CSD Connection Systems for Dentistry Inc.

Patent Trials and Appeals Board

Jun 1, 2020

15149294 - (D) (P.T.A.B. Jun. 1, 2020)

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.
15/149,294 05/09/2016 Emil SVOBODA 200-0004USP2 2181
14568 7590 06/01/2020
Rowand LLP
Suite 2302, 401 Bay Street
PO Box 56
Toronto, ONTARIO M5H 2Y4
CANADA
EXAMINER
FOLGMANN, DREW S
ART UNIT PAPER NUMBER
3772
NOTIFICATION DATE DELIVERY MODE
06/01/2020 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):
mailbox@rowandlaw.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte EMIL SVOBODA

Appeal 2020-000536
Application 15/149,294
Technology Center 3700
____________

Before JAMES P. CALVE, BENJAMIN D. M. WOOD, and
MICHAEL J. FITZPATRICK, Administrative Patent Judges.

FITZPATRICK, Administrative Patent Judge.

DECISION ON APPEAL
Appellant, CSD Connection Systems for Dentistry Inc.,1 appeals
under 35 U.S.C. § 134(a) from the Examiner’s final decision rejecting
claims 1, 5–10, 14–18, 21, and 22. We have jurisdiction under
35 U.S.C. § 6(b).
We reverse.

1 “Appellant” refers to the applicant as defined in 37 C.F.R. § 1.42.
Appellant identifies itself as the sole real party in interest. Appeal Br. 2.
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STATEMENT OF THE CASE
The Specification
The Specification “relates to dental prostheses and, in particular, to
dental implants or abutments to which dental prostheses are cemented.”
Spec. ¶2. The Specification explains that:
For partly cosmetic reasons, the typical dental abutment or
implant may be seated such that the shoulder is just below the
height of the gingiva so that the interface between the prosthesis
and the abutment/implant is not visible. This can cause extruded
cement to be injected below the gingiva, between the gingiva and
the dental implant, which may lead to irritation and inflammation
and even loss of the dental implant.
Id. ¶4. Unwanted introduction of cement below the gingiva is illustrated in
Figure 2 of the Specification, which is labelled “Prior Art.” Spec. ¶31, Fig.
2 (ref. 28). The Specification seeks to “to reduce residual sub-gingival
cement during dental restoration.” Id. ¶19.
Figure 5 of the Specification is reproduced below to illustrate the
claimed dental restoration system.
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Figure 5, reproduced above, shows a cross-sectional view of dental
restoration system 100 comprising crown 126 (also referred to as prosthesis)
and abutment 124 to which the crown is cemented. Id. ¶¶10, 41. Threaded
implant 12, which can be screwed into jaw bone, may be an additional
component or integral with the abutment. Id. ¶3.
The abutment 124 has a “gingival part” that engages the patient’s
gingiva 26 and which “has a convexly-curved outer profile 146.” Id. ¶41.
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The abutment also “includes a shoulder 128 between outer profile 146 . . .
and the outer surface of the occlusal part of the abutment 124 to which the
crown 126 is to be cemented.” Id. ¶42.2 “The gingival part of the abutment
124 is flared outwards such that proximate the shoulder 128, the abutment
124 is radially wider than a gingival end 148 of the crown 126.” Id. ¶41.
The shoulder 128 includes concave portion 130 and rim 132. Id. ¶42.
“The concave portion 130 smoothly transitions from the outer surface of the
occlusal part of the abutment 124 so as to create an (at least partial) annular
channel into which the gingival end of the crown 126 may fit.” Id. “The
face of the concave portion 130 at its most radially-spaced point, i.e. where
it meets the rim 132, is at an acute angle with respect to a longitudinal axis
150 of the abutment 124.” Id. “The outer profile of the gingival end 148 of
the crown 126 makes contact with the radially-spaced face of the concave
portion 130.” Id. “The rim 132 creates a gap 140 between the outer profile
of the crown 126 and the gingiva.” Id.
“When the crown 126 is mounted to the abutment 124 [as shown in
Figure 5], cement will be compressed between the crown 126 and abutment
124 and will be forced outwards at an acute angle between the outer profile
of the crown 126 and the concave portion 130 of the shoulder 128, forcing it
into the gap 140 and out above the gingiva 26.” Id. ¶43.

