Ex Parte Haley

Patent Trial and Appeal Board

Mar 28, 2017

14588766 (P.T.A.B. Mar. 28, 2017)

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.
14/588,766 01/02/2015 Jeffrey T. Haley 15001.201C1 8108
39124 7590 03/30/2017
CAROL NOTTENBURG
264 SENECA PLACE NW
RENTON, WA 98057
EXAMINER
BECKHARDT, LYNDSEY MARIE
ART UNIT PAPER NUMBER
1613
NOTIFICATION DATE DELIVERY MODE
03/30/2017 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):
c arol. nottenburg @ cougarlaw. com
chris.pratt@cougarlaw.com
cnot@comcast.net
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JEFFREY T. HALEY1
Appeal 2017-003523
Application 14/588,766
Technology Center 1600
Before ERIC B. GRIMES, TAWEN CHANG, and TIMOTHY G. MAJORS,
Administrative Patent Judges.
CHANG, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) involving claims to a
dimpled, adhering troche, which have been rejected as obvious. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
STATEMENT OF THE CASE
“The present disclosure relates to a mucoadhering patch capable of
being . . . adhered to a moist surface of a mucous membrane or teeth in
1 Appellant identifies the Real Party in Interest as OraHealth Corp. (Appeal
Br. 4.)
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Application 14/588,766
humans or other animals. More particularly, it relates to a patch that has a
dimple on the adhering side.” (Spec. 12.)
Claims 1—8 and 10 are on appeal. Claim 1 is illustrative and
reproduced below:
1. A dimpled, adhering troche, comprising:
a. a convex surface;
b. a concave surface that is capable of adhering to a surface
in a mouth and that is opposite the convex surface;
wherein the troche comprises pressed powders;
wherein the pressed powder on the side having the concave
surface comprises an adhesive that adheres in a mouth; and
wherein the troche is at least 5 mm in each of at least two
dimensions.
(Appeal Br. 24 (Claims App’x).)
The Examiner rejects claims 1—4, 6, 8, and 10 under 35 U.S.C.
§ 103(a) as being unpatentable over DeFoney.2 (Ans. 3.)
The Examiner rejects claims 1—4, 6—8, and 10 under 35 U.S.C.
§ 103(a) as being unpatentable over DeFoney and Lemer.3 (Ans. 5.)
The Examiner rejects claim 5 under 35 U.S.C. § 103(a) as being
unpatentable over DeFoney, Lemer, and Turner.4 (Ans. 6.)
I.
Issue
The Examiner has rejected claims 1—4, 6, 8, and 10 under 35 U.S.C.
§ 103(a) as obvious over DeFoney. The Examiner finds that DeFoney
teaches
2 DeFoney et al., U.S. Patent No. 3,911,099, issued Oct. 7, 1975.
3 Lemer et al., U.S. Patent No. 6,197,331 Bl, issued Mar. 6, 2001.
4 Turner et al., U.S Patent No. 4,406,882, issued Sept. 27, 1983.
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tablets formed by compressing powders .... The tablets are taught to
have a concave and convex surface, wherein the tablets are round and
have a diameter of 0.5—0.8 inches (12.7 mm to 20.32 mm). An
adhesive is taught as used to adhere the tablet in the desired position,
with the adhesive fixed to the face of the tablet wherein the concave
surface is taught as placed against the inner contour of the mouth, thus
teaching application of the adhesive to the concave surface of the
tablet. [DeFoney] teaches the coating on the tablet includes
carboxy[]methyl[]cellulose, wherein carboxy methyl cellulose is
taught to be adhesive, thus meeting the limitation of the pressed
powder comprising an adhesive.
(Ans. 3 (citations omitted).) The Examiner concludes that
[i]t would have been prima facie obvious to one of ordinary skill in
the art at the time the invention was made to use an adhesive on the
oral tablet as [DeFoney] teaches the coating includes carboxy[Jmethyl
cellulose and [DeFoney] teaches adhesives used in combination with
the tablet include sodium carboxy methyl cellulose. It would have
been obvious to one of ordinary skill in the art at the time the
invention was made to use a combination of carboxy methyl cellulose
and gelatin as [DeFoney] teaches it was known to use a combination
of gelatin and carboxy[]methyl cellulose on the oral tablet.
(Id. at 4—5.)
