Fixed Focus LLC

Patent Trials and Appeals Board

Mar 15, 2021

2021000925 (P.T.A.B. Mar. 15, 2021)

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.
16/405,419 05/07/2019 Steven BLECHMAN FFL-001-US 5370
27326 7590 03/15/2021
VANCE INTELLECTUAL PROPERTY, PC
P.O. Box 1224
CROZET, VA 22932-3167
EXAMINER
WEBB, WALTER E
ART UNIT PAPER NUMBER
1612
NOTIFICATION DATE DELIVERY MODE
03/15/2021 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):
DAVID@VANCEIP.BIZ
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
_________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
_________________

Ex parte STEVEN BLECHMAN, STEPHEN A. ROTH, and PETER KASH
_________________

Appeal 2021-000925
Application 16/405,419
Technology Center 1600
_________________

Before JEFFREY N. FREDMAN, DEBORAH KATZ, and DAVID
COTTA. Administrative Patent Judges.

KATZ, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 seeks our review,2 under 35 U.S.C. § 134(a), of the
Examiner’s decision to reject claims 1, 5–8, 10–13, 17, 18, and 23–33. We
have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM.

1 We use the word “Appellant” as defined in 37 C.F.R. § 1.42. Appellant
identifies the real party in interest as Fixed Focus LLC. (Appeal Br. 2.)
2 We consider the Final Office Action issued July 1, 2020 (“Final Act.”), the
Appeal Brief filed September 23, 2020 (“Appeal Br.”), the Examiner’s
Answer issued on November 9, 2020 (“Ans.”), the Reply Brief filed
November 17, 2020 (“Reply Br.”) and the oral argument held on March 4,
2021, in reaching our decision.
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Appellant’s Specification is directed to devices for preventing
periodontal disease by mechanically disrupting bacterial biofilms in the
mouth. (Spec. 1.)
Appellant’s claim 1 recites:
1. A dental tool comprising:
a substrate; and
a composition comprising a complex carbohydrate,
wherein said dental tool is selected from the group
consisting of a floss, a tape, a floss pick, an interdental brush,
and a pick, and
wherein said complex carbohydrate is a β-glucan having
a molecular weight of said β-glucan is 360 to 20,000.
(Appeal Br. 24.)
The Examiner rejects claims 1, 5–8, 10–13, 17, 18, 23–25, 28–30, and
33 as being obvious under 35 U.S.C. § 103 over Redmond ’798,3 Redmond
’886,4 and Roberts.5 (See Final Act. 3–5.) In addition to this rejection, the
Examiner makes another rejection of the same claims6 that is based on
Morgan,7 in addition to Redmond ’798, Redmond ’886, and Roberts. (See
Final Act. 5–6.)
The Examiner also rejected claims 26, 27, 31, and 32 as being obvious
under 35 U.S.C. § 103 over Redmond ’798, Redmond ’886, Roberts, and
Lynch8 (see Final Act. 6–7) and the same claims as being obvious over

