DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
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.
Claim 5 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 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 5 recites the limitation “the first opening portion” and "the bone screw" in line 2. There is insufficient antecedent basis for this limitation in the claim. Claim 5 recites limitations from both claim 2 and 4 such that to fix the antecedent basis issues in claim 5 claim 4 needs to depend from claim 2.
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 pre-AIA 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 –
(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of application for patent in the United States.
Claim(s) 1, 4, 6-9, 12, 15, 17, and 19 is/are rejected under pre-AIA 35 U.S.C. 102(b) as being anticipated by Wagner et al. (US Patent 6,641,614).
With respect to claim 1, Wagner et al. discloses an expandable intervertebral spacer (See fig 27 below) comprising: a frame (fig 27, 240) having distal and proximal ends defining a longitudinal axis extending therebetween; a carriage (see fig 27 below) slideably coupled to the frame and having at least one ramped surface (see fig 27 below) and a threaded portion (for screw 250 and 270); an actuator screw (fig 27, 250 or 270) threadably engaged with the carriage threaded portion (col. 19, ll. 9-26), the actuator screw being rotatably coupled to the frame to cause the carriage to slideably move within the frame along the longitudinal axis when the actuator screw is rotated (col. 19, ll. 9-26 discusses how the threaded portions of the screw engage the carriage by rotation to slide the carriages relative to the endplates); a first endplate (fig 27, 202) configured to engage a first bone of a joint, and having at least one ramped surface (fig 27, 236) configured to be in contact with the at least one carriage ramped surface; and a second endplate (fig 27, 204) configured to engage a second bone of the joint; wherein the sliding movement of the carriage causes the at least one first endplate ramped surface to slide against the at least one carriage ramped surface to cause the second endplate to move along an axis transverse to the longitudinal axis to increase a height of the spacer (col. 19. ll. 9-26).
With respect to claim 4, Wagner et al. discloses wherein the first endplate is composed of two interconnected portions of dissimilar materials (Col. 21, ll. 33 and 54 different parts are made of different materials).
With respect to claim 6, Wagner et al. discloses wherein one dissimilar material is polymeric (col. 21, 33), and another dissimilar material is metallic (col. 21, 54).
With respect to claim 7, Wagner et al. discloses wherein the carriage is slideably supported by the actuator screw and by at least one lateral support (fig 27, 244, 246) extending from the carriage to the frame.
With respect to claim 8, Wagner et al. discloses further comprising a thrust washer (see fig 27 below) interposed between the actuator screw and the frame for reducing friction when the actuator screw is rotated.
With respect to claim 9, Wagner et al. discloses further comprising a polymeric material (col. 21, 33 polymeric endcaps are located on the end) configured to press against the actuator screw to reduce a potential for unintended rotation of the actuator screw.
With respect to claim 12, Wagner et al. discloses wherein the spacer has a length between distal and proximal ends of the spacer along the longitudinal axis and a width between first and second sides of the spacer, wherein the width is greater than the length of the spacer.
With respect to claim 15, Wagner et al. discloses an expandable intervertebral spacer (see fig 27 below) comprising: a frame (fig 27, 240) having distal (See fig 27 below) and proximal ends (See fig 27 below) defining a longitudinal axis (fig 27) extending therebetween; a carriage (See fig 27 below) slideably coupled to the frame and having at least one ramped surface (See fig 27 below) and a threaded portion (fig 27 for the screw); an actuator screw (fig 27, 250, 270) threadably engaged with the carriage threaded portion, the actuator screw being translationally fixed (by washer) to and rotatably coupled to the frame to cause the carriage to slideably move within the frame along the longitudinal axis when the actuator screw is rotated (col. 19, ll. 9-26); a first endplate (fig 27, 202) configured to engage a first bone of a joint, and having at least one ramped surface (fig 27, 236) configured to be in contact with the at least one carriage ramped surface; and a second endplate (fig 27, 204) configured to engage a second bone of the joint; wherein the sliding movement of the carriage causes the at least one first endplate ramped surface to slide against the at least one carriage ramped surface to cause the second endplate to move along an axis transverse to the longitudinal axis to increase a height of the spacer (col. 19, ll. 9-26).
With respect to claim 17, Wagner et al. discloses further comprising a thrust washer (See fig 27 below) interposed between the actuator screw and the frame for reducing friction when the actuator screw is rotated.
With respect to claim 19, Wagner et al. discloses wherein the carriage is slideably supported by the actuator screw and by at least one lateral support (Fig 27, 244, 246) extending from the carriage to the frame.
PNG
media_image1.png
571
587
media_image1.png
Greyscale
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 pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim 11 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Wagner et al. (US Patent 6,641,614) in view of Glerum (US Pub 2011/0319997).
Wagner discloses the claimed invention except for a dovetail connection between the frame and endplates.
Glerum et al. discloses a dovetail connection (fig 3 and paragraph 43) between a frame and endplates to allow for a linear translation between the endplate and frame while maintaining the endplates (paragraph 43).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the device of Wagner to include a dovetail connection between the frame and endplates in view of Glerum et al. in order to allow for a linear translation between the endplate and frame while maintaining the endplates.
Claim 18 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Wagner et al. (US Patent 6,641,614) in view of Olmos et al. (US Patent 8,105,382).
With respect to claim 18, Wagner et al. discloses the claimed invention except for the washer being PEEK.
Olmos discloses a washer (fig 9A) being made out of PEEK (col. 18, ll. 45-50) to be biocompatible (col. 18, ll. 45-50).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the device of Wagner to include the washer being made out of PEEK in view of Olmos in order to be biocompatible.
Allowable Subject Matter
Claims 2, 3, 10, 13, 14, 16 and 20 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.
Claim 5 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include 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 20140163682 A1 discloses an expandable spacer with end plates and a frame
US 20100211176 A1 discloses an expandable spacer with end plates and a frame
US 20090210062 A1 discloses a spacer with end plates and a frame with bone screws
US 20100292796 A1 discloses an expandable spacer with end plates and a frame
US 20110251691 A1 discloses an expandable spacer with end plates and a frame
US 20110319997 A1 discloses an expandable spacer with end plates and a frame
US 20110093074 A1 discloses an expandable spacer with end plates and a frame
US 20130085573 A1 discloses a spacer with bone screws but the openings in the endplates don’t together form a socket for screw
US 6176882 B1 discloses an expandable spacer with end plates and a frame
US 6641614 B1 discloses an expandable spacer with end plates and a frame
US 8366777 B2 discloses an expandable spacer with end plates and a frame
US 8105382 B2 discloses an expandable spacer with end plates and a frame
US 12251321 B2 is a parent application which could lead to double patenting rejections depending on potential amendments to the claim
Any inquiry concerning this communication or earlier communications from the examiner should be directed to STEVEN J COTRONEO whose telephone number is (571)270-7388. The examiner can normally be reached Monday-Friday 9am-5pm EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
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.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/S.J.C/Examiner, Art Unit 3773 /EDUARDO C ROBERT/Supervisory Patent Examiner, Art Unit 3773
Prosecution Insights