3Shape A/S

Patent Trials and Appeals BoardSep 20, 2021

2020002490 (P.T.A.B. Sep. 20, 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. 15/529,771 05/25/2017 Rune FISKER 0079124-000147 8419 21839 7590 09/20/2021 BUCHANAN, INGERSOLL & ROONEY PC 1737 KING STREET SUITE 500 ALEXANDRIA, VA 22314-2727 EXAMINER EIDE, HEIDI MARIE ART UNIT PAPER NUMBER 3772 NOTIFICATION DATE DELIVERY MODE 09/20/2021 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): ADIPDOC1@BIPC.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte RUNE FISKER Appeal 2020-002490 Application 15/529,771 Technology Center 3700 Before STEFAN STAICOVICI, MICHAEL L. HOELTER, and BRETT C. MARTIN, Administrative Patent Judges. MARTIN, 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 1–3 and 5–10. See Final Act. 1. Appellant presented oral argument on August 10, 2021. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 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 3Shape A/S. Appeal Br. 2. Appeal 2020-002490 Application 15/529,771 2 CLAIMED SUBJECT MATTER The claims are directed “to a method for designing a digital 3D dental model having a modified dental setup.” Spec. 1, ll. 3 – 4. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A method for digitally designing a modified dental setup on a digital 3D dental model representing at least a part of the teeth of a patient comprising the steps of: - using a camera to obtain a pre-treatment digital 2D image of at least a part of the teeth of the patient, - obtaining a digital 3D representation of the at least a part of the teeth of the patient, - modifying the pre-treatment digital 2D image to obtain a proposed digital 2D image of a desired dental setup based on the pre-treatment digital 2D image, wherein at least one digital tooth modification is obtained, - determining a transformation for the digital 3D representation in order to align it with a view of the pre-treatment digital 2D image by estimating a camera view of the camera used to obtain the pre-treatment digital 2D image by identifying corresponding points of at least one facial feature in the pre-treatment digital 2D image and corresponding at least one facial feature in the digital 3D representation, and - transferring the at least one digital tooth modification from the proposed digital 2D image to the digital 3D representation according to the transformation. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Chishti US 6,227,850 B1 May 8, 2001 Rubbert US 2002/0010568 A1 Jan. 24, 2002 Kopelman US 2003/0143509 A1 July 31, 2003 Methot US 2013/0158958 A1 June 20, 2013 Deichmann US 2013/0218530 A1 Aug. 22, 2013 Appeal 2020-002490 Application 15/529,771 3 REJECTIONS Claims Rejected 35 U.S.C. § Reference(s)/Basis 1–3, 5, 7, 10 103 Methot, Diechmann 6 103 Methot, Diechmann, Chishti 8 103 Methot, Diechmann, Kopelman 9 103 Methot, Diechmann, Rubbert OPINION Obviousness Appellant argues, inter alia, that the Examiner erred because, with respect to Methot, “any transformation between 2D and 3D occurs between a modified selected library 2D image and a corresponding 3D library dentition model, rather than between a modified pre-treatment digital 2D image of at least a part of patient’s teeth and a digital 3D representation of at least a part patient’s teeth.” Reply Br. 2–3. This distinction is important because the claims require a specific transformation between pre-treatment 2D and 3D images of the patient’s teeth be performed by an estimation of the camera view used to capture the 2D image via corresponding points of one or more facial features. Methot, on the other hand, while disclosing both 2D and 3D images, does not obtain a transformation between the patient’s own 2D and 3D images as claimed. Appellant is correct that Methot teaches the “transformation between 2D and 3D occurs between a modified selected library 2D image and a corresponding 3D library dentition model.” Reply Br. 2. As to Diechmann, Appellant is correct that Diechmann “teaches transferring a pre-op digital 2D image onto a pre-op digital 3D model, and Appeal 2020-002490 Application 15/529,771 4 such procedures are not saved and used to transfer a different image.” Reply Br. 4. Appellant’s claims require a specific transformation, or cypher, developed between pre-op 2D and 3D images and then using the same cypher to modify the treatment 2D image into a 3D model. The point being that by knowing the location of the camera used to take the 2D image, the cypher may be used to obtain an accurate 3D model of the 2D image. Thus, the cypher developed in converting the pre-op images may be re-used to obtain the most accurate 3D model of the treatment plan. In contrast, Methot merely teaches use of library pre-op images, one being 2D and one being 3D. Diechmann teaches a transformation, but it is only used once and is not saved for any future purposes. What the Examiner’s rejection is missing is that regardless of whatever transformation may be used in either of Methot or Diechmann, that transformation is not used a second time to convert the treatment 2D image into a 3D model. We are persuaded that this amounts to reversible error and do not sustain the Examiner’s rejection of claims 1–3, 5, 7, and 10. None of Chishti, Kopelman, or Rubbert cures this defect and we likewise do not sustain the rejections of claims 6, 8, and 9. CONCLUSION The Examiner’s rejections are REVERSED. More specifically, Appeal 2020-002490 Application 15/529,771 5 DECISION SUMMARY Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–3, 5, 7, 10 103 Methot, Diechmann 1–3, 5, 7, 10 6 103 Methot, Diechmann, Chishti 6 8 103 Methot, Diechmann, Kopelman 8 9 103 Methot, Diechmann, Rubbert 9 Overall Outcome 1–3, 5–10 REVERSED