Ivoclar Vivadent AG

Patent Trials and Appeals Board

Dec 23, 2021

2021003965 (P.T.A.B. Dec. 23, 2021)

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.
15/738,940 12/21/2017 Reinhard GOERGE 173P603A 5485
96448 7590 12/23/2021
Ivoclar Vivadent Inc.
175 Pineview Drive
Amherst, NY 14228
EXAMINER
MORAN, EDWARD JOHN
ART UNIT PAPER NUMBER
3772
NOTIFICATION DATE DELIVERY MODE
12/23/2021 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):
Ann.Knab@ivoclarvivadent.com
Jenelle.Manzella@ivoclarvivadent.com
Thad.McMurray@ivoclarvivadent.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte REINHARD GEORGE and NORA CHRISTINA KÖGEL

Appeal 2021-003965
Application 15/738,940
Technology Center 3700
____________

Before BIBHU R. MOHANTY, BRUCE T. WIEDER, and
KENNETH G. SCHOPFER, Administrative Patent Judges.

SCHOPFER, Administrative Patent Judge.

DECISION ON APPEAL

Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the
Examiner’s decision to reject claims 1, 3–6, and 8–18.1 We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies Ivoclar Vivadent AG, as the real party in
interest. Appeal Br. 3.
Appeal 2021-003965
Application 15/738,940

2
BACKGROUND
The Specification states that “[t]he invention relates to an injection
device” including devices having an injector and a cartridge with dental
material and in which “[t]he object of the injector is to press out the dental
material in the cartridge to allow the dentist to apply the dental material to
the location requiring treatment.” Spec. 1.
CLAIMED SUBJECT MATTER
Claims 1 and 18 are the independent claims on appeal. Claim 18 is
illustrative of the appealed claims and recites:
1. An injection device comprising
an injector (12) and
a cartridge (14) that contains dental material and can be
inserted into or attached onto the injector (12),
said injector (12) comprising a piston (28) which, as it
enters the cartridge (14) is intended to press the dental material
out of the cartridge (14),
said cartridge (14) having a collar (16) which is intended
to bear on a holding projection (20) of the injector (12),
whereby the holding projection (20) is formed on a guide
element (36) of the injector (12),
wherein the guide element (36) has a sensor (50) for a
code (52) which comprises printed or imprinted code (52)
applied to a circumference of the cartridge (14) and which code
(52), independently of the rotational position of the cartridge
(14), is always readable by the sensor (50),
wherein the injector (12) has a display at an area spaced
apart from the holding projection (20),
wherein the output signal of the sensor (50) and the code
(52) of the cartridge (14) reproduces at least two parameters of
the dental material located in the cartridge (14), and
Appeal 2021-003965
Application 15/738,940

3
wherein the at least two parameters comprise
recommended curing time and light intensity for the dental
material.

Appeal Br. 21 (Claims App.).
REJECTIONS
1. The Examiner rejects claims 1, 4–6, 16, and 17 under 35 U.S.C. § 103 as
unpatentable over Friedman2 in view of Wagner,3 Neuhausser,4 and
Ivoclar.5
2. The Examiner rejects claim 3 under 35 U.S.C. § 103 as unpatentable over
Friedman in view of Wagner, Neuhausser, Ivoclar, and Winkler.6
3. The Examiner rejects claim 8 under 35 U.S.C. § 103 as unpatentable over
Friedman in view of Wagner, Neuhausser, Ivoclar, and Janssen.7
4. The Examiner rejects claim 9 under 35 U.S.C. § 103 as unpatentable over
Friedman in view of Wagner, Neuhausser, Ivoclar, and Wilcox.8
5. The Examiner rejects claim 10 under 35 U.S.C. § 103 as unpatentable
over Friedman in view of Wagner, Neuhausser, Ivoclar, and Dragan.9

2 Friedman, US 6,312,254 B1, iss. Nov. 6, 2001.
3 Wagner et al., US 6,631,829 B1, iss. Oct. 14, 2003 (hereinafter
“Wagner”).
4 Neuhausser-Wespy, et al., DE 102013206967 A1, pub. Nov. 6, 2014
(hereinafter “Neuhausser-Wepsy”).
5 Ivoclar Vivadent, IPS Empress Direct Opaque, 2011 (hereinafter
“Ivoclar”).
6 Winkler, US 6,047,864, iss. Apr. 11, 2000.
7 Janssen et al., US 2008/0144426 A1, pub. June 19, 2008 (hereinafter
“Janssen”).
8 Wilcox et al., US 5,722,829, iss. Mar. 3, 1998 (hereinafter “Wilcox”).
9 Dragan, US 4,472,141, iss. Sept. 18, 1984.
Appeal 2021-003965
Application 15/738,940

