Coyle, Brian Michael.

Patent Trials and Appeals Board

Apr 29, 2021

2020004797 (P.T.A.B. Apr. 29, 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.
15/992,740 05/30/2018 Brian Michael Coyle 1058
7590 04/29/2021
Brian Michael Coyle
Box 176
CANYON, CA 94516
EXAMINER
LARSEN, JEFFREY R
ART UNIT PAPER NUMBER
3643
MAIL DATE DELIVERY MODE
04/29/2021 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BRIAN MICHAEL COYLE
Appeal 2020-004797
Application 15/992,740
Technology Center 3600
Before JOHN C. KERINS, DANIEL S. SONG, and
CHARLES N. GREENHUT, Administrative Patent Judges.
GREENHUT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant,1 Brian Michael Coyle, pro
se, appeals from the Examiner’s decision to reject claims 1, 2, 4, 7–16, and
18–23. See Final Act. 1. We have jurisdiction under 35 U.S.C. § 6(b).
Due to certain defects in the Appellant’s first Appeal Brief filed
March 30, 2020, we issued a Request for Additional Briefing or Information
on September 15, 2020. That Request for Additional Briefing or Information

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Brian Michael Coyle.
Appeal Br. 4.
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2
provided Appellant with several options for response. After the Board
granted a petition to extend the time period for response to that request, a
second amended Appeal Brief was filed March 3, 2021. All references to
“Appeal Br.” herein are directed to the Appeal Brief filed March 3, 2021.
In our Request for Additional Briefing or Information we indicated
that our decision in the present appeal would be based on the claims entered
into the application file wrapper on June 18, 2019. Request for Additional
Briefing or Information p. 8. All references made herein to claims are
directed toward the claims entered June 18, 2019. It is noted that the Claims
Appendix to the Appeal Brief filed March 3, 2021, still contains revisions
(albeit of a more minor nature than those included with the Brief filed March
30, 2020) to the claims that have not been entered. It is also noted that some
of Appellant’s arguments appear to remain directed to language in the
“AFCP 2.0: AMENDMENT AND RESPONSE TO OFFICE ACTION
MAILED 08/01/2019,” filed October 3, 2019 which, as we pointed out on
pages 3 and 5–8 of our Request for Additional Briefing or Information, was
refused entry by the Examiner in the Advisory Action dated November 27,
2019.
Having now considered the revised Appeal Brief filed March 3, 2021,
for the reasons discussed below we AFFIRM the Examiner’s rejections on
all grounds presently before us.
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3
CLAIMED SUBJECT MATTER
The claims are directed to a photodental device for animals. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. A device for radiating teeth, tissue and bone, in a mouth of an
animal, in particular a dog, comprising:
a power source;
a lighting controller;
a movable body including a means of impact resistance from
animal play and/or chewing action forces;
said movable body further comprising a chew-toy housing that is
removably or permanently coupled in a concentrical
disposition around an illuminating member;
said illuminating member having therein one or a plurality of
light sources, each light source emitting light wavelengths
selected from the group consisting of (a) a single light
wavelength, (b) multiple light wavelengths, and associated
electrical components;
said chew toy housing comprising a substantially solid chewing
surface;
said impact resistance means comprising one or more systems
selected from the group consisting of (a) materials largely
resistant to said forces, (b) structures that absorb, deflect,
and/or repel said forces, and (c) mixtures thereof;
each of said systems adapted to reduce the impact in magnitude
of movement, bite, and jaw forces transmitted to said
illuminating member;
said light emission radiating out of said movable body without
being substantially attenuated;
said light wavelengths being in the range of 380 nm to 420 nm,
particularly 405±5 nm.
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REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Goodman US 5,968,036 Oct. 19, 1999
Benedict US 2005/0004631 A1 Jan. 6, 2005
Soukos ’251 US 2005/0221251 A1 Oct. 6, 2005
Mannino US 2009/0191504 A1 July 30, 2009
Soukos ’383 US 2017/0326383 A1 Nov. 16, 2017
REJECTIONS
Claims 1, 2, 4, 7–16, and 18–23 are rejected under 35 U.S.C. § 112(b)
as being indefinite for failing to particularly point out and distinctly claim
the subject matter which the inventor or a joint inventor regards as the
invention. Final Act. 2.
Claims 1, 2, and 4 are rejected under 35 U.S.C. § 103 as being
unpatentable over Soukos ’383 and Benedict. Final Act. 11.
Claims 7–10, 18, and 19 are rejected under 35 U.S.C. § 103 as being
unpatentable over Soukos ’383, Mannino, and Benedict. Final Act. 12.
Claims 15 and 16 are rejected under 35 U.S.C. § 103 as being
unpatentable over Soukos ’383, Mannino, Benedict, and Soukos ’251. Final
Act. 19.
Claim 20 is rejected under 35 U.S.C. § 103 as being unpatentable over
Soukos ’383, Goodman, and Benedict. Final Act. 22.

