Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 04/17/2026 has been entered.
Response to Arguments
Applicant's arguments filed 04/17/2026 have been fully considered but they are not persuasive. Regarding claim 21, in response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Claim Status
The 35 U.S.C. 112(a) and 35 U.S.C. 112(b) rejections have been overcome.
Claims 1-5, 7, 9, 12, 17-23, 25-26 and 28-30 are examined below.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 1-5, 7, 9, 12, 17-19, 21-23, 25-26 and 29-30 is/are rejected under 35 U.S.C. 103 as being unpatentable over DuLurio (US 2014/0039628 A1) in view of Ferreira (US 2003/00669640 A1).
Regarding claim 1, DeLurio teaches an allograft implant (10, T-PLIF implant, figs. 1A-2D) comprising:
a first plank formed of allograft (50, first member, fig. 2A, ¶ [0047]), the first plank comprising a first fusion surface (30, upper surface, fig. 2A) and a first mating surface (see annotated fig. 2C, below) opposite the first fusion surface, the first plank having a first curved side (22, curved front surface, fig. 2A) extending between the first fusion surface and the first mating surface on a first side of the allograft implant (fig. 2A) and intersecting the first fusion surface along a first curved edge (see annotated fig. 2C, below), the first fusion surface including a first series of longitudinally-extending ridges (¶ [0048]);
a second plank formed of allograft (80, second member, fig. 2A, ¶ [0047]), the second plank comprising a second fusion surface (32, lower surface, fig. 2A) and a second mating surface (see annotated fig. 2C, below) opposite the second fusion surface, the second plank having a first curved side (24, curved back surface, fig. 2B) extending between the second fusion surface and the second mating surface on a second side of the allograft implant opposite the first side of the allograft implant (fig. 2A) and intersecting the second fusion surface along a second curved edge (see annotated fig. 2C, below);
at least one transverse connector interconnecting the first plank, the second plank and the at least one interior plank (62, pins, fig. 2A, ¶ [0055]).
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DeLurio fails to teach at least one interior plank wherein the first and third mating surfaces are entirely disposed on a first plane and the second and fourth mating surfaces are entirely disposed on a second plane. However, Lee teaches an allograft implant that includes
the first mating surface disposed in a first plane (see annotated fig. 4, below),
the second mating surface disposed in a second plane (see annotated fig. 4, below),
at least one interior plank formed of allograft (12, cancellous wafer, fig. 3, ¶ [0002]), the at least one interior plank comprising a third mating surface (see annotated fig. 3, below) attached to the first mating surface such that the first plank is entirely disposed on a first side of the first plane and the at least one interior plank is entirely disposed on a second side of the first plane (fig. 4), and a fourth mating surface opposite the third mating surface (see annotated fig. 3, below) and attached to the second mating surface such that the at least one interior plank is entirely disposed on a first side of the second plane (fig. 4) and the at least one interior plank is entirely disposed on a second side of the second plane (fig. 4).
Therefore, it would have been obvious to someone of ordinary skill in the art before the effective filling date of the claimed invention to have modified the implant of DeLurio to include at least one interior plank wherein the first and third mating surfaces are entirely disposed on a first plane and the second and fourth mating surfaces are entirely disposed on a second plane as taught by DeLurio in order to adjust the size of the allograft as desired (abstract, Lee).
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DuLurio and Lee fail to teach the first curved edge, the second curved edge, and each longitudinal ridge from the first series of longitudinal ridges extending along respective parallel curves. However, Ferreira discloses an allograft spinal implant that includes the first curved edge, the second curved edge, and each longitudinal ridge from the first series of longitudinal ridges extending along respective parallel curves (see annotated fig. 2, below). Therefore, it would have been obvious to someone of ordinary skill in the art before the effective filling date of the claimed invention to have modified the implant of DeLurio to include the first curved edge, the second curved edge, and each longitudinal ridge from the first series of longitudinal ridges extending along respective parallel curves as taught by Ferreira in order to prevent mitigation and retropulsion of the implant (¶ [0062], Ferreira).
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Regarding claim 2, DeLurio further teaches the first plank, the second plank, and the at least one interior plank define at least one transverse passage (64, holes, fig. 2C), the at least one transverse passage extending through at least a portion of the first plank, at least a portion of the second plank, and at least a portion of the at least one interior plank (¶ [0055]).
