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 .
Election/Restrictions
Applicant’s election without traverse of Species A, shown in Figs. 1-4B, in the reply filed on March 6, 2026, is acknowledged. It is acknowledged that Applicant believes all claims (i.e., claims 1-20) read on the elected species A. Examiner agrees with Applicant’s assessment. All claims are generic to Species A.
Claim Objections
Claims 1 and 11 are objected to because of the following informalities:
In claim 1, line 6, the word ---and--- should be added after “implanted;”
In claim 11, line 2, “resonators” should read ---resonate---
Appropriate correction is required.
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.
Claim 1 is rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 7 of U.S. Patent No. 12,167,969. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims are similar, if not identical, as shown in the comparison below.
Claim 1 (Instant Appl. 18/981877)
Claims 1 and 7 (US 12,167,969)
A method of stabilizing a spine comprising:
forming an incision in a patient;
implanting between adjacent vertebrae an interbody implant through the formed incision, the interbody implant having a plurality of resonators;
closing the incision after the interbody implant has been implanted;
after closing the incision, transmitting, by a wave generator from outside the patient, mechanical waves towards the implanted interbody implant at a predetermined frequency to cause the plurality of resonators to resonate at the predetermined frequency to promote bone growth.
A method comprising
forming an incision in a patient (claim 7);
implanting, in a patient, an interbody implant having a plurality of resonators between adjacent vertebrae, the interbody implant having a plurality of resonators (claim 1);
closing the incision after the interbody implant has been implanted (claim 7);
after closing the incision (noted in claim 7), transmitting, by a wave generator from outside the patient, mechanical waves towards the implanted interbody implant at a predetermined frequency to cause the plurality of resonators to resonate at the predetermined frequency to promote bone growth (claim 1).
Claims 12 is rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 7 of U.S. Patent No. 12,167,969 in view of Slivka (US 2016/0220393 A1).
Claim 12 (Instant Appl. 18/981877)
Claims 1 and 7 (US 12,167,969)
A method of stabilizing a spine comprising:
forming an incision in a patient;
implanting between adjacent vertebrae an interbody implant through the formed incision, the interbody implant having a plurality of resonators;
closing the incision after the interbody implant has been implanted;
after closing the incision, transmitting, by a wave generator from outside the patient, mechanical waves towards the implanted interbody implant at a predetermined frequency to cause the plurality of resonators to resonate at the predetermined frequency to promote bone growth.
A method comprising
forming an incision in a patient (claim 7);
implanting, in a patient, an interbody implant having a plurality of resonators between adjacent vertebrae, the interbody implant having a plurality of resonators (claim 1);
closing the incision after the interbody implant has been implanted (claim 7);
after closing the incision (noted in claim 7), transmitting, by a wave generator from outside the patient, mechanical waves towards the implanted interbody implant at a predetermined frequency to cause the plurality of resonators to resonate at the predetermined frequency to promote bone growth (claim 1).
U.S. Pat. No. 12,167,969 does not specifically disclose repeating the step of transmitting for another predetermined time period until bone ossification is complete.
Slivka is considered analogous to the claimed invention because it is directed towards performing a treatment regimen on the spine (shown in Fig. 6, para. 0028, 0072) that involves the application of low intensity pulsed ultrasound waves to aid in tissue/bone generation (“apply therapeutic ultrasound to speed healing of connective tissues” in Fig. 5 is considered to correspond to the application of low-intensity pulsed ultrasound discussed in para. 0053 for improving bone density at the tendon-bone interface), and specifically teaches repeating the application of applying therapeutic ultrasound as necessary (see Fig. 7; para. 0073)
It would have been obvious to one of ordinary skill in the art to have repeated the step of transmitting mechanical (LIPUS) waves towards Chevalier’s implant as many times as it is necessary until bone ossification is complete, in view of the teachings of Slivka noted above, because Slivka recognizes that repeating such procedures as many times as it is necessary until the desired change in tissue is achieved is a known method for facilitating healing of tissues around implants (see Slivka, Fig. 7, para. 0073).
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 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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-5 and 7-11 are rejected under 35 U.S.C. 103 as being unpatentable over Chevalier (WO 2021/245633 A1) in view of McCarthy (“Low-intensity pulsed ultrasound for bone tissue engineering”).
