Ex Parte Casement et al

Patent Trial and Appeal Board

Jul 19, 2017

11197743 (P.T.A.B. Jul. 19, 2017)

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.
11/197,743 08/03/2005 Kelley Casement 7525-1 5700
22442 7590
Sheridan Ross PC
1560 Broadway
Suite 1200
Denver, CO 80202
EXAMINER
NELSON, MATTHEW M
ART UNIT PAPER NUMBER
3732
NOTIFICATION DATE DELIVERY MODE
07/21/2017 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):
e-docket @ sheridanross. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KELLEY CASEMENT, RICARDO GAPSKI,
and RUSSELL CASEMENT1
Appeal 2016-004523
Application 11/197,743
Technology Center 3700
Before ERIC B. GRIMES, JOHN E. SCHNEIDER
and RACHEL H. TOWNSEND, Administrative Patent Judges.
SCHNEIDER, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to method
for method for mounting a temporary crown to a dental implant which have
been rejected as obvious. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
STATEMENT OF THE CASE
In the past, prior art provisional crowns generally
included a significant hollow center which did not fit well with
a dental implant. Rather, extensive use of resins, glues,
1 Appellants identify the Real Party in Interest as Provisional Implant
Technology, LLC. Br. 3.
Appeal 2106-004523
Application 11/197,743
cements, etc., were needed to form a contact between the crown
and the implant. However, in accordance with the present
invention, the hollow shell of the invention is configured so as
to define an interior void which substantially corresponds in
size and shape to the abutment of a dental implant so as to
provide a custom fit between the pre-fabricated implant
provisional crown and the dental implant.
Spec. 4—5 (citations omitted).
Claims 12—14, 17, 25—27, 33, 34, and 36—60 are on appeal. Claims 12
and 40 are the sole independent claims and read as follow:
12. A method for temporarily mounting a prefabricated
implant provisional crown to a dental implant, said method
comprising:
placing an endosseous implant at a site of an edentulous
ridge or extracted tooth socket in a patient in need thereof;
placing a transmucosal component within the patient's
gum tissue;
interconnecting said transmucosal component to said
implant via a first fastener;
securing an implant abutment to said transmucosal
component, wherein the implant abutment has an elongated
tubular body and a collar with a non-planar upper surface;
selecting a prefabricated implant provisional crown
substantially corresponding in size and shape to the size and
shape of a natural tooth and sized within a patient's tooth
extraction site;
wherein said prefabricated implant provisional crown
comprises an exterior perimeter substantially corresponding in
size and shape to the exterior size and shape of the natural tooth
and a void that substantially corresponds in size and shape to an
exterior profile of said elongated tubular body of said implant
abutment, and wherein said prefabricated implant provisional
crown has a cervical line having a non-planar contour that
coincides with the contour of said non-planar upper surface of
said collar;
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placing said prefabricated implant provisional crown
over said implant abutment such that said void is mated with
said elongated tubular body, and said non-planar contour of
said cervical line is mated with said upper surface of said collar;
temporarily securing said prefabricated implant
provisional crown on said implant abutment for a period of time
sufficient to allow healing of the patient's jawbone and gumline
at said site; and
removing said prefabricated implant provisional crown
from said implant abutment.
40. A method for temporarily mounting a prefabricated
implant provisional crown to a dental implant, said method
comprising:
placing an endosseous implant at a site of an edentulous
ridge or extracted tooth socket in a patient in need thereof;
securing an implant abutment to the gingival portion of
said endosseous implant;
selecting a prefabricated implant provisional crown
substantially corresponding in size and shape to the exterior
size and shape of a natural tooth based upon the patient's
extraction site;
wherein said prefabricated implant provisional crown has
an exterior surface substantially corresponding in size and
shape to the exterior size and shape of the natural tooth and a
void defined in the interior of said hollow shell, and wherein
said prefabricated implant provisional crown is further selected
such that said void substantially corresponds in size and shape
to said implant abutment so as to provide a custom fit between
said prefabricated implant provisional crown and said dental
implant abutment;
placing said prefabricated implant provisional crown
over said implant abutment such that said void is mated with
said implant abutment;
temporarily securing said prefabricated implant
provisional crown on said implant abutment to thereby
temporarily mount said prefabricated implant provisional crown
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Application 11/197,743
to said dental implant for a period of time sufficient to allow
healing of the jawbone and gumline at said site; and
removing said prefabricated implant provisional crown
from said implant abutment.
