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 .
Response to Arguments
Applicant's arguments filed 10/24/2025 for claim 1 (Jimenez in view of Altarac) have been fully considered but they are not persuasive. First, applicant argues that threaded gear sleeve 520 is not a screw because it has teeth. The examiner disagrees as the applicant as well as the specification of Jimenez (paragraph 86) describe 520 as “threaded” and is therefore considered a screw (likewise, see Figs 10a, 10d). See plain meaning of screw:” a cylindrical rod incised with one or more helical or advancing spiral threads” (https://www.thefreedictionary.com/screw). While the threads have teeth, the threaded sleeve #520 meets the criteria for being considered a screw. Screws having teeth are also known in the art, as evidenced by Ochoa US 5,716,358 (Figs 1-2). The applicant is not claiming the specific structure of the threads of their invention.
Secondly, 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). Applicant argues that the drive screws of Altarac do not engage a gear or drive rack and are displaced axially. Applicant also argues that ball 118 of Altarac would take up a large amount of space. However, the modification was not to replace the screws/worms #544, #543 of Jimenez with the screws of Altarac and not to include the ball 118 to the screws/worms #544, #543 of Jimenez but rather have the screws/worms #544, #543 be spaced apart and completely separated from each other (looking at Fig 10a of Jimenez, there would be no need for post #547 and ends #548 and #546 would have a smaller footprint and spaced apart from each other). This allows a tool to be inserted therethrough to individually or simultaneously rotate the screws/worms #544, #543. The screws/worms #544, #543 of Jimenez would still work as intended where they can be individually or simultaneously actuated in view of Altarac.
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). As discussed previously in the current rejections and response to arguments in the office action mailed 7/29/2025, Jimenez discloses two embodiments where the first and second worms #544, #543 can be rotated individually (Fig 10a-10b) or simultaneously (Fig 1a-1b), where the teachings of Altarac would allow for a single embodiment to accomplish both actions in a single embodiment. As such, motivation and rationale for combining Jimenez and Altarac is found from the references themselves.
Applicant’s arguments, see page 6 in the reply, filed 10/24/2025, with respect to claims 2, 16 have been fully considered and are persuasive. The rejection of claim 2 has been withdrawn.
Regarding Claim 11, applicant argues that the gear sleeve #520 in Jimenez is not a screw. Examiner maintains that it is a screw for the same reasons discussed above in claim 1. Screws #520 are rotated in order to move posts #511 (see rejection for claim 11 below, paragraph 66-68).
Regarding Claim 14, applicant repeats the same arguments for claim 1 and as such the response to claim 1 above is applicable to claim 14.
With regards to Claim 17, the applicant argues that including holes to threaded posts #511 does not transform them into sleeves. The examiner disagrees, as seen in Fig 10-11, the holes provide a cannulation extending vertically completely through the device. As such, providing at least one hole provides a cannulation extending vertically completely through the posts #511 and thus provides a sleeve that is able to be filled with growth material. 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). Applicant argues Michelson does not discloses a threaded sleeve, but as discussed above and rejection below, the holes taught by Michelson would provide the posts #511 with cannulation extending vertically completely there-through and thus provides a sleeve that is able to receive growth material.
Third, applicant argues that adding the holes would weaken the posts #511. This is not persuasive as the device of Michelson is also intended to placed within the disc space (Fig 10) and is able to withstand the natural forces acting upon it by the vertebra. As such, it would be reasonable to expect that with the modification, the posts #511 would be sufficiently strong to withstand the natural forces acting upon it in the disc space. Likewise, the endplates of Jiemenz has a much bigger central hole and there is no expectation of collapse or failure of the endplates. Examiner notes that it is also well established in the art to provide openings, holes throughout intervertebral implant for bone growth where failure is not an issue.
With regards to the fourth argument for claim 17, it is not entirely clear what applicant is trying to convey. Having components #550, #510 with holes would also aid in bone growth through out the device, posts #511 would still have holes and would be considered a sleeve as discussed above.
With regards to Claim 20 in view of Nichols, the examiner reinterpreted the art in view of applicant’s amendment.
Applicant is welcome to contact the examiner if they have any questions.
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.
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Nichols US 2016/0089247 in view of Luu US 2018/0360616 and Robinson US 20170333198.
