Appeal No. 2006-0626 6
Application No. 09/316,990
driver to solve the problem of xerostomia, and likewise there is no
teaching, apart from applicants’ own disclosure, of modifying Michaels
with Roberts to come up with elastomeric finger elements having the
claimed physical characteristics to produce an increase in saliva from the
salivary glands.
One skilled in the art, faced with the well-recognized and long-
standing problem of xerostomia, in the absence of applicants’ disclosure,
is without any teaching which would motivate him/her to use the Michaels
toothbrush head with the Giuliani drive, and further is without any
teaching of modifying Michaels with the Roberts teaching. It is the
applicants, and the applicants alone, who have provided the critical
teaching of using elastomeric members having the particular claimed
physical characteristics in a stimulator assembly which, when vibrated at a
particular amplitude and frequency, solves the problem of xerostomia
[page 6].
This line of argument is not persuasive.
The structural modifications of the Giuliani toothbrush proposed by the examiner
in light of Michaels, Roberts and the unchallenged assertion of standard toothbrush
bristle length are reasonable on their face and, as indicated above, seem to be acquiesced
to by the appellants. The requisite motivation or suggestion for the modifications to
Giuliani lies in Michaels’ description of the advantages of using elastomeric projections
or bristles in a toothbrush environment, Roberts’ disclosure of the benefits of using
projections or finger elements having the shape, diameter and Shore A hardness specified
in claim 1 and the standard nature of the bristle or finger element length called for in the
claim.
As so modified, the Giuliani toothbrush seemingly would respond to all of the
structural limitations in claim 1. As pointed out by the appellants, however, claim 1 also
contains use and functional limitations relating to the treatment of xerostomia.
More particularly, the preamble of claim 1 broadly calls for the article recited in
the claim to be “for use in treatment of xerostomia.” It must be kept in mind, however,
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