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 .
Information Disclosure Statement
The information disclosure statement filed 1/16/2026, 7/9/2025, 5/15/2025 fails to comply with the provisions of 37 CFR 1.98(a)(4) because it lacks the appropriate size fee assertion. It has been placed in the application file, but the information referred to therein has not been considered as to the merits.
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) 1-6 is/are rejected on the ground of nonstatutory double patenting as being unpatentable over claim(s) 1-6 of U.S. Patent No. 11,857,432 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. An implant, comprising: an upper support comprising an upper plate configured to receive a first anchoring member, the upper support comprising a first end, a second end opposite the first end, a first side extending between the first end and the second end, and a second side opposite the first side and extending between the first end and the second end, the upper plate configured to receive the first anchoring member such that a first center-line trajectory of the first anchoring member is angled towards the first side; a lower support coupled to the upper support, the lower support comprising a lower plate configured to receive a second anchoring member such that a second center-line trajectory of the second anchoring member is angled towards the first side; and a control member configured to control relative movement between the upper support and the lower support.
7. The implant of claim 1, wherein the lower support is coupled to the upper support in a non-hinged fashion.
1. An implant, comprising: an upper support comprising an upper plate configured to receive a first anchoring member, the upper support comprising a first end, a second end opposite the first end, a first side extending between the first end and the second end, and a second side opposite the first side and extending between the first end and the second end, the upper plate configured to receive the first anchoring member such that a first center-line trajectory of the first anchoring member is angled towards the first side; a lower support coupled to the upper support in a non-hinged fashion, the lower support comprising a lower plate configured to receive a second anchoring member such that a second center-line trajectory of the second anchoring member is angled towards the first side; a control member comprising a head and a shaft and configured to control relative movement between the upper support and the lower support, the shaft defining an axis positioned at approximately a midpoint between the first and second sides of the upper support; a front portion comprising a first upper wedge surface configured to engage the first end of the upper support and a first lower wedge surface configured to engage the first end of the lower support, the front portion further configured to receive the head of the control member; and a rear portion comprising a second upper wedge surface configured to engage the second end of the upper support and a second lower wedge surface configured to engage the second end of the lower support, the rear portion further configured to engage a portion of the shaft, wherein manipulation of the control member causes the front portion to move relative to the rear portion, such that the upper support moves relative to the lower support; wherein the rear portion comprises a cylindrical member defining a cylindrical exterior surface extending from the second upper wedge surface and the second lower wedge surface and toward the front portion, wherein the cylindrical member comprises a threaded bore configured to threadingly receive the portion of the shaft.
2. The implant of claim 1, wherein manipulation of the control member causes a front portion to move towards a rear portion and causes the upper support to move away from the lower support, wherein the front portion comprises a first wedge surface configured to engage the first end of the upper support and the rear portion comprises a second wedge surface configured to engage the first end of the upper support.
2. The implant of claim 1, wherein the manipulation of the control member causes the front portion to move towards the rear portion and causes the upper support to move away from the lower support.
3. The implant of claim 1, wherein the upper support and the lower support are identical.
3. The implant of claim 1, wherein the upper support and lower support are identical.
4. The implant of claim 1, further comprising a plurality of anchoring members, including the first anchoring member and the second anchoring member.
4. The implant of claim 1, further comprising a plurality of anchoring members, including the first anchoring member and the second anchoring member.
5. The implant of claim 4, wherein the implant has a longitudinal axis; and
the upper plate is configured to receive an anchoring member such that a center- line trajectory of the anchoring member and the longitudinal axis of the implant form a plate angle greater than 0 degrees.
5. The implant of claim 4, wherein the implant has a longitudinal axis; and the upper plate is configured to receive an anchoring member such that the center-line trajectory of the anchoring member and the longitudinal axis of the implant form a plate angle greater than 0 degrees.
6. The implant of claim 1, wherein the upper plate is further configured to receive a first retention member, and wherein the lower plate is further configured to receive a second retention member; wherein the first retention member and the second retention member each comprises a flat portion and a rounded shoulder portion; and wherein the rounded shoulder portion of the first retention member is configured to engage a head of the first anchoring member.
