Ex Parte Bergersen

Board of Patent Appeals and Interferences

Jul 11, 2011

10449312 (B.P.A.I. Jul. 11, 2011)

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.
10/449,312 05/30/2003 Earl O. Bergersen BER-P-03-043 6385
7590 07/11/2011
PATENTS+TMS, P.C.
2849 W. Armitage Ave.
Chicago, IL 60647
EXAMINER
LEWIS, RALPH A
ART UNIT PAPER NUMBER
3732
MAIL DATE DELIVERY MODE
07/11/2011 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
________________

Ex parte EARL O. BERGERSEN
________________

Appeal 2009-009605
Application 10/449,312
Technology Center 3700
________________

Before STEVEN D.A. McCARTHY, KEN B. BARRETT and
FRED A. SILVERBERG, Administrative Patent Judges.

McCARTHY, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE 1
The Appellant appeals under 35 U.S.C. § 134 from the Examiner’s 2
decision finally rejecting claims 1-67, 76-82, 98-110 and 122-139 of the 3
present application under 35 U.S.C. § 102(b) as being anticipated by 4
Bergersen 420 (US 5,645,420, issued Jul. 8, 1997); and the Examiner’s 5
decision provisionally rejecting claims 1-67, 76-82, 98-110 and 122-139 of6
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the present application for non-statutory double patenting as being 1
unpatentable over claims 1-7, 14-20, 35-51, 58-62, 68-73 and 85-87 of 2
Bergersen 765 (US Appl’n 10/665, 441, filed Sep. 18, 2003, now claims 1-3
45 of US 7,963,765 B2, issued Jun. 21, 2011) and claims 1, 3-15, 18-24, 26-4
29, 31-41, 44-68 and 70-82 of Bergersen 933 (US Appl’n 10/760,604, filed 5
January 20, 2004, now claims 1-74 of US 7,234,933 B2, issued Jun. 26, 6
2007).1 The Examiner has withdrawn claims 68-75, 83-97 and 111-121 of 7
the present application from consideration. We have jurisdiction under 35 8
U.S.C. § 6(b). 9
We sustain the final rejection of claims 1-4, 12-18, 25-28, 30, 49-55, 10
63-67, 98-107 and 122-39 as being anticipated by Bergersen 420. We do 11
not sustain any ground of rejection against any of claims 5-11, 19-24, 29, 12
31-48, 56-62, 76-82 and 108-10. Neither do we sustain the provisional 13
rejection of any claim on appeal as being unpatentable over any claim of 14
Bergersen 765 or Bergersen 933. 15

1 In addition, the Examiner in the Answer provisionally rejected
claims 1-67, 76-82, 98-110 and 122-139 for non-statutory double patenting
as being unpatentable over claims of Bergersen 292 (US Appl’n
10/449,292, filed May 30, 2003) and Bergersen 330 (US Appl’n
11/257,330, filed Oct. 24, 2005). Bergersen 292 was abandoned on or
before May 25, 2010 and Bergersen 330 was abandoned on or before May
26, 2009. We will not address the provisional rejections over Bergersen
292 or Bergersen 330 further in this opinion.
The Examiner on page 2 of the Final Office Action mailed April 18,
2008 provisionally rejected claims 1-67, 76-82, 98-110 and 122-139 for non-
statutory double patenting as being unpatentable over claims of Bergersen
099 (US Appl’n 10/447,099, filed May 28, 2003). Since the Examiner did
not repeat this ground of rejection in the Answer, we deem the ground of
rejection withdrawn.
