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 .
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claim(s) 1-2, 8-13 is/are rejected on the ground of nonstatutory double patenting as being unpatentable over claim(s) 1-7, 9 of U.S. Patent No. 11,849,974 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because:
The table below shows the application claims and the patent claims side by side for direct comparison, with the differences between the claims are highlighted below by bolding all the limitations that differ, italicizing additional limitations, and underlining limitations that will be addressed below.
Application Claims:
Patent Claims:
1. A tensegrity external fixator system comprising a tensegrity external fixator
comprising: a) a first stud and a second stud, each comprising: i) an insert end;
ii) a stud retainer; wherein in use, the first stud is attached to a first bone portion on a first side of a bone fracture and the second stud is attached to a second bone portion on a second side, opposing said first side, of said bone fracture; b) a compressor assembly comprising: i) a first extension comprising: a first extended end having a tension retainer; a second extended end having a tension retainer; and wherein in use, the first extended end extends distal the first stud with respect to the bone fracture and the second extended end extends distal the second stud with respect to the bone fracture; c) a tension band that extends between the tension retainer of the first
extended end and the stud retainer of the first stud and applies tension to the stud retainer and first stud; and wherein the first stud and second stud are forced away from each other to place the first bone portion and second bone portion in traction; wherein the compression assembly comprises a compression element that is under compression when an extended end of the first extension is
coupled with the tension band.
1. A tensegrity external fixator system comprising a tensegrity external fixator comprising: a) a first stud and a second stud, each comprising: i) an insert end; ii) a stud retainer; wherein in use, the first stud is attached to a first bone portion on a first side of a bone fracture and the second stud is attached to a second bone portion on a second side, opposing said first side, of said bone fracture; b) a compressor assembly comprising: i) a first extension comprising: a first extended end having a tension retainer; a second extended end having a tension retainer; and wherein in use, the first extended end extends distal the first stud with respect to the bone fracture and the second extended end extends distal the second stud with respect to the bone fracture; c) a tension band that extends between the tension retainer of the first extended end and the stud retainer of the first stud and applies tension to the stud retainer and first stud; and wherein the first stud and second stud are pulled away from each other to place the first bone portion and second bone portion in traction; wherein the compression assembly comprises a compression element that is under compression when an extended end of the first extension is deflected and coupled with the tension band.
2. The tensegrity external fixator system of claim 1, wherein the first stud and
second stud have an exposed end.
2. The tensegrity external fixator system of claim 1, wherein the first stud and second stud have an exposed end.
8. The tensegrity external fixator system of claim 1, comprising: a second extension comprising: a first extended end that extends distal the first stud with
respect to the bone fracture and having a tension retainer; a second extended end that extends distal the second stud with respect to the bone fracture and having a tension retainer.
3. The tensegrity external fixator system of claim 1, comprising: a second extension comprising: a first extended end that extends distal the first stud with respect to the bone fracture and having a tension retainer; a second extended end that extends distal the second stud with respect to the bone fracture and having a tension retainer.
9. The tensegrity external fixator system of claim 8, wherein a single tension band couples the tension retainers of the second extension, the tension retainers of the first extension and the stud retainers of the first stud and second stud.
4. The tensegrity external fixator system of claim 3, wherein a single tension band couples the tension retainers of the second extension, the tension retainers of the first extension and the stud retainers of the first stud and second stud.
10. The tensegrity external fixator system of claim 8, comprising a second tension
band; wherein the first tension band couples said first stud to the tension
retainer of the first extended end of the first extension and the tension retainer
of the first extended end of the second extension; and wherein said second tension band couples said second stud to the tension retainer of the second extended end of the first extension and the second extended end of the second extension.
5. The tensegrity external fixator system of claim 3, comprising a second tension band; wherein the first tension band couples said first stud to the tension retainer of the first extended end of the first extension and the tension retainer of the first extended end of the second extension; and wherein said second tension band couples said second stud to the tension retainer of the second extended end of the first extension and the second extended end of the second extension.
11. The tensegrity external fixator system of claim 1, wherein the first bone portion
and second bone portion are part of a single bone.
6. The tensegrity external fixator system of claim 1, wherein the first bone portion and second bone portion are part of a single bone.
12. The tensegrity external fixator system of claim 1, wherein the first extension is a
wire.
7. The tensegrity external fixator system of claim 1, wherein the first extension is a wire.
13. The tensegrity external fixator system of claim 1, wherein the tension band is an
elastic band.
9. The tensegrity external fixator system of claim 1, wherein the tension band is an elastic band.
19. The tensegrity external fixator system of claim 1, wherein the first bone portion is in a first bone and the second bone portion is a second bone.
10. The tensegrity external fixator system of claim 1, wherein the first bone portion is in a first bone and the second bone portion is a second bone.
20. The tensegrity external fixator system of claim 19, wherein the first stud is
configured effectively at a center of rotation of the joint.
11. The tensegrity external fixator system of claim 10, wherein the first bone is separated from the second bone by a joint.
12. The tensegrity external fixator system of claim 11, wherein the first stud is configured effectively at a center of rotation of the joint.
As is evident from the table above, Patent claim 1 discloses all of the elements of application claim 1. While Patent claim 1 recites “wherein the first stud and second stud are pulled away from each other”, instead of “wherein the first stud and second stud are forced away from each other” as required by application claim 1. It is clear that the studs being pulled away from each other anticipates them being forced away, since pulling is applying a tensile force.
Allowable Subject Matter
Claim(s) 1-2, 8-13, 19-20 would be allowable if a timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) is filed to overcome the rejection(s) under nonstatutory double patenting, set forth in this Office action.
Claim(s) 3-7, 14-18 is/are 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: The claims in the instant application have not been rejected using prior art because no references, or reasonable combination thereof could be found which disclose, or suggest:
A tensegrity external fixator system comprising: a) a first stud and a second stud; b) a compressor assembly; c) a tension band that extends between the tension retainer of the first extended end and the stud retainer of the first stud and applies tension to the stud retainer and first stud; and wherein the first stud and second stud are forced away from each other to place the first bone portion and second bone portion in traction; and as per claim 1, wherein the compression assembly comprises a compression element that is under compression when an extended end of the first extension is coupled with the tension band; and as per claim 3, a second tension band, wherein said second tension band extends between the tension retainer of the second extended end and the stud retainer; and as per claim 4, further comprises a torque stabilizer coupler extending between and pulling the torque stabilizer of the first stud and the second stud toward each other; and as per claim 5, two studs on said first side of the bone fracture, wherein the first tension band couples said two studs and the tension retainer; and as per claim 15, further comprising a tension controller coupled with the tensioning device and configured to change the tension of the tension band.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See PTO-892.
The following references disclose dynamic external systems for compression / distraction; however fail to disclose, a tension band that extends between the tension retainer of the first extended end and the stud retainer of the first stud and applies tension to the stud retainer and first stud; and wherein the first stud and second stud are forced away from each other to place the first bone portion and second bone portion in traction; wherein the compression assembly comprises a compression element that is under compression when an extended end of the first extension is coupled with the tension band:
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/M.C.G/ Examiner, Art Unit 3773 /EDUARDO C ROBERT/ Supervisory Patent Examiner, Art Unit 3773