Ex Parte Dacremont

Patent Trial and Appeal Board

Aug 4, 2017

12865810 (P.T.A.B. Aug. 4, 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.
12/865,810 08/02/2010 Philippe Dacremont BDL-93 6294
20311 7590 08/08/2017
LUCAS & MERCANTI, LLP
30 BROAD STREET
21st FLOOR
NEW YORK, NY 10004
EXAMINER
EIDE, HEIDI MARIE
ART UNIT PAPER NUMBER
3732
NOTIFICATION DATE DELIVERY MODE
08/08/2017 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):
info@lmiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PHILIPPE DACREMONT
Appeal 2016-004909
Application 12/865,8101
Technology Center 3700
Before DONALD E. ADAMS, ERIC B. GRIMES, and
JOHN E. SCHNEIDER, Administrative Patent Judges.
ADAMS, Administrative Patent Judge.
DECISION ON APPEAL
This appeal under 35 U.S.C. § 134(a) involves claims 27, 33—35, 37—
46, 48, 50, and 52—54 (Final Act.2 I).3 Examiner entered rejections under
35 U.S.C. § 112, second paragraph and 35 U.S.C. § 103(a). We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 Appellant identifies the inventor, “Philippe DACREMONT” as the real
party in interest (App. Br. 1).
2 Examiner’s June 4, 2015 Examiner’s Final Action.
3 Pending claims 23 and 24 stand withdrawn from consideration (Final Act.
1).
Appeal 2016-004909
Application 12/865,810
STATEMENT OF THE CASE
Appellant’s disclosure “relates to the general field of dental implants”
(Spec. 1:4). Claims 27 and 38 are representative and reproduced below:
27. A stabilized dental implant device comprising:
a stabilization device; and
an endo-osseous dental implant configured to be used in
combination with the stabilization device,
the endo-osseous dental implant comprising:
an independent and separate endo-osseous anchoring foot
configured to be screwed in a jaw bone of a patient and
comprising a non-threaded polygonal cavity forming a female
portion, and
an independent and separate external pillar comprising a
non-threaded polygonal lower part and an upper part on which a
dental prosthetic is fixable directly, the male portion of the
pillar being non-rotatably fixable in the endo-osseous anchoring
foot,
wherein the polygonal cavity cooperates with the
polygonal lower part such that when the polygonal lower part is
non-rotatably introduced and fixed in the polygonal cavity, they
form anti-rotational means inhibiting any movement of the
external pillar relative to the endo-osseous anchoring foot,
the stabilization device comprising:
a substantially rigid platform comprising a polygonal
perforation allowing the introduction of the polygonal lower
part of the external pillar into the polygonal cavity of the
anchoring foot through the stabilization device, so that the
platform is intercalated between the upper part of the external
pillar and the anchoring foot thereby immobilizing the
stabilization device relative to the endo-osseous dental implant
once the external pillar is fixed to the endo-osseous anchoring
foot,
the polygonal perforation cooperates with the polygonal
lower part of the external pillar, introduced through the
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Application 12/865,810
perforation of the platform, in order to further inhibit the
rotational movements of the external pillar in addition to the
anti-rotational means of the external pillar and of the endo-
osseous anchoring foot; and
two flexible anchoring side slender extensions, each of
the slender extensions forming a Y-shape with a base portion
having a first end at the polygonal perforation and extending to
a second end connected to two branches of the Y-shape, each of
the branches comprising an orifice for positioning an osteo-
integrable fixing screw in the jaw bone to thereby fix the
stabilization device and prevent rotation movement which may
be exerted on the endo-osseous dental implant,
the slender extensions extending on two opposite sides of
the polygonal perforation so as to be able to be placed
straddling the bone of the jaw, each flexible anchoring side
slender extension being flattened on either side of the bone; and
the endo-osseous dental implant being capable of being
fixed independent of the stabilization device.
(App. Br. 25-27.)