Appellant contends that DeFoney does not suggest a troche “wherein
the pressed powder on the side having the concave surface comprises an
adhesive.” (Appeal Br. 9—12.) Appellant further contends that the Examiner
did not articulate a “rational underpinning” for the rejection, showing why a
skilled artisan would modify DeFoney to arrive at the claimed invention.
(Id. at 12-15.)
Appellant does not separately argue claim 2-4, 6, 8, and 10. (Id. at
12.) The issue with respect to this rejection is whether the evidence of
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record supports the Examiner’s conclusion that claim 1 would have been
obvious over DeFoney.
Findings of Fact
1. DeFoney teaches “compositions and articles for providing odor-
masking substances or medicaments ... in a sustained release vehicle, and in
a physical configuration or with a suitable adhesive which will allow the
article ... to remain in a relative fixed position adjacent to or adhered to the
oral mucosa.” (DeFoney 1:50—57; see also id. at Abstract, 2:1—14.)
2. DeFoney teaches that,
in a preferred embodiment of the invention, suitable micro-capsules
containing odor-masking compositions are wholly or partially covered
with an intraoral adhesive, which will adhere the capsules to the oral
mucosa. . . .
When the micro-capsule form of the invention is utilized, the
invention can be dispensed as a tablet or powder ... in a manner
which is well known in the art. . . .
In another embodiment of the invention, the odor-masking
composition or medicament, in liquid or in powder form, is
incorporated into a sustained release tablet. . . . The purpose of the
sustained release tablet is to present a substantial quantity of the odor-
masking composition or medicament, in powdered form, in the tablet,
covered by or located within a sustained release binder or coating,
which will allow the gradual release into the oral cavity of the odor-
masking or other compositions at the desired rate and over a
prolonged period of time, under the action of the saliva in the mouth.
Suitable polymeric materials which are usable as sustained release
coatings are carboxy methyl[]cellulose, vinyl acetate resins and
polyvinyl pyrillidone [sic] and salts thereof.
{Id. at 4:49-53, 63-66, 5:14—25.)
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3. DeFoney’s Figs. 1 and 2 are excerpted below:
F/g. 1 __f ig. 2
(Id. at Figs. 1, 2.) Fig. 1 is “a top plan view of a preferred form of tablet in
accordance with [DeFoney’s] invention.” (Id. at 2:65—66.) Fig. 2 is “a cross
sectional view of the tablet of Fig. 1, taken along line 2—2.” (Id. at 2:67—68.)
4. DeFoney teaches that,
[i]n one form of the invention, the tablet, in sustained release form, is
manufactured in the configuration illustrated in FIGS. 1 and 2, which
is an optimum configuration for allowing the tablet to reside, without
the necessary use of an adhesive, in the comers of the mouth against
the oral mucosa. Viewing FIG. 2, the tablet is seen as having a curved
inner surface 12 and a curved outer surface 14 which are designed to
fit comfortably along the contour of the mouth at the oral mucosa. . . .
The curvature of the tablet at the bases 12 and 14 is [preferably] a
gradual curvature, in order to provide for optimum configuration to
match the inner contour of the mouth. However, this can be varied
somewhat while retaining a comfortable fit of the tablet within the
mouth.
(Id. at 5:26-34, 50-55.)
5. DeFoney teaches that,
[i]n the preferred embodiment of the invention shown in FIG. 1, the
tablet will have a longitudinal dimension, from the end 16 toward the
end 18 of approximately 0.75 and up to about 1.25 inches, a vertical
dimension of from about 0.4 to about 0.7 inches, and a thickness of
about 0.3 and up to about 0.5 inches, so that it can comfortably fit in
the mouth without being unduly bulky. It is to be noted that a
minimum thickness of about 0.25 inches is desirable in order to allow
the tablet more readily to be held in place by the weight of the cheek.
. . . The height of the tablet, from the bottom surface 20 to the top
surface 22 is most desirably approximately 0.5 inches, in order to
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provide an optimum size in tablet for dispensing without being unduly
uncomfortable.
{Id. at 5:34—50.)
6. DeFoney teaches that
the tablet can be tableted in a more conventional form . . . without the
requisite shape . . . illustrated in FIGS. 1 and 2. In that event, in order
to permit the tablet to remain affixed in the oral cavity for a
substantially long period of time, it is desirable to use
pharmaceutically acceptable oral adhesive, to adhere the tablet in the
desired position. . . .
