Ex Parte Haralampopoulos et al

Patent Trial and Appeal Board

Jun 21, 2017

14206144 (P.T.A.B. Jun. 21, 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.
14/206,144 03/12/2014 Harry A. HARALAMPOPOULOS 4178-101 6551
6449 7590 06/23/2017
ROTHWELL, FIGG, ERNST & MANBECK, P.C.
607 14th Street, N.W.
SUITE 800
WASHINGTON, DC 20005
EXAMINER
MAI, HAO D
ART UNIT PAPER NUMBER
3732
NOTIFICATION DATE DELIVERY MODE
06/23/2017 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
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HARRY A. HARALAMPOPOULOS and
NIKOL H. HARALAMPOPOULOS
Appeal 2016-000188
Application 14/206,144
Technology Center 3700
Before JENNIFER D. BAHR, MICHELLE R. OSINSKI, and
BRANDON J. WARNER, Administrative Patent Judges.
OSINSKI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Harry A. Haralampopoulos and Nikol H. Haralampopoulos
(“Appellants”) appeal under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 1—9, 11—14, and 20—29.1 We have jurisdiction over
the appeal under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART and designate our affirmance as a NEW
GROUND OF REJECTION pursuant to our authority under 37 C.F.R.
§ 41.50(b).
1 Claims 10 and 15—19 are cancelled. Appeal Br. 14—15 (Claims App.).
Appeal 2016-000188
Application 14/206,144
THE CLAIMED SUBJECT MATTER
Claims 1,11, and 22 are independent. Claim 1 is reproduced below
and is illustrative of the subject matter on appeal.
1. A dental prosthesis assembly configured to be secured to a
one-piece dental implant having a head, said assembly
comprising:
a conversion abutment comprising:
a body having a substantially enclosed recess
formed therein and configured to receive the head of the
dental implant and retain a cement bond between the head
of the implant and an inner surface of the recess to
cementably secure the conversion abutment onto the head
of the dental implant with the head of the dental implant
inserted into the recess; and
a coronal outcropping extending from the body;
a coping configured to be attached to said conversion
abutment and including a recess formed therein for receiving said
coronal outcropping of said conversion abutment; and
a fastener element extending from said coping into said
coronal outcropping for securing the coping said conversion
abutment.
EVIDENCE
The Examiner relied on the following evidence in rejecting the claims
on appeal:
Engman US 2006/0099549 A1 May 11,2006
Abamo US 7,264,469 B2 Sept. 4, 2007
REJECTIONS
I. Claims 1—6, 20, 22—24, and 26—28 stand rejected under 35 U.S.C.
§ 102(b) as anticipated by Abamo. Final Act. 2—3.
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II. Claims 7 and 29 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Abamo. Id. at 4.
III. Claims 8, 9, 11—14, 21, and 25 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Abamo and Engman. Id. at 4—5.
OPINION
Rejection I
Claims 1—3, 5, 6, 20, 22—24, 27, and28
Appellants present arguments for the patentability of independent
claims 1 and 22 together as a group, and do not separately argue dependent
claims 2, 3, 5, 6, 20, 23, 24, 27, or 28. Appeal Br. 3—10; Reply Br. 1—9. We
select claim 1 as the representative claim, and claims 2, 3, 5, 6, 20, 22—24,
27, and 28 stand or fall therewith. 37 C.F.R. § 41.37(c)(l)(iv).
The Examiner finds that Abamo discloses all of the limitations
of independent claim 1, including, inter alia, “a body having a substantially
enclosed recess formed therein and configured to receive the head of the
dental implant and retain a cement bond between the head of the implant and
an inner surface of the recess.” Final Act. 2—3 (citing Abamo, Figs. 7, 8). In
particular, the Examiner finds that Abamo’s “substantially enclosed recess
160 is capable of {1) receiving the head 126 of the dental implant and (2)
retaining] a cement bond between the head 126 and an inner surface 158 of
the recess 160 to cementably secure the conversion abutment 144 onto the
head 126 with the head 126 inserted into the recess 160.” Ans. 7 (citing
Abamo, Figs. 7, 8).
