DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . This action is responsive to the set of claims received on 13 January 2025. Claims 1-18 are currently pending.
Priority
Applicant’s claim for the benefit of a prior-filed application under 35 U.S.C. 119(e) or under 35 U.S.C. 120, 121, 365(c), or 386(c) is acknowledged.
Drawings
The drawings received on 13 January 2025 are accepted by the examiner.
Claim Objections
Claim 6 is objected to because of the following informalities:
It appears that a period should be placed at the end of the claim.
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.
Claims 1-3 and 6-18 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-13 of U.S. Patent No. 12,239,347 in view of Ricker et al. (U.S. Patent Application Publication 2017/0105775).
Claims 1-13 of U.S. Patent No. 12,239,347 disclose the claimed invention except for wherein (as to the remainder of claim 1) the plate body defines an outer perimeter, wherein the first leg extends from a first location of the outer perimeter of the plate body, wherein the second leg extends from a second location of the outer perimeter of the plate body, and wherein the first and second locations are spaced from each other along the outer perimeter, wherein (as to claim 2) the outer perimeter of the plate body surrounds each of the first aperture and the plurality of fixation holes, and wherein (as to claim 3) each of the first and second legs defines a respective thickness in a direction from the bone-facing body surface to the outer body surface, and the plate body defines a respective thickness from the bone-facing body surface to the outer body surface at the outer perimeter that is greater than the respective thickness of each of the first and second legs.
Ricker et al. teach the use of a bone plate (100) including a plate body (107) defining an outer perimeter (i.e. perimeter defined by 112); and a plurality of legs (106) that extend from spaced apart locations (i.e. locations defined where each instance of 106 intersects with 107) along the outer perimeter, wherein the outer perimeter of the plate body surrounds each of a first aperture (i.e. central instance of 104 as best seen in Figure 1A) and a plurality of fixation holes (i.e. remaining instance of 104 defined by 107 and within 112 as best seen in Figure 1A), and wherein each leg defines a thickness (i.e. thickness defined by 109) that is less than a thickness of the plate body (see paragraph 0027) (see Figures 1A-2, and paragraphs 0026-0030).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to construct the invention of claims 1-13 of U.S. Patent No. 12,239,347 with wherein the plate body defines an outer perimeter, wherein the first leg extends from a first location of the outer perimeter of the plate body, wherein the second leg extends from a second location of the outer perimeter of the plate body, wherein the first and second locations are spaced from each other along the outer perimeter, wherein the outer perimeter of the plate body surrounds each of the first aperture and the plurality of fixation holes, and wherein each of the first and second legs defines a respective thickness in a direction from the bone-facing body surface to the outer body surface, and the plate body defines a respective thickness from the bone-facing body surface to the outer body surface at the outer perimeter that is greater than the respective thickness of each of the first and second legs in view of Ricker et al. in order to provide a well-known, obvious leg and aperture/hole spacing for attaching the plate to bone via bone anchors placed at desired locations and leg geometry for easier bending/removal to yield predictable results.
Allowable Subject Matter
Claims 4 and 5 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
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LARRY E WAGGLE, JR whose telephone number is (571)270-7110. The examiner can normally be reached TEAP: Monday - Friday (7:45am - 3:45pm).
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/LARRY E WAGGLE, JR/Primary Examiner, Art Unit 3775