Ex Parte Fisker et al

Patent Trial and Appeal Board

Jun 12, 2018

13580876 (P.T.A.B. Jun. 12, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/580,876 11/29/2012
21839 7590 06/14/2018
BUCHANAN, INGERSOLL & ROONEY PC
POST OFFICE BOX 1404
ALEXANDRIA, VA 22313-1404
FIRST NAMED INVENTOR
Rune Fisker
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.
0079124-000052 7453
EXAMINER
HANN,JAYB
ART UNIT PAPER NUMBER
2123
NOTIFICATION DATE DELIVERY MODE
06/14/2018 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):
ADIPDOC 1@BIPC.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RUNE FISKER, 1
CHRISTOPHE VASILJEV BARTHE,
KASPER KABEL KRISTENSEN,
and TOMMY SANDDAL POULSEN
Appeal2017-000460
Application 13/580,876
Technology Center 2100
Before ROBERT E. NAPPI, KARA L. SZPONDOWSKI, and
SCOTT B. HOW ARD, Administrative Patent Judges.
SZPONDOWSKI, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 1, 2, 5, 6, 10, 11, 16, 21, 40, 56, 58, 68, 73, and
140, all claims pending in the current application. Oral arguments were
heard on May 22, 2018. A transcript of the hearing will be added to the
record in due course. We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
1 Appellants identify 3 Shape A/S as the real party in interest.
Appeal2017-000460
Application 13/580,876
STATEMENT OF THE CASE
Appellants' invention is directed to a dynamic virtual articulator for
simulating occlusion of teeth. Spec. 1. Claim 1, reproduced below with the
disputed limitations in italics, is representative of the claimed subject matter:
1. A computer-implemented method of using a dynamic
virtual articulator for simulating occlusion of teeth when
performing computer-aided designing of one or more dental
restorations for a patient, where the method comprises:
- providing the dynamic virtual articulator, the dynamic
virtual articulator including a virtual three-dimensional model
of the upper jaw and a virtual three-dimensional model of the
lower jaw resembling the upper jaw and lower jaw,
respectively, of the patient's mouth, wherein the virtual three-
dimensional model of the upper jaw and the virtual three-
dimensional model of the lower jaw include three dimensional
models of teeth, and at least one of the virtual three dimensional
model of the upper jaw and the virtual three-dimensional model
of the lower jaw includes a virtual model of the one or more
dental restorations;
- providing movement of the virtual three-dimensional
model of the upper jaw and the virtual three-dimensional model
of the lower jaw relative to each other for simulating dynamic
occlusion, whereby collisions between the teeth in the virtual
upper and virtual lower jaw occur;
- providing that the teeth in the virtual three-dimensional
model of the upper jaw and the virtual three-dimensional model
of the lower jaw are blocked from penetrating each other's
virtual surfaces in the collisions while permitting penetration of
the at least one or more virtual dental restorations.
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Application 13/580,876
REJECTIONS 2
Claims 1, 2, 5, 6, 10, 11, 16, 21, 40, 58, 68, 73, and 140 stand rejected
under pre-AIA 35 U.S.C. § I03(a) as being unpatentable over the
combination of Jordan et al. (US 6,152,731; issued Nov. 28, 2000)
("Jordan") and Imgrund et al. (US 2002/0150859 Al; published Oct. 17,
2002) ("Imgrund").
Claim 56 stands rejected under pre-AIA 35 U.S.C. § I03(a) as being
unpatentable over the combination of Jordan, Imgrund, and further in view
of Solaberrieta, E., et al. "Design of a Virtual Articulator for the Simulation
and Analysis of Mandibular Movements in Dental CAD/CAM' CIRP Design
Conference (2009) ("Solaberrieta").
ANALYSIS
Claim 1
Issue 1: Did the Examiner err in finding the combination of Jordan
and Imgrund teaches or suggests "provid[ing] that the teeth in the virtual
three-dimensional model of the upper jaw and the virtual three-dimensional
model of the lower jaw are blocked from penetrating each other's virtual
surfaces in the collisions while permitting penetration of the at least one or
more virtual dental restorations," as recited in independent claim 1 and
commensurately recited in independent claim 140?
Appellants argue neither Jordan nor Imgrund teaches or suggests
"permitting the penetration of dental restorations." App. Br. 6. The
2 Claims 63 and 78-131 were cancelled in an amendment filed concurrently
with the Appeal Brief, and therefore, withdrawn by the Examiner. See App.
Br. 2, Ans. 2.
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Application 13/580,876
Examiner relies on Imgrund to teach or suggest the disputed limitation.
Final Act. 6-7 (citing Imgrund ,r,r 48--49, 57, 83, and 85). Appellants argue
"the cited section of Imgrund [paragraph 49] relates to orthodontic
procedures, and thus relates to teeth, not dental restorations." App. Br. 6;
see also Reply Br. 3--4. Appellants explain, "teeth in the models correspond
to actual teeth in a patient's mouth, whereas restorations correspond to
devices that are designed to replace teeth, such as crowns or bridges." App.
Br. 4; see also Spec. 5---6. Appellants further argue "the Examiner is
arbitrarily taking a section in paragraph [0049] relating to orthodontics and
is improperly manipulating it with a section in paragraph [0083], which
relates to prosthetics in order to improperly stretch a teaching about
orthodontics into the prosthetics technology." App. Br. 7; see also Reply Br.
4--5.
Appellants' argument is not persuasive. Imgrund describes
techniques for determining occlusal contacts, including permitting and
visually illustrating interpenetration of teeth, and then states "[t]he concepts
