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 .
This is the initial Office action for the 19/051,333 application. Claims 1-7 are pending.
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, 2 and 4 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Jackson (US 2006/0064089 A1).
Concerning claim 1, Jackson discloses a set screw for threadable engagement with a head of a pedicle screw for holding a spinal rod, the set screw having a spinal rod facing side and a set screw driver facing side, comprising: an opening (see Fig. 8, element 33) at the set screw driver facing side for engaging with the set screw driver (see par. 0037); and a convex surface (19) at the rod facing side, an apex (74) of the convex surface substantially corresponding with a rotational central axis (A) of the set screw, wherein a radius of curvature (see Fig. 8 below) of the convex surface is smaller at the center axis of the set screw as compared to a radius of curvature (see Fig. 8 below) of the convex surface in a peripheral area around the center axis.
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Concerning claim 2, wherein the convex surface is an integral part of the set screw, and the convex surface configured to directly engage with a surface of the spinal rod (3).
Concerning claim 4, wherein an entire surface of the spinal rod facing side of the set screw forms a convex volume (see Fig. 16, element 115; and par. 0043 – “element 115 varies in radius of generation of curvature”).
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Claim(s) 5-7 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Spratt (US 9,782,204 B2).
Concerning claim 5, Spratt discloses a set screw (see Fig. 11, element 470) for threadable engagement with a head of a pedicle screw for holding a spinal rod, the set screw having a spinal rod facing side and a set screw driver facing side, comprising: an opening at the set screw driver traversing the set screw from the spinal rod facing side to the set screw driver facing side, the opening having a torque-engaging mechanism (see col. 7, lines 10-14) to apply a torque to the set screw by the set screw driver; and an annular surface (474A and 474B) at the rod facing side surrounding the opening.
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Concerning claim 6, wherein the annular surface (474A and 474B) is flat, is beveled, or is spherical.
Concerning claim 7, wherein the annular surface (474A and 474B) is an integral part of the set screw.
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.
Claim(s) 3 is/are rejected under 35 U.S.C. 103 as being unpatentable over Jackson (US 2006/0064089 A1) in view of Zhang et al. (US 2014/0249642 A1).
Jackson discloses the invention substantially as described above. However, Jackson does not explicitly disclose that the convex surface of the set screw is hardened relative to a body of the set screw.
Zhang et al. discloses a bearing surface for an orthopedic implant made of cobalt chrome molybdenum alloy coating deposited on a titanium substrate (see par. 0020), specifically because CoCr is harder and more wear-resistant than titanium.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to made to form the convex surface of Jackson’s set screw from cobalt chrome molybdenum alloy coating, the concept of which is disclosed by Zhang et al., in order to enhance the wear resistance of the set screw thereby reducing the chance of implant migration.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ELLEN HAMMOND whose telephone number is (571)270-3819. The examiner can normally be reached Monday-Friday 8 - 4 PM .
If attempts to reach the examiner by telephone are unsuccessful, please contact the examiner’s supervisor, Eduardo C. 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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/ELLEN C HAMMOND/Primary Examiner, Art Unit 3773
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