Ex Parte Bellanca et al

Patent Trial and Appeal Board

Jul 26, 2017

13533406 (P.T.A.B. Jul. 26, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O.Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/533,406 06/26/2012 John J. Bellanca 5394.C55US1 8762
104326 7590 07/28/2017
Schwegman Lundberg & Woessner / Zimmer
P.O. Box 2938
Minneapolis, MN 55402
EXAMINER
SAUNDERS, MATTHEW P
ART UNIT PAPER NUMBER
3732
NOTIFICATION DATE DELIVERY MODE
07/28/2017 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
SLW @ blackhillsip.com
USPTO@slwip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOHN J. BELLANCA, DAN P. ROGERS, STEPHEN M.
HERRINGTON, ROSS W. TOWSE, RALPH E. GOODMAN, ZACHARY
B. SUTTIN, ISABEL SCALISE, and MICHAEL BOBBY
Appeal 2016-001341
Application 13/533,4061
Technology Center 3700
Before JEFFREY N. FREDMAN, TIMOTHY G. MAJORS, and
DEVON ZASTROW NEWMAN, Administrative Patent Judges.
NEWMAN, Administrative Patent Judge.
DECISION ON APPEAL
This appeal under 35 U.S.C. § 134 involves claims to an abutment for
use in conjunction with a dental implant. The Examiner entered final
rejections for indefiniteness, anticipation, and obviousness.
We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM.
1 Appellants identify the Real Party in Interest as Biomet 3i, Inc. App. Br. 1.
Appeal 2016-001341
Application 13/533,406
STATEMENT OF THE CASE
Background
“Single tooth restorations present the unique requirement that they
must be supported non-rotationally on an underlying abutment.” Spec. 12.
Typically, a dental implant is implanted into the bone of a
patient’s jaw and comprises a socket, e.g., a bore, which is
accessible through the overlying or surrounding gum tissue for
receiving and supporting one or more attachments or
components which, in turn, are useful to fabricate and support
the prosthodontic restoration. Dental implant procedures may
use a variety of implanting modalities, for example, blade,
threaded implant, or smooth push-in implant.
Id. 13.
Known vertical implant systems . . . still allow the lateral
movement of the abutment in relation to the implant thus causing
the possibility of misalignment. It would be desirable to have an
abutment implant interface that eliminates vertical location
variability. ... it is necessary to develop a system that maintains
the benefits of this type of design, yet eliminates the known
vertical location variability problem. It would also be desirable
for a system to create seals between the abutment and implant.
Id. 17.
“This disclosure relates to restorative dental implants and abutments.”
Id. 11.
The Claims
Claims 1, 4—11, 13—15, and 17—19 are on appeal.
Claims 1, 6, 13, 15 and 19 are illustrative and reads as follows:
1. An abutment for use in conjunction with a dental implant,
the abutment comprising:
a stem;
2
Appeal 2016-001341
Application 13/533,406
a post opposite of the stem;
an interior bore formed through the stem and the post;
an interface section between the post and the stem for
interfacing with the dental implant, the interface section having
an annular radial exterior surface between the post and the stem,
the annular exterior surface having a curved concave transition
surface terminating into a circular flat surface, the stem
extending from the circular flat surface, the circular flat surface
and curved transition surface interfacing with an interior mating
surface of the dental implant including a corresponding convex
surface; and
an annular groove having at least one vertical surface cut
into the circular flat surface to allow compliant fit of the interface
section with the mating interior interface surface of the implant
when the abutment is interfaced with the implant.
App. Br. (Claims Appendix) 15.2
6. A dental implant, an abutment and driver tool for use in
conjunction with an abutment, comprising:
an implant including:
a cylindrical body having an interior bore formed between
a distal end and a proximal end;
an abutment interface on the proximal end of the
cylindrical body, the interface including a flat annular stop
surface circumferentially bordering the interior bore; and
an anti-rotational cavity formed in the interior bore
between the distal end and the abutment interface;
an abutment including:
a stem;
a post opposite of the stem;
an interior bore formed through the stem and the post;
2 The Claims Appendix is not paginated. We refer to the pages herein as if
numbered sequentially continuing from the Appeal Brief.
