Ex Parte Wu

Board of Patent Appeals and Interferences

Feb 27, 2009

10662744 (B.P.A.I. Feb. 27, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte GIN WU1
____________________

Appeal 2009-1101
Application 10/662,744
Technology Center 3700
____________________

Decided:2 February 27, 2009
____________________

Before JAMES T. MOORE, Vice Chief Administrative Patent Judge, and
JAMISON LEE and SALLY MEDLEY, Administrative Patent Judges.

MOORE, Vice Chief Administrative Patent Judge.

DECISION ON APPEAL
1
STATEMENT OF THE CASE 2
The Appellant appeals under 35 U.S.C. § 134 (2002) from a final 3
rejection of claims 14-23.3 We have jurisdiction under 35 U.S.C. § 6(b) 4
(2002). 5

1 The real party in interest is Pro-Dex, Inc. (App. Br. 2).
2 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 CFR § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from
Mail Date (paper delivery) or Notification Date (electronic delivery).

3 Claims 1-13 and 24 have been canceled. (App. Br. 2).

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The Appellant’s claims are directed to a drill bit for drilling hard 1
tissue and injecting medication and to a method of using the drill bit to inject 2
a substance into a bone. 3
Claim 14 is the only independent claim in the application. The 4
Appellant argues claim 14 as the representative claim for the anticipation 5
rejections. The Appellant separately argues dependent claim 16 as the 6
representative claim for the obviousness rejection. Accordingly, the 7
remaining claims rejected under 35 U.S.C. § 102(b) stand or fall with claim 8
14. Similarly, the claims rejected under 35 U.S.C. § 103(a) stand or falls 9
with claim 16. 10
Claim 14 reads as follows: 11
14. A drill bit for drilling hard tissue and injecting medication 12
comprising: 13
a shaft having a proximal end with a first opening, a 14
distal end with a second opening and a beveled 15
cutting surface; 16
a lumen inside the shaft that extends between first and 17
second openings, and that receives debris entering the 18
first opening as a result of operation of the cutting 19
surface; 20
an open notch disposed in the shaft, and having a length 21
greater than a diameter of the lumen; and 22
wherein an overall length from a distal tip of the cutting 23
surface to a proximal end of the open notch is greater 24
than a thickness of the hard tissue. 25
26
Claim 16 reads as follows: 27
16. A drill bit of claim 14, wherein the overall length is 28
about 0.10 to 0.125 inches. 29
30
(App. Br. 12, Claims Appendix). 31

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Figures 2 and 3a from the Application, reproduced below, 1
illustrate one embodiment of the claimed drill bit. (Specification pp. 2
6:29-7:2). 3
4
5
6
7
8
9
{Figure 2 illustrates a longitudinal section of the drill bit of the 10
invention. Figure 3a illustrates an enlarged perspective of the beveled 11
tip and extended slot of the drill bit of the invention. (Id.).} 12
13
THE EVIDENCE 14
15
The Examiner relies upon the following as evidence in support of the 16
rejections: 17
Shaw 5,261,818 Nov. 16, 1993 18
De Santis 5,560,373 Oct. 01, 1996 19
20
THE REJECTIONS 21
22
The following rejections are before us for review: 23
1. Claims 14, 15, 17, 18, 22 and 23 stand rejected under 35 U.S.C. 24
§ 102(b) as being anticipated by De Santis. 25
2. Claims 14, 15, 17, 19 and 21 stand rejected under 35 U.S.C. § 26
102(b) as being anticipated by Shaw. 27
3. Claims 16 and 20 stand rejected under 35 U.S.C. § 103(a) as 28
being obvious over Shaw. 29
We AFFIRM. 30