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Claim 1 is illustrative of the claims on appeal: 1
1. A dental appliance adapted to be worn in a 2
mouth of a user wherein the user has a tongue and 3
a lip and the mouth of the user has an erupted 4
tooth, the dental appliance comprising: 5
a generally U-shaped base wherein the base 6
is sized to receive one or more teeth of the 7
user when the generally U-shaped base is 8
worn in the mouth of the user 9
wherein the base has a first end and a 10
second end wherein the first end is 11
located in a position opposite to the 12
second end 13
wherein the first end and the second 14
end define a length of the base; 15
a duplicated tooth area that receives the 16
erupted tooth; 17
a predicted tooth area that has an occlusal 18
surface and walls connected to the occlusal 19
surface 20
wherein the duplicated tooth area and 21
the predicted tooth area are different 22
distances from the first end of the 23
base 24
wherein the walls and the occlusal 25
surface are spaced from each other to 26
match a predicted size of one of the 27
teeth of the user which has not 28
erupted 29
wherein the predicted size of 30
one of the teeth of the user is 31
estimated from a size of the 32
erupted tooth of the user 33
wherein the predicted area is 34
constructed from a first material and 35
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the duplicated area is constructed 1
from a second material 2
wherein the first material is 3
softer than the second material. 4
5
ISSUES 6
Claims 1, 5, 12, 19, 25, 31, 36, 40, 45, 49, 56, 63, 66, 76, 82, 98, 122 7
and 131 are independent. The Appellant argues the rejection of each 8
independent claim for anticipation and for obviousness-type double 9
patenting separately. (App. Br. 24-31). In addition, the Appellant argues the 10
patentability of dependent claims 6, 9, 10, 17, 18, 21-24, 26, 28, 29, 34, 35, 11
37, 42, 48, 54, 55, 57, 58, 78, 101, 104, 108, 109, 128, 134 and 137 12
separately from that of the independent claims from which they ultimately 13
depend. (App. Br. 31-32). The Appellant provides no explanation why any 14
other dependent claim might be patentable if the independent claim from 15
which the dependent claim ultimately depends is anticipated or unpatentable. 16
Therefore, this opinion will address only the independent claims and certain 17
of the dependent claims which the Appellant has argued separately. The 18
remaining dependent claims stand or fall with the independent claim from 19
which those dependent claims ultimately depend. 20
Only issues and findings of fact contested by the Appellant have been 21
considered. See Ex Parte Frye, 94 USPQ2d 1072, 1075-76 (BPAI 2010). 22
The determinative issues for each independent claim on appeal is: 23
First, does Bergersen 420 describe the subject matter of 24
that independent claim? (See App. Br. 28-32; Reply Br. 2-5; 25
Ans. 6-7 and 8-9). 26
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Second, would the subject matter of that independent 1
claim have been obvious from claims 1 and 6 of Bergersen 2
765? (See App. Br. 24-27; Ans. 4, 5 and 7-8). 3
Third, would the subject matter of that independent claim 4
have been obvious from claim 1 of Bergersen 933? (See id.) 5
6
FINDINGS OF FACT 7
The record supports the following findings of fact (“FF”) by a 8
preponderance of the evidence. 9
1. The term “occlusal” refers to the imaginary plane on which upper 10
and lower teeth meet. The term “labial” refers to the tooth surface nearest the 11
lips. The term “lingual” refers to the tooth surface next to the tongue. (Braces 12
Info, A Dictionary of Dental Terms, http://www.bracesinfo.com/glossary.html 13
(last visited June 30, 2011)). 14
2. We adopt and incorporate by reference the Examiner’s findings 15
on page 6, line 4 of the Answer (beginning “Bergerson 420 discloses . . .”) 16
through page 6, line 11 of the Answer (ending “. . . The liner material may 17
be hard (column 8, line 4) or resilient (column 8, line 11).”). 18
3. Page 6, lines 4-11 of the Answer refer to the embodiment 19
described by Bergersen 420 at column 7, line 43 through column 8, line 53 20
and depicted in Figures 6-9. 21
4. The embodiment depicted in Figures 6-9 of Bergersen 420 22
includes a base having tooth depressions for receiving the user’s teeth. 23
Figures 8 and 9 indicate that the tooth depressions have occlusal surfaces as 24
well as labial and lingual walls. 25
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5. The embodiment depicted in Figures 6-9 of Bergersen 420 1
includes liner material adhered to the lingual wall of the appliance within 2
selected tooth depressions. The liner material is shaped by a molding 3
process essentially precisely to the outer contour of the teeth received in the 4
selected tooth depressions. (Bergersen 420, col. 7, ll. 48-65; col. 8, ll. 23-27 5
and figs. 8 and 9). 6
6. Bergersen 420 describes the embodiment depicted in Figures 7
6-9 as having tooth depressions. Bergersen 420 does not describe the tooth 8
depressions as having side walls. Figures 6-9 do not depict the tooth 9
depressions as necessarily having side walls. 10
