Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Response to Arguments
Applicant’s arguments with respect to claim(s) 1 - 11 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Priority
Claims 1 and 9 recite the limitation “wherein the closure thread root height equals the receiver thread root height”. The earliest support for this limitation was found in application 14/086,728 having a filing date of 11/21/2013. Therefore, the effective filing date for claims 1- 11 is 11/21/2013.
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.
Claim 3 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 3 recites “an upwardly facing linear surface portion”. It is unclear if this is the same as the upwardly facing linear surface portion of the receiving from claim 1 or if it is different. For reasons of examination, they are assumed to be the same.
Claim Rejections - 35 USC § 103
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 pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1-11 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Jackson (US 2005/0182410 A1).
Regarding claim 1, Jackson discloses a bone anchor assembly for securing an elongate rod to a bone of a patient (Abstract), the bone anchor assembly comprising:
a receiver housing (Fig. 2, ref. 11) including a pair of arms (ref. 28), each of the pair of arms including an inner surface with a discontinuous helically wound receiver thread formed therein (paragraph [0048], ref. 9) having a downwardly facing linear surface portion with an outer end thereof, an opposed upwardly facing linear surface portion with another end thereof and a vertical distance between the outer ends defining a receiver thread root height (see remarked Fig. 6 below which shows the receiver thread root height), the pair of arms configured to receive the elongate rod in a channel formed between the pair of arms (Fig. 1);
a closure (ref. 6) having a central axis (Fig. 3, ref. 41), a cylindrical body including a top end having a top surface (top surface as shown in Fig. 3), a bottom end having a bottom surface opposite the top surface (Fig. 3), a central internal drive structure extending into the top end (best shown in Figs. 2 – 3), and an outer continuous helically wound closure thread formed thereon (ref. 4) and including an upwardly facing linear surface portion defined between an inner end and an outer end thereof (ref. 39’, 39’’, Figs. 6 - 7) with a slope angle sloping radially outwardly and upwardly toward the top end of the cylindrical body (Fig. 7) or extending radially outward substantially perpendicular to the central axis (Fig. 6), a downwardly facing linear surface portion defined between an inner end and an outer end thereof with a slope angle sloping radially outwardly and upwardly toward the top end of the cylindrical body (see remarked Fig. 6 below), a vertical distance between the inner ends defining a closure thread root height (see remarked Fig. 3 below), a closure thread pitch defined as a distance from a location on the mating discontinuous continuous helically wound closure thread to a same location on an adjacent closure thread, a closure thread depth defined as a horizontal distance between an outer crest surface thereof and a closure thread root surface defining an outer surface of the cylindrical body (these definitions are appropriate to the disclosure of Jackson),
wherein the closure thread root height substantially equals the receiver thread root height (the figures of Jackson show a substantially equal root height of the receiving and closure, in addition paragraph [0016] discloses that the thread forms have relatively equal cross sections which supports the equal root heights).
Jackson is silent that the root heights are equal and not substantially equal. It would have been obvious to one having ordinary skill in the art at the time the invention was made to form the root heights to be equal to better keep pitch diameters complementary and to lower stress concentration factors on the mating roots and since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980).
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Regarding claim 2, Jackson discloses the bone anchor assembly of claim 1, except wherein the closure thread depth ranges between 0.4 mm to 0.8 mm and the closure thread pitch ranges from 1.0 mm to 1.6 mm. It would have been obvious to one having ordinary skill in the art at the time the invention was made to construct the closure thread depth to have a range of 0.4 to 0.8 mm and the closure thread pitch to have a range of 1.0 to 1.6 mm for the purpose of balancing holding power and vibration resistance with strength and 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.
Regarding claim 3, Jackson discloses the bone anchor assembly of claim 1, wherein the discontinuous helically wound receiver thread formed in the receiver housing includes an upwardly facing linear surface portion and an inwardly facing receiver root surface spaced apart from the downwardly facing linear surface portion and the outer crest surface of the closure, respectively, when the elongate rod is locked in the channel by the closure (Fig. 3 shows clearances between the claimed surfaces).
Regarding claim 4, Jackson discloses the bone anchor assembly of claim 1, wherein the closure thread root surface extends between an upper radiused surface communicating with the upwardly facing linear surface portion and a lower radiused surface communicating with the downwardly facing linear surface portion (Figs. 6 – 7).
Regarding claim 5, Jackson discloses the bone anchor assembly of claim 1, wherein the closure thread root surface is parallel with respect to the central axis of the closure and helically wound around the cylindrical body of the closure (Fig. 3).
