DETAILED ACTION
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 1, 3-5, 7, 11, 13-15, and 17 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by U.S. Patent Application Publication No. 2014/0343678 (Suddaby ‘678).
Regarding claim 1, Suddaby ‘678 discloses an expandable intervertebral cage (10) comprising: a. a base (20) comprising a peripheral circumferential side wall (22/24) extending in a first direction (along the height of wall 24 in a vertical direction, see Figs. 1-6) and a first bone interaction surface (21); b. a stage (30) comprising a second bone interaction surface (31) arranged essentially opposite to the first bone interaction surface with respect to the expandable intervertebral cage (see Figs. 1-6; surfaces 21 and 31 on opposite upper and lower sides of cage 10); and c. a locking mechanism (50/60) adapted to lock the position of the second bone interaction surface of the stage with respect to the first bone interaction surface of the base at least in the first direction and to lock the cage in at least one expanded state and being arranged at least partially within the circumferential side wall of the base (see Figs. 1-6 and 9 and paragraph [0054] and [0060]); and d. at least one latch (50) of the locking mechanism arranged in a displaceable manner in a second direction (towards and away from wall 24 in a horizontal direction, see paragraph [0054] and Figs. 1-6) essentially perpendicular to the first direction between: i. a locked position in the first direction, wherein the stage is supported and locked in the first direction by the at least one latch with respect to the base (locked position; see Figs. 3 and 9 and paragraphs [0054] and [0060]; bodies 20 and 30 locking engaged in support of each other); and ii. an unlocked position in the first direction, wherein the at least one latch is displaceable in the first direction with respect to the base (unlocked position, see Fig. 6 and paragraph [0054]).
Regarding claim 3, Suddaby ‘678 discloses wherein the at least one latch (50) comprises at least one first tooth (55), which is configured to latch in the locked position with at least one second tooth (25) arranged at the base (see Figs. 1-6 and paragraph [0054]).
Regarding claim 4, Suddaby ‘678 discloses wherein at least one row of multiple first teeth (55) is arranged on an outer side (54) of the at least one latch, wherein the multiple first teeth of the respective row are spaced apart from each other in the first direction (teeth 55 spaced apart vertically, see Figs. 1-6).
Regarding claim 5, Suddaby ‘678 discloses wherein at least one row of multiple second teeth (25) are arranged on an inner side (inner surface of wall 24 facing latch 50, see Figs. 1-6) of the circumferential side wall, wherein the multiple second teeth of each row are spaced apart from each other in the first direction (teeth 25 spaced apart vertically, see Figs. 1-6).
Regarding claim 7, Suddaby ‘678 discloses wherein the expandable intervertebral cage comprises a linear guiding structure (34) interconnecting the at least one latch to the stage (see paragraph [0053]) and configured to support the displacement of the at least one latch in the second direction (see paragraphs [0053] and [0054]; latch is displaced via pivoting feature 51 supported in groove 34).
Regarding claim 11, Suddaby ‘678 discloses wherein the expandable intervertebral cage comprises a rotatable camshaft or a displaceable wedge (displaceable wedge 101) for locally lifting the stage with respect to the base such that the stage is tilted with the respect to the base (see paragraph [0075]; translation of rod 101 moves the bodies 20/30 relative to each other).
Regarding claim 13, Suddaby ‘678 discloses wherein a tool opening (18) is arranged between the base and the stage (see paragraph [0052]) configured to receive a tool (80) to displace the stage with respect to the base in the first direction (see paragraphs [0017], [0022], [0023], and [0075]).
Regarding claim 14, Suddaby ‘678 discloses wherein the base and/or the stage comprise a tool interface for temporarily affixing the tool during operation (see paragraph [0072]: (1) portion of body 30 captured by undercut 89 of tool; and/or (2) portion of cage 10 that engages with abutment tabs 87).
