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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 December 1, 2025 has been entered.
Response to Arguments
Applicant’s arguments, filed October 27, 2025, with respect to the rejection(s) of claim(s) 1-20 under 35 U.S.C. 103 have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made. Please direct attention to rejection below, specifically reference Riesinger which addresses the amended limitation of
wherein the first and second legs are non-cannulated. Examiner contends that the modification of the device Reitblat with the legs of Riesinger allows for engagement of a gripping end with a bone anchor or screw, which may be beneficial in certain applications where distraction of spinal bodies is desired.
Claim Rejections - 35 USC § 103
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.
Claims 1-11 and 15-20 are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent Pub. No. 2020/0129168 to Reitblat et al. in view of U.S. Patent Pub. No. 2010/0331849 to Riesinger et al.
As to Claim 1, Reitblat discloses a surgical system (110, Figs. 6-7, [0047]). The system comprises first (130) and second (134) legs [0049], a first member (122, analogous to 22 described in [0044, 0045]) defining a first passageway (seen in Fig. 7), the first leg (130) being disposed within the first passageway such that a proximal end of the first leg (130) extends through a proximal opening (through 122, [0044, 0045]) of the first passageway (best seen in Fig. 3) and a distal end of the first leg extends through a distal opening of the first passageway (best seen in Fig. 3), a second member (126, analogous to 126 described in [0044, 0045]) defining a second passageway (seen in Fig. 7), the second leg (134) being disposed within the second passageway such that a proximal end of the second leg (134) extends through a proximal opening (through 126, [0044, 0045]) of the second passageway (best seen in Fig. 3) and a distal end of the first leg extends through a distal opening of the second passageway (best seen in Fig. 3). The members (122, 126) are relatively movable to distract and/or compress vertebral tissue [0047], and the legs are each configured for slidable engagement with the members to form a dovetail connection and prevent rotation of the legs relative to the members (dovetail connection of analogous rods 30 described in [0045, 0046, 0049]).
As to Claim 2, Reitblat discloses a surgical system further comprising a toothed rack (114) engageable with the first member and the second member (Figs. 6, 7, [0047]).
As to Claim 3, Reitblat discloses a surgical system wherein the first member (122) includes a tubular arm (Fig. 6) configured to receive an engaging surface the first leg (130) such that an inner surface of the first member that defines the first passageway engages an outer surface of the first leg (engagement described in [0045, 0046, 0049]).
As to Claim 4, Reitblat discloses a surgical system wherein the first member (122) includes a tubular arm (Fig. 6) configured for disposal of the first leg (130) such that an inner surface of the first member that defines the first passageway engages an outer surface of the first leg (engagement described in [0045, 0046, 0049]), and the second member (126) includes a tubular arm (Fig. 6) configured for disposal of the second leg (134) such that an inner surface of the second member that defines the second passageway engages an outer surface of the second leg (engagement described in [0045, 0046, 0049]).
As to Claim 5, Reitblat discloses a surgical system wherein the first leg (130) includes a mating surface configured for connection with the first member (122, engagement described in [0045, 0046, 0049]), and the second leg (134) includes a mating surface configured for connection with the second member (126, engagement described in [0045, 0046, 0049]).
As to Claim 6, Reitblat discloses a surgical system wherein the mating of the first leg (130) includes an outer surface of the first leg (130) that is engageable with an inner surface of the first member (122) that defines the first passageway (engagement described in [0045, 0046, 0049]).
As to Claim 7, Reitblat discloses a surgical system wherein the mating of the first leg (130) includes a projection and the inner surface defines an opening configured to the projection (slot and dovetail connection described in [0045]).
As to Claim 8, Reitblat discloses a surgical system wherein the first member (122) extends 360 degrees (cylindrical feature described in [0045]) about a portion of the first leg (130) and the second member (126) extends 360 degrees (cylindrical feature described in [0045]) about a portion of the second leg (134).
As to Claim 9, Reitblat discloses a surgical system wherein the first member includes a longitudinal tab (32) configured for engagement with an outer surface of the first leg 130) to form a friction fit connection with the first leg (connection described in [0045]).
As to Claim 10, Reitblat discloses a surgical system wherein the legs (130, 134) each include a capturing element configured for engagement with the vertebral tissue (described in [0051]).
As to Claim 11, Reitblat discloses a surgical system wherein the capturing element includes a textured gripping surface (including pointed tip described in [0051]).
As to Claim 15, Reitblat discloses a surgical system wherein the capturing element includes a ring (of 45, Figs. 4-5) for engagement with a bone fastener (50) engageable with the vertebral tissue [0054].
As to Claim 16, Reitblat discloses a surgical system wherein the capturing element includes a connector (40) for engagement with a bone fastener (50) engageable with the vertebral tissue [0054].
As to Claim 17, Reitblat discloses a surgical system (110, Figs. 6-7, [0047]). The system comprises a longitudinal element (rack 114, Fig. 6, [0047]), first (130) and second (134) legs [0049], the legs each including an interior rail (connection described in [0045]), a first member (122, analogous to 22 described in [0044, 0045]) connected with the longitudinal element (via 120, [0048]) and defining a first passageway (seen in Fig. 7), the first leg (130) being disposed within the first passageway such that a proximal end of the first leg (130) extends through a proximal opening (through 122, [0044, 0045]) of the first passageway (best seen in Fig. 3) and a distal end of the first leg extends through a distal opening of the first passageway (best seen in Fig. 3), a second member (126, analogous to 126 described in [0044, 0045]) connected with the longitudinal element (via 124, [0048]) defining a second passageway (seen in Fig. 7), the second leg (134) being disposed within the second passageway such that a proximal end of the second leg (134) extends through a proximal opening (through 126, [0044, 0045]) of the second passageway (best seen in Fig. 3) and a distal end of the first leg extends through a distal opening of the second passageway (best seen in Fig. 3). The members (122, 126) are relatively movable to distract and/or compress vertebral tissue [0047], and the members each including a longitudinal groove configured for slidable engagement with one of the interior rails to form a dovetail connection and prevent rotation of the legs relative to the members (dovetail connection of analogous rods 30 described in [0045, 0046, 0049]).