Regarding Claim 20, Nichols discloses an expandable intervertebral fusion implant (Fig 1-2), comprising:
an inferior component (see Fig below), including a first top surface and a first bottom surface (see Fig below);
a superior component (see Fig below), including a second top surface and a second bottom surface (see Fig below);
a first end (see Fig below);
a second end (see Fig below);
a central hole (#102) extending from the second top surface to the first bottom surface (Fig 1), the central hole arranged between the first end and the second end (Fig 1);
a first worm (#182) rotatably arranged in the first end (see Fig below, paragraph 62, Fig 1-2) and including a through-hole (#188, paragraph 65 where the hole #188 extends completely through the first worm #182 to allow passage of a shaft completely through the first worm) having a first maximum diameter (Fig 7, paragraph 59, where there would be a first maximum diameter); and
a second worm (see Fig below) rotatably arranged in the second end (paragraph 62, Fig 1-2), the second worm including a hole (#188, paragraph 59, Fig 7) extending at least partially therethrough (paragraph 59, 65), the hole having a second maximum diameter (Fig 7, paragraph 59, where there would be a second maximum diameter);
wherein at least one of the first worm and the second worm is engaged with an expansion mechanism to displace the superior component with respect to the inferior component (paragraph 63-64, Fig 1-2).
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Nichols discloses the through-hole (#188) provides access to an opening (#188) of the second worm (paragraph 65), the second worm in communication with the central hole (#102)(Fig 1, 8), the first and second worms are in the form of elongated shafts (Fig 7, Fig above) and the central hole (#102) receives bone growth material (paragraph 54) but does not disclosed that, the through-hole is operatively arranged to allow material to be injected into the central hole. Nichols discloses the holes of the first and second worms are for receiving a tool to rotate the worms (paragraph 62) but does not disclose the second maximum diameter being non-equal to the first maximum diameter.
Luu discloses an expandable spinal implant (Fig 2-3) comprising superior and inferior components (#102, #202), a central hole (#111), a drive assembly (#301) comprising a shaft (Fig 6a) having an opening (#342) to receive a tool (paragraph 44) , in an assembled stated, the opening leads into a central bore (#360) and the shaft includes apertures (#362) in communication with the central bore (paragraph 47, figs 5-6a), where bone growth material is allowed to be injected through the opening (#342) into the central bore (#360) and out the apertures (#362) into the central hole (#111) to promote bone growth (paragraph 47).
It would have been obvious to one having ordinary skill in the art at a time before the effective filing date of the claimed invention to modify the shaft of the first worm to include apertures and for the shaft of the second worm to include a central bore and apertures in view of Luu above because this allows bone growth material to be injected therethrough and into the central hole to promote bone growth. The examiner notes that with the modification, in the assembled state, material is able to be injected through the through hole into the second worm, where the apertures allow the material to flow into the central hole.
Robinson discloses an implant (Figs 1-7) with first and second screws (#336, #318, Fig 7) the first screw having a first hole (#337) having a first maximum diameter (Fig 7) to receive a tool to rotate the first screw (driver, paragraph 57, 72), the second screw having a second hole (#319) having a second maximum diameter (Fig 7) to receive the tool to rotate the second screw (drive, paragraph 55, 72), the first and second maximum diameters are not equal (as seen in Fig 7, paragraph 72).
It would have been obvious to one having ordinary skill in the art at a time before the effective filing date of the claimed invention to modify the first and second maximum diameters of Nichols to not be equal in view of Robinson because this provides a known alternate dimension for holes that receive a tool/driver for rotation. Examiner notes that this modification involves a change of size, which is within the skillset of one of ordinary skill in the art. See MPEP 2144.04 (IV)(A).
Claims 1, 8-13, 21-22 are rejected under 35 U.S.C. 103 as being unpatentable over Jimenez US 2012/0323329 in view of Altarac US 2021/0378832, and evidenced by Butler US 2017/0224505.
Regarding Claim 1, Jimenez discloses an expandable intervertebral fusion implant (Fig 10a, paragraph 86), comprising:
an inferior component (#550, Fig 10a), including:
a first top surface (top of #550);
a first bottom surface (bottom of #550);
a first end (left end of #550 as seen in Fig 10a) including a first worm (#544) rotatably (see Fig 10b, 10d, paragraph 86) arranged therein (Fig 10b, 10d); and,
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a second end (right end of #550 as seen in Fig 10a) including a second worm (#543) rotatably arranged therein (see Fig 10b, 10d, paragraph 86);
a superior component (#510, Fig 10a), including:
a second top surface (top of #510);
a second bottom surface (bottom of #510);
a third end (left end of #510 as seen in Fig 10a); and,
a fourth end (right end of #510 as seen in Fig 10a); and,
a first expansion mechanism including a first screw (left screw #520 in Fig 10a), the first screw comprising a first bottom end (bottom of first screw #520, Fig 10a) connected to the inferior component (Fig 10a-10d) and a first top end (top of first screw, Fig 10a) connected to the superior component (see Fig 10a-10d);
wherein as the first worm is rotated in a first circumferential direction, the first screw rotates in a second circumferential direction and the superior component is displaced relative to the inferior component (paragraph 86, note the rotation of the worms and screws rotate similar to that of the embodiment shown in Fig 1a-1d, paragraph 66-68).