Regarding claim 3, DeLurio further teaches the at least one transverse passage comprises at least one through-passage that extends from the first fusion surface of the first plank to the second fusion surface of the second plank (¶ [0055]).
Regarding claim 4, DeLurio further teaches the at least one transverse connector interconnects the first plank, the second plank and the at least one interior plank through the at least one transverse passage (¶ [0055]).
Regarding claim 5, DeLurio further teaches the at least one transverse connector is configured to be secured in the at least one transverse passage via a press fit (¶ [0055]).
Regarding claim 7, DeLurio further teaches a first end of the at least one transverse connector (see annotated fig. 2C, below) is positioned flush with the first fusion surface of the first plank (¶ [0055], fig. 2A), and a second end of the at least one transverse connector (see annotated fig. 2C, below) is positioned flush with the second fusion surface of the second plank (¶ [0055]).
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Regarding claim 9, DeLurio further teaches the first end of the at least one transverse connector comprises a surface (see annotated fig. 2C, below) including at least one longitudinally-extending ridge portion (¶ [0048]) configured to align with at least one longitudinally-extending ridge from the first series of longitudinally-extending ridges to form a continuous pattern of longitudinally-extending ridges (fig. 2A shows the projections on the pins blend with the projection on the surface, it would be an obvious design choice for the ridges on the pins to blend with the rides on the surface as well).
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Regarding claim 12, DeLurio further teaches the first plank and the second plank are arc-shaped (figs. 2A-2B).
Regarding claim 17, DeLurio further teaches the at least one transverse connector is formed of allograft (¶ [0047]).
Regarding claim 18, DeLurio further teaches the at least one transverse connector comprises a first transverse pin (see annotated fig. 2C, below) and a second transverse pin (see annotated fig. 2C, below) extending parallel to the first transverse pin (¶ [0058], fig. 2C).
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Regarding claim 19, DeLurio further teaches the at least one transverse connector and the at least one transverse passage are cylindrical (¶ [0055]).
Regarding claim 21, DeLurio further teaches a set of transverse connectors including the at least one transverse connector (1st and 2nd pin, see annotated fig. 2C, below), the set of transverse connectors interconnecting the first plank, second plank and the at least one interior plank (¶ [0055]), a first transverse connector from the set of transverse connectors interconnecting the first plank and the at least one interior plank (¶ [0055]), a second transverse connector from the set of transverse connectors interconnecting the second plank and the at least one interior plank (¶ [0055]), an end of the first transverse connector disposed within a portion of a first transverse passage defined by the at least one interior plank (¶ [0055]), an end of the second transverse connector disposed within a portion of a second transverse passage defined by the at least one interior plank (¶ [0055]). Further, it would be an obvious design choice when combining DeLurio and Lee for an end of the first transverse connector to be disposed within a portion of a first transverse passage defined by the at least one interior plank, and for an end of the second transverse connector to be disposed within a portion of a second transverse passage defined by the at least one interior plank since applicant has not disclosed the depth of which the connectors penetrate the implant to solve any stated problem or is for any particular purpose and it appear the invention would perform equally as well.
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Regarding claim 22, DeLurio fails to teach first mating surface contacts the third mating surface, and the second mating surface contacts the fourth mating surface. However, Lee further teaches the allograft implant is configured to be assembled by vertically translating the first plank relative to the at least one interior
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plank such that the first mating surface contacts the third mating surface, and by translating the second plank relative to the at least one interior plank such that the second mating surface contacts the fourth mating surface (figs. 1 and 3-4). The first mating surface contacts the third mating surface, and the second mating surface contacts the fourth mating surface as seen in fig. 4 and thus meet the final structure necessitated by the product-by process limitation (MPEP 2113). Therefore, it would have been obvious to someone of ordinary skill in the art before the effective filling date of the claimed invention to have modified the implant of DeLurio to include first mating surface contacts the third mating surface, and the second mating surface contacts the fourth mating surface as taught by Lee in order to adjust the size of the allograft as desired (abstract, Lee).
Regarding claim 23, DeLurio further teaches the second fusion surface includes a second series of longitudinally-extending ridges (¶ [0048]).
