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 .
Claim Objections
Claim(s) 20 is/are objected to because of the following informalities:
Claim 20 recites “sized and shaped to receive the receive said elongated body, said locking sleeve, and said elongated body and said locking sleeve” in lines 2-4 instead of “sized and shaped to receive said elongated body and said locking sleeve” in order to be grammatically correct.
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.
Claim(s) 18 is/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 18 recites the limitation "each of the plurality of flexible members" in lines 1-2. There is insufficient antecedent basis for this limitation in the claim. It appears that claim 18 should depend from claim 16 instead of claim 14 in order to have sufficient antecedent basis for this limitation in the claim; and for the purpose of compact prosecution will be examined below under this assumption.
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) 1-4, 9-11, 14-15 is/are rejected on the ground of nonstatutory double patenting as being unpatentable over claim(s) 1-7 of U.S. Patent No. 11,944,357 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 apparatus configured to engage an anchoring point of an implanted bone screw system, the apparatus comprising: an elongated body having a first end and an opposing second end, a securing tip at said second end, wherein the securing tip selectively engages the anchoring point of the implanted bone screw system; and a locking sleeve comprising a main body with an outer surface and an inner surface, wherein the outer surface comprises a plurality of fins arranged to define one or more curvilinear channels.
2. The apparatus according to claim 1, wherein said first end has a set of apertures configured to engage structural elements of another retractor system.
1. An apparatus configured to engage an anchoring point of an implanted bone screw system, the apparatus comprising: a first end separated from a second end by an elongated body; a set of apertures at the first end configured to engage structural elements of another retractor system; and a securing tip at the second end, wherein the securing tip selectively engages the anchoring point of the implanted bone screw system based on an amount of travel of a locking actuator along a length of the elongated body towards the second end, the locking actuator includes a main body with an inner surface and an outer surface, wherein the outer surface comprises a plurality of fins arranged to define one or more curvilinear channels sized to receive a retractor blade.
3. The apparatus according to claim 1, wherein the locking sleeve main body inner surface defines a bore sized to receive the elongated body.
2. The apparatus of claim 1, wherein the locking actuator main body inner surface defines a bore sized to receive the elongated body.
4. The apparatus according to claim 1, wherein the anchoring point includes a surgical rod or a tulip head sized to receive the surgical rod.
3. The apparatus of claim 1, wherein the anchoring point includes a surgical rod or a tulip head sized to receive the surgical rod.
9. The apparatus according to claim 1, wherein the securing tip is formed from a plurality of flexible members flexibly attached to the second end of the elongated body, and wherein the locking sleeve traveling along the length of the elongated body causes the securing tip to selectively engage the anchoring point.
10. The apparatus according to claim 9, wherein the securing tip is defined by terminal ends of the plurality of flexible members, and wherein the locking sleeve traveling along the length of the elongated body towards the second end causes the plurality of flexible members to flex inwardly and causes the securing tip to enclose a tulip head within a volume of space defined by the securing tip or enclose a surgical rod within an opposing pair of partially circular apertures defined by the securing tip.
4. The apparatus of claim 1, wherein the securing tip is formed from a plurality of flexible members flexibly attached to the second end of the elongated body, and wherein the locking actuator traveling along the length of the elongated body causes the securing tip to selectively engage the anchoring point.
5. The apparatus of claim 4, wherein the securing tip is defined by terminal ends of the plurality of flexible members, and wherein the locking actuator traveling along the length of the elongated body towards the second end causes the plurality of flexible members to flex inwardly and causes the securing tip to enclose a tulip head within a volume of space defined by the securing tip or enclose a surgical rod within an opposing pair of partially circular apertures defined by the securing tip.
11. The apparatus according to claim 9, wherein each of the plurality of flexible members includes an arcuate-shaped edge that defines the opposing pair of partially circular apertures.
6. The apparatus of claim 5, wherein each of the plurality of flexible members includes an arcuate-shaped edge that defines the opposing pair of partially circular apertures.