Regarding claim 6, Jackson discloses the bone anchor assembly of claim 1, wherein the outer continuous helically wound closure thread further comprises a toe defined between the upwardly facing linear surface portion of the load flank and the outer crest surface on the closure thread (Figs. 6 – 7, ref. 55), the toe angling upward from the upwardly facing linear surface portion of the load flank closure thread (Figs. 6 – 7).
Regarding claim 7, Jackson discloses the bone anchor assembly of claim 1, wherein the bottom surface of the bottom end of the closure thread includes a central nub protruding downward therefrom (Fig. 3).
Regarding claim 8, Jackson discloses the bone anchor assembly of claim 1, further comprising a shank configured to be received in the receiver housing (Fig. 20, ref. 154).
Regarding claim 9, Jackson discloses a bone anchor assembly for securing an elongate rod to a bone of a patient (Abstract), the bone anchor assembly comprising:
a receiver housing (Fig. 2, ref. 11) including a pair of arms (ref. 28), each of the pair of arms including an inner surface with a discontinuous helically wound receiver thread formed therein (Fig. 3, ref. 9) with a thread flank having a downwardly facing linear surface portion with an outer end thereof, an opposed upwardly facing linear surface portion with another end thereof and a vertical distance between the outer ends defining a receiver thread root height (see remarked Fig. 3 below), the pair of arms configured to receive the elongate rod in a channel formed between the pair of arms (Fig. 1);
a closure (Fig. 3, ref. 6) having a central axis (ref. 41), a cylindrical body including a top end having a top surface, a bottom end having a bottom surface opposite the top surface (Fig. 3, top and bottom surfaces as shown), a central internal drive structure extending into the top end (best shown in Figs. 2 – 3), and an outer continuous helically wound closure thread (ref. 1) formed thereon and including a thread flank having an upwardly facing linear surface portion defined between an inner end and an outer end thereof with a slope angle sloping radially outwardly and upwardly toward the top end of the cylindrical body (Fig. 7, ref. 46’’) or extending radially outward substantially perpendicular to the central axis (Fig. 6, ref. 46’), a closure flank having a downwardly facing linear clearance surface portion defined between an inner end and an outer end thereof with a slope angle sloping radially outwardly and upwardly toward the top end of the cylindrical body (see remarked Fig. 6 below), a closure thread root height defined as a vertical distance between the inner ends thereof, a closure thread pitch defined as a distance from a location on the mating discontinuous continuous helically wound closure thread form to a same location on an adjacent thread, a closure root surface defining an outer surface of the cylindrical body (Figs. 3, 6 – 7), a closure thread crest having a cylindrical surface extending parallel with respect to the central axis of the closure (Figs. 3, 6 – 7) and defining a closure thread crest height along a vertical length thereof, and a closure thread depth defined as a horizontal distance between the closure root surface and the cylindrical surface on the closure thread crest (these definitions are supported by figs. 3, 6 – 7), wherein the closure thread root height substantially equals the receiver thread root height (the figures of Jackson show a substantially equal root height of the receiving and closure, in addition paragraph [0016] discloses that the thread forms have relatively equal cross sections which supports the equal root heights).
Jackson is silent that the root heights are equal and not substantially equal. It would have been obvious to one having ordinary skill in the art at the time the invention was made to form the root heights to be equal to better keep pitch diameters complementary and to lower stress concentration factors on the mating roots and since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980).
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Regarding claim 10, Jackson discloses the bone anchor assembly of claim 9, the closure thread crest height is about half or less than half of the closure thread pitch (Figs. 3, 6 – 7 show the crest height being about half or less than half of the thread pitch, see remarked Fig. 3 below), but is silent that the closure thread pitch ranges between 1.0 mm to 1.6 mm and. It would have been obvious to one having ordinary skill in the art at the time the invention was made to construct the thread pitch to have a range between 1 – 1.6 mm for the purpose creating a fine thread which has advantages of better control with a higher clamp for a given torque and 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.
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Regarding claim 11, Jackson discloses the bone anchor assembly of claim 1, wherein the closure thread depth ranges between 0.5 mm and 0.65 mm. It would have been obvious to one having ordinary skill in the art at the time the invention was made to construct the thread depth to be in the range of 0.5 to 0.65 mm to create a shallow profile to better support thread strength and fatigue performance and 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
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See PTO-892 which lists the prior art used in the current rejection not already made of record.
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 TESSA M MATTHEWS whose telephone number is (571)272-8817. The examiner can normally be reached M - F 8am - 1pm.
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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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/TESSA M MATTHEWS/Examiner, Art Unit 3773