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 .
Response to Arguments
Applicant's arguments filed 01/22/2026 have been fully considered but they are not persuasive. Applicant argues that Cowan fails to disclose or suggest the newly added limitation in which rotation of the driver causes movement of a forward spacer and read spacer at different rates due to the difference in sizes and shapes of the spacers. The Office respectfully disagrees. Paragraph [0089] discloses that the end spacers/wedges may have different angles leading to different rates of expansion. Specifically, that angled surfaces refs. 352A, 354A of spacer 350A may be different than angles surfaces 352B, 354B of spacer. This is different than the laterally different expansion rates that are also disclosed in paragraph [0089] and elsewhere.
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 - 7 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Cowan et al. (US 2019/0254836 A1).
Regarding claim 1, Cowan discloses a spinal implant (Abstract, Fig. 20) comprising:
an upper support body (Fig. 20, ref. 310) formed from a substantially flat plate having an upper surface and a lower surface (Fig. 20), said lower surface having a first front side inclined surface spaced from a first rear side inclined surface spaced apart from a second front side inclined surface by a pinion support (ref. 314A)(see remarked Fig. 22A below), said second front side inclined surface is spaced apart from a second rear side inclined surface forming a mirror image of said first front side inclined surface and said first rear side inclined surface (see remarked Fig. 22A below);
a lower support body (ref. 320) formed from a substantially flat plate having an outer surface (Fig. 21), said lower support body having a first lower front side inclined surface spaced from a first lower rear side inclined surface by a pinion receptacle (best shown in Fig. 20 which shows inclined surfaces to compliment the surfaces of the upper body); a second lower front side inclined surface forms a mirror image of the first lower front side inclined surface and said first lower rear side inclined surface (Fig. 20);
a driver formed from a cylindrical shank having left hand threads along a first end and right-hand threads along a second end (Fig. 20 shows a drive ref. 340 with opposing threaded ends), said first end including a driver tool receptacle (the polygon shaped ends are considered the driver tool receptacle);
a forward spacer (ref. 350A) coupled to said driver, said forward spacer positionable between said upper and lower front inclined surfaces having inclined surface protrusion for engaging the front side inclined surfaces (Figs. 20 – 24);
a rear spacer (ref. 350B) shaped and sized differently than said forward spacer (paragraph [0089] discloses that the end wedges may have different angles and thus having a different shape and size), said read spacer having a threaded opening for coupling to the first end of the driver with side walls spaced apart by trailing wall having a threaded receptacle for receipt of a positioning tool (see remarked Fig. 20 below), a right rear spacer protrusion having an upper surface and a lower surface for engaging the first upper rear side inclined surface and the first lower rear side inclined surface, with a left rear spacer protrusion forming a mirror image of the right rear spacer protrusion (as shown in Fig. 20, the spacers form protrusions on either side to make with the inclined surfaces of the support bodies);
wherein the implant forms a compact arrangement for ease of insertion allowing a posterior surgical approach for placement of said spinal implant for interbody fusion (Fig. 23 shows a compact arrangement fully capable of being inserted from a posterior approach), said driver tool receptacle for use in rotation of said driver, and wherein rotation of said driver causes movement of said forward spacer and said rear spacer such that said forward spacer displaces said upper support body relative to said lower support body at a faster rate than said rear spacer to increase the implant in size in size in situ (paragraphs [0088-90]).
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Regarding claim 2, Cowan discloses the spinal implant according to Claim 1 wherein said driver right and left hand threads are reversed (Fig. 20 show reversed threads).
Regarding claim 3, Cowan discloses the spinal implant according to Claim 1 wherein each said inclined surface includes a radius (there is a width, length and height dimension to each of the inclined surfaces, anyone one of which may be considered a radius).
Regarding claim 4, Cowan discloses the spinal implant according to Claim 1 wherein each said spacer is cam shaped (the spacers are shown to be substantially wedged shaped, thus functioning as a cam when engaged with the inclined surfaces).
Regarding claim 5, Cowan discloses the spinal implant according to Claim 1 wherein said driver right hand threads has a first amount of threads per inch and said driver left hand threads has a second amount of threads per inch (as shown, the driver has two sets of threads having reverse threading with their threads per inch which may be the same or different).
Regarding claim 6, Cowan discloses the spinal implant according to claim 1 wherein an upper surface of said upper support body and an outer surface of said lower support body are stippled (Fig. 20).
Regarding claim 7, Cowan discloses the spinal implant according to claim 1 wherein said insert body is constructed from polyether ether ketone (paragraph [0066] discloses PEEK which is an ether ketone).
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 TESSA M MATTHEWS whose telephone number is (571)272-8817. The examiner can normally be reached M - F 8am - 1pm.
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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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/TESSA M MATTHEWS/Examiner, Art Unit 3773
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