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 .
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 claims at issue 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); and 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 a nonstatutory double patenting ground provided the reference application or patent either is shown to be commonly owned with this application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
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Claim(s) 1-12, 16, 19 and 20 is/are rejected on the ground of nonstatutory double patenting as being anticipated by claim(s) 1-20 of U.S. Patent No. 12161559. Although the claims at issue are not identical, they are not patentably distinct from each other because the difference between the application claims and the patent claims lies in the fact that the patent claims include many more elements and are thus much more specific as shown below (note that comparable elements are underlined and/or bolded):
Invention: 18974764
US Patent 12161559
Claim 1. An implant, comprising: a ratchet block disposed in a sidewall of a base, wherein the ratchet block is positioned within the sidewall to selectively engage with an extension arm that is slidably disposed in the base; and a ratchet drive that holds the ratchet block in the sidewall of base and is adjustable to move the ratchet block between a first position and a second position.
Claims 1-11:
1. An implant comprising a base configured to receive an extension arm and a ratchet block, the extension arm being slidably disposed in an extension arm cavity formed in the base, the ratchet block being disposed in a sidewall of the base in a position where the ratchet block can be selectively engaged with the extension arm; and a ratchet drive that retains the ratchet block in the sidewall of the base and is adjustable to move the ratchet block between a first position and a second position, wherein the first position of the ratchet block permits movement of the extension arm to an extended position out of the extension arm cavity and blocks movement of the extension arm to a retracted position within the extension arm cavity and the second position of the ratchet block permits movement of the extension arm to both the extended position and the retracted position.
Claim 2. The implant of claim 1, wherein the extension arm is blocked from sliding toward a retracted position within the base when the ratchet block is in the first position.
Claims 1-11: See bolded section of claim 1 above
Claim 3. The implant of claim 1, wherein the extension arm is freely slidable between a retracted position within the base and an extended position out of the base when the ratchet block is in the second position.
Claims 1-11: See bolded section of claim 1 above
Claim 4. The implant of claim 1, wherein the extension arm includes a ratchet rack and the ratchet block includes a flexible ratchet arm.
Claims 2-3:
Claim 2. The implant of claim 1, wherein the extension arm includes a ratchet rack and the ratchet block includes a flexible ratchet arm.
Claim 5. The implant of claim 4, wherein the flexible ratchet arm is aligned with the ratchet rack when the ratchet block is disposed in the first position.
Claim 3. The implant of claim 2, wherein the flexible ratchet arm is aligned with the ratchet rack when the ratchet block is disposed in the first position.
Claim 6. The implant of claim 1, wherein the ratchet drive is received in a ratchet block aperture of the ratchet block.
Claims 6-9:
Claim 6. The implant of claim 1, wherein the ratchet drive is received in a ratchet block aperture of the ratchet block.
Claim 7. The implant of claim 6, wherein the ratchet drive includes ratchet drive threads that are threadable with ratchet block threads of the ratchet block aperture of the ratchet block.
Claim 7. The implant of claim 6, wherein the ratchet drive includes ratchet drive threads that are threadable with ratchet block threads of the ratchet block aperture of the ratchet block.
Claim 8. The implant of claim 6, further comprising a secondary gear that is rotatably received in a secondary gear aperture of the base, wherein the secondary gear includes a second ratchet drive aperture configured to receive a rear nub of the ratchet drive.
Claim 9. The implant of claim 6, further comprising a secondary gear that is rotatably received in a secondary gear aperture of the base, wherein the secondary gear includes a second ratchet drive aperture configured to receive a rear nub of the ratchet drive.
Claim 9. The implant of claim 8, wherein the ratchet drive rotates independently of the secondary gear.
Claim 11. The implant of claim 9, wherein the ratchet drive rotates independently of the secondary gear.
Claim 10. An implant, comprising: a base; a ratchet block disposed in a sidewall of the base; a ratchet drive having a first end formed with a drive feature and a second end formed with a rear nub, wherein the ratchet drive extends through the ratchet block to retain the ratchet block in the sidewall of the base; and a secondary gear disposed in the base, wherein the secondary gear has a first end formed with a void defining a ratchet drive aperture that receives the rear nub of the ratchet drive.
