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 .
Allowable Subject Matter
Claims 21-40 are allowable over the prior art.
The following is a statement of reasons for the indication of allowable subject matter:
Most pertinent prior art, including U.S. Patent Pub. No. 2006/0204930 to Sul, U.S. Patent Pub. No. 2008/0286720 to Reed, U.S. Patent Pub. No. 2014/0023990 to Zadeh, and U.S. Patent No. 6,800,078 to Reed fails to teach or disclose the structural relationship including but not limited to, wherein, when the fastener is viewed in section along a plane containing the longitudinal axis of the fastener: the first undercut surface, the third undercut surface, the sixth undercut surface, and the eighth open surface are angled toward the distal end of the fastener as they extend away from the longitudinal axis, and the second undercut surface, the fourth open surface, the fifth undercut surface, and the seventh undercut surface are angled towards the proximal end of the fastener as they extend away from the longitudinal axis.
The prior art fails to teach or disclose the structural relationship including but not limited to, wherein, the fourth helical thread embodies the second helical thread type and disposed about the shaft along the longitudinal axis of the substrate anchor and between the distal and proximal ends of the of substrate anchor, wherein, when the substrate anchor is viewed in section along a plane containing the longitudinal axis of the substrate anchor a first interlocking space is formed intermediate the first concave undercut surface and the second concave undercut surface, and a second interlocking space is formed intermediate the first convex undercut surface and the second convex undercut surface.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 21-40 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-19 of U.S. Patent No. 11,883,081. Although the claims at issue are not identical, they are not patentably distinct from each other because both the present application and granted patent disclose a fastener comprising a first helical thread disposed about a shaft along a longitudinal axis between a proximal and a distal end of the shaft. The first helical thread comprises a first undercut surface, a second undercut surface, a third undercut surface, and a fourth open surface, and a second helical thread disposed about the shaft adjacent the first helical thread. The second helical thread comprises a fifth undercut surface, a sixth undercut surface, a seventh undercut surface, and an eighth open surface, wherein, when the implantable bone anchor is viewed in section along a plane containing the longitudinal axis of the shaft: the first undercut surface, the third undercut surface, the sixth undercut surface, and the eighth open surface are angled towards the distal end of the shaft as they extend away from the longitudinal axis, the second undercut surface, the fourth open surface, the fifth undercut surface, and the eighth undercut surface are angled towards the proximal end of the shaft as they extend away from the longitudinal axis.
A first interlocking space is formed intermediate the first concave undercut surface and the second concave undercut surface, and a second interlocking space is formed intermediate the first convex undercut surface and the second convex undercut surface.
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 CHRISTOPHER J BECCIA whose telephone number is (571)270-7391. The examiner can normally be reached Mon - Fri 8:30-5:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Kevin Truong can be reached at 571-272-4705. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/CHRISTOPHER J BECCIA/Primary Examiner, Art Unit 3775
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