38. A stabilized dental implant device comprising:
a stabilization device; and
an endo-osseous dental implant configured to be used in
combination with the stabilization device,
the endo-osseous dental implant comprising:
an independent and separate endo-osseous anchoring foot
configured to be screwed in a jaw bone of a patient, the endo-
osseous anchoring foot comprising a non-threaded conical
cavity forming a female portion, and
an independent and separate external pillar having a
conical lower part and an upper part on which a dental
prosthetic is fixable directly,
the stabilization device comprising:
a substantially rigid platform comprising a circular
perforation surrounded by an embossed area, the circular
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Application 12/865,810
perforation allowing the introduction of the conical lower part
of the external pillar into the conical cavity of the anchoring
foot through the stabilization device, so that the platform is
intercalated between the upper part of the external pillar and the
anchoring foot thereby immobilizing the stabilization device
relative to the endo-osseous dental implant once the external
pillar is fixed to the endo-osseous anchoring foot,
wherein the conical cavity, the conical lower part, and the
circular perforation cooperate such that once the conical lower
part of the pillar has been . . . non-rotatably introduced and
fixed in the conical cavity of the anchoring foot through the
circular perforation of the platform, the conical lower part
contacts an upper face of the embossed area and blocks by
friction all the relative movements of the pillar, the anchoring
foot, and the platform, and
two flexible anchoring side slender extensions, each of
the slender extensions forming a Y-shape with a base portion
having a first end at the circular perforation and extending to a
second end connected to two branches of the Y-shape, each of
the branches comprising an orifice for positioning an osteo-
integrable fixing screw in the jaw bone to thereby fix the
stabilization device and prevent rotation movement which may
be exerted on the endo-osseous dental implant,
the slender extensions extending on two opposite sides of
the circular perforation so as to be able to be placed straddling
the bone of the jaw, each flexible anchoring side slender
extension being flattened on either side of the bone; and
the endo-osseous dental implant being capable of being
fixed independent of the stabilization device.
(App. Br. 28-29.)
The claims stand rejected as follows:
Claims 27, 33—35, 37, 39—46, 48, and 53 stand rejected under
35 U.S.C. § 112, second paragraph.
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Claims 27, 33, 37, 41, 45, 46, 50, and 53 stand rejected under
35 U.S.C. § 103(a) as unpatentable over the combination of Reggie,4 Liu,5
and Payton.6
Claims 39, 40, 42-44, 48, and 52 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over the combination of Reggie, Liu, Payton, and
Lodde.7
Claims 34 and 35 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Reggie, Liu, Payton, and Riera.8
Claims 38 and 54 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Reggie, Liu, Payton, and Odrich.9
Claim 54 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over the combination of Reggie, Payton, and Odrich.
Definiteness'.
ISSUE
Does the preponderance of evidence support Examiner’s conclusion
that Appellant’s claims are indefinite?
ANALYSIS
Examiner finds Appellant’s claims indefinite (see Final Act. 2).
Appellant asserts that the claims could be amended to overcome this
rejection (see App. Br. 9—10). As Examiner explains, however, because
4 Reggie, US 2006/0154205 Al, published July 13, 2006.
5 Liu, US 5,994,526, issued Aug. 31, 1999.
6 Payton, US 2002/0150856 Al, published Oct. 17, 2002.
7 Lodde et al., US 5,052,930, issued Oct. 1, 1991.
8 Riera, US 5,116,225, issued May 26, 1992.
9 Odrich et al., US 2003/0194679 Al, published Oct. 16, 2003.
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Appellant’s claims have “not been amended to reflect the [proposed]
change[s], the rejection is maintained” (Ans. 2). We agree.
CONCLUSION OF LAW
The preponderance of evidence supports Examiner’s conclusion that
Appellant’s claims are indefinite.
The rejection of claims 27, 33—35, 37, 39-46, 48, and 53 under
35U.S.C. § 112, second paragraph is affirmed.
Obviousness:
ISSUE
Does the preponderance of evidence relied upon by Examiner support
a conclusion of obviousness?
FACTUAL FINDINGS (FF)
FF 1. Reggie “relates to devices and methods for replacing teeth with
dental implants” (Reggie 2; see generally Final Act. 3).
FF 2. Reggie’s Figure 7A is reproduced below:
<0>
1 I
—m
PIG. 7,4
Reggie’s FIG. 7A “illustrate[s] a generally elongate threaded implant 100,
often called a ‘root form’ implant” (Reggie 1 53).
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FF 3. Reggie’s Figure 7B is reproduced below:
C
\E~
104 •- ‘Easgs ft'
J 55 L-**I Io
FIG. 7B
Reggie’s FIG. 7B illustrates “a cross section of [Reggie’s] implant
[illustrated in Reggie’s] FIG. 7A” (Reggie 134). As illustrated in Reggie’s
FIG. 7B,
[e]longate implant 100 has a first threaded region 102 on the
outside of the elongate implant adapted to engage the trabecular
region of the bone and a second threaded region 104 on the
interior of the implant 100. Second threaded region 104 is a
female joint adapted to receive and secure a threaded portion of
an abutment.
(Reggie 1 53; see generally Final Act. 3; Bonnet Decl.10 H 6 and 10.)
