DETAILED ACTION
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 August 7, 2026 has been entered.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 29, 31, 32, 35, 40, 46, and 48-52 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claim 46, from which all other claims depend, it is unclear how each engaging element of the second engaging elements can be positioned at a different vertical level (such that the second engaging elements are a group form an angle relative to the longitudinal axis), and also a set of second engaging elements also be parallel to the longitudinal axis. For the purpose of examination, it is assumed the second engaging elements extend in a direction parallel to the longitudinal axis.
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.
Claims 29, 31, 32, 35, 40, 46, 48, 49, 51, and 52 are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent Application Publication No. 2010/0292796 (Greenhalgh ‘796) in view of U.S. Patent Application Publication No. 2014/0236296 (Wagner) and U.S. Patent Application Publication No. 2008/0140207 (Olmos).
Regarding claim 46, Greenhalgh ‘796 discloses an intervertebral device (2) comprising: a base (6), the base including a longitudinal axis (4), the base including a bottom portion (bottom surface of base 6), a pair of depending side walls (16), and an end wall (46), a second body portion (8) slidably coupled to the base and configured to move along the longitudinal axis with respect to the base (see paragraph [0049] and Figs. 5a-5c), the second body portion includes a plurality of second engaging elements (see paragraphs [0059] and [0071] and marked-up Fig. 1A below; tongue/grooves 32 of ramps 38/40/42 may have ratchets), the second engaging elements arranged in at least two sets of second engaging elements (see marked-up Fig. 1A below; each arrow points to a separate set of engaging element ratchets located in tongue/grooves), a first set of second engaging elements positioned at a first end of the first body portion (see marked-up Fig. 1A below; one of tongue/grooves of ramp 38/40/42, e.g.), a second set of second engaging elements positioned spaced apart from the first set of engaging elements and parallel to the longitudinal axis (see marked-up Fig. 1A below; other one of tongue/grooves on ramp 38/40/42, or tongue/groove of a different ramp, e.g.), the second set of second engaging elements having the same orientation with respect to the longitudinal axis as the first set of second engaging elements (see marked-up Fig. 1A below; each set of tongue/groove has the same orientation with respect to the longitudinal axis), a third body portion (10) slidably coupled to the base and configured to move in a second expanding direction with respect to the base (see paragraphs [0050], [0075], and [0076] and Figs. 5a-5c), the third body portion including a plurality of first engaging elements (see paragraphs [0059] and [0071] and marked-up Fig. 1A below; tongue/grooves 32 of ramps 34/36 may have ratchets), the first engaging elements arranged in at least two sets of engaging elements (see marked-up Fig. 1A below; multiple sets of top ramp tongues/grooves that correspond to the sets of middle ramp tongues/grooves), a first set of first engaging elements positioned at a first end of the second body portion (see marked-up Fig. 1A below; other of set of tongues/grooves on ramp 34 or 36, e.g.), a second set of first engaging elements positioned spaced apart from the first set of first engaging elements and parallel to the longitudinal axis (see marked-up Fig. 1A below; other of set of tongues/grooves on ramp 34/36 or set on a different ramp), the first engaging elements each having the same orientation with respect to the longitudinal axis (see marked-up Fig. 1A below; each set of tongue/groove has the same orientation with respect to the longitudinal axis) and oriented opposite with respect to the second engaging elements to engage the second engaging elements by moving the second body portion in a single direction along the longitudinal axis (see paragraph [0059] and [0075] Figs. 5a-5c), the plurality of engaging elements providing a plurality of expansion heights (see paragraphs [0059] and [0075] and Figs. 5a-5c).
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Further regarding claim 46, Greenhalgh ‘796 is silent regarding the base comprising a second wall such that the base forms a perimeter structure. However, Wagner discloses an expandable intervertebral implant (5) in which a base (40) comprises walls that form a perimeter structure (see Figs 2 and 20). It would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date of the invention to modify the base to include four walls to form a perimeter structure as suggested by Wagner in order to facilitate packing of the implant with bone growth material (see paragraph [0085]).
