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
This Office Action is responsive to the amendment filed on 05 September 2025. As directed by the amendment: claims 1-37 are cancelled and claims 38-57 are newly added. Claims 38-57 currently stand pending in the application.
The cancellation of claims 1-37 has rendered moot the relevant claim objections and rejections under 35 U.S.C. 112(b) listed in the previous action. However, further claim objections and rejections under 35 U.S.C. 112 are provided below as necessitated by new claims 38-57.
Response to Arguments
Applicant's arguments with respect to the rejections under 35 U.S.C. 103 as being unpatentable over Ziolo (US 9,265,531) in view of Swann (US 9,107,710) and Gephart (US 2020/0000501) have been fully considered but they are not persuasive. Applicant contends that Ziolo, and, similarly, Swann, teach a method of assembling a bone plate that includes a single-step self-locking mechanism which teaches away from locking mechanisms known in the art that require a surgeon to first move the locking mechanism and then lock the locking mechanism in place, and thus contends that Ziolo and Swann do disclose a method of assembling a bone plate. Examiner respectfully submits that the single-step self-locking mechanism disclosed in Ziolo and Swann has to do with the insertion of a fastener into a throughbore of the plate, where the slider (locking mechanism 108 in Ziolo and retaining member 36 in Swann) provides the single-step self-locking mechanism by virtue of the resilient member causing the slider to automatically return to the default position (locked over the head of the fastener), thus not requiring manual manipulation by the surgeon to lock the locking mechanism in place. The single-step self-locking mechanism functions after the bone plate has been assembled with the slider and resilient member positioned in the bone plate. Swann is relied upon to teach the method of assembling the slider and resilient member into position in the plate. Even in the instant application, the method of assembling is to assemble the slider and resilient member into position in the plate, before a fastener is inserted into a throughbore of the plate and before any self-locking. Applicant contends that the separation of the parts of Ziolo or Swann into a plurality of constituent elements requiring combination prior to assembly would defeat the single-step aspect required by Ziolo. Again, Examiner respectfully submits that any assembly of constituent elements is not prior to assembly but included in the assembly of the bone plate with the slider/resilient member. This assembly is prior to the single-step aspect, and would not defeat the single-step aspect because, once assembled, the slider/resilient member offer single-step self-locking of an inserted fastener.
In referencing Gephart, Applicant again contends that comprising the slider and the resilient member of Ziolo as two separate parts would irreparably change the principles of operation of Ziolo, including the single-step nature. Examiner respectfully submits that any assembly of constituent elements is included in the assembly of the bone plate with the slider/resilient member (no matter how many components are included), which is prior to the single-step aspect, and would not defeat the single-step aspect because, once assembled, the slider/resilient member offer single-step self-locking of an inserted fastener.
Applicant contends that modification in view of Gephart would require significant restructuring/redesigning without any reasonable expectation of success given the lack of motivation, suggestion, or teaching in either Ziolo or Gephart. Applicant contends that there is only improper conclusory statements of obviousness. Examiner respectfully submits that comprising a formerly integral structure in various elements involves only routine skill in the art and therefore, particularly in view of Gephart’s disclosure, there is a reasonable expectation of success as a resilient pin is well known in the art. Ziolo provides this suggestion as well by contemplating that “the flanges 206 may be replaced with any mechanism that is operable to slide the locking mechanism 108 between the positions 250, 260. For example, an exemplary locking mechanism 108 may be pushed towards the aperture 104 by a spring (not shown) disposed in the recess slot 208. The spring may be machined in to the substrate 102 or modularly disposed therein” (col. 5 / lines 21-27). Therefore, Ziolo does provide motivation, suggestion, or teaching because Ziolo contemplates a separate spring (e.g. a resilient member) and therefore there is a reasonable expectation of success of providing a separate spring as taught by Gephart. Any obviousness rejection would require some amount of modification, but Applicant provides mere conjecture that such modification would be so significant so as to be unreasonable, or would affect structural integrity. The mere fact that Ziolo contemplates a separate spring indicates that such modification would be applicable to Ziolo and not detrimentally affect the device structure or functioning. As above, the modification in view of Gephart would not destroy the principles of operation and intended method of use for each reference, since the single-step aspect has to do with the insertion of a fastener into the throughbore after the assembly of the slider/resilient member into the plate.
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Applicant contends that Gephart does not include retainer portions which form a constriction between the throughbore and the receptacle, and opposing recesses allow the pin to maintain an unloaded configuration. Examiner respectfully submits that Gephart is relied upon as a teaching of a two-part slider and resilient member, where the resilient member extends within a channel of the slider and the slider can in part cause deformation of the resilient member. Ziolo and Swann disclose the limitations regarding positioning a slider and a resilient member in a throughbore of a bone plate body and applying force to force the distal ends of the resilient member against the retainer portions and advance the slider into the receptacle, where distal ends of the resilient member are in opposing recesses. As modified in view of Gephart, the slider and the resilient member would comprise two separate parts, but the functioning and assembly would remain as disclosed and required by Ziolo and Swann.
