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 .
Drawings
The drawings are objected to because of shading and a dark background making details difficult to discern. Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Rejections - 35 USC § 112
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 1-21 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, 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.
In claims 1, 9, 12, 18 and 19, the recitation “a spring plate configured to provide an elastic spring function in bending along its length” renders the claim vague and indefinite because Applicant’s disclosure does not describe this feature to define the scope of Applicant’s invention. For e.g. no specific ranges of thickness are provided or stiffness or rigidity except for increased thickness at the medial end. For examination, it is assumed that Applicant intended to recite the plate is elastically deformed when subjected to bending forces.
In claims 4 and 15, the recitation “wherein the spring plate has an increased thickness at a medial end, is biased to provide a force in a cranial direction or a caudal direction, or both” renders the claim vague and indefinite since the scope of the claim is unclear. Applicant’s disclosure does not describe how the bias is provided, for e.g. providing a curvature to the plate. Also, it appears that Applicant intended to recite these features in the alternative and is assumed to be such for examination.
In claim 6, the recitation “….and wherein the spring plate is configured to be attached to the transverse hook with a locking nut on the threaded post; is configured..., or both.” renders the claim vague and indefinite because “; is configured ..” is run on. It is suggested that Applicant amend the claim in a manner similar to claim 5.
In claim 8, the recitation “further comprising” renders the claim vague and indefinite because it appears to repeat structure already recited in claim. Applicant’s disclosure describes three hooks. It appears that Applicant is further defining the two rib hooks defined in claim 1.
In claim 12, the recitation “attaching the device to the immature rib and the vertebra” renders the claim vague and indefinite because prior to this recitation the body of the claim does not recite a vertebra. It is suggested that applicant recite “a transverse process of a vertebra” as recited in claim 13 to avoid confusion.
In claim 17, the recitation “….and wherein the spring plate is configured to be attached to the transverse hook with a locking nut on the threaded post; is configured..., or both.” renders the claim vague and indefinite because it is run on. It is suggested that Applicant amend the claim in a manner similar to claim 5.
Appropriate correction is required.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 11 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends. Claim 11 recites limitations already recited in claim 9. Applicant may cancel the claim(s) or amend the claim(s) to place the claim(s) in proper dependent form.
Appropriate correction is required.
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) 1-2, 4, 7-8, 12-13, 15 and 18-20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Hamman et al. (US 10835292).
Regarding claim 1, Hamman et al. disclose a rib fixation plate that is used on subjects of varying age including children including: a plate 12 (Fig. 2); and two rib hooks (28, 30) configured or capable of securing the plate to an immature (col. 3, lines 43-67 and cols. 4-7).
Regarding claim 2, Hamman et al. disclose the device to include a third or transverse hook, 24, that is configured to secure plate 12 to a transverse process of a vertebra (col. 4, lines 57-64).
Regarding the recitation “elastic spring function in bending along its length,” Hamman et al. disclose the plate to be bendable, interpreted to mean that the plate elastically deforms when subjected to bending forces.
Regarding claims 4, 15 and 20, Hamman et al. disclose plate 12 to have an increased thickness at an end or medial end (Fig. 21). Also, Hamman et al. disclose plate 12 to have a preformed curvature (Figs. 20 and 21).
Regarding claim 7, Hamman et al. disclose a pedicle screw 36 that is configured to secure plate 12 to a vertebra by means of a rod 34 (Fig. 5, col. 4, lines 37-64 and col. 5, lines 28-51).
Regarding claims 8 and 19, hook 28 is a lateral hook and hook 30 is a medial hook and pedicle screw 36 is disposed at (or near) an end or medial end of plate 12 (Fig. 4).
Regarding claim 18, the claimed method steps of modulating or controlling growth of an immature rib (a patient who is a child) are performed when the Hamman et al. device is used to perform a spinal surgical procedure on a child (col. 3, lines 43-67 and col. 4, lines 1-4).
Regarding claim 20, Hamman et al. disclose plate 12 to have an increased thickness (defined by rod housing 32) at an end or medial end (Fig. 21).
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.
Claim(s) 3 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Hammann et al. (US 10835292) in view of McCarthy et al. (US 9486252).
Hamman et al. disclose all elements of the claimed invention except for the plate to be made from a material such as PEEK, titanium, stainless steel or ultra-high-molecular weight polyethylene.
It is well known to fabricate components of a spinal system from biologically acceptable materials such as PEEK, titanium, stainless steel etc., as evidenced by McCarthy et al. (col. 5, lines 1-47).
Thus, it would have been obvious to one having ordinary skill in the art at the time the invention was made to have fabricated the Hamman et al. device from a material such as PEEK, titanium or stainless steel, as taught by McCarthy et al. for biocompatibility and reduced risk of infection.
Allowable Subject Matter
Claims 5-6, 9-10, 16-17 and 21 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
Claims 9 and 10 would be allowable if rewritten or amended to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action.
The closest prior art cited in the attached PTO-892 cite some features of Applicant’s claimed invention. However, no references or a reasonable combination thereof, could be found which disclose all the elements of Applicant’s claimed invention, defined by the claims to which prior art has not been applied.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Anu Ramana whose telephone number is (571)272-4718. The examiner can normally be reached 8:00 am-5:00 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Kevin Truong can be reached at (571)272-4705. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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November 15, 2025
/Anu Ramana/Primary Examiner, Art Unit 3775
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