Claims 12-17:
Claim 12. An implant, comprising a base; an extension arm slidably disposed in the base; a ratchet block disposed in a sidewall of the base, wherein the ratchet block can be selectively engaged with the extension arm; a ratchet drive having a first end formed with a drive feature and a second end formed with a rear nub, wherein the ratchet drive extends through the ratchet block to retain the ratchet block in the sidewall of the base; and a secondary gear disposed in the base, wherein the secondary gear has a first end formed with a void defining a ratchet drive aperture that receives the rear nub of the ratchet drive.
Claim 11. The implant of claim 10, further comprising an extension arm, wherein the extension arm has a ratchet rack that includes a plurality of teeth and the ratchet block further comprises a flexible ratchet arm that selectively engages with a first ratchet rack the one or more ratchet racks.
Claims 13-14 (see bolded sections of claim 12 above)
Claim 13. The implant of claim 12, wherein the extension arm comprises one or more ratchet racks that each include a plurality of teeth; and the ratchet block further comprises a flexible ratchet arm that selectively engages with a first of the ratchet racks.
Claim 12. The implant of claim 11, wherein the secondary gear includes a plurality of secondary gear teeth that mesh with a second rack on the extension arm.
Claim 14. The implant of claim 13, wherein the secondary gear includes a plurality of secondary gear teeth that mesh with a second rack on the extension arm.
Claim 16. An implant, comprising: a base; an extension arm slidably disposed in the base, wherein the extension arm includes a plurality of gear racks; and a main gear formed with a first plurality of main gear teeth that mesh with a first gear rack of the plurality of gear racks and a second plurality of main gear teeth that mesh with a second gear rack of the plurality of gear racks, wherein the first gear rack and the second gear rack are formed on a first face of the extension arm.
Claims 18-20:
Claim 18. An implant, comprising: a base; and extension arm slidably disposed in the base, wherein the extension arm includes a plurality of gear racks; a ratchet block adjustably disposed in a sidewall of the base; a ratchet drive that retains the ratchet block in the sidewall of the base; and a main gear formed with a first plurality of main gear teeth that mesh with a first of the plurality gear racks and a second plurality of main gear teeth that mesh with a second plurality of gear racks, wherein the first and second gear racks are formed on a first face of the extension arm.
Claim 19. The implant of claim 16, further comprising: a ratchet block aperture formed in the ratchet block; a drive feature at a first end of the ratchet drive, ratchet drive threads on a middle portion of the ratchet drive, and a rear nub at a second end of the ratchet drive, wherein the ratchet drive threads are in mechanical communication with ratchet block threads on the ratchet block; and a secondary gear having a first end formed with a void defining a ratchet drive aperture and a middle portion defining a plurality of secondary gear teeth that mesh with a third of the plurality of gear racks, wherein the ratchet drive aperture receives a rear nub of the ratchet drive and the third gear rack is formed on a second face of the extension arm.
Claim 19. The implant of claim 18, further comprising: a ratchet block aperture formed in the ratchet block; a drive feature at a first end of the ratchet drive, ratchet drive threads on a middle portion of the ratchet drive, and a rear nub at a second end of the ratchet drive, wherein the ratchet drive threads are in mechanical communication with ratchet block threads on the ratchet block; and a secondary gear having a first end formed with a void defining a ratchet drive aperture and a middle portion defining a plurality of secondary gear teeth that mesh with a third of the plurality of gear racks, wherein the ratchet drive aperture receives a rear nub of the ratchet drive and the third gear rack is formed on a second face of the extension arm.
Claim 20. The implant of claim 19, wherein the rear nub of the ratchet drive rotates within the ratchet drive aperture of the secondary gear receives to enable the ratchet drive to rotate independently of the secondary gear.
Claim 20. The implant of claim 19, wherein the rear nub of the ratchet drive rotates within the ratchet drive aperture of the secondary gear receives to enable the ratchet drive to rotate independently of the secondary gear.