Appellants argue that “no evidence has been presented that the tapered
socket (160) of the coronal base (114) of Abamo is capable of retaining a
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cement bond between the tapered socket and the head (126) of the apical
insert (112) to cementably secure the coronal base (114) to the apical insert
(112).” Reply Br. 7. Appellants assert that, “[bjecause the tapered socket
160 is the same size or smaller than the tapered surface 126, it would be
impossible to retain cement between the tapered socket and the tapered
surface.” Appeal Br. 6 (citing Abamo, Fig. 11; Spec. Figs. 4, 6); see also id.
at 9 (contending that cement “would interfere with the necessary frictional
engagement between the tapered socket 160 and the external tapered surface
126 and thereby prevent the Morse fit that permits the coronal base to be
secured to the apical insert”). According to Appellants, the Examiner’s
findings “are nothing more than speculations that the device of Abamo
might accommodate a cement bond, which is completely different from what
Abamo actually discloses — a coronal base that is configured to be secured to
the head of the apical insert by a Morse fit.” Id. at 8.
Regarding the Examiner’s stated positions that “a very thin layer of
cement or adhesive can be retained between the recess 160 and the head 126
to enhance securement there between” (Ans. 7), or that “Abamo’s recess 160
receiving and laying slightly atop but. . . not directly contacting the
implant’s head 126[,] thereby leave[es] space there[Jbetween for the retained
cement” {id. at 8), we agree with Appellants that these particular findings are
speculative and unsupported by evidence on the record. The Examiner has
not provided evidence or technical reasoning to reasonably support a finding
that any cement retained between tapered socket 160 of coronal base 114
and tapered surface 126 of apical insert 112 would necessarily result in a
cement bond to cementably secure conversion abutment 114 onto head 126
of apical insert 112, considering the disclosed frictional Morse fit between
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tapered socket 160 and tapered surface 126. Abamo, col. 9,11. 41—49.
However, for the reasons that follow, we are not persuaded of error in the
Examiner’s ultimate finding that Abamo anticipates claim 1.
Claim 1 recites a “dental prosthesis assembly configured to be secured
to a one-piece dental implant having a head, said assembly comprising” a
conversion abutment having a substantially enclosed recess, a coping, and a
fastener element. Appeal Br. 13 (Claims App.). In other words, claim 1
encompasses an assembly configured to be used with a dental implant, but
does not recite the dental implant as a stmctural element in the claimed
assembly. Accordingly, claim 1 does not include stmctural limitations (e.g.,
size or shape) with regard to the dental implant. Abamo’s recess (socket
160 of coronal base 114) is capable of receiving the head of a dental implant
and retaining a cement bond between the head of the implant and an inner
surface of the recess (socket 160) to cementably secure the conversion
abutment (coronal base 114) onto the head of the dental implant (see
Abamo, Fig. 8), as called for in claim 1, when utilized with an appropriately
configured dental implant head.
Appellants’ argument that Abamo’s coronal base 114 is incapable of
performing the recited function is premised on the disclosed fitment between
socket 160 and a specific dental implant head stmcture (i.e., tapered surface
126 of apical insert 112). However, this line of argument is not persuasive
when considering Abamo’s coronal base in connection with an appropriately
configured dental implant. To the extent that Appellants may intend for the
substantially enclosed recess of the conversion abutment to have a particular
dimensional relationship with a specific implant head stmcture (e.g. a
particular size gap or space between the surfaces when the conversion
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abutment is placed on the head of the implant), such a feature is not recited
in the claims. Appellants’ claim 1 does not require the structure of a
particular dental implant in combination with the conversion abutment.
Appellants’ arguments based specifically on Abamo’s dental implant head
(tapered surface 126 of apical insert 112), rather than simply a dental
implant head without any structural recitation as recited, are not persuasive.
See In re Self, 671 F.2d 1344, 1348 (CCPA 1982) (limitations not appearing
in the claims cannot be relied upon for patentability).
