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 4/28/2026 have been fully considered but they are not persuasive. Applicant argues that Kuyler does not disclose the second arm having an arm protrusion and that the second arm is flat. The examiner disagrees as the Fig 33 shows the arm protrusion raised from the body portion as claimed. Fig 33 is zoomed in below and the body portion and arm protrusion are identified, where the body protrusions have inner surfaces that face each other (it is noted that only one inner surface is labeled as this inner surface is easily seen in Fig 33 but the other inner surface is directly opposite). Each arm protrusion protrude outward on an opposite side from the inner surface of their respective second arm. It is noted that a configuration in which the second arm is flat is shown in the embodiment shown in Fig 3 in Kuyler. Likewise, the second arms of Fig 33 of Kuyler is similar to that of Fig 16, where Fig 16 also has a body portions and arm protrusions.
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Claims 11-14, 19-20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Kuyler US 2017/0112630.
Regarding Claim 11, Kuyler discloses an expandable intervertebral cage device (Fig 30-33) adapted to be implanted into an intervertebral disc space in a patient's body (paragraph 1), comprising:
a first base plate (see Fig below) having a first outer bearing surface configured to interface with a first vertebra of the intervertebral disc space (see Fig below, paragraph 109);
a second base plate (see Fig below) having a second outer bearing surface configured to interface with a second vertebra of the intervertebral disc space (see Fig below, paragraph 110);
a proximal block (see Fig below) comprising internal threading (paragraph 116 where screw #721 is threaded onto the internal threading);
a distal block (see Fig below) comprising an internal passage (paragraph 119 where the screw #721 is within the internal passage),
two arm assemblies, wherein one arm assembly is on each of the first side of the device and the second side of the device (see Fig below, where there are arm assemblies on each lateral side) and
wherein each arm assembly comprises:
a first arm (see Fig below) pivotally coupled to the first base plate and the distal block (paragraph 118-119, Fig 31-32, where the arms pivot/rotate); and
a second arm (see Fig below) pivotally coupled to the second base plate and the distal block (paragraph 118-119, Fig 31-32 where the arms pivot/rotate),
wherein the second arm (see Fig below) comprises a body portion (see Fig below) and an arm protrusion (see Fig below) raised from the body portion (see Fig below); and
a screw (see Fig below) extending between the internal threading of the proximal block and the internal passage of the distal block (see Fig below), such that rotation of the screw relative to the proximal block causes a change in distance between the distal block and the proximal block (change in distance seen in Fig 31-32, paragraph 119) and the arm assemblies to expand from a collapsed configuration (as seen in Fig 31, paragraph 118-119) to an expanded configuration (as seen in Fig 32, paragraph 118-119), wherein in the collapsed configuration each first arm nests with the corresponding second arm with the first arm overlapping the body portion and abutting the arm protrusion of the corresponding second arm (as seen in Fig 31 and see Fig 33 where the first arm nests with the second arm).
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Regarding Claim 12, Kuyler discloses only two arm assemblies (as seen in Fig 30-33 where there are only two arm assemblies).
Regarding Claim 13, Kuyler discloses both the first arm and the second arm of each arm assembly are mechanically coupled to a common point (Fig 32, where both arms are coupled on each side are coupled to a common point on pin #662, see Fig below, where the other common point is opposite the identified common point below) on the respective side of the distal block.
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Regarding Claim 14, Kuyler discloses the common point is an arm protrusion (#662 and #662a) extending outwardly from each of a first side and a second side of the distal block (pin or arm protrusions #662a, #662 extend out from their respective sides).
Regarding Claim 19, Kuyler discloses wherein rotation of the screw relative to the proximal block further causes the arm assemblies to expand an angle of the first base plate and the second base plate relative to each other (as seen in Fig 30-31, paragraph 118-119 where the arms are rotated when the screw is rotated).
Regarding Claim 20, Kuyler discloses the change in distance between the distal block and the proximal block causes a distance between a proximal end of the first base plate and a proximal end of the second base plate to vary, where the distal block moves with the screw when the screw is rotated (as seen in Fig 30-31, paragraph 118-119 where the distance between the blocks change when rotated when the screw is rotated).
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.
Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over Kuyler US 2017/0112630 in view of Jimenez US 2015/0272743.
Kuyler discloses the claimed invention as discussed above where the arm protrusion (#662, #662a) couples to the first arm and the second arm on each side of the device but does not disclose a ring coupling the arm protrusion to the first arm and the second arm on each side of the device.
