Rolf Hagelganz et al.

Patent Trials and Appeals Board

Nov 25, 2019

14742289 - (D) (P.T.A.B. Nov. 25, 2019)

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.
14/742,289 06/17/2015 Rolf Hagelganz 66876/1299 4692
3528 7590 11/25/2019
STOEL RIVES LLP - PDX
760 SW 9TH AVENUE
SUITE 3000
PORTLAND, OR 97205
EXAMINER
STICE, PAULA J
ART UNIT PAPER NUMBER
3792
NOTIFICATION DATE DELIVERY MODE
11/25/2019 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):
PATLAW@STOEL.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROLF HAGELGANZ and JUERGEN BATHEN
Appeal 2018-001143
Application 14/742,289
Technology Center 3700
Before GEORGE R. HOSKINS, BRADLEY B. BAYAT, and
ARTHUR M. PESLAK, Administrative Patent Judges.
PESLAK, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–9. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM-IN-PART.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as World Class
Technologies, Inc. Appeal Br. 2.
Appeal 2018-001143
Application 14/742,289

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CLAIMED SUBJECT MATTER
The claims are directed to a self-ligating bracket with sliding cover.
Claim 1, reproduced below, is illustrative of the claimed subject matter:
1. A self-ligating orthodontic bracket comprising
(a) a base portion adapted to be affixed to a patient’s tooth;
(b) an upper body portion, the upper body portion having
an archwire slot extending in a mesial-distal direction for
receiving an archwire, the upper body portion having a surface
on a first side of said archwire slot;
(c) a sliding cover adapted to slide on said support surface
and move from an open position exposing said archwire slot, to
a closed position covering said archwire slot;
(d) said sliding cover having a main body with a leading
edge spanning said archwire slot in said closed position, and a
locking tab forward of, and supported by, a flexible neck adapted
to flex in a lingual-labial direction, the flexible neck having two
ends supported by a surrounding structure of the sliding cover,
the flexible neck more flexible than the surrounding structure;
and
(e) a ridge on said upper body portion situated on a second
side of said archwire slot for engaging said locking tab.
REFERENCE
The prior art relied upon by the Examiner is:
Name Reference Date
Damon US 5,439,378 Aug. 8, 1995
Korn US 9,089,386 Jan. 2, 2012

REJECTIONS
1) Claims 1–9 are rejected under pre–AIA 35 U.S.C. § 102(b) as
being anticipated by Damon.
2) Claims 1–6 are rejected on the ground of non-statutory double
patenting over claims 1 and 2 of Korn.
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Application 14/742,289

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OPINION
Anticipation by Damon
Claims 1 and 2
In the rejection of independent claim 1, the Examiner finds, inter alia,
that Damon discloses “a locking tab 27 . . . extending forward of the leading
edge and supported by a flexible neck” which “flexes to overcome the ridge
28 . . . in the upper body portion.” Final Act. 3 (citing Damon Figs. 1–3, 5,
6). In support of the rejection, the Examiner provides annotated versions of
Damon’s Figures 2, 3, and 6. See id. at 2, 4.
Appellant contends that Damon fails to disclose the “sliding cover
having . . . a locking tab . . . forward of a flexible neck.” Appeal Br. 6. In
support of this contention, Appellant argues that in the Examiner’s annotated
versions of Damon’s figures, the Examiner identifies the locking tab and the
flexible neck as “the same physical structure” which “cannot be ‘forward of’
itself.” Id.
The Examiner responds that “the locking tab, as defined as 28 of
Damon . . . can be forward of the flexible neck either before the neck is slid
forward or during the sliding process.” Ans. 3 (emphasis added). Further,
the Examiner finds that “[t]he locking tab can be both forward of (figure 6)
and supported by (figure 5) a flexible neck.” Id.
In the Reply Brief, Appellant notes that in the Final Rejection, the
Examiner found that Damon’s element 27 corresponds to the recited
“locking tab” and Damon’s element 28 corresponds to the recited “ridge.”
Reply Br. 4 (citing Final Act. 3). Appellant further argues that the
Examiner’s position in the Answer “implausibly reads the claim term
‘locking tab’ not on the front tab structure of Damon’s sliding cover, but
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Application 14/742,289