also apply to dental prosthetics, such as crowns, fillings and dentures."
Imgrund Abstract; see also Imgrund ,r,r 48, 49 ( describing a color scheme for
representing occlusal contacts of teeth, including interpenetration of teeth);
Imgrund ,r 83 ("The occlusal contact and interpoximal contact detection and
display can also be a highly useful feature in planning restorative dentistry.")
( emphasis added). Accordingly, we agree with the Examiner that Imgrund
teaches or suggests "permitting the penetration of dental restorations."
Appellants further argue Imgrund does not teach or suggest "that
penetration is permitted for one type of object, i.e., dental restorations, and is
not permitted for others, i.e., teeth. It simply describes permitting
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Application 13/580,876
penetration." App. Br. 6-7; see also Reply Br. 3. Appellants also argue
"there is no teaching in Jordan of permitting penetration of any structures,
teeth or restorations." App. Br. 7.
We are not persuaded by Appellants' arguments because they do not
address the combination as relied upon by the Examiner. Nonobviousness
cannot be established by attacking the references individually when the
rejection is predicated upon a combination of prior art disclosures. In re
Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). The Examiner
relies on the combination of Jordan and Imgrund to teach or suggest
"providing that the teeth ... are blocked from penetrating each other's
virtual surfaces in the collisions" (Jordan) "while permitting penetration of
the at least one or more virtual dental restorations" (Imgrund). See Final
Act. 6-7; see also Ans. 4--5. As described above, the Examiner does not
rely on Jordan to teach or suggest penetration of any structures. Nor does
the Examiner rely on Imgrund to teach or suggest blocking penetration of
the teeth, as recited in the claim. Appellants' arguments addressing Imgrund
and Jordan individually are, therefore, not persuasive to rebut the
Examiner's findings.
Accordingly, we are not persuaded the Examiner erred in rejecting
independent claims 1 and 140 under 35 U.S.C. § 103(a), so we, therefore,
sustain those rejections. For the same reasons, we sustain the Examiner's 35
U.S.C. § 103(a) rejections of dependent claims 2, 5, 6, 11, 16, 21, 40, 58, 68,
and 73, which were not separately argued.
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Appeal2017-000460
Application 13/580,876
Claim 10
Issue 2: Did the Examiner err in finding the combination of Jordan
and Imgrund teaches or suggest "wherein a part of the one or more virtual
dental restorations which causes a collision is configured to be automatically
removed from the respective virtual jaw," as recited in dependent claim 1 O?
The Examiner relies on paragraphs 51 and 82-84 of Imgrund to teach
or suggest the disputed limitation. Final Act. 8-9, Ans. 6. Appellants argue
paragraph 83 of Imgrund does not teach "automatically removing parts of
the dental restorations." App. Br. 7. Appellants further argue paragraph 51
"relates to subtracting a tooth ... [and] has nothing to do with removing a
part of a restoration." App. Br. 8.
We are not persuaded by Appellants' arguments. Paragraph 51 of
Imgrund describes "the software virtually 'subtracts' or deletes the opposing
tooth from the tooth to be ground to thereby modify the three-dimensional
virtual form of the tooth to be ground." For the same reasons as discussed
above with respect to claim 1, we are not persuaded by Appellants'
arguments that the disclosure in Imgrund does not apply to restorations.
Accordingly, we are not persuaded the Examiner erred, and, therefore,
affirm the Examiner's 35 U.S.C. § 103(a) rejection of dependent claim 10.
Claim 56
Issue 3: Did the Examiner err in finding the combination of Jordan,
Imgrund, and Solaberrieta teaches or suggest "wherein the virtual alignment
plane and/or the virtual model of the set of teeth is/are semi-transparent or
translucent such that both the virtual alignment plane and the virtual set of
teeth are visible simultaneously," as recited in dependent claim 56?
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The Examiner relies on Figure 9 of Solaberrieta to teach or suggest
the disputed limitation. Final Act. 24, Ans. 6. Specifically, the Examiner
finds "the very faint, mostly transparent light blue set of three orthogonal
planes depict a set of semi-transparent coordinate axis which are within the
scope of the claimed semi-transparent 'virtual alignment plane."' Ans. 6.
Appellants argue "at that section [ of Solaberrieta], there is no teaching
of a virtual alignment plane and/or a virtual model of the set of teeth that
is/are semi-transparent or translucent such that both the virtual alignment
plane and the virtual set of teeth are visible simultaneously." App. Br. 8,
Reply Br. 6.
We are not persuaded by Appellants' arguments because they do not
persuasively rebut or address the Examiner's findings. A general allegation
that the reference does not teach the claim limitations is no more than merely
pointing out the claim limitations. See 37 C.F.R. § 4I.37(c)(l)(iv) ("A
statement which merely points out what a claim recites will not be
considered an argument for separate patentability of the claim.").
Accordingly, we sustain the Examiner's 35 U.S.C. § 103(a) rejection
of dependent claim 56.
DECISION
The Examiner's 35 U.S.C. § 103(a) rejection of claims 1, 2, 5, 6, 10,
11, 16, 21, 40, 56, 58, 68, 73, and 140 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)(l )(iv).
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Appeal2017-000460
Application 13/580,876
AFFIRMED
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