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 Objections
Claim 1 is objected to because of the following informalities: Claim 1 recites “the underside” in line 5, which appears to be a typographical error in which the word “the” should be replaced with the word – an –. Appropriate correction is required.
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) 1-3 is/are rejected under 35 U.S.C. 103 as being unpatentable over US Patent No. 6,464,706 B1 to Winters (Winters).
Regarding claim 1
Winters teaches a system for fixing soft tissue within a bone tunnel (abstract).
PNG
media_image1.png
650
480
media_image1.png
Greyscale
Winters meets the limitations of a method for fixating to soft tissue at a soft tissue repair site, the method comprising; providing an anchor member with a base (washer; 74) and at least four legs (barbs; 744), integrally extending from the base, the at least four legs extending from the base with an angled portion (col. 7, lines 24-35 disclose that the legs extend from the base and fig. 12B, for example, show that the legs have an angled portion at their pointed ends), the angled portion being oriented at an angle relative to the underside surface of the base (fig. 12 B shows that the pointed ends have tapered side walls which are oriented at an angle relative to the underside surface of the base); and sinking the at least four legs of the anchor member into soft tissue with rotation of the base of the anchor member (col. 5, lines 56-64 discloses that the washer/base spins during insertion until engagement of the soft tissue by the barbs/leg).
Fig. 11 of Winters shows that the angled portion is oriented at an angle that appears to be less than 90 degrees.
[AltContent: connector][AltContent: connector][AltContent: arc]
PNG
media_image2.png
338
442
media_image2.png
Greyscale
However, Winters does not teach that the angle is less than seventy-five degrees.
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 Winters to have angle is less than seventy-five degrees since it has been held that “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device” Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 SPQ 232 (1984). In the instant case, the device of Winters would not operate differently with the claimed angle and since the angled portion is intended to engage the soft tissue, the device would function appropriately having the claimed angle. Further, it appears that applicant places no criticality on the range claimed, indicating various embodiments that include one in which the legs extend straight downward generally at a right angle relative to the underside of the base (specification pp. [0006]).
Regarding claim 2
Winters teaches the method according to claim 1, wherein the providing comprises providing the anchor member (70) with a flexible member (76) wrapped over the base of the anchor member such that the flexible member extends over portions of a central opening defined in the base of the anchor member (figs. 10-12 show that the flexible member extends through holes 751 and 752 which are portions of a central opening defined in the washer/base 74).
Regarding claim 3
Winters teaches the method according to claim 1, further comprising coupling the anchor member to a bone anchor (72) positioned in bone (BT) with the soft tissue (ST) sandwiched therebetween such that the anchor member (74) and soft tissue is synched adjacent the bone anchor with a flexible element (76) coupled between the anchor member and the bone anchor (fig. 12 B shows coupling of the flexible element 76 between the washer/anchor member and the bone anchor).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MELISSA A HOBAN whose telephone number is (571)270-5785. The examiner can normally be reached Monday-Friday 8:00AM-5:00PM.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Melanie Tyson can be reached at 571-272-9062. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/M.A.H/Examiner, Art Unit 3774
/SARAH W ALEMAN/Primary Examiner, Art Unit 3774