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 .
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) 1-3 and 6-7 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Smith (US Patent Pub. 20140171955A1).
Smith recites a depth gauge capable of use with determining proper placement of a fastener head with respect to a bone plate. Specifically in regards to claim 1, Smith recites a measuring feature (915) shaped to approximate a fastener head (Smith recites that the end 915 can have a shape of other different types of screws with different types of heads which are used with different attachment means.) (Fig. 9a-9e; and Para. [0049]-[0050]). Smith also recites a plate-facing surface (tapered portion of 915) shaped similarly to the way a fastener head is shaped at a junction between the fastener head and a fastener shaft, and a shaft-facing surface (distal most end of 915) is shaped similarly to the way an upper head of a fastener is shaped; and side surfaces (curved surfaces of 915) disposed between the plate-facing and shaft-facing surfaces wherein the side surfaces are curved outwardly relative to the plate-facing and shaft-facing surfaces and configured to be positioned within an aperture of a bone plate (As can be seen in Fig. 9c the outer surface of the head 915 comprises a curved surface shaped like a cylinder that extends beyond the housing and taper diameters.) (Fig. 9a-9d; and Para. [0049]).
In regards to claim 2, Smith recites wherein the measuring feature (915) comprises a distal rounded tip at the end of a shaft (Fig. 9c).
In regards to claim 3, Smith recites wherein the distal rounded tip (915) and the shaft (901) are integrally formed (Fig. 9a-9c).
In regards to claim 6, Smith recites wherein the measuring feature (915) comprises an upper curved surface that contacts the shaft (Fig. 9a-9d).
In regards to claim 7, Smith recites wherein the shaft (901) forms or cooperates with a handle that comprises size or measurement markings (905) (Fig. 9c).
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.
Claim(s) 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over Smith.
Smith recites a depth gauge for determining proper placement of a fastener comprising a measurement feature in the form of a fastener head. In regards to claim 4, Smith recites a distal rounded tip (915) and a shaft (901) (Fig. 9a-9c). However, the reference is silent as to the tip and the shaft being separable.
It would have been obvious to one having ordinary skill in the art at the time the invention was filed to modify the Smith reference by making the tip and shaft separable so as to have a kit, since it has been held that constructing a formerly integral structure in various elements involves only routine skill in the art, and Smith teaches that a kit is possible since the tip can have various other shapes (Para. [0049]).
Response to Arguments
Applicant's arguments filed 3/13/26 have been fully considered but they are not persuasive. Applicant argues that the depth gauge of Smith shown in Fig. 9c does not recite wherein the sides of the head portion of the gauge have curved surfaces that extend outwardly. However, as can be seen in Fig. 9c the outer surface of the head 915 comprises a curved surface shaped like a cylinder that extends beyond the housing and taper diameters. Therefore, the claimed limitation is rendered obvious over the Smith reference.
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 MARCELA I SHIRSAT whose telephone number is (571)270-5269. The examiner can normally be reached M-F 9:00am-5:30pm MST.
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/MARCELA I. SHIRSAT/ Primary Examiner, Art Unit 3775
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