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 .
This is the initial Office action for the 18/822,403 application. Claims 1-20 are pending.
Claim Objections
Claim 3 is objected to because of the following informalities:
In claim 3, line 4, insert –second—after “second.” Appropriate correction is required.
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 4, 13 and 19 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. In claim 4, Applicant claims that the one or more second sliders do not contact the superior plate or the inferior plate. It is noted that the sliders operate to separate the plates and include contact points along the implant that make contact with the plates. The second slider is identified as element 1060 (see Fig. 1A), which includes elements 500 and 550. Theses elements contact the endplates 100 and 400 when the system is connected to make expansion possible. If applicant intends to claim “indirect” contact then the claim should be amended to make that distinction. Claim 13 includes a similar recitation that “the first slider does not contact the superior plate or the inferior plate.” If applicant intends to claim “indirect” contact then the claim should be amended to make that distinction. Claim 19 includes a similar recitation that “the one or more second sliders do not contact the superior plate or the inferior plate.” If applicant intends to claim “indirect” contact then the claim should be amended to make that distinction.
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, 5, 7-11, 14, 15, 17 and 20 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Berry (U.S. 2022/0211512 A1).
Concerning claim 1, Berry discloses an expandable intervertebral implant comprising:
a superior plate (see Fig. 37, element 30) configured to engage a superior vertebra; an inferior plate (see Fig. 37, element 40) configured to engage an inferior vertebra, wherein the inferior plate is spaced apart from the superior plate by a gap; one or more first sliders (220) moveable along a first direction (see Fig. 37 below) to urge linear expansion of the gap; and one or more second sliders (100) moveable along a second direction, nonparallel to the first direction, to urge angular expansion of the gap.
[AltContent: connector][AltContent: textbox (Lateral)][AltContent: textbox (2nd Second Slider)][AltContent: textbox (1st Second Slider)][AltContent: connector][AltContent: textbox (Medial)][AltContent: textbox (Posterior)][AltContent: textbox (Anterior)][AltContent: textbox (2nd Direction)][AltContent: textbox (1st Direction)][AltContent: connector][AltContent: arrow][AltContent: connector][AltContent: arrow]
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Concerning claim 2, wherein the first direction (see Fig. 37 above) is generally anterior-posterior and the second direction (see Fig. 37 above) is generally medial-lateral.
Concerning claim 3, wherein the one or more second sliders (100) comprise: a first second slider (see Fig. 37 above) configured to move along the second direction; and a second second slider (see Fig. 37 above) configured to move along a direction opposite the second direction (as the sliders separate they move in opposite directions. It is noted that as the second slider separates it moves along the second direction (see above).
Concerning claim 5, wherein each of the one or more first sliders (220) is configured to urge linear expansion of the gap through movement in a single direction. Sliders 220 are connected via pin 230 and can only move in a single direction, i.e., ends separate.
Concerning claim 7, wherein each of the one or more second sliders (100) is moveable transverse (ends separate) to an anterior-posterior direction to urge expansion of the gap.
Concerning claim 8, wherein the one or more first sliders (220) are moveable independently of motion of the one or more second sliders (100) such that the linear expansion of the gap is independent of the angular expansion of the gap (see par. 0045).
Concerning claim 9, wherein actuation of the linear expansion of the gap occurs before or after actuation of the angular expansion of the gap. See par. 0045. The actuation of each expansion is independent and can occur at the desired time.
Concerning claim 10, Berry discloses an expandable intervertebral implant comprising: a superior plate (see Fig. 37, element 30) configured to engage a superior vertebra; an inferior plate (see Fig. 37, element 40) configured to engage an inferior vertebra, wherein the inferior plate is spaced apart from the superior plate by a gap; and a first slider (220) moveable transverse to an anterior-posterior direction to urge expansion of the gap.
Concerning claim 11, further comprising a second slider (100) moveable in a direction opposite to the first slider to urge expansion of the gap.
Concerning claim 14, Berry discloses an expandable intervertebral implant comprising: a superior plate (see Fig. 37, element 30) configured to engage a superior vertebra; an inferior plate (40) configured to engage an inferior vertebra, wherein the inferior plate is spaced apart from the superior plate by a gap; and an expansion mechanism, configured to urge linear expansion and angular expansion of the gap (see par. 0045), comprising a height wedge top (50) coupled with the superior plate and a height wedge bottom (80) coupled with the inferior plate, wherein: the height wedge top is configured to remain parallel to the superior plate during linear expansion and angular expansion of the gap; and the height wedge bottom is configured to remain parallel to the inferior plate during linear expansion and angular expansion of the gap.
Concerning claim 15, wherein the height wedge top (50) is rotatably coupled (via elements 60 and 70) to the height wedge bottom (80).
Concerning claim 17, wherein the expansion mechanism further comprises one or more first sliders (220) moveable along a first direction to urge linear expansion of the gap, and one or more second sliders (200) moveable along a second direction, nonparallel to the first direction, to urge angular expansion of the gap (see par. 0045).
Concerning claim 20, wherein the one or more first sliders are movable independently of motion of the one or more second sliders such that the linear expansion of the gap is independent of the angular expansion of the gap (see par. 0045).
Allowable Subject Matter
Claims 6, 12, 16 and 18 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.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The art relates to linear and angular expansion of spinal fusion implants.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ELLEN HAMMOND whose telephone number is (571)270-3819. The examiner can normally be reached Monday-Friday 8 - 4 PM .
If attempts to reach the examiner by telephone are unsuccessful, please contact the examiner’s supervisor, Eduardo C. Robert, 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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/ELLEN C HAMMOND/ Primary Examiner, Art Unit 3773