4
6. The Examiner rejects claims 11 and 13–15 under 35 U.S.C. § 103 as
unpatentable over Friedman in view of Wagner, Neuhausser, Ivoclar,
Wilcox, and Schunk.10
7. The Examiner rejects claim 12 under 35 U.S.C. § 103 as unpatentable
over Friedman in view of Wagner, Neuhausser, Ivoclar, Wilcox, Schunk,
and Metzbower.11
8. The Examiner rejects claim 18 under 35 U.S.C. § 103 as unpatentable
over Friedman in view of Wagner, Neuhausser, and Metzbower.
DISCUSSION
With respect to claim 1, the Examiner finds that Friedman teaches an
injection device including an injector and a cartridge as required by the
claim except that Friedman does not disclose that the cartridge’s guide
element includes a sensor for a code, a code that is readable independently
of the rotational position of the cartridge, or the code including at least two
parameters of the material in the cartridge. Final Act. 6–9 (citing Friedman
Figs. 1–5). The Examiner respectively relies on Wagner, Neuhausser, and
Ivoclar to cure these deficiencies. Id.
We agree with and adopt the Examiner’s findings and conclusion
regarding the rejection of claim 1. See id.; see also Ans. 3–6. As discussed
below, we are not persuaded of any error in the rejection by Appellant’s
arguments.
Appellant states that “Wagner is directed to a completely different
type of dispensing device having two cartridges of material that are mixed

10 Schunk, US 4,127,126, iss. Nov. 28, 1978.
11 Metzbower, US 2004/0152041 A1, pub. Aug. 5, 2004.
Appeal 2021-003965
Application 15/738,940

5
and dispensed.” Appeal Br. 14. Appellant does not explain how this relates
to any error in the rejection before us. Regardless, we agree with the
Examiner that this is either an attack on the reference individually, which we
also agree is not persuasive of error, or it is an allegation that Wagner is
directed to non-analogous art. See Ans. 3–4. To the extent the latter is
being alleged, we agree with and adopt the Examiner’s response. Id. at 4.
Regarding Neuhausser, Appellant states that this reference “is even
more distant from the claimed invention” and is “not at all concerned with
dental dispensing devices” such that “one of ordinary skill in the art of
dispensing dental materials would not have led to the blood sampling test
tubes of Neuhausser.” Appeal Br. 15. We are not persuaded of error for the
reasons set forth by the Examiner. Ans. 4. Specifically, we agree that
although Neuhausser is not in the same field of endeavor as the claimed
device, it is nonetheless pertinent to the problem faced by the inventor
because “it is directed to coding information regarding the material held
inside a container, and further is concerned with making such coding
readable no matter the orientation.” Id.
Appellant also asserts that Wagner teaches a cap with a code 25,
which is separate from the cartridge and there is no way to determine the
material within the cartridge if the cap is lost. Appeal Br. 14. However, as
the Examiner explains, Wagner teaches that the relevant sensor and reader
may be at variable locations, including an embodiment in which the sensor is
on the sidewall of the container. Ans. 5.
Appellant also generally argues that “[n]one of the cited prior art is
concerned with identifying certain properties of the dental material such as
color, recommended curing time, recommended light intensity, name of
Appeal 2021-003965
Application 15/738,940

6
dental material, and viscosity” and thus, “[n]one of the references anticipate
or make obvious the identification of certain properties of the dental
material, as claimed.” Appeal Br. 15. We are not persuaded. As indicated
by the Examiner, Wagner teaches a dispensing cartridge with a marking that
is indicative of certain properties of the substance within the cartridge,
including “the container content, its durability, the producer, and other data.”
Wagner, col. 1, ll. 55–57. Thus, we agree with the Examiner that “Wagner
provides the teaching of coding/reading various material properties of a
material held within a dispensing container, as desired and/or required.”
Ans. 5. The rejection further relies on Ivoclar as teaching that the claimed
properties of curing time and light intensity are important properties to be
conveyed to a user. Id. Without further explanation from Appellant, we are
not persuaded of any error in the Examiner’s reliance on the combination of
art to show that the identification of certain properties contained in the
cartridge, as claimed, would have been obvious.
Finally, Appellant generally alleged that the Examiner relies on
hindsight because “the Examiner is taking each element of the claimed
invention and finding each element separately in the prior art.” Appeal
Br. 15. Appellant asserts that “the Examiner has nothing to support the
conclusion of combining different parts of Wagner and Neuhausser with
[Friedman] and Ivoclar to obtain the claimed invention.” Id. We are not
persuaded of error at least because Appellant does not address the
Examiner’s findings and conclusion in support of the combination proposed.
We agree with Appellant that the key to supporting a prima facie conclusion
of obviousness under 35 U.S.C. § 103 is the clear articulation of the reason
why the claimed invention would have been obvious. The Court in KSR
Appeal 2021-003965
Application 15/738,940