3 Redmond and Fielder, U.S. Patent 8,632,798 B2, issued January 21, 2014.
4 Redmond, U.S. Patent 6,284,886 B1, issued September 4, 2001.
5 Roberts et al., U.S. Patent 5,755,243, issued May 26, 1998.
6 The Examiner indicated that claims 1, 3–8, 10–13, and 15–23 are rejected
under over Redmond ’798, Redmond ’886, Roberts, and Morgan, but claims
2 and 3 have been canceled. (See Final Act. 5; see Appeal Br. 24.)
7 Morgan, U.S. Patent 6,426,201 B1, issued July 30, 2002.
8 Lynch, U.S. Patent 4,585,649, issued April 29, 1986.
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Redmond ’798, Redmond ’886, Morgan, Roberts, and Lynch. (See Final
Act. 7–8.)
Appellant addresses each of these rejections with the same arguments.
(See Appeal Br. 4.) Because Appellant does not provides separate
arguments for any of the rejected claims, we focus on claim 1 in our review.
See 37 C.F.R. § 41.37(c)(1)(iv) (2020).
Redmond ’798, Redmond ’886, and Roberts
The Examiner finds, and Appellant does not dispute, that Redmond
’798 teaches using cereal β-glucan as a film or coating agent to coat dental
floss, but does not teach the molecular weight of the β-glucan recited in
claim 1: 360 to 20,000. (See Final Act. 3–4 (citing Redmond ’798 Abstract,
16:20–30, Example 7).) The Examiner cites to Redmond ’886 for a teaching
of cereal glucans that have a molecular weight of less than 100,000 daltons.
(See Final Act. 4–5.) The Examiner concludes that
[b]ecause Redmond [’798] relies on the cereal glucan
processing method of Redmond et al. [’]886 it would have been
obvious for the cereal glucans utilized therein to have a
molecular weight of less than 100,000 daltons, which makes
obvious the claimed molecular weight range of 360 to 20,000,
as per claim 1 and 11.
(Final Act. 5.) Thus, the Examiner considers the teaching of a molecular
weight of less than 100,000 daltons to render obvious a range of 360 to
20,000 daltons.
Appellant disputes the Examiner’s finding that Redmond ’886 teaches
β-glucan of less than 100,000. (See Appeal Br. 9–14.) Even if the Examiner
is correct, though, the Examiner fails to provide a reason why, given the
teachings in Redmond ’886 (and by reference in Redmond ’978) of less than
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100,000 daltons, one of ordinary skill in the art would have used β-glucans
in the much more limited size range of 360–20,000 as claimed.
The Examiner cites to Roberts for this rejection, but only for its
teaching of a specific denier, or fiber density, of dental floss. (See Final Act.
3.) Roberts is not cited for β-glucan of any particular molecular weight.
Accordingly, we are not persuaded that the teachings in the cited prior art
would have indicated to one of ordinary skill in the art that a dental tool with
β-glucan of 360–20,000, as required in claim 1, was obvious.
Thus, the Examiner has not persuaded us that the dental tool of claim
1 would have been obvious over Redmond ’798, Redmond ’886, and
Roberts.
Redmond ’798, Redmond ’886, Roberts, and Morgan
The Examiner finds that Morgan teaches a process for obtaining β-
glucan from a cereal, which can be used as a film-forming agent. (See Final
Act. 5 (citing Morgan Abstract).) The process that Morgan teaches produces
β-glucan having a lower average molecular weight than in its native state,
specifically “in the range up to 1,500,000, preferably up to 600,000, more
preferably up to 300,000, for example, 5,000 to 50,000.” (Morgan 4:9–12;
see also id. at 2:10–15; see Final Act. 5–6.) A molecular weight of 5,000 to
50,000 overlaps with the claimed range of 360 to 20,000.
The Examiner determines that it would have been obvious to a person
having ordinary skill in the art at the time of applicant’s invention to coat the
dental floss of Redmond ’798 with a β-glucan having a molecular weight in
the range of 360 to 20,000 because Redmond ’798 teaches using β-glucan as
a film or coating agent and Morgan teaches that low molecular weight β-
glucans, for example in the range of 5,000 to 50,000, were known to be
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useful film forming agents. (See Final Act. 6.) The Examiner determines
that the overlap in ranges is prima facie obvious. (See Ans. 8.) See In re
Geisler, 116 F.3d 1465, 1469–71 (Fed. Cir. 1997).
Appellant argues that Redmond ’798 teaches away from β-glucans
with a molecular weight of 360–20,000 because it teaches that the typical
molecular weight of oat β-glucan is 500,000 to 1,000,000, which allows for
lower percentages of gel in film formation. (See Appeal Br. 15–16 (citing
Redmond ’798, 2:25–25 (Table 2), 3:61–4:2).) Appellant argues that
Redmond ’886 also teaches away from β-glucan of the claimed molecular
weight because it teaches that higher molecular weight allows for increased
viscosity. (See Appeal Br. 15 (citing Redmond ’886, 6:31–33).)
We are not persuaded that either reference teaches away from the
molecular weight range recited in Appellant’s claim 1. First, the portions of
Redmond ’798 and Redmond ’886 cited by Appellant do not mention β-
glucan of the claimed molecular weight or even low molecular weight β-
glucan in general. A reference “teaches away” when a person having
ordinary skill in the art would be “discouraged from following the path set
out in the reference, or would be led in a direction divergent from the path
that was taken by the applicant.” In re Gurley, 27 F.3d 551, 553 (Fed. Cir.
1994). Because the portions of the references cited by Appellant do not
address the claimed low molecular weight β-glucans, we are not persuaded
that they suggest anything about their use, much less teach away from using
them.
In addition, we note that Redmond ’798 teaches that “[e]dible films to
date have been manufactured from lower molecular weight gums since the
higher molecular weight gums typically have a high viscosity of solution
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which makes thin films difficult to obtain.” (Redmond ’798, 3:61–64.)
Redmond ’798 teaches further that “[t]he high viscosity of native β(1-3) β
(1-4) glucans teaches away from the use of these materials in the preparation
