Tuesday, March 07, 2017 Pre-Exam 2017: our answers to the toothbrush questions (claims analysis part)

The claims analysis part of the Pre-Exam 2017 (paper here: English, French and German) was about toothbrushes for human use.

The client's application described that a drawback of known toothbrushes is that the users need to be trained by dentists in order to achieve optimum dental plaque removal. Remaining dental plaque can give rise to dental caries, which is highly undesirable.
The invention is presented as being based on the surprising finding that the amount of dental plague removal can be increased by transmitting additional vibrations to the bristles of the toothbrush, generated by an electric vibrator inside the brush body, preferably in the handle together with a controller and a battery. The controller acts as a switching device for selectively supplying electric energy from the battery to an electrically operated element, because the controller connects and disconnects the vibrator from the battery.
Four embodiments are described and shown in four figures. In some embodiments, the controller uses a push button to turn on&off the vibrations; in other embodiments, a pressure sensor in the bristle zone is used. Some embodiments have a replaceable brush and a connection section to connect it to the handle. A LED can be incorporated to emphasize the technical character, which makes users think that the toothbrush has a higher cleaning efficiency.
The toothbrushes must have a length of less than 30 cm, or between 18 and 25 cm when having a replaceable brush head for ergonomic reasons.



Two prior art documents were found by you (D1, D2); two more prior art documents were found by the EPO (D3, D4):

• D1 describes a tooth brush designed to make a user, particularly an adult, aware of applying an excessive force while cleaning their teeth, which can seriously irritate the gums of the user. It has a pressure sensor which transmits a signal to a controller. As long as the measured pressure is below a pressure limit value, the controller supplies energy to a green LED to inform the user the the brush does not harm his gums. If the measured pressure exceeds the pressure limit value, the energy supply is switched to a red LED. The toothbrush has a length of 24 cm.
• D2 describes an improved toothbrush for children. The bodies of toothbrushes for children are generally made from thermoplastic materials, such as a list of four specific materials; the bodies are made from three specific materials (a second list). As long as a child hold the toothbrush in his hand, a sensor transmits a signal to a controller which energizes a music module. It plays a melody over a loudspeaker, the vibrations of which are converted intro vibrations of the air. Has a replaceable brush. A toothbrush for children must have a total length of 13, 14,15 or 16 cm (a third list) in order to allow small children to hold the brush.
• D3 relates to toothbrushes for human adults, and aims to provide toothbrushes which prevent that dental plaque remains on the teeth. It is based on the surprising effect that the amount of dental plaque removal can be increased by transmitting additional vibrations to the bristles of the toothbrush. The vibrations are generated by an electric vibrator in the toothbrush. The location of the vibrator directly below the bristles is mentioned to be required for optimum transmission of vibrations to the bristles. It shows a toothbrush having a total length of 24 cm.
• D4's opening paragraph describes that zoo keepers need to clean the teeth of dangerous zoo animals such as tigers and lions on a regular basis. It has been surprisingly discovered that toothbrushes keep zoo animals calm during dental cleaning. Thereby, the zoo keeper's risk of being hurt during dental cleaning of dangerous zoo animals is significantly reduced. The toothbrush shown has a replaceable brush head, a push-button allowing a controller to act as switching means for turning on/off a vibrator located inside the brush head below the bristles. The minimum total length of the toothbrush is 40 cm, or the brush head has a much longer neck, in order to establish a safe distance between the animal and the zoo keeper.
• D4's last paragraph describes that a long brush with minimum total length of 40 cm can be used for other purposes (than cleaning the teet of dangerous zoo animals). In a second embodiment , the vibrator is located in the handle of the brush, whereby the vibrations are perceived as pleasant when the brush is used for scratching a human's back while taking a shower (with or without the lion?).

The dates of the application (filed 1 March 2014), and the prior art documents D1 (published Nov 2013), D2 (published October 2013), D3 (published Nov 2013) and D4 (published Nov 2013) are given: all prior art documents D1- D4 are full Art.54(2) prior arts, and thus taken into account for novelty as well as inventive step.