14. A system comprising: an implanted bone screw system including at least one anchor point, the at least one anchor point including a connecting rod and a tulip head; a tower assembly coupled to the anchor point of the implanted bone screw system, the tower assembly comprising: an elongated body having a first end and an opposing second end, a securing tip at said second end, wherein the securing tip selectively engages the anchoring point of the implanted bone screw system; and a locking sleeve comprising a main body with an outer surface and an inner surface, wherein the outer surface comprises a plurality of fins arranged to define one or more curvilinear channels.
15. The system according to claim 14, wherein said first end of said elongated body has a set of apertures configured to engage structural elements of another retractor system.
7. A system comprising: an implanted bone screw system including at least one anchor point, the at least one anchor point including a connecting rod and a tulip head; a tower assembly coupled to the anchor point of the implanted bone screw system, the tower assembly comprising: a first end separated from a second end by an elongated body; a set of apertures at the first end configured to engage structural elements of another retractor system; and a securing tip at the second end, wherein the securing tip selectively engages the anchoring point of the implanted bone screw system based on an amount of travel of a locking actuator along a length of the elongated body towards the second end, the locking actuator includes a main body with an inner surface and an outer surface, wherein the outer surface comprises a plurality of fins arranged to define one or more curvilinear channels sized to receive a retractor blade.
As is apparent from the table above, all of the features of application claims 1-4, 9-11, 14-15 are disclosed by Patent claims 1-7. While there are some minor differences in word choices, for example Patent claims 1 and 7 recite “a first end separated from a second end by an elongated body” instead of “an elongated body having a first end and an opposing second end” and “a locking actuator along a length of the elongated body towards the second end, the locking actuator includes a main body with an inner surface and an outer surface” instead of “a locking sleeve comprising a main body with an outer surface”; it is clear that the Patent claim anticipates application claims 1 and 14, since the first end being separated from a second end by an elongated body is a different way of claiming that the elongated body has a first end and an opposing second end; and since the locking actuator in the patent claims 1 and 7 has the same structure as the locking sleeve in application claims 1 and 14 e.g. a main body with an outer surface.
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, 3-8, 12-13 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Lee et al. (U.S. Pub. No. 2019/0183541 A1, hereinafter “Lee”).
Lee discloses, regarding claim 1, an apparatus (200, see Figs. 13A-B) configured to engage an anchoring point of an implanted bone screw system (see annotated Fig. 13A below, note that it is capable of engaging an anchoring point via the implanted rod of the bone screw system), the apparatus comprising: an elongated body having a first end (see annotated Fig. 13A below) and an opposing second end (see annotated Fig. 13A below), a securing tip at said second end, wherein the securing tip selectively engages the anchoring point of the implanted bone screw system (see annotated Fig. 13A below); and a locking sleeve (see annotated Fig. 13A below) comprising a main body with an outer surface (see annotated Fig. 13A below) and an inner surface (see annotated Fig. 13A below), wherein the outer surface comprises a plurality of fins (see annotated Fig. 13A below) arranged to define one or more curvilinear channels (see para. [0081] “groove or notch” that engages with 1208, see Fig. 13B).
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Regarding claim 3, wherein the locking sleeve main body inner surface defines a bore sized to receive the elongated body (e.g. internal threaded bore that engages set screw, see para. [0047]).
Regarding claim 4, wherein the anchoring point includes a surgical rod or a tulip head sized to receive the surgical rod (see Fig. 13A, note that a surgical rod is the anchoring point for 200).
Regarding claim 5, wherein said elongated body includes a locking sleeve engaging member (e.g. set screw received on threading of locking sleeve, see para. [0047]).
Regarding claim 6, wherein said locking sleeve engaging member is external threading (e.g. external threads of set screw, see para. [0047]).
Regarding claim 7, wherein said locking sleeve inner surface includes an elongated body engaging member (e.g. internal threads that engage set screw, see para. [0047]).
Regarding claim 8, wherein said elongated body engaging member is internal threading (e.g. internal threads that engage set screw, see para. [0047]).
