DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Amendment
In light of Applicant’s amendment, claim(s) 1, 12, 16-17 is/are amended and claim(s) 4-11, 13-15, and 18-20 is/are canceled. Claims 21-22 are added. Claims 1-3, 12, 16-17, and 21-22 are now pending examination.
The rejection(s) under 35 U.S.C. 112(b) to claim(s) 12 and 16-17 is/are withdrawn in light of Applicant’s amendment.
Response to Arguments
Applicant’s arguments with respect to claim(s) 1 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. Examiner agrees the amendment to include the limitation “a first self-cinching section in the second strand…a second self-cinching section in the first strand” overcomes the previous rejection as written. However, upon further consideration, a new ground(s) of rejection is made in view of Denham et al.
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.
Claim(s) 1-3 and 12 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Denham et al. (US 20120046693 A1).
Regarding claim 1, Denham discloses a internal brace apparatus, comprising:
a suture construct (500) comprising a fixed loop (542) (Figure 18; Paragraph 0073);
a first strand (14) extending in a direction away from the fixed loop (Figure 18); and
a second strand (22) extending in a direction away from the fixed loop (Figure 18; Paragraph 0073),
wherein the first strand passes through a first self-cinching section (labeled in Annotated Figure 18) in the second strand, thereby forming a first adjustable loop (Figure 18; Paragraph 0073), and
wherein the second strand passes through a second self-cinching section (labeled in Annotated Figure 18) in the first strand, thereby forming a second adjustable loop (Figure 18).
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Regarding claim 2, Denham further discloses a first tag end (26) of the first strand extending from the first self-cinching section away from the first adjustable loop (Figure 18; Paragraph 0073).
Regarding claim 3, Denham further discloses a second tag end (30) of the second strand extending from the second self-cinching section away from the second adjustable loop (Figure 18; Paragraph 0073).
Regarding claim 12, Denham further discloses a free loop (140) disposed on both the first and second adjustable loops (Figure 17; Paragraph 0071).
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 16-17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Denham, as applied to claim 3 above, in view of Anderson (US 20210259676 A1) (previously of record).
Regarding claim 16, Denham discloses the apparatus of claim 3, and further discloses a first shuttling suture (suture attached to 144) disposed on the fixed loop (Figure 18; Paragraph 0073) but fails to explicitly disclose a second shuttling suture disposed on both the first and second adjustable loops.
However, Anderson is directed to a suture apparatus and teaches two shuttling sutures (30, 32) disposed on the first and second adjustable loops (labeled in Annotated Figure 3), respectively (Figure 3; Paragraph 0019).
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A person of ordinary skill in the art before the effective filing date of the claimed invention would have been motivated to modify Denham to include a second shuttling suture disposed on both the first and second adjustable loops, as taught by Anderson, as both references and the claimed invention are directed to suture devices. It would be obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified Denham with the teachings of Anderson by incorporating a second shuttling suture disposed on the first and second adjustable loops in order to guide the respective suture ends through the button (Anderson Paragraph 0019).
Regarding claim 17, Denham discloses the apparatus of claim 3, and further discloses a free loop (140) disposed on both the first and second adjustable loops, (Figure 17; Paragraph 0071); and a first shuttling suture (suture attached to 144) disposed on the fixed loop (Figure 18; Paragraph 0073) but fails to explicitly disclose a second shuttling suture disposed on the free loop.
However, Anderson is directed to a suture apparatus and teaches two shuttling sutures (30, 32) disposed through two button apertures 14 (Figure 3, Paragraph 0019), which would be equivalent of a second shuttling suture disposed on the free loop.
A person of ordinary skill in the art before the effective filing date of the claimed invention would have been motivated to modify Denham to include a second shuttling suture disposed on the on the free loop, as taught by Anderson, as both references and the claimed invention are directed to suture devices. It would be obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified Denham with the teachings of Anderson by incorporating a second shuttling suture disposed on the free loop in order to guide the respective suture ends through the button (Anderson Paragraph 0019).
Regarding claim 21, the combination of Denham and Anderson further discloses wherein the first and second tag ends are fully capable of each being inserted axially into the first shuttling suture (Figure 18) ("[A]pparatus claims cover what a device is, not what a device does." Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original). A claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim.).
Regarding claim 22, the combination of Denham and Anderson further discloses wherein the first and second tag ends are fully capable of each being inserted axially into the first shuttling suture (Figure 18) ("[A]pparatus claims cover what a device is, not what a device does." Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original). A claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim.).
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 ZEHRA JAFFRI whose telephone number is (571)272-7738. The examiner can normally be reached 8 AM-5:30 PM.
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/Z.J./Examiner, Art Unit 3771
/KATHERINE H SCHWIKER/Primary Examiner, Art Unit 3771
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