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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 02/23/2026 has been entered.
Response to Arguments
Applicant’s arguments with respect to claim(s) 1 - 9 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
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 4 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 4, there is lack of antecedent basis for the limitation “the recessed chamfer of the elongate slot disposed in the washer”. Claim 4 is dependent upon claim 3 which cites “the washer further comprising a recessed chamfer”, there is no mention of the slot having the recessed chamfer.
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, 2, 5, 6, 8 and 9 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Kambin (US 5,964,761).
Regarding claim 1, Kambin discloses an implant, comprising:
a sacrum anchor (Fig. 8, 62);
a distraction rod (Fig. 8, ref. 70);
a fixation screw (Fig. 8, ref. 108); and
a washer (Fig. 8, ref. 104) being plate-like and having an oblong slot (ref. 102) disposed the entire way through the washer, the washer uncontacted by the sacrum anchor when the implant is implanted (Figs. 6 – 8).
Regarding claim 2, Kambin discloses the implant of claim 1, the distraction rod is configured to be controllably advanceable relative to the sacrum anchor via a screwing motion (best shown in Fig. 6, the rod ref. 70 is threaded onto a portion of the anchor ref. 62, thus being controllably advanced over the anchor from a screwing motion).
Regarding claim 5, Kambin discloses the implant of claim 1, the distraction rod configured to apply force upon the washer as it advances distally to cause the washer to press upon the L5 vertebral body (when all the components are connected, as the distraction rod ref. 70 is rotated downwardly over the anchor ref. 62 it will cause the washer to also press upon whatever surface it is against).
Regarding claim 6, Kambin discloses the implant of claim 1, the sacrum anchor further comprising custom bone threads (the threads are designed for its purpose, thus being custom).
Regarding claim 8, Kambin discloses the implant of claim 1, the distraction rod further comprising internal retention threads (Fig. 6).
Regarding claim 9, Kambin discloses the implant of claim 1, configured to fixate in a position such that the forces placed upon the L5 vertebral body via the washer hold the vertebral bodies comprising the lumbo-sacral junction in a lordotic orientation (the device is fully capable of working in such a manner when all the components are connected).
Claim(s) 1, 3, 4 and 7 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by David (US 2005/0216001 A1).
Regarding claim 1, David discloses an implant, comprising:
a sacrum anchor (Fig. 2, ref. 20);
a distraction rod (Fig. 2, ref. 8);
a fixation screw (Fig. 2, ref. 60); and
a washer (Fig. 2, ref. 12) being plate-like and having an oblong slot (Fig. 4B, ref. 40) disposed the entire way through the washer, the washer uncontacted by the sacrum anchor when the implant is implanted (Fig. 3).
Regarding claim 3, David discloses the implant of claim 1, wherein the washer further comprising a recessed chamfer (Fig. 3 shows the elongated slot having a top and bottom chamfer).
Regarding claim 4, David discloses the implant of claim 3, the distraction rod further comprising a tip having a shape corresponding to the recessed chamfer of the elongated slot disposed in the washer (because the distraction rod is configured to be placed through the slot, it would have an end or tip shaped for the slot).
Regarding claim 7, David discloses the implant of claim 1, the distraction rod further comprising a tapered cut.
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Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See PTO-892.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TESSA M MATTHEWS whose telephone number is (571)272-8817. The examiner can normally be reached M - F 8am - 1pm.
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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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/TESSA M MATTHEWS/ Examiner, Art Unit 3773