Regarding Claims 1-4, Chevalier teaches a method of stabilizing a spine comprising:
forming an incision in a patient (page 25, at lines 24-27, recites that fusion devices 10 “may be implanted into a patient […] by standard surgical techniques for implanting interbody cages into an intervertebral space, which is understood to involve forming an incision in a patient; Fig. 1);
implanting between adjacent vertebrae an interbody implant through the formed incision, the interbody implant having a plurality of resonators (as shown in Fig. 1, the interbody implant defined by at least cage 12 of fusion device 10 depicted in Figs. 2A-2B and 23A/25A/25B, having a plurality of resonators defined by resonating elements 16 and the inner structure 124 to which the elements are attached; page 8, lines 22-30);
closing the incision after the interbody implant has been implanted (the “standard” surgical technique noted above for implanting the implant 10 is understood to include closing the incision after implantation; page 25, lines 24-27);
after closing the incision, transmitting, by a wave generator from outside the patient, mechanical waves towards the implanted interbody implant at a predetermined frequency to cause the plurality of resonators to resonate at the predetermined frequency to promote bone growth (page 25, line 29 – page 26, line 11: applying a vibrational wave to the implant 10, where the “generated vibrational wave propagates through the patient’s skin and tissues until it contacts the dynamic interbody fusion device 10”, so that transmitting is understood to occur after closing of the incision, the applied wave having a specific/predetermined frequency that causes the resonating elements 16 to resonate at the specific frequency to therefore promote bone growth between vertebrae V1, V2 and substantially shorten the vertebral fusion process; Figs. 1, 2A-2B, 23A).
Chevalier also recites that the generated vibrational wave applied to the implant “propagates through the patient’s skin and tissues until it contacts the dynamic interbody fusion device 10”, noting that in some embodiments, “the vibrational wave is generated by the subject’s own movement” (see page 25, line 29 – page 26, line 4).
However, Chevalier does not specifically disclose [in Claim 1] transmitting the mechanical waves by a wave generator from outside the patient, [Claim 2] wherein transmitting includes transmitting low-intensity pulsed ultrasound (LIPUS) waves, [Claim 3] wherein transmitting includes transmitting LIPUS waves each having a pulse width of approximately two hundred microseconds at least every millisecond, and [Claim 4] wherein each mechanical wave has a frequency of approximately 1.5 megahertz.
McCarthy is considered analogous to the claimed invention because it is directed towards encouraging bone growth within an intervertebral implant (see section 5.5. Bone Area and Volume on pages 14-15, discussing a scaffold/implant placed between vertebrae L5 and L6, and section 5.7 Osseointegration on pages 15-16, regarding healing bone defects using LIPUS to increase the amount of bone tissue formed), and teaches [Claim 1] transmitting mechanical waves, by a wave generator from outside a patient, towards the implanted implant at a predetermined frequency (via a transducer that emits LIPUS waves towards the bone and tissue of interest as shown in Fig. 2 on page 5, a similar transducer, i.e. external wave generator, understood to be used with the intervertebral implant described above; also see section 2.4 Mechanotherapy on page 7, describing the use of mechanical forces, including sound waves, originating from an external source and applied to biological tissue to induce healing, alternatively noting that the mechanical forces can originate from patient movement or activity), and specifically teaches [Claim 2] transmitting mechanical waves comprising low-intensity pulsed ultrasound (LIPUS) waves towards the intervertebral implant to stimulate bone growth within and around the implant (transmitting low-intensity pulsed ultrasound waves, via a low-intensity pulsed ultrasound device, as described in the above-referenced sections 5.5 and 5.7 and in section 4. LIPUS Devices on page 8, and in section 7. Optimal LIPUS Parameters for Bone Tissue Engineering on page 19, to stimulate bone growth). McCarthy also discloses [Claim 3] the mechanical waves comprising low intensity pulsed ultrasound waves having a pulse width of two hundred microseconds (the LIPUS device transmits mechanical waves having a pulse with of 200 microseconds, as described in section 4. LIPUS Devices on page 8, the waves transmitted towards intervertebral scaffolds to promote osseointegration, as discussed in section 5. Applications of LIPUS for Bone Tissue Engineering and Table 2; the wave generator is also considered to be capable of transmitting the mechanical waves every millisecond), and [Claim 4] wherein each mechanical wave has a frequency of approximately 1.5 megahertz (the LIPUS device transmits mechanical waves having a frequency of 1.5 MHz, as described in sections 3. Low Intensity Pulsed Ultrasound and section 4. LIPUS Devices on page 8, the waves transmitted towards intervertebral scaffolds to promote osseointegration, as discussed in section 5. Applications of LIPUS for Bone Tissue Engineering and Table 2.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use McCarthy’s external wave generator (transducer) to apply the mechanical waves at a predetermined frequency to Chevalier’s implanted implant, causing the resonators of the implant to resonate at the predetermined frequency, where the mechanical waves are the claimed low intensity pulsed ultrasound waves having a pulse width of 200 microseconds and frequency of 1.5 MHz, as taught by McCarthy, because McCarthy recognizes that the providing such acoustic therapy to the implant, via an external generator, can encourage greater bone formation within and around the implant to increase the fusion rate (see McCarthy, last paragraph of section 5.7 Osseointegration, on page 16), thereby decreasing healing time after implantation.
Regarding claim 5, the combined disclosures of Chevalier and McCarthy teach the method of claim 1, and Chevalier discloses wherein transmitting includes transmitting the mechanical waves towards the implanted interbody implant (12; Figs. 1, 2A, 23A) having: a body (124; Figs. 2A, 23A) defining a bone graft aperture (126a; Fig. 2A, 23A; page 9, lines 8-10); a first bone contacting surface (122a; Figs. 2A, 23A) on an upper surface of the body; a second bone contacting (122b; Figs. 2A, 23A) surface on a lower surface of the body; wherein each of the plurality of resonators include rods extending from the first bone contacting surface and the second bone contacting surface (where the plurality of resonators are defined by inner lattice structure 124 and the resonating elements 16 attached thereto, the resonators extend from the bone contacting surfaces 122a, 122b; Fig. 23A, 25A-25B).
Regarding claim 7, the combined disclosures of Chevalier and McCarthy teach the method of claim 5, and Chevalier discloses wherein: the body (124; Figs. 2A, 23A) includes a plurality of struts extending between the first and second bone contacting surfaces, wherein at least some of the struts define the plurality of resonators (inner body structure includes a lattice pattern 124a formed by struts 124s, 124f and/or 124c depicted in Figs. 4-9, where at least the struts having resonators 16 attached thereto define the plurality of resonators described above; Figs. 1, 2A, 4-16, 23A-23C; page 12, lines 15-27; page 21, lines 16-20).
Regarding claim 8, the combined disclosures of Chevalier and McCarthy teach the method of claim 5, and Chevalier discloses wherein the plurality of resonators extend from the body into the graft aperture (as shown in Fig. 25B, Chevalier’s plurality of resonators 16 are attached to struts of the body 124 so as to extend into the graft cavity, i.e. aperture 126a in Fig. 2A; page 21, lines 29-31).
Regarding claim 9, the combined disclosures of Chevalier and McCarthy teach the method of claim 1, and Chevalier teaches wherein transmitting includes transmitting the mechanical waves towards the implanted interbody implant (12; Figs. 1, 2A-2B, 23A) having a porous lattice structure (124; Figs. 1, 2A, 4-9, 23A; page 12, lines 15-27) and the resonators (16; Fig. 23A) are attached to the porous lattice structure (as shown; Fig. 23A; page 21, lines 16-20).
Regarding claim 10, the combined disclosures of Chevalier and McCarthy teach the method of claim 1, and Chevalier teaches wherein transmitting includes transmitting the mechanical waves towards the implanted interbody implant (12; Figs. 1, 2A-2B, 23A) having a lattice structure (124; Figs. 2A, 4-9, 23A; page 12, lines 15-27) and the resonators (16; Fig. 23A) are attached to the lattice structure (as shown; Fig. 23A; page 21, lines 16-20).
Regarding claim 11, the combined disclosures of Chevalier and McCarthy teach the method of claim 1, and Chevalier teaches wherein each resonator (16; Fig. 23A) has a cylindrical shape constructed to resonators at the predetermined frequency (resonating elements 16 in Fig. 23A, in the form of free resonator 16 shown in Fig. 12, in any of the forms shown in Figs. 10-12, include a cylindrical element or stem portion 164 which is understood to be constructed to resonate at the specific/predetermined frequency, as the resonators 16 are constructed to resonate at the predetermined frequency; page 21, line 28 – page 22, line 9).
Claims 12-13 and 16-20 are rejected under 35 U.S.C. 103 as being unpatentable over Chevalier (WO 2021/245633 A1) in view of McCarthy (“Low-intensity pulsed ultrasound for bone tissue engineering”) and Slivka (US 2016/0220393 A1).