Jimenez discloses the first and second worms (#544, #543) are each threaded and independently actuated/rotated (paragraph 86), where Jimenez also discloses another embodiment where the first second worms are monolithic with each other so that the worms are actuated/rotated simultaneously (as seen in Fig 1a-1c, paragraph 66) but does not disclose the first worm comprising a through-hole operatively arranged to allow material to be injected therethrough and into a central hole of the expandable intervertebral fusion implant, the second worm is spaced apart from the first worm.
Altarac discloses an expandable implant (Fig 1, 18), comprising inferior and superior components (endplates #18), first end (left or right end, Fig 4) and second ends (the other right or left end, Fig 4), a central hole (central hole as seen in Fig 10, see also Fig 1-2), first and second threaded member (#20 and #20) located at the first and second ends, respectively (Fig 4-5), the first threaded member comprising a through-hole (#124, Fig 4, 14b) operatively arranged, in an assembled state, to allow material to be injected therethrough and into the central hole of the expandable intervertebral fusion implant (as seen in Figs 1-4, one is able to inject material through the through-hole and into the central hole, as evidenced by Butler[see Fig 33, paragraph 57 where a threaded member #216 where tool recess #236 is able to receive a driver to rotate the threaded member and is also used for delivery of material]), where the first and second threaded members are not directly coupled together (Fig 4-5, where the though-hole allows for the use of a driver (#23) to be inserted therethrough to engage the first threaded member and/or second threaded member to independently actuate/rotate the first and second threaded members (paragraph 65, see also abstract) or actuated simultaneously (abstract, paragraph 78).
It would have been obvious to one having ordinary skill in the art at a time before the effective filing date of the claimed invention to modify the first worm to have a through-hole, where the first and second worms are spaced apart and not directly coupled together in view of Altarac above because the through-hole provides a way for a driver to engage the first and/or second worm to provide a known way to independently rotate the first and second worms or simultaneously rotate worms. The examiner notes that with the modification, the through-hole is large enough to receive a driver and would also be large enough to have material injected there-through, as evidenced by Butler (see Fig 33, paragraph 57 where a threaded member #216 where tool recess #236 is able to receive a driver to rotate the threaded member and is also used for delivery of material). The examiner also notes that with the modification, one would not need be limited to selecting one of the embodiments of Jimenez (Fig 10a or Figs 1a-1c), where the worms can be actuated independently as well as simultaneously.
Regarding claim 8, Jimenez as modified discloses the central hole axially separates the second worm from the first worm (see Fig 10b in Jimenez and Figs 1, 4-5 in Altarac where as discussed with the modification, the first and second worms are not directly connected to each other and are thus are axially spaced apart from each other with the central hole separating them).
Regarding claim 9, Jimenez as modified discloses the claimed invention as discussed above where Jimenez further discloses the first bottom surface (bottom of #550) is arranged to engage a first vertebra of a spine (Fig 10a-10d, the implant expands in a vertical direction such that the first bottom surface and second top surface contact first and second vertebra respectively ); and,
the second top surface (top of #510) is arranged to engage a second vertebra of a spine (Fig 10a-10d, the implant expands in a vertical direction such that the first bottom surface and second top surface contact first and second vertebra respectively).
Regarding claim 10, Jimenez as modified discloses the claimed invention as discussed above where Jimenez further discloses a second expansion mechanism including a second screw (right screw #520, Fig 10a), the second screw comprising a second bottom end (bottom of the second screw, Fig 10a) connected to the inferior component (Fig 10a-10d) and a second top end (top of the second screw, Fig 10a) connected to the superior component (see Fig 10a-10d).
Regarding claim 11, Jimenez as modified discloses the claimed invention as discussed above where Jimenez further discloses as the second worm is rotated in the first circumferential direction, the second screw rotates in the second circumferential direction and the superior component is displaced relative to the inferior component (paragraph 86, note the rotation of the worms and screws rotate similar to that of the embodiment shown in Fig 1a-1d, paragraph 66-68).