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ISSUES 1
Has the Appellant established that the Examiner erred in determining 2
that the prior art anticipated each limitation of the claimed drill bit and 3
method for its use? 4
Has the Appellant established that the Examiner erred in determining 5
that it would have been obvious to one of ordinary skill in the art at the time 6
the invention was made to modify a known drill bit by selecting an overall 7
length of about 0.10 to 0.125 inches? 8
FINDINGS OF FACT 9
The record supports the following findings of fact by a preponderance 10
of the evidence. 11
1. De Santis describes a needle core biopsy instrument with a 12
durable or disposable cannula assembly. (De Santis Title). 13
2. De Santis describes that the instrument is designed to extract a 14
tissue sample via needle aspiration. (Id. 1:16-18). 15
3. De Santis figures 1 and 7 are reproduced below: 16
17
18
{Figure 1 shows the tissue sample extractor of the invention. 19
Figure 7 shows the distal ends of the first biopsy cannula and the 20
second cutting cannula of the invention. (Id. 5:65-6:15).} 21

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4. De Santis describes that the instrument comprises a first biopsy 1
cannula 12 (shaft) that is coaxially mounted within the second cutting 2
cannula 14, each with proximal and distal ends. (Id. 7:14-18). 3
5. De Santis also describes that the first cannula 12 has a hollowed-4
out biopsy reservoir 46 (notch and site of second opening) formed 5
proximally of the beveled cutting tip 44. (Id. 7:32-34). 6
6. De Santis describes that at the rear portion of the biopsy reservoir 7
46 is a lumen or channel 13 (lumen and site of first opening) that runs the 8
length of the first cannula 12 and allows the biopsy reservoir to establish 9
fluid communication with a conventional syringe. (De Santis 7:42-45). 10
7. De Santis describes that syringe 22 generates a vacuum force to 11
draw and isolate extracted tissue. (Id. 7:42-50). 12
8. Shaw describes a multi-fluted dental irrigation drill. (Shaw Title). 13
9. Shaw describes that the dental drill, also known as a bit, is 14
designed to create “channels in the human jawbone prior to the insertion of 15
an implant or post upon which a dental structure such as a bridge is to be 16
placed.” (Id. 1:5-10; 57-60). 17
10. Shaw figures 1 and 6 are reproduced below: 18
19
20
21
22
23
24
25
26
27
28

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{Figure 1 shows 6 shows an axial elevational view and Figure 6 shows an 1
axial cross-sectional view of the dental drill of the invention. (Id. 2:9-21).} 2
3
11. Shaw describes that the drill comprises a cutting portion 13 (shaft) 4
having a working tip 14 (cutting surface). (Id. 2:25-30). 5
12. Shaw also describes that an irrigation channel 18 (lumen) runs the 6
entire axial length of the drill. (Id. 2:32-34). 7
13. Shaw describes irrigation channel outlets 22 (second opening), 26 8
(open notch), and 34 (first opening). (Id. 2:61-64). 9
PRINCIPLES OF LAW 10
A prior art apparatus having the same structure as a claimed apparatus 11
renders a claimed apparatus unpatentable under Section 102 as long as it is 12
capable of performing the intended use. In re Yanush, 477 F.2d 958, 959 13
(CCPA 1973). 14
ANALYSIS 15
I. The Rejection of Claims 14, 15, 17, 18, 22 and 23 under 35 U.S.C. 16
§ 102(b) as being anticipated by De Santis. 17
Claims 14, 15, 17, 18, 22 and 23 stand rejected under 35 U.S.C. § 18
102(b) as being anticipated by De Santis. Specifically, the Examiner found 19
that “De Santis teaches a drill bit with a shaft (12), a first opening (distal end 20
of 13), a second opening (at the notch), a lumen (13), and a notch (46).” 21
(Final Rejection, Nov. 8, 2007, p. 2) (citing De Santis Fig. 7). The Examiner 22
also found that the shaft (12) is disposed in the hub. (Id.) (citing De Santis 23
Fig. 1). 24
The Appellant asserts that the Examiner erred in rejecting claim 14 25
because De Santis fails to teach a drill bit “wherein an overall length from a 26