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OPINION
Indefiniteness
All pending claims are subject to the indefiniteness rejection and
argued as a group, for which claim 1 is representative under 37 C.F.R.
§ 41.37(c)(1)(iv).
The Examiner determined that the phrase “light wavelengths being in
the range of 380 nm to 420 nm, particularly 405±5 nm” constituted “[a]
broad range or limitation together with a narrow range or limitation that falls
within the broad range or limitation (in the same claim).” Ans. 3–4; Final
Act. 4. The Examiner correctly determined such language “is considered
indefinite, since the resulting claim does not clearly set forth the metes and
bounds of the patent protection desired.” Ans. 3–4 (citing MPEP
§ 2173.05(c)).
A potential infringer may not be adequately put on notice as to
whether one must avoid the broader range of wavelengths, or only the more
narrow “particular[]” range, in order to avoid infringement of claim 1.
Appellant does not appear to appreciate this issue and does not present any
arguments relevant to it. As best as we can tell, Appellant perhaps confuses
the definiteness requirement of 35 U.S.C. § 112(b) with the enablement
requirement of 35 U.S.C. § 112(a). See, e.g., Appeal Br. 13 (“[This phrase]
encapsulates a claim construction that did not bar others from making it
when the patent was filed, and informs the public how to make it today and
next year.”). Although language like that in question is often found in patent
specifications and may help satisfy the enablement requirement of 35 U.S.C.
§ 112(a), we see no reason why, in this case, we should depart from the
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6
familiar rule discussed in MPEP § 2173.05(c), of which the claims are
clearly in violation.2 Accordingly, we sustain this rejection.

Prior art rejections
Above we have affirmed the Examiner’s indefiniteness rejection,
which is applicable to all claims before us on appeal. Our affirmance in that
regard suffices to determine the overall outcome of this appeal because, as
37 C.F.R. § 41.50(a) states, “[t]he affirmance of the rejection of a claim on
any of the grounds specified constitutes a general affirmance of the decision
of the examiner on that claim.” However, for the sake of completeness of the
administrative record we proceed to discuss the issues raised with regard to
the prior art rejections below. See, e.g., In re Wagenhorst, 64 F.2d 780
(CCPA 1933), and its progeny.

Soukos ’383 and Benedict
Claim 1 is also representative of the claims subject to this rejection. In
rejecting claim 1 based on Soukos ’383 and Benedict, the Examiner relied
on Soukos ’383 for all aspects of the claim but noted that Soukos ’383’s
wavelength range of 400 nm to 1,000 nm (Soukos ’383 para. 97), which
overlaps Appellant’s range, lacks sufficient specificity to regard that range
as explicitly disclosing the claimed range. Final Act. 11; see, e.g., MPEP
§ 2131.03(II). Although such a disclosure is sometimes regarded as
sufficient evidence for demonstrating prima facie obviousness (see, e.g.,
MPEP § 2144.05), the Examiner nevertheless cited Benedict as evidence

