11, lines 1-4).
Regarding claim 4, the patent discloses said second identification mark identifies a bracket body height of said bracket (claim 11, col 11, lines 12-13).
Regarding claim 6, the patent discloses a third identification mark disposed on said margin of one of said tie wing surfaces; a gingival side of said bracket body surface; or a gingival of said bracket base surface (claim 11, col 11, lines 5-8).
Regarding claim 7, the patent discloses said third identification mark identifies angulation of said bracket body in relation to said bracket base (claim 11, col 11, lines 14-15).
Regarding claim 9, the patent discloses said first identification mark is disposed on said margin of one of said tie wing surfaces; a gingival side of said bracket body surface; or a gingival side of said bracket base surface (claim 11, col 10, lines 64-67).
Regarding claim 10, the patent discloses a bracket (claim 9: col 10, line 23), comprising:
a bracket base adapted to attach to a tooth (claim 9: col 10, lines 24-26);
a bracket body extending from the bracket base (claim 9: col 10, lines 27-29);
a pair of spaced apart tie wings extending from said bracket body, each of said pair of tie wings having a tie wing face (claim 9: col 10, lines 30-34);
a first identification mark disposed on one of a gingival margin of said pair of tie wing faces, a gingival side of said bracket body, or a gingival side of said bracket base (claim 9: col 10, lines 35-38) and
wherein said first identification mark identifies placement of said bracket on a tooth in an upper dental arch or a tooth in said lower dental arch (claim 9: col 10, lines 47-49).
Regarding claim 11, the patent discloses a bracket (claim 11, col 10, line 55), comprising:
a bracket base adapted to attach to a tooth in a dental arch, said bracket base having a gingival side (claim 11, col 10, line 56-58);
a bracket body extending from said base and having a gingival side (claim 11, col 10, lines 59-60);
a pair of spaced apart tie wings extending from said bracket body, each of said pair of tie wings having a tie wing face surface extending to a gingival margin (claim 11, col 10, lines 61-63);
a first identification mark on one of said gingival margins of said pair of tie wing face surfaces, said gingival side of said bracket body, or said gingival side of said bracket base (claim 11, col 10, lines 64-67);
a second identification mark on one of said gingival margins of said pair of tie wing face surfaces, said gingival side of said bracket body, or said gingival side of said bracket base (claim 11, col 11, lines 1-4);
a third identification mark on one of said gingival margins of said pair of tie wing face surfaces, said gingival side of said bracket body, or said gingival side of said bracket base (claim 11, col 11, lines 5-8);
wherein said first identification mark identifies placement of said bracket on a tooth in an upper dental arch or a tooth in said lower dental arch (claim 11, col 11, lines 9-11);
said second identification mark identifies bracket height of said bracket (claim 11, col 11, lines 12-13); and
said third identification mark identifies angulation of said bracket body in relation to said bracket base (claim 11, col 11, lines 14-15).
Conclusion
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/S.N.B./Examiner, Art Unit 3772
/HEIDI M EIDE/Primary Examiner, Art Unit 3772
6/29/2026
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