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 .
Status of the Claims
This Office Action is responsive to the amendment filed September 4, 2026. As directed by the amendment: Claims 1, 10, 22, and 27 have been amended. Claims 2, 7, 9, 12, 15-21, and 28 have been cancelled. Claims 1, 3-6, 8, 10, 11, 13, 14, 22-27, and 29 are presently pending in this application.
Claim Rejections - 35 USC § 112(d)
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 29 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Regarding claim 29, the phrase “the at least one distinct suture loop is formed monolithic with the second brace portion” does not further limit the subject matter of the claim upon which it depends, see claim 27, ll. 4-5. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Examiner’s Note
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.
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.
Claim(s) 22-26 is/are rejected under 35 U.S.C. 103 as being unpatentable over Waizenegger et al. (US 11,071,571), herein referred to as Waizenegger, and in view of Conley et al. (US 2014/0052176), herein referred to as Conley.
Regarding claim 22, Waizenegger discloses a surgical fixation device (1) (figures 8-10), the device (1) comprising a first brace portion (3) including a first end (figures 8-10), a second end (figures 8-10) formed opposite the first end (figures 8-10), a first plurality of openings (elements 8) formed through the first brace portion (3), and a second brace portion (another element 3) positioned opposite the first brace portion (3), the second brace portion (another element 3) including a first end (figures 8-10), a second end (figures 8-10) formed opposite the first end (figures 8-10), and a second plurality of openings (another elements 8) formed through the second brace portion (another element 3), and a bridge portion (4) extending between the first brace portion (3) and the second brace portion (another element 3), the bridge portion (4) including a first segment (portion of element 4) formed monolithic (col. 5, ll. 27-35 and figures 8-10) with the first brace portion (3), the first segment including a first plurality of holes (elements 6) formed therethrough (figure 10), and a second segment (another portion of element 4) formed monolithic (col. 5, ll. 27-35 and figures 8-10) with the second brace portion (another element 3), the second segment (another portion of element 4) including a second plurality of holes (another elements 6) formed therethrough (figures 8-10), wherein the second plurality of holes (another elements 6) is substantially aligned with the first plurality of holes (elements 6) of the first segment (portion of element 4) to couple the second segment (another portion of element 4) and the first segment (portion of element 4) of the bridge portion (4).
However, Waizenegger lacks at least one first suture loop formed adjacent the first end of the first brace portion.
However, Conley teaches a plurality of suture loops (elements 10) provided on a fixation device (figures 1 and 2).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide Waizenegger’s first brace portion and second brace portion with a first suture loop and a second suture loop as taught by Conley, since such a modification would enable placement of one or more sutures according to the needs of the surgeon at the time of placement of the plate (¶28).
Next, the modified Waizenegger’s surgical fixation device lacks a detailed description on the at least one suture loop formed monolithic with the first brace portion.
However, it is known that forming in one piece an article which has formerly been formed in two pieces and put together involves only routine skill in the art.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the modified Waizenegger’s surgical fixation device with the at least one first suture loop is formed monolithic with the first brace portion, since it is known that forming in one piece an article which has formerly been formed in two pieces and put together involves only routine skill in the art.
Thus, the modified Waizenegger’s surgical fixation device has the at least one suture loop (10 of Conley) configured to (i.e. capable of) pass a suture through a tendon overlying an osteotomy fragment (considered functional).
The modified Waizenegger’s surgical fixation device further lacks wherein the first segment of the bridge portion is releasably coupled to the second segment.
However, it is known that constructing a formerly integral structure in various elements involves routine skill in the art.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the modified Waizenegger’s surgical fixation device with wherein the first segment of the bridge portion is releasably coupled to the second segment, since it is known that constructing a formerly integral structure in various elements involves routine skill in the art and further capable of being removed.
Regarding claim 23, the modified Waizenegger’s surgical fixation device has wherein the at least one hole of the first segment bridge portion (portion of element 4 of Waizenegger) includes a first plurality of holes (elements 6 of Waizenegger) and the at least one hole of the second segment (another portion of element 4 of Waizenegger) includes a second plurality of holes (another elements 6 of Waizenegger).
Regarding claim 24, the modified Waizenegger’s surgical fixation device has wherein a distinct bridge portion (another element 4 of Waizenegger) extends between the first brace portion (3 of Waizenegger) and the second brace portion (another element 3 of Waizenegger), adjacent to and separated from the bridge portion (4 of Waizenegger) (figure 10 of Waizenegger).
Regarding claim 25, the modified Waizenegger’s surgical fixation device has wherein the distinct bridge portion (another element 4 of Waizenegger) includes at least one hole (6 of Waizenegger) formed therethrough (figure 10 of Waizenegger).
Regarding claim 26, the modified Waizenegger’s surgical fixation device has wherein a securing component (9 of Waizenegger) configured to (i.e. capable of) secure the surgical fixation device to a patient’s bone, wherein the at least one hole (6 of Waizenegger) of the first segment (portion of element 4 of Waizenegger) and the at least one hole (another element 6 of Waizenegger) of the second segment (another portion of element 4 of Waizenegger) are aligned to receive the securing component (9 of Waizenegger).
Allowable Subject Matter
Claims 1, 3-6, 8, 10, 11, 13, and 14 are allowed.
Claim 27 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter: After further search and consideration it is determined that the prior art of record neither anticipated nor renders obvious the claimed subject matter of the instant application as a whole either taken alone or in combination, in particular, the prior art of record does not teach, the following limitation(s) in combination with the remaining claimed limitation such as but not limited to “wherein the placing of the device such that the first brace portion and the second brace portion of the device are placed on either side of the osteotomy fragment; securing the device to the tibia; and passing sutures through the first plurality of openings and the second plurality of openings to thereby secure the osteotomy fragment to the tibia".
Response to Arguments
Applicant's arguments filed September 4, 2026 have been fully considered but they are not persuasive.
Applicant’s arguments on pages 7-12, under 35 U.S.C. 103, of the Remarks are directed to the amended claims and the combination of references (Waizenegger in view of Conley). Applicant argues with respect to claim 22 the feature of “configured to pass a suture through a tendon overlying an osteotomy fragment”. In response to applicant's argument that the reference Conley does not teach “configured to pass a suture through a tendon overlying an osteotomy fragment”, a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. Lastly, with respect to the term “monolithic”, it is known that forming in one piece an article which has formerly been formed in two pieces and put together involves only routine skill in the art.
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.
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/SI MING KU/Primary Examiner, Art Unit 3775
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