Regarding claim 12, wherein said one or more curvilinear channels (see para. [0081] “groove or notch” that engages with 1208, see Fig. 13B) are sized to receive a curvilinear retractor blade (1208, see Fig. 13B).
Regarding claim 13, wherein said one or more curvilinear channels include an inwardly directed surface (see annotated Fig. 13A above).
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) 14, 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lee et al. (U.S. Pub. No. 2019/0183541 A1, hereinafter “Lee”) in view of Reeder, JR. et al. (U.S. Pub. No. 2011/0087287 A1, hereinafter “Reeder”).
Lee discloses, regarding claim 14, a system (see Figs. 13A-B) comprising: a tower assembly (200, see Figs. 13A-B) coupled to the anchor point of the implanted bone screw system, the tower assembly comprising: an elongated body having a first end (see annotated Fig. 13A above) and an opposing second end (see annotated Fig. 13A above), a securing tip at said second end (see annotated Fig. 13A above), wherein the securing tip selectively engages the anchoring point of the implanted bone screw system (see annotated Fig. 13A above); and a locking sleeve (see annotated Fig. 13A above) comprising a main body with an outer surface (see annotated Fig. 13A above) and an inner surface (see annotated Fig. 13A above), wherein the outer surface comprises a plurality of fins (see annotated Fig. 13A above) arranged to define one or more curvilinear channels (see para. [0081] “groove or notch” that engages with 1208, see Fig. 13B).
Regarding claim 19, wherein said one or more curvilinear channels (see para. [0081] “groove or notch” that engages with 1208, see Fig. 13B) are sized to receive a curvilinear retractor blade (1208, see Fig. 13B).
Lee fails to explicitly disclose, regarding claim 14, a system comprising: an implanted bone screw system including at least one anchor point, the at least one anchor point including a connecting rod and a tulip head.
Reeder discloses a system (2, see Fig. 3A) with a tower assembly (3) further includes at least one anchor point (37 and 30C), wherein the at least one anchor point includes a connecting rod (37) and tulip head (20 of 30C) in order to set in place the adjacent bones with an existing construct (see para. [0036]) and an anchoring point for an extension off of the existing construct (see para. [0036]).
It would have been obvious to one having ordinary skill in the art at the time the invention was made to modify the system in Lee to include an implanted bone screw system including at least one anchor point, the at least one anchor point for an extension off of the existing construct.
Allowable Subject Matter
Claim(s) 2, 9-11, 15 is/are would be allowable if rewritten to overcome the rejection(s) under nonstatutory double patenting rejection, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
Claim(s) 18 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.
Claim(s) 16-17, 20 is/are 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.
The following is a statement of reasons for the indication of allowable subject matter: The claims in the instant application have not been rejected using prior art because no references, or reasonable combination thereof could be found which disclose, or suggest:
An apparatus configured to engage an anchoring point comprising an elongated body with a securing tip and locking sleeve with an outer surface and inner surface, wherein the outer surface comprises a plurality of fins arranged to define one or more curvilinear channels; and as per claim 2, wherein said first end has a set of apertures configured to engage structural elements of another retractor system; and as per claim 9, wherein the locking sleeve traveling along the length of the elongated body causes the securing tip to selectively engage the anchoring point.
A system comprising an implanted bone screw system including at least one anchor point; a tower assembly comprising an elongated body with a securing tip and a locking sleeve comprising an outer surface and an inner surface, wherein the outer surface comprises a plurality of fins arranged to define one or more curvilinear channels; and as per claim 15, wherein said first end of said elongated body has a set of apertures configured to engage structural elements of another retractor system; and as per claim 16, wherein the locking sleeve traveling along the length of the elongated body causes the securing tip to selectively engage the anchoring point; and as per claim 20, further including a dilator having an interior sized and shaped to receive said elongated body, said locking sleeve.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See PTO-892.
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/M.C.G/ Examiner, Art Unit 3773 /EDUARDO C ROBERT/ Supervisory Patent Examiner, Art Unit 3773
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