2 It is noted that that the claims also contain genus-species language “an
animal . . . in particular a dog” suffering from the same problem.
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that it was known to use the particular wavelengths recited (Benedict para.
12) in medical procedures, including dental procedures, that “suppress or
eliminate the growth or presence of dental caries, root regeneration, loose
teeth or other dental diseases” and “to irradiate and suppress growth of a
bacterial or viral disease associated with the mouth interior” (Benedict para.
21). Final Act. 11–12.
Appellant’s first argument is that the recited “means of impact
resistance from animal play and/or chewing action forces” does not include
Soukos ’383’s “materials that are resilient to biting.” Appeal Br. 15–17; see
Final Act. 13 (citing Soukos ’383 para. 169). Although, as Appellant
correctly points out (Appeal Br. 16), the terms “impact resistant” and
“resilient” are not necessarily coextensive, in the context of the present
claims and Specification as a whole, something that is “resilient to biting” is
reasonably regarded as, or equivalent to (see 35 U.S.C. § 112(f)), a “means
of impact resistance from animal play and/or chewing action forces.” This is
strongly supported by the claim language itself, which further describes
“said impact resistance means” can comprise, inter alia, “(b) structures that
absorb, deflect and/or repel [play and/or chewing action] forces.” “Structures
that absorb, deflect and/or repel . . . forces” essentially mirrors the definition
proffered by Appellant for resiliency (Appeal Br 16). The cited portion of
Soukos ’383 clearly teaches the skilled artisan to construct such structures
with the forces associated with biting dogs in mind. Appellant quotes small
portions of the sentence forming paragraph 35 of the Specification in what
seems to be an effort to assert a distinction between impact resistance and
resiliency. Appeal Br. 17. However, paragraph 35, in its entirety, states:
“‘Impervious’, as used herein, means a continuous structure integrally
formed of a resilient composition that is impact and rupture resistant.” Thus,
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according to the cited portion of Appellant’s Specification, the “means for”
the recited “impact resistance” is actually “a resilient composition.”
Accordingly, both the language of claim 1 and the Specification’s
description clearly contradict Appellant’s position on this point.
Appellant next argues that Soukos ’383’s process of embedding LEDs
within its ball does not result in “a housing” according to claim 1. Appeal
Br. 18–21. Again, the terms themselves may not be coextensive in that
clearly not every structure which resides in a “housing” is “embedded”
within that “housing.” However, what is relevant here in the context of the
present claims and Specification is whether the structure within which
Soukos ’383’s LEDs are embedded is reasonably considered a “housing.”
Appellant argues “[a] housing implies two distinct structures.” Appeal
Br. 18. However, we are not apprised of any evidence supporting such a
definition. Claim 1 clearly permits the “housing” to be “permanently
coupled . . . around an illuminating member.” Soukos ’383’s plastic ball falls
squarely within even Appellant’s own proffered definition, an “enclosure
that covers or protects another structure,” because it constitutes an enclosure
that covers and protects Soukos ’383’s LEDs. Appeal Br. 18. Appellant’s
argument regarding “routine optimization” as it relates to the “housing”
(Appeal Br. 19) appears to result from a misunderstanding of the Examiner’s
position, which involves optimization of the specific wavelengths of light
transmitted through the housing as opposed the structure of the recited
“housing” itself. See Final Act. 12.
Appellant next argues the claimed invention satisfies long-felt but
unresolved needs. Appeal Br. 21. However, the first three needs identified
by Appellant are all clearly disclosed within the teachings of, and thus
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absent a showing to the contrary, are reasonably regarded as satisfied by,
Soukos ’383:
1. Specific photodynamic light wavelengths kill canine PD
planktonic and biofilm bacteria;
2. These light wavelengths can be generated in, or transferred into, a
resilient container; and
3. This container can have material and structural means of
protection.
We are not apprised of any convincing evidence that Soukos ’383
fails to satisfy the alleged needs. Appellant points out the shortcomings of
the design of Soukos ’383 as compared to Appellant’s design. However,
even if Appellant has, in fact, engineered a better product than Soukos ’383,
