Ex Parte Hurson

Patent Trials and Appeals Board

May 30, 2019

13572476 - (D) (P.T.A.B. May. 30, 2019)

APPLICATION NO. FILING DATE
13/572,476 08/10/2012
20995 7590 06/03/2019
KNOBBE MARTENS OLSON & BEAR LLP
2040 MAIN STREET
FOURTEENTH FLOOR
IRVINE, CA 92614
FIRST NAMED INVENTOR
Steve Hurson
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONERFORPATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
ATTORNEY DOCKET NO.
NOBELB.264C2
CONFIRMATION NO.
2546
EXAMINER
SAUNDERS, MATTHEW P
ART UNIT PAPER NUMBER
3772
NOTIFICATION DATE DELNERYMODE
06/03/2019 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):
efiling@knobbe.com
j ayna.cartee@knobbe.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte STEVE HURSON
Appeal2017-004710
Application 13/572,4761
Technology Center 3700
Before BRADLEY B. BAY AT, FREDERICK C. LANEY, and
PAUL J. KORNICZKY, Administrative Patent Judges.
BAY AT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Steve Hurson (Appellant) seeks our review under 35 U.S.C. § 134(a)
of the Examiner's decision rejecting claims 1-8, which are all the claims
pending in the application. We have jurisdiction under 35 U.S.C. § 6(b ).
Appellant's counsel appeared for oral hearing on April 18, 2019, a transcript
of which has been entered into the record ("Tr.").
We affirm.
1 Appellant identifies "Nobel Biocare Services AG" as the real party in
interest. Appeal Br. 3 (filed June 29, 2016).
Appeal2017-004710
Application 13/572,476
SOLE INDEPENDENT CLAIM
1. A dental component configured to mate with an implant, the
dental component comprising:
[ (a)] a coronal end;
[ (b)] an apical end;
[ ( c)] a shaped portion;
[ ( d)] a conical portion below the shaped portion, the
conical portion having a length measured along the longitudinal
axis from a coronal end of the conical portion to an apical end
of the conical portion;
[ ( e)] an interlock portion comprising a hexagonal shape,
the hexagonal shape extending all the way to the apical end of
the dental component, the interlock portion having a length
measured along the longitudinal axis from a coronal end of the
interlock portion to an apical end of the interlock portion; and
[ ( f)] an inner bore extending through the center of the
dental component,
[ (g)] wherein the hexagonal shape of the interlock
portion defines a plurality of side surfaces and an end surface
transverse to the side surfaces;
[(h)] wherein the hexagonal shape of the interlock
portion has beveled sides and beveled comers along its
perimeter at the apical end of the dental component such that
the perimeter is beveled relative to the side surfaces and the end
surface; and
[(i)] wherein the ratio of the length of the conical
portion and the length of the interlock portion is about 1: 1.
Appeal Br. 14, Claims App. (added bracketed notations and formatting).
ANALYSIS
I
The Examiner rejected claims 1-8 under 35 U.S.C. § 112 (pre-AIA),
first paragraph, as failing to comply with the written description
requirement. Final Act. 2-3 (mailed Feb. 1, 2016). In particular, the
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Application 13/572,476
Examiner found ( 1) the Specification does not sufficiently support the use of
the term beveled as recited in limitation (h) of claim 1 because "the term
'chamfer' would appear to be more closely linked to the drawings," and (2)
the Specification "fails to provide any clear support that applicant had
possession of the conical portion and interlock portion having any particular
ratio," such that "the ratio of the length of the conical portion and the length
of the interlock portion is about 1: l ," as recited in limitation (i) of claim 1.
Id. at 3.
(1) beveled
Appellant argues that the term beveled as recited in claim 1 is fully
supported by Figures 2A and 2B of the disclosure as filed. Appeal Br. 6
(reproducing Spec., Figs. 2A and 2B). "Appellant submits that the drawings
clearly show, to a person of ordinary skill in the art, that the Appellant was
in possession of the beveled feature as recited in Claim l." Id. at 7. In
further support of this position, Appellant relies on the Oxford English
Dictionary definition of "'bevel' as 'a slope from the horizontal or vertical in
carpentry and stonework; a sloping surface or edge."' Reply Br. 3 (filed
Jan. 17, 2017).
In response to Appellant's argument, the Examiner reproduces a side-
by-side image of a chamfer and bevel from the Final Office Action (see
Final Act. 6), and, relying on that image, maintains that Appellant's
drawings "only point to elements which provide for a chamfer as a chamfer
connects two sides and a bevel is an angled side." Answer 2 (mailed Nov.
30, 2016).
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Application 13/572,476
We are persuaded of Examiner error. First, it is unclear from the
record where the image relied-upon by the Examiner originated from;
neither the Final Office Action nor the Answer cite to any authority.
Second, based on the dictionary definition provided by Appellant supra, we
agree that Figures 2A and 2B of the disclosure convey with reasonable
clarity to those skilled in the art that Appellant was in possession of the
claimed beveled feature recited in claim 1. See Vas-Cath Inc. v. Makhorka,
935 F.2d 1555, 1565 (Fed. Cir. 1991) ("[D]rawings alone may provide a
'written description' of an invention as required by§ 112"). Third, original
claim 1 recited that "the interlock portion has an apical end which is
beveled." Spec., p. 16.
(2) ratio of the length of the conical portion and the interlock portion is
about 1:1
Appellant argues that the ratio in claim 1 is fully supported by the
Specification as filed. Appeal Br. 8. Appellant cites paragraph 41 of the
Specification, which discloses that the ratio of the length of the conical
portion and the length of the interlock recess of the implant is about 1: 1. Id.
at 9. According to Appellant, "[i]f the conical portion and the interlock
