Ex Parte Kojima et al

Patent Trial and Appeal Board

Dec 18, 2015

12839722 (P.T.A.B. Dec. 18, 2015)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/839,722 07/20/2010 Shinichi KOJIMA
22850 7590 12/22/2015
OBLON, MCCLELLAND, MAIER & NEUSTADT, LLP,
1940 DUKE STREET
ALEXANDRIA, VA 22314
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.
364350USO 8747
EXAMINER
APONTE, MIRA YDA ARLENE
ART UNIT PAPER NUMBER
3732
NOTIFICATION DATE DELIVERY MODE
12/22/2015 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):
patentdocket@oblon.com
oblonpat@oblon.com
ahudgens@oblon.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SHINICHI KOJIMA, MASA YUKI TAKAHASHI,
and TOMOHIRO UCHIDA
Appeal2013-007905
Application 12/839,722
Technology Center 3700
Before JENNIFERD. BAHR, LINDAE. HORNER, and
BRANDON J. WARNER, Administrative Patent Judges.
BAHR, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Shinichi Kojima et al. (Appellants) appeal under 35 U.S.C. § 134
from the Examiner's decision rejecting claim 1 under 35 U.S.C. § 103(a) as
unpatentable over Aoyagi (US 6,869,284 B2, iss. Mar. 22, 2005), Mukasa
(US 6,386,872 Bl, iss. May 14, 2002), and Fay (US 5,240,397, iss. Aug. 31,
1993). We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
Appeal2013-007905
Application 12/839,722
THE CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is the only claim pending in the present
application.
1. A capsule for a tooth restorative material for directly
administering a mixed and kneaded material (C) obtained by
mixing and kneading the tooth restorative material constructed
by two components of previously weighed fixed amounts of a
powder component (A) and a liquid component (8) in an inner
portion, to a position to be restored in a tooth of a patient, the
capsule comprising:
a powder component storing cup (1) having a mixing
comparted chamber (la) in which the powder component (A) is
stored, formed in a cylinder shape, provided with a first
opening forming portion (1 b) to form a circular hole for an
outlet of the mixed and kneaded material (C) on a center axis of
a front end portion (1 c) thereof, provided with an applier
engagement groove ( 1 d) in an outer peripheral side surface near
a rear end portion, and integrally formed by injection molding
of a thermoplastic synthetic resin;
a liquid component storing cup (2) having a liquid
component storing chamber (2a) in \~1hich the liquid component
(8) is stored in an inner portion, provided with a second
opening forming portion (2b) to form a circular hole for an
outlet of the liquid component (8) on a center axis of a front end
portion thereof, fitted into the cylinder-shaped portion forming
the mixing comparted chamber (la) of said powder component
storing cup (1 ), provided with a convex stopper (2c) having
such a magnitude as to prevent easily slipping into said powder
component storing cup (1) at a time of pushing and breaking
said second opening forming portion (2b) so as to form the
circular hole for the outlet of the liquid component (B) and not
to inhibit entering into said powder component storing cup (1)
in the case that great force is applied on an outer side surface in
the vicinity of the rear end portion, and integrally formed by
injection molding of a thermoplastic synthetic resin;
a plunger (3) having a rod-like projection (3a) including a
planer peak portion for pushing and breaking the second
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Appeal2013-007905
Application 12/839,722
opening forming portion (2b) of said liquid component storing
cup (2) and the first opening forming portion (1 b) of said
powder component storing cup (1 ), fitted into the cylinder-
shaped portion within said liquid component storing cup (2),
and integrally formed by injection molding of a thermoplastic
synthetic resin; and
a nozzle ( 4) having its rear end portion ( 4b) formed in a
shape corresponding to the front end portion ( 1 c) of said
powder component storing cup (1 ), fixed to the front end
portion of said powder component storing cup ( 1 ), and
integrally formed by injection molding of a thermoplastic
synthetic resin,
wherein a protrusion portion ( 4c) having its inner end
positioned slightly inside an outer periphery of the circular hole
of the first opening forming portion ( 1 b) is provided on the rear
end portion ( 4b) of said nozzle ( 4) in such a manner as to be
positioned at a position which is in the vicinity of the first
opening forming portion (1 b) to form the circular hole for the
outlet of the mixed and kneaded material of said powder
component storing cup ( 1) and is away from at least a hinge
portion of the circular hole.
OPINION
The issue raised in this appeal is whether the Examiner has shown, by
a preponderance of the evidence, that Aoyagi discloses a protrusion portion
having its inner end positioned slightly inside an outer periphery of a
circular hole of a first opening forming portion, as required by claim 1. See
Appeal Br. 6; Ans. 4--5, 8.
The Examiner includes an annotated version of Figure 1 of Aoyagi,
reproduced below, to illustrate what the Examiner considers to be the
protrusion portion, the inner end of the protrusion portion, and the outer
periphery of the circular hole. Ans. 7.
3
Appeal2013-007905
Application 12/839,722
FlG. 1
Outer Per!phery of
the Circu!:ar Hole
, ,
' ' '
!~-~·~~
!~\
f
4a / ,
· P,ri;tni$IC:n )
Portion (shown
, dmkened) 4·. ,
' I ~y~~~~~~~~~~~~,y~~~~~~,~~~~~,y~~~~~~,~~~~'~y~~~~~~~~I
Protrusion
Inner End
Outer ParipMry ot
th~ Circular Ho:h·~
Aoyagi's Figure 1 above depicts a cross-sectional view of a capsule
for dental restoration material including air-permeable filter le that permits
ventilation of mixing compartment 1 a without passing powder component
A. Aoyagi, col. 4, 11. 40-42; col. 6, 11. 24--32. The annotated figure shows a
darkened area (added by the Examiner) of filter 1 c denoting the identified
protrusion portion along with added arrows denoting the protrusion inner
end and the circular hole outer periphery.
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Appeal2013-007905
Application 12/839,722
Appellants persuasively argue that the protrusion portion indicated by
the Examiner's annotation is located outside the outer periphery of the
circular hole rather than inside the outer periphery of the circular hole as
claimed. Appeal Br. 6. Moreover, to the extent that any part of the
protrusion is positioned inside the circular hole, this part does not include the
inner end denoted by the Examiner.
For the above reasons, the Examiner fails to establish, by a
preponderance of the evidence, that Aoyagi discloses a protrusion portion
having its inner end positioned slightly inside an outer periphery of a
circular hole of a first opening forming portion, as recited in the claim. The
Examiner does not rely on any teaching in Mukasa or Fay that might make
up for the deficiency in Aoyagi. Thus, we do not sustain the rejection of
claim 1 under 35 U.S.C. § 103(a) as unpatentable over Aoyagi, Mukasa, and
Fay.
DECISION
The Examiner's decision rejecting claim 1 is reversed.
REVERSED
rvb
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