Regarding claims 12 and 13, Chevalier teaches a method of stabilizing a spine comprising:
forming an incision in a patient (page 25, at lines 24-27, recites that fusion devices 10 “may be implanted into a patient […] by standard surgical techniques for implanting interbody cages into an intervertebral space, which is understood to involve forming an incision in a patient; Fig. 1);
implanting between adjacent vertebrae an interbody implant through the formed incision, the interbody implant having a plurality of resonators configured to resonate at a predetermined frequency (as shown in Fig. 1, the interbody implant defined by at least cage 12 of fusion device 10 depicted in Figs. 2A-2B and 23A/25A/25B, having a plurality of resonators defined by resonating elements 16 and the inner structure 124 to which the elements are attached; page 8, lines 22-30);
closing the incision after the interbody implant has been implanted (the “standard” surgical technique noted above for implanting the implant 10 is understood to include closing the incision after implantation; page 25, lines 24-27);
after closing the incision, transmitting, by a wave generator from outside the patient, mechanical waves towards the implanted interbody implant for a predetermined time period at the predetermined frequency to cause the plurality of resonators to resonate at the predetermined frequency to promote bone growth (page 25, line 29 – page 26, line 11: applying a vibrational wave to the implant 10, where the “generated vibrational wave propagates through the patient’s skin and tissues until it contacts the dynamic interbody fusion device 10”, so that transmitting is understood to occur after closing of the incision, the applied wave having a specific/predetermined frequency that causes the resonating elements 16 to resonate at the specific frequency to therefore promote bone growth between vertebrae V1, V2 and substantially shorten the vertebral fusion process; Figs. 1, 2A-2B, 23A).
Chevalier also recites that the generated vibrational wave applied to the implant “propagates through the patient’s skin and tissues until it contacts the dynamic interbody fusion device 10”, noting that in some embodiments, “the vibrational wave is generated by the subject’s own movement” (see page 25, line 29 – page 26, line 4).
However, Chevalier does not specifically disclose [in Claim 12] transmitting the mechanical waves by a wave generator from outside the patient, and repeating the step of transmitting for another predetermined time period until bone ossification is complete, and [Claim 13] wherein transmitting includes transmitting low-intensity pulsed ultrasound (LIPUS) waves.
McCarthy is considered analogous to the claimed invention because it is directed towards encouraging bone growth within an intervertebral implant (see section 5.5. Bone Area and Volume on pages 14-15, discussing a scaffold/implant placed between vertebrae L5 and L6, and section 5.7 Osseointegration on pages 15-16, regarding healing bone defects using LIPUS to increase the amount of bone tissue formed), and teaches [Claim 12] transmitting mechanical waves, by a wave generator from outside a patient, towards the implanted implant at a predetermined frequency (via a transducer that emits LIPUS waves towards the bone and tissue of interest as shown in Fig. 2 on page 5, a similar transducer, i.e. external wave generator, understood to be used with the intervertebral implant described above; also see section 2.4 Mechanotherapy on page 7, describing the use of mechanical forces, including sound waves, originating from an external source and applied to biological tissue to induce healing, alternatively noting that the mechanical forces can originate from patient movement or activity), and specifically teaches [Claim 13] transmitting mechanical waves comprising low-intensity pulsed ultrasound (LIPUS) waves towards the intervertebral implant to stimulate bone growth within and around the implant (transmitting low-intensity pulsed ultrasound waves, via a low-intensity pulsed ultrasound device, as described in the above-referenced sections 5.5 and 5.7 and in section 4. LIPUS Devices on page 8, and in section 7. Optimal LIPUS Parameters for Bone Tissue Engineering on page 19, to stimulate bone growth).
Slivka is considered analogous to the claimed invention because it is directed towards performing a treatment regimen on the spine (shown in Fig. 6, para. 0028, 0072) that involves the application of low intensity pulsed ultrasound waves to aid in tissue/bone generation (“apply therapeutic ultrasound to speed healing of connective tissues” in Fig. 5 is considered to correspond to the application of low-intensity pulsed ultrasound discussed in para. 0053 for improving bone density at the tendon-bone interface), and specifically teaches repeating the application of applying therapeutic ultrasound as necessary (see Fig. 7; para. 0073)
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use McCarthy’s external wave generator (transducer) to apply the mechanical waves at a predetermined frequency to Chevalier’s implanted implant, causing the resonators of the implant to resonate at the predetermined frequency, where the mechanical waves are the claimed low intensity pulsed ultrasound waves as taught by McCarthy, because McCarthy recognizes that the providing such acoustic therapy to the implant, via an external generator, can encourage greater bone formation within and around the implant to increase the fusion rate (see McCarthy, last paragraph of section 5.7 Osseointegration, on page 16), thereby decreasing healing time after implantation.
Further, it would have been obvious to one of ordinary skill in the art to have repeated the step of transmitting mechanical (LIPUS) waves towards Chevalier’s implant as many times as it is necessary until bone ossification is complete, in view of the teachings of Slivka noted above, because Slivka recognizes that repeating such procedures as many times as it is necessary until the desired change in tissue is achieved is a known method for facilitating healing of tissues around implants (see Slivka, Fig. 7, para. 0073).