Regarding claim 15, Suddaby ‘678 discloses wherein the first bone interaction surface and the second bone interaction surface are arranged at an angle with respect to each other (see Figs. 6 and 9 and paragraph [0046]).
Regarding claim 17, Suddaby ‘678 discloses an expandable intervertebral cage (10) comprising: a. a base (20) comprising a peripheral circumferential side wall (22/24) extending in a first direction (along the height of wall 24 in a vertical direction, see Figs. 1-6) and a first bone interaction surface (21); b. a stage (30) comprising a second bone interaction surface (31) arranged opposite to the first bone interaction surface with respect to the expandable intervertebral cage (see Figs. 1-6; surfaces 21 and 31 on opposite upper and lower sides of cage 10); and c. a locking mechanism (50/60) having at least one latch (50) adapted to lock the position of the second bone interaction surface of the stage with respect to the first bone interaction surface of the base at least in the first direction and to lock the cage in at least one expanded state and arranged at least partially within the circumferential side wall of the base (see Figs. 1-6 and 9 and paragraph [0054] and [0060]); and wherein the at least one latch (50) is displaceable in a second direction (towards and away from wall 24 in a horizontal direction, see paragraph [0054] and Figs. 1-6) perpendicular to the first direction and along the circumferential side wall between a locked position wherein the stage is supported and locked in the first direction by the at least one latch with respect to the circumferential side wall of the base (locked position; see Figs. 3 and 9 and paragraphs [0054] and [0060]; bodies 20 and 30 locking engaged in support of each other); and an unlocked position wherein the at least one latch is displaceable in the first direction with respect to the base (unlocked position, see Fig. 6 and paragraph [0054]).
Claims 1, 2, and 8 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by European Patent Application 3292841 A1 (Sharifi-Mehr).
Regarding claim 1, Sharifi-Mehr discloses an expandable intervertebral cage (10) comprising: a. a base (11) comprising a peripheral circumferential side wall (111) extending in a first direction (vertically along the height of wall 111) and a first bone interaction surface (8); b. a stage (13) comprising a second bone interaction surface (9) arranged essentially opposite to the first bone interaction surface (see Fig. 3A, surfaces 8 and 9 are arranged on opposite sides of cage 10) with respect to the expandable intervertebral cage; and c. a locking mechanism (168a/168b/120a/120b) adapted to lock the position of the second bone interaction surface of the stage with respect to the first bone interaction surface of the base at least in the first direction (see paragraphs [0029]-[0032]) and to lock the cage in at least one expanded state (cage can be locked in an expanded state when portions 168a/168b are moved proximally and locking elements 120a/120b are moved the locked position) and being arranged at least partially within the circumferential side wall of the base (see Figs. 4-7); and at least one latch (120a/168a) of the locking mechanism arranged in a displaceable manner in a second direction (distal and proximal movement of portion 168a, see paragraphs [0029]-[0032]) essentially perpendicular to the first direction between: a. a locked position in the first direction, wherein the stage is supported in the first direction by the at least one latch with respect to the base (locked position, see paragraphs [0029]-[0032]; bodies 11 and 13 are lockingly engaged in support of each other), and b. an unlocked position in the first direction, wherein at least one latch is displaceable in the first direction with respect to the base (unlocked position, see paragraphs [0029]-[0032]; portion 168a displaceable horizontally or vertically relative to the base).
Regarding claim 8, Sharifi-Mehr discloses wherein the expandable intervertebral cage comprises a first latch (120a/168a) and second latch (120b/168b) arranged independently displaceable with respect to each other in the first and/or the second direction (see paragraphs [0029]-[0032]; portions 168a and 168b are independently displaceable horizontally and/or vertically).
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.
Claims 6 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Suddaby ‘678 in view of U.S. Patent Application Publication No. 2017/0143506 (Suddaby ‘506).