3
Appeal 2016-001341
Application 13/533,406
an interface section between the post and the stem for
interfacing with the dental implant, the interface section having
an annular radial exterior surface between the post and the stem,
the annular exterior surface having a curved transition surface
terminating into a circular flat surface, the stem extending from
the circular flat surface, the circular flat surface contacting the
flat annular stop surface of the dental implant; and
an annular groove having at least one vertical surface cut
into the circular flat surface to allow compliant fit of the interface
section with the abutment interface of the implant when the
abutment is inserted in the implant; and
an implant driver tool including a tip to hold the dental
implant, wherein the interior bore includes a counter-bore
between the distal end and the anti-rotational cavity, the counter­
bore having a narrower diameter than the anti-rotational cavity
and sufficient to accept the tip of the implant driver tool to hold
the dental implant to the implant driver tool via frictional contact
with the counter-bore.
Id. at 15—16.
13. A dental restoration system comprising:
an implant for attachment to a jaw bone of a patient, the
implant including:
a cylindrical body having an interior bore formed between
a distal end and a proximal end;
an abutment interface on the proximal end of the
cylindrical body, the abutment interface including an interior
convex interface surface and a flat annular stop surface
circumferentially bordering the interior bore;
an anti-rotational cavity formed in the interior bore
between the distal end and the abutment interface; and
an abutment including:
a stem;
a post opposite the stem;
an interior bore formed through the stem and the post; and
4
Appeal 2016-001341
Application 13/533,406
an implant interface section between the post and the stem,
the implant interface section interfacing with the abutment
interface of the dental implant, the implant interface section
including an annular concave exterior surface between the post
and the stem, and a circular flat surface, wherein the circular flat
surface has a groove having a vertical wall extending into the
implant interface section to provide compliant fit when the
annular concave interior surface contacts the convex interior
surface of the abutment interface of the implant and the flat
annular stop surface of the implant interface section contacts the
flat circular stop surface of the abutment interface of the implant
when the abutment is inserted in the implant.
Id. at 17.
15. An abutment for use in conjunction with a dental
implant, the abutment comprising:
a stem;
a post opposite the stem;
an interior bore formed through the stem and the post; and
an interface section between the post and the stem, the
interface section having an exterior surface proximate to the post,
the exterior surface having a concave curved transition surface
terminating into a circular flat surface, the stem extending from
the circular flat surface, an annular groove having a cross section
having at least one vertical surface cut into the circular flat
surface to allow compliant fit of the interface section by lateral
movement of the interface section when contacting a mating
interface surface of the implant and wherein the exterior surface
in combination with the curved transition surface create a
compliant fit with a corresponding annular interior surface of the
implant including a corresponding convex surface.
Id. at 18.
19. An abutment for use in conjunction with a dental
implant, the abutment comprising:
a stem;
a post opposite of the stem;
5
Appeal 2016-001341
Application 13/533,406
an interior bore formed through the stem and the post;
an interface section between the post and the stem, the
interface section having an annular radially curved concave
exterior surface proximate to the post, the annular radially curved
concave exterior surface for interfacing with an interior annular
convex surface of the dental implant; and
a circular flat surface having an annular groove having at
least one vertical wall to allow compliant fit of the interface
section, the interface section terminating into the circular flat
surface.
Id.
The Issues
The following rejections are before us to review:
Claims 6—11, 13, and 14 are rejected under 35 U.S.C. § 112(b) or
35 U.S.C. § 112 (pre-AlA), second paragraph, as indefinite. Final Act. 2.3
Claims 1, 13, 14, 15, and 19 are rejected under pre-AlA 35 U.S.C.
§ 102(b) as anticipated by Sager.4 Id. at 3.
Claims 5—10 and 18 are rejected under pre-AlA 35 U.S.C. § 103(a) as
obvious over Sager and Hurson.5 Id. at 8.
Claims 4 and 17 are rejected under pre-AlA 35 U.S.C. § 103(a) as
obvious over Sager and O’Brien.6 Id. at 12.
Claim 11 is rejected under pre-AlA 35 U.S.C. § 103(a) as obvious
over Sager, Hurson, and Porter.7 Id.