Regarding claim 25, DeLurio further teaches the first plank has a second curved side (24, curved back surface, fig. 2B) extending between the first fusion surface and the first mating surface on a second side of the allograft implant (fig. 2A) and intersecting the first fusion surface along a third curved edge (see annotated fig. 2C, below).
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Regarding claim 26, DeLurio and Lee fail to teach the first curved edge, the second curved edge, each longitudinal ridge from the first series of longitudinal ridges, and the third curved edge extend along respective parallel curves. However, Ferreira further discloses the first curved edge, the second curved edge, each longitudinal ridge from the first series of longitudinal ridges, and the third curved edge extend along respective parallel curves (see annotated fig. 2, below, fig. 3 shows the first series of ridges and the edges are in parallel). Therefore, it would have been obvious to someone of ordinary skill in the art before the effective filling date of the claimed invention to have modified the implant of DeLurio and Lee to the first curved edge, the second curved edge, each longitudinal ridge from the first series of longitudinal ridges, and the third curved edge extend along respective parallel curves as taught by Ferreira in order to prevent mitigation and retropulsion of the implant (¶ [0062], Ferreira).
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Regarding claim 28, DeLurio fails to teach the orientation of the ridges and the second ridge being the largest. However, Ferreira further teaches the first series of longitudinally-extending ridges includes a first longitudinally-extending ridge (see annotated fig. 2, below), a second longitudinally-extending ridge (see annotated fig. 2, below), and a third longitudinally-extending ridge (see annotated fig. 2, below), the first longitudinally-extending ridge disposed closer to the first curved edge than the second longitudinally-extending ridge (fig. 2), the second longitudinally-extending ridge disposed closer to the first curved edge than the third longitudinally-extending ridge (fig. 2), and the second longitudinally-extending ridge having a length greater than a length of the first longitudinally-extending ridge and a length of the third longitudinally-extending ridge (Since the ridges are parallel with the curvature of the edges and the implant has a rounded bean/like shape on the narrow ends (26, 28) the second longitudinally-extending ridge that is centrally located will be the longest due to it extending from the apexes of the narrow ends). Therefore, it would have been obvious to someone of ordinary skill in the art before the effective filling date of the claimed invention to have modified the implant of DeLurio and Lee to have the orientation of the ridges and the second ridge being the largest as taught by Ferreira in order to prevent mitigation and retropulsion of the implant (¶ [0062], Ferreira).
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Regarding claim 30, DuLurio further teaches the at least one interior plank includes a first curved side extending between the third mating surface and the fourth mating surface on the first side of the allograft implant (the at least one interior plank of Lee would conform to the same bean shape of DeLurio and would have the same first curved side as curved front surface 22) and a second curved side extending between the third mating surface and the fourth mating surface on the second side of the allograft implant (the at least one interior plank of Lee would conform to the same bean shape of DeLurio and would have the same second curved side as curved back surface 24), the at least one interior plank defining an opening extending from the first curved side to the second curved side (¶ [0057]).
Claim(s) 28 is/are rejected under 35 U.S.C. 103 as being unpatentable over DuLurio (US 2014/0039628 A1) in view of Ferreira (US 2003/00669640 A1) as applied to claim 1 above, and further in view of Randall (US 2005/0240267 A1).
Regarding claim 28, DeLurio further teaches the at least one transverse connector comprises a first transverse pin (see annotated fig. 2C, below) and a second transverse pin (see annotated fig. 2C, below).
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DeLurio in view of Lee and Ferreira fails to teach the first and second pins are non-parallel. However, Randall discloses an allograft implant that includes a first transverse pin and a second transverse pin extending non-parallel to the first transverse pin (figs. 7-8, ¶ [0084]-[0085]). Therefore, it would have been obvious to someone of ordinary skill in the art before the effective filling date of the claimed invention to have modified the pin orientations of DeLurio, Lee and Ferreira to include the first and second pins are non-parallel as taught by Randall in order to provide an additional locking feature (¶ [0085], Randall).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TERESA M DUDDEN whose telephone number is (571)272-0435. The examiner can normally be reached Monday - Friday 7:30 am - 5:00 pm EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, THOMAS BARRETT can be reached at (571) 272-4746. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/T.M.D./Examiner, Art Unit 3774
/THOMAS C BARRETT/SPE, Art Unit 3799
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