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 § 102
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 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.
Claim 1 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Brawn et al 20180014924.
With regard to claim 1, Brawn et al discloses a morphogenetic bone accelerator (MBA) comprising: one or more portions 1111 (see fig. 18B) that emit radiation at one or more frequencies (see paragraph 181, light emitters 1111 inherently emit radiation at one or more frequencies) on one or more locations inside a patient's mouth, wherein at least 90% of the radiation is emitted horizontally within 2.5 millimeters from the patient's intraoral hard and soft tissues. Figure 18B clearly shows the radiation being emitted horizontally (see horizontal arrows), and all of it appears to be horizontal which means that at least 90% of it is horizontal. Further, Brawn et al clearly shows in fig. 18B and discloses in paragraph 181 that the portions 1111 contact both the soft tissue T, as well as the hard tissue. Thus, the radiation is emitted within 2.5mm from the hard and soft tissues.
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.
Claims 2-3 are rejected under 35 U.S.C. 103 as being unpatentable over Brawn et al 20180014924 in view of Morreale et al 20210085993.
With regard to claim 2, Brawn et al does not disclose wherein the radiation comprises X-rays having a radiation power range of between 10 and 200 kilovolts (kV).
Morreale et al discloses a device that delivers beneficial radiation to an oral cavity, and discloses that the radiation may come from various sources, including x-rays. See paragraph 10.
It would have been obvious to one skilled in the art to utilize x-rays as the radiation source in the device of Brawn et al, in view of the teaching of Morreale et al that delivering x-ray radiation to the oral cavity is beneficial to the tissues of the oral cavity.
With further regard to claim 2, Brawn et al/Morreale et al do not specifically disclose an x-ray power range of between 10 and 200 kV. However, it is noted that Morreale et al discloses that the radiation may be emitted at various power levels. See paragraph 13.
Further, it appears that one skilled in the art would have had a reasonable expectation of success in selecting the x-ray radiation power to be within the claimed range, as it only involves adjusting the power to accommodate a particular use, as taught by Morreale et al. Therefore, it would have been obvious to one skilled in the art to select the x-ray radiation power level to be between 10 and 200 kV, as a matter of routine optimization, since it has been held that "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA1955).
With regard to claim 3, Brawn et al/Morreale et al do not explicitly disclose that an angle of the X-rays varies in a transverse dimension from between 25 and 90 degrees, and wherein an angle of the X-rays varies in a sagittal dimension from between 110 and 180 degrees. However, it is noted in paragraph 259 of Brawn et al that an angle of emitted radiation may vary, and be selected from a wide variety of angle sizes.
Further, it appears that one skilled in the art would have had a reasonable expectation of success in selecting the angle of the x-ray radiation to vary in a transverse dimension from between 25 and 90 degrees, and to vary in a sagittal dimension from between 110 and 180 degrees, as it only involves adjusting the angle of radiation to accommodate a particular use, as taught by Brawn et al. Therefore, it would have been obvious to one skilled in the art to select angle of the X-rays to vary in a transverse dimension from between 25 and 90 degrees, and to vary in a sagittal dimension from between 110 and 180 degrees, as a matter of routine optimization, since it has been held that "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA1955).
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Morreale et al 20210085993.
With regard to claim 4, Morreale et al discloses a method for facilitating movement and/or alignment of teeth (the recitation “for facilitating movement and/or alignment of teeth” is considered to be purely functional in nature, and since Morreale et al discloses applying x-ray radiation to the oral cavity, this recited function is considered to be inherently met), the method comprising: directing x-rays of different power levels to a patient’s jawbone (see paragraph 13 where Morreale et al discloses that x-rays may be delivered at various power levels in separate steps.
Morreale et al does not disclose the power levels to be one or more low-energy surface X-rays; and one or more medium and deep X-ray, wherein the one or more low-energy surface X-rays have a radiation power range of between 10 to 100 kilovolts (kV), and wherein the one or more medium and deep X-rays have a radiation power range of between 120 to 200 kV. However, it is noted that Morreale et al discloses that the radiation may be emitted at various power levels. See paragraph 13.
Further, it appears that one skilled in the art would have had a reasonable expectation of success in selecting the x-ray radiation power to be within the claimed ranges, as it only involves adjusting the power to accommodate a particular use, as taught by Morreale et al. Therefore, it would have been obvious to one skilled in the art to select the one or more low-energy surface X-rays to have a radiation power range of between 10 to 100 kilovolts (kV), and the one or more medium and deep X-rays to have a radiation power range of between 120 to 200 kV, as a matter of routine optimization, since it has been held that "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA1955).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NICHOLAS D LUCCHESI whose telephone number is (571)272-4977. The examiner can normally be reached M-F 800-430.
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.
/NICHOLAS D LUCCHESI/Primary Examiner, Art Unit 3772
