Ex Parte Karazivan

Patent Trial and Appeal Board

Dec 14, 2015

10296246 (P.T.A.B. Dec. 14, 2015)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
10/296,246 07/14/2003
39500 7590 12/16/2015
Anglehart et al.
1939 de Maisonneuve Ouest
Montreal, QC H3H 1K3
CANADA
FIRST NAMED INVENTOR
Nairn Karazivan
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
Pl009USOO 6669
EXAMINER
SINGH, SUNIL K
ART UNIT PAPER NUMBER
3722
NOTIFICATION DATE DELIVERY MODE
12/16/2015 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):
jam es. anglehart@anglehart.et-al.ca
martine@anglehart.et-al.ca
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte NAIM KARAZIV AN
Appeal 2013-009132 1'2
Application 10/296,246
Technology Center 3700
Before PHILIP J. HOFFMANN, BRADLEYB. BAY AT, and
TARA L. HUTCHINGS, Administrative Patent Judges.
HOFFMANN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the rejection of
claims 3-26, 29-51, 53, 54, 62---66, 69-88, 90, 91, 93, 94, and 96-101. We
have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
According to Appellant, the invention relates to "the application of
sealing agents on smooth dental surfaces and, more particularly, on
1 Our decision references Appellant's Specification ("Spec.," filed Dec. 9,
2002) and Appeal Brief ("Br.," filed Jan. 23, 2013), as well as the Non-Final
Office Action ("Office Action," mailed Feb. 23, 2012) and the Examiner's
Answer ("Answer," mailed Apr. 10, 2013).
2 According to Appellant, "[t]he real party in interest is ... Dentsply
Canada Ltd." Br. 2.
Appeal2013-009132
Application 10/296,246
interproximal dental surfaces." Spec. if 1. Claims 90, 91, and 100 are the
only independent claims on appeal. We reproduce independent claim 90 as
representative of the appealed claims.
90. A kit comprising a closed surface made of a sheet
material having a thickness of about 0.0005 to 0.003 inch for
applying a sealant on an interproximal tooth surface, said sheet
material capable of substantially conforming to the shape of
said surface, a holder for pulling said closed surface against
said interproximal tooth surface, and a sealing agent for sealing
an area on said interproximal tooth surface, wherein said closed
surface is flexible and is adapted to mold in a periphery thereof
the interproximal surface such that said sealing agent, when
cured, substantially merges without interruption with a general
surface of the tooth.
Br., Claims App.
REJECTION AND PRIOR ART
The Examiner rejects claims 3-26, 29-51, 53, 54, 62---66, 69-88, 90,
91, 93, 94, and 96-101 under 35 U.S.C. § 103(a) as unpatentable over
Peterson (US 2,700,220, iss. Jan. 25, 1955).3 See Office Action 2-3; see
also Answer 4---6.
ANALYSIS
We have reviewed the Examiner's findings and determination (see,
e.g., Answer 4--8), and all of Appellant's arguments (see, e.g., Br. 11-23).
Appellant's arguments do not persuade us that the Examiner erred in
3 Although the heading on page 2 of the Final Action does not indicate that
claim 62 is rejected, the rejection itself indicates the basis for the rejection of
the claim. See Final Action 2 ("As to claim 62, the closed surface is adapted
to be removed from the sealing agent.").
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Application 10/296,246
determining that a claim limitation is shown or suggested by Peterson.
Thus, we sustain the rejection.
For example, with respect to independent claim 90, Appellant argues
that Peterson does not disclose a sealant, as claimed. See Br. 11-16. Even
assuming we agree with Appellant that the claim requires a sealant,
Appellant does not persuade us that Peterson's "plastic filling F"
(Peterson 2, 11. 1-5) is not a sealant. We note that Appellant's Specification
broadly defines a sealant as:
Cohesive product left in place on the dental surface after the
application procedure and resulting from this application. It
may comprise one or many of the following elements or
components of these elements: Sealing agent AS, protective
agent, conditioning agent AC, protector film, closed surface SF
(see description below), or other.
Spec. i-f 53 (emphasis added). The Specification also broadly defines a
sealing agent as:
Irzcludes, without restricting, any dental adhesive, dental
cement, dental sealant, BIS-GMA-type resin, other materials
usually for restoration, other cementing materials or other
types of materials that can constitute a covering. These
materials can be charged (e.g., microparticles), or uncharged.
These materials may or may not contain one or more beneficial
substances (e.g., fluor). These materials may or may not be
polymerized to light, to ultraviolet or be autopolymerizable.
The sealing agent AS must be able to adhere to a dental surface
for a prolonged period (a plurality of months).
Id. i-f 50 (emphasis added). Thus, because Appellant's Specification
indicates that "without restriction, any dental adhesive, dental cement, dental
sealant, ... other materials usually for restoration, other cementing materials
or other types of materials that can constitute a covering" may be a sealant,
Appellant's argument is not persuasive.
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Application 10/296,246
Appellant's arguments regarding the thickness of the sheet are also
unpersuasive. See Br. 16-18. Appellant does not establish persuasively that
the thickness of the sheet material is critical, and thus the Examiner's
determination that the claimed thickness would have been obvious is
reasonable. Appellant also submit arguments that exceed the scope of the
claims-for example, Appellant does not show where the claims recite "a
3D mold" or a "blister." See, e.g., Br. 17.
Appellant's further remarks regarding Peterson (see Br. 18-20) and
the unapplied reference to Davila, which Appellant characterizes as the
"closest prior art" (id. at 21) is not persuasive of error, because Appellant
does not establish that the Examiner errs in determining that a claimed
feature is shown or rendered obvious by Peterson.
Appellant's arguments regarding independent claims 91 and 100 are
similar to the arguments regarding claim 90. See Br. 22, 23. Thus, we are
not persuaded of error.
DECISION
We AFFIRM the Examiner's rejection under 35 U.S.C. § 103(a) of
claims 3-26, 29-51, 53, 54, 62-66, 69-88, 90, 91, 93, 94, and 96-101.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
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