2 “The term ‘occlusal’ refers to the biting surface and ‘gingival’ refers to the
attachment structure intended to be secured to the bone and/or gingiva or
other supporting tissues.” Spec. ¶25.
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The Claims
Claims 1, 5–10, 14–18, 21, and 22 are rejected. Final Act. 1. No
other claims are pending. Id. Claims 1 and 10 are independent. Appeal
Br. 18–21 (Claims App.). Claim 1 is illustrative and reproduced below.
1. A dental restoration system, comprising:
a dental prosthesis comprising an occlusal body having
defined therein a cavity having an inner surface, and having an
outside profile, the inner surface meeting the outside profile at a
gingival end of the dental prosthesis; and
a dental abutment having a main body with a gingival
part to be anchored to an implant and an occlusal part shaped to
fit within the cavity to support intra-oral cementation of the
dental prosthesis, wherein the occlusal part of the main body
has an outer surface radially closer to a longitudinal center axis
of the main body than an outer profile of the gingival part at the
interface between the occlusal part and the gingival part,
thereby defining a shoulder between the occlusal part and the
gingival part, wherein the shoulder of the dental abutment
includes a concave portion defining a channel into which the
gingival end of the dental prosthesis is to fit, the concave
portion including a face at an acute angle with respect to the
longitudinal axis, and
wherein the cavity is shaped to enable the gingival end of
the dental prosthesis to nest within the channel such that the
outside profile of the dental prosthesis contacts the face of the
concave portion when cemented using dental cement, and
wherein the radial width of the outside profile of the dental
prosthesis where it meets the face of the concave portion is
smaller than the radial width of the outer profile of the gingival
part at the shoulder to define a gap between the outside profile
of the dental prosthesis and the outer profile of the gingival part
through which excess cement is to be extruded when mounting
the dental prosthesis, while maintaining a space between the
channel and the inner surface of the cavity near the gingival end
in which the dental cement fills.
Id. at 25, 27.
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The Examiner’s Rejections
The rejections before us are:
1. claims 1, 5–10, 14–18, 21, and 22, under 35 U.S.C. § 103, as
unpatentable over Neumeyer3 and Holt4 (Final Act. 2); and
2. claims 1, 5–10, 14–18, 21, and 22 for nonstatutory obviousness-
type double patenting over claim 11 of Application no. 14/327,594 (now
US 9,956,060 B2) and Holt (id. at 9).
DISCUSSION
Rejection 1
Appellant argues, among other things, that the Examiner “speculat[es]
about the dental prosthesis implied by Neumeyer” because Neumeyer does
not depict or describe a prosthesis or the nature of an interface between such
a prosthesis and the implant (Appeal Br. 9) and has not shown that the prior
art teaches or suggests “wherein the cavity is shaped to enable the gingival
end of the dental prosthesis to nest within the channel such that the outside
profile of the dental prosthesis contacts the face of the concave portion when
cemented using dental cement,” as recited in claim 1 and as almost
identically recited in claim 10 (Appeal Br. 11).5
The Examiner explicitly concedes that Neumeyer does not teach this
limitation. Final Act. 5. And the Examiner does not assert that Holt teaches
the limitation. See id. at 5–6. According to the Examiner, however, the

