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 .
The examiner acknowledges receipt of response to restriction requirement filed 11/20/2025, IDS filed 10/26/2023 and 05/16/2023, and amended claims filed 05/10/2023.
Claims 3-5, 8-13, 16, 19, 21 and 23 are amended.
Claims 6-7, 20 and 24-37 are canceled.
Claims 1-5, 8-19 and 21-23 are pending.
Election/Restrictions
Applicant’s election without traverse of Group I, 1-5 and 8-13, in the reply filed on 11/20/2025 is acknowledged.
Claims 14-19 and 21-23 stand withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected inventions, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 11/20/2025.
Claims 1-5 and 8-13 are under consideration.
Priority
This application claims benefit of 63/342,092 filed 05/12/2022.
Information Disclosure Statement
The IDS filed 10/26/2023 and 05/16/2023 has been considered by the examiner.
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.
Claim 9 is 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.
Claim 9 recites “CAD” without an initial description of what “CAD” stand for. CAD could mean more than one thing. CAD in the specification is defined as computer aided design (see paragraph [0059] of the original specification as filed).
It is suggested that claim 9 recite --- computer aided design--- with the CAD placed in parenthesis for future use.
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1-5, 8-9 and 13 is/are rejected under 35 U.S.C. 102(a)(1) and 102(a)(2) as being anticipated by Dong et al. (US 20130268085 A1).
Dong et al. (US 20130268085 A1) discloses medical implants (see the whole document with emphasis on the abstract, paragraphs [0051]-[0053], [0090], [0100]-[0101], [0103], [0116], [0119]-[0120], and claim 20). The medical implant comprises plurality of porous sections having plurality of struts with nodes at each end, the porous sections or geometries include porous CAD volume (paragraphs [0008]-[0013], [0015], [0016], [0018]-[0026], [0034], [0035], [0043], [0051], [0052], [0067], [0069]-[0079], [0083], [0095]-[0101], [0106], [0110], [0114], [[0117]-[0119], claims 1, 5, 15 and 21). The plurality of struts have nodes at each end (see at least the abstract and paragraph [0008]) and the nodes may be placed at different radius from the origin of polar coordinate (paragraph [0080]) and in another embodiment the radius component as well as the nodes along the boundary may be modified in the same or opposite directions and the struts may ne correspondingly be lengthened or shortened (paragraph [0084]). Because there are many nodes and struts, there will correspondingly be many radii. Fixation elements extend from nodes formed at the interface of the solid CAD volume (paragraph [0099], [0100]).
Therefore, for claims 1-5 and 13, Dong teaches the implant of claims 1-5 by teaching an implant comprising plurality of porous geometries having plurality of struts having nodes at each end and the nodes placed at different radii from the polar coordinate, and the implant comprises solid and porous materials/solid and porous CAD volumes (paragraphs [0065], [0066], [0081], [0099]-[0101]).
For claim 8, the porous structure, the solid structure and the interface region are inseparable in Dong such that the porous structure, the solid structure and the interface region of the implant of Dong form an integral structure.
Claim 9 is a product by process claim. Product-by-process claims are not limited to the manipulations of the recited steps, only the structure implied by the steps. “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985), Amgen Inc. v. F. Hoffman-La Roche Ltd., 580 F.3d 1340, 1370 n 14, 92 USPQ2d 1289, 1312, n 14 (Fed. Cir. 2009), see also Purdue Pharma v. Epic Pharma, 811 F.3d 1345, 117 USPQ2d 1733 (Fed. Cir. 2016).
Thus, Dong teaches the elements of claims 1-5, 8-9 and 13.
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.
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.
Claim(s) 1 and 10-12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Dong et al. (US 20130268085 A1), as applied to claim 1, in view of Wei Xu et al., “Design and performance evaluation of additively manufactured composite lattice structures of commercially pure T. (CP-Ti)” in Bioactive Materials, 6 (2021) 1215-1222.
Claims 10-12 depend on claim 1. Dong has been described above to teach claim 1. Dong differs from claims 10-12 by not teaching the radius of the strut in millimeters and required by claims 10-12. Dong teaches surface modified unit cell lattice (title). Wei Xu teaches lattice structures having strut radius (see the abstract) and the different radius are 0.2, 0.25. 0.5, 0.35 and 0.4 mm (right column of page 1217, Tables 1 and 2). Wei Xu teaches that pore features are directly related to strut radius and that porosity and pore size significantly influence biological properties (second full paragraph, right column of page 1220). Therefore, before the effective date of the invention, the artisan guided by the teachings of Wei Xu would be motivated to have the radius of the strut to be any one or combination of the strut radius disclosed in Wei Xu with the expectation of predictably influencing biological property of the implant having desired pore size.
Thus Dong in combination with Wei Xu renders claims 10-12 prima facie obvious.
No claim is allowed.
The specification has not been checked to the extent necessary to determine the presence of all possible minor errors. Applicant’s cooperation is requested in correcting any errors of which applicant may become aware in the specification.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BLESSING M FUBARA whose telephone number is (571)272-0594. The examiner can normally be reached 7:30 am-6 pm (M-T).
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/BLESSING M FUBARA/Primary Examiner, Art Unit 1613