As to Claim 18, Reitblat discloses a surgical system wherein the longitudinal element includes a toothed rack (114, [0047]).
As to Claim 19, Reitblat discloses a surgical system wherein the first member (122) includes a tubular arm (Fig. 6) configured for disposal of the first leg (130) such that an inner surface of the first member that defines the first passageway engages an outer surface of the first leg (engagement described in [0045, 0046, 0049]), and the second member (126) includes a tubular arm (Fig. 6) configured for disposal of the second leg (134) such that an inner surface of the second member that defines the second passageway engages an outer surface of the second leg (engagement described in [0045, 0046, 0049]).
As to Claim 20, Reitblat discloses a surgical system (110, Figs. 6-7, [0047]). The system comprises first (130) and second (134) legs [0049], the legs each including an engaging surface and an interior rail (formed by dovetail connection of analogous rods 30 described in [0045, 0046, 0049]), a first member (122, analogous to 22 described in [0044, 0045]) connectable with the engaging surface of the first leg (engagement described in [0045, 0046, 0049]), the first member (122) defining a first passageway (seen in Fig. 7), the first leg (130) being disposed within the first passageway such that a proximal end of the first leg (130) extends through a proximal opening (through 122, [0044, 0045]) of the first passageway (best seen in Fig. 3) and a distal end of the first leg extends through a distal opening of the first passageway (best seen in Fig. 3), a second member (126, analogous to 126 described in [0044, 0045]) connectable with the engaging surface of the second leg (engagement described in [0045, 0046, 0049]), the second member (126) defining a second passageway (seen in Fig. 7), the second leg (134) being disposed within the second passageway such that a proximal end of the second leg (134) extends through a proximal opening (through 126, [0044, 0045]) of the second passageway (best seen in Fig. 3) and a distal end of the first leg extends through a distal opening of the second passageway (best seen in Fig. 3). The legs (130 and 134) are selected for connection with the members (122, 126) such that the members are relatively movable to distract and/or compress vertebral tissue [0047], and the members each include a longitudinal groove configured for slidable engagement with one of the interior rails to form a dovetail connection and prevent rotation of the legs relative to the members (dovetail connection of analogous rods 30 described in [0045, 0046, 0049]).
As to Claims 1-11 and 15-20, Reitblat discloses the claimed invention except for wherein the first and second legs are non-cannulated, and the members are relatively movable between a first orientation in which the first member directly engages the second member and a second orientation in which the members are spaced apart from one another.
Riesinger discloses a surgical system (10, Figs. 1A and 1B, [0033]) including first (40) and second (50) legs that are non-cannulated (Figs. 1A-1D, [0035]). First and second members (102, [0050]) are relatively movable between a first orientation (Fig. 1A) in which the first member directly engages the second member [0036] and a second orientation (Fig. 1B) in which the members are spaced apart from one another [0036] in order to allow for the first and second members to be deployed in a low-profile configuration while subsequently allowing for distraction of the target tissue [0011-0012] and a leg configuration providing for engagement of a gripping end with a bone anchor or screw [0035].
It would have been obvious to one having ordinary skill in the art at the time the invention was made to modify the surgical system of Reitblat with the non-cannulated legs and member orientation modification of Riesinger in order to allow for the first and second members to be deployed in a low-profile configuration while subsequently allowing for distraction of the target tissue, and a leg configuration providing for engagement of a gripping end with a bone anchor or screw.
Claims 12-14 are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent Pub. No. 2020/0129168 to Reitblat et al. in view of U U.S. Patent Pub. No. 2010/0331849 to Riesinger et al.in view of U.S. Patent Pub. No. 2014/0024900 to Capote et al.
As to Claims 12-14, Reitblat and Riesinger disclose the claimed invention except for wherein the capturing element includes a C-shaped configuration for engagement with the vertebral tissue including laminae, wherein the capturing element includes a bracket for engagement with the vertebral tissue including a spinous process, and wherein the capturing element includes a hook for engagement with a bone fastener engageable with the vertebral tissue.
Capote discloses a surgical system including wherein the capturing element (of 290, Fig. 7) includes a C-shaped configuration (formed by 296) for engagement with the vertebral tissue including laminae [0070], wherein the capturing element includes a bracket (296) for engagement with the vertebral tissue including a spinous process [0070], and wherein the capturing element includes a hook (296) for engagement with a bone fastener engageable with the vertebral tissue [0070] in order to provide a configuration to enhance engagement with the target vertebral tissue [0022, 0070].
It would have been obvious to one having ordinary skill in the art at the time the invention was made to modify the surgical system of Reitblat and Riesinger with the capturing element modification of Capote in order to provide a configuration to enhance engagement with the target vertebral tissue.
Conclusion
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/CHRISTOPHER J BECCIA/Primary Examiner, Art Unit 3775