DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
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 pre-AIA 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 –
(e) the invention was described in (1) an application for patent, published under section 122(b), by another filed in the United States before the invention by the applicant for patent or (2) a patent granted on an application for patent by another filed in the United States before the invention by the applicant for patent, except that an international application filed under the treaty defined in section 351(a) shall have the effects for purposes of this subsection of an application filed in the United States only if the international application designated the United States and was published under Article 21(2) of such treaty in the English language.
Claims 21-23 and 25-40 are rejected under pre-AIA 35 U.S.C. 102(e) as being anticipated by Alcock et al. (U.S. Publication No.2010/0137912 A1; hereinafter “Alcock”).
Regarding claim 21, Alcock discloses a system, comprising: a flexible stabilization member (cord 30) configured to extend between a first securing structure (12a) and a second securing structure (12b) that respectively secure the flexible stabilization member to a first vertebra and a second vertebra; wherein the flexible stabilization member (30) comprises a first portion (see inner layer 34 in Figure 3) overlaid by a second portion (see outer layer 32 in Figure 3); and wherein the second portion comprises a woven jacket (see para.0060 and Figure 3).
Regarding claim 22, Alcock further discloses wherein the first portion comprises a solid material placed in compression (filaments 33a and 33b).
Regarding claim 23, Alcock further discloses wherein the first portion (34) and the second portion (32) differ by at least one of material composition, tensile strength, and compressive resistance (para.0062 and 0069).
Regarding claim 25, Alcock further discloses wherein the first portion (34) comprises an elastomer (para.0041 and 0063).
Regarding claims 26 and 27, Alcock further discloses wherein the flexible stabilization member comprises a third portion (core 35) overlaid by the first portion (34)(see Figure 3A).
Regarding claim 28, Alcock further discloses wherein the first securing structure extends at least partially into the first vertebra, and wherein the second securing structure extends at least partially into the second vertebra (first and second securing structures are vertebral anchors 12a, 12b comprising shaft portions 18 configured to be screwed into a vertebra).
Regarding claim 29, Alcock discloses a system, comprising: a flexible elongated member (cord 30) configured to be positioned on a first vertebra and to a second vertebra by an installation tool; wherein the flexible elongated member is secured on the first vertebra with a first connecting structure (12a) and comprises a first portion (see inner layer 34 in Figure 3) and a second portion (see outer layer 32 in Figure 3) surrounding the first portion; and wherein the first portion comprises a plurality of intermingled filaments (33a, 33b).
Regarding claim 30, Alcock further discloses wherein the flexible elongated member (30) is secured to the second vertebra with a second connecting structure (12b).
Regarding claim 31, Alcock further discloses wherein the second portion (32) comprises an elastomer (para.0041).
Regarding claim 32, Alcock further discloses the second portion is configured to transfer compressive loads throughout the flexible elongated member (para.0042).
Regarding claim 33, Alcock further discloses wherein the first portion (34) and the second portion (32) differ by at least one of material composition, tensile strength, and compressive resistance (para.0062 and 0069).
Regarding claim 34, Alcock further discloses wherein the flexible elongated member (30) further comprises a third portion surrounding the second portion (additional layers may be located exterior of the outer layer 32, see end of para.0060).
Regarding claim 35, Alcock discloses a system, comprising: a flexible stabilization member (30) configured to extend between a first securing structure (12a) and a second securing structure (12b) that respectively secure the flexible stabilization member to a first vertebra and a second vertebra (first and second securing structures are vertebral anchors 12a, 12b comprise shaft portions 18 that are configured to be screwed into a vertebra); and an installation tool configured to position the flexible stabilization member on the first vertebra and the second vertebra (such as a coupler, see para.0039); wherein the flexible stabilization member (30) comprises a second portion (see outer layer 32 in Figure 3) surrounding a first portion (see inner layer 34 in Figure 3); and wherein the second portion comprises a woven jacket (see para.0060 and Figure 3).
Regarding claim 36, Alcock further discloses wherein the first portion (34) comprises an elastomer (para.0041 and 0063).
Regarding claim 37, Alcock further discloses wherein the first portion (34) and the second portion (32) differ by at least one of material composition, tensile strength, and compressive resistance (para.0062 and 0069).
Regarding claim 38, Alcock further discloses wherein the first securing structure penetrates the second portion (32) to secure the flexible stabilization member (30) to the first vertebra (threaded fastener 20 of vertebral anchor 12 is tightened directly onto cord 30, see para.0039), and wherein the first securing structure does not penetrate the first portion (threaded fastener 20 contacts only the outer layer 32).
Regarding claims 39 and 40, Alcock further discloses wherein the first securing structure is divergent or convergent from the second securing structure (vertebral anchor 12 may be polyaxial, thus allowing the first and securing structures to be angled such that they converge or diverge relative to each other, see para.0034).
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Allowable Subject Matter
Claim 24 is 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.
Claim 24 in the instant application have not been rejected using prior art because no references, or reasonable combination thereof, could be found which disclose, or suggest, the claimed combination of limitations recited in independent claim 21. In particular, none of the cited references teach or suggest wherein the first securing structure penetrates the first portion of the flexible stabilization member to secure the flexible stabilization member to the first vertebra, as required by claim 24.
Response to Arguments
Applicant’s arguments with respect to claims 1-23 and 25-40 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.
Conclusion
The prior art made of record and not relied upon, but considered pertinent to applicant's disclosure has been cited in the PTO-892 Notice of References Cited.
THIS ACTION IS MADE FINAL. 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 Christina Negrelli whose telephone number is 571-270-7389. The examiner can normally be reached on Monday-Friday, between 8:00am to 4:00pm. If attempts to reach the examiner by telephone are unsuccessful, please contact the examiner’s supervisor, Eduardo 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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/CHRISTINA NEGRELLI/
Examiner, Art Unit 3773
/EDUARDO C ROBERT/Supervisory Patent Examiner, Art Unit 3773
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