Specification
The specification is objected to as failing to provide proper antecedent basis for the claimed subject matter. See 37 CFR 1.75(d)(1) and MPEP § 608.01(o). Correction of the following is required: the specification fails to provide proper antecedent basis for a partition that at least partially separates the opposing recesses from the receptacle and from the throughbore (claims 41, 48, and 55).
Claim Objections
Claims 38-57 are objected to because of the following informalities: improper antecedence and language. Appropriate correction is required. The following amendments are suggested:
Claim 38 / line 2: “providing [[a]] the bone plate”
Claim 38 / line 16: “length of the resilient pin in the unloaded configuration”
Claim 39 / line 1: “assembling [[a]] the bone plate”
Claim 40 / lines 4-5: “the applying of the force to the slider and/or the resilient pin.”
Claim 41 / line 3: “and from the first throughbore”
Claim 42 / line 1: “each of the opposing recesses”
Claim 43 / line 2: “includes [[the]] insertion of the resilient pin”
Claim 43 / line 4: “closer to the first throughbore”
Claim 44 / lines 1-2: “the applying of [[a]] the force to the slider and/or the resilient pin”
Claim 45 / line 2: “providing [[a]] the bone plate”
Claim 45 / line 15: “length of the resilient member in the unloaded configuration”
Claim 47 / lines 4-5: “the applying of the force to the slider and/or the resilient member.”
Claim 48 / line 3: “throughbore”
Claim 49 / line 1: “each of the opposing recesses”
Claim 50 / line 2: “includes [[the]] insertion of the resilient member”
Claim 51 / lines 1-2: “the applying of [[a]] the force to the slider and/or the resilient member”
Claim 52 / line 2: “providing [[a]] the bone plate”
Claim 52 / line 5: “distal ends of the respective resilient pin”
Claim 54 / line 4: “of a respective slider of the plurality”
Claim 55 / line 3: “and from the first throughbore”
Claim 57 / lines 2-7: “includes [[the]] insertion of said first resilient pin into a channel through said first slider, wherein the channel is defined at least partially between a wall and a foot portion, wherein the wall being closer to the first throughbore when the first slider is in the receptacle, and wherein the applying of [[a]] the force an intermediate portion of said first resilient pin bending around the wall first slider when the distal ends of said first resilient pin are positioned against the retainer portions.”
Claim Interpretation
As to claim 52 / line 14, the limitation “providing the first resilient pin in the bone plate in a loaded configuration” is interpreted to mean that the first resilient pin is, at some point while in the bone plate, in the loaded configuration. Any interpretation to mean that the first resilient pin is introduced into the bone plate in a loaded configuration (e.g. when positioned in the first throughbore) would comprise new matter since the specification recites that the slider is positioned in the throughbore with the pin in a straight, undeflected configuration extending in the channel (par. [0045] of publication).
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 41, 48, and 55 are rejected under 35 U.S.C. 112(a) as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
As to claims 41, 48, and 55, the specification fails to describe a partition that at least partially separates the opposing recesses from the receptacle and from the throughbore. The opposing recesses are between the receptacle and the throughbore and there is no partition described that separates the opposing recesses from the receptacle and from the throughbore, particularly since the recesses are themselves between the receptacle and the throughbore.
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 44, 50, 51, and 54-57 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
As to claims 44, 51, and 57, the limitation “the intermediate portion of the resilient pin/member” lacks proper antecedent basis in the claims. For examination purposes, the limitation will be interpreted as “an intermediate portion of the resilient pin/member”.
Further as to claims 44, 51, and 57, the limitation “the wall portion” lacks proper antecedent basis in the claims. For examination purposes, the limitation will be interpreted as “the wall”.
As to claim 50, the limitation “wherein the positioning of the slider and the resilient member in the throughbore includes the insertion” renders the claims indefinite because the positioning of the resilient member in the throughbore lacks proper antecedent basis in the claims. Claim 45 recites “positioning the resilient member within the slider and the slider in the throughbore” but because the method does not recite that the steps are performed in a particular order, the positioning of the resilient member within the slider does not necessitate that the resilient member is positioned in the throughbore just because the slider is positioned in the throughbore. The slider may be positioned in the throughbore before the resilient member is positioned within the slider. For examination purposes, the limitation will be interpreted as “wherein the positioning of the resilient member within the slider includes insertion”.
As to claim 54, the limitation “prior to the applying of force to said slider and/or resilient pin” lacks proper antecedent basis in the claims. For examination purposes, the limitation will be interpreted as “prior to the applying of the force”.