Regarding claim 12, Jimenez as modified discloses the claimed invention as discussed above where Jimenez further discloses wherein the first worm and the second worm are concentrically aligned (as seen in Fig 10a both worms are concentrically aligned having a common center and a common axis of rotation).
Regarding claim 13, Jimenez as modified discloses further a section (#511 in Jimenez, which includes #515) extending from one of the inferior component (Fig 10d in Jimenez) and the superior component and a groove (#517, Fig 10d, paragraph 86 where #517 is an arched groove that corresponds to arched surface #515) arranged in the other of the inferior component and the superior component (Fig 10d in Jimenez), the section being engaged with the groove (Fig 10d in Jimenez, paragraph 86).
Regarding claim 21, Jimenez as modified discloses the second worm is rotatable with respect to the first worm (as discussed with the modification in claim 1 above, where both worms can be rotated independently).
Regarding claim 21, Jimenez as modified discloses the second worm is rotatable with respect to the first worm (as discussed with the modification in claim 1 above, where both worms can be rotated independently).
Regarding claim 22, Jimenez as modified discloses wherein the first worm is not axially displaceable with respect to the inferior component (Fig 10a-10d, paragraph 86 in Jimenez where the first worm remains in the same location in the implant, the examiner notes that the modification in view of Altarac was to have the worms be completely separate, where non-threaded sections 548, 547, 546 of Jimenez in would essentially be eliminated and where the worms of Jimenez would still operate as intended as the worms would still be threadably engaged with gears #520).
Claim 3-5 are rejected under 35 U.S.C. 103 as being unpatentable over Jimenez US 2012/0323329 and Altarac US 2021/0378832 (and evidenced by Butler US 2017/0224505), as applied to claim 2 above, and in further view of Michelson US 2003/0065396.
Regarding Claims 3-5, Jimenez as modified discloses the claimed invention as discussed above where Jimenez further discloses the expandable implant is used to aid in fusing of the vertebra (paragraph 5, 64) with bone ingrowth through the implant (via central openings in the superior and inferior components, paragraph 64), the first expansion mechanism further comprises a first threaded post (#511), the first screw (left screw #520, Fig 10a) has an internal threading that engages with thefirst threaded post (#511), the first threaded post (#511) threadibly engaged with the first worm (via first screw #520), wherein as the first screw (left screw #520, Fig 10a) rotates in the second circumferential direction, the first threaded post (#511) displaces away from the inferior component (paragraph 86,see also paragraphs 66-68 where the implant functions similarly to the embodiment shown in Figs 1a-1d, where as the first screw is rotated, the first threaded post #511 is displaced away from the inferior component to expand the implant), wherein the first threaded post (#511) is pivotably connected to the superior component (pivotably connected via #515, Fig 10a, paragraph 86) but does not disclose the first threaded post (#511) is in the form of a sleeve.
Michelson discloses an expandable implant (Fig 8) with superior and inferior components (#84, #82), an expansion mechanisms (#86, #90) located therebetween (Fig 8, 10-11), the implant including a series a holes (#100, Fig 10-11) extending completely through the implant and components that make up the implant including the superior and inferior components, and the expansion mechanisms (Fig 10-11), the holes assist in the bone ingrowth/fusion process (paragraph 100).
It would have been obvious to one having ordinary skill in the art at a time before the effective filing date of the claimed invention to modify the implant Jimenez as modified to include a series of holes through the implant, including the superior and inferior components, and the threaded post (#511) of the first expansion mechanism in view of Michelson above because the holes assist in the bone ingrowth/fusion process. With the modification, threaded post #511 of Jimenez would include at least one through-hole/bore (#100 in view of Michelson) and thus make it a sleeve that allows bone ingrowth there-through.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Jimenez US 2012/0323329, Altarac US 2021/0378832 (and evidenced by Butler US 2017/0224505) and Michelson US 2003/0065396, as applied to claim 5 above, and in further view of Trentani US 3,922,726.
Jimenez as modified discloses the claimed invention as discussed above where there is a hole (#517, Fig 10d in Jimenez) extending from the second bottom surface (Fig 10d in Jimenez), the first sleeve (#511 of Jimenez as modified by Michelson, discussed above) is engaged with the hole (Fig 10d in Jimenez) via an arched portion (#515 in Jimenez, where the first sleeve is in the form of a post, as discussed above, with arched portion #515 at its top end) of the first sleeve (Fig 10d in Jimenez), the ached portion and hole can be in the form of a ball joint (end of paragraph 86 in Jimenez) but does not disclose the hole is a frustro-conical hole.