without language in the pending claims reflecting with particularly
Appellant’s purported improvements over Soukos ’383’s design, such a feat
relates more to the product’s marketability as opposed to its patentability. In
re Hiniker Co., 150 F.3d 1362, 1369 (Fed. Cir. 1998) (“The invention
disclosed in [Appellant’s] written description may be outstanding in its field,
but the name of the game is the claim.”).
The fourth long-felt need purported to be addressed by the presently
claimed invention is “[a] replaceable housing, conforming to what dogs like
to chew, can surround the container.” Appeal Br. 21. Appellant elaborates on
this argument by explaining that “[c]ustomers replace the housing
periodically, to maintain warranty on the illuminating member. This
business plan is key to product success.” Contrary to Appellant’s argument
(Appeal Br. 22–24), there is clearly an insufficient nexus between any need
satisfied by a replaceable housing and Appellant’s claimed invention
because claim 1 expressly recites (with emphasis added) that “chew-toy
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housing . . . is removably or permanently coupled . . . around an illuminating
member.”
Appellant’s next arguments are based on the alleged inoperability of
the Soukos ’383 device. It is true that a prior art reference must be “enabling
of the features for which it has been cited.” In re Epstein, 32 F.3d 1559,
1567–69 (Fed. Cir. 1994) (citing In re Sasse, 629 F.2d 675, 681 (CCPA
1980)). However, courts have consistently held that Examiner’s may
presume prior art devices in cited publications are operable. Amgen Inc. v.
Hoechst Marion Roussel, Inc., 314 F.3d 1313 (Fed. Cir. 2003). Furthermore,
where the evidence or argument presented asserts inoperability of certain
features discussed in the reference which are not relied upon, the reference is
still effective as to other features which are operative. In re Shepherd, 172
F.2d 560 (CCPA 1949). Further still, where the evidence or arguments
presented assert that features discussed in the reference relied upon are
inoperative, the claims presented by Appellant must distinguish from the
alleged inoperative subject matter in the reference’s disclosure. In re Crosby,
157 F.2d 198 (CCPA 1946); In re Epstein, supra. Thus, even if there were
strong evidence in the record, as opposed to mere argument, demonstrating
the alleged shortcomings in Soukos ’383 related to thermal management
(Appeal Br. 24–26) and structural weaknesses (Appeal Br. 26–27), it would
not be relevant to the Examiner’s rejection because that rejection did not rely
on Soukos ’383 for such subject matter and also because the claims before
us do not recite limitations correlating to any particular distinctions with
regard to such subject matter. Although the discussion of thermal
management may be scientifically interesting, the Examiner was correct in
determining it is not legally relevant to the issues presently before us.
Appeal Br. 24.
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The relevance of Appellant’s arguments distinguishing “‘Translucent
or Transparent’ Polymers” from “Opaque Polymers” (Appeal Br. 27–30) is
unclear as we are not apprised of any language in claim 1 relevant to such
arguments. See In re Self, 671 F.2d 1344, 1348 (CCPA 1982) (limitations
not appearing in the claims cannot be relied upon for patentability).
Turning to Benedict, Appellant next argues “Benedict is ambiguous”
without providing any cogent explanation as to why. Appeal Br. 30–33.
Appellant appears to be arguing that Benedict lacks sufficient enabling
disclosure. Applying the standards discussed above regarding Appellant’s
burden to demonstrate inoperability with respect to the prior art subject
matter, Benedict seems perfectly clear regarding the subject matter for which
it is relied upon by the Examiner (discussed above). Appellant’s arguments
do not demonstrate otherwise.
Although titled “Benedict Wavelengths Not Enabling” the next
section of Appellant’s brief essentially asserts Benedict lacks sufficient
specificity to meet the “380 nm to 420 nm, particularly 405±5nm”
limitation. This argument appears to be premised on the presence of a
broader range in Benedict of “wavelengths λ in a range 400 nm ≤ λ ≤ 1500
nm.” Appeal Br. 35; Benedict para. 12. It is axiomatic that prior art
references are available for all that they teach. In re Heck, 699 F.2d 1331,
1332–33 (Fed. Cir. 1983). The disclosure of a broader range does not nullify
the disclosure in Benedict of the more narrow range cited by the Examiner
of “wavelengths in a near-ultraviolet range (e.g., 350 nm≤ λ [≤] 400 nm).”
See Benedict para. 12.
For the foregoing reasons, we sustain the rejection of claims 1, 2, and
4 over Soukos ’383 and Benedict.