7
International Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007), indicated that
the analysis supporting a rejection under 35 U.S.C. § 103 should be made
explicit. The Federal Circuit has stated that “rejections on obviousness
grounds cannot be sustained by mere conclusory statements; instead, there
must be some articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness.” In re Kahn, 441 F.3d 977, 988
(Fed. Cir. 2006) (cited with approval in KSR, 550 U.S. at 418). Here, the
Examiner provides clear reasoning in the rejection regarding how the art is
being relied upon and why it would have been obvious to combine the art as
proposed. See Final Act. 6–9. Appellant merely asserts that the Examiner
has not provided a reason for the rejection without addressing the reasoning
provided in the rejection. Appellant’s conclusory assertion of hindsight,
without more, does not persuade us of error in the rejection.
Based on the foregoing, we are not persuaded of error in the rejection
of claim 1, and thus, we sustain the rejection.
Claim 18
With respect to claim 18, the Examiner determines the claim would
have been obvious in light of the teachings of Friedman, Wagner,
Neuhausser, and Metzbower. Final Act. 3–6. This rejection includes
reasoning similar to the rejection of claim 1 and relies on Metzbower as
teaching a dental cartridge including a coding system that provides
information regarding the material included within the cartridge, including
color and setting time. Id. Appellant relies on substantially the same
arguments with respect to this rejection as those relied upon regarding
claim 1. Appeal Br. 9–12. For the reasons discussed above, we are not
Appeal 2021-003965
Application 15/738,940

8
persuaded of error by those arguments here. Accordingly, we also sustain
the rejection of claim 18.
Dependent Claims
Regarding the rejections of the dependent claims, Appellant primarily
relies on the same arguments addressed with respect to the independent
claims. See Appeal Br. 13–20. We are also unpersuaded by those
arguments here.
Appellant does provide a separate argument regarding the rejection of
claim 8, arguing that Janssen “does not even mention a battery supplying
power to a display and sensor.” Appeal Br. 16. The Examiner finds that
Janssen teaches an injection devices that includes a power driven dispenser
with a trigger actuator to supply power to the device. Final Act. 10 (citing
Janssen ¶ 96). The Examiner determines that it would have been obvious to
include a power supplying actuator into the combined device of Friedman,
Wagner, Neuhausser, and Ivoclar. Id. Appellant’s argument appears to be
an argument against Janssen individually and does not persuade us of any
error in the Examiner’s findings or conclusions regarding the combination of
art. To the extent Appellant is arguing that Janssen does not disclose a
power source in the form of a battery, we disagree. See Janssen ¶ 96.
Based on the foregoing, we are not persuaded of any error in the
rejections of the dependent claims. Accordingly, we also sustain the
rejections of claims 3–6 and 8–17.
CONCLUSION
We AFFIRM the rejections of claims 1, 3–6, and 8–18.

Appeal 2021-003965
Application 15/738,940

9
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 4–6, 16,
17
103 Friedman, Wagner,
Neuhausser,
Ivoclar
1, 4–6, 16,
17

3 103 Friedman, Wagner,
Neuhausser,
Ivoclar, Winkler
3
8 103 Friedman, Wagner,
Neuhausser,
Ivoclar, Janssen
8
9 103 Friedman, Wagner,
Neuhausser,
Ivoclar, Wilcox
9
10 103 Friedman, Wagner,
Neuhausser,
Ivoclar, Dragan
10
11, 13–15 103 Friedman, Wagner,
Neuhausser,
Ivoclar, Wilcox,
Schunk
11, 13–15
12 103 Friedman, Wagner,
Neuhausser,
Ivoclar, Wilcox,
Schunk,
Metzbower
12
18 103 Friedman, Wagner,
Neuhausser,
Metzbower
18
Overall
Outcome
1, 3–6, 8–
18

Appeal 2021-003965
Application 15/738,940

10
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