This adhesive would be fixed, in a small patch, or in spots, to
the largest face of the tablet....
{Id. at 6:14—23, 32—34.)
7. DeFoney teaches an example in which tablets of its invention
were produced by mixing magnesium stearate, talc, peppermint oil,
spearmint oil, silicon dioxide, dicalcium phosphate, and ethylcellulose;
granulating and screening the mixture; drying and re-screening the resulting
particles; compressing the mixture in tableting dies; and coating the resulting
tablets with a water-soluble gum. {Id. at 7:50-8:24.) DeFoney teaches that
“[t]he base material for the tablet, ethylcellulose, is only one of several such
saliva soluble materials which may be used in the tablet. . ., which includes
carboxy[]methyl[]cellulose, hydroxypropylcellulose, and methylcellulose
and pharmaceutically acceptable salts thereof.” {Id. at 9:44-49.)
8. Claim 1 of DeFoney claims “[a] product for the differential
flavor release of odor-masking flavoring materials in the oral cavity of
humans comprising a multiplicity of saliva solubilized micro-capsules,”
where “a pharmaceutically acceptable oral adhesive vehicle cover[s] at least
a portion of the surface of each of said microcapsules to provide said
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microcapsules with prolonged oral cavity residence time.” {Id. at claim 1.)
DeFoney further claims a tablet of “flavored oral adhesive vehicle” for
releasing microcapsules as defined in claim 1, where the tablet comprises
among other things “[a]n elongated oral adhesive vehicle body,” where
“[s]aid body ha[s] at least one face having a concave curvature and adapted
to fit comfortably along the upper surface of the gums at the side of the
mouth,” and an “inner core” of said microcapsules. {Id. at claim 5.)
9. The Specification states:
The patch [of the invention] comprises an adhesive. The
adherent side of the patch comprises one or more natural or synthetic
polymers that have adhesiveness to the wet mucous surface or a
combination of said polymers and, in some embodiments, an active
ingredient, such as a medicament. Adhesive molecules include acacia
gum, gelatin, alginate, starch, pectin, polyvinylpyrolidone [sic],
carboxy[]methyl[]cellulose, hydroxymethylcellulose, polyvinyl acid,
polyacrylic acid, and carbopol. Concentrations of these adhesive
molecules are well-known.
(Spec. 115.)
10. The Specification states:
For an oral patch made by a tablet pressing process, the typical
size is about 100 to 150 milligrams for total tablet weight. An
exemplary patch formulation is made by combining the active
ingredient with collagen and with binder ingredients. Collagen, which
is the organic molecule that makes up skin and the lining of the mouth
(a form of skin), tends to adhere very well to itself, making it
glutinous, and therefore adheres very well to the lining of the mouth.
... As the collagen molecules slough off the patch while it slowly
dissolves (erodes), they tend to adhere to the nearby mouth lining,
forming a film. This film significantly reduces the sensitivity of the
ulcer, both to touch and to chemical irritants.
{Id. at 116.)
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Analysis
DeFoney discloses a tablet having a convex surface and a concave
surface capable of adhering to a surface of the mouth that is opposite of the
convex surface. (FF1—FF4, FF8.) DeFoney teaches tablets comprising
micro-capsules that are wholly or partially covered with an intraoral
adhesive (FF2, FF8), a base material or coating comprising carboxy methyl
cellulose (FF2, FF7), and/or an adhesive fixed to a face of the tablet to
adhere the tablet to the desired position in the oral cavity (FF6). DeFoney
teaches that tablets of its invention may be formed by compressing a mixture
of particles in a tableting die (FF7), and further teaches a preferred
embodiment where the tablet is at least 5mm in at least two dimensions
(FF5). Accordingly, we agree with the Examiner that DeFoney renders
claim 1 obvious.
Appellant contends that DeFoney does not suggest a troche “wherein
the pressed powder on the side having the concave surface comprises an
adhesive.” (Appeal Br. 9-12.) Appellant first argues that DeFoney teaches
using an adhesive with the tablets of its invention only when the tablet’s
surface is other than concave. (Appeal Br. 9; Reply Br. 3.) We are not
persuaded. DeFoney teaches that a tablet with the configuration illustrated
in Figs. 1 and 2 (i.e., with opposing convex and concave surfaces) “allow[s]
the tablet to reside, without the necessary use of an adhesive, in the comers
of the mouth against the oral mucosa.” (FF4 (emphasis added).) This
disclosure suggests that adhesive may be used when the tablet has a concave
surface, even though such adhesive may not be necessary. Indeed, DeFoney
claims a tablet comprising “an oral adhesive vehicle body” where “[s]aid
body hav[e] at least one face having a concave curvature.” (FF8.)
