Ex Parte ANDREIKO et al

Patent Trials and Appeals Board

Mar 13, 2019

13765600 - (D) (P.T.A.B. Mar. 13, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/765,600 02/12/2013
83571 7590 03/15/2019
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-544US 4861
EXAMINER
NELSON,MATTHEWM
ART UNIT PAPER NUMBER
3772
NOTIFICATION DATE DELIVERY MODE
03/15/2019 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):
usptodock@whe-law.com
smeyer@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, ROBERT F. DILLON,
and BRADLEY S. CARLSON 1
Appeal2017-007248
Application 13/765,600
Technology Center 3700
Before MICHELLE R. OSINSKI, JEREMY M. PLENZLER, and
GEORGE R. HOSKINS, Administrative Patent Judges.
OSINSKI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 1---6, 8-13, 15-20, and 25-28. 2 An oral hearing
was held on February 14, 2019. 3 We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.
1 Ormco Corporation ("Appellant") is the Applicant as provided in
37 C.F.R. § 1.46 and is identified as the real party in interest. Appeal Br. 2.
2 Claims 7, 14, and 21-24 are cancelled. Appeal Br. 2.
3 The record includes a transcript of the oral hearing ("Tr.").
Appeal2017-007248
Application 13/765,600
THE CLAIMED SUBJECT MATTER
Claims 1, 8, and 15 are independent. Claim 1 is reproduced below.
1. A method, comprising:
acquiring shape data of a crown of a selected tooth of a
patient;
acquiring volumetric imagery of a root of the selected
tooth;
registering the shape data of the crown to the volumetric
imagery of the root to determine a centroid of the selected
tooth;
selecting model data from a repository of a plurality of
models; and
aligning the surface data of the crown with the model
data based at least in part on an orientation of the centroid to
generate and display an aesthetic appearance of a tooth.
EVIDENCE
The Examiner relied on the following evidence in rejecting the claims
on appeal:
Sachdeva'885
Bradbury
Kuo
Sachdeva '316
US 6,688,885 B 1
US 6,772,026 B2
US 2009/0148809 Al
US 2012/0015316 Al
THE REJECTIONS 4
Feb. 10,2004
Aug.3,2004
June 11, 2009
Jan. 19,2012
I. Claims 1---6, 8-13, 15-20, 25, and 26 stand rejected under
35 U.S.C. § 103(a) as unpatentable over Kuo, Sachdeva '316, and
Bradbury. Final Act. 3--4.
4 The rejection of claims 2, 3, 9, 10, 16, and 17 under 35 U.S.C. § 112,
second paragraph, as indefinite (Final Act. 2) has been withdrawn and is not
before us on appeal (Adv. Act. 2 (Jan. 26, 2017)).
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Application 13/765,600
II. Claims 27 and 28 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Kuo, Sachdeva '316, Bradbury, and Sachdeva
'885. Id. at 4--5.
OPINION
Rejection I
Appellant argues claims 1---6, 8-13, 15-20, 25, and 26 as a group.
Appeal Br. 3-7. We select claim 1 as the representative claim, and claims
2---6, 8-13, 15-20, 25, and 26 stand or fall therewith. 37 C.F.R.
§ 4I.37(c)(l)(iv).
The Examiner finds that Kuo teaches:
a method, via a computational device (microprocessor), of
acquiring shape data of a crown of a selected tooth of a patient
and orientation thereof (108; orientation is defined by the
tooth's position in space, which is determined in the scan;
specifically at [0044]); selecting model data from a repository
of a plurality of models (104; [0029] for instance); determining
a landmark of the selected tooth based on the data ([0036] for
instance); aligning the surface data of the crown with the model
data based at least in part on the landmark to generate and
display an aesthetic appearance of a tooth (112; [0027]-[0028]
for instance).
Final Act. 3.
The Examiner acknowledges that Kuo fails to teach: (i) acquiring
volumetric imagery of a root of the tooth "selected from CBCT [ ( cone beam
computed topography)] or MRI [(magnetic resonance imaging)] in addition
to shape data"; (ii) "registering the two [i.e., the shape data and the
volumetric imagery] together"; and (iii) "the landmark used for aligning [the
surface data and model data] is a centroid." Id. at 3--4.
