Ex Parte ANDREIKO et alDownload PDFPatent Trials and Appeals BoardMar 13, 201913765600 - (D) (P.T.A.B. Mar. 13, 2019) Copy Citation 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)). 2 Appeal2017-007248 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. 3 Appeal2017-007248 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 4 Appeal2017-007248 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 5 Appeal2017-007248 Application 13/765,600 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.). 6 Appeal2017-007248 Application 13/765,600 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 7 Appeal2017-007248 Application 13/765,600 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 8 Appeal2017-007248 Application 13/765,600 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 9 Appeal2017-007248 Application 13/765,600 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. 10 Appeal2017-007248 Application 13/765,600 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 11 Copy with citationCopy as parenthetical citation