Appeal No. 2005-0966 5
Application No. 09/897,317
Although it is true that the tool (401) when used as disclosed in Stevens would be
inserted into a natural or man-made tooth cavity (36) in a manner similar to that seen in
Figures 2 and 3a of that patent, it is nonetheless also true that the antenna (422)
positioned at the distal end of the tool seen in Figure 5 of Stevens is sized and
“configured to be selectively positioned within a mouth of a patient adjacent at least one
exterior surface of a tooth,” as set forth in claim 1 on appeal. Thus, the antenna of
Stevens hand-held dental tool (401) is clearly capable of the use set forth in claim 1 on
appeal and any limitation on the structure of the antenna in appellant’s claim 1 would be
met by the tool and antenna seen in Figure 5 of Stevens, even though Stevens does not
expressly teach the particular recited use. In that regard, we note that the claims on
appeal are directed to a microwave dental system and hand-held tool per se and not to
a method of using such a tool to treat dental caries. Moreover, it is apparent to us that
immediately prior to its insertion into the tooth cavity depicted in Figures 2 and 3a of
Stevens, the tool (401) of Stevens and particularly the antenna (422) at the end of the
tool as seen in Figure 5 would be “positioned within a mouth of a patient adjacent at
least one exterior surface of a tooth.”
Concerning appellant’s arguments in the brief and reply brief that the antenna of
Stevens tool (401) requires two parts, a first electrode to be inserted into the drilled hole
in the interior of the tooth (e.g., element 422 of Fig. 5) and a second electrode of the
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