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
Claims 1, 28, 33, 53 and their dependent claims are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected Species R (Fig 28), there being no allowable generic or linking claim. Election was made without traverse in the reply filed on July 29, 2025.
Amended Claim 1 add new limitations and also recites the first fastener includes “a first head” defining “a recess for receiving an alignment rod” where the first head is also “polyaxial”. Looking at Fig 27 below and specification the first fastener is #2130 and if 10a is the first vertebra, it is not clear how the first fastener would receive an alignment rod as well as being polyaxial. It appears that the first fastener receives an end section of the first rod
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Likewise, if 10b is the first vertebra, the same issue arises.
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As such Claim 1 does not read on the elected species. Furthermore, it seems that claim 1 has been amended to now read on non-elected Species A (Figs 110, Fig 5-6, as well as Fig 7), where the connector has a first rod #120 with a head #130 that is also polyaxial and can receive an alignment rod (paragraph 106). See Fig 7b which shows the first rod coupled to pedicle screws #24 and head coupled to alignment rod #175. Likewise there is a second connector of Fig 5-6 attached to a second pair of pedicle screws with a head to receive the alignment rod #175. As such, it seems that amended claim 1 now reads on non-elected Species A.
Response to Arguments
Applicant’s arguments with respect to claim(s) 64 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. The examiner reinterpreted Hynes in view of applicant’s amendment.
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.
Claims 64-65 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Hynes US 7,220,262.
Regarding Claim 64, Hynes discloses a bone surgical apparatus (Fig 1) for manipulating a curvature of a spine, the bone surgical apparatus comprising:
a first pedicle screw and a second pedicle screw (pedicle screw #24, Col 3 lines 10-11, see Fig below) configured to attach to a first vertebra (see Fig below, Col 3 lines 4-20);
a third pedicle screw and a fourth pedicle screw (pedicle screw #24, Col 3 lines 10-11, see Fig below) configured to attach to a second vertebra (see Fig below, Col 3 lines 4-20); and
a fixator (see Fig below) having a hinged alignment rod (see Fig below, hinged via pivot pin #27, see Fig 2, Col 3 lines 10-15 and is able to be pivot relative to pedicle screw #24) attached to a first end section (#23, see Fig below) and a second end section (see Fig below), the first end section of the fixator including a hinged rod (see Fig below where ends of the hinged rod can pivot relative to the first and second pedicle screws respectively via pivot #27)(alternatively, due to bores of housing #31 being cylindrical, first and second ends of the hinged rod can pivot relative to each other about first end section) attached to the first pedicle screw (see Fig below), and the second end section of the fixator being attached to the fourth pedicle screw (see Fig below).
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Regarding Claim 65, Hynes discloses a first end of the hinged end is received in a recess in a head of the first pedicle screw for attachment to the first pedicle screw (see Fig below, see also Fig 2),
a second end of the hinged end is received in a recess in a head of the second pedicle screw for attachment to the second pedicle screw (see Fig below, see also Fig 2) and
the second end section of the fixator is received in a recess in a head of the fourth pedicle screw for attachment to the fourth pedicle screw (see Fig below, see also Fig 2).
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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 JAN CHRISTOPHER L MERENE whose telephone number is (571)270-5032. The examiner can normally be reached Mon-Fri 8:30 am - 6pm EST.
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, Eduardo Robert can be reached at 571-272-4719. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JAN CHRISTOPHER L MERENE/ Primary Examiner, Art Unit 3773
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