7. Bergersen 420 discloses that the material of the liner may be 11
one that becomes relatively hard at body temperature. Bergersen 20 further 12
discloses that, if a hard material is used, the appliance will snap in place 13
quite firmly as the occlusal surfaces of the teeth move into their respective 14
depressions. (Bergersen 420, col. 8, ll. 1-10). 15
8. The Appellant does not appear to contest that Bergersen 16
describes using a liner material harder and more rigid than the material of 17
the base. 18
9. The description in Bergersen 420 of the embodiment depicted 19
in Figures 6-9 indicates that the selected tooth depressions with liner 20
material are constructed of two materials. The selected tooth depressions as 21
a whole are not constructed of a second material harder than the first 22
material from which the tooth depressions without liner material are 23
constructed. 24
10. Figures 8 and 9 in Bergersen 420 indicate that the liner 25
material does not necessarily form an occlusal surface. 26
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11. Since Bergersen 420 discloses reshaping selected tooth 1
depressions (see Bergersen 420, col. 7, ll. 43-48), Bergersen 420 describes 2
adding liner material to the selected tooth depressions and not others. 3
Consequently, one may define an area or portion of the base in the vicinity 4
of a tooth depression without a liner which is constructed of a material softer 5
than the hard liner material. 6
12. Bergersen 420 discloses that the liner material is trimmed at 7
the margins of the tooth depression with the liner material. (Bergersen 420, 8
col. 7, lines 54-56). The liner material is located at one and only one tooth 9
depression. Figures 1B and 6 of Bergersen 420 indicate that no two tooth 10
depressions are at the same distance from either end of the base. The area or 11
portion occupied by the liner material in one of the selected tooth 12
depressions will be at a different distance from either end of the appliance 13
than the area or portion of the base in the vicinity of any tooth depression 14
without a liner. 15
16
ANALYSIS 17
The Obviousness-Type Double Patenting Rejections 18
The Examiner bears the burden of providing sufficient evidence and 19
technical argument to support a rejection. From a general perspective, the 20
Examiner’s duty in rejecting a claim for obviousness-type double patenting 21
is the same as a Court’s duty when holding a claim invalid on the same 22
ground: 23
Generally, an obviousness-type double patenting 24
analysis entails two steps. First, as a matter of law, 25
a court construes the claim in the earlier patent and 26
the claim in the later patent and determines the 27
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differences. Second, the court determines whether 1
the differences in subject matter between the two 2
claims render the claims patentably distinct. A 3
later claim that is not patentably distinct from an 4
earlier claim in a commonly owned patent is 5
invalid for obvious-type double patenting. 6
Eli Lilly & Co. v. Barr Labs., Inc., 251 F.3d 955, 968 (Fed. Cir. 2001) 7
(internal citations and footnote omitted). 8
The Examiner concludes in the Answer that the claims on appeal are 9
unpatentable over claims 1 and 6 of Bergersen 765 and over claim 1 of 10
Bergersen 933. (Ans. 5). The Examiner summarizes each of these patented 11
claims in the Answer. (Id.) With respect to both claims 1 and 6 of 12
Bergersen 765 and claim 1 of Bergersen 933, the Examiner states that: 13
“Limitations in the present claims to predicted areas for unerupted teeth fail 14
to provide for any structural distinction. The present claims are merely 15
obvious variations of those in” Bergersen 765 and Bergersen 933. (Id.). 16
The Examiner provides no further explanation of the grounds of rejection. 17
The Appellant disagrees with the Examiner’s conclusion, pointing out 18
subject matter recited in the independent claims on appeal which the 19
Appellant believes to be missing from claims 1 and 6 of Bergersen 765 and 20
claim 1 of Bergersen 933. The Examiner has not construed the subject 21
matter of claims 1 and 6 of Bergersen 765 or of claim 1 of Bergersen 933; 22
determined the differences (if any) between the subject matter of claims 1 23
and 6 of Bergersen 765 or of claim 1 of Bergersen 933, on the one hand, 24
and the subject matter of the claims on appeal, on the other; or articulated 25
reasoning with some rational underpinning to support the legal conclusion 26
that the subject matter of the claims on appeal is an “obvious variation” of 27
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the subject matter of claims 1 and 6 of Bergersen 765 or of claim 1 of 1
Bergersen 933. The Board declines to provide these findings and reasoning 2
in the first instance. 3
Without such findings and reasoning, the rejection is conclusory. KSR 4
Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007). We do not sustain the 5
provisional rejections of appealed claims 1-67, 76-82, 98-110 and 122-139 6
for obviousness-type double patenting as being unpatentable over claims 1-7
