Ex Parte Walther et al

Patent Trial and Appeal Board

Oct 5, 2016

13113026 (P.T.A.B. Oct. 5, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/113,026 05/20/2011
92137 7590 10/07/2016
Gagnon, Peacock & Vereeke P.C.
4245 N. Central Expressway
Suite 250, LB 104
Dallas, TX 75205
FIRST NAMED INVENTOR
Russell B. Walther
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.
11-003 8730
EXAMINER
COLEY, ZADE JAMES
ART UNIT PAPER NUMBER
3775
NOTIFICATION DATE DELIVERY MODE
10/07/2016 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):
aaron@gapslaw.com
attorneys@gapslaw.com
j ack@gapslaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RUSSELL B. WALTHER and CHARLES C. HANLEY
Appeal 2015-000050 1,2
Application 13/113,026
Technology Center 3700
Before ANTON W. PETTING, PHILIP J. HOFFMANN, and
BRADLEY B. BAY AT, Administrative Patent Judges.
HOFFMANN, Administrative Patent Judge.
DECISION ON APPEAL
STATEivIENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the rejection of
claims 1 and 3. We have jurisdiction under 35 U.S.C. § 6(b ).
We REVERSE.
According to Appellants, the invention "provides for an apparatus and
method for supporting a maxillo-mandibular fixation by securing the
1 Our decision references Appellants' Specification ("Spec.," filed May 20,
2011 ), Appeal Brief ("Br.," filed July 7, 2014 ), and Reply Brief ("Reply
Br.," filed Aug. 18, 2014), as well as the Final Office Action ("Final
Action," mailed Dec. 5, 2013) and the Examiner's Answer ("Answer,"
mailed Aug. 1, 2014).
2 According to Appellants, Russell B. Walther and Charles C. Hanley are
the real parties in interest. Br. 2.
Appeal2015-000050
Application 13/113,026
maxillary teeth and mandibular teeth together in a faster and less harmful
manner." Spec, Abstract. Claim 1 is the only independent claim. See
Appeal Br., Claims App. We reproduce claim 1, below, as representative of
the appealed claims.
Id.
1. An apparatus for supporting a maxillo-mandibular
fixation of the maxillofacial region by securing the maxillary
teeth and mandibular teeth together in a faster and less harmful
manner, thereby stabilizing the bones of the jaws to effectuate
proper healing of facial fractures, the apparatus comprising:
a floss-wire component for circumdental wiring a tooth
initially by flossing the interproximal space of a tooth therewith
and thereafter causing circumdental wiring of a tooth when the
floss-wire component is pulled, the floss-wire component having
a distal portion composed of a floss- like material and a proximal
portion composed of a wire-like material wherein the floss-like
material and the wire-like material join together at a floss-wire
junction;
a clip having an anchoring point that anchors the wire-like
material of the floss-wire component thereto and having a
grasping point that grasps the wire-like material of the floss-wire
component thereto, the clip interacts with the floss-wire
component, thereby causing the clip and the floss-wire to secure
tightly to a tooth; and
a bar positioned between the buccal surface of one or more
teeth and one or more clips, the bar having a plurality of indices
to increase the stabilization of one or more clips, the bar interacts
with the clip and the floss-wire component, thereby securing to
a tooth.
2
Appeal2015-000050
Application 13/113,026
REJECTION AND PRIOR ART
The Examiner rejects claims 1 and 3 under 35 U.S.C. § 102(b) as
anticipated by Tofflemire (US 2,481, 177, iss. Sept. 6, 1949). See Final
Action 2-3; see also Answer 2.
ANALYSIS
Independent claim 1 recites, among other features,
a floss-wire component for circumdental wiring a tooth initially
by flossing the interproximal space of a tooth therewith and
thereafter causing circumdental wiring of a tooth when the floss-
wire component is pulled, the floss-wire component having a
distal portion composed of a floss-like material and a proximal
portion composed of a wire-like material wherein the floss-like
material and the wire-like material join together at a floss-wire
junction.
Appeal Br., Claims App. Appellants argue the rejection is in error because,
among other things, Tofflemire does not teach a floss-like material and a
• 1 •1 , • 1 • • , , 1 , n • • , • n ..t. 1 wire-nKe macena1Jom wgemer ac a noss-wire JUncuon . .)ee, e.g., Appea1
Br. 12; see also, e.g., Reply Br. 6-7. Based on our review of the prosecution
history, we agree with Appellants, and, thus, we do not sustain the
obviousness rejection of claim 1.
More specifically, the Examiner determines the following:
The claim requires there to be a wire that has a first proximal
portion made of material A and a second distal portion made of
material B and the two portions meet at a junction along the wire.
As noted before, the claim does not require the material to be
different and Tofflemire teaches this limitation wherein material
A and material Bare the same. If the wire staple 6 of Tofflemire
were to be split in half, wherein one [half] is the proximal portion
and the other half is the distal portion, the spot that the two
portions meet is the junction, which is required by the claim.
3
Appeal2015-000050
Application 13/113,026
Answer 4. However, even if we agreed with the Examiner that Toffiemire's
wire staple 6 may otherwise be characterized as both a wire-like material
and a floss-like material, the Examiner does not establish by a
preponderance of the evidence that Tofflemire discloses a junction between
two components. Rather, at most the Examiner finds that "[i]f the wire
staple 6 of Tofflemire were to be split in half," then there would be a
junction.
Thus, based on the foregoing, we do not sustain the rejection of
claim 1. Inasmuch as the rejection of dependent claim 3 suffers from the
same deficiencies as the rejection of claim 1, we also do not sustain the
rejection of claim 3.
DECISION
We REVERSE the Examiner's anticipation rejection of claims 1
and 3.
REVERSED
4