The claims stand rejected as follows:
Claims 12—14, 17, 25—27, 34, 36-49, and 51—60 have been rejected
under 35 U.S.C. § 103(a) as unpatentable over Porter2 in view of Chilibeck3,
Gittelson4 and Binon.5
Claims 33 and 50 have been rejected under 35 U.S.C. § 103(a) as
unpatentable over Porter in view of Chilibeck, Gittelson and Binon in further
view of Sims.6
THE FIRST OBVIOUSNESS REJECTION
Issue
The issue with respect to this rejection is whether a preponderance of
the evidence supports the Examiner’s conclusion that claims 12—14, 17,
25—27, 34, 36-49, and 51—60 would have been obvious over Porter
combined with Chilibeck, Gittelson and Binon.
The Examiner finds that Porter discloses
a method of temporarily mounting a provisional crown
including the steps of placing an implant 14, Fig. 1 A, securing
an abutment portion, shown at 86, Fig. 5, to the implant,
including a provisional crown shown at 88 that has the size and
shape of a natural tooth as shown in Fig. 5 and suggested by the
2 Porter et al., US 6,887,077 B2, issued May 3, 2005 (“Porter”).
3 Chilibeck, US 2003/0203339 Al, published Oct. 30, 2003 (“Chilibeck”).
4 Gittelson et al., US 6,431,867 Bl, issued Aug. 13, 2002 (“Gittelson”).
5 Binon, US 5,040,983, issued Aug. 20, 1991 (“Binon”).
6 Sims et al., US 2005/0084821 Al, published Apr. 21, 2005 (“Sims”).
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Application 11/197,743
teaching of it being for immediate loading, temporarily securing
the crown and removing the crown, column 6, lines 36-45.
Porter shows an abutment (at 84 in Fig. 5) comprising an
elongated tubular body (upper portion) an abutment collar with
a non-planar upper surface (at 86 in Fig. 5) extending laterally
therefrom and an annular extension (bottom) about an end
thereof that is spaced from said second end of said tubular
portion, said abutment having a void (interior) that extends the
length of said tubular portion and a length of said base portion
(Fig. 5), wherein an exterior profile of the tubular body
corresponds to the void, and a shoulder (where screw 85 seats
on abutment) extending laterally into said abutment void (Fig.
5).
Final Act. 2—3.
The Examiner finds that Chilibeck teaches a crown comprising
polycarbonate. Final Act. 3. The Examiner also finds that Gittelson teaches
“using a non-planar cervical line (Fig. 3 near 95 for instance) and the crown
being prefabricated of a plastic for fitted placement over the abutment (col.
5, line 60 — col. 6, line 15).” Final Act. 3. The Examiner finds that Binon
teaches the use of a transmucosal component. Final Act. 4. The Examiner
concludes, regarding the independent claims, that it would have been
obvious
a) “to modify Porter to include the use of polycarbonate as shown
by Chilibeck in order to make use of art known materials[,]”
(Final Act. 3)
b) “to include a non-planar cervical line and utilize a prefabricated
crown as shown by Gittleson in order to better match anatomy
and allow quick placement of the crown while forming and
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Application 11/197,743
maintaining papilla in a fashion similar to the final
prosthesis[,]” (Final Act. 3) and
c) to utilize “the transmucosal component as taught by Binon in
order to provide a diagnostic aid and an adjunct in tissue
healing” (Final Act. 4—5),
which modifications would result in the claimed method.