The questions were related to three claim sets:

• Q11-13 to a first claim set composed of an independent claim and one dependent claim directed to a body of a toothbrush for increased dental plaque removal, 
• Q14-17 to a second claim set composed of one independent claim and 4 dependent claims directed to a brush with a body comprising an electrically operated element, the electrically operated element being an electrically operated vibrator, 
• Q18-20 related to one independent claim directed to a toothbrush with a body, [...], a connection section, the electrically operated element being an electrically operated vibrator, the connection section comprising a connection hole and a connection protrusion, and the toothbrush having a total length of between 18 and 25 cm.

Tested is scope of the claims, distinguishing features, novelty, claim feature issues such as "for example", extension of subject-matter including introduction of a disclaimer (not allowed, D4 is not an Art.54(3) -- here it became clear why the dates were given), technical effects, formulation of two-part form, inventive step aspects such as closest prior art (surprisingly few questions about CPA), considering to combine, obviousness of combination.

Our provisional answers:

11: T T T T
12: T F F F
13: T F F T
14: T T T F
15: F F F F
16: F F F F
17: T F T T *
18: T F T F
19: F T F F **
20: F F F F ***

Remarks:

17: Amending the independent claim may give rise to Art.123(2) problems in the independent claim itself, or to the resulting dependent claims. The question does not specify what is done with the dependent claims while amending claim II - so, it is assumed they are untouched, and a check is required whether they are effected by the amendment to the independent claim.

* 17.1: all embodiments show a push button together with a controller for selectively supplying energy from the battery to the electrically operated element. [004] reads "In the present invention, the controller acts as a switching means for selectively supplying energy from the battery to the electrically operated element", So, it seems to violate Art.123(2) when specifying that the push button does so, as it seems the the controller does the job. However, Claim II.3 filed with the application explicitly says that the switching means can be a push button. Thus, Claim II.3 limited to the example therein is exactly the proposed amendment, and thus not violating Art.123(2). There seem to be no Art.123(2) problems with the remaining dependent claims either. (Note that Art.84 objections may arise as an essential element -the controller- is missing, due to the conflict with [004], as well an an unclarity between newly amended II and II.4; also note that embodiment 3 is not covered the amended claim.)

17.4: [004] says "Preferably, the electrically operated vibrator is located in the handle together with a controller and a battery". In all four embodiments, the electrically operated vibrator is located in the handle, together with controller and a battery. so both need to be in the claim too. The battery was already in Claim II, but not specified to be in the handle, and the controller is missing, So, the amendment would indeed be an intermediate generalisation.

** 19.2: initially answered F as I considered the vibrator in the neck of D3 to hamper the combination with the connection section of D2 , as the electric cable would need to go across. (D2 would be combined with D3 to allow the user to replace a worn-out brush head). But as some candidates pointed out, embodiment 3, D3 and D4 see no problem in getting electrical cables across such connection. I change the answer to T (7 March, 15:20)

*** 20.2: Although it is tempting to combine the two embodiments and adapting the first embodiment (a toothbrush) to replace its vibrator in the brush head the vibrator in the handle as shown in the second embodiment, this combination is not suggested not is there another incentive, The argumentation depends on how to interpret the "one's" in the statement. If it means brushing "a human's teeth" then the statement is F for several reasons: the first embodiment of D1 relates a toothbrush but for zoo animals, not humans, and it has the vibrator in the brush head, not in the handle; the second embodiment relates to a brush for human use, with the vibrator in the handle, but that is not a toothbrush but a brush for scratching a human's back; they relate to different uses (animals vs humans) and the second embodiment relates to a long brush for different purposes (different from teeth cleaning), so there is no incentive to combine the two embodiments.  If the "one's teeth" includes non-human teeth, only the last argument remains.

We look forward for your comments.

Note: the legal questions are discussed here, and general impressions are here.

(c) DeltaPatents 2017