2021000791 (P.T.A.B. Aug. 11, 2021)

JOSHUA CHEETHAM

Patent Trials and Appeals BoardAug 11, 2021

2021000791 (P.T.A.B. Aug. 11, 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. 14/092,752 11/27/2013 JOSHUA JAMES CHEETHAM 4418 25628 7590 08/11/2021 William H. Holt Law Offices of William H. Holt 14584 West Dartmouth Avenue Lakewood, CO 80228 EXAMINER APONTE, MIRAYDA ARLENE ART UNIT PAPER NUMBER 3772 MAIL DATE DELIVERY MODE 08/11/2021 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JOSHUA JAMES CHEETHAM Appeal 2021-000791 Application 14/092,752 Technology Center 3700 Before BENJAMIN D. M. WOOD, BRETT C. MARTIN, and LISA M. GUIJT, Administrative Patent Judges. MARTIN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 30–39. 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(a). Appellant identifies the real party in interest as SDI Limited, Inc. Appeal Br. 1. Appeal 2021-000791 Application 14/092,752 2 CLAIMED SUBJECT MATTER The claims are directed to a dental container. Claim 30, reproduced below, is illustrative of the claimed subject matter: 30. A dental container arranged to contain a liquid and a powder material initially in separated condition, said container comprising an outer central body having a proximal end and a distal end, a liquid receptacle having a closed inner end and an open outer end mounted at said proximal end of said outer central body and a separable nose portion mounted at said distal end of said outer central body initially for mixing purposes but which is arranged to be manually separated from the remainder of said container after mixing, a plunger mounted in said open outer end of said liquid receptacle, said plunger being straight walled and protruding out of the back of said container, said closed inner end of said liquid receptacle being formed by a wall having a weakened section, said distal end of said outer central body and said nose portion being arranged to contain said powder material, the arrangement being such that depression of said plunger causes said wall of said liquid receptacle to be ruptured at said weakened section so that said liquid and said powder material are contacted for mixing together to form a dental paste, said nose portion having an outer wall with a closed outer end and an open inner end, wherein said outer central body comprises an intermediate annular inwardly extending ridge which provides an internally projecting step for engagement with said inner end of said liquid receptacle so that said liquid receptacle is prevented from moving into said outer central body any further than said ridge and wherein said nose portion has a wall with a thin inner portion arranged to engage snugly within a cylindrical portion of said distal end of said outer central body. REFERENCES The prior art relied upon by the Examiner is: Appeal 2021-000791 Application 14/092,752 3 Name Reference Date Baumann US 3,731,853 May 8, 1973 Vlock US 4,863,017 Sept. 5, 1989 Peuker US 2005/0252795 A1 Nov. 17, 2005 Cheetham US 2011/0056853 A1 Mar. 10, 2011 REJECTIONS Claims 30–32, 35, and 37 stand rejected under 35 U.S.C. § 103 as being unpatentable over Baumann, Vlock, and Cheetham. Non-Final Act. 2. Claims 34 and 36 stand rejected under 35 U.S.C. § 103 as being unpatentable over Baumann and Vlock. Non-Final Act. 8. Claims 33 and 39 stand rejected under 35 U.S.C. § 103 as being unpatentable over Baumann, Vlock, Cheetham, and Peuker. Non-Final Act. 10. Claim 38 stands rejected under 35 U.S.C. § 103 as being unpatentable over Baumann, Vlock, and Peuker. Non-Final Act. 11. OPINION The Argument portion of Appellant’s Appeal Brief comprises one page, and Appellant submitted no Reply Brief. The closest thing to an argument Appellant presents is as follows: Regarding claim 34, Baumann et al, does not show applicant’s plunger recited in the last phase of claim 34 wherein the nose portion (20) has a wall with a thin inner portion (44) arranged to engage snugly within a cylindrical portion (38) of said distal end of said outer central body (12). Appeal Br. 3. Appellant does not meaningfully explain why the variously recited elements are not met by the Examiner’s combination. Merely reciting the language of the claims and asserting that the prior art reference Appeal 2021-000791 Application 14/092,752 4 or combination does not disclose or teach each claim limitation is insufficient. See 37 C.F.R. § 41.37(c)(vii) (“A statement which merely points out what a claim recites will not be considered an argument for separate patentability of the claim.”); see also In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“[W]e hold that the Board reasonably interpreted Rule 41.37 to require more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art.”). Appellant next presents a series of case law quotes and citations without any application of the law to the facts at issue. Appeal Br. 3. Without a proper analysis, these citations do not offer any meaningful rebuttal to the Examiner’s rejections. We agree with the Examiner that “it is not clearly understood from the Brief what is the Appellant[’s] disagreement with the examination.” Ans. 4. The Examiner then proceeds to explain in detail how the prior art applies and why the combinations used in the rejection are proper. We also note that Appellant provides no argument against any of the secondary references used in the rejections. Accordingly, we are not persuaded of error. CONCLUSION The Examiner’s rejections are affirmed. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 30–32, 35, 37 103 Baumann, Vlock, Cheetham 30–32, 35, 37 34, 36 103 Baumann, Vlock 34, 36 Appeal 2021-000791 Application 14/092,752 5 33, 39 103 Baumann, Vlock, Cheetham, Peuker 33, 39 38 103 Baumann, Vlock, Peuker 38 Overall Outcome 30–39 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). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED