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 .
Specification
The disclosure is objected to because of the following informalities: under Cross-Reference to Related Applications, the corresponding patent number for the parent application must be added.
Appropriate correction is required.
Claim Objections
Claim 85 is objected to because of the following informalities: on line 3, “a threading member” should be –the threading member--. Appropriate correction is required.
Claim 89 is objected to because of the following informalities: on line 4, “the plurality of spools” should be –the plurality of the retaining and storing means--. Appropriate correction is required.
Claim 90 is objected to because of the following informalities: on lines 10-11, “the reduction handle” should be –the reduction bar--. Appropriate correction is required.
Claim 94 is objected to because of the following informalities: on line 8, “the tissue anchor” should be –the anchor--. Appropriate correction is required.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
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 90-93 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 90 recites the limitation "the second slot" in line 10. There is insufficient antecedent basis for this limitation in the claim.
Furthermore, it is unclear to the examiner if applicant is referring to the first slot, the slotted opening, or if there is a second slot.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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) 81-100 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Hoof (8,123,806).
Hoof discloses the following claimed limitations:
Claim 81: A reduction barn (12) (Fig. 1) for managing an adjustable loop construct, the reduction bar comprising a plurality of retaining and storing means (18, 20, 22) (Fig. 1-3 and Col. 3 Lines 45-58); wherein the reduction bar is configured to store the adjustable loop construct in a first arrangement (Fig. 4-5) within at least some of the plurality of retaining and storing means (where it is capable of performing this function), the first arrangement configured to stage disassembly of the adjustable loop construct from the reduction bar while coupling the adjustable loop construct to a tissue, graft or tissue anchor (where it is capable of performing this function); and wherein the reduction bar is configured to assemble to the adjustable loop construct in a second arrangement (Fig. 6-7 and 10-11) after coupling the adjustable loop to the tissue, graft or tissue anchor (where it is capable of performing this function), the second arrangement different than the first arrangement (Fig. 4-7 and 10-11), and wherein in the second arrangement tension applied to the adjustable loop via the reduction bar is configured to reduce a loop of the adjustable loop construct (where it is capable of performing this function).
It has been held that 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 satisfying the claimed structural limitations. Ex parte Masham, 2 USPQ2d 1647 (1987).
Claim 82: wherein the adjustable loop construct includes a threading construct and a button attached thereto and wherein in the first arrangement, the plurality of retaining and storing means stages disassembly of the threading construct and button (where it is capable of performing this function).
Note that the adjustable loop construct is not positively claimed therefore the device of Hoof is capable of being used with an adjustable loop construct.
It has been held that 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 satisfying the claimed structural limitations. Ex parte Masham, 2 USPQ2d 1647 (1987).
Claim 83: wherein in the second arrangement, tension applied to the adjustable loop via the reduction bar is configured to reduce the loop of the adjustable loop construct and draw the tissue, graft or tissue anchor towards the button (where it is capable of performing this function).
Note that the adjustable loop construct is not positively claimed therefore the device of Hoof is capable of being used with an adjustable loop construct.
It has been held that 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 satisfying the claimed structural limitations. Ex parte Masham, 2 USPQ2d 1647 (1987).
Claim 84: wherein in the first arrangement the plurality of retaining and storing means stages disassembly of the threading construct, followed by the adjustable loop construct and then the button from the reduction bar while coupling the adjustable loop construct to the tissue, graft or tissue anchor (where it is capable of performing this function).
Note that the adjustable loop construct is not positively claimed therefore the device of Hoof is capable of being used with an adjustable loop construct.
It has been held that 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 satisfying the claimed structural limitations. Ex parte Masham, 2 USPQ2d 1647 (1987).
Claim 85: wherein the plurality of retaining and storing means includes a slot (22) with a recess (recess at 18) extending directly therefrom (Fig. 1-5 and Col. 3 Lines 45-58), the slot configured to retain the threading member of the threading construct (Fig. 1-5 where it is capable of performing this function) and the recess configured to allow finger access to an end of the threading member to disassemble the threading member from the reduction bar (Fig. 1-7 where it is capable of performing this function).
Claim 86: wherein the plurality of retaining and storing means includes a first spool (see figure below) having a notch (see figure below) intersecting the first spool defining a first spool segment (see figure below), and wherein in the second arrangement, a first looped limb of the adjustable loop construct is disposed within the notch to encircle the first spool segment (Fig. 5 where it is capable of performing this function).