portion are fully inserted into the dental implant, then they would be a mirror
image of each other. They would have the same ratios." Tr. 6.
The Examiner dismisses Appellant's argument because the cited
portion in paragraph 41 "only teaches that the implant has two portions with
a ratio of 1: 1 and does not disclose the abutment/ component itself having the
ratio." Answer 3.
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Application 13/572,476
We are persuaded by Appellant's argument because one skilled in the
art can reasonably conclude based on the relationship and function between
the implant and abutment that the ratio of the length of the conical portion
and the interlock portion of the dental component, which mirrors the
implant, would be about 1: 1.
Accordingly, we do not sustain the rejection under 35 U.S.C. § 112,
first paragraph.
II
The Examiner rejected claims 1-8 under 35 U.S.C. § 103(a) as
unpatentable over Bassett et al. (US 2006/0286508 Al, published Dec. 21,
2006) ("Bassett") and Purga et al. (US 8,408,904 B2, issued Apr. 2, 2013)
("Purga"). In particular, the Examiner found Bassett discloses limitations
(a) through (h), "but fails to explicitly disclose where the ratio of the length
of the conical portion and the length of the interlock portion is about 1: l ," as
recited in limitation (i) of claim 1. Final Act. 5. To cure this deficiency, the
Examiner found
Purga discloses a coupling for a dental system (title and
abstract) having an abutment (Fig. 1 a element 2) having a
conical portion with an axial length and an interlocking portion
having an axial length (Fig. le elements 4 and 22) where the
ratio between the conical portion axial length and the
interlocking portion axial length have a ratio of 1: 1 ( column 4
lines 47-50).
Id. The Examiner determined that
it would have been obvious to one having ordinary skill in the
art at the time of the invention to incorporate the ratio of the
lengths of the conical portion and the interlocking portion being
1: 1 as taught by Purga into the abutment portions as taught by
Bassett for the purpose of providing the conical portion and the
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Application 13/572,476
Id.
interlocking portion with a longer insertion path and better
feedback when assembling a dental implant and avoiding
wedging when assembling the abutment with an implant as
taught by Purga ( column 4 lines 50-58).
Appellant argues claims 1-8 as a group (see Appeal Br. 9-12). We
select independent claim 1 as the representative claim for this group. Thus,
dependent claims 2-8 stand or fall with claim 1. 37 C.F.R. § 41.37(c)(l)(iv).
Alleging error in the rejection, Appellant asserts:
Even if Purga's non-tapered section (4) could somehow be
construed as an interlock portion, Appellant notes that Claim 1
recites, inter alia: "an interlock portion comprising a hexagonal
shape, the hexagonal shape extending all the way to the apical
end of the dental component" ( emphasis added). In contrast,
Purga' s substantially cylindrical section (22) does not include
the protrusions ( 4') from Purga's non-tapered section ( 4).
Indeed, the geometry of these two sections ( 4, 22) of Purga' s
device substantially differ. Purga specifically indicates that use
of a substantially cylindrical section (22) is beneficial in that it
"provide[ s] for a guiding function that facilitates the insertion
of the abutment 2 into the dental implant l" and notes that "it
has been found that it is particularly advantageous if the axial
extension of second section 4 is about twice the axial extension
of the third section 22."
Appeal Br. 11; see also Reply Br. 7.
We are not persuaded of error in the rejection. As the Examiner
points out, "Bassett provides for both the claimed conical portion and the
interlocking portion. The only limitation not provided for by Bassett was the
claimed ratio between the conical portion and the interlocking portion."
Answer 4. The Examiner relied on Purga for teaching the advantage of a
longer insertion path by providing "a conical portion of an abutment having
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Application 13/572,476
a one to one ratio with a portion below a conical portion." Id. Appellant's
argument emphasizes the distinction between the shape of Purga' s
cylindrical section 22 and the hexagonal shape of the claimed interlock
portion, but the Examiner relied on Bassett for disclosing a hexagonal
interlock portion. The Examiner correctly observes,
Purga discloses both an interlock portion and a guiding portion
below a conical portion[, such that] these elements have a
combined length which is the same length as the conical portion
and it is only the ratio which provides improved guidance based
upon the one to one correlation of their total length and the
length of the conical portion, not the outer shape of the lower
portions.
Id. In other words, we agree with the Examiner that
Id.
Appellant is essentially arguing against combining elements
from Purga which [are] not relied upon in the office action and
has not provided any evidence that Bassett would need to be
modified to remove the teaching in Bassett that provides for the
interlocking portion extending all the way to the apical end in
order for the benefit of providing a longer insertion path to
prevent binding of the abutment.
Accordingly, we are not apprised of error in the Examiner's rejection,
and, thus, we sustain the rejection of independent claim 1, and dependent
claims 2-8, which fall with claim 1.
DECISION
The rejection of claims 1-8 under 35 U.S.C. § 112, first paragraph,
is reversed.
The rejection of claims 1-8 under 35 U.S.C. § 103(a) is affirmed.
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No time period for taking any subsequent action in connection with
this appeal may be extended under 3 7 C.F .R. § 1.13 6( a).
AFFIRMED
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