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distal tip of the cutting surface to a proximal end of the open notch is greater 1
than a thickness of the hard tissue,” as claimed. (App. Br. 6). According to 2
the Appellant, “De Santis teaches the exact opposite” by describing a drill 3
bit designed “to extract a sample of tissue.” (Id.). Specifically, the 4
Appellant asserts that De Santis’ drill bit “must be less than the thickness of 5
the hard tissue” for the tissue biopsy to be drawn into its biopsy reservoir 46. 6
(Id. 7; Reply 2) (emphasis in original). The Appellant also asserts that De 7
Santis “must be used in tissue where the vacuum force can draw the cut 8
tissue into the biopsy reservoir.” (Reply 2) (citing De Santis 10:10-15). 9
This argument is not persuasive. 10
Initially, we look to the claimed subject matter. 11
14. A drill bit for drilling hard tissue and injecting medication 12
comprising: 13
a shaft having a proximal end with a first opening, a 14
distal end with a second opening and a beveled 15
cutting surface; 16
a lumen inside the shaft that extends between first and 17
second openings, and that receives debris entering the 18
first opening as a result of operation of the cutting 19
surface; 20
an open notch disposed in the shaft, and having a length 21
greater than a diameter of the lumen; and 22
wherein an overall length from a distal tip of the cutting 23
surface to a proximal end of the open notch is greater 24
than a thickness of the hard tissue. (Br. App’x). 25
26
The claim limitation describing “an overall length” by relating it to “a 27
thickness of the hard tissue” is an expression of intended use and not a real 28
limitation to an apparatus claim, as the Examiner stated. (Answer p. 4). 29
Note also that the claim is not drawn to a method including a specific step of 30

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applying the drill bit to tissue of a certain relative thickness. More 1
specifically, the claimed length does not require a particular thickness of 2
tissue or penetration thereof. The burden is upon the Appellant to draft 3
claims clearly setting out limitations. 4
As written, the claimed drill bit may be used in any hard tissue, 5
including, e.g., thin bones of a nose or an ear. (Id.). We see no error in the 6
finding by the Examiner that the drill bit described by De Santis may be 7
used in such a thin tissue and punch all the way through the bone and collect 8
a sample. (Id. 5). Consequently, we do not find that Appellant has 9
established that De Santis’ drill bit must be less than the thickness of the 10
hard tissue to perform its extraction function. 11
Further, we note that De Santis describes that its device may use a 12
vacuum force (from the use of a syringe) to draw the cut tissue into the 13
biopsy reservoir, as the Appellant asserts in the Reply. However, again, De 14
Santis does not require that such a tissue must be thicker than the drill bit. 15
De Santis does not exclude the use of its drill bit on thin bones, and the 16
Appellant has not established otherwise with persuasive evidence. 17
Therefore, we do not find that the Appellant has established error on the part 18
of the Examiner. 19
The Appellant additionally asserts that De Santis does not anticipate 20
claim 14 because “the drill bit of De Santis is not capable of performing the 21
intended use of claim 14.” (App. Br. 7). According to the Appellant, claim 22
14 recites that the drill bit is designed to inject medication, which is 23
“completely antithetical” to De Santis’ design to extract tissue. (Id.; Reply 24
2-3). Specifically, the Appellant asserts that “[i]f the prior art structure of 25

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De Santis is used, the extended slot 13 would be clogged with tissue and 1
injecting medication would be extremely difficult if not impossible.” (App. 2
Br. 7). Further, the Appellant asserts that satisfying this limitation would 3
cause the device of De Santis to fail to satisfy another limitation, i.e., that the 4
lumen “receives debris entering the first opening. . . .” (Reply 2-3). 5
This argument is also not persuasive. 6
As the Examiner stated, claim 14 does not recite a step of injecting 7
medication. (Answer 5). Rather, the preamble of claim 14 recites “A drill 8
bit for drilling hard tissue and injecting medication comprising. . . .” (Claim 9
14). Therefore, De Santis anticipates if it is capable of injecting medication. 10
(See Answer 5). 11
The lumen 13 of the De Santis drill bit extends from a syringe 22 to 12
the distal end of the needle. As the Examiner stated, “[t]he open lumen 13
coupled to a syringe indicates that the device is capable of injecting a 14
medication.” (Id. 5). A prior art apparatus having the same structure as a 15
claimed apparatus renders a claimed apparatus unpatentable under Section 16
102 as long as it is capable of performing the intended use. In re Yanush, 17
477 F.2d 958, 959 (CCPA 1973). 18
Further, to the extent that the Appellant asserts that the De Santis 19
device may not be able to drill and receive debris while simultaneously 20
injecting medicine, such a limitation or intended use is not recited in the 21
claim. 22
Finally, we note that the Appellant’s contention is attorney argument, 23
which is not evidence. There is no persuasive evidence submitted that the 24