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Appellant next argues that the Examiner erred in finding that DeFoney
teaches a tablet comprising a concave surface and an adhesive because
DeFoney discloses tablets comprising a coating of carboxy methyl cellulose.
(Appeal Br. 9—10.) Appellant argues that DeFoney does not teach or suggest
carboxy methyl cellulose as an adhesive but instead teaches its use in a
sustained release coating. (Id.) We are not persuaded. The Specification
discloses carboxy methyl cellulose as an adhesive molecule. (FF9.) “Where
... the claimed and prior art products are identical or substantially identical
. . . the PTO can require an applicant to prove that the prior art products do
not necessarily or inherently possess the characteristics of his claimed
product.” In re Best, 562 F.2d 1252, 1255 (CCPA 1977) (citation omitted).
Appellant has not shown that the carboxy methyl cellulose in DeFoney does
not also act as an adhesive.
Appellant further argues that, even assuming DeFoney suggests
adding an adhesive to a concave side of its tablet, the limitations in claim 1
that “the troche comprises pressed powders” wherein “the pressed powder
on the side having the concave surface comprises an adhesive that adheres in
a mouth” require that “the adhesive [be] contained within the troche and . . .
not ‘fixed to the face of the tablet’ as disclosed in [DeFoney].” (Appeal Br.
10-12.)
We are not persuaded. As an initial matter, “during examination
proceedings, claims are given their broadest reasonable interpretation
consistent with the specification.” In re Hyatt, 211 F.3d 1367, 1372 (Fed.
Cir. 2000). Here, while the Specification suggests that “pressed powder . . .
comprising] an adhesive” encompasses combining the active ingredient
with the adhesive prior to manufacturing the tablet (FF10), we find that the
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Application 14/588,766
broadest reasonable interpretation of the phrase in light of the Specification
does not exclude the adhesive being affixed to the pressed powder as, e.g., a
coating. In any event, DeFoney suggests embodiments where the adhesive
is contained within a tablet rather than fixed to the surface of the tablet,
because it teaches a tablet made of micro-capsules wholly or partially
covered with an intraoral adhesive. (FF2, FF8 (claiming a tablet comprising
“inner core” of such microcapsules).) Likewise, DeFoney suggests using
carboxy methyl cellulose—described in the Specification as an adhesive
molecule (FF9)—as a base material for the tablet. (FF7.)
Finally, Appellant contends that the Examiner did not articulate a
“rational underpinning” for the rejection, such as why a skilled artisan would
modify DeFoney to arrive at the claimed invention. {Id. at 12—15.) We are
not persuaded for the reasons discussed above. (See also Ans. 3—4, 8—12.)
Accordingly, we affirm the Examiner’s rejection of claim 1 as
obvious over DeFoney. Claims 2—4, 6, 8, and 10, which have not been
argued separately, fall with claim 1. See App. Br. 12; 37 C.F.R.
§ 41.37(c)(l)(iv).
Issue
II.
The Examiner has rejected claims 1—4, 6—8 and 10 under 35 U.S.C.
§ 103(a) as obvious over DeFoney and Lemer. The Examiner finds that, to
the extent the claims require the adhesive to be “part of the pressed powders
on the side [of the tablet] having the concave surface,” Lemer teaches
controlled release solid composition for the oral cavity or
pharmaceutical oral patch that adheres to hard dental surfaces such as
teeth and dentures and release an active pharmaceutical agent into the
oral cavity and has sustained release of the composition. The patch of
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[Lemer] has a concave and convex surface. The drug containing
composition may be self-adherent wherein the adhesive polymer
forms the matrix of the composition. The adhesives are taught to
be cellulose polymers and gelatin.
