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 .
Response to Amendment
In light of Applicant’s amendment, claim(s) 1 and 23 is/are amended and claims 22-23 are canceled. Claim(s) 12 and 15-20 were previously canceled. Claims 25-27 are added. Claims 1-11, 13-14, 21, and 24-27 are now pending examination.
The objections to the claims are withdrawn in light of Applicant’s amendment.
The objections to the drawings are withdrawn in light of Applicant’s amendment canceling claim 23.
The rejection(s) under 35 U.S.C. 112(a) to claim(s) 23 is/are withdrawn in light of Applicant’s amendment canceling said claim.
The rejection(s) under 35 U.S.C. 112(b) to claim(s) 22-23 is/are withdrawn in light of Applicant’s amendment.
The rejection(s) under 35 U.S.C. 112(d) to claim(s) 23 is/are withdrawn in light of Applicant’s amendment.
Response to Arguments
Applicant’s arguments, filed 9/29/20025, with respect to the rejection(s) of claim(s) 1 under U.S.C. 102 have been fully considered and are persuasive. Examiner agrees the newly added limitation “said first and second terminus ends folded towards said second trap to contact at least a portion of an exterior surface of said sleeve adjacent to said second trap” overcomes the previous rejection as written. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Marchand in view of Thal.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
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) 1-9, 11, 13-14, 21, 24-25 and 27 is/are rejected under 35 U.S.C. 103 as being unpatentable over Marchand et al. (US 20130131722 A1) (previously of record) in view of Thal (US 20170290578 A1).
Regarding claim 1, Marchand discloses a soft anchor (Figure 1-4) comprising:
a sleeve (11), said sleeve comprising a lumen (sleeve 11 can be substantially hollow thus comprises a lumen), a first terminus end (14) having a first terminus end opening (opening of sleeve at 14, labeled in Annotated Figure 1) and a second terminus end (13) having a second terminus end opening (opening of sleeve at 13, labeled in Annotated Figure 1) (Figure 1), said lumen between the first terminus end and second terminus end (Figure 1-4; Paragraph 0038); and
a first deployment suture (20), said first deployment suture comprising a first free end (22) and a second free end (21) (Figure 1, Paragraph 0039), at least a portion of said first deployment suture is engaged to said sleeve by extending into said lumen and out of said lumen to create a first trap (labeled in Annotated Figure 1), a second trap (labeled in Annotated Figure 1) and a third trap (labeled in Annotated Figure 1), said second trap is positioned between said first trap and said third trap (Annotated Figure 1), said first trap adjacent to said first terminus end (Annotated Figure 1), said third trap adjacent to said second terminus end (Figure 1-4; Paragraph 0007; 0038-39; 0046-47), said first free end of said first deployment suture entering through said first terminus end opening and exiting out a first sidewall of said sleeve at a first location (12a) between said first terminus end and said second trap (Annotated Figure 1) (the first free end of the suture passes through the first terminus opening as well as exits the sleeve through a side wall opening between said first terminus end and said second trap as shown in Annotated Figure 1), and said second free end of said first deployment suture entering through said second terminus end opening and exiting out a second sidewall of said sleeve at a second location (12e) between said second terminus end and said second trap (the second free end of the suture passes through the second terminus opening as well as exits the sleeve through a side wall opening between said second terminus end and said second trap as shown in Annotated Figure 1) (Annotated Figure 1),
said sleeve is movable relative to said first deployment suture from a first position, said first position comprises said sleeve in an uncompressed state (Figure 1), to a second position, said second position comprises said sleeve in a compressed state (Figure 2; Paragraph 0046), said compressed state includes said first and second terminus ends folded towards said second trap (Figure 2; Paragraph 0046).
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Marchand fails to explicitly disclose said first and second terminus ends folded towards said second trap to contact at least a portion of an exterior surface of said sleeve adjacent to said second trap.
However, Thal is directed to a soft anchor (10) and teaches a compressed state (Figure 1B) includes first and second terminus ends (labeled in Annotated Figure 1B) folded towards a second trap (labeled in Annotated Figure 1B) to contact at least a portion of an exterior surface of said sleeve (14) adjacent to the second trap (Figure 1B; Paragraph 0039).
A person of ordinary skill in the art before the effective filing date of the claimed invention would have been motivated to modify Marchand such that said compressed state includes said first and second terminus ends folded towards said second trap to contact at least a portion of an exterior surface of said sleeve adjacent to said second trap, as taught by Thal, as both references and the claimed invention are directed to soft anchors. It would be obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified Marchand with the teachings of Thal by incorporating said compressed state includes said first and second terminus ends folded towards said second trap to contact at least a portion of an exterior surface of said sleeve adjacent to said second trap in order to effectively increase a diameter, or cross sectional dimension, of the all-suture anchoring element, which ultimately causes the all-suture anchor assembly to displace cancellous bone (Thal Paragraph 0039), thus providing security within the bone due to increased tension (Thal Paragraph 0040).
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Regarding claim 2, Marchand further discloses wherein the soft anchor further comprises a second deployment suture (second filament 20), at least a portion of said second deployment suture extends into said lumen (Paragraph 0054). It is noted that the embodiment relied upon for this teaching includes filament 20 passing through the various openings of the sleeve similar to Figure 1, and thus the teachings of Figure 1 regarding the filament 20, discussed above, would be incorporated therein.
Regarding claim 3, Marchand further discloses wherein said first deployment suture comprises ultra- high molecular weight polyethylene (UHMWPE) (Paragraph 0042).
Regarding claim 4, Marchand further discloses wherein said first and second deployment suture comprises ultra-high weight polyethylene (UHMWPE) (Paragraph 0042; 0054) (Marchand discloses the device may comprise two filaments 20, and that the filaments are formed of UHMWPE.).
