DETAILED ACTION
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 November 21, 2025 has been entered.
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.
Claims 1, 5, 6, 17, and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Glerum et al. (US 2014/0039622 A1) in view of Butler et al. (US 2017/0224505 A1).
Claim 1. Glerum discloses a spinal fusion cage (device 10) for anterior lumbar interbody fusion (device 10 of Glerum can be used in such a procedure if so desired), comprising:
a first end plate (endplate 16) and a second end plate (endplate 14) which are configured to be in contact with adjacent vertebral bodies, wherein the first end plate has a first window (through opening 44) formed at a central portion and the second end plate has a second window (through opening 44) formed at a central portion;
a distal movable block (central ramp 18) connected to be movable relative to distal portions of the first end plate and the second end plate;
a proximal movable block (driving ramp 300) connected to be movable relative to proximal portions of the first end plate and the second end plate;
an adjustment member (actuator assembly 200) capable of adjusting the distance between the distal movable block and the proximal movable block by adjusting the distance between the proximal movable block and the distal movable block by rotation; and
a vertical guide portion (central ramped portions 402) disposed in the first end plate and the second end plate, to support a load in the longitudinal direction or width direction of the first end plate and the second end plate (note that central ramped portions 402 cooperate with central ramped portions 432 of central ramp 18 to provide the support),
wherein a block slider (oblique surface 358 on driving ramp 300 is the block slider on the proximal movable block; see Fig. 56 inset for the block slider on the distal movable block) is formed on each of the distal movable block and the proximal movable block, and a plate slider (surfaces on endplates 14 and 16 that are in contact with the identified surfaces of driving ramp 300 and central ramp 18 that constitute the block sliders) slidable relative to the block slider is formed on each of the first and second end plates, and the maximum distance of the block slider of the distal movable block from the axis of the adjustment member in the width direction (see Fig. 56 inset) is longer than the maximum distance of the block slider of the proximal movable block from the axis of the adjustment member in the width direction (see Fig. 57 inset) (Figs. 50-57; paras. 0140-0159).
Claim 5. Glerum discloses wherein the adjustment member has a threaded portion (extension 404 is threaded; see para. 0150) screw-coupled to the distal movable block on an end thereof (extension 404 is received in bore 418), and a pin place (groove in head portion 324 that receives set screw 438 as shown in Fig. 51) fixed to be rotatable relative to the proximal movable block on the other end thereof, wherein a pin member (set screw 438) is positioned in the pin place through the proximal movable block (see Fig. 51) (Figs. 50-57; paras. 0140-0159).
Claim 6. Glerum discloses wherein the vertical guide portion has a first vertical guide (central ramped portions 402 extend downward from endplate 16 toward endplate 14) formed in a thickness direction of the first end plate or the second end plate, and a second vertical guide (central ramped portions 402 extend upward from endplate 14 toward endplate 16) formed in a thickness direction of the other of the first end plate or the second end plate to be slidable with the first vertical guide, wherein two pairs of the vertical guides are arranged, one pair of the vertical guides is arranged on one side of the first end plate and the second end plate in the width direction, and the other pair of the vertical guides is arranged on the other side of the first end plate and the second end plate in the width direction (Figs. 50-57; paras. 0140-0159).
Claim 17. Glerum discloses wherein a through-hole (through openings 44) is disposed on the side portion of the first and second end plates (through openings 44 are disposed on side surfaces 40 of endplates 14 and 16; note that side surface 40 of endplate 14 is a lower side portion of endplate 14 and side surface of endplate 16 is an upper side portion of endplate 16) (Figs. 50-57; paras. 0140-0159).
Claim 18. Glerum discloses wherein a center groove (see U-shaped groove formed at second end 41 of endplate 14 as shown in Fig. 55) is disposed at an end of the proximal side of the first or second end plate (Figs. 50-57; paras. 0140-0159).
[AltContent: textbox (Maximum Width)][AltContent: textbox (Block Slider)][AltContent: textbox (Maximum Width)]
Glerum fails to disclose wherein the maximum distance of the block slider of the proximal movable block in the width direction is shorter than the maximum distance of the first window and the second window in the width direction and wherein both widthwise ends of the block slider of the proximal movable block are located within the width of the first window and the second window (claim 1).
Butler teaches a spinal fusion cage (implant 310) comprising: a first end plate (upper support 318) having a first window (see Fig. 49 inset) formed at a central portion; a second end plate (lower support 320) having a second window (see Fig. 49 inset) formed at a central portion; a distal movable block (rear portion 314); a proximal movable block (front portion 312) having a block slider (see Fig. 49 inset) that engages with a plate slider (see Fig. 49 inset) formed on each of the first and second end plates; and an adjustment member (control member 316) for adjusting the distance between the proximal and distal movable blocks; wherein the maximum distance (see Fig. 49 inset) of the block slider of the proximal movable block in the width direction is shorter than the maximum distance (see Fig. 49 inset) of the first window and the second window in the width direction (Figs. 47-49).
[AltContent: textbox (Maximum Distance of
First and Second Windows)][AltContent: textbox (Maximum Distance
of Block Slider)][AltContent: textbox (Block Slider within
Plate Slider)][AltContent: textbox (First and Second Windows)]
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the spinal fusion cage of Glerum such that the maximum distance of the block slider of the proximal movable block in the width direction is shorter than the maximum distance of the first window and the second window in the width direction (claim 1), as suggested by Butler, since such a modification would have involved a mere change in the size of a component. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955). In view of such a modification and because (a) the block slider (oblique surface 358) of the proximal movable block (driving ramp 300) of Glerum is centered in the width direction of the proximal movable block (see Figs. 50 and 57), (b) the first window (through opening 44) of the first end plate (endplate 16) and the second window (through opening 44) of the second end plate (endplate 14) of Glerum are centered in the width direction of the first and second endplates (see Figs. 53 and 55), and (c) the proximal movable block (driving ramp 300) of Glerum is centered in the width direction with respect to the first end plate (endplate 16) and the second end plate (endplate 14) (see Fig. 54), it is obvious that both widthwise ends of the block slider of the proximal movable block would be located within the width of the first window and the second window (claim 1).
Allowable Subject Matter
Claims 2-4, 7-16, and 19-25 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Response to Arguments
Applicant's arguments filed November 21, 2025 have been fully considered but they are not persuasive.
Applicant argues that Glerum fails to disclose a proximal movable block having a slider positioned such that both widthwise ends are located within the width of the window (see pg. 10) and that Butler fails to disclose a proximal movable block having a slider positioned such that both widthwise ends are located within the width of the window (see pg. 11). 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). As stated in the rejection above (see pg. 8), (a) due to the modification to Glerum to modify the spinal fusion cage such that the maximum distance of the block slider of the proximal movable block in the width direction is shorter than the maximum distance of the first window and the second window in the width direction as taught by Butler and (b) due to the block slider of the proximal movable block of Glerum being centered in the width direction of the proximal movable block (see Figs. 50 and 57), the first window of the first end plate and the second window of Glerum of the second end plate being centered in the width direction of the first and second endplates (see Figs. 53 and 55), and the proximal movable block of Glerum being centered in the width direction with respect to the first end plate and the second end plate (see Fig. 54), it is obvious that both widthwise ends of the block slider of the proximal movable block would be located within the width of the first window and the second window as recited in claim 1.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JULIANNA N HARVEY whose telephone number is (571)270-3815. The examiner can normally be reached Mon.-Fri. 8:00am-5:00pm EST.
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/JULIANNA N HARVEY/Primary Examiner, Art Unit 3773