Ex Parte Haselhuhn et al

Patent Trial and Appeal BoardDec 10, 2012

11579707 (P.T.A.B. Dec. 10, 2012)

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. 11/579,707 01/17/2007 Klaus Haselhuhn HASELHUHN ET AL 1 PCT 5474 25889 7590 12/10/2012 COLLARD & ROE, P.C. 1077 NORTHERN BOULEVARD ROSLYN, NY 11576 EXAMINER EIDE, HEIDI MARIE ART UNIT PAPER NUMBER 3732 MAIL DATE DELIVERY MODE 12/10/2012 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 KLAUS HASELHUHN, JAN-DIRK REIMERS, and HUBERTUS SPIEKERMANN __________ Appeal 2012-000237 Application 11/579,707 Technology Center 3700 __________ Before ERIC GRIMES, FRANCISCO C. PRATS, and SHERIDAN K. SNEDDEN, Administrative Patent Judges. GRIMES, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134 involving claims related to producing a dental implant. The Examiner has rejected the claims as obvious. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. STATEMENT OF THE CASE The Specification states that the process of making a dental implant to replace a lost tooth (Spec. 1) involves introducing an implant body into the jaw bone (id. at 2), after which an impression post is screwed into the App App impl or pr takin body pene impr Figu The adap impr wall discl (id. a read eal 2012-0 lication 11 ant body a osthesis (i g an impr is situated trated by a ession tray Figure 1 re 1 shows Specificat ted to a jaw ession bod thickness oses that t t 9). Claims 3 s as follow 8. A com 00237 /579,707 nd an imp d.). The S ession of a ” (id. at 1 n impress is placed of the Spe “an impr ion disclos or jaw p y 2 there constructe he impress , 5, 8 and s: bination ression is pecificatio t least one ). The “tr ion post in onto the j cification ession tray es that the art.… At t are portion d as a film ion post c 9 are on a comprisin 2 taken to su n disclose jaw part, ay body ha serted into aw part” (i is shown b according “concave he left-han s of the w 7 or mem an penetra ppeal. Cla g: bsequentl s an impre in which a s a wall w the impla d. at 6). elow: to the inv impressio d and righ all 6, 6' wi brane” (id te the port im 8 is rep y produce ssion tray t least one hich can b nt body if ention” (i n body 2 … t-hand sid th a partic .). The Sp ions 6, 6' o resentativ the crown “for implant e the d. at 8). is es of the ularly thin ecification f the wall e and Appeal 2012-000237 Application 11/579,707 3 (a) an impression tray comprising a concave tray body for taking a negative impression of at least one jaw part in a mouth of a patient; (b) an impression post; and (c) at least one implant body that is adapted to be situated in the at least one jaw part, said at least one implant body comprising a receiving aperture for insertion of the impression post; wherein the tray body is fillable with a free-flowing hardenable impression material to produce a mold for a model of the at least one jaw part; and wherein the tray body comprises a wall having at least one penetrable portion for penetration by the impression post inserted in the at least one implant body when the tray body is placed onto the at least one jaw part; and wherein the at least one penetrable portion of the wall is a membrane, a woven fabric, a non-woven fabric or a film. Independent claim 9 is directed to a dental set and like claim 8 requires an implant body, an impression post, and an impression tray that “comprises a wall having at least one penetrable portion.” Claim 9 also requires that the “impression post comprises at least one of a taper, a cutting edge, a removable cap with a taper, and a removable cap with a cutting edge.” Issue The Examiner has rejected claims 5, 8, and 9 under 35 U.S.C. § 103(a) as obvious in view of Brånemark1 and Presswood.2 The Examiner has rejected claim 3 under 35 U.S.C. 103(a) as obvious in view of Brånemark, Presswood and Georgakis.3 Since the same issue is dispositive for both rejections we will consider them together. 1 Brånemark, US 4,708,654, Nov. 24, 1987. 2 Presswood, US 5,403,185, Apr. 4, 1995. 3 Georgakis et al., US 6,379,147 B1, Apr. 30, 2002. Appeal 2012-000237 Application 11/579,707 4 The Examiner finds that Brånemark discloses all of the elements of the claimed combination, including an impression tray that “comprises a wall 17 having … penetrable portion 18 for penetration by the impression post,” except that it does not disclose that the wall portion opening comprises “a membrane, a woven fabric, a non-woven fabric or a film” or that the impression post comprises a taper or cutting edge (Answer 4-5). The Examiner finds that Presswood discloses “a tray comprising a penetrable portion that is a membrane or a film” (id.) and an “impression post 26 [that] further includes a taper capable of penetration of the impression material and the … penetrable portion of the [tray] wall” (id.). The Examiner concludes that it “would have been obvious to one having ordinary skill in the art … to modify the penetration portion taught by Brånemark with a film covering it [as] taught by Presswood in order to prevent the impression material from leaking through the opening before it is hardened” (id. at 5-6). Appellants argue that Brånemark does not “disclose or suggest that the opening 18 in his impression tray … is somehow inadequate or has disadvantages that require modification, for example, by receiving a liner or membrane as a covering” (Reply Br. 1-2). Appellants argue that Presswood discloses creating a positive dental model by filling a negative form “with the comparatively watery substance, dental plaster” (id. at 2), but Brånemark’s negative forms are “prepared using a comparatively viscous polymeric material not able to easily flow through holes” (id.). Appellants argue that since Brånemark “does not have the problem of an easily-flowing impression material and is unconcerned with the polymeric material App App escap mod (App expl tray for u “dist and g Brån prov 15a, (id. a Figu Brån impr alveo eal 2012-0 lication 11 ing throu ify Brånem eal Br. 13 We agre ained how of claim 8 se in manu ance mean uide pins emark dis ided with 15b filled t col. 3, ll re 3 shows emark dis ession tray lar ridge. 