As to claim 55, the limitation “wherein the opposing recesses” (line 1) lacks proper antecedent basis in the claims. For examination purposes, the limitation will be interpreted as “opposing recesses”.
As to claim 56, the limitation “each opposing recess” (line 1) lacks proper antecedent basis in the claims. For examination purposes, the limitation will be interpreted as “each of opposing recesseses”.
As to claim 57, the limitation “the applying of a force to said slider and/or resilient pin” (line 5) lacks proper antecedent basis in the claims. For examination purposes, the limitation will be interpreted as “the applying of the force”.
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.
Claims 38-42 and 52-56 are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent No. US 9,265,531 to Ziolo, in view of U.S. Patent No. US 9,107,710 to Swann.
As to claim 38, Ziolo discloses a bone plate comprising a plurality of throughbores (104); providing a slider (top half of 108 including 110) and a resilient pin (bottom half of 108 including 206’s) (col. 4 / lines 36-43), FIG. 3B; wherein the resilient pin comprises an unloaded configuration, FIG. 3B, having a length and a loaded configuration characterized by distal ends of the resilient pin being spaced apart a distance that is less than the length (col. 7 / lines 12-23, col. 8 / lines 37-50); wherein the bone plate comprises retainer portions (portions of walls of recesses 208, that constrict inwardly from the widest part of the recess to form the narrower portion of the recesses at a location between the throughbore and a portion of receptacle 106, see annotated figure below) forming a constriction between the first throughbore and a receptacle (106) for receiving the slider (col. 7 / lines 12-15), FIG. 1A; applying a force to at least one of the slider and the resilient pin to force the distal ends of the resilient pin against the retainer portions and provide the resilient pin in the loaded configuration and advance the slider into the receptacle (a force from an inserted fastener forces the distal ends/free arms 206 of the resilient pin against the retainer portions and provides the resilient pin in the loaded configuration and advances the slider further into the receptacle 106 into position 260, FIG. 2B; col. 4 / line 65 – col. 5 / line 8); and providing the distal ends (free arms) of the resilient pin in respective opposing recesses (208) provided in the bone plate, wherein a distance between inner surfaces (at narrower portion of the recesses) of the opposing recesses is less than the length of the resilient pin such that an engagement of the distal ends of the resilient pin within the opposing recesses maintains the loaded configuration (col. 4 / line 65 – col. 5 / line 8) and inhibits the resilient pin from shifting radially inward (the resilient pin is inhibited by its material composition from shifting radially inward – from the 206’s shifting more toward each other or radially inward toward each other – because the natural tendency is for them to move away from each other, so that when in the loaded configuration the pin is inhibited from becoming more loaded unless an external force is applied; in addition or alternatively, while the fastener is being inserted resulting in the pin distal ends being in the narrower portion of the recesses and the pin being in the loaded configuration, the presence of the fastener also inhibits the resilient pin from shifting radially inward toward the throughbore 104).
As to claim 39, Ziolo discloses the method of claim 38, wherein each of the plurality of throughbores comprises a respective slider and resilient pin, FIG. 1D.
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Ziolo, FIG. 11, annotated
As to claim 40, Ziolo discloses the method of claim 38, wherein the resilient pin comprises an elongated shape having an intermediate portion (middle of bottom half of 108) between the distal ends, and wherein the resilient pin is disposed in a substantially transverse alignment to a length (along length of 110) of the slider (the middle of the bottom half of 108 is substantially transverse to the length of 110) such that the distal ends (at 206s) extend generally perpendicularly from opposing sides of the slider (the distal ends at 206 extend generally perpendicularly from adjacent portions of the opposing sides of the slider, since as shown in FIG. 3A the distal ends are perpendicular in a general manner since they extend out from and away from the sides of the slider and are not parallel to the sides of the slider) prior to the applying of force to the slider and/or resilient pin, FIG. 3A.
As to claim 41, Ziolo discloses the method of claim 38, wherein the opposing recesses are located on opposite sides of the receptacle (one 208 on each side of a respective 106, to receive the 206s on either side), and wherein the opposing recesses are at least partially separated from the receptacle and from at least one of the plurality of throughbores by a partition (the edge of each 208 separates the recess from all other components including the receptacle and the throughbore).
As to claim 42, Ziolo discloses the method of claim 38, wherein the receptacle and each opposing recess comprise an arcuate shape (the receptacle 106 has an arcuate shape at its curved end and each recess 208 has an arcuate shape at the surface of the narrower portion, FIG. 11).
Although Ziolo’s bone plate must be assembled somehow, Ziolo does not disclose a method of assembling a bone plate, the method comprising: providing a bone plate; positioning the slider and the resilient pin in a first throughbore of the plurality of throughbores (claim 38); wherein the method of assembling a bone plate is repeated for each of the plurality of throughbores (claim 39).