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De Santis tip, when engaged in tissue of a thickness, could not function to 1
inject medicine. 2
Therefore, we do not find that the Appellant has established that the 3
Examiner erred in rejecting the claims for being anticipated by De Santis. 4
II. The Rejection of Claims 14, 15, 17, 19 and 21 under 35 U.S.C. § 5
102(b) as being anticipated by Shaw. 6
Claims 14, 15, 17, 19 and 21 stand rejected under 35 U.S.C. § 102(b) 7
as being anticipated by Shaw. Specifically, the Examiner found that Shaw 8
teaches a shaft (13) with a cutting surface (14), a lumen (18), with first (34) 9
and second (22) openings and an open notch (26). (Final Rejection, p. 2) 10
(citing Shaw, e.g., Figs. 1 and 6). The Examiner also found that Shaw 11
describes a method of drilling through bone. (Id.) (citing Shaw Summary of 12
Invention). 13
The Appellant challenges the Examiner’s rejection by asserting that 14
Shaw does not describe the open notches of claim 14. Specifically, the 15
Appellant asserts that contrary to the Examiner’s finding, Shaw’s “co-axial 16
channels 26 can not be equated with the open notches of claim 14. . . .” 17
(App. Br. 7-8). The Appellant asserts that the application describes an open 18
notch as “a small hole through the wall of the hollow drill” and that Shaw’s 19
channels are not holes through the wall, but are instead “grooves that are 20
carved into the sides of the drill.” (Id. 8; Reply 4). 21
This argument is not persuasive. While we agree with the Appellant’s 22
position that “a small hole through the wall of the hollow drill” defines the 23
open notch of claim 14, we do not find that the Appellant has distinguished 24
the recited open notch from the channels disclosed by Shaw. 25

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In particular, the Appellant has not established that a groove or 1
channel in a wall is not “a hole through the wall,” as used by the Appellant. 2
In other words, as used in the application, “a hole through the wall” is not 3
described as or equated to a hole “punched” through the wall. For example, 4
referring to Figure 3a of the application, the “hole through the wall,” i.e., 5
open notch 18, is illustrated as a carved out portion of the drill bit wall. 6
(Specification, Fig. 3a). Similarly, Figure 1 of Shaw illustrates channel 26 7
as a carved out portion of the wall of the drill bit. (See Shaw Fig. 1, see also 8
Figs. 3-5; Answer 5). 9
Therefore, we find that Shaw’s channel 26 illustrates an open notch, 10
as recited in claim 14, and as defined by the application. Consequently, we 11
do not find that the Appellant has established that the Examiner erred in 12
finding that Shaw anticipates claim 14. 13
Next the Appellant challenges the rejection of claim 14 by asserting 14
that “Shaw fails to teach, suggest, or motivate ‘an overall length from a 15
distal tip of the cutting surface to a proximal end of the open notch is greater 16
than the thickness of the hard tissue.’” (App. Br. 8) (emphasis added). 17
According to the Appellant, “the distance from the distal tip of the cutting 18
surface to the proximal end of channel outlets 22 is less than the thickness of 19
the hard tissue (the tooth) that Shaw is designed to drill.” (Id.). 20
This argument is not persuasive as, again, it is attorney argument and 21
not persuasive evidence. Further, as we discussed, supra, the claim 22
limitation reciting “an overall length” is an intended use limitation. As 23
claimed, the drill bit may be used in any hard tissue, including thin tissues. 24
(Id.). The drill bit described by Shaw may also be used in hard tissue that is 25