FF 4. Examiner finds that the interior portion of Reggie’s implant 100
comprises a threaded region 104 and “a non-threaded cavity” above the
threaded region 104, which “form[s] a female portion” (see Final Act. 3).
FF 5. Reggie’s Figure 11 is reproduced below:
!&■
FIG. 11
Reggie’s
FIG. 11 depicts an exploded view of [Reggie’s implant]
assembly 120 with cortical bone engagement device or
10 Declaration of Franck Bonnet, received Jan. 6, 2015.
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compliant brace 150 located between generally elongated
region of the abutment [110] and elongate implant 100.
Generally planar portion 152 lies in a plane perpendicular to the
axis of assembly 120. Cortical bone engagement device or
compliant brace 150 is coupled to assembly 120 by threading
the threaded region 112 of abutment 110 through generally
circular opening 153 into second threaded region 104 of
elongate implant 100.
(Reggie 1 56; see id. 141; see Final Act. 3^4; Bonnet Decl. 1 6 (“Abutment
110 has a threaded region 112 that threadably engages, i.e. screws into, the
second threaded region 104 of the elongate implant 100”)).
FF 6. Reggie’s Figure 12 is reproduced below:
Reggie’s
FIG. 12 depicts assembly 120 with compliant brace 150
implanted into a simulated jaw bone cross section of an anterior
portion of the jaw bone. Compliant elongate extensions 154,
156, 158 mechanically link elongate implant 100 and abutment
110 to the stiff cortical bone that comprises the exterior part of
the jaw bone. In addition to allowing for excellent
conformance with the cortical bone, elongate extensions 154,
156, 158 provide a relatively small barrier between the teeth
and the soft tissue and allow for the bone and tissue to grow
back together, thereby allowing the gingivae surrounding the
tooth to grow around elongate extensions 154, 156, 158 and
reattach to the jaw bone. Furthermore, any one of elongate
extensions 154, 156, 158 may further have a hole 160 along the
length of or at the end of the extension. As seen in FIG. 12,
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hole 160 would optionally allow a bone tack to be placed
through the elongate extension and into the bone for further
attachment security.
(Reggie 1 57 ; see Final Act. 3—4.)
FF 7. Reggie’s “compliant brace [150] allow[s] for small adjustments to be
made by rotating the implant [100] and/or changing the angle of the
abutment [110]” (Reggie 118; see also id. 1 52 (“[T]he axis of the abutment
may be angled relative to the axis of the implant. This way, the placement
of the crown can be adjusted to align with the adjacent teeth”)).
FF 8. Examiner finds that Reggie
does not specifically teach the non-threaded cavity in the
implant is a polygonal cavity, the lower part of the pillar[, or
abutment,] forming a non-threaded polygonal male portion,
wherein the polygonal cavity cooperates with the polygonal
lower part such that when the polygonal lower part is non-
rotatably introduced and fixed in the polygonal cavity and
wherein the polygonal shape is a hexagon, they form anti­
rotation means inhibiting any movement of the external pillar
relative to the endo-osseous anchoring foot and the perforation
in the platform is a polygonal perforation and each of the
slender extensions forming a Y-shape.
(Final Act. 4.)
FF 9. Liu discloses that
one type of prior known implant [] consists of a mounting stud
[] attached to a substructure [] that is implanted into the
patient’s upper or lower jaw, i.e., the mandibular or maxillary
structures. In order for the prosthesis [] to withstand the
significant occlusal forces exerted during mastication, the
substructure [] to which it is attached must be rigidly fixed in
the jaw. . . . [Thus, the foregoing] procedure is performed only
if sufficient bone structure exists.
(Liu 1:21—47.)
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FF 10. Liu “relates generally to devices for mounting a dental prosthesis,
and more particularly, to a dental implant system that requires a minimal
amount of bone structure for installation” (Liu 1:5—8; see Bonnet Decl.
Liu’s “FIG. 2 is an isometric view of [Liu’s] dental implant system” (Liu
2:64—65; see generally Final Act. 5).
FF 12. Liu’s dental implant system comprises an “anchor 116 [that]
includes a threaded hole 120 that extends perpendicularly into the anchor
116 from the upper surface 118. Mounted to the upper surface 118 of the
117 and 9).
FF 11. Liu’s Figure 2 is reproduced below:
m
FIG. 2
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Application 12/865,810
anchor 116, in registration with the hole 120, is an alignment nut 122” (Liu
3:21—25; see generally Final Act. 5; Bonnet Decl. 1 7).