FINDINGS OF FACT
3 Examiner’s Final Action, mailed October 8, 2014.
4 US 6,315,563 Bl, issued Nov. 13, 2001 (“Sager”)
5 US 2008/0261176 Al, pub. October 23, 2008 (“Hurson”)
6 US 6,168,436, issued Jan. 2 2001 (“O’Brien”)
7 US 2004/0101808 Al, pub. May 27, 2004 (“Porter”)
6
Appeal 2016-001341
Application 13/533,406
FF1. Figure 3 of Sager discloses a dental abutment system:
Figure 3 depicts an embodiment of a dental implant and abutment. Element
32 is an abutment. Sager 5:35. Element 10 is a base member for use as a
single tooth implant. Id. at 5:10—12. Element 56 is an O-ring of
compressible material. Id. at 6:32—33.
FF2. The Examiner finds that components 32, 10, and 56 together comprise
an abutment for use in conjunction with a dental implant, “wherein [the]
implant is not positively claimed as a part of the claimed abutment.” Final
Act. 4.
FF3. The Examiner finds that Sager teaches an abutment comprising:
a stem (combination of 42, 46, 38, 50);
a post 33 opposite of the stem (combination of 42, 46, 38,
50);
7
Appeal 2016-001341
Application 13/533,406
an interior bore formed through the stem and the post (Col.
2, lines 17—20);
an interface section (near “32” in figure 3) between the
post 33 and the stem ... for interfacing with the dental implant
(at least a lower portion 36 and/or 52 of interface section if for
interfacing with the dental implant), the interface section having
an annular radial exterior surface between the post and the stem
(outer surface near “32” in figure 3), the annular exterior surface
having a curved concave transition surface (see figure 3)
terminating into a circular flat surface 36, the stem... extending
from the circular flat surface (extending at least indirectly), the
circular flat surface 36 and curved transition surface interfacing
with an interior mating surface of the dental implant including a
corresponding convex surface (surface of 56; figure 4; and an
annular groove 52 having at least one vertical surface cut into the
circular flat surface 36.
Final Act. 4; citing Sager 2:17—20 and Figures 3, 4.
FF4. The Examiner finds that Figure 4 shows the abutment is capable of
“compliant fit of the interface section with the mating interior interface
surface of the implant when the abutment is interfaced with the implant.”
Final Act. 4.
FF5. The Examiner finds that Sager discloses a dental restoration system
comprising:
an implant 10 for attachment to a jaw bone of a patient, the
implant including:
a cylindrical body 16 having an interior bore 11/14 formed
between a distal end and a proximal end;
an abutment interface 22/56 on the proximal end of the
cylindrical body, the abutment interface including an interior
convex interface surface 56 and a flat annular stop surface 22
circumferentially bordering the interior bore;
8
Appeal 2016-001341
Application 13/533,406
an anti-rotational cavity 26 formed in the interior bore
between the distal end and the abutment interface; and
an abutment 32 including:
a stem (combination of 42, 46, 38, 50);
a post 33 opposite of the stem (combination of 42, 46, 38,
50);
an interior bore formed through the stem and the post (Col.
2, lines 17—20); and an implant interface section (near “32” in
figure 3) between the post and the stem, the implant interface
section interfacing with the abutment interface of the dental
implant (52 interfaces with 56; 36 interfaces with 22), the
implant interface section including an annular concave exterior
surface 52 between the post and the stem, and a circular flat
surface 36, wherein the circular flat surface has a groove 52
having a vertical wall extending into the implant interface
section.
Final Act. 5; citing Sager 2:17—20; Figures 3, 4.
FF6. The Examiner finds that Sager discloses “compliant fit when the
annular concave interior surface contacts the convex interior surface of the
abutment interface of the implant (capable of being used in this manner) and
the flat annular stop surface 36 of the implant interface section contacts the
flat circular stop surface 22 of the abutment interface of the implant when
the abutment is inserted in the implant.” Final Act. 5—6.
FF7. The Examiner finds that Sager discloses:
an abutment 32 for use in conjunction with a dental implant (such
as combination of 10 and 56, wherein implant is not positively
claimed as a part of the claimed abutment), the abutment
comprising:
a stem (combination of 42, 46, 38, 50);
9
Appeal 2016-001341
Application 13/533,406
a post 33 opposite of the stem (combination of 42, 46, 38,
50);
an interior bore formed through the stem and the post (Col.