Jimenez discloses an arm protrusion (#26, Fig 1a) with a groove (#52, Fig 8) that is coupled to an arm (#16, Fig 1a), a ring (#20, Fig 1a, Fig 5) coupling the arm protrusion to the arm via the groove to support the interconnection and prevents lateral movement between the arm protrusion and arm (paragraph 48).
It would have been obvious to one having ordinary skill in the art at a time before the effective filing date of the claimed invention to modify the arm protrusions of Kuyler to each include a groove and a ring in view of Jimenez because the ring snaps onto the groove and supports support the interconnection and prevents lateral movement between the respective arm protrusion and first and second arms.
Claim 16 is rejected under 35 U.S.C. 103 as being unpatentable over Kuyler US 2017/0112630 in view of Butler US 2017/0224505
Kuyler discloses the claimed invention as discussed above where the proximal block has an opening (Fig 31, where the screw #721 is inserted through an opening in the proximal block, where screw #721 is shown partially extending out from the opening) defined sized and configured to receive the screw (Fig 31), where the device is for bone growth (paragraph 53, 55) but does not disclose the opening is sized and configured to enable insertion of a bone growth material into an open area within the device.
Butler discloses a fusion cage device (Fig 33) with upper and lower base plates (#218, #220), a screw (#216) having ports (#238), a proximal block (#214), the screw (#216) received through an opening in the proximal block (Figs 31-32, 34), the opening sized and configured to receive the screw and enable insertion of a bone growth material into an open area (as seen in Fig 31-32, 34 where ports #238 are in communication with an open area) within the device (Fig 31-32, 33, paragraph 57, where growth material is inserted through the opening and through the screw and out the ports) to provide a fluid path with the open space of the device for the insertion of bone growth materials.
It would have been obvious to one having ordinary skill in the art at a time before the effective filing date of the claimed invention to modify the screw of Kuyler to include ports in view of Butler such that the opening of the proximal block provide a fluid path with the open space of the device for the insertion of bone growth materials. The examiner notes that with the modification, the opening would be sized and configured to enable insertion of a bone growth material into an open area within the device.
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Kuyler US 2017/0112630.
Regarding Claim 17, Kuyler discloses the claimed invention as discussed above where the device is used for bone growth/fusion (paragraph 53, 55) and has an open space therein (as seen in Fig 30-33 where the screw #721 and distal block #720 are located in the open space) but does not explicitly disclose the first base plate and the second base plate each have an opening defined therein configured to allow bone growth into an open space defined by the device.
Kuyler discloses another embodiment (Fig 7-16) where the first base plate and the second base plate each have an opening defined therein configured to allow bone growth into an open space defined by the device (see Fig below) to allow bone to grow through the implant (paragraph 53, 55).
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It would have been obvious to one having ordinary skill in the art at a time before the effective filing date of the claimed invention to modify Kuyler to have the first and second base plates to each include an opening in view of another embodiment of Kuyler above in order for bone to grow through the implant.
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over Kuyler US 2017/0112630 in view of Jimenez US 2015/0272743.
Kuyler discloses the claimed invention as discussed above wherein the screw is threadedly coupled to the internal threading of the proximal block (paragraph 116 where screw #721 is threaded onto the internal threading) but does not disclose the distal block includes a non-threaded rotational coupling to which the screw is non-threadedly rotationally coupled.
Jimenez discloses a similar device (see rejection for claim 1 in view of Jimenez above) with a screw (#19) is threadedly coupled to the internal threading (#48) of the proximal block (#24, paragraph 51) and the distal block (#22) includes a non-threaded rotational coupling to which the screw is non-threadedly rotationally coupled (see Fig below, paragraph 49) such that the distal block moves along with the screw to change the distance between the first and second base plates (paragraph 49 ).
It would have been obvious to one having ordinary skill in the art at a time before the effective filing date of the claimed invention to modify Kuyler to have the distal block to be non-threadably coupled with the screw in view of Jimenez above because this provides a known type of coupling that allows the distal block to move along with the screw to change the distance between the first and second base plates.
Allowable Subject Matter
Claims 1, 3-10 are allowed.
Conclusion
THIS ACTION IS MADE FINAL. 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 JAN CHRISTOPHER L MERENE whose telephone number is (571)270-5032. The examiner can normally be reached Mon-Fri 8:30 am - 6pm EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
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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/JAN CHRISTOPHER L MERENE/Primary Examiner, Art Unit 3773
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