Regarding claim 5, Marchand further discloses wherein said first deployment suture comprises a round suture or a flat suture (Paragraph 0042).
Regarding claims 6-8, Marchand as modified by Thal discloses the soft anchor of claim 2, and discloses the deployment sutures (filaments 20) may be round or flat (Paragraph 0042), but fails to specifically disclose wherein said first and second deployment sutures comprise a round suture; wherein said first and second deployment sutures comprise a flat suture; and wherein said first deployment suture comprises a round suture and said second deployment suture comprises a flat suture.
There are three choices available to a person of ordinary skill in the art for the structure of the two deployment sutures. Both deployment sutures may be round, both deployment sutures may be flat, or one suture may be round while the other is flat. Therefore, “When there is a design need or market pressure to solve a problem and there are a finite number of identified, predictable solutions, a person of ordinary skill has good reason to pursue the known options within his or her technical grasp. If this leads to the anticipated success, it is likely the product not of innovation but of ordinary skill and common sense. In that instance the fact that a combination was obvious to try might show that it was obvious under 103” KSR Int’l Co. v. Teleflex, Inc., 550 U.S. __, 82 USPQ2d 1385 (2007). To select a disclosed suture style for the taught sutures would have been obvious and well within the purview of one of ordinary skill in the art.
Regarding claim 9, Marchand further discloses wherein said sleeve comprises a braided textile (Paragraph 0042).
Regarding claim 11, Marchand further discloses wherein said sleeve comprises UHMWPE (Paragraph 0042).
Regarding claim 13, Marchand further discloses wherein said sleeve comprises a diameter of about 1.2 mm (which encompasses a diameter of 1 mm to 1.4mm) (Paragraph 0045).
Regarding claim 14, Marchand as modified by Thal discloses the soft anchor of claim 1, but fails to explicitly disclose wherein said sleeve comprises a diameter of less than 1 mm.
However, Marchand discloses a bore hole having a diameter of about 0.8-1.6mm, and that as the sleeve is placed inside it will have a diameter smaller than about 0.8-1.6mm (Paragraph 0045). Further, Marchand discloses the sleeve has a diameter at least as large as the filament and discloses a filament as a #2 suture, which has a diameter of 0.5-0.6 mm (Paragraph 0045).
Thus Marchland discloses overlapping ranges and it would have been obvious to one of ordinary skill in the art to select any portions of the disclosed ranges including the instantly claimed ranges from the ranges disclosed in the prior art references, particularly in view of the fact that; "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages" In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.
Regarding claim 21, Marchand further discloses wherein said compressed state further comprises said sleeve expanding in a transverse dimension (Figure 2; Paragraph 0046). (The transverse dimension is seen as the diameter of the sleeve, being perpendicular to the drilling direction of a bore hole, thus the diameter of the sleeve expands in “a transverse direction”. )
Regarding claim 24, Marchand further discloses wherein the transverse dimension of the sleeve comprises a dimension that meets or exceeds an inner diameter of a pilot hole (Paragraph 0045).
Regarding claim 25, Marchand further discloses wherein said first deployment suture comprises a No. 2 suture size (Paragraph 0045).
Regarding claim 27, the combination of Marchand and Thal further teaches wherein said first and second terminus ends folded towards said second trap to contact at least a portion of an exterior surface of said sleeve adjacent to said second trap comprises said first free end contacting at least a portion of an exterior surface of said sleeve on a first side and said second free end contacting at least a portion of an exterior surface of said sleeve on a second side, said first side is different than said second side (Marchand Figure 1; Thal Figure 1B).
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Marchand in view of Thal and further in view of Sheth et al. (US 20170312080 A1) (previously of record).
Regarding claim 10, Marchand as modified by Thal discloses the soft anchor of claim 1, but fails to specifically disclose wherein said sleeve comprises polyester and UHMWPE fibers.
However, Sheth is directed to a suture anchor and discloses a sleeve (20) comprising polyester and UHMWPE fibers (Paragraph 0033).
A person of ordinary skill in the art before the effective filing date of the claimed invention would have been motivated to modify Marchand as modified by Thal such that said sleeve comprises polyester and UHMWPE fibers, as taught by Sheth, as both references and the claimed invention are directed to suture anchors. 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 sleeve to be formed of both polyester and UHMWPE fibers, since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
Claim 26 is rejected under 35 U.S.C. 103 as being unpatentable over Marchand in view of Thal and further in view of Denham et al. (US 20110264141 A1).
Regarding claim 26 Marchand as modified by Thal discloses the soft anchor of claim 2, wherein said first deployment suture comprises a first width (diameter of first filament) and said second deployment suture comprises a second width (diameter of second filament) (Paragraph 0045), but fails to explicitly disclose said first width is different than said second width.
However, Denham is directed to a suture anchor (10) and teaches a deployment suture (16) made from a No.1 size suture (Paragraph 0040; 0049).
A person of ordinary skill in the art before the effective filing date of the claimed invention would have been motivated to modify Marchand as modified by Thal by changing the size of one of the filaments such that said first width is different than said second width, as taught by Denham, as both references and the claimed invention are directed to suture anchors. It would have been obvious to one having ordinary skill in the art at the time the invention was made to provide a suture filament as a No.1 suture as taught by Denham, since it has been held change in size/proportion does not distinguish over the prior art. In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955). n re Rinehart, 531 F.2d 1048, 189 USPQ 143 (CCPA 1976). MPEP 2144. Further, Marchand discloses “various arrangements of sizes of filament and sleeve are envisioned, so long as the filament remains slideable through the sleeve”, thus changing a size of a filament is suggested by Marchand.
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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/Z.J./Examiner, Art Unit 3771
/KATHERINE H SCHWIKER/Primary Examiner, Art Unit 3771