2, lines 17—20);
an interface section (near “32” in figure 3) between the
post 33 and the stem, the interface section having an exterior
surface proximate to the post (see figure 3), the exterior surface
having a concave curved transition surface (near “32” in figure
3) terminating into a circular flat surface 36, the stem extending
from the circular flat surface (extending at least indirectly from
the circular flat surface 36), an annular groove 52 having a cross
section having at least one vertical surface cut into the circular
flat surface.
Final Act. 6; citing Sager 2:17—20 and Figure 3.
FF8. The Examiner finds Sager discloses that the abutment is capable of
compliant fit of the interface section by lateral movement of the
interface section when contacting a mating interface surface of
the implant. . . and wherein the exterior surface in combination
with the curved transition surface create a compliant fit with a
corresponding annular interior surface of the implant including
a corresponding convex surface.
Final Act. 6—7, citing Sager Figure 4.
FF9. The Examiner finds that Sager discloses that the abutment’s annular
radially curved concave exterior surface can interface with an interior
annular convex surface of the dental implant, and the annular groove allows
compliant fit of the interface section, which terminates into the circular flat
surface 36. Final Act. 6—7, citing Sager Figures 3, 4.
FF10. The Examiner finds Sager discloses a dental implant and an
abutment, comprising:
10
Appeal 2016-001341
Application 13/533,406
an implant (combination of 10 and 56) including:
a cylindrical body 16 having an interior bore 11/14 formed
between a distal end and a proximal end;
an abutment interface (22 and/or 56) on the proximal end
of the cylindrical body, the interface including a flat annular stop
surface 22 circumferentially bordering the interior bore; and
an anti-rotational cavity 26 formed in the interior bore
between the distal end and the abutment interface;
an abutment 32 including:
a stem (combination of 42, 46, 38, 50);
a post 33 opposite of the stem (combination of 42, 46, 38,
50);
an interior bore formed through the stem and the post (Col.
2, lines 17-20);
an interface section (near “32” in figure 3) between the
post and the stem for interfacing with the dental implant (52
interfaces with 56; 36 interfaces with 22), the interface section
having an annular radial exterior surface between the post and
the stem (outer surface near “32” in figure 3), the annular exterior
surface having a curved transition surface (near “32” in figure 3)
terminating into a circular flat surface 36, the stem extending
from the circular flat surface (extending at least indirectly), the
circular flat surface 36 contacting the flat annular stop surface 22
the dental implant 10; and
an annular groove 52 having at least one vertical surface
cut into the circular flat surface 36 to allow compliant fit of the
interface section with the abutment interface of the implant when
the abutment is inserted in the implant (figure 4).
Final Act. 8—9; citing Sager 2:17—20 and Figures 3, 4.
FF11. The Examiner finds Sager discloses “a cavity (near “46” in figure 4)
having an anti-rotational interior wall for attachment to an abutment.” Final
Act. 13, citing Sager Figure 4.
11
Appeal 2016-001341
Application 13/533,406
FF12. The Examiner finds Hurson discloses:
an implant and abutment being provided with an implant driver
tool 300 (figures 7 A-C) for use in conjunction with an abutment,
the implant having an interior bore (figure 78) the implant driver
tool including a tip to hold the dental implant (figure 78), wherein
the interior bore includes a counter-bore 77 between the distal
end and the anti-rotational cavity, the counter-bore having a
narrower diameter than the anti-rotational cavity and sufficient
to accept the tip of the implant driver tool to hold the dental
implant to the implant driver tool via frictional contact with the
counter-bore (paragraph 0090).
Final Act. 10; citing Hurson Figures 7, A-C, Figure 78 and 190.
FF13. O’Brien discloses:
In an intermediate portion of the body portion 116 of abutment
collar 110, within the through bore 13 there is a portion 118
having internal threads 14 formed therein. The threaded
opening portion 118 of through bore 13 is dimensioned to
permit the threaded portion 15 of fixation screw 120 to pass
therethrough. The internal threads 14 are utilized by the dental
professional when it is desired to separate the abutment collar
110 from the implant body 90 at some time subsequent to the
abutment collar having been secured to the implant body.
O’Brien 6:16—26. The Examiner finds O’Brien discloses that the circular
threads 14 indicate the interior bore is capable of being used to accept an
abutment removal tool. Final Act. 12.
FF14. The Examiner finds that Figure 6B of Porter discloses “a cavity of an
implant forming a double sided hexagonal socket 28 for attachment to an
abutment.” Final Act. 13.