As to claim 38, Swann teaches a method of assembling a bone plate, the method comprising: providing a bone plate (22) comprising a plurality of throughbores (30); providing a slider (60) and a resilient pin (58) (col. 2 / line 60 – col. 3 / line 22), FIGS. 5A-6A; wherein the resilient pin comprises an unloaded configuration, FIG. 5A, having a length (taken across 61 and 62) and a loaded configuration, FIG. 5B, characterized by distal ends (ends at 61 and 62) of the resilient pin being spaced apart a distance that is less than the length; positioning the slider and the resilient pin in a first throughbore of the plurality of throughbores (col. 3 / lines 17-23); wherein the bone plate comprises retainer portions (portions of sidewall 48 defining slot passage 50) forming a constriction between the first throughbore and a receptacle (32) for receiving the slider (col. 3 / lines 29-40); applying a force to at least one of the slider and the resilient pin to force a distal end of the resilient pin against the retainer portion and provide the resilient pin in the loaded configuration (col. 3 / lines 24-28), FIG. 6B, and advance the slider into the receptacle (col. 3 / lines 29-40), FIG. 6C; and providing the distal end of the resilient pin in a recess (portion of 32 behind 56) provided in the bone plate.
As to claim 39, Swann teaches the method of claim 38, wherein the method of assembling a bone plate is repeated for each of the plurality of throughbores, FIG. 1.
Accordingly, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to assemble Ziolo’s bone plate in a manner as taught by Swann, by positioning the slider and the resilient pin of Ziolo in the throughbore of the bone plate body; advancing the slider and the resilient pin toward the receptacle of Ziolo’s bone plate body for the slider; applying a force to at least one of the slider and the resilient pin to force the distal ends of the resilient pin against the retainer portions and provide the resilient pin in the loaded configuration and advance the slider into the receptacle; and providing the distal ends of the resilient pin in respective opposing recesses provided in the bone plate, since the slider and the resilient pin must be assembled with the bone plate body into the functional position required by Ziolo, and could only be inserted either from above the receptacle or from the throughbore. It would have been “obvious to try” inserting the slider and the resilient pin by advancing them from the throughbore laterally into the receptacle, as taught by Swann – choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success, since lateral insertion would deform the resilient pin using the bone plate body itself while insertion from above would require a separate insertion tool. Since the resilient pin distal ends are angled away from each other and have a natural tendency to maintain their uncompressed state as shown in FIG. 3B of Ziolo (col. 4 / lines 57-63), they could be urged together by the retainer portions of the bone plate body as they enter the receptacle from the throughbore, without damaging the resilient pin, with the distal ends then shifting apart based on their natural tendency to maintain the uncompressed state, snapping into the curved recesses of Ziolo’s bone plate body into the functional position required by Ziolo in FIG. 1D. The distal ends would have to slide along the tapered surfaces of the retainer portions and snap past the portion separating the retainer portions and the recesses, shown as a wall in FIG. 11, in order to enter the recesses.
As to claim 52, Ziolo discloses a bone plate comprising a plurality of throughbores (104); providing a plurality of sliders (top half of each 108 including 110) and a plurality of resilient pins (bottom half of each 108 including 206’s) (col. 4 / lines 36-43), FIGS. 1D and 3B; wherein each of the plurality of resilient pins comprises an unloaded configuration, FIG. 3B, having a length and a loaded configuration characterized by distal ends of each resilient pin being spaced apart a distance that is less than the length (col. 7 / lines 12-23, col. 8 / lines 37-50); wherein the bone plate comprises retainer portions (portions of walls of recesses 208, that constrict inwardly from the widest part of the recess to form the narrower portion of the recesses at a location between the throughbore and a portion of receptacle 106, see annotated figure) forming a constriction between the first throughbore and a receptacle (106) for receiving the first slider (col. 7 / lines 12-15), FIG. 1A; applying a force to move the distal ends of the first resilient pin against the retainer portions and provide the first resilient pin in the loaded configuration and advance the first slider into the receptacle (a force from an inserted fastener moves the distal ends/free arms 206 of the resilient pin against the retainer portions and provides the resilient pin in the loaded configuration and advances the slider further into the receptacle 106 into position 260, FIG. 2B; col. 4 / line 65 – col. 5 / line 8); and providing the first resilient pin in the bone plate in a loaded configuration (the pin is provided in the loaded configuration when pushed against the retainer portions by insertion of a fastener).
As to claim 53, Ziolo discloses the method of claim 52, wherein wherein each of the plurality of throughbores comprises a respective slider and resilient pin, FIG. 1D.
