Ex Parte OCHS et al

Patent Trial and Appeal Board

Sep 20, 2017

12844885 (P.T.A.B. Sep. 20, 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.
12/844,885 07/28/2010 Harold D. OCHS JDC5058USNP3 8931
27777 7590 09/22/2017
JOSEPH F. SHIRTZ
JOHNSON & JOHNSON
ONE JOHNSON & JOHNSON PLAZA
NEW BRUNSWICK, NJ 08933-7003
EXAMINER
RODRIQUEZ, KARI KRISTIN
ART UNIT PAPER NUMBER
3772
NOTIFICATION DATE DELIVERY MODE
09/22/2017 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):
j nju spatent @ coru s .j nj. com
lhowd@its.jnj.com
pair_jnj @ firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HAROLD D. OCHS, ROBERT W. FUSIII,
RICHARD J. FOUGERE, CURT BINNER, MEGHA REDDY, and
JUSTIN MCDONOUGH
Appeal 2016-003861
Application 12/844,885
Technology Center 3700
Before MICHAEL L. HOELTER, THOMAS F. SMEGAL, and
JEFFREY A. STEPHENS, Administrative Patent Judges.
SMEGAL, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Harold D. Ochs et al. (Appellants)1 seek our review under 35 U.S.C.
§ 134 of the Examiner’s rejections2 under 35 U.S.C. § 102(b) of claims 1—5,
7, 8, 11, 12, 15—18, 22 and 29 as anticipated by Quinby (US 4,164,940, iss.
Aug. 21, 1979); and under 35 U.S.C. § 103(a) of claims 6 and 14 as obvious
over Quinby and Kelly (US 3,731,675, iss. May 8, 1973), of claims 19 and
21 as obvious over Quinby and Kamen (US 6,375,459 Bl, iss. Apr. 23,
1 According to Appellants, the real party in interest is McNeil-PPC. Br. 2.
2 Appeal is taken from the adverse decision of the Examiner as set forth in
the Final Office Action, dated November 20, 2014 (“Final Act.”).
Appeal 2016-003861
Application 12/844,885
2002), and of claim 20 as obvious over Quinby and Ellion (US 6,602,071
Bl, iss. Aug. 5, 2003).3 We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
CFAIMED SUBJECT MATTER
Claim 1, the sole independent claim, is reproduced below and
illustrates the claimed subject matter, with disputed limitations emphasized.
1. A method for providing a beneficial effect to an oral
cavity of a mammal, said method comprising:
providing an application tray comprising a liquid­
contacting-chamber defined by front and rear inner walls and a
base inner wall extending between and integral with the front and
rear inner walls, said front and rear inner walls each including a
plurality of openings through which liquid is directed to contact
a plurality of surfaces of the oral cavity,
contacting said plurality of surfaces of said oral cavity
with said liquid effective for providing said beneficial effect to
said oral cavity; and
providing reciprocation of said liquid over said plurality
of surfaces of said oral cavity under conditions effective to
provide said beneficial effect, wherein said step of providing
reciprocation comprises dispensing said liquid from a delivery
device to said application tray and cycling said fluid from said
application tray to said delivery device; and
wherein said liquid effective for providing said beneficial
effect to said oral cavity is simultaneously dispensed to and
drawn from said application tray.
3 The Examiner withdrew the rejection under 35 U.S.C. § 112, second
paragraph, of claim 29 as being indefinite for failing to particularly point out
and distinctly claim the subject matter which the inventors regard as the
invention. Ans. 7.
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Application 12/844,885
ANALYSIS
Anticipation of Claims 1—5, 7, 8, 11, 12, 15—18, 22 and 29 by Quinby
Appellants argue claims 1—5, 7, 8, 11, 12, 15—18, 22 and 29 together
in contesting the rejection of these claims as anticipated by Quinby. Br. 4—5.
We select claim 1 as the representative claim for this group, and the
remaining claims stand or fall with claim 1. 37 C.F.R. § 41.37(c)(l)(iv).
The Examiner finds that Quinby anticipates claim 1 by disclosing “a
method for providing a beneficial effect to an oral cavity of a mammal,”
including, inter alia, providing reciprocation of liquid over a plurality of
surfaces of an oral cavity. Final Act. 4 (citing Quinby, col. 4,1. 54—col. 5,1.
7).4 As the Examiner further explains in the Advisory Action dated January
22, 2015, Quinby “discloses delivering fluid through hose 21 to the oral
cavity in a first direction [that] comes back out through suction hoses 19 and
20,” reasoning that “[t]he direction of fluid flow has changed direction to go
from being delivered [in] through hose 21 to out of the oral cavity through
hoses 19 and 20.”
Appellants contend that “Quinby fails to teach or suggest any method
comprising the step of providing reciprocation of a liquid over a plurality of
surfaces of said oral cavity as claimed,” pointing out that the “application
clearly defines the reciprocation of liquid(s) as ‘alternating the direction of
