Ex Parte Andreiko

Patent Trial and Appeal Board

Apr 25, 2016

13282130 (P.T.A.B. Apr. 25, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/282, 130 10/26/2011
83571 7590 04/27/2016
Wood, Herron & Evans, LLP (Sybron)
441 Vine Street
2700 Carew Tower
Cincinnati, OH 45202
FIRST NAMED INVENTOR
Craig A. Andreiko
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
ORM-303DV 1095
EXAMINER
PATEL, YOGESH P
ART UNIT PAPER NUMBER
3732
NOTIFICATION DATE DELIVERY MODE
04/27/2016 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):
usptodock@whe-law.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CRAIG A. ANDREIKO
Appeal2014-003415
Application 13/282,130
Technology Center 3700
Before MURRIEL E CRAWFORD, CYNTHIA L. MURPHY, and
BRUCE T. WIEDER, Administrative Patent Judges.
MURPHY, Administrative Patent Judge.
DECISION ON APPEAL
The Appellant1 appeals under 35 U.S.C. § 134 from the Examiner's
rejections of claims 1-8. We have jurisdiction over this appeal under
35 U.S.C. § 6(b).
We AFFIRM.
1 The Appellant identifies the real party in interest as "Ormco Corporation."
(Appeal Br. 2.)
Appeal2014-003415
Application 13/282130
STATEMENT OF THE CASE
The Appellant's invention "relates to computer-aided orthodontia, and
in particular the computerized generation of orthodontic appliances that are
individualized for a particular patient." (Spec. i-f 8.)
Illustrative Claim2
1. A method of forming a custom orthodontic appliance,
compnsmg
providing brackets to be positioned on a patien(~s teeth,
wherein the brackets include a bonding pad and a body, each
respective bracket body having substantially parallel and
opposed sidewalls which extend substantially perpendicular to
the bonding pad of the respective bracket to define an archwire
slot, the sidewalls and slot at an angle relative to perpendicular
to the bonding pad of the respective bracket which is selected to
provide a desired torque to a tooth based upon the geometry of
the patient's teeth and masticatory system,
providing an archwire having a noncircular cross section,
assembling the brackets to the archwire to form the custom
orthodontic appliance.
Creekmore
Pletcher
Damon
Andreiko
Abels
References
us 4,531,911
us 5,322,435
us 5,466,151
us 5,533,895
US 6,988,889 B2
Rejections
July 30, 1985
June 21, 1994
Nov. 14, 1995
July 9, 1996
Jan.24,2006
I. The Examiner rejects claims 1-8 under 35 U.S.C. § 112, second
paragraph, as indefinite. (Final Action 2.)
2 This illustrative claim is quoted from the Claims Appendix ("Claims
App.") set forth on pages 8-9 of the Appeal Brief.
2
Appeal2014-003415
Application 13/282130
IL The Examiner rejects claims 1 and 8 under 35 U.S.C. § 102(b),
as anticipated by Creekmore. (Id. at 3.)
III. The Examiner rejects claims 2--4 under 35 U.S.C. § 103(a) as
unpatentable over Creekmore and Andreiko. (Id. at 5.)
IV. The Examiner rejects claim 5 under 35 U.S.C. § 103(a) as
unpatentable over Creekmore and Damon. (Id.)
V. The Examiner rejects claim 6 under 35 U.S.C. § 103(a) as
unpatentable over Creekmore and Pletcher. (Id. at 6.)
VI. The Examiner rejects claim 7 under 35 U.S.C. § 103(a) as
unpatentable over Creekmore and Abels. (Id.)
ANALYSIS
According to the Appellant, "the entire premise of the present
application is that the sidewalls of a bracket slot should be formed at an
angle relative to perpendicular to the bracket base." (Reply Br. 2.) This
premise is specified in independent claim 1 via a limitation requiring that the
sidewalls and slot be "at an angle relative to perpendicular to the bonding
pad which is selected to provide a desired torque to a tooth based upon the
geometry of the patient's teeth and masticatory system." (Claims App., see
also Spec. Fig. 12.)
Rejection I
As indicated above, independent claim 1 recites that the sidewalls and
slot are "at an angle relative to perpendicular to the bonding pad." (Claims
App.) However, independent claim 1 also recites that the sidewalls "extend
substantially perpendicular to the bonding pad." (Id.) In view of these two
3
Appeal2014-003415
Application 13/282130
recitals, the Examiner maintains that "[t]he relationship between the slot and
the bonding [is] not clearly understood." (Final Action 3.)
We are not persuaded by the Appellant's position that independent
claim 1, as written, is definite. (See Appeal Br. 4; see also Reply Br. 1-3.)
We agree with the Examiner that it is unclear from the two above-quoted
recitals whether the pertinent elements are perpendicular, or not
perpendicular, to the bonding pad. (See Answer 3.) If the premise of the
Appellant's invention is that the sidewalls and the slot are at an angle
relative to perpendicular of the bonding pad (see Reply Br. 2), independent
claim 1 should not recite that the sidewalls extend substantially
perpendicular to the bonding pad. As such, the Examiner sufficiently
establishes that independent claim 1, as presently written, is indefinite.
Thus, we sustain the Examiner's rejection of claims 1-8 under 35 U.S.C.
§ 112, second paragraph.
Rejections II-VI
As indicated above, independent claim 1 requires the sidewalls and
slot to be "at an angle relative to perpendicular to the bonding pad which is
selected to provide a desired torque to a tooth based upon the geometry of
the patient's teeth and masticatory system." (Claims App.) The Examiner
determines that Creekmore discloses a bracket body with sidewalls and a
slot arranged as required by independent claim 1. (See Final Action 4.)
We are persuaded by the Appellant's position that Creekmore does
not show or suggest a bracket body wherein the sidewalls and/ or the slot are
at the angle recited in independent claim 1. (See Appeal Br. 4---6.) We agree
with the Appellant that, in Creekmore's bracket body, the sidewalls and
archwire slot extend perpendicular (i.e., upward in the illustrated orientation)
4
Appeal2014-003415
Application 13/282130
to the bonding pad. (See, e.g., Creekmore Figs. 6 and 7.) As such, the
Examiner does not sufficiently establish that Creekmore shows or suggests a
bracket body having sidewalls and an archwire slot that are at an angle
relative to perpendicular to the bonding pad. The Examiner's further
findings with respect to the dependent claims and additional prior art
references (see Final Action 4--7) do not compensate for this shortcoming in
Creekmore. Thus, we do not sustain the Examiner's rejections of claims 1-8
under 35 U.S.C. § 102(b) and§ 103(a).
DECISION
We AFFIRM the Examiner's rejection of claims 1-8 under 35 U.S.C.
§ 112, second paragraph.
We REVERSE the Examiner's rejections of claims 1-8 under
35 U.S.C. § 102(b) and§ 103(a).
AFFIRMED
5