FF 13. Liu’s dental implant system comprises
[a] thin cover plate 124, having a matching opening 126 for the
alignment nut 122, [that] fits over both the anchor 116 and a
portion of the saddle-shaped support 110. [Thus,] when the
cover plate 124 is placed over the anchor 116 and the support
110, the alignment nut 122 protrudes through the opening 126
and above the cover plate 124.
(Liu 3:33—38; see Final Act. 5.)
FF 14. Liu discloses that
[a] central hole 148 extends from top to bottom through the
crown abutment 142. When the crown abutment 142 is
positioned onto the dental implant system 100 above the cover
plate 124, the alignment nut 122 is received within the recess
146 of the crown abutment 142. This aligns the hole 148 in the
crown abutment 142 with the threaded hole 120 of the anchor
116, and prevents the crown abutment 142 from rotating or
otherwise moving relative to the dental implant system 100.
(Liu 4:32-40; see Final Act. 5.)
FF 15. Liu discloses that
[a] slotted, round-head retaining screw 150 having a threaded
portion 152 may be inserted into the through hole 148 of the
crown abutment 142 and into the threaded hole 120 of the
anchor 116. The threaded portion 152 of the retaining screw
150 engages the threaded hole 120, thereby securely fastening
the crown abutment 142 to the dental implant system 100.
(Liu 4:41^47.)
FF 16. Examiner finds that the combination of Reggie and Liu fails to
disclose a “Y-shaped” compliant brace (see Final Act. 6; see also FF 4
(“compliant brace 150”)).
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Application 12/865,810
FF 17. Reggie’s “compliant brace 150 ha[s] a generally planar portion 152
and three elongate extensions 154,156,158 extending therefrom,” and may
alternatively “contain a fourth or fifth elongate extension []” (Reggie 1 55).
FF 18. Payton “relates generally to an orthodontic appliance, and more
particularly to an orthodontic bone anchor that can provide tension usable as
fixed pushing, pulling or stabilizing points by the orthodontist in treating the
malalignment of the teeth of a patient without disturbing adjacent teeth”
(Payton 12).
FF 19. Payton’s Figure 8 is reproduced below:
Payton’s FIG. 8 illustrates “a front elevational view of four [(A—D)]
representative[] [] prior art miniature bone plates” (Payton 128; see Final
Act. 6 (Payton discloses “a stabilization device wherein both side extensions
are formed by a Y-shaped arm and being provided with an orifice [17] for
positioning [an] osteo-integrable fixing screw”); see also Payton 133).
FF 20. Examiner finds that the combination of Reggie, Liu, and Payton fails
to suggest a device, comprising an “anti-rotational means [] such that the
anchoring foot and the pillar respectively comprise female and male
matching conical shapes, and the central platform is embossed as a cone
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around the central perforation” (Final Act. 11; see Spec. 10: 20—22 (“the
stabilization device . . . comprises a perforation [] surrounded by an
embossed area [that is] a cone portion, similar to that of the frictional
surfaces of the external pillar [] and of the anchoring foot []”)).
FF 21. Odrich
relates generally to the field of dentistry, and in particular, to
[an] implant arrangement including a tapered and threaded
anchor for implantation into the jaw bone of a mammal, means
for rotating the anchor for seating it in the jaw bone, and means
for mounting a replacement tooth or teeth to the anchor.
(Odrich 11.)
FF 22. Odrich’s Figure 6 is reproduced below:
/
| 3»
Odrich’s “FIG. 6 is an exploded view of an[] embodiment of [Odrich’s]
invention,” wherein “an abutment 30 ... is placed on the anchor [10]”
(Odrich || 22 and 36).
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FF 23. Odrich’s
implant anchor [10] . . . has a[n] abutment receiving bore 22 in
the form of a female Morse taper surface. Such surfaces having
a taper or inclination of about 8° or less, have been found to
securely fix a mating male Morse taper member [40] due to the
inter-frictional effects between the tapered surfaces.
The fixation is so secure that the co-rotation means can
simply comprise the [abutment] having a male Morse taper
member [40] for ffictionally engaging the female Morse taper
surface of the abutment receiving bore 22.
(Odrich || 41—42; see also id. 1 50 (Odrich discloses that “the abutment
receiving bore [] may be polygonal, e.g[.] hexagonal”); see Final Act. 11—
13.)
FF 24. Examiner finds that the combination of Reggie, Liu, and Payton fails
to suggest a stabilization device,
wherein one of the side extensions ... is longer than the other
one and then intended to be fixed on the vestibular side of the
jaw, wherein the thickness of the stabilization device is between
0.2 and 1 millimeter, ... or more specifically between 0.4 and
0.8 millimeter and wherein the kit comprises screws
and relies on Lodde to make up for the foregoing deficiencies in the
combination of Reggie and Liu (Final Act. 9).
