Ex Parte Andreiko

Patent Trial and Appeal Board

Jul 18, 2016

12280915 (P.T.A.B. Jul. 18, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/280,915 12/22/2008
83571 7590 07/21/2016
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-273US 5875
EXAMINER
EIDE, HEIDI MARIE
ART UNIT PAPER NUMBER
3732
NOTIFICATION DATE DELIVERY MODE
07/21/2016 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
Appeal 2014-006586 1,2
Application 12/280,915
Technology Center 3700
Before NINA L. MEDLOCK, PHILIP J. HOFFMANN, and
CYNTHIA L. MURPHY, Administrative Patent Judges.
HOFFMANN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's
rejection of claims 46-74. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
According to Appellant, the invention is directed "to computer-
automated development of an orthodontic treatment plan and appliance."
1 Our decision references Appellant's Specification ("Spec.," filed Aug. 27,
2008), Appeal Brief ("Appeal Br.," filed Jan. 27, 2014), and Reply Brief
("Reply Br.," filed May 7, 2014), as well as the Final Office Action "(Final
Action," mailed June 26, 2013) and the Examiner's Answer ("Answer,"
mailed Mar. 7, 2014).
2 According to Appellant, Ormco Corporation is the real party in interest.
Appeal Br. 1.
Appeal2014-006586
Application 12/280,915
Spec. i12. Independent claims 46 and 71 are the only independent claims
under appeal. See Appeal Br., Claims App. We reproduced claim 46,
below, as representative of the appealed claims.
46. A computer-implemented method to identify an
orthodontic treatment plan applicable to teeth of a human patient,
the method comprising:
displaying a three-dimensional perspective representation
of the teeth of the patient to a user;
receiving from the user a selection of one or more teeth of
the orthodontic treatment plan and displaying a three-
dimensional perspective representation of six degrees of freedom
of movement of the selected one or more teeth, each degree of
freedom presented by a graphical direction of adjustment of the
one or more teeth consistent with the three-dimensional
perspective representation of the teeth;
receiving from the user an adjustment of the selected one
or more teeth of the orthodontic treatment plan along a direction
of movement selected from the six degrees of freedom; and
moving at least one tooth of the teeth of the patient to a
new position on the dispiay corresponding to the adjustment.
Id.
REJECTIONS AND PRIOR ART3
The Examiner rejects claims 46-49, 54--56, 58---60, 62, and 70-73
under 35 U.S.C. § 103(a) as unpatentable over Rubbert
(US 2004/0073417 Al, pub. Apr. 15, 2004) and Hughes
(US 2004/0096799 Al, pub. May 20, 2004).
3 The Examiner withdraws the indefiniteness rejection made in the Final
Action. See Answer 2, Final Action 2.
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Appeal2014-006586
Application 12/280,915
The Examiner rejects claims 50-53 and 63-66 under 35 U.S.C.
§ 103(a) as unpatentable over Rubbert, Hughes, and Werthiem
(US 2005/0123175 Al, pub. June 9, 2005).
The Examiner rejects claim 57 under 35 U.S.C. § 103(a) as
unpatentable over Rubbert, Hughes, and Sachdeva '727
(US 2004/0197727 Al, pub. Oct. 7, 2004).
The Examiner rejects claim 61under35 U.S.C. § 103(a) as
unpatentable over Rubbert, Hughes, and Wen (US 2006/0275731 Al, pub.
Dec. 7, 2006).
The Examiner rejects claims 67-69 and 74 under 35 U.S.C. § 103(a)
as unpatentable over Rubbert, Hughes, and Sachdeva '068
(US 2004/0029068 Al, pub. Feb. 12, 2004).
See Final Action 3-13, Answer 2.
ANALYSIS
Independent claim 42 recites, among other limitations, the following:
receiving from the user a selection of one or
more teeth of the orthodontic treatment plan and
displaying a three-dimensional perspective
representation of six degrees of freedom of
movement of the selected one or more teeth, each
degree of freedom presented by a graphical
direction of adjustment of the one or more teeth
consistent with the three-dimensional perspective
representation of the teeth.
Appeal Br., Claims App. With respect to the rejection of claim 42, the
Examiner finds that "Rubbert teaches the graphical representation of the six
degrees of freedom ... [but] does not teach the graphical representation
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Application 12/280,915
being three dimensional, which is what ... Hughes has been cited for
teaching." Answer 3. The Examiner further determines
the 3D representation taught by Hughes is a 3D
representation of six degrees of freedom as claimed.
It is noted that the handles 410, 412, and 414 can be
used to move the plane in the X, Y and Z directions,
which is three of the six degrees of freedom. It is
further noted that handle 414 can be used to rotate
the plane around axis of handle 410, the handle 412
can be used to rotate the plane around the axis of
handle 414[,] and handle 410 can be used to rotate
the plane around the axis of handle 412. It is noted
that each handle is used to rotate in one direction
therefore that makes for 3 more degrees of freedom,
making the total 6 degrees of freedom. Therefore,
it is noted that the graphical representation is a three
dimensional representation of 6 degrees of freedom.
Id. at 4. However, the Examiner does not identify anything in Hughes
showing that Hughes represents, in three dimensions, 6 degrees of freedom.
See Reply Br. 1-2. We note, for example, that the portion of Hughes cited
in the Final Action refers only to movement (of a plane) in three directions,
but does not discuss rotation. See Appeal Br. 6, citing Final Action 6-7 and
Hughes i-f 68. Thus, the Examiner's finding that "handle 414 can be used to
rotate the plane around axis of handle 410, the handle 412 can be used to
rotate the plane around the axis of handle 414[,] and handle 410 can be used
to rotate the plane around the axis of handle 412" appears to have no
evidentiary basis. Answer 4. Therefore, we conclude that the Examiner's
reasons for modifying the references to provide the claimed "three-
dimensional perspective representation of six degrees of freedom of
movement of the selected one or more teeth" lacks the rational
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Application 12/280,915
underpinnings required to support the rejection, and we do not sustain the
rejection. See KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007).
Inasmuch as the Examiner does not identify any other reference, for
example, which remedies the deficiency in the rejection of claim 42, we also
do not sustain any rejection of claim 42 's dependent claims 43-70. Further,
because the Examiner's rejections of independent claim 71 and its dependent
claims 72-74 rely on determinations similar to those discussed above with
respect to claim 42, we do not sustain the rejections of claims 71-74.
DECISION
We REVERSE the Examiner's obviousness rejections of
claims 46-74.
REVERSED
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