As to claim 54, Ziolo discloses the method of claim 52, wherein each one of the plurality of resilient pins comprises an elongated shape having an intermediate portion (middle of bottom half of 108) between the distal ends, and wherein any one resilient pin of the plurality is disposed in a substantially transverse alignment to a length (along length of 110) of any one slider of the plurality (the middle of the bottom half of 108 is substantially transverse to the length of 110) such that the distal ends (at 206s) extend generally perpendicularly from opposing sides of said slider (the distal ends at 206 extend generally perpendicularly from adjacent portions of the opposing sides of the slider, since as shown in FIG. 3A the distal ends are perpendicular in a general manner since they extend out from and away from the sides of the slider and are not parallel to the sides of the slider) prior to the applying of force to said slider and/or resilient pin, FIG. 3A.
As to claim 55, Ziolo discloses the method of claim 52, wherein the opposing recesses are located on opposite sides of the receptacle (one 208 on each side of a respective 106, to receive the 206s on either side), and wherein the opposing recesses are at least partially separated from the receptacle and from at least one of the plurality of throughbores by a partition (the edge of each 208 separates the recess from all other components including the receptacle and the throughbore).
As to claim 56, Ziolo discloses the method of claim 52, wherein the receptacle and each opposing recess comprise an arcuate shape (the receptacle 106 has an arcuate shape at its curved end and each recess 208 has an arcuate shape at the surface of the narrower portion, FIG. 11).
Although Ziolo’s bone plate must be assembled somehow, Ziolo does not disclose a method of assembling a bone plate, the method comprising: providing a bone plate; positioning a first slider of the plurality of sliders and a first resilient pin of the plurality of resilient pins in a first throughbore of the plurality of throughbores (claim 52); wherein the method of assembling the bone plate is repeated for each of the plurality of throughbores, sliders, and resilient pins (claim 53).
As to claim 52, Swann teaches a method of assembling a bone plate, the method comprising: providing a bone plate (22) comprising a plurality of throughbores (30); providing a plurality of sliders (60) and a plurality of resilient pins (58) (col. 2 / line 60 – col. 3 / line 22), FIGS. 1 and 5A-6A; wherein each of the plurality of resilient pins comprises an unloaded configuration, FIG. 5A, having a length (taken across 61 and 62) and a loaded configuration, FIG. 5B, characterized by distal ends (ends at 61 and 62) of each resilient pin being spaced apart a distance that is less than the length; positioning a first slider and a first resilient pin in a first throughbore of the plurality of throughbores (col. 3 / lines 17-23); wherein the bone plate comprises retainer portions (portions of sidewall 48 defining slot passage 50) forming a constriction between the first throughbore and a receptacle (32) for receiving the first slider (col. 3 / lines 29-40); applying a force to move a distal end of the resilient pin against the retainer portion and provide the resilient pin in the loaded configuration (col. 3 / lines 24-28), FIG. 6B, and advance the slider into the receptacle (col. 3 / lines 29-40), FIG. 6C; and providing the first resilient pin in the bone plate in a loaded configuration (the pin is provided in the loaded configuration when pushed against the retainer portions during longitudinal insertion, FIG. 6B).
As to claim 53, Swann teaches the method of claim 38, wherein the method of assembling the bone plate is repeated for each of the plurality of throughbores, sliders, and resilient pins, FIG. 1.
Accordingly, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to assemble Ziolo’s bone plate in a manner as taught by Swann, by positioning the slider and the resilient pin of Ziolo in the throughbore of the bone plate body; advancing the slider and the resilient pin toward the receptacle of Ziolo’s bone plate body for the slider; applying a force to move the distal ends of the resilient pin against the retainer portions and provide the resilient pin in the loaded configuration and advance the slider into the receptacle, since the slider and the resilient pin must be assembled with the bone plate body into the functional position required by Ziolo, and could only be inserted either from above the receptacle or from the throughbore. It would have been “obvious to try” inserting the slider and the resilient pin by advancing them from the throughbore laterally into the receptacle, as taught by Swann – choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success, since lateral insertion would deform the resilient pin using the bone plate body itself while insertion from above would require a separate insertion tool. Since the resilient pin distal ends are angled away from each other and have a natural tendency to maintain their uncompressed state as shown in FIG. 3B of Ziolo (col. 4 / lines 57-63), they could be urged together by the retainer portions of the bone plate body as they enter the receptacle from the throughbore, without damaging the resilient pin, with the distal ends then shifting apart based on their natural tendency to maintain the uncompressed state, snapping into the curved recesses of Ziolo’s bone plate body into the functional position required by Ziolo in FIG. 1D. The distal ends would have to slide along the tapered surfaces of the retainer portions and snap past the portion separating the retainer portions and the recesses, shown as a wall in FIG. 11, in order to enter the recesses.
Claims 40, 43, 44, and 57 are rejected under 35 U.S.C. 103 as being unpatentable over Ziolo in view of Swann (hereinafter, “Ziolo/Swann”), as applied to claims 38-42 and 52-56 above, and further in view of U.S. Patent Application Publication No. US 2020/0000501 to Gephart.