7, 14-20, 35-51, 58-62, 68-73 and 85-87 of Bergersen 765 or claims 1, 3-15, 8
18-24, 26-29, 31-41, 44-68 and 70-82 of Bergersen 933. 9
10
The Rejection under § 102(b) 11
12
Independent Claims 1, 12, 49, 63, 98, 122 and 131 13
Claim 1 recites a dental appliance including a base, a duplicated tooth 14
area that receives an erupted tooth and a predicted tooth area. The predicted 15
tooth area has an occlusal surface and walls connected to the occlusal 16
surface. The duplicated tooth area and the predicted tooth area are at 17
different distances from a first end of the base. The predicted area is 18
constructed from a first material and the duplicated area is constructed from 19
a second material. The first material is softer than the second material. 20
Claim 49 recites similar language. 21
Claim 12 recites a dental appliance including a base having “a first 22
portion of the base wherein the first portion is constructed from a first 23
material; and a second portion of the base wherein the second portion is 24
constructed from a second material wherein the first material is softer than 25
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the second material and the first portion and the second portion are different 1
distances from the first end of the base.” 2
Claim 63 recites a “sheet” including a first portion constructed from a 3
first material and a second portion constructed from a second material 4
“wherein the first material is softer than the second material.” Claims 98, 5
122 and 131 each similarly recite a dental appliance including a first portion 6
constructed from a first material and a second portion constructed from a 7
second material “wherein the first material is softer than the second 8
material.” The first portion of the base recited in claim 63 has a socket 9
having an occlusal surface and walls. The first portion recited in claims 98 10
and in claim 122 has walls and an occlusal surface. Claims 63, 98 and 122 11
each further recite that “the first portion and the second portion are different 12
distances from the first end of the base.” 13
The Appellant argues that Bergersen 420 fails to describe a dental 14
appliance having these features. (App. Br. 29). The dental appliance 15
depicted in Figures 6-9 of Bergersen 420 includes a base having a predicted 16
tooth area or first portion, namely, the vicinity of a tooth depression without 17
liner material, and a duplicated tooth area or second portion, namely, the 18
liner material in a selected tooth depression. (FF 5 and 11). The predicted 19
tooth area or first portion has a socket defining an occlusal surface and walls 20
connected to the occlusal surface. (FF 4). The predicted tooth area or first 21
portion, and the duplicated tooth area or second portion, are at different 22
distances from a first end of the base. (FF 12). The predicted tooth area or 23
first portion, that is, the vicinity of a tooth depression without liner material, 24
is constructed from a first material. The duplicated tooth area or second 25
portion, that is, the liner material in a selected tooth depression, is 26
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constructed from a second material. The first material is softer than the 1
second material. (FF 7 and 8). The Appellant has not provided a persuasive 2
reason why the embodiment depicted in Figures 6-9 of Bergersen 420 does 3
not anticipate claims 1, 12, 49, 63, 98, 122 and 131. We sustain the rejection 4
of claims 1-4, 12-16, 49-53, 63-65, 98-100, 102, 103, 105-07 and 122-27, 5
129-33, 135, 136, 138 and 139 under § 102(b) as being anticipated by 6
Bergersen 420. 7
8
Independent Claims 25 and 56 9
Claim 25 recites a dental appliance including a base and a wall 10
extending along the perimeter of the base. The dental appliance of claim 25 11
also includes “a first portion of the wall wherein the first portion is 12
constructed from a first material; and a second portion of the wall wherein 13
the second portion is constructed from a second material wherein the first 14
material is softer than the second material wherein the first portion and the 15
second portion are different distances from the first end of the wall.” 16
Claim 56 recites a dental appliance including a base and a wall 17
extending from the base along the outside perimeter of the base. The dental 18
appliance of claim 56 also includes a first portion and a second portion. 19
“[T]he first portion and the second portion are different distances from the 20
first end of the base. . . . [T]he first portion is constructed from a first 21
material and the second portion is constructed from a second material 22
wherein the first material is softer than the second material.” 23
The Appellant contends that Bergersen 420 fails to describe a dental 24
appliance including these features. (App. Br. 30; Reply Br. 5). The dental 25
appliance depicted in Figures 6-9 of Bergersen 420 includes a base and a 26
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wall extending along the perimeter of the base. The wall includes a first 1
portion, namely, any portion of the wall adjacent a tooth depression without 2
liner material, and a second portion, namely, the liner material adhered to the 3
wall in a selected tooth depression. (FF 5 and 11). The first and second 4
portions are at different distances from a first end of the base. (FF 12). The 5
first portion is constructed from a first material and the second portion is 6
constructed from a second material. The first material is softer than the 7
second material. (FF 7 and 8). The Appellant has not provided a persuasive 8
reason why the embodiment depicted in Figures 6-9 of Bergersen 420 does 9
not anticipate claims 25 and 56. We sustain the rejection of claims 25, 27, 10
30 and 56-62 under § 102(b) as being anticipated by Bergersen 420. 11
12
Independent Claim 66 13
Claim 66 recites a system for treating a malocclusion including first 14
and second dental appliance. The first dental appliance includes a portion 15
having an occlusal surface and walls connected to the occlusal surface. 16
Claim 66 recites that this portion “is constructed from a first material and a 17
remainder of the first dental appliance is constructed from a second material 18
wherein the first material is less rigid than the second material.” 19
The Appellant argues that Bergersen 420 fails to describe a first 20
dental appliance having these features. (See App. Br. 30). The Examiner’s 21
findings imply that the entire base of the dental appliance depicted in 22
Figures 6-9 of Bergersen 420, less the liner material, corresponds to the 23
portion recited in claim 66. (See Ans. 6 (finding that tooth depressions with 24
hard liner material may be considered to be the portion of the base 25
constructed from the more rigid material)). The description in Bergersen 26
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420 of the embodiment depicted in Figures 6-9 indicates that the tooth 1
depressions without liner material have occlusal surfaces along with lingual 2
and labial walls connected to the occlusal surfaces. (FF 4). Furthermore, 3
the base (less the liner material) is constructed from a first material less rigid 4
than the liner material, from which the remainder of the dental appliance is 5
constructed. (FF 7 and 8). The Appellant has not provided a persuasive 6
reason why the embodiment depicted in Figures 6-9 of Bergersen 420 does 7
not anticipate claim 66. We sustain the rejection of claims 66 and 67 under 8
§ 102(b) as being anticipated by Bergersen 420. 9
10
Independent Claim 5 11
Claim 5 recites a dental appliance including a base having a first 12
portion and a second portion. The first and second portions each have an 13
occlusal surface and at least two side walls adjacent to the occlusal surface. 14
The first and second portions are at different distances from a first end of the 15
base. The first portion is constructed from a first material and the second 16
portion is constructed from a second material. The first material is softer 17
than the second material. 18
The Appellant argues that Bergersen 420 fails to describe a dental 19
appliance in which the second portion of the base has a second occlusal 20
surface and at least two side walls adjacent to the second occlusal surface, 21
wherein the first portion of the base is constructed of a first material softer 22
than a second material from which the second portion is constructed. (See 23
App. Br. 29; Reply Br. 4). The Examiner finds that the tooth depressions 24
with liner material in the dental appliance depicted in Figures 6-9 of 25
Bergersen 420 correspond to the second portion of the base. (See Ans. 6 26
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(finding that tooth depressions with hard liner material may be considered to 1
be the first portion of the base)). 2
The description in Bergersen 420 of the embodiment depicted in 3
Figures 6-9 indicates that the selected tooth depressions with liner material 4
are constructed of two materials. The selected tooth depressions as a whole 5
are not constructed of a second material harder than the first material from 6
which other portions of the dental appliance are constructed. (FF 9). Even 7
were one to assume for purposes of this appeal only that the portion of the 8
base occupied by the liner material alone was the second portion, Figures 6-9
9 of Bergersen 420 do not clearly depict the liner material as defining 10
occlusal surfaces. (FF 10). Since the Examiner cites to no other 11
embodiment disclosed by Bergersen 420 having the recited feature, 12
Bergersen 420 does not describe the subject matter of claim 5. We do not 13
sustain the rejection of claims 5-11 under § 102(b) as being anticipated by 14
Bergersen 420. 15
16
Independent Claims 19, 31, 36, 40, 45, 76 and 82 17
Claim 19 recites a dental appliance including a base and “first sockets 18
for receiving one or more teeth when the generally U-shaped base is worn in 19
the mouth of the user wherein the sockets are formed in the base and further 20
wherein each of the sockets has walls and an occlusal surface connected to 21
the occlusal surface.” Claim 19 further recites that “[T]he first sockets are 22