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thin (e.g., dental tissue in children or small animals) where the drill bit has 1
“an overall length from a distal tip of the cutting surface to a proximal end of 2
the open notch is greater than a thickness of the hard tissue,” as claimed. 3
Therefore, we do not find that Appellant has established that the Shaw drill 4
bit must be “less than the thickness of the hard tissue.” Consequently, we do 5
not find that the Appellant has established error on the part of the Examiner. 6
The Appellant also challenges the rejection of claim 14 by asserting 7
that Shaw fails to disclose “a lumen inside the shaft that extends between 8
first and second openings,” as recited in the claim. (App. Br. 8). The 9
Appellant acknowledges that Shaw describes a shaft 13 with a lumen 18 10
having a first opening 34 and a second opening 22, where lumen 18 connects 11
to the second opening 22. (Id.). However, the Appellant asserts that Shaw’s 12
“lumen 18 fails to connect second opening 22 to first opening 34.” (Id.). 13
According to the Appellant, Shaw only describes that first opening 34 is 14
located in alternating channels. (Id. 8-9) (citing Shaw 2:64-65). 15
Similarly, the Appellant asserts that “Shaw’s lumen fails to receives 16
[sic] debris entering the first opening as a result of operation of the cutting 17
surface as recited in Claim 14.” (Id. 9). According to the Appellant, Shaw 18
does not “connect lumen 18 with first opening 34,” and therefore debris that 19
may enter the first opening 34 does not enter the lumen 18, as required by 20
claim 14. (Id.). 21
This argument is also unpersuasive. As the Examiner stated, the 22
Appellant’s argument confuses “channel” (which is notch 26) with “lumen.” 23
(Answer 6). Shaw teaches only one lumen, illustrated as structure 18 in Fig. 24
6. (Shaw Fig. 6). Shaw describes that structure 18 runs the entire axial 25

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length of the drill. (Id. 2:32-34). Shaw also describes that the structure 18 1
has outlets, i.e., openings 22 and 34, along its length. (Id.). Thus, we find 2
that Shaw’s structure 18 is a lumen that connects to and extends between 3
first 34 and second 22 openings, and that receives debris entering the first 4
opening, so as to anticipate the claimed limitation. 5
Consequently, we do not find that the Appellant has established error 6
with the Examiner’s anticipation rejection of the claims over Shaw. 7
III. The Rejection of Claims 16 and 20 under 35 U.S.C. § 103(a) as 8
being obvious over Shaw. 9
Claims 16 and 20 stand rejected under 35 U.S.C. § 103(a) as being 10
obvious over Shaw. The Examiner further found that Shaw describes the 11
entire length of the disclosed drill is typically 20-25 mm (0.78-0.98 inches). 12
(Final Rejection, p. 3; Shaw 3:10-11). The Examiner also found that Shaw’s 13
notches do not extend the entire length of the drill and appear to extend 14
roughly 1/4 to 1/3 the length of the shaft, i.e., about 0.19 inches, which the 15
Examiner equates to “about 0.1-0.125 inches.” (Id.). Additionally, the 16
Examiner found that Shaw describes that the drill bit is intended for use in a 17
human mouth. (Id.). Therefore, the Examiner determined that a skilled 18
artisan would have understood that the bit must meet certain dimensional 19
limits to be functional. (Id.). 20
The Appellant challenges the Examiner’s rejection asserting that 21
dependent claims 16 and 20 are not obvious in view of Shaw for the same 22
reasons discussed regarding the anticipation rejections over Shaw. (App. Br. 23
9). We do not find this argument persuasive for the same reasons discussed 24
supra. 25

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Additionally, regarding claim 16, the Appellant asserts that Shaw does 1
not teach or suggest that “‘the overall length [from the distal tip of the 2
cutting surface to a proximal end of the open notch] is about 0.10 to 0.125,’” 3
as recited in the claim. (App. Br. 9). Specifically, the Appellant asserts that 4
0.19 is not an accurate estimation. (Id. 10). Rather, according to the 5
Appellant, “Even assuming the length of the drill being the smallest 20 mm, 6
that Shaw’s specification discloses, the length of channel 22 would be 0.30 7
inches,” i.e., 5/13 of this length. (Id.) (citing to Fig. 1 for assertion that 8
channel is 5/13 of drill length). The Appellant also asserts that neither 0.19 9
nor 0.30 is “about 0.10 to 0.125 inches.” (Id.) (citing In re Preda, 401 F.2d 10
825, 826 (CCPA 1968)). 11
We are not persuaded by the Appellant’s arguments. To begin, Shaw 12
does not limit the smallest length of its drill to 20mm. Rather, Shaw states, 13
“The entire length of the drill is typically about 20 to 25 millimeters.” 14
(Shaw 3:10-11). Thus, Shaw’s drill may have a length outside the typical 15
range, including lengths shorter than 20 mm that (according to the 16
Appellant’s 5/13 assertion) provides for an overall length from the distal tip 17
of the cutting surface to the proximal end of the open notch that is “about 18
0.10 to 0.125 inches,” as claimed. 19
Moreover, we are not persuaded that an overall length of 0.19 inches, 20
the Examiner estimate from Shaw’s disclosure, is not “about 0.10 to 0.125 21
inches.” The Appellant references In re Preda to support the assertion that 22
“[a]t most, case law supports a difference of 8% . . .” (App. Br. 10). 23
However, In re Preda discusses an anticipation rejection and not an 24
obviousness rejection. Further, we do not find that In re Preda limits the 25