Regarding claim 6, Suddaby ‘608 fails to disclose wherein the at least one latch is arranged displaceable in the second direction by a screw engaging an internal thread of the at least one latch, but is instead displaceable by a non-threaded tool (60). However, Suddaby ‘506 discloses an expandable spinal interbody spacer (10) in which a latch (300) for locking upper and lower bodies (200/100) relative to each other is displaceable along an axis (B-B) via a screw (400) engaging an internal thread (305) of the latch (see paragraph [0070]). It would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date of the invention to modify the cage of Suddaby ‘678 to be displaceable via a screw as suggested by Suddaby ‘506 as such a modification merely involves substituting one known mechanism for engaging and moving a locking latch for another known expansion mechanism for engaging and moving a locking latch without any unpredictable results.
Regarding claim 18, Suddaby ‘678 discloses an expandable intervertebral cage (10) comprising: a. a base (20) comprising a peripheral circumferential side wall (22/24) extending in a first direction (along the height of wall 24 in a vertical direction, see Figs. 1-6) and a first bone interaction surface (21); b. a stage (30) comprising a second bone interaction surface (31) arranged opposite to the first bone interaction surface with respect to the expandable intervertebral cage (see Figs. 1-6; surfaces 21 and 31 on opposite upper and lower sides of cage 10); and c. at least one latch (50) adapted to lock the position of the second bone interaction surface of the stage with respect to the first bone interaction surface of the base at least in the first direction and to lock the cage in at least one expanded state and arranged at least partially within the circumferential side wall of the base (see Figs. 1-6 and 9 and paragraph [0054] and [0060]), wherein the at least one latch (50) is displaceable in a second direction (towards and away from wall 24 in a horizontal direction, see paragraph [0054] and Figs. 1-6) perpendicular to the first direction with a screw (60) and further displaceable in the first direction between a locked position wherein the stage is supported (locked position; see Figs. 3 and 9 and paragraphs [0054] and [0060]; bodies 20 and 30 locking engaged in support of each other) and an unlocked position wherein the at least one latch is displaceable in the first direction with respect to the base (unlocked position, see Fig. 6 and paragraph [0054]).
Suddaby ‘678 fails to disclose the latch displaceable with a screw adapted to engage an internal thread of the at least one latch. However, Suddaby ‘506 discloses an expandable spinal interbody spacer (10) in which a latch (300) for locking upper and lower bodies (200/100) relative to each other is displaceable along an axis (B-B) via a screw (400) adapted to engage an internal thread (305) of the latch (see paragraph [0070]). It would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date of the invention to modify the cage of Suddaby ‘678 to be displaceable via a screw as suggested by Suddaby ‘506 as such a modification merely involves substituting one known mechanism for engaging and moving a locking latch for another known expansion mechanism for engaging and moving a locking latch without any unpredictable results.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Suddaby ‘678 in view of U.S. Patent Application Publication No. 2010/0211176 (Greenhalgh ‘176).
Regarding claim 10, Suddaby ‘678 fails to disclose, wherein the expandable intervertebral cage comprises a strut extending in a mounted position from the stage into the circumferential side wall, such that unwanted displacement of the base with respect to the stage in the second direction is prevented. However, Greenhalgh ‘176 discloses an expandable intervertebral cage (2) that comprises a strut (102) in a mounted position from a stage (either top plate 6 or bottom plate 10, see paragraph [0038]) into a circumferential side wall (groove 128 in side wall of plate 6 or 10, see paragraph [0038] and Fig. 1, e.g.), such that unwanted displacement of the base with respect to the stage in a horizontal direction is prevented (see Figs. 1 and 10; sliding of strut 102 in groove 128 prevents horizontal movement of the bodies 6/10 relative to each other while vertical expansion is allowed). It would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date of the invention to modify the cage of Suddaby ‘678 to include a strut as suggested by Greenhalgh ‘176 in order to promote stable positioning of the cage by preventing against relative horizontal movement of the cage top and bottom bodies relative to each other during vertical expansion of the cage.
