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 .
This is the initial Office action for the 18/717,820 application. Claims 1-11 are pending.
Claim Objections
Claims 1-11 are objected to because of the following informalities: remove reference numbers (many of which are incorrect and duplicated for different structure, i.e., in claim 1, reference numbers 24a and 24b have been used to identify both the contact surface of the distal support section and the bearing regions of the proximal support section).
In claims 1-11, insert --A-- before “Modular support cage” in line 1.
In claim 8, line 9, insert –the—before “modular.”
In claim 8, line 10, correct the spelling of “characterized.” 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 1-11 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.
In claim 1, Applicant uses the term “contact surface” to identify separate structure located on the distal support, and on the proximal support. Applicant should use “second” or other language to differentiate between the contact surface of the distal support and the contact surface of the proximal support.
Claim 1 recites the limitation "each end plate" in line 3. There is insufficient antecedent basis for this limitation in the claim. It is further noted that in lines 5 and 9 of claim 1 applicant again references “an opposite end plate” and “end plates.” For purposes of examination “each end plate,” and “an opposite end plate” will be understood to be the previously recited “two support plates” of line 2.
Claim 1, line 9, recites the limitation "the same.” There is insufficient antecedent basis for this limitation in the claim. Furthermore, it is unclear to what applicant is referring to, i.e., the previously recited “bearing element,” “bearing regions,” or “end plates.”
In claim 4, line 2, “and/or” is indefinite because it is unclear what limitation such language places on the claimed subject matter.
In claim 8, line 11, Applicant refers back to the previously recited “support plate of the support cage or the end plates (22a,22b).” It is noted that claim 1 identifies the support plates and the end plates as the same structure. Accordingly, the recited “or” creates confusion as to the exact structure applicant is defining. Additionally, in lines 14-15 of claim 8, “end plate” should be changed to support plates to maintain the same naming throughout the claim.
Claim 8 recites the limitation "the support sections" in line 14. There is insufficient antecedent basis for this limitation in the claim.
Claim 8 recites the limitation "the end position of the bearing element" in line 13. There is insufficient antecedent basis for this limitation in the claim.
Claim 8 recites the limitation "the support sections" in line 14. There is insufficient antecedent basis for this limitation in the claim.
Claim 10 recites the limitation "the end plates" in line 3. There is insufficient antecedent basis for this limitation in the claim because as stated above, “end plates” should be referred to as the first and previously recited “support plates.”
Claim 11 again refers back to “the end plates” which should be corrected to “support plates.” Additionally, the claim recites the limitation “and/or the proximal support section” which is unclear.
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) 1-8 and 11 is/are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Dewey et al. (U.S. 12,268,614 B2).
Concerning claim 1, Dewey et al. disclose a modular support cage (see Fig. 11) for supporting vertebral elements, comprising: a distal support section which has at least two support plates (see Fig. 7, elements 10 and 20) which lie opposite each other and which can be moved relative to each other (see Figs. 8A and 8B), wherein each end plate has a contact surface (see Fig. 11 below) which is oriented outwards and which is designed to contact the element to be supported and respectively a bearing region (see Fig. 11 below) that is configured to be oriented towards an opposite end plate; and a proximal support section (see Fig. 11 below) which has at least two contact surfaces (see Fig. 11 below) which are oriented outwards and a bearing element (see Fig. 11 below) that can be joined between the bearing regions of the end plates and supports the same such that the end plates are held in a specific position.
[AltContent: textbox (Contact Surface)][AltContent: connector][AltContent: textbox (Bearing Element)][AltContent: connector][AltContent: textbox (Bearing Element)][AltContent: connector][AltContent: textbox (Contact Surface)][AltContent: connector][AltContent: textbox (Contact Surface)][AltContent: arrow][AltContent: textbox (Proximal Support Section)][AltContent: arrow][AltContent: arrow][AltContent: textbox (Bearing Region)][AltContent: arrow][AltContent: arrow][AltContent: textbox (Contact Surface)]
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Concerning claim 2, wherein the contact surfaces (see Fig. 11 above) of the distal and proximal support sections are aligned relative to each other. It is noted that portions of the contact surfaces lie within the same plane on both the top and bottom of the implant.
Concerning claim 3, wherein the contact surfaces and the bearing element of the proximal support section are formed in one piece (see Fig. 4, element 30).
Concerning claim 4, wherein the at least two end plates and/or at least partially the proximal support section are formed with a tapering thickness such that the contact surfaces are inclined (see Fig. 2).
Concerning claim 5, wherein the end plates have an abutment (see Fig. 2, elements 16 and 26) for the bearing element (see col. 4, lines 26-40).
Concerning claim 6, wherein the bearing element and the bearing regions have step elements (see Fig. 2, elements 16 and 26) at the interface between the distal and proximal support section.
Concerning claim 7, wherein the at least two outwardly oriented contact regions of the proximal support section have respectively two spaced-apart surfaces (see Fig. 11 below – same structure located on the lower plate), and the at least two outwardly oriented contact regions of the distal support sections are respectively U-shaped (see Fig. 11 below).
[AltContent: connector][AltContent: textbox (U-shaped)][AltContent: ][AltContent: textbox (Spaced Apart Surfaces)][AltContent: arrow][AltContent: arrow]
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Concerning claim 8, as best understood, Dewey et al. disclose a cage for supporting vertebral elements comprising: at least a support section which has at least two support plates (see Fig. 11, elements 10 and 20) which lie opposite each other and which can be moved relative to each other (see Fig. 2), wherein each support plate comprises a contact region (see Fig. 11 below) which is oriented outwards and which is designed to contact the element to be supported, and respectively a bearing region (see Fig. 11 below) that is oriented towards an opposite support plate; and a bearing element (see Fig. 4, element 30) that can be joined between the support plates and supports the same such that the support plates are held in a specific position (see Fig. 13), OR the modular support device according to claim 1, characterized in that the bearing element (see Fig. 11, element 30) and the support plates (10 and 20) of the support cage further have mutually complementary latching elements (see Fig. 2, elements 16 and 26; and see col. 4, lines 26-40) at a distal end region, which interact together in such a way that the bearing element is connected to the support plates in a non-displaceable manner.
[AltContent: connector][AltContent: textbox (Bearing Region)][AltContent: connector][AltContent: textbox (Bearing Region)][AltContent: textbox (Contact Region)][AltContent: arrow][AltContent: arrow][AltContent: textbox (Contact Region)]
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Concerning claim 11, as best understood, the proximal support section has a tool housing (see Fig. 11, element 31).
Allowable Subject Matter
Claims 9-10 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.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The cited art relates to modular fusion implants including characteristics of the disclosed invention.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ELLEN HAMMOND whose telephone number is (571)270-3819. The examiner can normally be reached Monday-Friday 8 - 4 PM .
If attempts to reach the examiner by telephone are unsuccessful, please contact the examiner’s supervisor, Eduardo C. Robert, 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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/ELLEN C HAMMOND/ Primary Examiner, Art Unit 3773