Ziolo/Swann are silent as to wherein the positioning of the slider and the resilient pin in the first throughbore includes the insertion of the resilient pin into a channel through the slider, wherein the channel is defined at least partially between a wall and a foot portion, and wherein the wall being closer to the throughbore when the slider is in the receptacle (claim 43); wherein the applying of a force to the slider and/or resilient pin results in the intermediate portion of the resilient pin bending around the wall portion of the slider when the distal ends of the resilient pin are positioned against the retainer portions (claim 44). Assuming arguendo, Ziolo/Swann are silent as to wherein the resilient pin is disposed in a substantially transverse alignment to a length of the slider such that the distal ends extend generally perpendicularly from opposing sides of the slider prior to the applying of force to the slider and/or resilient pin (claim 40). Ziolo/Swann are silent as to wherein the positioning of the first slider and the first resilient pin in the first throughbore includes the insertion of said resilient pin into a channel through said slider, wherein the channel is defined at least partially between a wall and a foot portion, wherein the wall being closer to the throughbore when the slider is in the receptacle, and wherein the applying of a force to said slider and/or resilient pin results in the intermediate portion of said resilient pin bending around the wall portion of the slider when the distal ends of said resilient pin are positioned against the retainer portions (claim 57).
Gephart teaches positioning a slider (18D) and a resilient pin (20) in a first throughbore includes the insertion of the resilient pin into a channel (23) through the slider, wherein the channel is defined at least partially between a wall (100) and a foot portion (280) (par. [0047], [0056]), FIGS. 1-6 and 14; wherein the applying of a force to the slider and/or resilient pin results in the intermediate portion of the resilient pin bending around the wall portion of the slider, FIG. 4.
Accordingly, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to comprise the slider and the resilient pin of Ziolo/Swann as two separate parts, as taught by Gephart, including a pin for the resilient pin that extends within a channel of the slider, since constructing a formerly integral structure in various elements involves only routine skill in the art. Two part construction would provide ease of manufacture. The side or end portions of the pin would bend in the same direction toward each other as required by Ziolo (ends pointing toward the throughbore), with the slider provided with a channel to receive the pin as taught by Gephart with a curved surface to press against the intermediate portion of the pin when the slider and the resilient pin are advanced into the bone plate body receptacle by urging the side portions of the resilient pin together by sliding along the retainer portions. The side portions of the elongated resilient pin will protrude from the sides of the slider as taught by Gephart, with the resilient pin disposed in a substantially transverse alignment to a length of the slider, so that as the slider is advanced toward the receptacle during assembly, the side portions of the pin, extending transversely, engage the retainer portions of the bone plate body in Ziolo thereby taking loaded configuration to then snap into the recesses, as well as to engage the walls of the receptacle when the slider is pushed away from the throughbore by an inserted screw. As required by Ziolo and taught by Gephart, the resilient pin has a natural tendency to return to a straighter configuration which occurs with the slider in the position closer to the throughbore in Ziolo, where the pin is less deformed and more relaxed since it will enter the larger portion of the recesses in Ziolo. The opposite side portions of the resilient pin extend generally perpendicularly from opposing sides of the slider at least during assembly and also, under broadest reasonable interpretation, when the pin is less deformed and more relaxed (before applying the force) and generally perpendicular to the sides of the slider since generally perpendicular can include some degrees of bend. As taught by Gephart, the channel would be defined by a wall with a curved surface and a foot portion, spaced apart from each other, with the wall with the curved surface being closer to the throughbore of the bone plate body than the foot portion when the slider is in the receptacle since the curvature of the wall as taught by Gephart requires the wall to be closer to the throughbore so that the resilient pin is urged into the appropriate shape, i.e. the opposite side portions are urged together in the direction of the throughbore, to allow their sliding along the retainer portions and toward the receptacle while resisting movement back into the throughbore after seating.
Claims 45-51 are rejected under 35 U.S.C. 103 as being unpatentable over Ziolo in view of Swann and Gephart.