(Ans. 5 (citations omitted).) The Examiner concludes that
[i]t would have been prima facie obvious to one of ordinary skill in
the art at the time the invention was made to use the adhesive
materials taught by [Lemer] to form the tablet taught by [DeFoney]
because [Lemer] teaches oral patches formed from adhesive
polymers. One of ordinary skill in the art at the time the invention
was made would have a reasonable expectation of success as
[DeFoney] teaches th[at] an oral tablet that remains in contact with the
oral mucosa is taught to contain a large amount of cellulose polymer
wherein cellulose and gelatin polymers may be used in the
composition and [Lemer] teaches oral patches formed of polymers
including cellulose polymers and gelatin. One of ordinary skill in the
art at the time the invention was made would have motivation to use
the adhesive polymers of [Lemer] to form the oral tablet of [DeFoney]
because [DeFoney teaches that] the oral tablet is desired to be
adjacent to oral mucosa for long period of times (abstract) and teaches
the use of adhesive polymers with the oral tablet and [Lemer teaches]
patches to be adhered in the oral cavity.
(Ans. 5—6 (citations omitted).)
Appellant contends that the combination of DeFoney and Lemer does
not teach or suggest “a troche having a pressed powder on the concave side
comprising an adhesive.” (Appeal Br. 16—17.) Appellant further contends
that the Examiner has not shown a reason to combine DeFoney and Lemer.
(Id. at 18-20.)
Appellant does not separately argue claims 2—4, 6—8, and 10. (Id. at
21.) The issue with respect to this rejection is whether the evidence of
record supports the Examiner’s conclusion that claim 1 is obvious over
DeFoney and Lemer.
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Findings of Fact
11. Lemer is “directed to a sustained or controlled release solid
composition for the oral cavity or ‘pharmaceutical oral patch’ that adheres to
hard dental surfaces, such as teeth and dentures, and releases a
pharmaceutical agent.” (Lemer 1:9—12; see also id. at 6:47—53 (describing
the need for oral controlled-release pharmaceutical delivery device that is
easily removable but that hold to the attachment site for an extended period
of time); 7:25—28.)
12. Lemer’s Fig. 1 is excerpted below:
<> SiOC ROFiU: OF THE DENTAL PATCH
..X'd.-fz
b. VIEW PROM ABOVE
35.00
A CAVITY POP THE GLUE
S - 80QY or THE DENTAL PATCH
Figure 1
(Id. at Fig. 1.) Lemer’s Fig. 1 depicts the “side profile” and “view from
above” of the dental patch of its invention. (Id.)
13. Lemer teaches that “[an] important consideration for [the]
shape and size [of its patch] is that the patch does not confer unusual
sensation to the patient when applied.” (Id. at 12:36—38; see also id. at
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6:43—45 (“Patient comfort is provided in that the device is comfortable and
does not impart a ‘foreign’ feeling to the oral cavity.”).)
14. Lemer teaches that the patch of its invention “can comprise a
single adherent release layer or a non-adherent layer adhered in the oral
cavity by a separate adherent layer.” (Id. at 1:17—20; see also id. at 7:50-55
(drug-containing composition can be self-adhesive), 7:60-67, 8:50-52
(stating that “[wjhere the release layer is self-adherent, the minimal essential
components include at least one polymer, at least one pharmaceutical, and at
least one plasticizer”), 10:1—3 (stating that “several general embodiments are
covered by the invention, including embodiments in which the entire patch
is self-adherent”), 10:32—33 (stating that “[t]he patch can be a self-adhesive
drug-containing composition”), 10:39-45 (describing the invention as being
“directed to a liquid composition comprising at least one pharmaceutical and
at least one polymeric component that is capable of drying to form a
composition that will effectively release the pharmaceutical in the oral
cavity, which itself is adhesive when dried or which can be adhered to an
adhesive composition which, in turn, can adhere to the hard structures in the
oral cavity”), 11:41—44 (describing alternative embodiments where “a
polymer that is not self-adherent. . . can be mixed with an adhesive
component so that the patch does not need to be adhered separately”), claim
11 (single layered composition that is a substantially degradable adhesive
and from which pharmaceutically active agent is released into oral cavity).)
15. Lemer teaches that in preferred embodiments of the patch “the
dmg is embedded in a polymeric matrix” and that suitable polymers may
include, e.g., cellulose derivatives and gelatin. (Id. at 10:50-53, 11:15—22.)
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Analysis
As discussed above, we find claim 1 to be obvious over DeFoney.
