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 .
Election/Restrictions
Applicant’s election without traverse of Group I, claims 1-7 in the reply filed on 3/11/26 is acknowledged.
Claims 8-16 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected group, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 3/11/26.
Claim Rejections - 35 USC § 112
Claim 7 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 7 recites the limitation "passing tail 1", “splice point 4”, “side A”, “splice point 3”, “side B”, “passing tail 2” in lines 2-6. There is insufficient antecedent basis for these limitations in the claim. Examiner notes none of these elements in the method steps are properly introduced. It is suggested to include language positively claiming the first and second passing tails, splice points and sides. For example, the method of forming a ring of suture comprising: providing a surgical construct comprising: a first passing tail, a second passing tail, a first splice point, a second splice point, a first side and a second side, the method comprising:…”.
Claim Rejections - 35 USC § 102
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 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Barker, Jr. et al. US 5,628,756.
Regarding claims 1-3, Barker, Jr. et al. discloses a surgical construct comprising suture 10 comprising a hollow core (column 2, lines 48-51, cable fibers formed into a hollow braid having a longitudinal bore therethrough) and 52 picks per inch or less, 40 picks or less, or 25 picks or less (column 4, lines 42-50; preferred embodiment having approximately 9 to 13 picks) in an enclosed ring (figure 1, suture formed into a ring), wherein the construct is configured to fold into a "S", "U", or "W" configuration (Examiner notes that the claims are directed to apparatus which must be distinguished from the prior art in term of structure rather function, the construct 10 has sufficient structure to be configured to fold into a "S", "U", or "W" configuration“).
Claim(s) 1, 2 and 6 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Pilgeram et al. US 2021/0071332.
Regarding claims 1 and 2, Pilgeram et al. discloses a surgical construct comprising suture 10 (figure 3) comprising a hollow core (paragraph 0015, 0022, for example, figure 2, hollow core 30) and 52 picks per inch or less or 40 picks or less (paragraph 0029, pick count preferably about 35 picks per inch) in an enclosed ring (configured to be formed into a ring, for example, similar suture construct shown in figures 4B, 4C or by knotting the ends of the suture construct), wherein the construct is configured to fold into a "S", "U", or "W" configuration (Examiner notes that the claims are directed to apparatus which must be distinguished from the prior art in term of structure rather function, the construct 10 has sufficient structure to be configured to fold into a "S", "U", or "W" configuration“).
Regarding claim 6, Pilgeram et al. discloses wherein the suture has 32 yarns or less (paragraph 0034, 0040, 0045, figure 2).
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) 3-5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Pilgeram et al. US 2021/0071332.
Regarding claims 3-5, Pilgeram et al. discloses a suture construct essentially as claimed as discussed above wherein the pick count may be between about 20-100, between about 30-60 picks per inch, or 35 picks per inch, but fails to explicitly disclose wherein the suture has 25 picks per inch or less, wherein the suture has 15 to 20 picks per inch, wherein the suture has 18 picks per inch.
However, Pilgeram et al. teaches pick counts in the general range the pick count may be balanced between a less pick count and a high pick count to result in the desired strength or braid tightness or performance (paragraph 0029).
It would have been obvious to one having ordinary skill in the art at the time the invention was made to modify Pilgeram et al. with a suture having 25 picks per inch or less, wherein the suture has 15 to 20 picks per inch, wherein the suture has 18 picks per inch, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHRISTINA C LAUER whose telephone number is (571)270-5418. The examiner can normally be reached Monday-Thursday 7:00 AM-4:00 PM.
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/CHRISTINA C LAUER/Examiner, Art Unit 3771