Trentani, pertinent to the problem of ball and socket joints, discloses an implant (Fig 1) with a ball and socket joint (Fig 1) where a superior component (#1) having a socket (#4) with a frustro-conical hole (#5) and a post (#8) with a ball (#6) at its end that is received in the socket (Fig 1), where this configuration allows the ball to snap into the socket and the frustro-conical hole allows for articulation so that the ball (#6) is free to rotate in any plane (Col 2 lines 30-40).
It would have been obvious to one having ordinary skill in the art at a time before the effective filing date of the claimed invention to modify the arched portion and hole (#515 and #517 in Jimenez, respectively) of Jimenez as modified to be in the form of a ball and socket joint having a frustro-conical hole in view of Trentani above because this provides a known configuration for a ball and socket joint, where this configuration allows the ball to snap into the socket and the frustro-conical hole allows for articulation so that the ball is free to rotate in any plane.
Claims 14-15, 18 are rejected under 35 U.S.C. 103 as being unpatentable over Jimenez US 2012/0323329 in view of Altarac US 2021/0378832, and evidenced by Butler US 2017/0224505.
Regarding Claim 14, Jimenez discloses an expandable intervertebral fusion implant (Fig 10a, paragraph 86), comprising:
an inferior component (#550, Fig 10a), including:
a first top surface (top of #550);
a first bottom surface (bottom of #550);
a first end (left end of #550 as seen in Fig 10a) including a first worm (#544) rotatably (see Fig 10b, 10d, paragraph 86) arranged therein, the first worm comprising a through-hole (paragraph 86 through hole receives post #547, Fig 10a-10b below which shows the opposing ends of the through hole) forming passageway for material to be injected therethrough and into a central hole of the expandable intervertebral fusion implant (see Fig below, where the first worm is in communication with a central opening of the implant, where during assembly and prior to coupling the second worm to the implant, a material such as air or a fluid is able to be injected through the through hole and into the central opening)(the examiner notes that the material is not being claimed nor is applicant functionally claiming what the material is and its purpose); and,
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a second end (right end of #550 as seen in Fig 10a) including a second worm (#543) rotatably arranged therein (see Fig 10b, 10d, paragraph 86), wherein the central hole axially separates the second worm from the first worm (as seen in the fig in claim 1 and see Fig 10c-10d, axially separated along line 10d in Fig 10c);
a superior component (#510, Fig 10a), including:
a second top surface (top of #510);
a second bottom surface (bottom of #510);
a third end (left end of #510 as seen in Fig 10a); and,
a fourth end (right end of #510 as seen in Fig 10a); and,
a first expansion mechanism including a first screw (left screw #520 in Fig 10a), the first screw comprising a first bottom end (bottom of first screw #520, Fig 10a) connected to the inferior component (Fig 10a-10d) and a first top end (top of first screw, Fig 10a) connected to the superior component (see Fig 10a-10d connected via post #511);
wherein as the first worm is rotated in a first circumferential direction, the first screw rotates in a second circumferential direction and the superior component is displaced relative to the inferior component (paragraph 86, note the rotation of the worms and screws rotate similar to that of the embodiment shown in Fig 1a-1d, paragraph 66-68).
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Jimenez discloses the first and second worms (#544, #543) are each threaded and independently actuated/rotated (paragraph 86), where Jimenez also discloses another embodiment where the first second worms are monolithic with each other so that the worms are actuated/rotated simultaneously (as seen in Fig 1a-1c, paragraph 66) but does not disclose the first worm comprising a through-hole forming a passageway for material to be injected into a central hole of the expandable intervertebral fusion implant, the first worm and the second worm are unconnected within the central hole.
