Martin Tank

Patent Trials and Appeals BoardMar 26, 2021

2019006305 (P.T.A.B. Mar. 26, 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. 13/978,106 07/02/2013 Martin Tank 001300-15 1177 78198 7590 03/26/2021 Studebaker & Brackett PC 8255 Greensboro Drive Suite 300 Tysons, VA 22102 EXAMINER BROCK, ROBERT S ART UNIT PAPER NUMBER 2128 NOTIFICATION DATE DELIVERY MODE 03/26/2021 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): info@sbpatentlaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte MARTIN TANK ____________ Appeal 2019-006305 Application 13/978,106 Technology Center 2100 ____________ Before ELENI MANTIS MERCADER, NORMAN H. BEAMER, and ADAM J. PYONIN, Administrative Patent Judges. BEAMER, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s Final Rejection of claims 16–35. We have jurisdiction over the pending rejected claims under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies STRAUMANN HOLDING AG as the real party in interest. (Appeal Br. 3.) Appeal 2019-006305 Application 13/978,106 2 THE INVENTION Appellant’s disclosed and claimed invention is directed to determining virtual tooth restorations on the basis of scan data of oral structures, wherein a model database comprising a number of parameterized tooth models for each of several tooth types is used. (Abstract.) Independent claim 16, reproduced below, is illustrative of the subject matter on appeal: 16. A method of determining virtual tooth restorations for oral structures of a patient for whom at least one virtual tooth restoration is to be determined on the basis of scan data (D) of the oral structures, wherein a model database (DB) comprising a number of parameterized tooth models for each of several tooth types is used, whereby the parameterization is carried out on the basis of model parameters comprising position parameters and/or shape parameters and whereby each tooth model (M) is linked with a number of tooth models (M) of the same tooth type, wherein, according to this method, for each desired tooth type, an optimal tooth model (M) in the model database (DB) is determined by means of an iterative method in which initially at least one start tooth model (M) of the desired tooth type is selected from the model database (DB), whereby the start tooth model (M) is selected based on a geometrical analysis of the scan data (D), and subsequently, commencing with this start tooth model (M), in each iteration step (S) a tooth model (M) is tested with regard to a quality value, wherein for individualization, the tooth model (M) currently in test is adjusted to the scan data (D) by varying model parameters and a quality value is computed for this individualization, at least one further tooth model (M) selected from the model database (DB) and linked with the tooth model (M) Appeal 2019-006305 Application 13/978,106 3 in test is also, for individualization, adjusted to the scan data (D) by variation of model parameters and a further quality value is computed for this individualization, on the basis of the computed quality values, a next, new tooth model (M) in test of the desired tooth type is selected if necessary from the model database (DB) for the next iteration step (S), iteration is interrupted upon reaching a quality criterion, and finally the at least one virtual tooth restoration is determined from among the optimal tooth models (M) and the scan data (D). (Appeal Br. 24 (Claims App.).) REJECTIONS The Examiner rejected claims 16–33 under 35 U.S.C. § 103(a) as being unpatentable by Mehl (US 2006/0063135 A1, pub. Mar. 23, 2006) (hereinafter “Mehl ‘135”), Hedge et al. (US 2006/0121408 A1, pub. June 8, 2006) (hereinafter “Hedge”), and Buchaillard et al., “3D statistical models for tooth surface reconstruction,” Computers in Biology and Medicine 37, no. 10, pp. 1461–1471 (2007) (hereinafter “Buchaillard”). (Final Act. 2.) The Examiner rejected claims 34 and 35 under 35 U.S.C. § 103(a) as being unpatentable by Mehl ‘135, Hedge, Buchaillard, and Mehl et al., “Biogeneric tooth: a new mathematical representation for tooth morphology in lower first molars,” European Journal of Oral Sciences, no. 113, pp. 333– 340 (2005) (hereinafter “MehlNPL”) (Final Act. 23.) Appeal 2019-006305 Application 13/978,106 4 ISSUES ON APPEAL Appellant’s arguments in the Appeal Brief present the following issues:2 Issue One: Whether the Examiner erred in finding the combination of Mehl ‘135, Hedge, and Buchaillard teaches or suggests the limitation of “commencing with this start tooth model (M), in each iteration step (S) a tooth model (M) is tested with regard to a quality value,” as recited in independent claim 16, and the commensurate limitation recited in independent claim 33. (Appeal Br. 17–18.) Issue Two: Whether the Examiner erred in finding the combination of Mehl ‘135, Hedge, and Buchaillard teaches or suggests the limitation of “virtual tooth restorations,” as recited in independent claim 16, and the commensurate limitation recited in independent claim 33. (Appeal Br. 18– 19.) Issue Three: Whether the Examiner erred in finding the combination of Mehl ‘135, Hedge, and Buchaillard teaches or suggests the limitations of at least one further tooth model (M) selected from the model database (DB) and linked with the tooth model (M) in test is also, for individualization, adjusted to the scan data (D) by variation of model parameters and a further quality value is computed for this individualization, on the basis of the computed quality values, a next, new tooth model (M) in test of the desired tooth type is selected if necessary from the model database (DB) for the next iteration step (S), 2 Rather than reiterate the arguments of Appellant and the positions of the Examiner, we refer to the Appeal Brief (filed Feb. 6, 2019); the Final Office Action (mailed Nov. 9, 2018); and the Examiner’s Answer (mailed May 31, 2019) for the respective details. Appeal 2019-006305 Application 13/978,106 5 as recited in independent claim 16, and the commensurate limitation recited in independent claim 33. (Appeal Br. 19–20.) Issue Four: Whether the Examiner erred in finding both Hedge and Buchaillard as analogous art. (Appeal Br. 21–22.) ANALYSIS We have reviewed the Examiner’s rejections in light of Appellant’s arguments. Arguments Appellant could have made but chose not to make are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(iv) (2018). We disagree with Appellant’s arguments, and we adopt as our own: (1) the pertinent findings and reasons set forth by the Examiner in the Action from which this appeal is taken (Final Act. 2–25); and (2) the corresponding reasons set forth by the Examiner in the Examiner’s Answer in response to Appellant’s Appeal Brief. (Ans. 2–29.) We concur with the applicable conclusions reached by the Examiner and emphasize the following. First Issue In finding that the combination of Mehl ‘135, Hedge, and Buchaillard teaches or suggests the independent claim 16 limitation at issue, the Examiner relies on Mehl ‘135’s disclosure of translating and rotating an original set of remaining tooth structure into a coordinate system of an average tooth, followed by determining parameters such that the linear combination that results is adapted to the existing situation to the greatest extent possible via minimizing an error function. (Final Act. 5; Ans. 15–18; Mehl ‘135 ¶¶ 67, 61–72.) The Examiner further relies on Buchaillard’s disclosure of a statistical model through which optimum parameter values can be computed through minimization of a merit or energy function to measure goodness of fit in Appeal 2019-006305 Application 13/978,106 6 which the number of modes can be increased successively during the minimization process until a set number of modes are included or sufficient precision is reached. (Final Act. 7–9; Ans. 16; Buchaillard §§ 2.2, 3, 3.2, 4.5.) Appellant argues that Mehl ‘135 does not teach or suggest the limitation at issue because “Mehl ‘135’s ‘error function’ . . . is not used as a basis for testing a start tooth model relative to a subsequent tooth model” (Appeal Br. 17 (citing Mehl ’135 ¶ 67)), because “Mehl ‘135 uses an error function to test the fit between its generic tooth model and the ‘existing situation’.” (Appeal Br. 17 (citing Mehl ’135 ¶ 123, Fig. 4).) Appellant contends that Mehl ‘135’s “‘error function’ is not one of several computed quality values that are later used as a basis, within the same iterative process, to select ‘a next, new tooth model’.” (Appeal Br. 17.) We are not persuaded by Appellant’s arguments. Regarding the iterative process, the Examiner finds, and we agree, that Mehl [‘135] . . . is relied upon for iterating according to position and shape (i.e. “inner iteration”) while Buchaillard is relied upon for iteration over models (i.e. “outer iteration loop”, claimed “next iteration step (S)”). (Ans. 16; see also Final Act. 3–9.) The Examiner further finds, and we agree, that Mehl ‘135 teaches testing models [(]including a start model[)] for individualization [(]i.e. “the existing situation” [)]. In other words, Mehl [‘135] discloses starting with a generic tooth model, iteratively modifying the model, and testing the result to determine the quality of the fit. Appeal 2019-006305 Application 13/978,106 7 (Ans. 17 (citing Mehl ‘135 ¶¶ 61–72 (square bracketing removed)).) Particularly, we agree with the Examiner that Mehl ‘135’s objective lies in determining the parameters (linear factors) such that the linear combination (ie [sic], a new occlusal surface) that results is adapted to the existing situation to the greatest extent possible. This is accomplished, eg [sic], by minimizing an error function. (Ans. 17 (quoting Mehl ‘135 ¶ 67).) Appellant’s argument contains no factual