6. The implant of claim 1, wherein the upper plate is further configured to receive a first retention member, and wherein the lower plate is further configured to receive a second retention member; wherein the first retention member and the second retention member each comprises a flat portion and a rounded shoulder portion; and wherein the rounded shoulder portion of the first retention member is configured to engage the head of the first anchoring member.
As is evident from the table above, Patent claim 1 discloses all of the elements of application claims 1 and 7, with additional limitations; and Patent claims 2-6 disclose all of the elements of application claims 2-6.
Claim(s) 8-20 is/are rejected on the ground of nonstatutory double patenting as being unpatentable over claim(s) 8-14 of U.S. Patent No. 11,857,432 B2 in view of Seifert et al. (U.S. Pub. No. 2019/0328540 A1, hereinafter “Seifert”).
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:
8. An implant comprising: a first anchoring member; a second anchoring member; an upper support configured to engage the first portion of bone, the upper support comprising an upper plate at a first end of the upper support and a side projection, the upper plate configured to receive the first anchoring member such that a first center-line trajectory of the first anchoring member is angled towards a first side of the implant to secure the upper support to the first portion of bone; a lower support coupled to the upper support, the lower support being configured to engage the second portion of bone, the lower support comprising a lower plate at a first end of the lower support and a side slot configured to receive the side projection of the upper support, the lower plate configured to receive the second anchoring member such that a second center-line trajectory of the second anchoring member is angled towards the first side; and a control assembly configured to control relative movement between the upper support and the lower support.
12. The implant of claim 8, wherein the control assembly further comprises: a front portion configured to engage the upper support at the first end of the upper support; and a rear portion configured to engage the upper support at a second end of the upper support, the second end being opposite the first end.
13. The implant of claim 12, wherein the control assembly further comprises a control member adjustably engaging the front portion and the rear portion.
14. The implant of claim 8, wherein during expansion of the implant a sidewall of the side projection remains proximate a sidewall of the side slot.
8. An implant comprising: an upper support configured to engage a first portion of bone, the upper support comprising an upper plate at a first end of the upper support and a side projection, the upper plate configured to receive a first anchoring member such that a first center-line trajectory of the first anchoring member is angled towards a first side of the implant to secure the upper support to the first portion of bone; a lower support coupled to the upper support in a non-hinged fashion, the lower support being configured to engage a second portion of bone, the lower support comprising a lower plate at a first end of the lower support and a side slot configured to receive the side projection of the upper support, the lower plate configured to receive a second anchoring member such that a second center-line trajectory of the second anchoring member is angled towards the first side to secure the lower support to the second portion of bone; a control assembly configured to control relative movement between the upper support and the lower support, the control assembly comprising; a front portion configured to engage the upper support at only the first end of the upper support; a rear portion configured to engage the upper support at only a second end of the upper support, the second end being opposite the first end; and a control member adjustably engaging the front portion and the rear portion; wherein during expansion of the implant a sidewall of the side projection remains proximate a sidewall of the side slot; wherein the upper support wedgingly engages the control assembly only at a single longitudinal position of the front portion and a single longitudinal position of the rear portion and wherein the lower support wedgingly engages the control assembly only at the single longitudinal position of the front portion and the single longitudinal position of the rear portion.
9. The implant of claim 8, wherein manipulation of the control assembly causes a front portion to move towards a rear portion and causes the upper support to move away from the lower support.
9. The implant of claim 8, wherein manipulation of the control member causes the front portion to move towards the rear portion and causes the upper support to move away from the lower support.
10. The implant of claim 8, wherein the first anchoring member and the second anchoring member are bone screws.
10. The implant of claim 8, wherein the first anchoring member and the second anchoring member are bone screws.
11. The implant of claim 8, wherein the upper plate is further configured to receive a first retention member, and wherein the lower plate is further configured to receive a second retention member; wherein each of the first retention member and the second retention member comprises a flat portion and a rounded shoulder portion; and wherein the rounded shoulder portion of the first retention member is configured to engage a head of the first anchoring member.