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construction of “about” in terms of a recited range to 8%. A section 103(a) 1
analysis requires a determination whether the recited range would have been 2
obvious to a person of ordinary skill in the art at the time of the invention. 3
The Examiner found that Shaw’s device was designed for use in mouth with 4
“certain inherent limitations that are required for maneuverability and ease 5
of use.” (Answer 6). According to the Examiner, selecting the length of the 6
notch is “within the skill of an ordinary worker in the art to optimize the 7
function of the device.” (Id., See also, Application of Boesch, 617 F.2d 272, 8
276 (CCPA 1980)(discovery of an optimum value is ordinarily within the 9
skill of the art)). We agree with the Examiner. 10
Consequently, the Appellant has not established that the Examiner 11
erred in determining that a skilled artisan would have found the claimed 12
range obvious over Shaw’s disclosure and in view of the ordinary skill in the 13
art of drill bits and dentistry. 14
In the Reply, the Appellant challenges the Examiner’s finding that 15
Shaw’s device has inherent limitations to be useful in the mouth. 16
Specifically, the Appellant asserts that this finding is inconsistent with 17
Shaw’s disclosure that the drill bit must have a length of at least 12 mm 18
because the reference states that the last serration is at least 12 mm from the 19
tip. (Reply 5, citing Shaw 2:65-3:1). Additionally, the Appellant asserts 20
that a skilled artisan would not attempt to create drill bit for jawbone that is 21
only 0.10 to 0.125 inches long because it “would not be long enough to carry 22
our normal dental operations.” (Reply 5). 23
This argument is also not persuasive. Again, the Appellant is 24
presenting arguments of counsel in place of persuasive evidence. Shaw 25

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discloses a drill bit having a length of at least 12 mm. Such a disclosure is 1
not inconsistent with the Examiner’s finding, nor does it support the 2
Appellant’s assertion that it would not have been obvious to a skilled artisan 3
to select a length “about 0.10 to 0.125 inches,” as recited in the claim. The 4
Appellant’s assertion, thus, is merely attorney argument and is not 5
persuasive evidence of error. 6
Accordingly, we affirm the Examiner’s rejections. 7
CONCLUSION OF LAW 8
On the record before us, the Appellants have not shown error on the 9
part of the Examiner. The prior art anticipated each limitation of the 10
claimed drill bit and method for its use. Additionally, it would have been 11
obvious to one of ordinary skill in the art at the time the invention was made 12
to modify a known drill bit by selecting an overall length of about 0.10 to 13
0.125 inches. 14
DECISION 15
The Rejection of claims 14, 15, 17, 18, 22 and 23 under 35 U.S.C. § 16
102(b) as being anticipated by De Santis is AFFIRMED. 17
The Rejection of claims 14, 15, 17, 19 and 21 under 35 U.S.C. § 18
102(b) as being anticipated by Shaw is AFFIRMED. 19
The Rejection of claims 16 and 20 under 35 U.S.C. § 103(a) as being 20
unpatentable over Shaw is AFFIRMED. 21
No time period for taking any subsequent action in connection with 22
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv) (2006). 23
24
AFFIRMED 25

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Rvb 1
2
cc: 3
FISH & ASSOCIATES, PC 4
ROBERT D. FISH 5
2603 Main Street 6
Suite 1000 7
Irvine, CA 92614-6232 8