Regarding the structure of the recess “configured to receive the head
of the dental implant and retain a cement bond,” Appellants’ Specification
describes that “[e]ach recess 15 and 17 is configured to correspond to the
shape of the head 7 of the implant 5 so that the conversion abutment
assembly fits snugly over the head of the implant.” Spec. 127; see also id.
135 (describing that “[t]he recess of the conversion abutment may be
configured to correspond to any shape of the head of an implant”). The
Specification also describes that, “[a]s shown in Figures 4 and 5, cement 43
can be disposed between the head 7 of the implant 5 and the interior walls of
recess 15 and 17, e.g. to secure the conversion abutment 11 and 13 to
implant 5.” Id. 134. The Specification does not specify that the recess has
any particular dimensions or structural features beyond broadly
“correspond[ing] to the shape of,” and “fitting] snugly over,” a nonspecific
and unclaimed dental implant head. In other words, the Specification does
not describe the recess in any way that would require a narrower
construction of “configured to receive the head of the dental implant and
retain a cement bond” than simply as capable of retaining cement and
receiving a dental implant head having a nonspecific size and shape.
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Application 14/206,144
Abamo discloses a conversion abutment (coronal base 114) having a
substantially enclosed recess (tapered socket 160) that is capable of
receiving the head of a dental implant inserted therein. We are unpersuaded
by Appellants’ contention that Abamo’s socket 160 would be incapable of
retaining a cement bond with the head of a dental implant. We are not
convinced of a meaningful distinction between the stmcture of Abamo’s
socket 160 and the “substantially enclosed recess . . . configured to receive
the head of the dental implant and retain a cement bond,” recited in claim 1.
For the foregoing reasons, Appellants do not show error by the
Examiner in finding that Abamo discloses all of the limitations of
independent claim 1. We sustain the rejection of claim 1, and claims 2, 3, 5,
6, 20, 22—24, 27, and 28, which fall therewith, under 35 U.S.C. § 102(b) as
anticipated by Abamo. However, because our analysis relies upon a claim
constmction, and associated facts and reasoning, that the Examiner did not
use, we designate the affirmance of the rejection of these claims as a NEW
GROUND OF REJECTION pursuant to 37 C.F.R. § 41.50(b).
Claims 4 and 26
Appellants separately argue the patentability of dependent claims 4
and 26, which recite “a cement release opening formed into the recess of the
body.” Appeal Br. 13, 16 (Claims App.). The Examiner finds that Abamo’s
“recess 160 of the body 114 has an opening 144 capable of cement release
(Fig. 8).” Final Act. 3. According to the Examiner, “the recess 160 is
capable of releasing (any excess) cement via that opening 144.” Ans. 9.
Appellants argue that “[ejlement 144 is actually a bottom surface of
the coronal base 114, not an opening to the socket (160).” Reply Br. 9
(citing Abamo, col. 8,1. 51). Appellants also assert that “the opening to the
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socket (160) is not ‘formed into the recess of the body,’” as recited in claims
4 and 26. Id. We find Appellants’ argument persuasive.
The Specification describes that “[cjement release holes 9 may be
provided to extend from the recess 15 and 17 to permit excess cement to
escape the recess when the conversion abutments 11 and 13 are placed over
the head 7 of the implant 5.” Spec. 127. As such, when read in light of the
Specification, “a cement release opening formed into the recess of the body”
requires an opening (i.e., hole) extending from the recess (i.e., in addition to
the recess itself). To the extent that Abamo’s recess (socket 160) includes
an opening in the body (coronal base 114), such an opening defines the
recess in the body rather than extending from the recess. As such, the
Examiner’s finding that Abamo discloses “a cement release opening formed
into the recess of the body” is not supported by a preponderance of the
evidence.
For these reasons, we do not sustain the rejection of dependent claims
4 and 26 under 35 U.S.C. § 102(b) as anticipated by Abamo.