11. The implant of claim 8, wherein the upper plate is further configured to receive a first retention member, and wherein the lower plate is further configured to receive a second retention member; wherein each of the first retention member and the second retention member comprises a flat portion and a rounded shoulder portion; and wherein the rounded shoulder portion of the first retention member is configured to engage a head of the first anchoring member.
15. An implant, comprising: a first bone screw; a second bone screw; a first support comprising an upper plate configured to receive the first bone screw, the upper plate configured to receive the first bone screw such that a first center-line trajectory of the first bone screw is angled towards a first lateral side; a second support comprising a lower plate configured to receive the second bone screw such that a second center-line trajectory of the second bone screw is angled towards the first lateral side; and a control member configured to control relative movement between the first support and the second support.
20. The implant of claim 15, wherein the control member comprises a head and a shaft, and wherein the head of the control member comprises a tool port in communication with an opening on a side of the shaft to enable delivery of material to an interior of the implant via the tool port.
12. An implant, comprising: an upper support comprising an upper plate configured to receive a first bone screw, the upper support comprising a first end, a second end opposite the first end, a first side extending between the first end and the second end, and a second side opposite the first side and extending between the first end and the second end, the upper plate configured to receive the first bone screw such that a first center-line trajectory of the first bone screw is angled towards the first side; a lower support comprising a lower plate configured to receive a second bone screw such that a second center-line trajectory of the second bone screw is angled towards the first side; a control member comprising a head and a shaft and configured to control relative movement between the upper support and the lower support, the shaft defining an axis positioned at approximately a midpoint between the first and second sides of the upper support; a front portion comprising a first upper surface configured to engage the upper support and a first lower surface configured to engage the lower support, the front portion further configured to receive the head of the control member; and a rear portion comprising a second upper surface configured to engage the upper support, a second lower surface configured to engage the lower support, and a cylindrical member extending from the second upper surface and the second lower surface and defining a cylindrical exterior surface, the cylindrical member comprising threads configured to threadingly engage a portion of the shaft, wherein manipulation of the control member causes the front portion to move relative to the rear portion, such that the upper support moves relative to the lower support; wherein the head of the control member comprises a tool port in communication with an opening on a side of the shaft to enable delivery of material to an interior of the implant via the tool port; wherein the shaft comprises a non-threaded portion adjacent the head and a threaded portion adjacent the non-threaded portion, wherein opening is positioned on the non-threaded portion of the shaft.
16. The implant of claim 15, wherein a front portion engages the first support at a first end of the first support and a rear portion engages the first support at a second end of the first support opposite the first end.
13. The implant of claim 12, wherein the front portion engages the upper support at only a first end of the upper support and the rear portion engages the upper support at only a second end of the upper support opposite the first end.
17. The implant of claim 15, wherein the first support comprises a side projection configured to be received in a side slot of the second support such that during expansion of the implant sidewalls of the side projection remain proximate corresponding sidewalls of the side slot.
14. The implant of claim 12, wherein the upper support comprises a side projection configured to be received in a side slot of the lower support such that during expansion of the implant opposite sidewalls of the side projection remain proximate corresponding sidewalls of the side slot.
As is evident from the table above, Patent claims 8 and 12 disclose all of the elements of application claims 8, 12-15, 20, as well as additional elements. Patent claims 8 and 12 however fail to disclose, regarding claims 8 and 15, a first anchoring member; a second anchoring member; regarding claim 18, wherein the first support receives the first bone screw at a position offset to the first side and the second support receives the second bone screw at a position offset to the second side; regarding claim 19, wherein manipulation of the control member causes a front portion to move towards a rear portion and causes the first support to move away from the second support.