12
Appeal 2016-001341
Application 13/533,406
INDEFINITENESS
The Examiner rejects claims 6—11, 13, and 14 as indefinite. The
Examiner finds that, with respect to claim 6, “it is unclear if the abutment
that the driver tool is for use with is the same as the abutment that is
positively claimed as part of the claimed invention.” Final Act. 2. The
Examiner further finds that claim 13 has insufficient antecedent basis for the
limitation “the annular concave interior surface” in lines 18—19 of the
claims. Id. at 3.
Appellants raise no argument on appeal regarding this rejection;
therefore, we summarily affirm the rejection. See 37 C.F.R.
§ 41.37(c)(l)(iv) (requiring that “arguments shall explain why the examiner
erred as to each ground of rejection . . . [and that] any arguments or
authorities not included in the appeal brief will be refused consideration by
the Board”); see also Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)
(precedential) (“If an appellant fails to present arguments on a particular
issue—or, more broadly, on a particular rejection—the Board will not, as a
general matter, unilaterally review those uncontested aspects of the
rejection”).
Conclusion of Law
We affirm the rejection of claims 6—11, 13, and 14 as indefinite.
ANTICIPATION
The Examiner has rejected claims 1, 13—15, and 19 as anticipated by
Sager. Appellants argue independent claims 1, 13, 15, and 19 collectively
and we respond accordingly. See App. Br. 9-10.
13
Appeal 2016-001341
Application 13/533,406
The issue with respect to this rejection is whether a preponderance of
the evidence supports the Examiner’s conclusion that Sager anticipates
claims 1, 13—15, and 19.
The Examiner finds that Sager teaches every element of claims 1, IS­
IS, and 19. Final Act. 4—7. We adopt as our own the Examiner’s findings
of fact, reasoning on scope and content of the prior art, and conclusions set
out in the Final Action. SeeYFl—10. We conclude that the Examiner has
established a prima facie case that the claims would have been anticipated
by Sager. Appellants have not produced evidence showing, or persuasively
argued, that the Examiner’s determinations are incorrect. Only those
arguments made by Appellants in the Briefs have been considered in this
Decision. Arguments not presented in the Briefs are waived. See 37 C.F.R.
§ 41.37(c)(l)(iv) (2015).
Appellants argue that Sager does not anticipate the claims, which
recite a “single piece abutment” and a “single piece implant” having
complementary surfaces. App. Br. 8. Appellants further argue the “annular
groove 324 allows the interface section of the implant to be flexed in order
to insure a compliant fit with the implant.” Id. As noted by the Examiner,
however, the limitations “single piece abutment,” “single piece implant,”
and “allows the interface section of the implant to be flexed in order to
insure a compliant fit with the implant” are not found in the claim language.
See Ans. 2; see also Super Guide Corp. v. DirecTV Enters., Inc., 358 F.3d
870, 875 (Fed. Cir. 2004). (“Though understanding the claim language may
be aided by the explanations contained in the written description, it is
important not to import into a claim limitations that are not a part of the
claim.”). Accordingly, we are not persuaded by these arguments.
14
Appeal 2016-001341
Application 13/533,406
Appellants next argue that “Sager does not disclose an abutment
having a concave interface surface that is in contact with a convex interface
surface of an implant.” App. Br. 9. According to Appellants, because
the Sager interface between the base member 10 (implant) and
the abutment 32 includes O-ring 56 that separates base member
(implant) seal surface 22 and an abutment seal surface 36 . . . [,
the] implant 10 therefore includes a convex interface surface
shown as element 22. The abutment 32 does not disclose the
corresponding elements in the claims because Sager uses an
intervening component, the O-ring 56 to seal the implant 10 and
the abutment 32, and is therefore a different shape.
Id. Appellants conclude that due to the position of the O-ring between the
abutment and implant, “the seal surface 22 of the base member 10 and seal
surface 36 of the abutment 32 cannot be in contact with each other.” Id.
Appellants further argue Sager teaches the “the opposite of the recited
concave interface surface” of the claims because the base member and the
abutment both have a convex shaped contact surface to sandwich the O-ring,
and the surface of the implant has a positive lock with a convex shape. Id. at
9-10.
