Ex Parte GantesDownload PDFPatent Trial and Appeal BoardDec 28, 201613168285 (P.T.A.B. Dec. 28, 2016) Copy Citation 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. 13/168,285 06/24/2011 Bernard Gantes 101835-0006P3 9754 34284 7590 Rutan & Tucker, LLP 611 ANTON BLVD SUITE 1400 COSTA MESA, CA 92626 12/30/2016 EXAMINER LEWIS, RALPH A ART UNIT PAPER NUMBER 3732 NOTIFICATION DATE DELIVERY MODE 12/30/2016 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): patents @ rutan. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte BERNARD GANTES Appeal 2015-003834 Application 13/168,285 Technology Center 3700 Before JOHN C. KERINS, BRANDON J. WARNER, and SEAN P. O’HANLON, Administrative Patent Judges. O’HANLON, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Bernard Gantes (Appellant) appeals under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 24-43.1 We have jurisdiction over this appeal under 35 U.S.C. § 6(b). SUMMARY OF DECISION We AFFIRM. 1 Claims 1—23 are canceled. App. Br. 3. Appeal 2015-003834 Application 13/168,285 SUMMARY OF INVENTION Appellant’s claimed invention “relate[s] to systems and methods for use in the production and/or delivery of dental prostheses.” Spec. 12. Claim 24, reproduced below from page 26 (Claims Appendix) of the Appeal Brief, is illustrative of the claimed subject matter: 24. A method, of planning an oral or facial endosseous implantation in a patient, comprising: providing a processing module; communicating bone data to the processing module, the bone data representative of at least a portion of the bone of the skull of the patient; communicating surface data to the processing module, the surface data representative of at least a portion of a surface, of the patient, that is apart from, and near, the bone; with the processing module, processing the bone data and the surface data into an output comprising three-dimensional (3-D) representation data indicative of at least one of the group consisting of an oral structure and a facial structure of the patient; with a fabricator and based on the 3-D representation data, producing a physical model of the at least one of the patient’s oral structure and the facial structure of the patient, the model indicative of a planned location of an endosseous implant; and providing mounted analogs separate from and inserted in the physical model representing surgical implants to be installed in the patient’s jaw. 2 Appeal 2015-003834 Application 13/168,285 REFERENCES The Examiner relies on the following prior art references in rejecting the claims on appeal: Pompa US 5,320,529 June 14, 1994 Sogo US 2006/0127848 A1 June 15, 2006 Powell US 2007/0092854 A1 Apr. 26, 2007 Suttin US 8,206,153 B2 June 26, 2012 REJECTIONS Claims 24, 42, and 43 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Pompa and Sogo. Claims 25—30 and 33—41 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Sogo and Suttin.2 Claims 31 and 32 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Sogo, Suttin, and Powell. 2 The Examiner denominates this rejection in the Answer as a new ground of rejection, in that that the detailed grounds for this rejection as stated in the Final Action cited to Pompa in addressing certain limitations in claim 41, whereas Pompa was not included in the initial statement of the rejection. Ans. 12; see also Final Act. 10-11. The claims were rejected in view of Sogo and Suttin in the Examiner’s Answer. Ans. 7—12. Appellant responds to this new ground by maintaining the appeal by filing a reply brief, and thus we review the new ground of rejection as presented in the Examiner’s Answer. See Ans. 16—17; 37 C.F.R. § 41.39(b). 3 Appeal 2015-003834 Application 13/168,285 ANALYSIS Claim Construction The Examiner determines that the term “fabricator” as used in independent claim 24 is a non-structural term modified by functional language without reciting structure to achieve the recited functions. Final Act. 2. Thus, the Examiner construes “fabricator” under 35 U.S.C. § 112, sixth paragraph, and determines that the term means “milling machine.” Id. at 3 (citing Spec. 121). Although Appellant misconstrues the Examiner’s claim construction analysis as a rejection (see, e.g., App. Br. 8), Appellant also defines fabricator as a “milling machine” or a “multi-axis milling machine” (id. at 9). Thus, there appears to be no dispute as to the meaning of the term “fabricator,” which we construe as a milling machine and equivalents thereof. Obviousness Rejection Based on Pompa and Sogo The Examiner finds that Pompa discloses the method substantially as claimed in independent claim 24, but “does not specifically disclose fabricating the physical model using a fabricator.” Final Act. 4—5. The Examiner finds that Sogo discloses a