00237 /579,707 gh the hole ark in vie ). e with App the cited r . Brånema facture of s 22” are are attach closes that . . . axially with softe . 18-21). F “an empt closes that s by the f This way s in the tr w of Press ellants th eferences rk disclos a denture implanted ed to the d “[w]hen a protrudin ned impre igure 3 of y upper jaw the “impr act that an the guide p 5 ay,” it wou wood as s at the Exam would hav es a metho (Brånema into the ja istance me ll the dista g guide pin ssion mate Brånemar dental tr ession tray opening 1 ins 19 wi ld not hav uggested b iner has e made ob d of maki rk, col. 2, wbone (id ans (id. at nce mean s 19, a de rial 21 is a k is show ay” (id. at differs … 8 is provid ll protrude e been ob y the Exa not adequa vious the ng a mode ll. 34-36) . at col. 2, col. 2, ll. s 22 have ntal impre pplied ov n below: col. 2, ll. from con ed … ove from the b vious to miner tely impression l of a jaw in which ll. 61-62) 63-65). been ssion tray er the jaw” 15-16). ventional r the ack side Appeal 2012-000237 Application 11/579,707 6 of the impression tray 15a, 15b when the tray is applied to a jaw” (id. at col. 3, ll. 25-30). Presswood discloses that, in preparing false teeth, “the dentist will normally prepare a negative impression of the affected tooth … by filling a tray with polymer material and having the patient sink his teeth into the polymer material to create a plurality of depressions…. To form a tooth model, the quantity of casting stone, often referred to as die stone, is poured into the negative impression.” (Presswood, col. 1, ll. 17-32.) Presswood discloses an “apparatus for positioning pin type supports within a plaster dental model” (Presswood, col. 1, ll. 10-14). Presswood discloses that “a negative impression 18 … is secured in the lower tray 12b [of the apparatus] by placing … dental plaster into the negative impression of the opposing teeth and also pouring … dental plaster 23 into the lower tray” (id. at col. 3, ll. 51-65). Presswood discloses that “[b]ecause the dental plaster is initially in a liquified state is it [sic] necessary to provide means to prevent the dental plaster from leaking through the apertures 16 [of the trays].… [T]his is accomplished by placing a liner … adjacent the apertures in each of the trays.” (Id. at col. 4, ll. 1-7.) We agree with Appellants that the Examiner has not adequately explained why one of skill in the art would have modified the impression tray of Brånemark to cover the opening 18 in its dental tray with a membrane, a fabric, or a film, as required in claim 8. Brånemark discloses that the impression tray is filled with softened impression material to form the negative impression, but the Examiner has not pointed to anything in Brånemark to suggest that leakage of the softened impression material from Appeal 2012-000237 Application 11/579,707 7 the impression tray is a problem or to suggest any other reason for covering the opening. Presswood discloses the use of a film covering in an apparatus to prevent liquefied dental plaster from leaking, but Presswood distinguishes between the “polymer material” used to make a negative impression, as in Brånemark, and the die stone or plaster (see id. at col. 1, ll. 31-32, 34-35) that is poured into the impression to form the tooth model. The Examiner has not provided evidence or technical reasoning to show that the pourable dental plaster has properties similar to those of softened impression material. Thus, the Examiner has not shown that either Brånemark or Presswood provide a reason why one of ordinary skill in the art would have modified the opening of the Brånemark impression tray. The Examiner points to a statement in the Specification that she interprets as disclosing that “the problem of the impression material leaking form [sic] the tray is a known problem in the art that can be solved by the addition of a penetrable wall portion” (Answer 7). However, we agree with Appellants (Reply Br. 4-5) that the cited passage does not acknowledge a known problem in the art but “merely identifies a supplementary advantage achieved with Appellants’ invention” (Reply Br. 5). Thus, we reverse the rejection of independent claim 8 and dependent claim 5. Independent claim 9 is similar to claim 8 in requiring that the implant tray body comprises a penetrable wall portion, and also requires an “impression post [that] comprises at least one of a taper, a cutting edge,” etc. The Examiner relies on the same reasoning discussed above in concluding that cited references would have made obvious an impression post with a Appeal 2012-000237 Application 11/579,707 8 taper or cutting edge. Thus, we also reverse the rejection of independent claim 9. The Examiner has also rejected claim 3 under 35 U.S.C. 103(a) as being obvious in view of Brånemark, Presswood and Georgakis. Claim 3 depends from claim 8 and further requires that “at least one penetrable portion of the wall is a membrane and the membrane is self-adhesive.” Because the Examiner’s rejection relies on Brånemark and Presswood as discussed above, we also reverse the rejection of claim 3. SUMMARY We reverse the rejection of claims 3, 5, 8 and 9 under 35 U.S.C. 103(a). REVERSED lp