Appeal No. 1999-2414
Application No. 08/942,732
Accordingly, we will sustain the examiner’s rejection of claim 1 under 35 U.S.C. 102(b). Further,
in accordance with appellants’ grouping of the claims at page 3 of the principal brief, claims 8, 11 and
14 will fall with independent claim 1. Thus, the rejection of claims 1, 8, 11 and 14 under 35 U.S.C.
102(b) is sustained.
Turning now to the rejection of claims 2, 7, 9, 13, 15-21 and 23-28 under 35 U.S.C. 103 over
Weissman in view of Heath, the examiner acknowledges that Weissman fails to specify the material
used for the endodontic instrument. However, the examiner turns to Heath for its disclosure of using a
nitinol based alloy material to make endodontic instruments for the well known properties of high
flexibility and high resistance to torsional breakage. Therefore, the examiner concludes that it would
have been obvious to provide the endodontic instrument of Weissman with a nitinol based alloy material
as taught by Heath so as “to enhance the operability of the instrument.” This observation is made with
regard to claim 2. Appellants’ only response is let claim 2, along with claims 7, 18, 19 and 27, stand or
fall along with independent claim 1 [see the only full paragraph on page 8 of the principal brief].
Accordingly, the rejection of claims 2, 7, 18, 19 and 27 under 35 U.S.C. 103, is sustained.
With respect to claims 13, 15, 16, 25 and 26, all of which stand or fall together, appellants
incorporate their arguments regarding claim 1 and add the argument that this group of claims calls for
coatings applied by a method selected from the group consisting of plating, sputtering, ion beam
implantation and deposition. The examiner’s position is that these recited methods of applying the
5–
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