manufactured from a first material.” The dental appliance of claim 19 also 23
includes “second sockets in the base . . . wherein the second sockets are 24
manufactured from a second material wherein the second material is more 25
rigid than the first material.” 26
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Claim 31 recites a dental appliance including a base along with a 1
predicted socket and a duplicated socket formed within the base. The 2
predicted socket is constructed from a first material and the duplicated 3
socket is constructed from a second material. The first material is softer 4
than the second material. 5
Claims 36 and 45 each recite a dental appliance including a base along 6
with a first socket and a second socket formed within the base. Claims 36 7
and 45 each further recite that the first socket is constructed from a first 8
material, the second socket is constructed from a second material and the 9
first material is softer than the second material. 10
Claim 40 recites a dental appliance including a base along with a first 11
socket formed within the base. Claim 40 further recites that “the base is 12
constructed from a first material and the first socket is constructed from a 13
second material wherein the first second is softer than the first material.” 14
Claim 76 recites a dental appliance having a base including a 15
duplicated tooth area and a predicted tooth area. The duplicated tooth area 16
has one or more sockets made of a stiff material. The predicted tooth area 17
has one or more sockets made of soft material. 18
Claim 82 recites a kit comprising at least two dental appliances. Each 19
dental appliance has a base including a duplicated tooth area and a predicted 20
tooth area. Each duplicated tooth area has one or more sockets made of a 21
stiff material. Each predicted tooth area has one or more sockets made of 22
soft material. 23
The Appellant argues that Bergersen 420 fails to describe a dental 24
appliance having these features. (App. Br. 29-31). Bergersen 420 does not 25
describe the dental appliance depicted in Figures 6-9 as having a second 26
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socket constructed from a second material harder than a first material from 1
which a first socket is constructed or second sockets manufactured from a 2
second material more rigid than a first material from which first sockets are 3
manufactured. In particular, the selected tooth depressions with liner 4
material in the embodiment depicted in Figures 6-9 of Bergersen 420 are 5
not manufactured or constructed from a material harder or more rigid than 6
the material from which the tooth depressions without liner material are 7
manufactured. (FF 9). Since the Examiner cites to no other embodiment 8
disclosed by Bergersen 420 having this feature and provides no persuasive 9
reasoning to explain how this feature might have been inherent in the 10
embodiment of Figures 6-9, Bergersen 420 does not describe the subject 11
matter of claim 19, 31, 36, 40, 45, 76 and 82. We do not sustain the 12
rejection of claims 19-22, 31-48 and 76-82 under § 102(b) as being 13
anticipated by Bergersen 420. 14
15
Dependent Claims 17, 18, 26, 28, 29, 54, 55, 101, 104, 128, 134 and 137 16
The Appellant argues that Bergersen 420 does not anticipate claims 17
18, 28, 54, 101 and 134 because Bergersen 420 fails to describe a dental 18
appliance including a tab extending horizontally from the base into the 19
mouth. (App. Br. 31-32). The Examiner finds that Bergersen 420 discloses 20
the lingual tabs 34. (Ans. 6). The Appellant provides no explanation why 21
the lingual tabs 34 do not correspond to the recited tabs. We sustain the 22
rejection of claims 18, 28, 54, 101 and 134 under § 102(b) as being 23
anticipated by Bergersen 420. 24
The Appellant argues that Bergersen 420 does not anticipate claim 29 25
because Bergersen 420 fails to describe a dental appliance with a socket 26
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having a flat occlusal surface. (App. Br. 32). The Examiner does not appear 1
to explain how Bergersen 420 discloses this feature. We do not sustain the 2
rejection of claim 29 under § 102(b) as being anticipated by Bergersen 420. 3
The Appellant argues that Bergersen 420 does not anticipate claims 4
17, 26, 55, 104, 128 and 137 because Bergersen 420 fails to describe a 5
dental appliance including a rib protruding from the base toward at least one 6
tooth. (App. Br. 32). The Examiner finds that Bergersen 420 discloses the 7
ribs 22. The Appellant provides no explanation why the ribs 22 do not 8
correspond to the recited rib. We sustain the rejection of claims 17, 26, 55, 9
104, 128 and 137 under § 102(b) as being anticipated by Bergersen 420. 10
11
DECISION 12
We AFFIRM the Examiner’s decision finally rejecting claims 1-4, 12-13
18, 25-28, 30, 49-55, 63-67, 98-107 and 122-139. 14
We REVERSE the Examiner’s decision rejecting claims 5-11, 19-24, 15
29, 31-48, 56-62, 76-82 and 108-10. 16
No time period for taking any subsequent action in connection with 17
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(v). 18
19
AFFIRMED 20
21
22
Klh 23