Claim(s) 1-11, 16, 19 and 20 is/are rejected on the ground of nonstatutory double patenting as being anticipated by claim(s) 1-20 of U.S. Patent No. 11458025. Although the claims at issue are not identical, they are not patentably distinct from each other because the difference between the application claims and the patent claims lies in the fact that the patent claims include many more elements and are thus much more specific as shown below (note that comparable elements are underlined and/or bolded):
Invention: 18974764
US Patent 11458025
Claim 1. An implant, comprising: a ratchet block disposed in a sidewall of a base, wherein the ratchet block is positioned within the sidewall to selectively engage with an extension arm that is slidably disposed in the base; and a ratchet drive that holds the ratchet block in the sidewall of base and is adjustable to move the ratchet block between a first position and a second position.
Claims 1-12:
Claim 1. An implant, comprising: a base including an extension arm cavity and a ratchet block cavity that intersects the extension arm cavity; an extension arm that is slidably disposed in the extension arm cavity to extend from the extension arm cavity of the base; a ratchet block that is disposed in the ratchet block cavity of the base and is configured to move between a first position and a second position in the ratchet block cavity; and a ratchet drive that retains the ratchet block in the ratchet block cavity, the ratchet drive being adjustable to move the ratchet block between the first and second positions; wherein the ratchet block when disposed in the first position allows movement of the extension arm in an upward direction out of the arm cavity and blocks movement of the extension arm in a downward direction into the extension arm cavity; and wherein the ratchet block when disposed in the second position allows movement of the extension arm both in the upward direction out of the extension arm cavity and the downward direction into the extension arm cavity.
Claim 2. The implant of claim 1, wherein the extension arm is blocked from sliding toward a retracted position within the base when the ratchet block is in the first position.
Claims 1-12: See bolded section of claim 1 above
Claim 3. The implant of claim 1, wherein the extension arm is freely slidable between a retracted position within the base and an extended position out of the base when the ratchet block is in the second position.
Claims 1-12: See bolded section of claim 1 above
Claim 4. The implant of claim 1, wherein the extension arm includes a ratchet rack and the ratchet block includes a flexible ratchet arm.
Claims 2-3:
Claim 2. The implant of claim 1, wherein the extension arm includes a ratchet rack and the ratchet block includes a flexible ratchet arm.
Claim 5. The implant of claim 4, wherein the flexible ratchet arm is aligned with the ratchet rack when the ratchet block is disposed in the first position.
Claim 3. The implant of claim 2, wherein the flexible ratchet arm is aligned with the ratchet rack when the ratchet block is disposed in the first position.
Claim 6. The implant of claim 1, wherein the ratchet drive is received in a ratchet block aperture of the ratchet block.
Claims 6-9:
Claim 6. The implant of claim 1, wherein the ratchet drive is received in a ratchet block aperture of the ratchet block.
Claim 7. The implant of claim 6, wherein the ratchet drive includes ratchet drive threads that are threadable with ratchet block threads of the ratchet block aperture of the ratchet block.
Claim 7. The implant of claim 6, wherein the ratchet drive includes ratchet drive threads that are threadable with ratchet block threads of the ratchet block aperture of the ratchet block.
Claim 8. The implant of claim 6, further comprising a secondary gear that is rotatably received in a secondary gear aperture of the base, wherein the secondary gear includes a second ratchet drive aperture configured to receive a rear nub of the ratchet drive.
Claims 9-11:
Claim 9. The implant of claim 6, further comprising a secondary gear that is rotatably received in a secondary gear aperture of the base, wherein the secondary gear includes a second ratchet drive aperture configured to receive a rear nub of the ratchet drive.
Claim 9. The implant of claim 8, wherein the ratchet drive rotates independently of the secondary gear.
Claim 11. The implant of claim 9, wherein the ratchet drive rotates independently of the secondary gear.
Claim 10. An implant, comprising: a base; a ratchet block disposed in a sidewall of the base; a ratchet drive having a first end formed with a drive feature and a second end formed with a rear nub, wherein the ratchet drive extends through the ratchet block to retain the ratchet block in the sidewall of the base; and a secondary gear disposed in the base, wherein the secondary gear has a first end formed with a void defining a ratchet drive aperture that receives the rear nub of the ratchet drive.
