Ex Parte Andreiko

Patent Trial and Appeal Board

Feb 21, 2013

10528036 (P.T.A.B. Feb. 21, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte CRAIG A. ANDREIKO
__________

Appeal 2011-005196
Application 10/528,036
Technology Center 3700
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Before DONALD E. ADAMS, ERICA A. FRANKLIN,
JACQUELINE WRIGHT BONILLA, Administrative Patent Judges.

FRANKLIN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) involving claims to
methods of providing a custom orthodontic appliance. The Patent Examiner
rejected the claims as obvious. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.
STATEMENT OF THE CASE
Claims 26-28 and 45-51 are on appeal. Claim 26 is representative and
reads as follows:

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26. A method of providing a custom orthodontic appliance for
treatment of a patient, the method comprising:
maintaining a database, accessible by a computer, and containing data
related to each of a plurality of orthodontic practitioners;
storing in the database, information identifying each of the
practitioners of the plurality and information relating to treatment plan
options including default preferences as to orthodontic prescriptions
associated with each of the respective practitioners;
receiving information from an orthodontic practitioner of the plurality
for providing a custom orthodontic appliance for a patient;
in response to the information from the orthodontic practitioner,
determining parameters for the configuration of a custom orthodontic
appliance for the patient based at least in part on the stored treatment plan
options associated with the orthodontic practitioner; and
providing to the orthodontic practitioner an orthodontic appliance
design for the patient having a configuration that includes the determined
parameters.

The Examiner rejected claims 26-28 and 45-51 under 35 U.S.C. §
103(a) as unpatentable over Sachdeva
1
and DeBusk.
2

OBVIOUSNESS
The Examiner’s position is that Sachdeva taught a method of
providing a custom orthodontic appliance comprising: maintaining a
database, accessible by a computer; storing in the database information
identifying information relating to treatment plan options, including
information about prescriptions; determining parameters for the
configuration of a custom orthodontic appliance for the patient; and

1
US Patent No. 6,315,553 B1 issued to Rohit Sachdeva et al., Nov. 13,
2001.
2
US Patent No. 5,991,728 issued to Brian C. DeBusk et al., Nov. 23, 1999.
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providing to the practitioner an orthodontic appliance design for the patient
having a configuration that includes the determined parameters. (Ans. 3-4.)
However, the Examiner found that Sachdeva did not teach the steps of
maintaining a database containing data related to each of a plurality of
practitioners and information identifying the practitioners and information
relating to treatment plan options including default preferences as to
orthodontic prescriptions associated with each or the respective practitioners.
(Id. at 4.)
Turning to DeBusk, the Examiner found that the reference taught a
method comprising maintaining a database, accessible by computer,
containing data related to each of a plurality of practitioners, and storing in
the database information identifying the practitioners and information
relating to treatment plan options including default preferences associated
with the respective practitioners. (Id.) According to Examiner, it would
have been obvious to a person of ordinary skill in the art at the time the
invention was made to have modified the database of Sachdeva to include
data related to a plurality of practitioners, including default preferences
associated with the respective practitioners, as a matter of obvious design
choice to reduce the number of databases needed in a practice containing
multiple practitioners. (Id.)
Appellant contends that DeBusk did not disclose using a database
containing “treatment plan options including default preferences as to
orthodontic prescriptions” associated with each of a plurality of
practitioners. (App. Br. 6-7.) Rather, Appellant asserts that DeBusk
disclosed a system configured to create procedural templates including a list
of anticipated supplies which are to be used during a particular medical
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procedure, wherein the list may be customized based on preferences of
individual doctors. (Id. at 5.)
We agree with Appellant. DeBusk did not teach or suggest storing, in
a database, information relating to treatment plan options including default
preferences as to orthodontic prescriptions associated with each of a
plurality of practitioners. Notably, DeBusk is directed to “a computer
implementable method and system for tracking and profiling supply usage at
the procedural level in the health care field” (DeBusk col. 1, ll. 8-12) and not
to the development of treatment plans. The default preferences of the
practitioners stored in the system of DeBusk related to the supplies desired
for a particular medical procedure. (Id. at col. 15, ll. 1-16.) DeBusk
described developing such supply lists into “Conditional Bundles,” which
were “simply groups of supplies which are not included in the standard
procedural bill of materials due to their dependence upon conditions such as
who is performing the procedure.” (Id. at col. 15, ll. 9-13.) The Examiner
has not established that the development of such bundles amounted to
information relating to treatment plan options including default preferences
as to orthodontic prescriptions associated with the respective practitioners.
(See Ans. 4, 8, 9.)
Moreover, we do not find that the Examiner has established that
Sachdeva taught this missing limitation. In the Response to Argument, the
Examiner stated, “while … DeBusk is used to teach this limitation…
Sachdeva does teach storing treatment plans of previous treated patients in a
database, which would be default preferences with respect to the patient’s
condition.” (Ans. 8.) We disagree with the Examiner. Stored treatment
plans of previous patients are not “default preferences.” Rather, they are
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merely case histories. The Examiner has not established that the teaching in
DeBusk to match a current patient’s condition to one of these histories
stored in the database, or even to “incorporate[e] the stored treatment plan
into a new treatment plan if a match is not found” (see Ans. 8) involved any
default preference of a practitioner, as opposed to the simple application of a
known treatment plan to a current patient profile.
Accordingly, we reverse the obviousness rejection.

REVERSED

cdc