FF 25. Examiner finds that the combination of Reggie, Liu, and Payton fails
to suggest a
device wherein the polygonal shapes of the male and female
portions have N sides, the perforation of the stabilization device
has a polygonal shape with 2N sides, the polygonal shape of the
perforation of the platform thereby allowing more position of
the stabilization device than a polygonal shape identical with
th[at] of the pillar, wherein the polygonal shapes of the pillar
and of the anchoring foot are hexagonal, the perforation of the
stabilization device has a dodecagonal shape, and wherein the
polygonal shapes of the pillar and of the anchoring foot are
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square and the perforation of the stabilization device has an
octagonal shape and wherein the polygonal shape of the
perforation of the platform allows more positions of the
stabilization device than the polygonal shape of the pillar so
that is it possible to adjust the position of the stabilization
device relatively to the male portion, with greater accuracy than
the minimum angular movement amplitude authorized by the
polygonal shape of the pillar and of the anchoring foot[]
and relies on Riera to make up for these deficiencies in the combination of
Reggie, Liu, and Payton (Final Act. 10-11).
FF 26. Bonnet declares that
a person of ordinary skill in the art of dental implants is taught
by Liu that the nut 122 and matching opening 126 in the cover
plate 124 are required only when the anchor is not or cannot be
screwed into the bone. However, Reggie discloses that the
elongate member 100 is screwed into the bone. Given the
teachings of Reggie and Liu, a person of ordinary skill in the art
would not apply the alignment nut 122 and matching opening
126 of the cover plate 124 in Liu to Reggie because there is no
need for holding the elongate implant 100 of Reggie in place.
(Bonnet Decl. 8; see id. 19 (“Liu does not have a screw-type
substructure”); id. Ill (Bonnet declares that “a person having ordinary skill
in the art would not apply [Liu’s] nut 122 and cover plate 124 with matching
opening 126 to the substructure 100 of Reggie, or any other substructure
having a threaded portion adapted to be screwed into the bone of a jaw”).)
ANALYSIS
The rejection over the combination of Reggie, Liu, and Payton:
Appellant’s claim 27 is reproduced above.
Based on the combination of Reggie, Liu, and Payton, Examiner
concludes that, at the time Appellant’s invention was made, it would have
been prima facie obvious to modify Reggie’s dental implant assembly “with
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the anti-rotational features taught by Liu in order to prevent the crown
abutment[, or pillar,] from rotating or otherwise moving relative to the dental
implant system” (Final Act. 5; see FF 1—15). In this regard, Examiner
concludes that, at the time of Appellant’s claimed invention, it would have
been prima facie obvious to make use of a Y-shaped compliant brace, such
as that suggested by Payton, “in order to allow the device to fit a variety of
irregular surgical sites” (Final Act. 6; see also FF 17—18).
Examiner recognizes that the combination of Reggie and Liu suggests
an implant with a polygonal, or nut shaped, extension that mates with an
abutment, or pillar, comprising a polygonal cavity, which is the opposite of
Appellant’s claimed invention. Examiner reasons, however, that, at the time
of Appellant’s claimed invention, it would have been prima facie obvious to
place Liu’s “non-rotational male portion” 122 on the male portion 112 of
Reggie’s pillar and Liu’s non-rotational female cavity 146 in the non-
threaded regions above Reggie’s second threaded region 104 (see Final Act.
5; see FF 3—5 and 11—14). In this regard, Examiner reasons that such a
change would be “a mere reversal of the essential working parts of a device
[, which] involves only routine skill in the art” (Final Act. 5). See In re
Gazda, 219 F.2d 449, 452 (CCPA 1955). We find no error in Examiner’s
rationale and, therefore, are not persuaded by Appellant’s contentions based
on Riera (Reply Br. 2—3).