Appellants further argue the Examiner incorrectly finds Sager’s
disclosed abutment “includes a curved concave interface interfacing with a
corresponding convex interface surface 56.” Id. at 10. According to
Appellants, the O-ring “is a separate component as shown in Fig. 3 and is
therefore not part of the abutment 32 in Sager.” Id. In reply, Appellants
further argue the skilled artisan “would not read Sager as including an O-
ring as part of either the abutment or the implant” because Sager discloses
the abutment, basement and O-ring as individual components and “[t]he
assembly description in Sager describes the separate O-ring 56 as a separate
15
Appeal 2016-001341
Application 13/533,406
component that is inserted between the base member 10 and the abutment
32.” Id.
The Examiner responds that claims 1,15, and 19 of the argued
independent claims do not recite the limitation “fit within an interface
surface of an implant.” Ans. 2. The Examiner further responds that the
structures disclosed by Sager show the abutment “would be capable of
performing such a ‘contact with a convex surface’ with a dental implant as
well as the abutment itself recited in the independent claims of 1, 15 and
19.” Ans. 3. The Examiner provides an annotated drawing as shown below:
least one: vertfcsf surface
, Interface
| section
Id. The Figure above shows the abutment of the interface sections of Sager
on the left and Figure 3c abutment of Appellants’ claimed invention on the
right.
With regard to claim 13, the Examiner responds that “the O-ring
surface 56 of Sager which is included inside the abutment interface of the
implant shown in at least figures 3 and 4 of Sager” meets the claim
limitation “the abutment interface including an interior convex interface
surface.” The Examiner further responds that:
16
Appeal 2016-001341
Application 13/533,406
Appellant has appeared to reverse the meaning of the
terms “concave” and “convex” on page 10 in lines 1—13, by
stating that element 48 of Sager is “convex” however it is
concave and receives element 56 to thus form the “convex” inner
surface that forms a compliant fit with a concave element 52 of
the abutment of Sager thus meeting the limitations of claim 13.
Id. at 4—5.
In reply, Appellants acknowledge that the Examiner “correctly noted
that the terms ‘convex’ and ‘concave’ have been interchanged in the initial
Brief’ and “requests that the Board issue an opinion including an explicit
statement under 37 C.F.R. § 41.50(c) that claims 1, 13, 15 and 19 be
amended to switch the term concave with convex and the term convex with
concave.” Reply Br. 2.
We note that 37 C.F.R. § 41.50(c)8 does not apply to the
circumstances in this matter and decline the invitation to issue an opinion as
requested or address the arguments made in support of Appellants’ proposed
amended claim 13, which is not properly before us. See Reply Br. 3.
37 C.F.R. § 41.50(c) provides:
Review of undesignated new ground of rejection. Any request
to seek review of a panel’s failure to designate a new ground of
rejection in its decision must be raised by filing a request for
rehearing as set forth in § 41.52. Failure of appellant to timely
file such a request for rehearing will constitute a waiver of any
arguments that a decision contains an undesignated new ground
of rejection.
17
Appeal 2016-001341
Application 13/533,406
With regard to the Appellants’ argument that “the abutment is fit
within an interface surface of an implant” (e.g. App. Br. 9), we find the
Examiner is correct that claims 1,15, and 19 of the argued independent
claims do not recite this limitation and we agree that argument is not
persuasive with regard to these claims. Super Guide Corp., 358 F.3d at 875.
For claims 1,15, and 19, we agree that the Examiner’s comparison of Sager
on the left and Figure 3c abutment of Appellants’ claimed invention on the
right above illustrates that Sager’s disclosed structure is capable of
performing the recited contact, e.g., “interfacing with an interior mating
surface of the dental implant including a corresponding convex surface” as
recited in claim 1, and affirm the rejection of these claims.
With regard to claim 13, we begin by construing “including an interior
convex interface surface.” The Specification does not define “including.”
Accordingly, we apply the broadest reasonable interpretation. See In re Am.
Acad, of Science Tech Center, 367 F.3d 1359, 1364 (Fed. Cir. 2004) (“The
Patent and Trademark Office (‘PTO’) determines the scope of claims in
patent applications not solely on the basis of the claim language, but upon
giving claims their broadest reasonable construction ‘in light of the
specification as it would be interpreted by one of ordinary skill in the art.’”).