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instead conterintuitively on the structure forming Damon’s ridge 28
positioned on the far side of the archwire slot.” Id. at 6. Appellant further
argues that the Examiner fails to account for the limitation in claim 1 that
“requires ‘a ridge on said upper body portion situated on a second side of
said archwire slot for engaging said locking tab.’” Id. For the following
reasons, we do not sustain the rejection of claim 1.
Damon’s Figures 5 and 6 are reproduced below:

Figures 5 and 6 of Damon illustrate an embodiment wherein Damon’s cover
21 is closed and open respectively. Damon, 2:61–64.
In the rejection, the Examiner identifies the area of cover 21
surrounding element 27 as the recited “flexible neck.” See Final Act. 2
(annotated Figure 6 of Damon). In the Answer, the Examiner did not
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Application 14/742,289

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squarely address Appellant’s argument that the Examiner did not show how
Damon’s element 27 met the claim limitation of the locking tab being
“forward of a flexible neck.” Rather, the Examiner found that Damon’s
element 28 corresponds to the “locking tab.” See Ans. 3. However, the
Examiner has not shown that element 28 is part of Damon’s cover 21 as
required by claim 1. Id. Further, the Examiner does not explain, in the
Answer, which element of Damon corresponds to the recited ridge if
element 28 corresponds to the locking tab. See Ans. 2–3. With respect to
the Final Rejection, the Examiner has not adequately explained how
Damon’s element 27 is forward of the flexible neck as required by claim 1
because it appears that element 27 is part of the “flexible neck” identified by
the Examiner in the rejection. Therefore, we do not sustain the rejection of
claim 1 and claim 2 which depends from claim 1.
Claims 3–9
Appellant contends that Damon does not disclose the limitation in
independent claim 3 of “the recess and the ridge are each shaped to facilitate
flexing of the neck over the ridge when the sliding cover moves towards the
closed position and to resist flexing of the neck over the ridge when the
sliding cover moves from the closed position towards the open position.”
Appeal Br. 9. Appellant contends that the Examiner did not account for this
“significant limitation” in the Final Rejection. Id. In the Answer, the
Examiner does not address Appellant’s contentions concerning claim 3. See
generally Ans. 2–5. For the following reasons, we do not sustain the
rejection of claim 3.
With respect to the limitation quoted above from claim 3, the
Examiner did not provide sufficient evidence or technical reasoning in the
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Final Rejection to establish that Damon discloses this limitation. See Final
Act. 3. Further, the Examiner did not provide any argument or analysis in
the Answer in response to Appellant’s contention. Ans. 2–5. Consequently,
we do not sustain the rejection of claim 3. Claims 4–9 depend directly or
indirectly from Claim 3. Appeal Br. 13 (Claims App.). We, thus, do not
sustain the rejection of claims 4–9 for the same reasons.
DOUBLE PATENTING
The Examiner rejected claims 1–6 on the ground of non-statutory
double patenting over claims 1 and 2 of Korn. Final Act. 7. Appellant does
not address this rejection in the Appeal Brief. See generally Appeal Br.
Therefore, we summarily sustain this rejection.
CONCLUSION
The Examiner’s rejection of claims 1–9 as anticipated by Damon is
reversed.
The Examiner’s rejection of claims 1–6 on the ground of non-
statutory double patenting is affirmed.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Basis Affirmed Reversed
1–9 102 Damon 1–9
1–6 Double
Patenting
Korn 1–6
Overall
Outcome
1–6 7–9

Appeal 2018-001143
Application 14/742,289

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TIME PERIOD FOR RESPONSE
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)(1)(iv).
AFFIRMED-IN-PART