Regarding claim 14, the combined disclosures of Chevalier, McCarthy and Slivka teach the method of claim 12, and Chevalier teaches wherein transmitting includes transmitting the mechanical waves towards the implanted interbody implant (12; Figs. 1, 2A, 23A) having: a body (124; Figs. 2A, 23A) defining a bone graft aperture (126a; Fig. 2A, 23A; page 9, lines 8-10); a first bone contacting surface (122a; Figs. 2A, 23A) on an upper surface of the body; a second bone contacting (122b; Figs. 2A, 23A) surface on a lower surface of the body; wherein each of the plurality of resonators include rods extending from the first bone contacting surface and the second bone contacting surface (where the plurality of resonators are defined by inner lattice structure 124 and the resonating elements 16 attached thereto, the resonators extend from the bone contacting surfaces 122a, 122b; Fig. 23A, 25A-25B).
Regarding claim 16, the combined disclosures of Chevalier, McCarthy and Slivka teach the method of claim 14, and Chevalier teaches wherein: the body (124; Figs. 2A, 23A) includes a plurality of struts extending between the first and second bone contacting surfaces, wherein at least some of the struts define the plurality of resonators (inner body structure includes a lattice pattern 124a formed by struts 124s, 124f and/or 124c depicted in Figs. 4-9, where at least the struts having resonators 16 attached thereto define the plurality of resonators described above; Figs. 1, 2A, 4-16, 23A-23C; page 12, lines 15-27; page 21, lines 16-20).
Regarding claim 17, the combined disclosures of Chevalier, McCarthy and Slivka teach the method of claim 14, and Chevalier teaches wherein the plurality of resonators extend from the body into the graft aperture (as shown in Fig. 25B, Chevalier’s plurality of resonators 16 are attached to struts of the body 124 so as to extend into the graft cavity, i.e. aperture 126a in Fig. 2A; page 21, lines 29-31).
Regarding claim 18, the combined disclosures of Chevalier, McCarthy and Slivka teach the method of claim 12, and Chevalier teaches wherein transmitting includes transmitting the mechanical waves towards the implanted interbody implant (12; Figs. 1, 2A-2B, 23A) having a porous lattice structure (124; Figs. 1, 2A, 4-9, 23A; page 12, lines 15-27) and the resonators (16; Fig. 23A) are attached to the porous lattice structure (as shown; Fig. 23A; page 21, lines 16-20).
Regarding claim 19, the combined disclosures of Chevalier, McCarthy and Slivka teach the method of claim 12, and Chevalier teaches wherein transmitting includes transmitting the mechanical waves towards the implanted interbody implant (12; Figs. 1, 2A-2B, 23A) having a lattice structure (124; Figs. 2A, 4-9, 23A; page 12, lines 15-27) and the resonators (16; Fig. 23A) are attached to the lattice structure (as shown; Fig. 23A; page 21, lines 16-20). transmitting includes transmitting the mechanical waves towards the implanted interbody implant having a lattice structure and the resonators are attached to the lattice structure.
Regarding claim 20, the combined disclosures of Chevalier, McCarthy and Slivka teach the method of claim 12, and Chevalier teaches wherein each resonator (16; Fig. 23A) has a cylindrical shape constructed to resonators at the predetermined frequency (resonating elements 16 in Fig. 23A, in the form of free resonator 16 shown in Fig. 12, in any of the forms shown in Figs. 10-12, include a cylindrical element or stem portion 164 which is understood to be constructed to resonate at the specific/predetermined frequency, as the resonators 16 are constructed to resonate at the predetermined frequency; page 21, line 28 – page 22, line 9).
Allowable Subject Matter
Claims 6 and 15 are objected to as being dependent upon a rejected base claim, have not been rejected using prior art but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims. The following is a statement of reasons for the indication of allowable subject matter:
Claims 6 and 15 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 claims 6 and 15. In particular, none of the cited references teach or suggest “wherein the plurality of resonators include: at least one rod extending downwardly from the first bone contacting surface and having a free lower end; at least one rod extending upwardly from the second bone contacting surface and having a free upper end; and at least one rod extending between the first and second bone contacting surfaces” as required by claims 6 and 15.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Other relevant references can be found in the attached PTO-892.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANNA VICTORIA LITTLE whose telephone number is (571)272-6630. The examiner can normally be reached M-F 9a-6p EST.
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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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/ANNA V. LITTLE/Examiner, Art Unit 3773 /EDUARDO C ROBERT/Supervisory Patent Examiner, Art Unit 3773
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