We find that the broadest reasonable interpretation of this language requires
that “including an interior convex interface surface” does not limit the
abutment interface surface to only the interior convex interface surface and
flat annular stop surface, but requires only that those two components are
present. We agree with the Examiner that a skilled artisan would reasonably
use an O-ring, which is well known as a component to ensure tight-fitting
seals, in the abutment interface surface, including to provide an “interior
18
Appeal 2016-001341
Application 13/533,406
convex interface surface” and that furthermore the O-ring “is within/inside
of [the adjoining] structures and does not stop them from contacting while
[the O-ring] provides the convex compliant fit with the ‘annular concave
interior surface’ of element 52 of Sager.” Ans. 4.
Appellants next argue that claims 1 and 15 are additionally allowable
over Sager because “Sager does not disclose an ‘annular exterior surface
having a curved concave transition surface terminating into a circular flat
surface’ as recited by these claims.” App. Br. 10. Instead, Appellants argue,
the transition surface of Sager “terminates in a vertical surface that serves as
the transition to the circular flat surface 36 [and] it is actually an edge at a
right angle.” Id. at 11.
The Examiner responds that “the limitation is broad enough to read on
the structure of Sager which does have a curved/concave transition surface
that terminates into the circular flat surface as the portion that appellant
argues as being vertical is a portion of the concave/curved transitioning
surface.” Ans. 3^4.
We are persuaded by the Examiner’s position. The Specification does
not define “a curved concave transition surface” and we find that the
broadest reasonable interpretation of “a curved concave transition surface
terminating into a circular flat surface” is a transition surface that is at least
in part curved and concave because Figure 3 of the Specification shows a
transition surface that is only partially curved. See Fig. 3A-3C. Am. Acad,
of Science Tech Center, 367 F.3d at 1364. Sager’s transition surface is
partly curved and concave. See Sager Figure 4.
Appellants have not provided persuasive arguments or evidence that,
when considered together with the Examiner’s reasonable fact-based
19
Appeal 2016-001341
Application 13/533,406
conclusions, persuade us that the claims are not anticipated by Sager.
Accordingly we affirm the rejection of claims 1, 13, 15, and 19.
Conclusion
We affirm the rejection of claims 1, 13, 15, and 19. Claim 14 was not
argued separately and therefore falls with claim 13. 37 C.F.R.
§41.37(c)(l)(iv).
OBVIOUSNESS
Rejection over Sager and Hurson
The Examiner rejected claims 5—10 and 18 as obvious over Sager and
Hurson. The Examiner finds that Sager discloses all elements of claim 6
except that
Sager is silent regarding an implant driver tool for use in
conjunction with an abutment, the implant driver tool including
a tip to hold the dental implant, wherein the interior bore includes
a counter-bore between the distal end and the anti-rotational
cavity, the counter-bore having a narrower diameter than the
antirotational cavity and sufficient to accept the tip of the implant
driver tool to hold the dental implant to the implant driver tool
via frictional contact with the counterbore.
Final Act. 9.
The Examiner finds Hurson discloses an “implant and abutment being
provided with an implant driver tool.... for use in conjunction with an
abutment” that has the claimed features of an interior bore and implant
driver tool that holds the dental implant, and that the
interior bore includes a counter-bore 77 between the distal end
and the anti-rotational cavity, the counter-bore having a narrower
diameter than the anti-rotational cavity and sufficient to accept
the tip of the implant driver tool to hold the dental implant to the
implant driver tool via frictional contact with the counter-bore.
20
Appeal 2016-001341
Application 13/533,406
Id. at 10.
The Examiner concludes it would have been obvious to modify Sager
by adding the implant driver tool taught by Hurson “for the purpose [of]
allowing the implant to be easily inserted into position in a jaw bone.” Id.
The issue with respect to this rejection is whether a preponderance of
the evidence supports the Examiner’s conclusion that Sager and Hurson
suggest the subject matter of claims 5—10 and 18.
We select claim 6 as representative of the subject matter of this
rejection. We conclude that the Examiner has established a prima facie case
that Sager and Hurson suggest the subject matter of claim 6. FF1—10, FF12.
Appellants have not produced evidence showing, or persuasively argued,
that the Examiner’s determinations are incorrect. We address Appellants’
arguments below.