of films.” (Redmond ’798, 2:59–61.) Although Appellant argues that the
teachings of the usefulness of high molecular weight β-glucans in the rest of
Redmond ’798 and in Redmond ’886 refute these statements in Redmond
’798 (see Reply Br. 6–7), Appellant does not direct us to any express
teaching that lower molecular weight compounds would no longer be
considered useful.
Appellant argues further that if β-glucans of molecular weight lower
than 100,000 were of interest, such low molecular weight β-glucans would
have been used before Appellant’s invention because Morgan issued before
Redmond ’798. (See Appeal Br. 13.) This argument is unpersuasive
because it asserts, in essence, that if there is no anticipatory reference, a
claimed manufacture cannot have been obvious. “In many fields it may be
that there is little discussion of obvious techniques or combinations, and it
often may be the case that market demand, rather than scientific literature,
will drive design trends.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 419
(2007). We are not persuaded that merely because Morgan was publically
available before Redmond ’798, Appellant’s claimed dental tool would not
have been obvious.
Appellant argues further that Morgan does not teach using β-glucans
of 5,000 to 50,000 molecular weight in a film and does not enable β-glucans
of less than 20,000 molecular weight. (See Appeal Br. 17.) Appellant
argues that the only example of using β-glucan in a film in Morgan is
Example 12 and that, although no molecular weight is stated, the β-glucan
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must have been between 79,000 and 100,000. (See id.) Appellant argues
that Morgan never exemplifies β-glucan at 5,000 to 50,000 in a film. (See
id.)
We are not persuaded by this argument because a qualifying reference
is prior art for all that it teaches, not just its examples or operable
embodiments. See Beckman Instr., Inc. v. LKB Produkter AB, 892 F.2d
1547, 1551 (Fed. Cir. 1989). Furthermore, Morgan is an issued US patent
that claims obtaining β-glucans with molecular weight values from 5,000 to
50,000 (see Morgan, claim 14) and as such, “is presumptively enabling
barring any showing to the contrary by a patent applicant.” In re Antor
Media Corp., 689 F.3d 1282, 1288 (Fed. Cir. 2012). No such showing has
been made by Appellant. Morgan expressly teaches β-glucan as a film-
forming agent and expressly provides for processes that produce it at a
molecular weight of “more preferably up to 300,000, for example, 5,000 to
50,000.” (Morgan 4:11–12.) Thus, Morgan renders obvious β-glucan of the
recited range.
Appellant also argues that Morgan does not provide a reason to
replace the beneficially high molecular weight β-glucans of Redmond ’798
and Redmond ’886. (See Appeal Br. 18–19.) Appellant reiterates the
arguments discussed above to support this argument. Specifically, Appellant
argues that Redmond ’798 and Redmond ’886 teach benefits of β-glucan
greater than 100,000 molecular weight, that Morgan does not teach or enable
β-glucan of 5,000 to 50,000 molecular weight as useful for film-forming
agents, and that Morgan was publically available before Redmond ’978 was
filed, which should have. (See id.) As explained above, we are not
persuaded that any of these alleged facts indicates the claimed dental tool
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would have been nonobvious. Instead, we agree with the Examiner that the
teachings in Redmond ’798 that high molecular weight β-glucans are not
optimal would provide a reason for one of ordinary skill to look to the lower
molecular weight β-glucans taught by Morgan for forming films. (See Ans.
9 (citing, e.g., Morgan 2:55–61).)
Appellant fails to direct us to evidence that the claimed range of β-
glucan molecular weight is critical or that there are any secondary
considerations to be evaluated. Accordingly, Appellant has not persuaded us
the Examiner erred in rejecting claim 1 over the combination of Redmond
’798, Redmond ’886, Roberts, and Morgan. Appellant does not present
separate arguments for the patentability of claims 5–8, 10–13, 17, 18, and
23–25, 28–30, and 33.
Redmond ’798, Redmond ’886, Roberts, and Lynch
The Examiner rejects dependent claims 26, 27, 31, and 32 over the
combination of Redmond ’798, Redmond ’886, Roberts, and Lynch. (See
Final Act. 6–7.) Lynch is cited for its teaching of dentifrice formations
including thickeners. (See id. at 6.) Lynch is not cited for a teaching of β-
glucan of molecular weight 360–20,000, which is required in the rejected
claims. Because, as discussed above, we are not persuaded that Redmond
’798, Redmond ’886, and Roberts render obvious a dental tool with β-glucan
of 360 to 20,000 molecular weight, we are not persuaded that the claimed
dental tools would have been obvious over those references taken with
Lynch.
Redmond ’798, Redmond ’886, Morgan, Roberts, and Lynch
The Examiner rejects claims 26, 27, 31, and 32 over the combination
of Redmond ’798, Redmond ’886, Morgan, Roberts, and Lynch. (See Final
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Act. 7–8.) Appellant does not present arguments against this rejection that
are separate from the arguments against the rejection over Redmond ’798,
Redmond ’886, Roberts, and Morgan. For the reasons discussed above, we
are not persuaded that the Examiner erred. Accordingly, we affirm the
rejection.

Conclusion
Upon consideration of the record and for the reasons given, we affirm
the Examiner’s rejections.

In summary:
Claims
Rejected
35
U.S.C. §
Reference(s)/Basis Affirmed Reversed
1, 5–8, 10–
13, 17, 18,
23–25, 28–
30, 33
103 Redmond ’798,
Redmond ’886,
Roberts

1, 5–8, 10–
13, 17, 18,
23–25, 28–
30, 33
1, 5–8, 10–
13, 17, 18,
23–25, 28–
30, 33
103 Redmond ’798,
Redmond ’886,
Roberts, Morgan

1, 5–8, 10–
13, 17, 18,
23–25, 28–
30, and 33

26, 27, 31,
32
103 Redmond ’798,
Redmond ’886,
Roberts, Lynch

26, 27, 31,
32
26, 27, 31,
32
103 Redmond ’798,
Redmond ’886,
Morgan, Roberts,
Lynch

26, 27, 31,
32

Overall
Outcome
1, 5–8, 10–
13, 17, 18,
23–33

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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136.

AFFIRMED