Appellants contend that the references do not teach a prefabricated
provisional crown dimensioned to receive an abutment before the crown is
placed in a patient’s mouth. Br. 15. Appellants argue that Porter is directed
to a crown that is formed over the abutment using a putty-like dental
material. Br. 16.
Appellants argue that while Chilibeck discloses a prefabricated crown,
the crown is formed of several different materials as opposed to the single
material used in the present invention. Br. 16. Appellants also argue that
the method of Chilibeck is different from the instant method in that
Chilibeck is directed to placing a crown over a tooth stub and uses a resin to
bind the crown to the stub. Br. 17—18.
Appellants contend that one skilled in the art would not look to
Gittelson for guidance in modifying Porter as Gittelson is directed to
permanent crowns and not provisional crowns. Br. 21. Appellants argue
that the method for making a provisional crown is different than that used to
make a permanent crown. Id.
Appellants next argue that Porter does not disclose an abutment but,
rather, uses a socket. Br 22.
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Application 11/197,743
Appellants go on to argue that Chilibeck does not teach the use of
polycarbonate to form a crown and that Gittelson does not teach a non-
planar cervical line. Br. 22.
Appellants argue that Gittelson does not teach a prefabricated crown.
Br. 24. Appellants also argue that the Examiner engaged in impermissible
hindsight in reaching a conclusion of obviousness. Br. 25.
Turning to the dependent claims, Appellants argue that with respect to
claims 14, 39, 42, and 51, the references do not teach modifying the crown.
Br. 26. Appellants also argue that the collar of Porter is not the same as the
collar in claim 17. Br. 27.
Analysis
We adopt the Examiner’s findings of fact, reasoning on scope and
content of the prior art, and conclusions set out in the Final Action and
Answer regarding this rejection. We find the Examiner has established that
the claims would have been obvious over Porter combined with Chilibeck,
Gittelson, and Binon. Appellants have not produced evidence showing, or
persuasively argued, that the Examiner’s determinations on obviousness are
incorrect. Only those arguments made by Appellants in the Brief have been
considered in this Decision. Arguments not presented in the Brief are
waived. See 37 C.F.R. § 41.37(c)(l)(iv) (2015). We have identified claim
12 as representative. We address Appellants’ arguments below.
To begin, we note that Appellants’ arguments appear to be attacks on
the individual references rather than the combined teachings of the
references. “Non-obviousness cannot be established by attacking references
individually where the rejection is based upon the teachings of a
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Application 11/197,743
combination of references. . . . [The reference] must be read, not in
isolation, but for what it fairly teaches in combination with the prior art as a
whole.” In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
In addition, we agree with the Examiner that the declarations and
arguments are focused primarily on how the crowns are made. Ans. 6 and 8.
As the Examiner points out, the claims are directed to how the crowns are
put in place, not how they are made. Since the arguments are directed to
limitations not recited in the claims, the declarations are unpersuasive.
Appellants contend that the references do not disclose prefabricated
crowns. Br. 15. We are unpersuaded. As noted by the Examiner, Gittelson
teaches a prefabricated crown. Ans. 7—8. Moreover, Chilibeck also
discloses prefabricated crowns. See, Chilibeck 17. (“Accordingly, a dentist
must have a large collection of crown forms readily available when doing
restorative work.”)
Appellants argue that the method of Chilibeck is different from that of
the present invention in that Chilibeck uses a resin to hold the crown in
place. Br. 17. We are unpersuaded. As the Examiner points out, the claims
do not preclude the use of a resin or filler. Ans. 8. Moreover, claim 13
specifically calls for the use of a cement or fixative. Br. 28, Ans. 8.
Appellants argue that Chilibeck does not teach the preparation of a
crown made entirely of polycarbonate. Br. 16. This argument is
unpersuasive. The present claims are not limited to crowns comprised
entirely of polycarbonate. Ans. 9.