Seifert discloses an implant (600, see Fig. 12A), a first support (602) comprising an upper plate (648) configured to receive the first bone screw (via bore 650, see Fig. 1), the upper plate configured to receive the first bone screw (651, see Fig. 12A, see para. [0127]); a second support (604) comprising a lower plate (660) configured to receive the second bone screw (via bore 662); and a control member (702) configured to control relative movement between the first support and the second support (see Fig. 12A, see para. [0142]); wherein the implant comprises: a first bone screw (651); a second bone screw (663); and wherein the first support receives the first bone screw at a position offset to the first side and the second support receives the second bone screw at a position offset to the second side (see annotated Fig. 12D below); and wherein manipulation of the control member causes a front portion (608) to move towards a rear portion (606) and causes the first support to move away from the second support (see para. [0141]) in order to enable fixation between the upper and lower plate to the superior and inferior vertebrae, while avoiding certain anatomical structures (see para. [0144]); and in order to enable the upper and lower plate to be pushed apart to increase the height of the implant and the spacing between the superior and inferior vertebrae (see para. [0141]);
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It would have been obvious to one having ordinary skill in the art at the time the invention was made to modify the implant in Patent claims 8 and 12 to include a first and second bone screw in view of Seifert in order to enable fixation between the upper and lower plate to the superior and inferior vertebrae and to modify the implant in Patent claim 12 to include the first and second bone screws being received in openings offset from the first side and wherein manipulation of the control member causes a front portion to move towards a rear portion and causes the first support to move away from the second support in order to enable fixation between the upper and lower plate to the superior and inferior vertebrae, while avoiding certain anatomical structures; and in order to enable the upper and lower plate to be pushed apart to increase the height of the implant and the spacing between the superior and inferior vertebrae.
Claim Rejections - 35 USC § 102
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1-7, 15-16, 18-19 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Seifert et al. (U.S. Pub. No. 2019/0328540 A1, hereinafter “Seifert”).
Seifert discloses, regarding claim 1, an implant (600, see Fig. 12A), comprising: an upper support (602) comprising an upper plate (648) configured to receive (via bore 650) a first anchoring member (651, see Fig. 12A, see para. [0127]), the upper support comprising a first end (610), a second end opposite the first end (612, see Fig. 12A, see para. [0126]), a first side extending between the first end and the second end (618, see Fig. 12A, see para. [0126]), and a second side opposite the first side and extending between the first end and the second end (620, see Fig. 12A, see para. [0126]), the upper plate configured to receive the first anchoring member such that a first center-line trajectory (652) of the first anchoring member is angled towards the first side (see annotated Fig. 12C below); a lower support (604) coupled to the upper support (see Fig. 12F), the lower support comprising a lower plate (660) configured to receive (via bore 662) a second anchoring member (663) such that a second center-line trajectory (668) of the second anchoring member is angled towards the first side (see annotated Fig. 12C below); and a control member (702) configured to control relative movement between the upper support and the lower support (see Fig. 12A, see para. [0142]).
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Regarding claim 2, wherein manipulation of the control member causes a front portion (606) to move towards a rear portion (608, see para. [0141]), wherein the front portion comprises a first wedge surface (684) configured to engage the first end of the upper support (see Fig. 12A, see para. [0133]) and the rear portion comprises a second wedge surface (684) configured to engage the first end of the upper support (see Fig. 12A, see para. [0137], e.g. engages 602 via engagement with 606).
Regarding claim 3, wherein the upper support and the lower support are identical (see Fig. 12A, see also para. [0129] “all of the same features” and “may be symmetrical with respect to each other”).
Regarding claim 4, further comprising a plurality of anchoring members (651 and 663, see Fig. 12A), including the first anchoring member (651) and the second anchoring member (663).
Regarding claim 5, wherein the implant has a longitudinal axis (626, 670, see Fig. 12B); and the upper plate is configured to receive an anchoring member such that a center- line trajectory of the anchoring member and the longitudinal axis of the implant form a plate angle greater than 0 degrees (angle ץ, see Fig. 12B).
Regarding claim 6, wherein the upper plate is further configured to receive a first retention member (656), and wherein the lower plate is further configured to receive a second retention member (666), wherein the first retention member and the second retention member each comprises a flat portion (see annotated Fig. 12A below) and a rounded shoulder portion (see annotated Fig. 12A below); and wherein the rounded shoulder portion of the first retention member is configured to engage a head of the first anchoring member (see para. [0144]).
