DETAILED ACTION
The following is a non-final office action is response to communications received on 07/10/2024. Claims 1-13 are currently pending and addressed below.
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 .
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.
Claim 12 is 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.
Claim 12 states “wherein the augment is a tibial augment”. The limitation is indefinite as Claim 1 requires “the distal end of the augment wall having a first shape configured to conform to the shape of a metaphyseal-diaphyseal junction of a canal of the bone, the proximal end at the outer portion having a second shape configured to conform to a shape of the metaphyseal region of the canal of the bone.” While the italicized orientation of claim 1 is proper for a femoral augment, a tibial augment would appear to have an alternative orientation. Specifically, a tibial augment would require “the proximal end of the augment wall having a first shape configured to conform to the shape of a metaphyseal-diaphyseal junction of a canal of the bone, the distal end at the outer portion having a second shape configured to conform to a shape of the metaphyseal region of the canal of the bone.” Appropriate correction is required.
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, 11 & 13 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Thomas (US 8,424,183).
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Regarding Claim 1, Thomas teaches an augment for implantation in association with an orthopedic implant device in a bone, the augment (Fig 1) comprising: an augment wall (shown) having an outer portion, an inner portion, a distal end (shown), and a proximal end (shown), the inner portion defining an inner region of the augment (within the device), the inner region sized to receive placement of one or more components of the orthopedic implant device (Fig 7), the distal end of the augment wall having a first shape (shown) fully capable of conforming to the shape of a metaphyseal-diaphyseal junction of a canal of the bone, the proximal end at the outer portion having a second shape (shown) fully capable of conforming to a shape of the metaphyseal region of the canal of the bone, the first shape having a different shape and size than the second shape (Fig 1); at least one relief (shown) positioned about at least one of the proximal and distal ends of the augment wall, at least one of the reliefs is capable of preventing, when the augment is implanted in the bone, point contact between a portion of the augment wall and an adjacent wall of the bone; wherein the at least one relief includes a relief wall (shown) that has a profile inwardly tapered (shown) toward the associated one of the proximal end and the distal end of the augment wall to reduce a size of a profile of the augment.
Regarding Claim 2, Thomas teaches wherein the at least one relief includes an aperture (shown) and the relief wall, the aperture extending through the augment wall (shown) to the inner portion of the augment.
Regarding Claim 3, Thomas teaches wherein the aperture extends along a central relief axis (shown) that is parallel to an adjacent portion of the augment wall.
Regarding Claim 4, Thomas teaches wherein the central relief axis is non-perpendicular to a central augment axis (shown) of the augment.
Regarding Claim 5, Thomas teaches wherein a distance between the relief wall (shown) and the opposing portion of the inner portion is less than a distance between an adjacent portion of the outer portion and the inner portion (due to the tapered aspect of the relief).
Regarding Claim 6, Thomas teaches wherein the at least one relief (shown) includes the relief wall (Fig 1), a distance between the relief wall and the opposing portion of the inner portion is less than a distance between an adjacent portion of the outer portion and the inner portion (due to the tapered aspect of the relief), and wherein the relief does not include an aperture (Fig 1).
Regarding Claim 7, Thomas teaches wherein the relief wall (shown) extends along a central relief axis (shown) that is non-perpendicular to a central augment axis (shown) of the augment, the central relief axis being parallel to a portion of the augment wall that is adjacent to the relief wall (Fig 1 illustrates sidewalls of augment running parallel to central relief axis).
Regarding Claim 11, Thomas teaches wherein at least one of the at least one relief (shown) terminates at a mid-section (shown) of the augment wall.
Regarding Claim 13, Thomas teaches wherein the augment is a femoral augment (Fig 8).
Allowable Subject Matter
Claims 8-10 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 of record, which is the most pertinent art found, fails to teach and/or fairly suggest the instant invention. As set forth supra, Thomas (US 8,424,183) discloses the invention substantially as claimed. Further, Thomas teaches wherein the at least one relief includes a first relief, wherein the first relief extends to the distal end of the augment wall (Fig 1). However, the prior art either individually or in combination, does not teach or render obvious wherein the at least one relief includes a second relief, the first and second reliefs being on opposing sides of the augment wall, and wherein the second relief extends to the proximal end of the augment wall.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRIAN AINSLEY DUKERT whose telephone number is (571)270-3258. The examiner can normally be reached Mon-Fri 6am-4pm.
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/BRIAN A DUKERT/Primary Examiner, Art Unit 3774
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