Examiner relies on Liu to modify the: (a) threaded region 112 of
Reggie’s abutment 110, (b) circular opening 153 of Reggie’s brace 150, and
(c) non-threaded cavity above the second threaded region 104 of Reggie’s
implant 100 (see Ans. 3^4; FF 4—5). Elements (a)-(c) are not involved in
attachment of the implant (see, e.g., Reggie’s implant 100) to a patient’s jaw
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bone (see FF 4—5; cf. FF 3). To the contrary, elements (a)—(c) relate to the
relationship between Reggie’s implant 100, abutment 110, and the opening
153 of Reggie’s brace 150 (see, e.g., FF 4—5). Therefore, we are not
persuaded by Appellant’s contention that “Reggie and Liu disclose two
mutually exclusive techniques for attaching an implant to a jaw bone;” “the
components of Liu are required only when an anchor is not or cannot be
screwed into a jaw bone;” if Liu’s “nut 122 [] were to be applied to Reggie,
it would be used together with the saddle-shaped support member 110 and
the coverplate 124 of Liu to replace the external threads 102 of Reggie when
the bone is not strong enough to support the anchor of Reggie;” that Liu
teaches away from its combination with Reggie, because Liu’s dental device
is not “screwed into the jaw;” or that “Examiner’s analysis picks and
chooses among isolated disclosures in the prior art to deprecate the claimed
invention” (App. Br. 12, 15—16; Reply Br. 2; see generally id. at 12—17; see
also Bonnet Decl. Tflf 8—9).
As Examiner explains, at the time of Appellant’s claimed invention, a
person of ordinary skill in this art would have found it prima facie obvious
to modify Reggie’s: threaded region 112 of abutment 110, non-threaded
cavity above the second threaded region 104 of Reggie’s implant 100, and
opening 153 of Reggie’s brace 150 to include Liu’s interactive polygonal
shapes (see Final Act. 5—6; see, e.g., FF 4—5 and 11—14). As Examiner
further explains, the incorporation of Liu’s interactive polygonal shapes
would provide Reggie’s elements (a)—(c) with an anti-rotational feature
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(Final Act. 4—5). Therefore, we are not persuaded by Appellant’s contention
that Reggie alone fails to suggest Appellant’s claimed invention (see App.
Br. 13).
Appellant recognizes that “Reggie discloses that brace [150] allows
for small adjustments to be made by rotating the implant [100] (see
paragraph 18, lines 11-13, of Reggie)” (App. Br. 13 (emphasis added); see
id. at 15—17; see FF 7). Appellant, however, failed to explain why the
modification of Reggie’s device to include Liu’s interactive polygonal
shapes would interfere with the rotation of Reggie’s implant 100, prior to the
attachment of the brace 150 to a patient’s jaw bone (see generally FF 6).
Notwithstanding Appellant’s contention to the contrary, we find that a
person of ordinary skill in this art would recognize that the device suggested
by the combination of Reggie, Liu, and Payton may be adjusted by, inter
alia, rotating the implant 100 prior to the attachment of Reggie’s brace 150,
as modified by Liu and Payton, to a patient’s jaw bone, wherein the
attachment of a brace, as suggested by Reggie, Liu, and Payton to a patient’s
jaw bone would prevent further rotation of the entire device in a patient’s
jaw bone due to the interactive polygonal shapes associated with the
implant, abutment, and brace, as is suggested by the combination of Reggie,
Liu, and Payton.
Nothing in the combination of Reggie, Liu, and Payton, prevents the
polygonal male portion of the abutment from being inserted into the
polygonal opening of the brace outside of a patient’s mouth prior to
“introduction of the assembly of the [polygonal male portion of the
abutment] and the [brace] within the mouth of the patient to introduce the
male portion of the [abutment] into the [polygonal] cavity [of the implant]”
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(see FF 1—19; cf. App. Br. 17). Therefore, we are not persuaded by
Appellant’s intimation that the combination of Reggie, Liu, and Payton fails
to suggest that the brace or “platform [can] be held in a secured position
between the pillar and the anchoring foot upon insertion of the male portion
of the pillar into the cavity” (App. Br. 17; see id. at 17—18). Further, as
explained above, prior to attaching the brace to the jaw bone, Reggie’s
implant 100 may be adjusted by rotation (cf. id. at 13).
Reggie discloses the use of a brace 150, comprising 3 or more
extensions that are conformed and attached to a patient’s jaw bone (see FF
5—6 and 17). Reggie discloses a “tuning fork” shaped brace 150 (see, e.g.,
FF 5). Although a tuning-fork is generally Y-shaped, Examiner expressly
finds that the combination of Reggie and Liu fails to disclose a “Y-shaped”
brace 150 (FF 16). To make up for this deficiency in the combination of
Reggie and Liu, Examiner directs attention to Payton, for a disclosure of an
orthodontic appliance that comprises a “bone anchor” that may be any of a
variety of shapes, including Y-shaped (see FF 18—19). Thus, Examiner
concludes that it would have been prima facie obvious to modify the brace
suggested by the combination of Reggie and Liu to have a Y-shape, which is
one of the variety of shapes suggested for Payton’s bone anchor, “in order to
allow the device to fit a variety of irregular surgical sites” (Final Act. 6; see
Ans. 6 (“the prior art of Payton is being used to teach a specific shape”)).