Claims 13-17:
Claim 13. An implant, comprising a base including an extension arm cavity and a ratchet block cavity; an extension arm that is slidably disposed in the extension arm cavity; a ratchet block that is formed with a first ratchet drive aperture and is movably disposed between a first position and a second position in the ratchet block cavity; a ratchet drive having a first end formed with void defining a drive feature and a second end formed with a rear nub, wherein the ratchet drive extends through the first ratchet drive aperture of the ratchet block to retain the ratchet block in the ratchet block cavity; and a secondary gear having a first end formed with a void defining a second ratchet drive aperture, wherein the second ratchet drive aperture of the secondary gear receives the rear nub of the ratchet drive.
Claim 11. The implant of claim 10, further comprising an extension arm, wherein the extension arm has a ratchet rack that includes a plurality of teeth and the ratchet block further comprises a flexible ratchet arm that selectively engages with a first ratchet rack the one or more ratchet racks.
Claims 13-14 (see bolded section of claim 13 above)
Claim 14. The implant of claim 13, wherein the ratchet block further comprises a flexible ratchet arm that includes a flat surface facing upward away from the extension arm cavity and an angles surface facing downward into the extension arm cavity; and the extension arm further comprises a ratchet rack that includes a plurality of teeth, each of the plurality of teeth including a flat surface facing downward into the extension arm cavity and an angles surface facing upward away from the extension arm cavity, wherein the flexible ratchet arm is aligned with the ratchet rack when the ratchet block is disposed in the first position.
Claim 16. An implant, comprising: a base; an extension arm slidably disposed in the base, wherein the extension arm includes a plurality of gear racks; and a main gear formed with a first plurality of main gear teeth that mesh with a first gear rack of the plurality of gear racks and a second plurality of main gear teeth that mesh with a second gear rack of the plurality of gear racks, wherein the first gear rack and the second gear rack are formed on a first face of the extension arm.
Claims 18-20:
Claim 18. An implant, comprising: a base including an extension arm cavity and a ratchet block cavity; and extension arm having a plurality of gear racks formed on the extension arm, wherein the extension arm is slidably disposed in the base; a ratchet block that is disposed in the ratchet block cavity of the base and is configured to slide between a first position and a second position in the ratchet block cavity; a ratchet drive positioned in the base and rotatably engaged with the ratchet block, wherein the ratchet drive is configured to move the ratchet block between the first and second position; and a secondary gear having a first end formed with a void defining a second ratchet drive aperture and a middle portion defining a plurality of secondary gear teeth that mesh with a third of the plurality of gear racks, wherein the second ratchet drive aperture of the secondary gear receives a rear nub of the ratchet drive and the third gear rack is formed on a second face of the extension arm.-
Claim 19. The implant of claim 16, further comprising: a ratchet block aperture formed in the ratchet block; a drive feature at a first end of the ratchet drive, ratchet drive threads on a middle portion of the ratchet drive, and a rear nub at a second end of the ratchet drive, wherein the ratchet drive threads are in mechanical communication with ratchet block threads on the ratchet block; and a secondary gear having a first end formed with a void defining a ratchet drive aperture and a middle portion defining a plurality of secondary gear teeth that mesh with a third of the plurality of gear racks, wherein the ratchet drive aperture receives a rear nub of the ratchet drive and the third gear rack is formed on a second face of the extension arm.
Claims 18-19 (see bolded section of claim 18 above)
Claim 19. The implant of claim 18, further comprising: a ratchet block aperture formed in the ratchet block; a drive feature at a first end of the ratchet drive, a drive feature at first end of the ratchet drive and a rear nub at a second end of the ratchet drive, wherein the ratchet drive extends through the first ratchet drive aperture of the ratchet block; a secondary gear formed with a second ratchet drive aperture at a first end of the second gear; wherein the second ratchet drive aperture of the secondary gear receives the rear nub of the ratchet drive.
Claim 20. The implant of claim 19, wherein the rear nub of the ratchet drive rotates within the ratchet drive aperture of the secondary gear receives to enable the ratchet drive to rotate independently of the secondary gear.