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Regarding claim 7, wherein the lower support is coupled to the upper support in a non-hinged fashion (see Figs. 12B and 12D, note that connection is via 606 and 608 and 606 and 608 are not hinged).
Seifert discloses, regarding claim 15, an implant (600, see Fig. 12A), comprising: a first bone screw (651); a second bone screw (663); a first support (602) comprising an upper plate (648) configured to receive the first bone screw (via bore 650, see Fig. 1), the upper plate configured to receive the first bone screw (651, see Fig. 12A, see para. [0127]) such that a first center-line trajectory of the first bone screw is angled towards a first lateral side (see annotated Fig. 12C above); a second support (604) comprising a lower plate (660) configured to receive the second bone screw (via bore 662) such that a second center-line trajectory of the second bone screw is angled towards the first lateral side (see annotated Fig. 12C above); and a control member (702) configured to control relative movement between the first support and the second support (see Fig. 12A, see para. [0142]).
Regarding claim 16, wherein a front portion (606) engages the first support at a first end of the first support (via 684, see Fig. 12A, see para. [0133]) and a rear portion (608) engages the first support at a second end of the first support opposite the first end (via 684, see Fig. 12A, see para. [0137]).
Regarding claim 18, wherein the first support receives the first bone screw at a position offset to the first side (see annotated Fig. 12D below) and the second support receives the second bone screw at a position offset to the second side (see annotated Fig. 12D below).
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Regarding claim 19, wherein manipulation of the control member causes a front portion (606) to move towards a rear portion (608) and causes the first support to move away from the second support (see para. [0141]).
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.
Claim(s) 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Seifert, as applied to claim 15 above, and in view of Hsu et al. (U.S. Pub. No. 2018/0193160 A1, hereinafter “Hsu”).
Seifert discloses all of the features of the claimed invention, as previously set forth above, except regarding claim 17, wherein the first support comprises a side projection configured to be received in a side slot of the second support such that during expansion of the implant sidewalls of the side projection remain proximate corresponding sidewalls of the side slot.
Hsu discloses an implant (1, see Figs. 1-2) with a first support (100) and a second support (200), with a control member (400, see Fig. 3) configured to control relative movement between the upper support and the lower support (see Fig. 2, see para. [0030]); wherein the first support comprises a side projection (130) configured to be received in a side slot (232) of the second support such that during expansion of the implant sidewalls of the side projection remain proximate corresponding sidewalls of the side slot (see Figs. 1-2, see para. [0037]) in order to define a maximum distance of separation between the first and second supports and prevent them from completely separating during the process of expansion (see para. [0037]).
It would have been obvious to one having ordinary skill in the art at the time the invention was made to modify the first support in Seifert to include a side projection and to modify the second support in Seifert to include a side slot in view of Hsu in order to define a maximum distance of separation between the first and second supports and prevent them from completely separating during the process of expansion.
Claim(s) 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Seifert, as applied to claim 15 above, and in view of Butler et al. (U.S. Pub. No. 2017/0224504 A1, hereinafter “Butler”).
Seifert discloses all of the features of the claimed invention, as previously set forth above. Seifert further discloses, regarding claim 20, wherein the control member comprises a head (e.g. proximal end of 704, see Fig. 12A, see para. [0135]) and a shaft (e.g. threaded portion of 704), and wherein the head of the control member comprises a tool port (710); and that bore (690) can be used as an access port to enable graft material to be delivered into cavity (692, see Fig. 12C and para. [0135]); however, fails to explicitly disclose, regarding claim 20, wherein the tool port is in communication with an opening on a side of the shaft to enable delivery of material to an interior of the implant via the tool port.
Butler discloses an implant (see Fig. 33) with a control member (216) with a tool port (236, see Fig. 236) that is in communication with an opening on a side of the shaft (238) in order to provide a fluid path to an interior of implant and enable delivery of fluid, bone growth material, or other material to an interior of implant (see para. [0057]).