While Appellant is correct in asserting that “Payton relates to a plate
[] for use with a wire guide [] for orthodontic tension bands for braces,” it is
clear that Payton characterizes the “plate” as “an orthodontic bone anchor”
for attachment to bone by way of a screw (App. Br. 19; see FF 18—19; cf. FF
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6). Therefore, we find no error in Examiner’s reliance on Payton to suggest
a bone anchor, or brace, in the shape of a Y (see Final Act. 6).
For the foregoing reasons we are not persuaded by Appellant’s
contention that a person of ordinary skill in this art would not have
considered Payton’s Y-shaped bone anchor, because it “is in a different
technical domain than dental implants” (App. Br. 19). Notwithstanding
Appellant’s contention to the contrary, we find that Payton’s bone anchor is
reasonably pertinent to the bone anchor, or brace, suggested by the
combination of Reggie and Fiu. See In re Clay, 966 F.2d 656, 658—59 (Fed.
Cir. 1992).
The combination of Reggie and Fiu suggests a brace that straddles
and adapts to the morphology of a patient’s jaw bone (FF 6). Therefore, we
are not persuaded by Appellant’s contention that Payton’s plate “does not
straddle a jaw bone” or “does not have to be bent to adapt to the morphology
of the patient” (App. Br. 19).
The combination of Reggie and Fiu suggests a brace “that extends on
two opposite side[s] of a polygonal perforation, where the polygonal
perforation is configured to receive a polygonal lower part of a pillar of an
endo-osseous dental implant” {see generally, FF 6 and 11; cf. App. Br. 20).
Therefore, we are not persuaded by Appellant’s contention that Payton alone
does not suggest these features (App. Br. 20).
The rejection over the combination of Reggie, Liu, Payton, andLodde:
Appellant’s claim 39 depends from and further limits the stabilized
dental implant device of Appellant’s claim 27 to require that “one of the side
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extensions of the stabilization device is longer than the other one and then
intended to be fixed on the vestibular side of the jaw” (App. Br. 29).
Based on the combination of Reggie, Liu, Payton, and Lodde,
Examiner concludes that, at the time Appellant’s invention was made, it
would have been prima facie obvious
to modify the shape of the extension element and the size of the
device [suggested] by [the combination of Reggie, Liu, and
Payton] with the dimensions taught by Lodde in order to
provide an energy dissipating, multi-directional, three point
attachment and provide a more secure attachment by preventing
pull out
(Pinal Act. 9; see PL 24). In addition, Examiner concludes that, at the time
of Appellant’s claimed invention, it would have been prima facie obvious to
a person of ordinary skill in this art “to provide all of the different parts in
the form of a kit for the ease of use by the user and to prevent lost parts” and
“modify the size of the stabilization element taught by Reggie [because]
such a modification would have involve[d] a mere change in the size of a
component,” which “is generally recognized as being within the level of
ordinary skill in the art” (Pinal Act. 8). See In re Rose, 220 F.2d 459, 463
(CCPA 1955).
Having found no deficiency in the combination of Reggie, Liu, and
Payton, we are not persuaded by Appellant’s contention that Lodde fails to
make up for Appellant’s alleged deficiency in the combination of Reggie,
Liu, and Payton (see App. Br. 23).
The rejection over the combination of Reggie, Liu, Payton, and Riera:
Appellant’s claim 34 depends from and further limits the stabilized
dental implant device of Appellant’s claim 27 to require that
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the polygonal lower part of the pillar and the polygonal cavity
of the anchoring foot have a polygonal shape of N sides, and
the polygonal perforation of the stabilization device has a
polygonal shape of 2N sides, thereby allowing more positions
of the stabilization device than that of a polygonal perforation
having N sides.
(App. Br. 27.)
Based on the combination of Reggie, Liu, Payton, and Riera,
Examiner concludes that, at the time Appellant’s invention was made, it
would have been prima facie obvious “to use any known combination of
shapes in order to achieve the specific number of angular positions desired
by the user” and, thus, “to modify the connection between the parts taught
by [the combination of Reggie, Liu, and Payton] with the connection taught
by Riera in order to provide a part with angular rotation in order to achieve
the desired location” (Final Act. 11).
Having found no deficiency in the combination of Reggie, Liu, and
Payton, we are not persuaded by Appellant’s contention that Riera fails to
make up for Appellant’s alleged deficiency in the combination of Reggie,
Liu, and Payton (see App. Br. 23).