Rejection II
Dependent claims 7 and 29 recite that “the recess for receiving the
head of the dental implant is at an angle relative to the threaded hole formed
in the coronal outcropping to accommodate a dental implant installed at an
angle.” Appeal Br. 14, 16 (Claims App.). The Examiner acknowledges that
the embodiment shown in Figure 8 of Abamo “fails to disclose [that] the
recess 160 is at an angle to the threaded hole [156] formed in the coronal
outcropping [150] to accommodate the dental implant [112] installed at an
angle.” Ans. 9. The Examiner finds that an alternative embodiment of
“Abamo shows the head of the implant [612] being at an angle A2 relative
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to the threaded hole [622] of the outcropping [620] (Figs. 18A—18B).” Final
Act. 4. In Figure 18B, hole 622 of outcropping 620 is at an angle A2
relative to longitudinal axis A of apical insert 612, and thus, is at an angle
A2 relative to any recess configured to receive apical insert 612 that is
aligned along the longitudinal axis A. Abamo, Fig. 18B. The Examiner
finds that Figure 18B shows “a similar abutment structure 616 having a body
with a bottom recess capable of receiving an implant’s head,” and “also has
a coronal outcropping 620 having a blind threaded hole 622 similar to the
abutment structure 114 of Figure 8.” Ans. 10. The Examiner determines
that it would have been obvious “to modify Abamo’s abutment 114 as
shown in Figure 8 by placing the threaded hole [156] [of outcropping 150] at
an angle relative to the recess [ 160] [aligned with the head of the implant
112] as shown in Figure 18B in order to accommodate an angled implant or
crown.” Id.
Appellants argue that Abamo “do[es] not disclose that the recess for
receiving the head of the implant is at an angle with respect to the threaded
hole in the coronal outcropping.” Appeal Br. 11. In particular, with
reference to Figures 18A and 18B, Appellants assert that “the threaded hole
that is at an angle A2 with respect to the head of the element 612 is a hole in
the abutment 616[,] not a hole in the component alleged to correspond to the
coronal outcropping.” Id. Appellants explain that “the threaded hole that
receives fastener (630) and is at an angle (A2) with respect to the head of the
apical insert (612) is a hole in the abutment (616), which corresponds to
[Appellants’] internal coping (33), not to the conversion abutment (13).”
Reply Br. 12. According to Appellants, “[t]he hole that receives fastener
(618) for securing the abutment (616) (corresponding to [Appellants’]
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Application 14/206,144
internal coping (33)) to the coronal base (614) (corresponding to
[Appellants’] conversion abutment (13)) is coaxial with axis (A) and is
aligned with the apical insert (612).” Id.
Appellants’ argument is not persuasive in that it is not responsive to
the rejection presented by the Examiner. The Examiner does not find that
Abamo’s Figure 8 embodiment or Figure 18B embodiment anticipates the
angled recess of claims 7 and 29. Rather, the Examiner determines that,
given the teachings of Abamo’s embodiment as shown in Figure 18B, it
would have been obvious to modify the embodiment shown in Figure 8 so as
to position the threaded hole (passage 156) in the coronal outcropping (pilot
150) at an angle relative to the recess (socket 160) for receiving the implant
head. Final Act. 4.
