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 has amended independent claim 1 to include the limitations of previous claim 3. Examiner stresses that the subject matter of claim 3 was not previously indicated as allowable and rejected in the Non-Final Rejection of January 16, 2026, and rejected consistently below. The subject matter of Claims 5-12 remain as objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims
Allowable Subject Matter
Claims 14, 16, and 17 are allowable over the prior art.
Applicant has submitted a terminal disclaimer. The double patenting rejection of claims 1, 4-12, 14, 16, and 17 has been withdrawn.
Claims 5-12 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter:
The prior art fails to teach or disclose wherein the posterior distractor rack assembly includes a first swivel tube subassembly having a first swivel tube, wherein the posterior distractor carriage assembly includes a second swivel tube subassembly having a second swivel tube, and wherein the first and second swivel tubes are each configured to receive a pedicle screw and screw tower therein.
The prior art fails to teach or disclose wherein the pinion assembly includes a knob, a post descending from the knob, a gear circumferentially engaging the post and having ridges that interdigitate with the ridges on the rack, and wherein the posterior distractor carriage assembly includes an aperture dimensioned to receive the post and gear of the pinion assembly therein.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1 and 4 are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent No. 2015/0018623 to Friedrich et al. in view of U.S. Patent Pub. No. 2012/0041272 to Dietze, Jr. et al. in view of U.S. Patent Pub. No. 2009/0227845 to Lo et al.
As to Claim 1, Friedrich discloses an internal fixation system (10, Fig. 1) for spinal surgery on a patient [0009-0010]. The system comprises a lateral lumbar interbody fusion (LLIF) retractor (18, [0046]) having an LLIF retractor adaptor (40, [0042]) configured to connect to a surgical table [0033]. The LLIF retractor (18) is operative to approach the spine from a lateral side [0063], a posterior retraction instrument (12, [0033, 0035]), an A-arm (seen in Fig. 1, below, as a solid line) configured to mount (via 20) on a surgical table [0033], and a B-arm (seen in Fig. 1, below, as a dotted line) configured to engage an end of the table-mounted A-arm (at 46B, Fig. 1, below) and to engage the posterior retraction instrument (12, [0035]). The system (10, Fig. 1) is operative for performing prone lateral spine surgery on the patient without the use of a bolster, and the system enables a surgeon to access either the left or the right lateral side of the spine of the patient during the surgery [0063-0064].
As to Claim 1, Friedrich discloses the claimed invention except for wherein the system includes a posterior compressor/distractor operative to contact the spine at the patient's back and the back of the spine when the patient is prone for the surgery, the posterior compressor/distractor being configured to contacts and/or approaches the spine from the back.
Dietze, Jr. discloses an internal fixation system (1, Fig. 3, [0010]) for spinal surgery on a patient including a first arm (52) having attached a lateral lumbar interbody fusion retractor (56) and a second arm (58) having attached a posterior compressor/distractor (100, [0051-0052], Fig. 3)). The compressor/distractor (100) is operative to contact the spine at the patient's back and the back of the spine when the patient is prone for the surgery [0052], the posterior compressor/distractor (18) is configured to contact and/or approach the spine from the back [0052, 0089] in order to provide for a retractor that minimizes clutter in the working field to provide maximum site lines to the surgical site during minimally invasive procedures [0009].
It would have been obvious to one having ordinary skill in the art at the time the invention was made to modify the internal fixation system of Friedrich with the retractor and distractor modification of Dietze, Jr. in order to provide for a retractor that minimizes clutter in the working field to provide maximum site lines to the surgical site during minimally invasive procedures.
As to Claims 1 and 4, Friedrich and Dietze, Jr. et al. disclose the claimed invention except for wherein the posterior compressor/distractor includes a posterior distractor rack assembly, a posterior distractor carriage assembly configured to operably engage the posterior distractor rack assembly, and a pinion assembly configured to operably engage the posterior distractor rack assembly and the posterior distractor carriage assembly, whereby the posterior distractor rack assembly and posterior distractor carriage assembly are movable relative to one another, wherein the posterior distractor rack assembly includes a rack having a plurality of ridges on at least one surface thereof, and wherein the posterior distractor carriage assembly includes an opening configured to receive the rack therethrough.
Lo discloses an internal fixation system (Fig. 4, [0033]) wherein the posterior compressor/distractor (2) includes a posterior distractor rack assembly (38), a posterior distractor carriage assembly (84) configured to operably engage the posterior distractor rack assembly (38, [0033]), and a pinion assembly (90) configured to operably engage the posterior distractor rack assembly (38) and the posterior distractor carriage assembly (84, [0033]), whereby the posterior distractor rack assembly and posterior distractor carriage assembly are movable relative to one another [0033]. The posterior distractor rack assembly (38) includes a rack having a plurality of ridges on at least one surface thereof (Fig. 4, [0033]), and wherein the posterior distractor carriage assembly (84) includes an opening (50) configured to receive the rack therethrough [0033] in order to provide an adjusting mechanism capable of adjusting and locking positions of the posterior compressor/distractor and lateral lumbar interbody fusion retractor in a desired position [0033].
It would have been obvious to one having ordinary skill in the art at the time the invention was made to modify the internal fixation system of Friedrich and Dietze, Jr. with the rack and pinion modification of Lo in order to provide an adjusting mechanism capable of adjusting and locking positions of the posterior compressor/distractor and lateral lumbar interbody fusion retractor in a desired position.
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 CHRISTOPHER J BECCIA whose telephone number is (571)270-7391. The examiner can normally be reached Mon - Fri 8:30-5:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Kevin Truong can be reached at 571-272-4705. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/CHRISTOPHER J BECCIA/Primary Examiner, Art Unit 3775
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