Appellants contend that a person of ordinary skill in the art would not
look to Gittelson as Gittelson relates to permanent crowns and permanent
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Appeal 2106-004523
Application 11/197,743
crowns are made differently than provisional crown. This argument is
unpersuasive as the claimed method is directed to placing the crown, not the
method of manufacture. Moreover, as the Examiner points out, Gittelson
teaches using temporary or provisional crowns. Ans. 8.
Appellants argue that Gittelson does not disclose a non-planar cervical
line which coincides with the contour of the upper surface of the abutment’s
collar. Br. 22—23. We are unpersuaded. Gittelson teaches that the collar of
the abutment has an upper surface which is shaped to match the
corresponding surfaces of the crown. Ans. 9. Moreover, as shown below.
Porter discloses an abutment with a non-planar collar.
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Appeal 2106-004523
Application 11/197,743
Figure 5 of Porter shows a dental crown.
The combined teachings of Porter and Gittelson teach the limitation.
Appellants contend that Porter does not teach an abutment but rather a
socket. We remain unpersuaded. A comparison of Figure 5 from Porter
(above) with Figure 4 of the present specification shows that both illustrate a
feature with an elongated tubular body and a collar with a non-planar upper
surface.
Figure 4 of Present Specification showing crown and abutment.
Both structures perform the same function and have the same general shape.
We agree with the Examiner that the use of the different terms is merely a
matter of terminology. Ans. 8.
10
26
FIG.4
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Application 11/197,743
Appellants next argue that the Examiner has used impermissible
hindsight in making the rejections. Br. 26. Appellants argue that the
rejection is based on hindsight in that at the time the invention was made,
provisional crowns were formed in the patient’s mouth or from a tooth mold,
and not prefabricated. Id.
We are unpersuaded. “Any judgment on obviousness is in a sense
necessarily a reconstruction based upon hindsight reasoning, but so long as it
takes into account only knowledge which was within the level of ordinary
skill at the time the claimed invention was made and does not include
knowledge gleaned only from applicant’s disclosure, such a reconstruction is
proper.” In re McLaughlin, 443 F.2d 1392, 1395, 170 USPQ 209, 212
(CCPA 1971). As discussed above, the use of prefabricated crowns was
known in the art (see, e.g., Gittelson and Chilibeck) at the time the invention
was made. In addition, the Examiner has mapped all of the limitations in the
prior art. Ans. 9. No hindsight has been used.
With respect to claims 14, 39, 42 and 51, Appellants contend that one
skilled in the art would not modify the crown of Porter in the manner
described by the Examiner as composite does not bind to acrylic. Br. 26—
27. We are unpersuaded. Although Appellants’ argument with respect to
composite not bonding to acrylic may be correct, the claims also call for the
use of a hand-piece as an alternative. Ans. 10. As the Examiner points out,
Porter teaches this limitation. Final Act. 3.
Turning to claim 17, Appellants argue that the collar of the abutment
in Porter is different from that in the instant claims. Referring to Figure 5 of
Porter and Figure 4 of the present Specification reproduced above, we can
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Application 11/197,743
discern no difference in the two collars. We are, therefore, unpersuaded by
Appellants’ argument.
Conclusion
We conclude that a preponderance of the evidence supports the
Examiner’s conclusion that claims 12, 14, 17, 39, 42, and 51 would have
been obvious over Porter combined with Chilibeck, Gittelson and Binon.
Claims 13, 25—27, 34, 36—38, 40, 41, 43—49, and 52—60 have not been
argued separately and therefore fall with claim 12. 37 C.F.R.
§ 41.37(c)(l)(iv).
THE SECOND OBVIOUSNESS REJECTION
Appellants present no additional arguments with respect to claim 33
and 50 other than to argue that Sims does not remedy the deficiencies of the
other references. Br. 27. As seen from the above discussion, the other
references are not deficient in their teachings. We therefore affirm this
rejection.
SUMMARY
We affirm the rejections under 35 U.S.C. § 103(a).
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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