evidence to distinguish the combined teachings of Mehl ‘135 and Buchaillard from the claim limitations. Attorney arguments or conclusory statements are insufficient to rebut a prima facie case. See, e.g., In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997). Second Issue In finding that the combination of Mehl ‘135, Hedge, and Buchaillard teaches or suggests the independent claim 16 limitation at issue, the Examiner relies on Mehl ‘135’s disclosure of a reconstruction process for a defective tooth or defective dental prosthetic item in which reconstruction signifies the build-up or at least partial repair of the missing shell of the defective tooth dental prosthetic item. (Final Act. 3; Ans. 19; Mehl ‘135 ¶ 61.) Appellant argues that Hedge does not disclose or suggest the claimed “virtual tooth restorations” in any meaningful way, much less using geometrical analysis to select a start tooth model from a model database having a number of parameterized tooth models for each of several tooth types, whereby each model in the database is linked with a number of tooth models of the same tooth type. Therefore, Hedge does not cure the above-referenced deficiencies in Mehl ‘135. Appeal 2019-006305 Application 13/978,106 8 (Appeal Br. 18–19.) We are not persuaded by Appellant’s argument, as Appellant attacks Mehl ‘135 and Hedge individually, whereas the rejection is based on the combination. In re Keller, 642 F.2d 413, 426 (CCPA 1981). The Examiner finds, and we agree, that “Hedge is not relied upon for the disclosure of a ‘virtual tooth restoration’” (Ans. 19 (citing Final Act. 3)), but “is relied upon only for the claimed limitation of ‘whereby the start tooth model (M) is selected based on a geometrical analysis of the scan data (D).’” (Ans. 20 (citing Final Act. 7).) The Examiner further finds, and we agree, that “one may have a method of comparing patient scan data to a tooth model without regard to how the tooth model will be used once selected.” (Ans. 20 (emphasis added).) One skilled in the art would recognize that any model that uses accurate input data (such as the “patient’s scanned teeth” of Hedge), will likely outperform results from the same model that does not use the accurate input data. See Hedge ¶ 79. Third Issue Regarding the independent claim 16 limitations at issue, Appellant argues that in “Buchaillard, the term ‘model’ is used to refer to modeling of tooth surfaces.” (Appeal Br. 19.) Appellant contends that Buchaillard’s merit function is used to compare distances between crowns (or roots) of two volumes (page 1465, § 3.2, first paragraph, and page 1467, § 4.2, below equation (6)). Buchaillard’s merit function is not one of several computed quality values that are later used as a basis, within the same iterative process, to select “a next, new tooth model”. Appeal 2019-006305 Application 13/978,106 9 (Appeal Br. 19 (emphasis in original).) Appellant argues that Buchaillard “does not disclose or suggest” the claim limitations at issue.3 (Appeal Br. 19.) We are not persuaded. The Examiner finds, and we agree, that the “two volumes” of Buchaillard are the volume of the [patient’s] tooth and the volume of the model (Buchaillard at [page l465 § 3 ¶ l] regarding volumes; and [page l462 column 1 ¶ l and page 1466 § 4.l.2 ¶ 2] regarding “laser scan” of tooth). Accordingly, the examiner maintains that the value of Buchaillard’s “merit function” is reasonably interpreted as a claimed “quality value”, i.e. it is a measure of the difference between the parameterized model and the actual tooth. (Ans. 22.) The Examiner further finds, and we agree, that Buchaillard teaches “the number of modes can be increased successively during the minimization process, beginning with the more significant ones until the Npc modes are included in the minimization or sufficient precision is reached” (Ans. 22 (citing Buchaillard 1465 § 3.2) (emphasis omitted)), and that Buchaillard is using the computed value to determine when to stop iterating over linked models [(]i.e. an additional mode links the two models having successively increasing numbers of principal components[)] as indicated at least by continuing to change until “sufficient precision is reached” [(]i.e. the merit function has a sufficiently low value[)]. 