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Soukos ’383, Mannino, and Benedict
Mannino is cited by the Examiner against claim 7, representative of
the claims subject to this rejection, for the recited features relating to the
umbilical hose and tether system. Final Act. 12–14.
For reasons that are not apparent to us, Appellant seems to believe
Mannino involves high-powered lasers. Appeal Br. 38–40. Instead, Mannino
relates to transmitting light into a person’s tooth to improve visibility of a
void 52 in that tooth during a dental procedure. Mannino paras. 6, 27, 34.
First, as noted above, it is unclear that the only “animal” to which the
claimed subject matter is limited is a dog. Further, there is no evidence to
demonstrate that Mannino’s light, which is intended for the mouth of a
human animal, would involve an unsafe level of radiation in the mouth of a
dog. Further still, as noted above, the Examiner relies on Mannino for the
teachings of its light guides, reasonably concluding there is an obvious
benefit to separating the animal and the device, which would help protect
both the device and the animal. See Final Act. 14. The particular form of the
transmitted light, whether laser or not, its energy level and use, have little
influence on the relevance of Mannino’s teachings in this regard.
Accordingly, we sustain the Examiner’s rejection based on Soukos ’383,
Mannino, and Benedict.

Soukos ’383, Mannino, Benedict, and Soukos ’251
The Examiner adds Soukos ’251 to the rejection for its teaching of
handle 14 which the Examiner equates to the recited “handle or knob” of
representative claim 15. Appellant recounts certain aspects of the procedural
history of the Examiner’s rejection (Appeal Br. 41) and then attacks a
number of perceived design flaws with the Soukos ’251 device (Appeal Br.
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42–46). Appellant does not tie any of the perceived flaws with the
Soukos ’251 device to the presently pending claims or the subject matter in
Soukos ‘251 relied upon by the Examiner. These arguments are
unpersuasive for reasons similar to those discussed above. Accordingly, we
sustain the Examiner’s rejection based on Soukos ’383, Mannino, Benedict,
and Soukos ’251.

Soukos ’383, Goodman and Benedict
The Examiner relies on Goodman for the
optical sensors detecting areas in said oral cavity reflecting
broadband light frequencies and narrowband light frequencies,
. . . transmitting a signal in response to the detection of said areas
to said controller . . . where said broadband and narrowband
frequencies are mutually present, said areas being likely areas
with periodontal disease-causing bacteria, said controller is
adapted to activate each light source associated with respective
ones of said light guiding members that direct light at said areas.
Final Act. 23–24.
Appellant asserts two distinctions with Goodman’s process. Appeal
Br. 48–50. First, Goodman relates to a tissue ablating technique as opposed
to a cleaning technique. Second, Goodman turns off the ablation laser on
detection of potential pathogens whereas Appellant turns the light source on.
Appellant’s first assertion is not entirely correct as, in addition to
ablation, Goodman also teaches that “the ablation laser [can be made] to
operate at a lower power in order to provide a germicidal effect in which the
unwanted virus is destroyed or minimized, while not causing further ablation
of the tooth.” Goodman 12:67–13:3. Furthermore, as it is well-settled that
combining reference teachings in an obviousness analysis does not involve
the combination of their specific structures (In re Mouttet, 686 F.3d 1322,
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1332 (Fed. Cir. 2012)), the presence of light energy levels capable of
ablation does not detract from the aspects of the feedback mechanism for
which the Examiner cited Goodman. The Examiner never proposes to
incorporate any aspects of tissue ablation from Goodman.
Regarding Appellant’s second assertion, although it is true that
Goodman turns off the ablation laser “if the fiber optic sensor detects the
presence of a selected virus in the material being ablated from the tooth,”
Goodman continues on to indicate that in response to the detection, as
mentioned above “the ablation laser [can be made] to operate at a lower
power in order to provide a germicidal effect.” Goodman 12:64–13:1. Thus,
similar to Appellant’s device, Goodman responds to the detection of a
pathogen with germicidal light. Accordingly, we are not apprised of error in
the Examiner’s reliance on Goodman and sustain the rejection based on
Soukos ’383, Goodman, and Benedict.

CONCLUSION
The Examiner’s rejections are AFFIRMED.
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DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 2, 4, 7–
16, 18–23
112(b) Indefiniteness 1, 2, 4, 7–
16, 18–23

1, 2, 4 103 Soukos ’383,
Benedict
1, 2, 4
7–10, 18, 19 103 Soukos ’383,
Mannino, Benedict
7–10, 18, 19
15, 16 103 Soukos ’383,
Mannino,
Benedict,
Soukos ’251
15, 16
20 103 Soukos ’383,
Goodman,
Benedict
20
Overall
Outcome
1, 2, 4, 7–
16, 18–23

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