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Application 13/765,600
The Examiner finds that Sachdeva '316 "teaches scanning techniques
where volumetric imagery selected from CBCT or MRI is used in addition
to shape data and utilizing it in combination with the shape data." Id. at 4.
The Examiner concludes that it would have been obvious "to modify Kuo's
method by utilizing the volumetric imagery and overlay of Sachdeva '316 in
order to provide a more accurate representation of a specific patient's tooth
anatomy." Id. (citing Sachdeva '316 ,r 22).
The Examiner finds that "Bradbury teaches a method of aligning solid
objects and/or combining the two in the dental field wherein a landmark
used is the centroid." Id. (citing Bradbury 12:4--24). The Examiner
concludes that it would have been obvious "to modify Kuo/Sachdeva '316's
method by utilizing the centroid as a landmark for aligning as taught by
Bradbury in order to utilize known landmarks in the art for achieving
optimal alignment and combination of two sets of data." Id.
Appellant argues that there is no suggestion in Kuo "that the generic
crown data is selected from a repository or collection of such data." Appeal
Br. 5. The Examiner responds that "cited paragraph 29 discusses the
selection of a generic tooth surface geometry model and lists the different
teeth available." Ans. 5. The Examiner further responds that "[p]aragraph
55 provides further details and explicitly recites 'an appropriate template
may be selected from a library of crowns."' Id. Appellant does not respond
to the Examiner's specific findings in the Answer regarding Kuo' s
disclosure so as to persuade us of error in the Examiner's findings.
Appellant also argues that Sachdeva '316 "specifically disclaim[ s]"
"the merger of intra-oral scans of the patient's crowns and CBCT scans of
the teeth." Appeal Br. 5 (citing Sachdeva '316 ,r,r 305-311). Appellant
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Application 13/765,600
contends that Sachdeva '316 is instead concerned with "capturing the entire
tissue 'as one' and segregating components." Id. The Examiner responds
that Sachdeva '316 "only state[s] that this fusing of data is not the 'main
thrust' of the application, and never appear[s] to disclaim the fusing in any
way." Ans. 5. The Examiner further responds that "[p]aragraphs 23-30[,]
for instance[,] explicitly recite the fusing steps." Id. We are not persuaded
that the clarification that fusing CBCT with a model of the dentition taken
with an intraoral scanner is "not the 'main thrust"' negates or teaches away
from the explicit disclosure in Sachdeva '316 that
[t]he invention disclosed herein combines the surface scan data
[obtained using in-vivo scanning, or scanning an impression or
physical model of a patient's dentition] with the volume scan
data [ obtained using CBCT or MRI imaging equipment] to
generate three dimensional models of a patient's dentition and
surrounding anatomy including roots, bones, soft tissues,
airways, etc.
Sachdeva '316 ,r 23.
Appellant's representative at the oral hearing advanced a new
argument that had not been presented to the Examiner in the Appeal Brief or
the Reply Brief, namely, that Kuo already accounts for the addition of X-ray
imaging (i.e., volumetric imagery of a root of a tooth), but does so after the
surface data of a crown and tooth model data have been aligned/combined,
rather than before the alignment of the surface data of the crown with the
model data, as in the claimed method. Tr. 14:5-20. We consider only those
arguments presented by Appellant in the briefs because arguments advanced
for the first time at oral hearing are not properly before the Examiner, such
that we might have had the benefit of the Examiner's views on the
arguments in reaching our decision. See 37 C.F.R. § 4I.47(e)(l): "At the
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oral hearing, appellant may only ... present argument that has been relied
upon in the brief or reply brief except as permitted by paragraph ( e )(2) of
this section." Paragraph ( e )(2) of the relevant section provides: "Upon a
showing of good cause, appellant and/or the primary examiner may rely on a
new argument based upon a recent relevant decision of either the Board or a
Federal Court." Appellant has not alleged that a circumstance of good cause
is present here. 5
Appellant next argues that
[[Jailing to even suggest the creation of a centroid from
registered data, there is nothing in the references [ of Kuo and
Sachdeva '3 16] to suggest the further step of aligning the
surface data of the crown with model data using the orientation
of the centroid, in order to generate and display an aesthetic
appearance of the tooth.
