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 § 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.
Claims 1-30 are 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 1 recites the limitation “the implant" in line 9. There is insufficient antecedent basis for this limitation in the claim. Applicant recites the functional limitation “for inserting an implant into an intervertebral space” in line 1 of the claim, but does not go on to properly introduce the implant prior to the positive recitation later in the claim. For examination purposes, the office will interpret line 9 to read, “configured to be locked in place relative to the implant”.
Claims 2 and 8 recite the limitation “further comprising the implant" in line 1. There is insufficient antecedent basis for this limitation in the claim. For examination purposes, the office will interpret this to read, “further comprising an implant”.
Claim 9 recites the limitation “the implant" in line 14. There is insufficient antecedent basis for this limitation in the claim. Applicant recites the functional limitation “for inserting an implant into an intervertebral space” in line 1 of the claim, but does not go on to properly introduce the implant prior to the positive recitation later in the claim. For examination purposes, the office will interpret line 14 of the claim to read “configured to be locked in place relative to the implant”.
Claims 10, 12, and 14 recite the limitation “further comprising the implant" in line 1. There is insufficient antecedent basis for this limitation in the claim. For examination purposes, the office will interpret this to read, “further comprising an implant”.
Claim 15 recites the limitation “the implant" in line 3. There is insufficient antecedent basis for this limitation in the claim. Applicant recites the functional limitation “for inserting an implant into an intervertebral space” in line 1 of the claim, but does not go on to properly introduce the implant prior to the positive recitation later in the claim. For examination purposes, the office will interpret line 3 of the claim to read “an implant”.
Claim 23 recites the limitation “the implant" in line 9. There is insufficient antecedent basis for this limitation in the claim. Applicant recites the functional limitation “for inserting an implant into an intervertebral space” in line 1 of the claim, but does not go on to properly introduce the implant prior to the positive recitation later in the claim. For examination purposes, the office will interpret line 9 to read, “configured to be locked in place relative to the implant”.
Claim 24 recites the limitation “further comprising the implant" in line 1. There is insufficient antecedent basis for this limitation in the claim. For examination purposes, the office will interpret this to read, “further comprising an implant”.
Claim 27 recites the limitation “the implant" in line 15. There is insufficient antecedent basis for this limitation in the claim. Applicant recites the functional limitation “for inserting an implant into an intervertebral space” in line 1 of the claim, but does not go on to properly introduce the implant prior to the positive recitation later in the claim. For examination purposes, the office will interpret line 9 to read, “configured to be locked in place relative to the implant”.
Claims 28 and 30 recite the limitation “further comprising the implant" in line 1. There is insufficient antecedent basis for this limitation in the claim. For examination purposes, the office will interpret this to read, “further comprising an implant”.
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.
Claims 1, 7, 23, 27, 29, are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Ruffner et al (US 20040106927 A1) (hereon referred to as Ruffner).
Regarding claim 1, Ruffner teaches a system for inserting an implant into an intervertebral space (note that this is a functional limitation, satisfied by the devices ability to attach to an implant if configured accordingly), the system comprising:
an implant inserter (100), comprising:
a first arm (122c);
a second arm (124c); and
a first retention member (122) positioned between the first arm (122c) and the second arm (124c);
wherein the first arm (122c) and the second arm (124c) are moveable, relative to each other, between:
a locked configuration (see Fig. 2) in which the first arm and the second arm are spaced apart such that the first arm and the second arm are configured to be locked in place relative to the implant (see Fig. 2; note that depending on the size and configuration of the implant, the arms are capable of being locked in place relative thereto); and
a compressed configuration (see Fig. 1), in which the first arm and the second arm are less spaced apart such that the first arm and the second arm are withdrawable from the implant (see Fig. 1; note that depending on the size and configuration of the implant, the arms are capable of being withdrawable therefrom);
wherein the first retention member (122) is moveable between:
a locked position in which the first retention member blocks relative motion of the first arm and the second arm from the locked configuration to the compressed configuration (see Para. [0021 and 0026]); and
an unlocked position in which the first retention member does not block relative motion of the first arm and the second arm from the locked configuration to the compressed configuration (see Para. [0021 and 0026]).
