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 .
Response to Amendment
Applicant’s amendments to the claims filed on 05/07/2026 are acknowledged and entered. According to the Amendments to the claims, claims 1 and 12-16 has /have been amended, claims 5-11 and 17 has /have been cancelled, claims 18-19 has /have been added. Accordingly, claims 1-4, 12-16 and 18-19 are pending in the application. An action on the merits for claims 1-4, 12-16 and 18-19 are as follow.
The previous 101 Claim Rejections, 112 (b) Claim Rejections, 112 (d) Claim Rejections and objections to the specification are withdrawn in accordance with applicant's amendment to the claims and the specification with no new matter added.
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 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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.
Claims 1-4, 12-16 and 18-19 is/are rejected under 35 U.S.C. 103 as being unpatentable over BAST AN, F. E. et al., (Spray drying of hydroxyapatite powders: The effect of spray drying parameters and heat treatment on the particle size and morphology, Journal of Alloys and Compounds, 10 July 2017, vol. 724, pp.586-596) in view of KITAMURA et al. (WO 2019/112001 A1).
Regarding Independent Claim 1, BAST AN, F. E. et al. discloses a plasma spraying material comprising a hydroxyapatite powder (see Title and Introduction) having an average particle size (D50) of 15 to 40 μm (see details in Table 4 at P 6/11: D50 within a range of 38.47-31.67, shown between 750 0C and 1000 0C), wherein the hydroxyapatite powder has:
(a) a pore volume of 0.01 to 0.30 cc/g at a pore size of 2000 nm or less (pore volume within a range of 0.35006-0.00027 and details in Table 4 and Fig. 6A at P 6/11: pore size of 2000 nm or less; all shown between 750 °c and 1000 °c, details in Table 4 and Fig 6A; see MPEP 2112.01 II).
BAST AN, F. E. et al. disclose the invention as claimed and as discussed above; except does not disclose: (b) a pore volume of 0.20 to 0.80 cc/g at a pore size of 2000 nm or more, as measured by mercury porosimetry, and (c) a pore volume of 0.001 to 0.003 cc/g, as measured by gas adsorption method.
KITAMURA et al. teach a hydroxyapatite powder (A plasma spraying material containing hydroxyapatite powder, [0009]) has: (b) a pore volume of 0.20 to 0.80 cc/g at a pore size of 2000 nm or more, as measured by mercury porosimetry (has a pore volume of 0.01 to 0.5 cc/g at a pore diameter of 5000 nm or less, as measured by the mercury intrusion method. [0009]), and (c) a pore volume of 0.001 to 0.003 cc/g, as measured by gas adsorption method (the pore volume measured by the gas adsorption method… more preferably 0.001 to 0.01 cc/g, [0034]).
Therefore, it would have been obvious before the effective filling date of the claimed invention to one of ordinary skill in the art to modify BAST AN, F. E. et al. with KITAMURA et al.’s further teaching of (b) a pore volume of 0.20 to 0.80 cc/g at a pore size of 2000 nm or more, as measured by mercury porosimetry, and (c) a pore volume of 0.001 to 0.003 cc/g, as measured by gas adsorption method.; because KITAMURA et al. teach, in Para. [0001], of providing an excellent plasma spraying material that can form a hydroxyapatite coating with high adhesive strength on a substrate such as a metal substrate during operation.
Claim 2, wherein the pore volume is 0.01 to 0.25 cc/g (see details in Table 4 at P 6/11: pore volume within a range of 0.35006-0.0027, shown between 750 0C and 1500 0C). BAST AN, F. E. et al. in view of KITAMURA et al. do not explicitly disclose the limitations as claimed; however, BAST AN, F. E. et al. disclose a person skilled in the art could have arrived the values of the pore volume by adjusting the heat treatment temperature within the range of 750-1000°C as shown in Table 4, that makes it capable to achieve the recited limitations as claimed.
Claim 3, wherein the average particle size (D50) is 20 to 40 μm (see details in Table 4 at P 6/11: D50 within a range of 38.47-31.67, shown between 750 0C and 1500 0C). BAST AN, F. E. et al. in view of KITAMURA et al. do not explicitly disclose the limitations as claimed; however, BAST AN, F. E. et al. disclose a person skilled in the art could have arrived the values of the average particle size by adjusting the heat treatment temperature within the range of 750-1000°C as shown in Table 4, that makes it capable to achieve the recited limitations as claimed.
Claim 4, wherein the hydroxyapatite powder has a BET specific surface area of less than 5 m2/g (0.1638 m2/g, 1000°C as shown in Table 4 at P 6/11, BAST AN, F. E. et al.).
Claim 12, a method for forming a hydroxyapatite film, the method comprising plasma-spraying the plasma spraying material according to claim 1 to deposit the hydroxyapatite film on a substrate (spray drying of hydroxyapatite powders, see Title; it is frequently deposited on metallic implants, Introduction, P 1/11, BAST AN, F. E. et al.).
Claim 13, wherein a material of the substrate is a resin, a metal, or a ceramic (it is frequently deposited on metallic implants, Introduction, P 1/11, BAST AN, F. E. et al.).
Claim 14, The method for forming a hydroxyapatite film according to claim 12, wherein the material of the substrate is a polyether ether ketone (the material of the substrate to which the HAp coating is to be formed… polyether ether ketone, [0046]).
Claim 15, The method for forming a hydroxyapatite film according to claim 12, wherein the material of the substrate is a titanium alloy (the material of the substrate to which the HAp coating is to be formed… titanium alloys, [0046]).
Claim 16, wherein the substrate is an implant (it is frequently deposited on metallic implants, P 1/11, BAST AN, F. E. et al.).
Claim 18, wherein the hydroxyapatite powder has an average particle size (D50) of 20 to 36 μm (see details in Table 4 at P 6/11: D50 within a range of 31.67-30.78, shown between 1000 0C and 1250 0C, BAST AN, F. E. et al.),and, as measured by mercury porosimetry: a pore volume of 0.01 to 0.21 cc/g at a pore size of 2000 nm or less (the pore volume at a pore diameter of 5000 nm or less, as measured by the mercury intrusion method, is preferably 0.01 to 0.5 cc/g, [0020], KITAMURA et al.), and a pore volume of 0.38 to 0.66 cc/g at a pore size of 2000 nm or more (a pore diameter of 5000 nm or more as measured by the mercury intrusion method… 0.3 to 0.6 cc/g, [0022], KITAMURA et al.).
Claim 19, wherein a gas consisting of one or more monatomic molecules is used as a working gas (Note: claim 19 is a use claim and there is nothing prohibiting the plasma spraying material from being use with "a gas consisting of one or more monatomic molecules is used as a working gas" as claimed).
Response to Arguments
Applicant’s arguments with respect to Claims have been considered but are moot because of the updated rejection with new prior art made of record.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Applicant is advised to refer to the Notice of References Cited for pertinent prior art. Any inquiry concerning this communication or earlier communications from the examiner should be directed to KUANGYUE CHEN whose telephone number is 571/272-8224. The examiner can normally be reached on M-F 9:00-5:00 EST.
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/KUANGYUE CHEN/
Examiner, Art Unit 3761
/ELIZABETH M KERR/Primary Examiner, Art Unit 3761
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