Claims 11 and 12 are rejected under 35 U.S.C. 103 as being unpatentable over Suddaby ‘678 or Sharifi-Mehr in view of U.S. Patent Application Publication No. 2011/0282453 (Greenhalgh ‘453)
Regarding claims 11 and 12, Suddaby ‘678 and Sharifi-Mehr fail to disclose wherein the expandable intervertebral cage comprises a rotatable camshaft or a displaceable wedge for locally lifting the stage with respect to the base such that the stage is tilted with the respect to the base (claim 11); wherein the cam shaft or the wedge is arranged between the stage and the at least one latch in the first direction (claim 12). However, Greenhalgh ‘453 discloses an expandable intervertebral cage (2) that includes a base (10) and stage (6), wherein the cage comprises a rotatable camshaft or a displaceable wedge (displaceable wedge 96/108) for locally lifting the stage with respect to the base such that the stage is tilted with the respect to the base (see paragraph [0057]; wedges are independently movable, and thus, can title stage 6 relative to base 10 if only one wedge is moved). It would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date of the invention to modify the cage of Suddaby ‘678 or Sharifi-Mehr to include a displaceable wedge arranged between the stage and the at least one latch so as to allow the wedge to contact the bottom of the stage and expand the cage (see Greenhalgh ‘453, paragraphs [0059] and [0090]).
Allowable Subject Matter
Claims 9 and 16 would be allowable if rewritten to include all of the limitations of the base claim and any intervening claims.
Response to Arguments
Applicant's arguments filed January 21, 2026 have been fully considered but they are not persuasive.
Applicant argues on page 9 of the Remarks that Suddaby ‘678 fails to disclose the base comprising a peripheral circumferential side wall because the base 20 of Suddaby ‘678 does not disclose a side wall that is fully connected on all four sides of the base. However, the claim does not require the side wall to be fully connected on all four sides of the base; the side wall must be peripheral and circumferential. A plain meaning of “periphery” is “the external boundary of any surface or area” (https://www.dictionary.com/browse/periphery, last visited 5/20/2026), and a plain meaning of “circumferential” is “of, at, or near the circumference” (https://www.dictionary.com/browse/circumferential, last visited 5/20/2026). Thus, the side wall must be at or near an external boundary and circumference of the base; the side wall need not travel uninterrupted along all four walls of the base in order to be “circumferential”.
Applicant argues on page 9 of the Remarks that Suddaby ‘678 does not disclose a latch arranged in a displaceable manner in a second direction essentially perpendicular to the first direction. The examiner disagrees. Paragraphs [0053] and [0054] of Suddaby ‘678 discloses that the pawl 50 can pivot in a horizontal direction that is perpendicular to the vertical direction. Applicant argues that the claim requires the axis of rotation of the pawl 50 to be displaced; the examiner disagrees. The claim requires the latch to be displaced, not its axis of rotation; thus, rotation of the pawl along a horizontal dimension that is perpendicular to the vertical direction satisfies the claim.
Applicant argues on page 9 of the Remarks that Suddaby ‘678 fails to disclose the latch displaceable in the first direction. The examiner disagrees. As shown in Figs. 3, 6, and 9 of Suddaby ‘678, the latch 50 can be vertically displaceable relative to the base 20 when the base 20 and stage 30 are pivoted vertically away from each other, such pivoting allowed in the unlocked position (see Suddaby ‘678, paragraph [0054]).
Applicant argues on page 10 of the Remarks that Sharifi-Mehr does not teach or suggest latch movement in the second direction because all moveable parts in Sharifi-Mehr are only displaced in the first direction. The examiner disagrees. For example, portion 168a of Sharifi-Mehr is moveable in a distal-proximal direction (see paragraphs [0029]-[0032]).
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 NICHOLAS J PLIONIS whose telephone number is (571)270-3027. The examiner can normally be reached on Monday - Friday, 10:00 a.m. - 6:00 p.m. EST.
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/NICHOLAS J PLIONIS/Primary Examiner, Art Unit 3773
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