Claim 87: wherein the first spool segment is configured such that rotating the reduction bar around a reduction bar longitudinal axis first forms a fold along the first looped limb encircled around the first spool segment, to limit slipping of the first looped limb around the first spool (Fig. 5-7 where it is capable of performing this function).
Note that the adjustable loop construct is not positively claimed therefore the device of Hoof is capable of being used with an adjustable loop construct.
It has been held that 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 satisfying the claimed structural limitations. Ex parte Masham, 2 USPQ2d 1647 (1987).
Claim 88: wherein the plurality of retaining and storing means includes a slot (18, 22) (Fig. 1-5) configured to house an anchor of the adjustable loop construct while exposing two slotted apertures of the anchor so as to guide a looped end of the adjustable loop construct into the two slotted apertures after coupling to the tissue, graft or tissue anchor (where it is capable of performing this function).
Note that the adjustable loop construct is not positively claimed therefore the device of Hoof is capable of being used with an adjustable loop construct.
It has been held that 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 satisfying the claimed structural limitations. Ex parte Masham, 2 USPQ2d 1647 (1987).
Claim 89: wherein the reduction bar houses a first portion of the adjustable loop construct around a first spool (see figure below) of the plurality of the retaining and storing means (Fig. 5-7 where it is capable of performing this function) and a second of the adjustable loop construct around a second spool (see figure below) of the plurality of spools (Fig. 5-7 where it is capable of performing this function).
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Claim 90: A reduction bar (12) (Fig. 1) for managing an adjustable loop construct, the adjustable loop construct having a first end assembled to a cortical button and a second end coupled to a threading member for coupling the second end to a tissue, a graft or an anchor, the reduction bar defining a longitudinal axis and opposed lateral ends and also comprising; a first slot (slot of 18) (Fig. 1-3 and Col. 3 Lines 45-58) at one of the lateral ends configured to retain the cortical button while exposing a slotted opening of the cortical button (Fig. 1-3 and Col. 3 Lines 45-58 where it is capable of performing this function) (note that the adjustable loop construct is not positively claimed therefore the device of Hoof is capable of being used with an adjustable loop construct), the slotted opening configured to receive the adjustable loop second end therethrough (Fig. 1-3 and Col. 3 Lines 45-58 where it is capable of performing this function); a channel (see figure below) for retaining the threading member (Fig. 1-5) and a cavity (see figure below) extending directly from the second slot (see figure below) for accessing and removing the threading member from the reduction handle (Fig. 1-7 where it is capable of performing this function); a first and a second spool (see figure above) extending around an outer surface of the reduction bar (see figure above), a first and a second looped limb of the adjustable loop construct receivable along the first spool and second spool respectively (where it is capable of performing this function).
Note that the adjustable loop construct is not positively claimed therefore the device of Hoof is capable of being used with an adjustable loop construct.
It has been held that 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 satisfying the claimed structural limitations. Ex parte Masham, 2 USPQ2d 1647 (1987).
Claim 91: wherein the channel is defined by a plurality of circumferential ribs (see figure below) on an external surface of the reduction bar (see figure below), and wherein the cavity is disposed at a medial end of the channel (see figure below).
Claim 92: wherein the first and second spools each define an outermost channel (22) defining a first path (path on first side of the notch as seen in the figure above), each outermost channel intersected by a corresponding notch (see figure above) defining a second path (the path on opposite side of the notch) around a segment of the first path of each spool (Fig. 1-5).
Claim 93: wherein the notch of the first spool is configured to receive the first looped limb of the adjustable loop construct to place the first looped limb along the second path around the first spool and wherein the notch of the second spool is configured to receive the second looped limb of the adjustable loop construct to place the second loop along the second path around the second spool, and wherein both of the second paths are configured to fold the corresponding looped limbs and limit spinning thereof while rotating the reduction bar about its longitudinal axis (where it is capable of performing this function).
Note that the adjustable loop construct is not positively claimed therefore the device of Hoof is capable of being used with an adjustable loop construct.
It has been held that 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 satisfying the claimed structural limitations. Ex parte Masham, 2 USPQ2d 1647 (1987).
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Claims 94-100: Hoof discloses all the limitations in the claims as seen in the rejection above.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The cited prior art appears to teach the claimed invention when considered alone or in combination.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DIANNE DORNBUSCH whose telephone number is (571)270-3515. The examiner can normally be reached Monday-Wednesday 9 am-3 pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Elizabeth Houston can be reached at (571) 272-7134. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DIANNE DORNBUSCH/Primary Examiner, Art Unit 3771
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