5 We note that even if we were to consider the argument, we do not find it
persuasive. To the extent Appellant is arguing that Kuo teaches away from
acquiring volumetric imagery of a root of the selected tooth before the
alignment of the surface data of the crown with the model data, prior art
does not teach away from claimed subject matter merely by disclosing a
different solution to a similar problem unless the prior art also criticizes,
discredits, or otherwise discourages the solution claimed. In re Fulton, 391
F.3d 1195, 1201 (Fed. Cir. 2004). Here, Appellant does not point to, nor do
we independently find, any disclosure in Kuo actually criticizing,
discrediting, or otherwise discouraging the claimed order. In addition,
considering Kuo' s desire to "model[] a complete tooth of a patient to
facilitate dental and/or orthodontic treatment" (Kuo ,r 2) and Sachdeva
'316's teaching of combining volumetric imagery with surface scans to
generate "three dimensional models of a patient's dentition" (Sachdeva '316
,r 23), Appellant has not adequately explained why the Examiner's stated
reason to combine volumetric imagery with the surface data of a crown
(Final Act. 4) lacks rational underpinning. See Tr. 12:12-19
(Acknowledging that Sachdeva '316 teaches taking volumetric data and
surface data from different sources and registering the data.).
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Appeal Br. 5; see also id. at 6 ("[N]either Kuo nor Sachdeva ['316] teach, or
even suggest, determining a centroid of the selected tooth and using an
orientation of the centroid to merge model tooth data to generate and display
an aesthetic appearance of a tooth.").
This argument is not persuasive because the Examiner's rejection
relies on Kuo/Sachdeva '316 for the claimed steps of (i) registering shape
data of the crown to volumetric imagery of the root and (ii) aligning surface
data of the crown with model data based on the use of landmarks, but turns
to Bradbury for teaching that the specific type of landmark used in aligning
the two sets of data (i.e., the surface data and model data) can be a centroid.
Final Act. 3--4.
Appellant next argues that Bradbury "suggests only the alignment of
scanned data sets from multiple sources" or "the combination of radiological
data from two types of scan[s], such as MRI and CT," not the "selection and
use of tooth model data, aligned with the centroid of a tooth, to create the
aesthetic appearance of a tooth." Appeal Br. 6. Appellant argues that,
consequently, there is "no suggestion in Kuo, Sachdeva ['316] or Bradbury
to use a computed centroid to align model tooth data ... to create an
aesthetic appearance of a tooth." Id. at 7.
We acknowledge that Bradbury teaches "[a]ligning centroids of
objects resulting from different types of scans" (Bradbury 12:12-13), not
necessarily aligning scanned data with model data from a plurality of
models. The Examiner, however, takes the position that it would have been
obvious to utilize centroids as landmarks for aligning, as taught by
Bradbury, in connection with modified Kuo' s method "in order to utilize
known landmarks in the art for achieving optimal alignment and
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combination of two sets of data." Final Act. 4. Kuo teaches aligning
scanned patient tooth crown imagery with generic crown data (Kuo,
Abstract, Fig. lB, ,r,r 27, 29, 36, 47, 50, 51, 53, 55-58) and is modified by
the teachings of Sachdeva '316 so as to register the scanned patient tooth
crown imagery with volumetric imagery of the tooth's root to generate an
image of the entire tooth. Final Act. 4. Because Kuo, as modified with the
teachings of Sachdeva '316, is aligning imagery of a complete tooth (i.e.,
obtained from registration of surface scan data of the crown and volumetric
data of the root) with model data of a complete tooth, we view Bradbury's
process of aligning centroids as a landmark-based alignment process that
one of ordinary skill in the art would look to. Appellant has not persuaded
us that the Examiner's articulated reasoning in support of using centroids to
align tooth data with tooth model data in modified Kuo' s method lacks
rational underpinning.