The rejection over the combination of Reggie, Payton, and Odrich, with or
without Liu:
Appellant’s claim 38 is reproduced above.
As Appellant explains, “[independent claim 54 is drawn to a
stabilization device and recites limitations similar to the limitations of claim
38” (App. Br. 23).
Based on the combination of Reggie, Liu, Payton, and Odrich,
Examiner concludes that, at the time Appellant’s invention was made, it
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would have been prima facie obvious “to modify the polygonal surfaces [in
the device suggested by the combination of Reggie, Liu, and Payton] with
the cone surfaces of Odrich as a matter of obvious design choice to prevent
rotation,” because “Odrich teaches the use of matching conical shapes for
anti-rotational frictional surfaces between an anchoring foot and pillar as
anti-rotational frictional means” (Final Act. 11).
Based on the combination of Reggie, Payton, and Odrich, Examiner
concludes that, at the time Appellant’s invention was made, it would have
been prima facie obvious “to modify the perforation with an embossed area
in order to prevent rotation of the parts once it is implanted” (Final Act. 13).
In this regard, Examiner finds that Odrich teaches a “circular perforation []
surrounded by an embossed area [] (par[as]. 41-42)” (Final Act. 13; see FF
22-23).
We are not persuaded.
Examiner failed to establish an evidentiary basis on this record to
support a conclusion that Odrich suggests surrounding a circular perforation
of a dental implant’s stabilization device with an embossed area as is
required by Appellant’s claimed invention (see App. Br. 28—29 and 32—33).
To the contrary, we find that a person of ordinary skill in this art would have
understood Odrich to suggest that the male tapered, or conical, surface of an
abutment would pass through a circular perforation of a stabilization device
as suggested by the combination of Reggie and Payton, with or without Liu,
to ffictionally, and anti-rotationally, engage with a corresponding female
tapered, or conical surface in the implant (see FF 21—23).
The portion of Odrich relied upon by Examiner suggests the use of
mating Morse tapered surfaces to introduce “inter-frictional effects between
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the tapered surfaces” (see FF 23). Therefore, notwithstanding Examiner’s
contention to the contrary, Odrich fails to suggest embossing the area
surrounding a circular perforation of a dental implant’s stabilization device
such that a conical lower part of a pillar (i.e. an abutment) contacts an upper
face of the embossed area and blocks by friction all the relative movements
of the pillar, the anchoring foot (i.e. implant), and the platform (i.e.
stabilization device) as required by Appellant’s claims 38 and 54 (see
generally App. Br. 20-23). Taken as a whole, Examiner failed to establish a
reason as to why a person of ordinary skill in this art would have found it
prima facie obvious to further modify the device suggested by the
combination of Reggie and Payton, with or without Liu, to include an
embossed area to further frictionally and anti-rotationally engage the
components of the device suggested by the combination of Reggie, Payton,
and Odrich, with or without Liu. In re Kahn, 441 F.3d 977, 988 (Fed. Cir.
2006) (“rejections on obviousness grounds cannot be sustained by mere
conclusory statements; instead, there must be some articulated reasoning
with some rational underpinning to support the legal conclusion of
obviousness”).
CONCLUSION OF LAW
The preponderance of evidence relied upon by Examiner supports a
conclusion of obviousness with respect to Appellant’s claims 27, 34, and 39.
The rejection of claim 27 under 35 U.S.C. § 103(a) as unpatentable
over the combination of Reggie, Liu, and Payton is affirmed. Claims 33, 37,
41, 45, 46, 50, and 53 are not separately argued and fall with claim 27.
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The rejection of claim 39 under 35 U.S.C. § 103(a) as unpatentable
over the combination of Reggie, Liu, Payton, and Lodde is affirmed. Claims
40, 42-44, 48, and 52 are not separately argued and fall with claim 39.
The rejection of claim 34 under 35 U.S.C. § 103(a) as unpatentable
over the combination of Reggie, Liu, Payton, and Riera is affirmed. Claim
35 is not separately argued and falls with claim 34.
The preponderance of evidence relied upon by Examiner fails to
support a conclusion of obviousness, with respect to Appellant’s claims 38
and 54.
The rejection of claims 38 and 54 under 35 U.S.C. § 103(a) as
unpatentable over the combination of Reggie, Liu, Payton, and Odrich is
reversed.
The rejection of claim 54 under 35 U.S.C. § 103(a) as unpatentable
over the combination of Reggie, Payton, and Odrich is reversed.
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-IN-PART
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