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 .
Response to Arguments
Applicants’ arguments filed 06/24/2026 have been fully considered but they are not persuasive.
Applicant argues that Johnston does not disclose “inner surfaces of the slide being slidable along the first and second lateral faces of the housing such that a non-linear movement path of the slide is defined by curvature of the lateral faces”. The Office respectfully disagrees. Regarding the “inner surfaces of the slide being slidable along the first and second lateral faces of the housing”, please see the rejection of claim 14 below. Inner surfaces of the slide (ref. 32) slide along the housing via movement or guide body (ref. 32). It is noted that the inner surfaces of the slide do not “directly contact” the housing’s first and second lateral faces, but they do move along as indicated by the movement arrow in Figs. 1 and 2. In regard to the non-linear movement path, Philips is relied upon to such a curvature which results in the non-movement path. Applicant argues that curving the housing (ref. 11) of Johnston as modified by Philips would prohibit rotation of the drive rod. The Office respectfully disagrees. It is unclear how the rotation of the drive rod would be prohibited as the drive rod of Philips is also rotated.
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.
Claim(s) 14 – 19 and 26 is/are rejected under 35 U.S.C. 103 as being unpatentable over Johnston, JR. (US 2012/0259344 A1) in view of Phillips et al. (US 2023/0263556 A1).
Regarding claim 14, Johnston discloses a distractor device (Abstract) for implantation in a patient, comprising:
a first bone plate (Fig. 1, ref. 21) and a second bone plate (Fig. 1, ref. 22);
a housing (Fig. 1, ref. 11) fixedly connected to the first bone plate (Fig. 1), the housing comprising a first lateral face and a second lateral face (side surfaces of ref. 11, see remarked Fig. 2 below) that extend in parallel with each other (Fig. 2) and are at least partially curved (the housing is substantially cylindrical, thus being curved);
a slide (ref. 32) fixedly connected to the second bone plate (Figs. 1 - 3), inner lateral faces of the slide being movable along the first and second lateral faces (inner lateral surfaces of ref. 32 are movable along the first and second lateral faces of the housing via movement of ref. 32, see remarked Fig. 2 below) of the housing such that a movement path of the slide is defined by the lateral faces (See remarked Fig. 1 below);
a main shaft (ref. 12) comprising an external thread (Fig. 2); and
a guide body (ref. 33) operatively connected to the slide (paragraph [0014]), the guide body comprising an internal thread in engagement with the external thread of the main shaft (paragraph [0014]) such that rotation of the main shaft effects displacement of the guide body along the main shaft and thus displacement of the slide along the movement path (Figs. 1 – 3, paragraph [0014]),
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wherein the main shaft is located at least partially within a receiving space in the housing (Fig. 2).
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Johnson is silent regarding movement of the slide being non-linear and is defined by a curvature of the lateral faces.
Phillips teaches an analogous distraction device (Abstract) having a non-linear and/or curved shape (Figs. 1A and 7A). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the shape of the housing and main shaft of Johnston to have a non-linear and curved shape to better provide a three dimensional translational and rotational movement between bones.
Regarding claim 15, Johnston in view of Phillips discloses the distractor device of claim 14, wherein the main shaft is located completely within the receiving space in the housing (Johnston, Fig. 2).
Regarding claim 16, Johnston in view of Phillips discloses the distractor device of claim 14, wherein the receiving space is defined by inner surfaces of the first and the second lateral faces and by a top surface that connects the first and the second lateral faces (Johnston, Figs. 1 – 2 show laterals, top and bottom faces of the housing).
Regarding claim 17, Johnston in view of Phillips discloses the distractor device of claim 14, wherein the slide is guided by outer surfaces of the lateral faces (Johnston, Fig. 1 wherein all components are connected together and thus guiding each other).
Regarding claim 18, Johnston in view of Phillips discloses the distractor device of claim 14, further comprising a drive shaft (Johnston, ref. 13) connected to the main shaft (Johnston, Fig. 1) via a joint (where refs. 12 and 13 meet is considered the joint) for transmitting rotation of the drive shaft onto the main shaft, wherein one end of the drive shaft protrudes from the housing (ref. 13 protrudes from housing ref. 11).
Regarding claim 19, Johnston in view of Phillips discloses the distractor device of claim 18, wherein the main shaft is mounted in the housing at an end of the housing opposite the joint (Figs. 1 – 2 show the main shaft ref. 12 mounted in the housing at both ends).
Regarding claim 26, Johnston in view of Phillips discloses the distractor device of claim 14, wherein the guide body is supported at a connecting plate so as to be displaceable perpendicularly to a longitudinal axis of the main shaft, the connecting plate fixedly connected to the second bone plate or to the slide (the connecting plate is considered the other side of plate ref. 22 which is situated perpendicularly to the longitudinal axis of the main shaft).
Claim(s) 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Johnston, JR. (US 2012/0259344 A1) in view of Phillips et al. (US 2023/0263556 A1) and in view of Johnston, JR. et al. (US 2016/0120580 A1).
Regarding claim 20, Johnston in view of Phillips discloses the distractor device of claim 18, except wherein the joint comprises a ball joint.
Johnston (580) teaches an analogous distraction device (Abstract) comprising a ball joint (ref. 8) connecting a housing (ref. 9) to a main shaft (ref. 3). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the joint of Johnston in view of Phillips to be a ball joint, as taught by Johnston (580) for the purpose of creating a secure, positive mechanical lock to prevent slippage (paragraph [0024]).
Allowable Subject Matter
Claims 21 - 25 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.
Claims 27 – 32 are allowed.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TESSA M MATTHEWS whose telephone number is (571)272-8817. The examiner can normally be reached M - F 8am - 1pm.
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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.
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/TESSA M MATTHEWS/Examiner, Art Unit 3773
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