Appeal No. 2005-0966 8
Application No. 09/897,317
Based on the foregoing, we will sustain the examiner’s rejection of claim 1 under
35 U.S.C. § 102(b) as being anticipated by Stevens.
Regarding the examiner’s rejection of claims 2 through 5 and 14 under 35 U.S.C.
§ 103(a) as being unpatentable over Stevens, we note that given the wide range of uses
expressly set forth in the patent (e.g., col. 3, line 64 - col. 4, line 4) and the lack of any
specific guidance as to particular frequencies and power levels necessary to achieve
such uses, we must agree with the examiner that it would have been obvious to one of
ordinary skill in the art at the time of appellant’s invention to design the system of
Stevens so that it has the capability of operation at frequencies and power levels
encompassing the broad ranges set forth in the claims on appeal (i.e., at relatively low
power levels of “less than 10 watts,” at frequencies between 1 Ghz and 50 Ghz, and at
voltages in a range of between 10 and 65 volts). In that regard, we again observe that
both appellant and Stevens use microwave energy to destroy micro-organisms in the
tooth to thereby disinfect the tooth material as a direct result of the temperature rise
therein, and also to seal the tooth (e.g., by glazing of the tooth structure) to decrease its
permeability to fluids and micro-organisms, thereby requiring application of microwave
energy at similar power levels and frequencies. Moreover, as noted in In re Aller,
220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955), where the general conditions of a
claim are disclosed in the prior art, it is not inventive to discover the optimum or workable
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