3 Appellant’s argument that Buchaillard does not disclose or suggest “commencing with this start tooth model (M), in each iteration step (S) a tooth model (M) is tested with regard to a quality value” (Appeal Br. 19) is not persuasive under our decision rationale of the First Issue supra regarding the combined teachings of Mehl and Buchaillard. Appeal 2019-006305 Application 13/978,106 10 (Ans. 23 (citing Buchaillard 1470 § 4.5 (square bracketing removed)).) We see no error in the Examiner’s detailed findings, and Appellant does not address the findings as no Reply was filed. Fourth Issue Regarding Hedge, Appellant argues that Hedge is not analogous art as “Hedge would not have logically commended itself to an inventor’s attention in considering the problems and deficiencies of Mehl ‘135 and Buchaillard.” (Appeal Br. 21.) Appellant contends that because “Hedge does not teach or suggest any meaningful concern with determining optimal virtual tooth restorations” (Appeal Br. 21 (citing Hedge ¶¶ 45, 12 (emphasis in original))), and the “problem presented to Hedge, i.e., moving natural teeth, is not the same as the problem presented to Mehl ‘135 and Buchaillard or the present inventor, optimizing a virtual tooth restoration.” (Appeal Br. 21–22.) Regarding Buchaillard, Appellant argues that “Buchaillard’s teachings regarding computation of minimum and maximum distances between tooth surfaces would not logically commend a person having ordinary skill in the art at the time of the claimed invention to any problems presented in Mehl ‘135” and that “even if one were to optimize tooth surfaces in Mehl ‘135 based on Buchaillard, there was no reason why a skilled artisan at the time of the claimed invention would have combined reference teachings to necessarily achieve the claimed invention.” (Appeal Br. 22.) We are not persuaded. Regarding the contention that the Examiner relies on nonanalogous art: “[t]wo separate tests define the scope of analogous prior art: (1) whether the art is from the same field of endeavor, regardless of the problem addressed and, (2) if the reference is not within the Appeal 2019-006305 Application 13/978,106 11 field of the inventor’s endeavor, whether the reference still is reasonably pertinent to the particular problem with which the inventor is involved.” In re Klein, 647 F.3d 1343, 1348 (Fed. Cir. 2011) (quoting In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004) (emphases added)). Regarding Hedge, the Examiner finds, and we agree, that Hedge is in the “same field of endeavor” (Ans. 26), as Hedge states that “[t]he present invention is related generally to the field of orthodontics” (Ans. 26 (citing Hedge ¶ 2) (emphasis omitted)), and that Appellant’s disclosure admits that “[t]he invention describes a method of determining virtual tooth restorations, on the basis of scan data of oral structures,” and such a method is “already firmly established in . . . orthodontistry.” (Ans. 26 (citing Spec. 1:1–3) (emphasis omitted).) Similarly, we agree with the Examiner’s finding that as Appellant’s “basic approach” requires “scan data” (Ans. 26 (citing Spec. 3:9–13) (emphasis omitted)), and that “any disclosure [such as Hedge’s disclosure] that addresses the use of digital anatomical models in view of patient scan data will be reasonably pertinent, since the problem itself requires methods of image analysis for modeling of existing structures.” (Ans. 27.) Regarding Buchaillard, the Examiner finds, and we agree, that Buchaillard would have logically commended itself to one faced with the problem of determining virtual tooth restorations using tooth models. For example, Buchaillard explicitly discloses the need for tooth information at page 1461 [§ 1 ¶ 2] – “Having a good knowledge of the shape of a given tooth is also extremely helpful in creating implants”, and a manner of obtaining this knowledge from scan data, e.g. Buchaillard . . . at [page 1462 column 1 ¶ 3] –“Section 2 presents the construction of a statistical shape model whose variations describe the main ways in which a particular tooth can vary. Section 3 is devoted Appeal 2019-006305 Application 13/978,106 12 to the registration problem and explains how the statistical model can be fitted to the patient’s crown to provide a good estimate of the shape and size of the reconstructed tooth.” (Ans. 28 (emphasis omitted).) We agree with the Examiner that “the subject matter of the Buchaillard disclosure within the same field of endeavor, it is also reasonably pertinent to the problem faced by the inventor.” (Ans. 28.) In sum, regarding both Hedge and Buchaillard, dental professionals engaged in the repair, restoration, or realignment of teeth would value and seek out techniques that measure and model existing dental structures accurately, as well as techniques that model proposed solutions. We see no error in the Examiner’s detailed findings, and Appellant does not address the findings as no Reply was filed. Accordingly, we sustain the Examiner’s rejections of independent claim 16, as well as independent claim 33 commensurate in scope, and dependent claims 17–32, 34, and 35 not argued separately. See Appeal Br. 22–23. Appeal 2019-006305 Application 13/978,106 13 DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 16–33 103(a) Mehl ‘135, Hedge, Buchaillard 16–33 34, 35 103(a) Mehl ‘135, Hedge, Buchaillard, MehlNPL 34, 35 Overall Outcome 16–35 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)(1)(iv). AFFIRMED