We also acknowledge that Bradbury combines scanned data sets from
multiple sources "to create an accurate modeling of bone tissue or other
generally hidden body features, not to perform aesthetic modeling." Appeal
Br. 6. Again, the Examiner's rejection relies on modified Kuo for the
concept of aligning scanned imagery with model data "to generate and
display an aesthetic appearance of a tooth." Final Act. 3. The Examiner
relies on Bradbury only for its teaching of centroids being a known type of
landmark for aligning and combining data relating to solid objects. Id. at 4.
The Examiner reasons that Bradbury would have led one of ordinary skill in
the art to align and combine the tooth imagery and tooth model data of
modified Kuo/Sachdeva '316 by utilizing centroids in order to achieve
optimal alignment. Id. Again, Appellant has not persuaded us that the
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Examiner's articulated reasoning in support of using centroids to align tooth
data with tooth model data in modified Kuo' s method lacks rational
underpinning.
Appellant additionally argues that Bradbury would have led one of
ordinary skill in the art to align surface and volumetric data by matching
centroids, rather than having "a centroid [be] obtained and used only after
volumetric and shape data are aligned," as claimed. Reply Br. 3. Appellant
contends that aligning the centroids of the surface and volumetric data would
"result[] in a combined object with the same centroid as the two combined
data sets, quite possibly creating a different result than the claimed process."
Id.; see also id. at 2 ("[T]he Bradbury process would necessarily align the
centroids of the two data sets in order to combine them, whereas the claimed
process aligns the data sets to create a new combined data set, and then finds
the centroid.").
Appellant's argument is not persuasive, because it is not responsive to
the Examiner's rejection. The Examiner does not propose using centroids
when "registering the shape data of the crown to the volumetric imagery of
the root," as recited in the third limitation of claim 1. See Final Act. 3.
Instead, the Examiner proposes using centroids when "aligning the surface
data of the crown with the model data," as recited in the fifth limitation of
claim 1. See id. at 4. In relation to the fifth limitation, Appellant does not
identify any error in the Examiner's determination that it would have been
obvious to align the surface data of the crown from an image of the entire
tooth (which results from combining Kuo with Sachdeva '316) using a
centroid determined from the image of the entire tooth ( as suggested by
Bradbury), with model data (as disclosed by Kuo), in order to generate and
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display an aesthetic appearance of the tooth. See Reply Br. 2-3. Instead,
Appellant's argument unpersuasively argues against the references
individually, focusing on what each reference does not disclose, rather than
on what the references in combination do disclose and the Examiner's
reasons for combining the disclosures in the manner claimed. See id.; In re
Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (nonobviousness
cannot be established by attacking references individually when
unpatentability is predicated upon a combination of prior art disclosures).
For the foregoing reasons, Appellant does not apprise us of error in
the Examiner's conclusion that the combination of Kuo, Sachdeva '316, and
Bradbury renders obvious the subject matter of independent claim 1. We
sustain the rejection of claim 1, and of claims 2-6, 8-13, 15-20, 25, and 26
falling therewith, under 35 U.S.C. § 103(a) as unpatentable over Kuo,
Sachdeva '316, and Bradbury.
Rejection II
In contesting the rejection of dependent claims 27 and 28, Appellant
relies on the same arguments and reasoning we found unpersuasive in
connection with independent claim 1. Appeal Br. 7. Accordingly, for the
same reasons discussed above in connection with the rejection of claim 1,
we also sustain the rejection of claims 27 and 28 under 35 U.S.C. § 103(a) as
unpatentable over Kuo, Sachdeva '316, Bradbury, and Sachdeva '885.
DECISION
The Examiner's decision to reject claims 1---6, 8-13, 15-20, 25, and
26 under 35 U.S.C. § 103(a) as unpatentable over Kuo, Sachdeva '316, and
Bradbury is affirmed.
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The Examiner's decision to reject claims 27 and 28 under 35 U.S.C.
§ 103(a) as unpatentable over Kuo, Sachdeva '316, Bradbury, and Sachdeva
'885 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
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