Detailed Action
This office action for US application number 17/929,924 evaluates the claims as filed on July 16, 2026.
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 July 16, 2026 has been entered.
Response to Arguments
Applicant's arguments filed July 16, 2026 have been fully considered but they are not persuasive. The rejections in this office action have been amended to address the amended claims. Examiner directs Applicant to the rejection below for a more in-depth description of the limitations.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claim 1 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 4 of U.S. Patent No. 8,814,918, application 13/366,886. Although the claims at issue are not identical, they are not patentably distinct from each other because the instant claim is anticipated by those of U.S. Patent No. 8,814,918 as identified in the below table, where differences in claim language are shown in bold.
Instant claim 1
U.S. Patent No. 8,814,918 claim 1 and 4
A fracture fixation plate comprising: a substantially rigid plate including an elongated body portion having proximal and distal ends; said plate including a bone contacting surface and an opposite surface;
A fracture fixation plate for application to the volar surface of the distal radius, said plate comprising: a substantially rigid plate including an elongated body portion having proximal and distal ends and defining a longitudinal body axis; said plate including a bone contacting surface and an opposite surface
said plate including a plurality of head portions independently connected to the distal end of said body portion by a corresponding plurality of neck portions;
said plate including an ulnar head portion and a radial head portion, each of said head portions independently connected to the distal end of said body portion by a corresponding neck portion; each of said neck portions being narrower than the widest part of its corresponding head portion; each of said neck portions disposed about a neck axis therethrough, extending distally from said distal end of said body portion to its corresponding head portion;
each of said head portions including a plurality of threaded holes adapted to receive bone fasteners; each of said threaded holes defining a bone fastener axis;
each of said head portions including a plurality of threaded holes adapted to receive bone fasteners; each of said threaded holes defining a bone fastener axis;
said body portion including at least one anchoring hole;
said body portion including at least one anchoring hole; wherein each of said neck axes corresponding to each said neck portions diverges distally from each adjacent neck axis defining an angle therebetween; wherein each said angle defined between each of said neck axes and any other adjacent neck axis is an acute angle;
wherein at least one head portion of the plurality of head portions is substantially triangle shaped; wherein a bone contacting surface of said body portion is cylindrically concave in relation to a longitudinal axis of the body portion; and wherein a bone contacting surface of at least one of the head portions is concave and a bone contacting surface of at least one other of the head portions is substantially flat.
wherein said ulnar head portion is substantially square-shaped and said bone contacting surface of said ulnar head portion is spherically concave to conform to the ulnar metaphyseal surface of the volar aspect of a distal radius bone; wherein said radial head portion is substantially triangle-shaped and said bone contacting surface of said radial head portion is flat to conform to the radial metaphyseal surface of the volar aspect of a distal radius bone, and wherein said ulnar head portion and said radial head portion, in combination, are adapted to substantially cover the volar surface proximal to the watershed line of the distal radius bone.
wherein said bone contacting surface of said body portion is longitudinally cylindrically concave.
Allowable Subject Matter
Claims 7, 8, 10, and 11 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.
Claims 6 and 12 are allowed.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to AMY R SIPP whose telephone number is (313)446-6553. The examiner can normally be reached on Mon - Thurs 6-4.
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 or telephone the Examiner.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Kevin Truong can be reached on (571)272-4705. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/AMY R SIPP/Primary Examiner, Art Unit 3775
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