fabricator (“fabrication module 2”), and reasons that it would have been obvious to a skilled artisan to use Sogo’s fabricator with Pompa’s method “for the purpose of accurately creating a three-dimensional object using computer data using known techniques.” Id. at 5—6. Appellant traverses, arguing that “nowhere in Sogo can ‘producing models using a fabrication module’ be found,” and that Sogo does not 4 Appeal 2015-003834 Application 13/168,285 “teach, suggest, motivate, or otherwise obviate producing models using a fabrication module.” App. Br. 16. We are not persuaded by Appellant’s arguments. The Examiner relies on Pompa, rather than Sogo, to disclose the production of a physical model (Final Act. 4), although we note that Sogo discloses the production of models using a fabricator as well (see, e.g., Sogo Tflf 154, 161). The Examiner relies on Sogo to teach the use of manufacturing member 2 to produce Pompa’s physical model. Appellant has failed to apprise us of any error. Accordingly, we sustain the Examiner’s rejection of independent claim 24, as well as of its dependent claims 42 and 43, as being unpatentable over Pompa and Sogo. Obviousness Rejection Based on Sogo and Suttin The Examiner determines claims 25—30 and 33—41 to be unpatentable over Sogo and Suttin. Ans. 7—12. Appellant relies on the arguments presented above with regard to the rejection of claim 24 in view of Pompa and Sogo. App. Br. 20—21; see also Reply Br. 8—10. To the extent that these arguments are applicable to the combination of Sogo and Suttin (we note that claim 25 does not require producing a physical model), they are unpersuasive for the reasons set forth above. Accordingly, we sustain the rejection of claims 25—30 and 33—41 as being unpatentable over Sogo and Suttin. 5 Appeal 2015-003834 Application 13/168,285 Obviousness Rejection Based on Sogo, Suttin, and Powell Independent claim 25, from which each of claims 31 and 32 indirectly depends, contains similar recitations as independent claim 24, but omits the fabricator and requires an assistant module and a computer implemented computerized surgical module. App. Br. 26—27 (Claims Appendix). Claim 31 further requires that “the surgical module comprises a robot that, based on the treatment plan, implants the endosseous implant in the patient.” Id. at 28 (Claims Appendix). Claim 32 further requires that “the surgical module comprises a robot that installs a dental prosthesis on the endosseous implant.” Id. The Examiner finds that Sogo as modified by Suttin discloses the method substantially as claimed in claims 31 and 32, but does not disclose that “the surgical module comprises a robot that (instead of a dental physician), based on the treatment plan, implants the endosseous implant in the patient and installs a dental prosthesis on the endosseous implant.” Final Act. 11. The Examiner finds that Powell “teaches method steps normally done by a dental physician, such as implantation of an implant, being done by a robot,” and reasons that it would have been obvious to a skilled artisan to perform the steps disclosed in Sogo and Suttin with a robot “for the purpose of ensuring accuracy in performing the steps.” Id. at 11—12. Appellant traverses, arguing that “Powell discloses a robot manipulator 2100 that merely places the implant analog 2102 in a securing material 2104, not directly ‘in the patient’” and that Powell does not disclose “robotically installing a dental prosthesis on an implant, but 6 Appeal 2015-003834 Application 13/168,285 merely discloses manually mating a prosthesis with an implant.” App. Br. 23. We find these arguments unpersuasive for the reasons stated by the Examiner—namely, that Powell is only used to teach robotic placement of a component as a substitute for manual placement of an implant in a patient’s jaw. See Ans. 15. As set forth by the Examiner, Powell’s robot manipulator is used to perform the recited use on a casting of the patient’s mouth, similar to Appellant’s machined model replica. Appellant has not convincingly explained why a person of ordinary skill in the art would have believed that Powell’s robot manipulator would not also be able to perform the same function on the patient, or identified any difference between Powell’s robot manipulator and the recited robot that would render the claimed robot suitable for use, while rendering the Powell robot manipulator unsuitable for such use. Appellant has failed to apprise us of any error in the Examiner’s position. Accordingly, we sustain the rejection of claims 31 and 32 as being unpatentable over Sogo, Suttin, and Powell. DECISION The Examiner’s decision to reject claims 24-43 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED 7 Copy with citationCopy as parenthetical citation