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 § 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) 9-18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Norris et al (US Patent Pub. 20130090694A1) in view of Vancelette et al (US Patent Pub. 20100217327A1).
Norris recites a tuberosity fracture plate. Specifically in regards to claim 9, Norris recites a tuberosity end (end having three anchor openings) having a first portion configured to overlay a first tuberosity and a second portion opposite the first portion; a distal portion (shaft portion of plate 1) coupled with and extending away from the tuberosity portion (end having three anchor openings); a first anchor hole (2) defined by the tuberosity end (end having three anchor openings); a second anchor hole (2) defined by the distal portion (shaft portion of the plate 1) (Fig. 12-13; and Para. [0051]). However, the reference is silent as to a bend zone disposed between the first and second anchor holes and configured to bend upon application of a load to the tuberosity end, distal portion, or both.
Vancelette in regards to claim 9, recites a bone plate comprising a bend zone (12.sub.3) disposed between the first anchor hole (14.sub.1) and the second anchor hole (14.sub.2); wherein the bend zone (12.sub.3) is configured to bend upon application of a load to the tuberosity end (12.sub.2), to the distal portion (13), or to both the tuberosity end and the distal portion (Fig. 5-6; and Para. [0026], [0048]-[0050]). The bend zone (12.sub.3) having a reduced thickness relative to the thickness of the tuberosity fracture plate at the first and second anchor holes (14.sub.1 and 14.sub.2) (As can be seen in Fig. 5-6, the bend zone is created in the plate by a removal of plate material thereby making the thickness at the zone less than the rest of the plate thereby meeting the limitation.) (Fig. 5-6). It would have been obvious to one having ordinary skill in the art at the time the invention was filed to modify the plate (1) of Norris by adding a bend zone as taught in Vancelette so that the plate can be fitted in place in a less invasive manner (Para. [0005] of Vancelette).
In regards to claim 10, Norris recites wherein the first anchor hole (2, on the end having three anchor openings of plate 1) is configured to overlay the first tuberosity when the tuberosity fracture plate is applied to a patient (Fig. 12-13).
In regards to claim 11, Norris recites a third anchor hole (central 2, on the end having three anchor openings of plate 1) defined by the tuberosity end and configured to overlay a main bone portion of a fracture such that when anchors (5) are disposed through first anchor hole (2, on the end having three anchor openings of plate 1) and the third anchor hole (central 2, on the end having three anchor openings of plate 1) and into the first tuberosity and the main bone portion, the anchors (5) secure the first tuberosity to the main bone portion (Fig. 12-13).
In regards to claim 12, Norris recites a third anchor hole (2, on the end having three anchor openings of plate 1) defined by the tuberosity end and configured to overlay a second tuberosity when the tuberosity fracture plate is applied to a patient (Fig. 12-13).
In regards to claim 13, Norris recites wherein the second anchor hole (2 on the shaft of plate 1) is one of a plurality of anchor holes defined by the distal portion (Fig. 12-13).
In regards to claim 14-16, Norris in view of Vancelette recite a fracture plate a recited above. Vancelette recites the plate having a plurality of bend zones (12.sub.3 and 13.sub.2) disposed between adjacent anchor holes (2) of the fracture plate (Fig. 5-6). Norris also recites wherein at least one of the plurality of bend zones is disposed between the tuberosity end (12a) and the distal portion ( 13a), and wherein the bend zones (12.sub.3 and 13.sub.2) are disposed along a longitudinal axis of the plate (Fig. 5-6). It would have been obvious to one having ordinary skill in the art at the time the invention was filed to modify the plate (1) of Norris by adding a bend zone as taught in Vancelette so that the plate can be fitted in place in a less invasive manner (Para. [0005]).
In regards to claim 17, Norris recites a plurality of suture apertures (3) disposed about a periphery of the tuberosity fracture plate (1) (Fig. 12-13; and Para. [0051]).
In regards to claim 18, Norris in view of Vancelette recite a fracture plate a recited above. Norris in addition recites a kit comprising the tuberosity plate of claim 9 (Fig. 12-13).
Allowable Subject Matter
Claims 1-8 are allowed.
Claims 19-20 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.
The closest art of record is the Langdale reference which discloses a humeral plate comprising lateral and medial sides and proximal and distal portions of wherein a slot extends from the lateral and medial sides (Fig. 1a-1c and 12c-12d). However, the reference does not disclose wherein the slot has a smooth inner surface for accepting a non-locking anchor and having a plurality discrete position sites disposed along the long axis of the slot. This modification would not be possible since the reference explicitly recites the slot use solely for locking anchors. Therefore, the claims of the instant application have not been rejected using prior art because none of the references or reasonable combinations thereof could be found which disclose or suggest all of the features of the claims, and there is no reasonable motivation to modify the art of record to have these features. Furthermore, attempting to modify the references to have all the cited limitations would destroy the proposed inventions.
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 MARCELA I SHIRSAT whose telephone number is (571)270-5269. The examiner can normally be reached M-F 9:00am-5:30pm MST.
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/MARCELA I. SHIRSAT/Primary Examiner, Art Unit 3775
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