It would have been obvious to one having ordinary skill in the art at the time the invention was made to modify the tool port in Seifert to be in communication with an opening on a side of the shaft to enable delivery of material to an interior of the implant via the tool port in view of Butler in order to provide a fluid path to an interior of implant and enable delivery of fluid, bone growth material, or other material to an interior of implant.
Claim(s) 8-14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Seifert et al. (U.S. Pub. No. 2019/0328540 A1, hereinafter “Seifert”) in view of Hsu et al. (U.S. Pub. No. 2018/0193160 A1, hereinafter “Hsu”).
Seifert discloses, regarding claim 8, an implant (600, see Fig. 12A) comprising: a first anchoring member (651, see Fig. 12A); a second anchoring member (663, see Fig. 12A); an upper support (602) configured to engage the first portion of bone (protrusions on surface 622, see para. [0126]), the upper support comprising an upper plate (648) at a first end (612) of the upper support (see Fig. 12A), the upper plate configured to receive the first anchoring member such that a first center-line trajectory (652) of the first anchoring member is angled towards a first side of the implant to secure the upper support to the first portion of bone (see annotated Fig. 12C below); a lower support (604) coupled to the upper support (see Fig. 12F), the lower support being configured to engage the second portion of bone (protrusions on surface 628, see para. [0126]), the lower support comprising a lower plate (660) at a first end of the lower support (612), the lower plate configured to receive the second anchoring member such that a second center-line trajectory (668) of the second anchoring member is angled towards the first side (see annotated Fig. 12C below); and a control assembly (702, 606 and 608) configured to control relative movement between the upper support and the lower support (see Fig. 12A, see para. [0142]).
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Regarding claim 9, wherein manipulation of the control assembly causes a front portion (608) to move towards a rear portion (606, see para. [0141]) and causes the upper support to move away from the lower support (see para. [0141]).
Regarding claim 10, wherein the first anchoring member and the second anchoring member are bone screws (see Fig. 12A).
Regarding claim 11, wherein the upper plate is further configured to receive a first retention member (656), and wherein the lower plate is further configured to receive a second retention member (666); wherein each of the first retention member and the second retention member comprises a flat portion (see annotated Fig. 12A below) and a rounded shoulder portion (see annotated Fig. 12A below); and wherein the rounded shoulder portion of the first retention member is configured to engage a head of the first anchoring member (see para. [0144]).
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Regarding claim 12, wherein the control assembly further comprises: a front portion (608) configured to engage the upper support at the first end of the upper support; and a rear portion (606) configured to engage the upper support at a second end (610) of the upper support, the second end being opposite the first end (see Fig. 12A, see para. [0141]).
Regarding claim 13, wherein the control assembly further comprises a control member (702) adjustably engaging the front portion and the rear portion (see Fig. 12A, see para. [0141]).
Seifert fails to disclose, regarding claim 8, wherein the upper support comprises a side projection; and wherein the lower support comprises a side slot configured to receive the side projection of the upper support; and regarding claim 14, wherein during expansion of the implant a sidewall of the side projection remains proximate a sidewall of the side slot.
Hsu discloses an implant (1, see Figs. 1-2) with an upper support (100) and a lower support (200), with a control member (400, see Fig. 3) configured to control relative movement between the upper support and the lower support (see Fig. 2, see para. [0030]); wherein the upper support comprises a side projection (130) configured to be received in a side slot (232) of the lower support such that during expansion of the implant sidewalls of the side projection remain proximate corresponding sidewalls of the side slot (see Figs. 1-2, see para. [0037]) in order to define a maximum distance of separation between the upper and lower supports and prevent them from completely separating during the process of expansion (see para. [0037]).
It would have been obvious to one having ordinary skill in the art at the time the invention was made to modify the upper support in Seifert to include a side projection and to modify the lower support in Seifert to include a side slot in view of Hsu in order to define a maximum distance of separation between the upper and lower supports and prevent them from completely separating during the process of expansion.
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 expandable implants with upper and lower plates:
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/M.C.G/ Examiner, Art Unit 3773 /EDUARDO C ROBERT/ Supervisory Patent Examiner, Art Unit 3773