Thus, we agree with the Examiner that claim 1 is also obvious over the
combination of DeFoney and Lemer. Furthermore, Lemer teaches an oral
patch that is a “self-adhesive drug-containing composition.” (FF14.) We
therefore find that Lemer suggests the limitation of a troche comprising
“pressed powder . . . comprising an adhesive that adheres in a mouth,” even
under Appellant’s constmction of the phrase requiring the adhesive to be
“within” the troche rather than fixed to its surface. We further agree that a
skilled artisan would have reason to combine DeFoney and Lemer to arrive
at the claimed invention. Both DeFoney and Lemer teach sustained release
vehicles intended to be retained in the oral cavity through, e.g., the use of
adhesives. (FF1, FF2, FF6, FF8, FF11, FF14.) DeFoney teaches a tablet
having the claimed shape and dimensions and further teaches that tablets of
its invention may be manufactured through compression in tableting dies.
(FF3—FF5, FF7.) Assuming that claim 1 requires the adhesive to be
incorporated within the troche rather than fixed to the surface, and assuming
that DeFoney does not suggest this limitation, it would still have been
obvious for a skilled artisan to make the tablet of DeFoney self-adhesive by
incorporating the adhesive within the troche as suggested by Lemer.
“Express suggestion to substitute one equivalent for another need not be
present to render such substitution obvious.” In re Font, 675 F.2d 297, 301
(CCPA 1982).
In addition to reiterating the arguments discussed above with respect
to DeFoney, Appellant further cites to Fig. lb in Lemer and argues that
“[t]he device in [Lemer] is molded from aqueous ingredients and dried” and
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that, “[i]f an adhesive is included, it is applied to the surface of the device,
much like in [DeFoney].” (Id. at 16—17 (citations omitted).) Appellant also
argues that, like DeFoney, Lemer does not “disclose a device with an
adhesive on a concave surface.” (Id. at 17.)
We are not persuaded. Appellant’s arguments with respect to
DeFoney have been addressed above. With respect to Lemer, Appellant
points to an embodiment in Lemer in which adhesive is added to a cavity in
the patch but does not address alternative self-adhesive embodiments also
taught by Lemer. However, “[i]t is well settled that a prior art reference is
relevant for all that it teaches to those of ordinary skill in the art.” In re
Fritch, 972 F.2d 1260, 1264 (Fed. Cir. 1992). Likewise, assuming for
argument’s sake that neither DeFoney nor Lemer individually suggests a
device with an adhesive on a concave surface,5 we find that the combination
of Lemer and DeFoney would suggest such a device given that Lemer
teaches a self-adhesive oral patch and DeFoney teaches a tablet with a
concave surface.
Finally, we are unpersuaded by Appellant’s argument that there is no
motivation to combine the cited references for reasons already discussed.
Appellant specifically argues that the Examiner has not shown a reason for a
skilled artisan to look to Lemer for an adhesive for the tablet in DeFoney,
assuming the Examiner is correct that DeFoney already discloses tablet with
“a concave surface [that is] already adhesive.” (Appeal Br. 20.) As
discussed above, however, substitution of one equivalent (e.g., the adhesive
5 But see FF8 (DeFoney claiming flavored oral adhesive vehicle body having
a concave surface) and FF12 (Fig. la of Lemer showing side profile of
dental patch including a concave surface).
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method disclosed in DeFoney) for another (e.g., the self-adhesive device
disclosed in Lemer) would have been obvious. In re Font, 675 F.2d 297,
301 (CCPA 1982).
Accordingly, we affirm the Examiner’s rejection of claim 1 as
obvious over DeFoney and Lemer. Claims 2-4, 6—8, and 10, which have not
been argued separately, fall with claim 1. See App. Br. 21; 37 C.F.R.
§ 41.37(c)(l)(iv).
III.
The Examiner has rejected claim 5 under 35 U.S.C. § 103(a) as
obvious over DeFoney, Lemer, and Turner. Appellant does not make any
arguments specific to claim 5 and argues only that Turner does not cure the
deficiencies of DeFoney and Lemer. Accordingly, we affirm the
Examiner’s rejection of claim 5 over DeFoney, Lemer, and Turner for the
reasons discussed above.
SUMMARY
For the reasons above, we affirm the Examiner’s decision rejecting
claims 1—8 and 10.
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).
AFFIRMED
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