flow of the liquid(s) back and forth over surfaces of the oral cavity of a
mammal from a first flow direction to a second flow direction that is
opposite the first flow direction.’” Br. 4 (citing the Spec., p. 6,11. 3—6).
(emphasis added).
4 See also Quinby, column 5, lines 17—21.
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Application 12/844,885
Appellants explain that in Quinby
any and all water and/or cleaning fluid flows into the mouthpiece
through the holes (6) in the upper and lower channel members
(Quinby col. 4, 11. 58-60) and seeps out of the mouthpiece
between the teeth and channel members where it is drawn out of
the mouth through suction hoses 9 and 20B from the outside of
the mouthpiece. This is the one and only direction in which fluid
flows through the mouthpiece in Quinby. Such flow direction is
never changed, alternated, nor redirected in an opposite direction
across the oral cavity.
Appeal Br. at 5.
From the foregoing, Appellants conclude that Quinby merely
“describes introducing fluid into and out of the Quinby mouthpiece in a first
fluid flow direction, and such flow is never alternated nor redirected in any
manner across any surface of the oral cavity, . . . but is simply moved away
from the mouthpiece and the oral cavity.” Id.
In response, the Examiner first summarizes the portion of Quinby
found at column 4, line 54—column 5, line 7 and then reasons that “there
must be a change in direction across oral surfaces since the flow is being
delivered to the mouth in a first direction (from the front toward the back of
the mouth) and exiting in a second direction (from the back toward the front
of the mouth).” Ans. 8. The Examiner explains that “[i]f there was not a
change or alternating of the direction of the fluid the fluid would never leave
the user’s mouth through the suction hose.” Id. The Examiner also points
out that “fluid entering through holes (6) will undergo various changes of
direction including back and forth while in the chamber (2) and seeping out
into the oral cavity before being suctioned out through hoses (19 and 20B)
due to the turbulent nature of liquids.” Id. at 8—9. (emphasis added). From
the foregoing, the Examiner determines that the “fluid of Quinby entering
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Application 12/844,885
through hose (21) and exiting in an opposite second direction (though hoses
19 and 20) reads on the claimed invention.” Id. at 9.
“As understood, the Examiner relies on a “turbulent nature of liquids”
as teaching the claim limitation of reciprocation, i.e., “back and forth over
surfaces of the oral cavity,” as described in the Specification at page 6, lines
3—6. Quinby is directed to a teeth cleaning and gum massaging device that
employs pneumatic means to direct the fluid “upward and downward over
the respective gums to massage the gums.” Quinby Abstract. This is
indicative of turbulent flow within the device. Hence, the Examiner’s
rationale based on flow turbulence is reasonable. Consequently, and based
upon the multiple entrances and exits for the fluid to flow into and out of the
oral cavity in Quinby, we agree with the Examiner that it would have been
reasonable for one skilled in the art to have understood that fluid will flow
across some surfaces of the oral cavity in a first direction and in a second
direction that is opposite the first flow direction. Appellants have not
persuasively disputed these findings. Thus, Appellants’ contention does not
inform us of error.
Based on the foregoing, we sustain the Examiner’s rejection of claims
1—5, 7, 8, 11, 12, 15—18, 22 and 29 as anticipated by Quinby.
Obviousness of claims 6 and 14 over Quinby and Kelly; of claims 19
and 21 over Quinby and Kamen; and of claim 20 over Quinby and Ellion
Other than repeatedly observing that “Quinby does not disclose,
contemplate nor readily allow for alternating the flow of the fluid in a
reverse direction back through its mouthpiece,” we understand Appellants’
appeal of the rejections of claims 6, 14, and 19—21 to rest on the arguments
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Application 12/844,885
presented against the rejection of claim 1, which we found not demonstrative
of error in the Examiner’s rejection of claims 1—5, 7, 8, 11, 12, 15—18, 22
and 29 as anticipated by Quinby, as set forth supra. Thus, we sustain the
Examiner’s obviousness rejections of claims 6 and 14 over Quinby and
Kelly; of claims 19 and 21 over Quinby and Kamen; and of claim 20 over
Quinby and Ellion.
DECISION
We AFFIRM the Examiner’s rejections.
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
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