Appeal No. 2005-1431
Application 09/442,070
The claims in question recited a tooth bleaching method employing a composition
containing, inter alia, "carboxypolymethylene," a term the district court construed, without
objection by the parties, as limited to "a slightly acidic vinyl polymer with active carboxyl
groups" (emphasis added). Ultradent Products, Inc. v. Life-Like Cosmetics, Inc., 924 F.Supp.
1101, 1109, 39 USPQ2d 1969, 1975-76 (D. Utah 1996). The Munro patent discloses and claims
a process for bleaching teeth using a dental splint (i.e., tray) that is filled with a bleaching
composition and applied to the tooth surfaces.30 Munro does not claim credit for inventing the
bleaching composition, instead claiming to "have discovered that peroxide compounds, which
have been commercially available for a number of years and used by professionals and others for
a wide variety of purposes have an unexpected result when used in a very specific manner."
Munro, col. 1, l. 66 to col. 2, l. 2. According to Munro,
[t]he commercial product PROXIGEL, described in U.S. Pat. No.
3,657,413 issued on Apr. 18, 1972 to M. W. Rosenthal, which patent is hereby
incorporated herein by reference, is one attempt to overcome the problems of
hydrogen peroxide by using urea peroxide in a slowly dispersable glycerol based
solvent. This combination, according to the above-mentioned patent, improves
sustained nascent oxygen release. It is the nascent oxygen release which is
believed to cause the antiseptic and/or cleansing effect of the peroxide.
30 Claim 1 of the Munro patent reads:
1. The process of brightening teeth comprising the steps of:
obtaining a substantially liquid tight splint to cover the tooth or teeth to be
brightened;
placing within said splint a brightener agent at the location within said splint
associated with the tooth surfaces to be brightened; and
placing the splint containing said brightener agent around the tooth or teeth to be
brightened.
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