Claim 20. The implant of claim 19, wherein the rear nub of the ratchet drive rotates within the ratchet drive aperture of the secondary gear receives to enable the ratchet drive to rotate independently of the secondary gear.
Thus, the invention of US Patent 12161559, claims 1-20, and US Patent 11458024, claims 1-20, respectively, are in effect a “species” of the “generic” invention of the application claims. It has been held that the generic invention is “anticipated” by the “species”. See In re Goodman, 29 USPQ2d 2010 (Fed. Cir. 1993). Since the application claims are anticipated by the patent claims, they are not patentably distinct from the patent claims.
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) 1-5 is/are rejected under 35 U.S.C. 102a1 as being anticipated by Woodburn (WO 2008/11293A1).
With respect to claim 1, Woodburn discloses an implant (10) (see fig. 3, 3a below), comprising: a ratchet block (80) disposed in a sidewall (see para. 31, also fig. 3 below) of a base (20, note that 20 can be a variety of shapes, including rectangular and square and 60 can also be interpreted as being part of the base), wherein the ratchet block is positioned within the sidewall to selectively engage with an extension arm (40) that is slidably disposed in the base (see fig. 3 below, and also para. 51-52); and a ratchet drive (100) that holds the ratchet block in the sidewall of base and is adjustable to move the ratchet block between a first position (e.g., locked) and a second position (e.g., unlocked) (see para. 51-53 and also fig. 3 below, note that when the ratchet is moved away from teeth 46, the extension arm may slide up or down).
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As for claim 2, Woodburn further discloses the implant of claim 1, wherein the extension arm is blocked from sliding toward a retracted position within the base when the ratchet block is in the first position (see para. 51-52).
As for claim 3, Woodburn further discloses the implant of claim 1, wherein the extension arm is freely slidable between a retracted position within the base and an extended position out of the base when the ratchet block is in the second position (see para. 51-52).
As for claim 4, Woodburn further discloses the implant of claim 1, wherein the extension arm includes a ratchet rack (e.g., 46) and the ratchet block includes a flexible ratchet arm (e.g., 90, 91, see fig. 10 and para. 51-52).
As for claim 5, Woodburn further discloses the implant of claim 4, wherein the flexible ratchet arm is aligned with the ratchet rack when the ratchet block is disposed in the first position (see para. 51-52).
Claim(s) 16-18 is/are rejected under 35 U.S.C. 102a1 as being anticipated by McLaughlin (US 20170319350).
With respect to claim 16, McLaughlin discloses an implant (see fig. 2 below), comprising: a base (14); an extension arm (16) slidably disposed in the base, wherein the extension arm includes a plurality of gear racks (22); and a main gear (16) formed with a first plurality of main gear teeth (56) that mesh with a first gear rack of the plurality of gear racks (see fig. 2 below) and a second plurality of main gear teeth (another 56) that mesh with a second gear rack (another 22) of the plurality of gear racks, wherein the first gear rack and the second gear rack are formed on a first face (e.g., outer face) of the extension arm.
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As for claim 17, McLaughlin further discloses the implant of claim 16, further comprising: one or more main gear retaining pin holes (to receive 42) (See fig. 2 above and also fig. 3) formed in the base; and one or more main gear retaining pins (42), wherein each of the one or more main gear pins is received in one of the one or more main gear retaining pin holes (52) (see fig. 2 above and also fig. 3).
As for claim 18, McLaughlin further discloses the implant of claim 17, further comprising a retaining pin recess (54) formed on the main gear between the first plurality of teeth and the second plurality of teeth (see fig. 2 above), wherein the one or more main gear retaining pins are configured to seat into the retaining pin recess (see fig. 2 above and also fig. 3).
Allowable Subject Matter
Claims 13-15 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.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure: US 10159583 (fig. 1b, 2, 3a, 3b); US 20140277470 (see figs. 3-7); US 20160199192 (see all the figures).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Tara Carter whose telephone number is (571) 272-3402. The examiner can normally be reached on M-F 7am-3pm.
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/TARA ROSE E CARTER/ Examiner, Art Unit 3773
/JACQUELINE T JOHANAS/Primary Patent Examiner, Art Unit 3773