3 US 2008/0014556 A1, published Jan. 17, 2008 (“Neumeyer”).
4 US 2003/0031981 A1, published Feb, 13, 2003 (“Holt”).
5 Claim 10 recites “outer profile” in lieu of claim 1’s “outside profile.”
Otherwise the quoted claim language is identical.
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combination of the Neumeyer and Holt satisfies the claim limitation. Id. at
7–8. The Examiner states:
The configuration of Neumeyer/Holt would result in a
structure wherein the outside profile/gingival end of the dental
prosthesis (which has an inner surface which meets the outside
profile at a gingival end of the dental prosthesis) is to contact the
face of the concave portion, when, when cemented and where the
radial width of the outside profile of the dental prosthesis where
it meets the face of the concave portion (Holt teaches the
relationship and when modified with the concave portion of
Neumeyer the configuration would meet the claim limitation.
See the exemplary combination of teachings presented below.
As the abutment/prosthetic connection does not exceed the width
of the abutment as taught it is implied that the rounded protruding
shoulder/concave portion would surround an outer profile and
contact a face of the concave portion as illustrated below.). The
implied structure of the prosthesis which fits over the abutment
and concave portion of Neumeyer combined with
dimensioning/changes of shape of the prosthesis of Holt would
result were a portion of the outside profile of the dental prosthesis
is to contact the face of the concave portion. Note that such
cooperation is only recited as intended use when the two
components are cemented together, the structure of
Neumeyer/Holt would be functionally capable.
Id. The Examiner’s “exemplary combination of teachings” is an annotated
Figure 1 of Neumeyer, which we reproduce below.
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Final Act. 10. The Examiner’s annotated Figure 1 of Neumeyer, reproduced
above, shows a dental prosthesis drawn by the Examiner as being mounted
on Neumeyer’s tooth implant 1, e.g., surrounding retention pin 5.
As argued by Appellant, however, the downward-facing “Outer
Profile” of the Examiner’s dental prosthesis is not an “outside profile”
within the meaning of the claims. Appeal Br. 13.6 The Examiner responds
by pointing out that “Claim 1 specifically recites that the ‘inner surface
meets the outside pro[f]ile at a gingival end of the dental prosthesis.’” Ans.
14 (quoting claim 1). This is true, but it does not rebut the Appellant’s

6 We understand the Examiner’s “Outer Profile” label to be a typographical
error and that Outside Profile was intended.
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argument that the Examiner has not shown how the prior art teaches or
suggests an outside profile of the dental prosthesis that contacts the face of
the concave portion. See Appeal Br. 11–12.
The term “outside” as used in “outside profile” refers to the radially
outward direction. Indeed, claim 1 recites:
wherein the radial width of the outside profile of the dental
prosthesis where it meets the face of the concave portion is
smaller than the radial width of the outer profile of the gingival
part at the shoulder to define a gap between the outside profile of
the dental prosthesis and the outer profile of the gingival part
through which excess cement is to be extruded when mounting
the dental prosthesis.
(Emphasis added). This is also consistent with the Specification. See Spec.
¶17 (“The cavity is shaped to enable the dental prosthesis to seat upon the
shoulder when cemented, and wherein the radial width of the outside profile
of the dental prosthesis where it meets the shoulder is smaller than the radial
width of the outer profile of the gingival part at the shoulder.”); see also
Fig. 5. That the inner surface and outside profile meet at a gingival end, as
the Examiner points out, is not a license to interpret the outside profile (or
the inner surface) as being the gingival end. The Examiner’s construction in
this regard is unreasonably broad and thus erroneous.
The Examiner’s rejection does not satisfy the claim language of
“wherein the cavity is shaped to enable the gingival end of the dental
prosthesis to nest within the channel such that the outside profile of the
dental prosthesis contacts the face of the concave portion when cemented
using dental cement,” as recited in claim 1 and as almost identically recited
in claim 10. Instead, the Examiner’s illustration above shows a prosthesis
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with its “outside profile” completely exposed and not in contact with
anything.
Additionally, because Neumeyer does not illustrate its tooth implant 1
actually implanted in bone and gingiva, it is not clear that the Examiner’s
configuration would create “a gap between the outside profile of the dental
prosthesis and the outer profile of the gingival part” as claimed.
For the foregoing reasons, we reverse the rejection of claims 1, 5–10,
14–18, 21, and 22 as unpatentable over Neumeyer and Holt.
Rejection 2
Appellant states that U.S. Application no. 14/327,594 issued May 1,
2018, as US 9,956,060 B2 and that Appellant filed a terminal disclaimer
with regards to the same. Appeal Br. 16. From our review of the
Application file, it appears that Appellant did not actually file a terminal
disclaimer until October 29, 2019, which was after the Examiner’s Answer.
Nevertheless, the Examiner previously and correctly acknowledged that such
a terminal disclaimer would overcome the rejection. Final Act. 8. To the
extent this rejection is maintained, we reverse it.

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SUMMARY
Claims
Rejected
35 U.S.C. § References/Basis Affirmed Reversed
1, 5–10, 14–
18, 21, 22
103 Neumeyer, Holt 1, 5–10,
14–18, 21,
22
1, 5–10, 14–
18, 21, 22
Double
patenting
claim 11 of
Application no.
14/327,594 (now
US 9,956,060
B2), Holt
1, 5–10,
14–18, 21,
22
Overall
Outcome
1, 5–10,
14–18, 21,
22

REVERSED