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 .
Election/Restrictions
Applicant’s election of group (I) and claims 1 – 13 in the reply filed on 11/04/2025 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Claims 14 – 15 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 11/04/2025.
Claim Objections
Claim 11 – 12 are objected to because of the following informalities:
In claim 11, delete “[Math 4]” before the equation, for clarity.
In claim 12, add “,” after “claim 6”, for clarity.
Appropriate correction is required.
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 9 and 11 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.
Claim 9 recites the limitation "the memory of the device" in line 2. There is insufficient antecedent basis for this limitation in the claim.
For the sake of examination, the preceding limitation is interpreted as referring to “a memory of a device”.
In claim 11, the recitation of “S=” in the formula, makes the claim unclear and vague, for not specifying what “S” refers to, clarification is requested.
For the sake of examination, the “S” is interpreted as referring to the geometry for the bending of the rod.
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) 1 – 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Mosnier et al. (US Pub. 2020/0060768 A1).
Claim 1, Mosnier discloses a method for helping with bending a rod that can be implanted in a patient [abstract, Figs. 1 – 13, and ¶2], the method comprising, on the basis of a prior acquisition of one or more measurements of distance and/or of angle between elements of a spinal column of the patient, these measurements being taken from an image of the back of the patient [¶13, preoperative x-ray, ¶3 - ¶6, ¶24 - ¶28, ¶49, ¶57 and ¶67 - ¶68, measurements being distance and/or angle], the following steps:
a) determining a type of spinal column of the patient according to a classification [¶14 - ¶21, vertebral column of the patient to be treated];
b) identifying one or more invariable geometrical parameters corresponding to the type of spinal column determined [¶3 - ¶7, ¶15 and/or ¶37, pelvic parameters and/or intervertebral spaces];
c) calculating one or more radii of curvature for the bending of a rod as a function of said measurements, of the type of spinal column determined and of said invariable parameters previously identified [claims 21, 34 and 43, defining curve having one or more radii];
d) obtaining a representation of the rod bent to said one or more radii of curvature [Fig.11, ¶54]; and
e) displaying the representation at a scale [Fig.11, ¶54].
Though, Mosnier does not explicitly disclose displaying the representation at a scale of 1:1. However, a person of ordinary skill in the art would have been motivated to display the representation at a scale of 1:1 for the sake of providing perfect clarity and sharpness for the representation by mapping each image pixel to a screen pixel, and preventing blurring and distortion from scaling, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
Mosnier discloses the limitations of claim 1, as above, and further, Mosnier discloses:
Claim 2, wherein said distance and/or angle measurements comprise at least the measurement of a distance between vertebrae L4 and Si and/or the distance between vertebrae L1 and Si [¶3 - ¶6, ¶24 - ¶28, ¶49, ¶57 and ¶67 - ¶68].
Claim 3, wherein the said invariable parameters comprise a pelvis parameter and an inter-vertebrae distance [¶3 - ¶7, ¶15 and/or ¶37, pelvic parameters and/or intervertebral spaces].
Claim 4, wherein said distance and/or angle measurements comprise a pelvic tilt measurement [¶3 - ¶7 and ¶15].
Claim 5, wherein the spinal column is classified according to a type selected from four types of spinal column (TYi, TY2, TY3, TY4) defining models of lumbar lordosis, thoracic kyphosis, cervical lordosis, cervical kyphosis and neutral [Figs.2 – 10, ¶42 - ¶48].
Claim 6, an algorithm implementing a bending-calculation formula including the invariable parameters of said geometric invariables associated with said types of spinal column [¶29 and ¶38 - ¶39].
Claim 7, wherein the calculation for determining a geometry (s) for the bending of the rod is of the form: s= fn(qi) the parameters qi being dependent on the measurements, on the type of spinal column and on invariables according to the types of spinal column [¶29 and ¶38 - ¶39].
Claim 8, wherein the function fn(qi) is produced from equations of circles, of ellipses, or of combinations of splines [claims 21, 34 and 43, defining curve having one or more radii].
Claim 9, wherein said equations are integrated into the memory of the device [claim 32].
Claim 10, wherein said equations are adapted by the surgeon or the practitioner using a specific formula [claims 21, 34 and 43, defining curve having one or more radii].
Claim 12, comprising the calculation of several successive radii of curvature of the rod [¶29 and ¶38 - ¶39].
Claim 13, wherein said invariable parameters are identified on at least one image of the back of the patient in a sagittal plane [¶3 - ¶7, ¶13 - ¶15, Figs. 1 – 10].
Allowable Subject Matter
Claim 11 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SAMUEL S. HANNA whose telephone number is (571)270-3248. The examiner can normally be reached 8-5 M-F.
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/SAMUEL S HANNA/Primary Examiner, Art Unit 3775