Appellants reiterate their previous argument that Sager “does not
disclose an abutment including a curved transition surface terminating into a
circular flat surface.” App. Br. 11. Appellants further assert Hurson does
not remedy the deficiency of Sager. Id. For the reasons above, we are not
persuaded, and find that Sager teaches this claim element. Accordingly, we
affirm the rejection of claim 6. Claims 5, 7—10 and 18 were not separately
argued and we affirm their rejection.
Conclusion of Law
We affirm the rejection of claims 5—10 and 18.
21
Appeal 2016-001341
Application 13/533,406
Rejection over Sager and O ’Brien
The Examiner rejected claims 4 and 17 as obvious over Sager and
O’Brien. The Examiner finds that Sager “discloses the claimed invention
substantially as claimed, as set forth above for claims 1 and 15” but “is silent
regarding the abutment having a circular groove in the interior bore in the
post to accept an abutment removal tool.” Final Act. 12.
The Examiner finds O’Brien teaches “an abutment having a circular
groove in an interior bore in a post of the abutment to accept an abutment
removal tool” or is “at least capable of being used in this manner.” Id.
The Examiner concludes it would have been obvious
to modify Sager by providing the abutment with a circular
groove in the interior bore in the post to accept an abutment
removal tool, as taught by O’Brien, for the purpose of allowing
the dental professional to easily separate the abutment from the
implant at some time subsequent to the abutment having been
secured to the implant.
Id.
The issue with respect to this rejection is whether a preponderance of
the evidence supports the Examiner’s conclusion that Sager and Hurson
suggests the subject matter of claims 4 and 17.
We conclude that the Examiner has established a prima facie case that
Sager and O’Brien suggest the subject matter of claims 4 and 17. FF1—10,
FF13. Appellants rely on their prior arguments regarding claims 1 and 15.
For the reasons discussed above, those arguments are unpersuasive and we
affirm the rejection of claims 4 and 17.
22
Appeal 2016-001341
Application 13/533,406
Conclusion of Law
We affirm the rejection of claims 4 and 17.
Rejection over Sager, Hurson and Porter
The Examiner rejected claim 11 over Sager, Hurson and Porter. The
Examiner finds that Sager “discloses the claimed invention substantially as
claimed, as set forth above for claim 6.” Final Act. 13. The Examiner
further finds Sager discloses a “cavity having an anti-rotational interior wall
for attachment to an abutment.” Id. The Examiner finds Sager and Hurson
are “silent regarding anti-rotational interior wall [that] forms a double sided
hexagonal socket” but finds that “Porter teaches a cavity of an implant
forming a double sided hexagonal socket 28 for attachment to an abutment
(figure 68).”
The Examiner concludes it would have been obvious “to modify
Sager/Hurson by making the anti-rotational interior wall forming a double
sided hexagonal socket, as taught by Porter, for the purpose of providing a
shape of the interior socket that provides a more effective anti-rotational fit
between the parts.” Id.
The issue with respect to this rejection is whether a preponderance of
the evidence supports the Examiner’s conclusion that Sager, Hurson, and
Porter suggest the subject matter of claim 11.
We conclude that the Examiner has established a prima facie case that
Sager, Hurson, and Porter suggest the subject matter of claim 11. FF1—11,
FF14.
23
Appeal 2016-001341
Application 13/533,406
Appellants rely on their prior arguments regarding claim 6. For the
reasons discussed above, those arguments are unpersuasive and we affirm
the rejection of claim 11.
Conclusion of Law
We affirm the rejection of claim 11.
SUMMARY
The rejection of claims 6—11, 13 and 14 under 35 U.S.C. § 112(b) or
35 U.S.C. § 112 (pre-AIA), second paragraph, as indefinite, is affirmed.
The rejection of claims 1, 13, 14, 15, and 19 are rejected under pre-
AIA 35 U.S.C. § 102(b) as anticipated by Sager, is affirmed.
The rejection of claims 5—10 and 18 are rejected under pre-AIA
35 U.S.C. § 103(a) as obvious over Sager and Hurson is affirmed.
The rejection of claims 4 and 17 are rejected under pre-AIA 35 U.S.C.
§ 103(a) as obvious over Sager and O’Brien is affirmed.
The rejection of claims 11 is rejected under pre-AIA 35 U.S.C.
§ 103(a) as obvious over Sager, Hurson, and Porter is affirmed.
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
24