Regarding claim 7, Ruffner teaches the system of claim 1, wherein:
the first arm (122c) and the second arm (124c) are further moveable, relative to each other, along a first direction between the locked configuration and the compressed configuration (see Figs. 1-2); and
the first direction is transverse to a second direction along which the first arm and the second arm are withdrawable from the implant in the compressed configuration (note that the direction of withdrawal is coaxial with the longitudinal axis of the device, which is traverse to the axis of compression, see Figs. 1-2).
Regarding claim 23, Ruffner teaches a system for inserting an implant into an intervertebral space (note that this is a functional limitation, satisfied by the devices ability to attach to an implant if configured accordingly), the system comprising:
an implant inserter (100), comprising:
a first arm (122c);
a second arm (124c); and
a first retention member (122c);
wherein the first arm and the second arm are moveable, relative to each other (see Para. [0021]), between:
a locked configuration (see Fig. 2) in which the first arm (122c) and the second arm (124c) are spaced apart such that the first arm and the second arm are configured to be locked in place relative to the implant and the implant is secured to the implant inserter through interlocking engagement of the first arm and the implant (see Para. [0021]); and
a compressed configuration (see Fig. 1), in which the first arm (122c) and the second arm (124c) are less spaced apart such that the first arm and the second arm are withdrawable from the implant (see Fig. 1; note that depending on the size and configuration of the implant, the arms are capable of being withdrawable therefrom);
wherein the first retention member (122) is moveable between:
a locked position in which the first retention member blocks relative motion of the first arm and the second arm from the locked configuration to the compressed configuration (see Fig. 2); and
an unlocked position in which the first retention member does not block relative motion of the first arm and the second arm from the locked configuration to the compressed configuration (see Fig. 1 and Para. [0021]).
Regarding claim 27, Ruffner teaches a system for inserting an implant into an intervertebral space (note that this is a functional limitation, satisfied by the deviced ability to attach to an implant if configured accordingly), the system comprising:
an implant inserter (100), comprising:
a first arm (122c);
a second arm (124c);
a third arm (other arm 122c);
a fourth arm (other arm 124c);
a first retention member (122); and
a second retention member (124); and
the implant configured to be removably coupled with the implant inserter (see Fig. 2; note that depending on the size and configuration of the implant, the arms are capable of being locked in place relative thereto);
wherein the first arm and the second arm are moveable, relative to each other, and the third arm and the fourth arm are moveable, relative to each other (see Para. [0021]), between:
a locked configuration (see Fig. 2) in which the first arm is spaced apart from the second arm and the third arm is spaced apart from the fourth arm, such that the first arm, the second arm, the third arm, and the fourth arm are configured to be locked in place relative to the implant (see Para. [0021]); and
a compressed configuration (see Fig. 1), in which the first arm is less spaced apart from the second arm and the third arm is less spaced apart from the fourth arm, such that the first arm, the second arm, the third arm, and the fourth arm are withdrawable from the implant (see Fig. 2; note that depending on the size and configuration of the implant, the arms are capable of being withdrawn therefrom);
wherein the implant is configured to apply a force to the first arm, the second arm, the third arm, and the fourth arm to transition from the locked configuration to the compressed configuration (see Para. [0026]).
Regarding claim 29, Ruffner teaches the system of claim 27, wherein:
the first arm (122c) and the second arm (124c) are further moveable, relative to each other, along a first direction between the locked configuration and the compressed configuration (see Figs. 1-2);
the third arm (122c) and the fourth arm (124c) are further moveable, relative to each other, along the first direction between the locked configuration and the compressed configuration (see Figs. 1-2); and
the first direction is transverse to a second direction along which the first arm, the second arm, the third arm, and the fourth arm are withdrawable from the implant in the compressed configuration (note that the direction of withdrawal is coaxial with the longitudinal axis of the device, which is traverse to the axis of compression, see Figs. 1-2).
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 HOLLY J LANE whose telephone number is (703)756-4702. The examiner can normally be reached Monday-Friday 9:00am-5:00pm.
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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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/H.J.L./Examiner, Art Unit 3773 /EDUARDO C ROBERT/Supervisory Patent Examiner, Art Unit 3773