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 .
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1, 4-6, 9-10, 15-19, 21 and 22 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Arnin (US Pub 2016/0015522).
With respect to claim 1, Arnin discloses an expandable spinal implant (see figures 4 and 5 below), comprising: an upper plate component (fig 4, 12) having an upper surface (see fig 4 below) configured for placement against an endplate of a first vertebral body, and a lower plate component (fig 4, 14) having a lower surface (see fig 4 below) configured for placement against an endplate of a second, adjacent vertebral body, the upper and lower plate components being connected at an articulating joint (fig 5, 11); and an actuator (fig 4, 20) undergoes pure translation (20 slides while shaft 24 rotates) to a final position having an upper actuator surface (see fig 4 below) configured to ride along a ramped surface (See fig 4 below) as the actuator translates toward an anterior end of the implant, which urges the upper plate component to angulate with respect to the lower plate component to an angulated position (fig 4 to fig 5), wherein the ramped surface faces away from the upper surface (fig 4), and wherein a lower actuator surface (See fig 4 below) of the actuator that is opposite the upper actuator surface is configured to ride along an upper surface (fig 4 below) of the lower plate component as the upper actuator surface rides along the ramped surface, and the upper surface of the lower plate component is opposite the lower surface of the lower plate component (fig 4) wherein the expandable spinal implant locks the actuator in the final position, thereby preventing movement of the upper and lower plate components (shaft 24 is threaded into the implant such that the position is locked if there is no input to the system). With respect to claim 4, Arnin discloses wherein the actuator resides inside the upper and lower plate components of the expandable spinal implant prior to, during, and after the upper plate angulates to the angulated position (fig 4 to fig 5). With respect to claim 5, Arnin discloses wherein the upper plate component comprises a pair of extended sidewalls (see fig 5 below), each sidewall has a groove (See fig 5 below) on an interior surface (inner surface as it is on the bottom), and the lower plate component comprises a housing (see fig 5 below houses the sidewalls) having on both sides of its exterior surface a protrusion (See fig 5 below) configured to be received within each groove of the upper plate component. With respect to claim 6, Arnin discloses wherein the articulating joint allows pivoting movement of the upper and lower plate components relative to one another (fig 4 for to past fig 5). With respect to claim 9, Arnin discloses wherein the upper and lower plate components are tapered (See fig 5 below) at one of their free ends. With respect to claim 10, Arnin discloses further being configured as a PLIF cage (fig 5). With respect to claim 15, Arnin discloses having a first configuration wherein the plate components are angled toward one another at an anterior portion of the spinal implant (fig 4). With respect to claim 16, Arnin discloses wherein as the actuator translates toward the anterior end of the implant, the actuator rides along the ramped surface, which urges the upper plate component to move to an intermediate configuration (fig 5) prior to angulating to the angulated position (when 24 is fully inserted past figure 5 position), wherein in the intermediate configuration the plate components are parallel (fig 5) to one another. With respect to claim 17, Arnin discloses having a second configuration wherein the plates are locked together (paragraph 23 , geometrically locked) and are angled toward one another at a posterior portion (past fig 5) of the spinal implant. With respect to claim 1, Arnin discloses wherein in the second configuration, the implant adjusts the angle of lordosis between the vertebral bodies (paragraph 25). With respect to claim 19, Arnin discloses wherein in the second configuration, the sagittal balance and alignment of the spine is restored (paragraph 25). With respect to claim 21, Arnin discloses wherein the actuator comprises a blocking pin having a shaft (fig 4, 24) and an enlarged head portion (fig 4, 20). With respect to claim 22, Arnin discloses wherein the implant defines a midplane disposed midway between the anterior end and the posterior end, and the upper actuator surface is disposed between the midplane and the anterior end when the upper plate component is in the angulated position (fig 5, 20 is past the midway point).
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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.
Claim(s) 2 and 3 is/are rejected under 35 U.S.C. 103 as being unpatentable over Arnin (US Pub 2016/0015522) in view of DeRidder (US patent 9,907,670).
With respect to claim 2, Arnin discloses the claimed invention except for the spinal implant including the actuator is manufactured by an additive production technique.
DeRidder discloses a spinal implant (fig 1, 20) including the actuator (Fig 1, 60) is manufactured by an additive production technique (col. 1, ll. 42-48 and abstract) to reduce manufacturing costs (col. 1, ll. 42-48). With respect to claim 3, DeRidder discloses wherein the implant does not have any connection seams (col. 1, Il. 49-53 unitarily formed).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to manufacture the implant and the actuator of Arnin by an additive production technique in view of DeRidder in order to reduce manufacturing costs.
Claim(s) 11-12, and 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Arnin (US Pub 2016/0015522) in view of Palmatier (US Pub 2013/0158664).
With respect to claim 11, Arnin discloses the claimed invention except for a porous structure.
Palmatier discloses an implant having a porous structure (paragraph 47) to enhance fixation with tissue (paragraph 47). With respect to claim 12 the porous structure has an engineered cellular structure or a mesh-like structure (paragraph 47).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Arnin to include a porous structure in view of Palmatier in order to enhance fixation with tissue.
With respect to claim 14, Arnin discloses the claimed invention except for an internal imaging marker.
Palmatier discloses an implant having an internal imaging marker (paragraph 85) to aid in identification under x-ray (paragraph 85).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Arnin to include an internal imaging marker in view of Palmatier in order to aid in identification under x - ray.
Claim(s) 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Arnin (US Pub 2016/0015522) in view of Foley (US pub 2004/0078079).
With respect to claim 20, Arnin discloses the claimed invention except for further including an instrument interface at a posterior end configured with a bayonet fitting.
Foley discloses further including an instrument interface (paragraph 68) at a posterior end configured with a bayonet fitting (paragraph 68) to couple the implant to an insertion instrument (paragraph 68).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Arnin to include further including an instrument interface at a posterior end configured with a bayonet fitting in view of Foley in order to couple the implant to an insertion instrument.
Response to Arguments
Applicant's arguments filed 10/21/2025 have been fully considered but they are not persuasive. The applicant argues that Arnin does not disclose that Arnin is locked in a final position. The examiner respectfully disagrees. The actuator of Arnin is locked in its position by shaft 24. Shaft 24 is threaded into the implant such that if there is no input into the system the position of actuator 20 is locked. IF the claims were more specific on how the actuator is locked (i.e. the final position has a groove on the surface of plate component and the actuator interacts with the groove to lock the position) it would overcome the Arnin rejection. As the claim is no specific in the means for locking the threaded member 24s position being fixed by the threads meets the claimed language.
The applicant does not individually argue the 103 rejections.
The rejections are deemed proper.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to STEVEN J COTRONEO whose telephone number is (571)270-7388. The examiner can normally be reached Monday-Friday 9am-5pm 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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/S.J.C/Examiner, Art Unit 3773 /EDUARDO C ROBERT/Supervisory Patent Examiner, Art Unit 3773
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