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 of Group II and Species C in the reply filed on December 1st, 2025 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Claims 70 (claim 70 is not directed to the elected embodiment or shown in the figures directed to the elected embodiment) and 95-97 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected species and/or invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on December 1st, 2025.
Drawings
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they do not include the following reference sign(s) mentioned in the description: Reference number 427 and reference number 627 are not shown in the drawings. Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Specification
The disclosure is objected to because of the following informalities: paragraph 160 of the specification recites …the flat lower surface 427 of core 420 adds stability …. This paragraph is directed to the embodiment shown in Figures 9-15 which have reference numbers starting with a 6 and not a 4. Therefore, reference numbers 427 and 420 of paragraphs 160 should possibly be 627 and 620.
Appropriate correction is required.
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 63 and 64 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 63 recites the limitation "the left-side connector" in 4. There is insufficient antecedent basis for this limitation in the claim.
Claim Rejections - 35 USC § 103
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.
Claims 61, 62, 67, and 68 are rejected under 35 U.S.C. 103 as being unpatentable over Marnay (U.S. Publication 2004/0117022) in view of Rogers (U.S. Patent 10,238,500).
Marnay discloses a device (see Figures 1-22) comprising:
(claim 61) an upper plate (11)
(claim 68) the upper plate including
(claim 68) an inner surface having a concave recess (25)
(claim
(claim 61) a lower plate (30)
(claim 61) the lower plate comprises
(claim 61) a cavity (38)
(claim 61) a left groove (33)
(claim 61) a right groove (34)
(claim 61) wherein the left and right grooves cooperate with the left and right portions of the tongue to slidably receive the base of the core in the cavity
(claim 61) an anterior portion that secures the core in the cavity (see annotated figure below)
(claim 62) wherein the anterior portion comprises a posterior facing rail (the portions of element 32 that cover the rounded portions of elements 53 and 54 face the proximal portion of the device)
(claim 62) wherein the posterior facing rail forms anteriorly-located grooves for receiving an anterior portion of the tongue (the overhang portions of element 32 that cover the rounded portions of 53 and 54 form grooves for receiving the rounded portions of elements 53 and 54)
(claim 67) a posterior groove (44)
(claim 61) a core adapted to be removably installed between the upper plate and the lower plate
(claim 61) wherein the core comprises
(claim 61) a substantially planar base (the section of plane 56 directly below element 52)
(claim 61) a centrally-located superiorly-extending tab (52; the tab is center medial-laterally as shown in Figure 12)
(claim 68) wherein the tab includes a semispherical shape
(claim 68) wherein the inner surface of the upper plate pivotably cooperates with the tab when the device is assembled
(claim 61) a tongue (51, 53, and 54) circumscribing the tab
(claim 67) wherein the posterior groove of the lower plate is adapted to slidably engage a posterior portion (57) of the tongue
Marnay fails to disclose the device wherein the anterior portion is an anterior connector. Rogers teaches a device (for example see Figures 26A-26B) comprising a lower plate, an upper plate, and a core, wherein the device further comprises an anterior connector removably engageable with the lower plate. It would have been obvious to one having ordinary skill in the art at the time the invention was filed to provide the device of Marnay wherein the anterior portion is a removably connector engageable with the lower plate in view of Rogers, since it has been held that constructing a formerly integral structure in various elements involves only routine skill in the art. Nerwin v. Erlichman, 168 USPQ 177, 179.
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Claim 74 is rejected under 35 U.S.C. 103 as being unpatentable over Marnay (U.S. Publication 2004/0117022) in view of Rogers (U.S. Patent 10,238,500).
The device of Marnay as modified by Rogers discloses the invention as claimed except for the ratio of the thickness of the tongue to the maximum height of the core being from 2-20% or 5-10%.
The device of Marnay as modified by Rogers discloses a device as discussed above wherein the tongue includes a thickness that is a portion of the maximum thickness of the core (for example see Figures 11). It would have been obvious to one having ordinary skill in the art at the time the invention was filed to provide the device of Marnay as modified by Rogers wherein the thickness of the core is 2-20% or 5-10% the maximum height of the core, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
The range of 5-15% is an optional limitation not required by the claim.
Claims 71 and 73 are rejected under 35 U.S.C. 103 as being unpatentable over Marnay (U.S. Publication 2004/0117022) in view of Rogers (U.S. Patent 10,238,500) further in view of Carls (U.S. Publication 2008/0161921).
The device of Marnay as modified by Rogers discloses the invention as claimed except for the upper and lower plates each including at least one tool slot or hole arranged on an anterior surface or a lateral surface.
The device of Marnay as modified by Rogers discloses a device as discussed above wherein the upper plate includes at least one tool engagement feature (17 of Marnay) on a posterior side of the upper plate and the lower plate includes at least one tool engagement feature (41 of Marnay) on a posterior side of the lower plate. Carls teaches a device comprising an upper plate (22) including at least one tool engagement feature configured to receive the end of a tool, such as a slot or hole (52), a lower plate (24) including at least one tool engagement feature, such as a slot or hole (52; see Figure 3), and a core (26), wherein the at least one tool engagement feature is positioned on either a posterior side, an anterior side, a lateral side, or any combination of sides of the upper and lower plates in order to allow the device to be inserted from any surgical approach (see paragraph 28). It would have been obvious to one having ordinary skill in the art at the time the invention was filed to provide the device of Marnay as modified by Rogers wherein the at least one engagement slot or hole of the upper and lower plates are on the anterior side, lateral side, or any combination of sides in view of Carls in order to allow the device to be inserted from any surgical approach.
Regarding claims 73, the limitation the engagement feature being an elongate slot is optional and not required by the claim.
Allowable Subject Matter
Claims 64 and 66 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 63 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. See PTO-892 for cited references the examiner felt were relevant to the application.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Nicholas Woodall whose telephone number is (571) 272-5204. The examiner can normally be reached on Monday-Friday 8am to 5:30pm.
If attempts to reach the examiner by telephone are unsuccessful, please contact the examiner’s supervisor, Kevin Truong, at (571. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Nicholas Woodall whose telephone number is (571) 272-5204. The examiner can normally be reached on Monday-Friday 8am to 5:30pm.
If attempts to reach the examiner by telephone are unsuccessful, please contact the examiner’s supervisor, Kevin Truong, at (571. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/NICHOLAS W WOODALL/Primary Examiner, Art Unit 3775