As to claim 45, Ziolo discloses a bone plate comprising a throughbore (104); providing a slider (top half of 108 including 110) and a resilient member (bottom half of 108 including 206’s) (col. 4 / lines 36-43), FIG. 3B; wherein the resilient member comprises an unloaded configuration, FIG. 3B, having a length and a loaded configuration characterized by distal ends of the resilient member being spaced apart a distance that is less than the length (col. 7 / lines 12-23, col. 8 / lines 37-50); wherein the bone plate comprises retainer portions (portions of walls of recesses 208, that constrict inwardly from the widest part of the recess to form the narrower portion of the recesses at a location between the throughbore and a portion of receptacle 106, see annotated figure) forming a constriction between the throughbore and a receptacle (106) for receiving the slider (col. 7 / lines 12-15), FIG. 1A; applying a force to at least one of the slider and the resilient member to force the distal ends of the resilient member against the retainer portions and provide the resilient member in the loaded configuration and advance the slider into the receptacle (a force from an inserted fastener forces the distal ends/free arms 206 of the resilient member against the retainer portions and provides the resilient member in the loaded configuration and advances the slider further into the receptacle 106 into position 260, FIG. 2B; col. 4 / line 65 – col. 5 / line 8); and providing the distal ends (free arms) of the resilient member in respective opposing recesses (208) provided in the bone plate, wherein a distance between inner surfaces (at narrower portion of the recesses) of the opposing recesses is less than the length of the resilient member such that an engagement of the distal ends of the resilient member within the opposing recesses maintains the loaded configuration (col. 4 / line 65 – col. 5 / line 8) and inhibits the resilient member from shifting radially inward (the resilient member is inhibited by its material composition from shifting radially inward – from the 206’s shifting more toward each other or radially inward toward each other – because the natural tendency is for them to move away from each other, so that when in the loaded configuration the resilient member is inhibited from becoming more loaded unless an external force is applied; in addition or alternatively, while the fastener is being inserted resulting in the resilient member distal ends being in the narrower portion of the recesses and the resilient member being in the loaded configuration, the presence of the fastener also inhibits the resilient member from shifting radially inward toward the throughbore 104).
As to claim 46, Ziolo discloses the method of claim 45, wherein each throughbore comprises a respective slider and resilient member, FIG. 1D.
As to claim 47, Ziolo discloses the method of claim 45, wherein the resilient member comprises an elongated shape having an intermediate portion (middle of bottom half of 108) between the distal ends, and wherein the resilient member is disposed in a substantially transverse alignment to a length (along length of 110) of the slider (the middle of the bottom half of 108 is substantially transverse to the length of 110) such that the distal ends (at 206s) extend generally perpendicularly from opposing sides of the slider (the distal ends at 206 extend generally perpendicularly from adjacent portions of the opposing sides of the slider, since as shown in FIG. 3A the distal ends are perpendicular in a general manner since they extend out from and away from the sides of the slider and are not parallel to the sides of the slider) prior to the applying of force to the slider and/or resilient member, FIG. 3A.
As to claim 48, Ziolo discloses the method of claim 45, wherein the opposing recesses are located on opposite sides of the receptacle (one 208 on each side of a respective 106, to receive the 206s on either side), and wherein the opposing recesses are at least partially separated from the receptacle and from the throughbores by a partition (the edge of each 208 separates the recess from all other components including the receptacle and the throughbore).
As to claim 49, Ziolo discloses the method of claim 45, wherein the receptacle and each opposing recess comprise an arcuate shape (the receptacle 106 has an arcuate shape at its curved end and each recess 208 has an arcuate shape at the surface of the narrower portion, FIG. 11).
Although Ziolo’s bone plate must be assembled somehow, Ziolo does not disclose a method of assembling a bone plate, the method comprising: providing a bone plate; positioning the resilient member and the slider in the throughbore (claim 45); wherein the method of assembling the bone plate is repeated for each throughbore present in the bone plate (claim 46).
As to claim 45, Swann teaches a method of assembling a bone plate, the method comprising: providing a bone plate (22) comprising a throughbore (30); providing a slider (60) and a resilient member (58) (col. 2 / line 60 – col. 3 / line 22), FIGS. 5A-6A; wherein the resilient member comprises an unloaded configuration, FIG. 5A, having a length (taken across 61 and 62) and a loaded configuration, FIG. 5B, characterized by distal ends (ends at 61 and 62) of the resilient member being spaced apart a distance that is less than the length; positioning the resilient member and the slider in the throughbore (col. 3 / lines 17-23); wherein the bone plate comprises retainer portions (portions of sidewall 48 defining slot passage 50) forming a constriction between the throughbore and a receptacle (32) for receiving the slider (col. 3 / lines 29-40); applying a force to at least one of the slider and the resilient member to force a distal end of the resilient member against the retainer portion and provide the resilient member in the loaded configuration (col. 3 / lines 24-28), FIG. 6B, and advance the slider into the receptacle (col. 3 / lines 29-40), FIG. 6C; and providing the distal end of the resilient member in a recess (portion of 32 behind 56) provided in the bone plate.
As to claim 46, Swann teaches the method of claim 45, wherein the method of assembling the bone plate is repeated for each throughbore present in the bone plate, FIG. 1.
