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, drawn to figs.3-9 and 10A in the reply filed on 03/04/2026 is acknowledged.
No claims have been withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected species there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 03/04/2026.
Claim Objections
Claim 19 is objected to because of the following informalities: the term “whether” in line 3 of the claim appears to be a grammatical error. Appropriate correction is required.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: lock mechanism in claims 1, 4, 7, 17 and 20.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 14-15 and 20 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 14 recites the limitation "the recess" in line 4 of the claim. There is insufficient antecedent basis for this limitation in the claim.
Claim 15 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter since claim 15 depends on claim 14.
The term “an approximate width” in claim 20 is a relative term which renders the claim indefinite. The term “an approximate width” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
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 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) 1-9 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Abdul-Hafiz et al. U.S. Patent No. (11,096,816 B2).
With respect to claim 1, Abdul-Hafiz et al. discloses a pivot assembly (10,12, figs.1-22) for an orthopedic device having a first longitudinal axis or central axis (A-A, fig.2) comprising:
a first strut (14, fig.2) having a first strut head (as shown in the reproduced image of fig,2), the first strut head defining a compound recess (where element 100 is located in fig.2);
a second strut (22, fig.3) having a strut head (24, fig.2), the second strut head (24) having a curved or circularly shape (as shown in fig.2) and defines a plurality of notches (28, fig.2) disposed about a circumference thereof (as shown in fig.2);
a lock mechanism (drop lock assembly 96 including drop lock button 98, figs.2-3) disposed within the compound recess (where element 100 is located in fig.2) and arranged to lock in an engaged position and a disengaged position relative to the plurality of notches (28) according to a position within the compound recess (where element 100 is located in fig.2) and ([Col.6], lines 6-16);
wherein the compound recess (where element 100 is located in fig.2) defines an entry or channel opening from a first end or peripheral surface of the first strut head and is arranged to cooperate with a peripheral surface of the second strut head (as shown in figs.2-3);
wherein the compound recess (where element 100 is located in fig.2) defines a second longitudinal axis (B-B, as shown in the reproduced image of fig.2 below) bisecting the channel.
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With respect to claim 2, Abdul-Hafiz et al. discloses the compound recess further defines a first recess depending from an end of the channel opposite the first end of the first strut head and along the longitudinal axis, the first recess located on a first side of the longitudinal axis, and the compound recess having a second recess located on a second side of the longitudinal axis (as shown in the reproduced image of fig.2 below).
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With respect to claim 3, Abdul-Hafiz et al. discloses the first recess has a circular or semi-circular or arcuate periphery on the first side of the second longitudinal axis, and the second recess has a circular or semi-circular or arcuate periphery on the second side of the second longitudinal axis (as shown in the reproduced image of fig.2 below).
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With respect to claim 4, Abdul-Hafiz et al. discloses the lock mechanism includes a lock body (drop lock assembly 96 including drop lock button 98, figs.2-3) arranged to slide within the compound recess to and from the first end or peripheral surface along the second longitudinal axis ([Col.6], lines 6-16).
With respect to claim 5, Abdul-Hafiz et al. discloses the first strut defines a first stop surface (40) to limit rotation of the pivot assembly in a first rotational direction, and a second stop surface (42) to limit rotation of the pivot assembly in a second rotational direction ([Col.5], lines 58-67) and ([Col.6], lines 1-5) and ([Col.8], lines 54-67).
With respect to claim 6, Abdul-Hafiz et al. discloses the second strut defines a first stop surface to limit rotation of the pivot assembly in the first rotational direction and is adapted to abut the first stop surface of the first strut, and a second stop surface to limit rotation of the pivot assembly in the second rotational direction by abutting the second stop surface ([Col.8], lines 54-67).
With respect to claim 7, Abdul-Hafiz et al. discloses the lock mechanism has a lock body defining a head portion forming at least one tooth (98, fig.2) arranged to selectively engage at least one of the notches (28) of the second strut (as shown in fig.2).
With respect to claim 8, Abdul-Hafiz et al. discloses the channel (element 100, as shown in fig.2) is configured and dimensioned to receive the head portion such that a periphery of the head portion is configured and dimensioned to generally match a size or width of the channel, thereby directing only linear movement of the head portion within the channel that is parallel to the second longitudinal axis (as shown in figs.2-3)
With respect to claim 9, Abdul-Hafiz et al. discloses the lock body further defines a base portion (102, figs.9-10) extending from an end of the head portion, the base portion (102) defining a retainer protruding upwardly or relatively perpendicularly to the second longitudinal axis.
Allowable Subject Matter
Claims 10-13 and 16-19 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.
Reasons for Allowance
The following is an examiner’s statement of reasons for allowance:
The closest prior art drawn to Abdul-Hafiz et al. fails to show or make obvious the claimed combinations of elements particularly the limitations as set forth in dependent claims 10-13 and 16-19 which recite features not taught or suggested by the prior art drawn to Abdul-Hafiz et al., in combination with the other elements (or steps) of the apparatus and method recited in the claims.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to OPHELIA ALTHEA HAWTHORNE whose telephone number is (571)270-3860. The examiner can normally be reached M-F 8:00 AM-5:00 PM, EST.
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/OPHELIA A HAWTHORNE/Primary Examiner, Art Unit 3786
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