Further regarding claim 46, Greenhalgh ‘796 is silent regarding each second engaging element being positioned at a different vertical level with respect to adjacently positioned second engaging elements; and each first engaging element is positioned at a different vertical level with respect to adjacently positioned first engaging elements. However, Olmos discloses an intervertebral device (10), comprising: a base (16), a first body portion (34) slidably coupled to the base (see paragraphs [0082] and [0147] and Figs. 5 and 6) and configured to move in a first direction with respect to the base (movement along the longitudinal axis of the device, see paragraphs [0082] and [0147] and Figs. 5 and 6), the first body portion includes a plurality of second engaging elements (90/94), each engaging element positioned at a different vertical level with respect to adjacently positioned engaging elements (see Figs. 10A, 10B, and 15), the first body portion configured to be positioned at one of a plurality of positions along the longitudinal axis of the base (see paragraphs [0082] and [0147] and Figs. 5, 6, 12, and 13), and a second body portion (14) configured to move in a second direction with respect to the base (in a vertical direction perpendicular to the longitudinal axis of the device, see Figs. 12 and 13), the second body portion including a plurality of first engaging elements (100/108 and 104/112), each first engaging element is positioned at a different vertical level with respect to adjacently positioned first engaging elements (see Figs. 10A, 10B, and 15). Regarding claim 29, Olmos suggests wherein the second body portion is configured to be positioned at one of a plurality of positions (different longitudinal position, see paragraphs [0090], [0105], [0113]-[0117] and Figs. 3-6, 12, and 13), each one of the plurality of positions corresponding to a respective engagement of one of a plurality of the first engaging elements to one of the second engaging elements creating different heights of the intervertebral device (see paragraphs [0090], [0105], [0113]-[0117] and Figs. 3-6, 12, and 13). Regarding claim 40, Olmos suggests wherein the third body portion is configured to be positioned at one of a plurality of positions (different heights, see paragraphs [0090], [0105], [0113]-[0117] and Figs. 3-6, 12, and 13), each one of the plurality of positions corresponding to a respective one of a plurality of heights of the intervertebral device (see paragraphs [0090], [0105], [0113]-[0117] and Figs. 3-6, 12, and 13), the second engaging element of the first body portion configured to couple to a respective one of the plurality of first engaging elements of the third body portion for each respective one of the plurality of heights of the intervertebral device (see paragraphs [0090], [0105], [0113]-[0117] and Figs. 3-6, 12, and 13). Regarding claim 49, Olmos suggests wherein the first engaging elements and the second engaging elements have conjugate shapes with respect to each other (see paragraphs [0113]-[0117] and Figs. 10A, 10B, and 15). Regarding claim 31, Olmos suggests wherein the second body portion being positioned at an incremental position along the longitudinal axis of the base for each respective one of the plurality of conjugately engaged first and second engaging elements while the third body portion incrementally changes the height of the intervertebral device (see paragraphs [0090], [0105], [0113]-[0117] and Figs. 3-6, 12, and 13). Regarding claim 35, Olmos suggests wherein the geometric shape of each of the first engaging elements includes a polygon (triangle-shaped elements 102/106/110/114, see Figs. 10A and 10B). It would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date of the invention to modify the engaging elements to be at different vertical levels with respect to adjacent engaging elements as suggested by Olmos in order to allow for incremental expansion of the height of the intervertebral implant such that the user can set the height of the implant to a desired height (see Olmos, paragraph [0114]).
Regarding claim 32, Greenhalgh ‘796 discloses wherein the base, the third body portion, and the second body portion are configured to define a void central to the device (26/27/28, see paragraph [0073]).
Regarding claim 48, Greenhalgh ‘796 discloses wherein the first engaging elements are positioned on a top surface of the second body portion while the second engaging elements are positioned on a bottom surface of the third body portion (see paragraph [0059] and [0075] and Figs. 5a-5c and marked-up Fig. 1A above).
Regarding claim 51, Greenhalgh ‘796 discloses wherein at least one end of the base includes an opening (54) for connection with an insertion tool (70) (see paragraph [0071]).
Regarding claim 52, Greenhalgh ‘796 discloses wherein the opening is sized to allow an expansion tool (70) to extend through the opening to move the second portion with respect to the base (see paragraph [0084]).
Claim 50 is rejected under 35 U.S.C. 103 as being unpatentable over Greenhalgh ‘796 in view of Wagner and Olmos, and further in view of U.S. Patent Application Publication No. 2010/0222884 (Greenhalgh ‘884).
Regarding claim 50, Olmos suggests wherein the first engaging elements and the second engaging elements are V-shaped teeth (see paragraphs [0113]-[0117] and Figs. 10A, 10B, and 15), wherein the teeth interlock when the point of one tooth of the second body portion is positioned between two opposing teeth of the third body portion (see paragraphs [0113]-[0117] and Figs. 10A, 10B, and 15). Additionally, Greenhalgh ‘884 also discloses wherein the first engaging elements and the second engaging elements are V-shaped teeth (V-shaped teeth 154/142, see Figs. 34 and 35), wherein the teeth interlock when the point of one tooth of the first body portion is positioned between two opposing teeth of the base (see paragraph [0123] and Figs. 34 and 35), and it would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date of the invention to have the first and second engaging elements be V-shaped teeth that interlock as suggested by Greenhalgh ‘884 in order to lock the first body portion from moving relative to the base and keep the device in a desired expanded position without having to use separate locking components (see Greenhalgh ‘884, paragraph [0123]).
Response to Arguments
Applicant’s arguments with respect to the claims have been considered but are moot in view of the new grounds of rejection.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NICHOLAS J PLIONIS whose telephone number is (571)270-3027. The examiner can normally be reached on Monday - Friday, 9:00 a.m. - 5:00 p.m. EST.
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/NICHOLAS J PLIONIS/Primary Examiner, Art Unit 3773