Accordingly, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to assemble Ziolo’s bone plate in a manner as taught by Swann, by positioning the slider and the resilient member of Ziolo in the throughbore of the bone plate body; advancing the slider and the resilient member toward the receptacle of Ziolo’s bone plate body for the slider; applying a force to at least one of the slider and the resilient member to force the distal ends of the resilient member against the retainer portions and provide the resilient member in the loaded configuration and advance the slider into the receptacle; and providing the distal ends of the resilient member in respective opposing recesses provided in the bone plate, since the slider and the resilient member must be assembled with the bone plate body into the functional position required by Ziolo, and could only be inserted either from above the receptacle or from the throughbore. It would have been “obvious to try” inserting the slider and the resilient member by advancing them from the throughbore laterally into the receptacle, as taught by Swann – choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success, since lateral insertion would deform the resilient member using the bone plate body itself while insertion from above would require a separate insertion tool. Since the resilient member distal ends are angled away from each other and have a natural tendency to maintain their uncompressed state as shown in FIG. 3B of Ziolo (col. 4 / lines 57-63), they could be urged together by the retainer portions of the bone plate body as they enter the receptacle from the throughbore, without damaging the resilient member, with the distal ends then shifting apart based on their natural tendency to maintain the uncompressed state, snapping into the curved recesses of Ziolo’s bone plate body into the functional position required by Ziolo in FIG. 1D. The distal ends would have to slide along the tapered surfaces of the retainer portions and snap past the portion separating the retainer portions and the recesses, shown as a wall in FIG. 11, in order to enter the recesses.
Ziolo is silent as to positioning the resilient member within the slider (claim 45); wherein the positioning of the slider and the resilient member in the throughbore includes the insertion of the resilient member into a channel through the slider, wherein the channel is defined at least partially between a wall and a foot portion, and wherein the wall being closer to the throughbore when the slider is in the receptacle (claim 50); wherein the applying of a force to the slider and/or resilient member results in the intermediate portion of the resilient member bending around the wall portion of the slider when the distal ends of the resilient member are positioned against the retainer portions (claim 51). Assuming arguendo, Ziolo is silent as to wherein the resilient member is disposed in a substantially transverse alignment to a length of the slider such that the distal ends extend generally perpendicularly from opposing sides of the slider prior to the applying of force to the slider and/or resilient member (claim 47).
Gephart teaches positioning a resilient member (20) within a slider (18D); the positioning of the slider and the resilient member in the throughbore includes the insertion of the resilient member into a channel (23) through the slider, wherein the channel is defined at least partially between a wall (100) and a foot portion (280) (par. [0047], [0056]), FIGS. 1-6 and 14; wherein the applying of a force to the slider and/or resilient member results in the intermediate portion of the resilient member bending around the wall portion of the slider, FIG. 4.
Accordingly, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to comprise the slider and the resilient member of Ziolo/Swann as two separate parts, as taught by Gephart, including a pin for the resilient member that extends within a channel of the slider, since constructing a formerly integral structure in various elements involves only routine skill in the art. Two part construction would provide ease of manufacture. The side or end portions of the member would bend in the same direction toward each other as required by Ziolo (ends pointing toward the throughbore), with the slider provided with a channel to receive the member as taught by Gephart with a curved surface to press against the intermediate portion of the member when the slider and the resilient member are advanced into the bone plate body receptacle by urging the side portions of the resilient member together by sliding along the retainer portions. The side portions of the elongated resilient member will protrude from the sides of the slider as taught by Gephart, with the resilient member disposed in a substantially transverse alignment to a length of the slider, so that as the slider is advanced toward the receptacle during assembly, the distal ends of the member, extending transversely, engage the retainer portions of the bone plate body in Ziolo thereby taking loaded configuration to then snap into the recesses, as well as to engage the walls of the receptacle when the slider is pushed away from the throughbore by an inserted screw. As required by Ziolo and taught by Gephart, the resilient member has a natural tendency to return to a straighter configuration which occurs with the slider in the position closer to the throughbore in Ziolo, where the member is less deformed and more relaxed since it will enter the larger portion of the recesses in Ziolo. The opposite side portions of the resilient member extend generally perpendicularly from opposing sides of the slider at least during assembly and also, under broadest reasonable interpretation, when the member is less deformed and more relaxed (before applying the force) and generally perpendicular to the sides of the slider since generally perpendicular can include some degrees of bend. As taught by Gephart, the channel would be defined by a wall with a curved surface and a foot portion, spaced apart from each other, with the wall with the curved surface being closer to the throughbore of the bone plate body than the foot portion when the slider is in the receptacle since the curvature of the wall as taught by Gephart requires the wall to be closer to the throughbore so that the resilient member is urged into the appropriate shape, i.e. the opposite side portions are urged together in the direction of the throughbore, to allow their sliding along the retainer portions and toward the receptacle while resisting movement back into the throughbore after seating.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TRACY L KAMIKAWA whose telephone number is (571)270-7276. The examiner can normally be reached M-F 10:00-6:30 PM.
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/TRACY L KAMIKAWA/Examiner, Art Unit 3775
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