Altarac discloses an expandable implant (Fig 1, 18), comprising inferior and superior components (endplates #18), first end (left or right end, Fig 4) and second ends (the other right or left end, Fig 4), a central hole (central hole as seen in Fig 10, see also Fig 1-2), first and second threaded member (#20 and #20) located at the first and second ends, respectively (Fig 4-5), the first threaded member comprising a through-hole (#124, Fig 4, 14b) operatively arranged, to allow material to be injected therethrough and into the central hole (#52) of the expandable intervertebral fusion implant (as seen in Figs 1-4, one is able to inject material through the through-hole and into the central hole, as evidenced by Butler[see Fig 33, paragraph 57 where a threaded member #216 where tool recess #236 is able to receive a driver to rotate the threaded member and is also used for delivery of material]), where the first and second threaded members are not directly coupled together and the first worm and the second worm are unconnected within the central hole (#52) of the expandable implant (Fig 1-2, 4 by virtue of the threaded members #20 be separate from each other, where the though-hole allows for the use of a driver (#23) to be inserted therethrough to engage the first threaded member and/or second threaded member (Figs 4-5) to independently actuate/rotate the first and second threaded members (paragraph 65, see also abstract) or actuated simultaneously (abstract, paragraph 78).
It would have been obvious to one having ordinary skill in the art at a time before the effective filing date of the claimed invention to modify the first worm to have a through-hole, where the first and second worms are spaced apart and not directly coupled together (and not connected in the central hole) in view of Altarac above because the through-hole provides a way for a driver to engage the first and/or second worm to provide a known way to independently rotate the first and second worms or simultaneously rotate worms. The examiner notes that with the modification, the through-hole is large enough to receive a driver and would also be large enough to have material injected there-through, as evidenced by Butler (see Fig 33, paragraph 57 where a threaded member #216 where tool recess #236 is able to receive a driver to rotate the threaded member and is also used for delivery of material). The examiner also notes that with the modification, one would not need be limited to selecting one of the embodiments of Jimenez (Fig 10a or Figs 1a-1c), where the worms can be actuated independently as well as simultaneously.
Regarding Claim 15, Jimenez as modified discloses wherein both the first worm and the second worm are operatively arranged to be rotated from the first end (with the modification in view of Altarac, a driver can rotate both worms from the first end, paragraph 77 in Altarac).
Regarding Claim 18, Jimenez as modified disclose the first top end is pivotably connected to the superior component (via #515, paragraph 86 in Jimenez).
Claim 17 are rejected under 35 U.S.C. 103 as being unpatentable over Jimenez US 2012/0323329 in view of Altarac US 2021/0378832, and evidenced by Butler US 2017/0224505, as applied to claim 13 above, and in further view of Michelson US 2003/0065396.
Jimenez as modified discloses the claimed invention as discussed above where Jimenez further discloses the expandable implant is used to aid in fusing of the vertebra (paragraph 5, 64) with bone ingrowth through the implant (via central openings in the superior and inferior components, paragraph 64), the first expansion mechanism further comprises a first threaded post (#511), the first screw (left screw #520, Fig 10a) has an internal threading that engages with the first threaded post (#511), the first threaded post (#511) threadibly engaged with the first worm (via first screw #520), wherein as the first screw (left screw #520, Fig 10a) rotates in the second circumferential direction, the first threaded post (#511) displaces away from the inferior component (paragraph 86,see also paragraphs 66-68 where the implant functions similarly to the embodiment shown in Figs 1a-1d, where as the first screw is rotated, the first threaded post #511 is displaced away from the inferior component to expand the implant), wherein the first threaded post (#511) is pivotably connected to the superior component (pivotably connected via #515, Fig 10a, paragraph 86) but does not disclose the first threaded post (#511) is in the form of a sleeve.
Michelson discloses an expandable implant (Fig 8) with superior and inferior components (#84, #82), an expansion mechanisms (#86, #90) located therebetween (Fig 8, 10-11), the implant including a series a holes (#100, Fig 10-11) extending completely through the implant and components that make up the implant including the superior and inferior components, and the expansion mechanisms (Fig 10-11), the holes assist in the bone ingrowth/fusion process (paragraph 100).
It would have been obvious to one having ordinary skill in the art at a time before the effective filing date of the claimed invention to modify the implant Jimenez as modified to include a series of holes through the implant, including the superior and inferior components, and the threaded post (#511) of the first expansion mechanism in view of Michelson above because the holes assist in the bone ingrowth/fusion process. With the modification, threaded post #511 of Jimenez would include at least one through-hole/bore (#100 in view of Michelson) and thus make it a sleeve that allows bone ingrowth there-through.
Allowable Subject Matter
Claims 2, 16 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.
Conclusion
Applicant's amendment for claim 20 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JAN CHRISTOPHER L MERENE whose telephone number is (571)270-5032. The examiner can normally be reached Mon-Fri 8:30 am - 6pm EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Eduardo Robert can be reached at 571-272-4719. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JAN CHRISTOPHER L MERENE/ Primary Examiner, Art Unit 3773