With respect to the Examiner’s conclusion of obviousness, Appellants
state “[t]he fact that fastener (630) for securing a dental prosthesis to the
abutment (616) is at an angle with respect to the apical insert (612) does not,
without more, make it obvious to configure the fastener (618) for securing
the abutment (616) to the coronal base (614) at an angle with respect to the
apical insert (612).” Reply Br. 12. This assertion is not persuasive because
it fails to address the rejection articulated by the Examiner, which is based
on modifying the embodiment of Figure 8, not based on modifying the
embodiment of Figure 18B. Moreover, this assertion is unpersuasive of
Examiner error in that it does not specifically address the reasoning
articulated in support of the proposed modification of Abamo or
persuasively explain why the reasoning lacks rational underpinnings. See In
re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (cited with approval
in KSR, 550 U.S. at 418) (“[R]ejections on obviousness grounds . . ,
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Application 14/206,144
[require] some articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness.”). Here, the Examiner
articulates adequate reasoning having rational underpinnings for the
proposed modification of Abamo’s embodiment shown in Figure 8, which
Appellants do not persuasively refute. See Final Act. 4 (reasoning that the
modification would “accommodate a crown angled relative to the implant”);
Ans. 10 (further reasoning that “[s]uch modification has [a] reasonable
expectation of success, considering the two abutment structures 114 in
Figure 8 and [6] 16 in Figure 18B being very similar”).2
For the foregoing reasons, Appellants do not apprise us of error in the
Examiner’s conclusion that Abamo renders obvious the subject matter of
dependent claims 7 and 29, and we sustain the rejection of these claims
under 35 U.S.C. § 103(a) as unpatentable over Abamo. For the same
reasons discussed above in the context of Rejection I, we likewise designate
2 We have also considered Appellants’ argument that the Examiner’s
analysis with respect to dependent claims 7 and 29 “is inconsistent with the
Examiner’s analysis regarding the independent claims” when the Examiner
points to a teaching of a threaded hole in Figure 18B’s element 616 in
connection with modifying Figure 8’s element 114. Appellants assert that
Figure 18B’s element 616 more closely corresponds to Figure 8’s element
116 (identified by the Examiner as the claimed “coping” in connection with
the rejection of the independent claims), rather than Figure 8’s element 114
(identified by the Examiner as the claimed “abutment” in connection with
the rejection of the independent claims). Appeal Br. 11. This argument is
not persuasive, however, because Appellants fail to respond to the
Examiner’s finding that the stmcture of element 616 in Figure 18B is very
similar to the stmcture of element 114 of Figure 8 and an ordinary artisan
would have a reasonable expectation of success in modifying element 114 of
Figure 8 with the teachings relating to element 616 of Figure 18B. See Ans.
10.
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our affirmance of the rejection of claims 7 and 29 under 35 U.S.C. § 103(a)
as unpatentable over Abamo as a new ground of rejection.
Rejection III
Because Appellants rely on the same arguments and reasoning we
found unpersuasive in connection with independent claim 1, we also sustain
the rejection of claims 8, 9, 11—14, 21, and 25 under 35 U.S.C. § 103(a) as
unpatentable over Abamo and Engman. See Appeal Br. 12 (relying on the
alleged deficiencies of Abamo and asserting that Engman fails to remedy
such deficiencies). For the same reasons discussed above in the context of
Rejection I, we likewise designate our affirmance of the rejection of claims
8, 9, 11—14, 21, and 25 under 35 U.S.C. § 103(a) as unpatentable over
Abamo and Engman as a new ground of rejection.
DECISION
The Examiner’s decision to reject claims 1—3, 5—9, 11—14, 20-25, and
27—29 is affirmed, and we designate our affirmance of the rejections of these
claims as NEW GROUNDS OF REJECTION.
The Examiner’s decision to reject claims 4 and 26 is reversed.
This decision contains NEW GROUNDS OF REJECTION pursuant
to 37 C.F.R. § 41.50(b). Section 41.50(b) provides “[a] new ground of
rejection pursuant to this paragraph shall not be considered final for judicial
review.” Section 41.50(b) also provides:
When the Board enters such a non-final decision, the appellant,
within two months from the date of the decision, must exercise
one of the following two options with respect to the new ground
of rejection to avoid termination of the appeal as to the rejected
claims:
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(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new Evidence relating to
the claims so rejected, or both, and have the matter reconsidered
by the examiner, in which event the prosecution will be
remanded to the examiner. The new ground of rejection is
binding upon the examiner unless an amendment or new
Evidence not previously of Record is made which, in the opinion
of the examiner, overcomes the new ground of rejection
designated in the decision. Should the examiner reject the
claims, appellant may again appeal to the Board pursuant to this
subpart.
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same Record. The
request for rehearing must address any new ground of rejection
and state with particularity the points believed to have been
misapprehended or overlooked in entering the new ground of
rejection and also state all other grounds upon which rehearing
is sought.
Further guidance on responding to a new ground of rejection can be
found in the Manual of Patent Examining Procedure § 1214.01.
AFFIRMED-fN-PART; 37 C.F.R, $ 41.50(b).
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