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 .
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the claims at issue are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); and In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on a nonstatutory double patenting ground provided the reference application or patent either is shown to be commonly owned with this application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
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Claim(s) 23, 27, 28, 32, 37 and 38 is/are rejected on the ground of nonstatutory double patenting as being anticipated by claim(s) 1-22 of U.S. Patent No. 12324610. Although the claims at issue are not identical, they are not patentably distinct from each other because the difference between the application claims and the patent claims lies in the fact that the patent claims include many more elements and are thus much more specific as shown below (note that underlined and/or bolded sections indicate comparable elements):
Invention: 19/202550
US Patent 12324610
23. A lever reducer system comprising: a first tower; a second tower; and a lever reducer comprising a base, a fulcrum, and a swivel, wherein the fulcrum is configured to be coupled to the first tower, wherein the swivel is configured to be coupled to the second tower, wherein as a proximal portion of the base proximal to the fulcrum is lowered, a distal portion of the base distal to the fulcrum raises to lift the second tower, wherein the swivel is configured to rotate relative to the distal portion of the base without translation.
Claims 1-14:
1. A lever reducer system comprising: a first tower comprising a longitudinal axis; a second tower; and a lever reducer configured to couple to the first tower and the second tower, wherein the lever reducer comprises a handle, wherein the lever reducer comprises a fulcrum configured to be coupled to the first tower by lowering the fulcrum at least partially into the first tower along the longitudinal axis, wherein the lever reducer comprises a swivel configured to be coupled to the second tower, wherein the handle is on a first side of the fulcrum and the swivel is on a second side of the fulcrum, wherein the lever reducer is configured to pivot the lever reducer about the fulcrum to vertically lift the second tower while the first tower remains stationary when a force is applied to the handle, wherein the swivel comprises a pin that defines a hinge, wherein the hinge and the fulcrum are separated by a distance that is maintained as the second tower lifts such that the motion of the second tower is mostly vertical.
24. The lever reducer system of claim 23, wherein the lever reducer further comprises a handle.
Claims 1-14, see bolded section of claim 1 above
25. The lever reducer system of claim 24, wherein the handle is coupled to the proximal portion of the base.
26. The lever reducer system of claim 24, wherein the handle is angled relative to the base.
27. The lever reducer system of claim 23, wherein the fulcrum is configured to rotate relative to the base.
4. The lever reducer system of Claim 1, wherein the fulcrum is configured
to rotate relative to a base of the lever reducer.
28. The lever reducer system of claim 23, wherein the fulcrum is configured to translate relative to the base.
3. The lever reducer system of Claim 1, wherein the fulcrum is configured
to translate relative to a base of the lever reducer.
29. The lever reducer system of claim 23, wherein an engagement feature is configured to allow rotational motion of the swivel in a first direction and prevent rotational motion of the swivel in a second direction, opposite the first direction.
30. The lever reducer system of claim 29, wherein the engagement feature is configured to allow clockwise rotation of the swivel but prevent counterclockwise rotation of the swivel.
31. The lever reducer system of claim 29, wherein the engagement feature comprises a ratchet.
32. The lever reducer system of claim 23, wherein the swivel is configured to be coupled to an outer keyed surface of the second tower.
14. The lever reducer system of claim 1, wherein the second tower comprises a keyed surface configured to engage the swivel.
33. The lever reducer system of claim 23, wherein a position of the swivel relative to the fulcrum is configured to allow for mostly vertical motion of the second tower.
Claims 1-14, see bolded section of claim 1 above
34. The lever reducer system of claim 23, wherein the swivel comprises one or more gears.
35. The lever reducer system of claim 23, wherein a distance between a pivot point of the lever reducer and a pin of the swivel is constant during movement of the second tower.
36. The lever reducer system of claim 23, wherein the fulcrum comprises a tapered end configured to be inserted into the first tower.
37. A method of using a lever reducer system comprising: coupling a first tower to a first vertebra; coupling a second tower to a second vertebra; and coupling a lever reducer to the first tower and the second tower, wherein the lever reducer comprises a base, a fulcrum, and a swivel, wherein the fulcrum is coupled to the first tower, wherein the swivel is coupled to the second tower, lowering a proximal portion of the base proximal to the fulcrum such that a distal portion of the base distal to the fulcrum raises to lift the second tower, wherein the swivel rotates relative to the distal portion of the base without translation.
Claims 15-22:
15. A method of using a lever reducer system comprising: coupling a first tower to a first vertebra, wherein the first tower comprises a
longitudinal axis; coupling a second tower to a second vertebra; coupling a lever reducer to the first tower and the second tower by coupling a fulcrum of the lever reducer to the first tower by lowering the fulcrum at least partially into the first tower along the longitudinal axis and coupling a swivel of the lever reducer to the second tower, wherein the lever reducer comprises a handle, wherein the handle is on a first side of the fulcrum and the swivel is on a second side of the fulcrum, wherein the swivel comprises a pin that defines a hinge; and applying a force to the handle of the lever reducer to pivot the lever reducer about the fulcrum to vertically lift the second tower while the first tower remains stationary, wherein the hinge and the fulcrum are separated by a distance that is maintained as the second tower lifts such that the motion of the second tower is mostly vertical.
38. The method of claim 37, wherein the lever reducer lifts a vertebra.
Claims 15-22, see bolded sections of claim 15 above
39. The method of claim 37, wherein the lever reducer raises a fastener such that a rod is seated within a head of the fastener.
40. The method of claim 37, wherein the fulcrum rotates relative to the base.
41. The method of claim 37, wherein the fulcrum translates relative to the base.
42. The method of claim 37, wherein the second tower is gripped by the swivel without obstructing a lumen of the second tower.
Thus, the invention of US Patent 12324610, claims 1-22, respectively, are in effect a “species” of the “generic” invention of the application claims. It has been held that the generic invention is “anticipated” by the “species”. See In re Goodman, 29 USPQ2d 2010 (Fed. Cir. 1993). Since the application claims are anticipated by the patent claims, they are not patentably distinct from the patent claims.
Claim Rejections - 35 USC § 102
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) 23-28, 32, 33, 35 and 37-42 is/are rejected under 35 U.S.C. 102a1 as being anticipated by King (US 20100030283).
With respect to claim 23, King discloses a lever reducer system (e.g., see fig. 6, 18 below) comprising: a first tower (e.g., 170, note that shaft 340 is compatible with extender sleeve 170, see para. 96 and fig. 6 and fig.18 below); a second tower (e.g., extender sleeve 170 over bone fastener assembly 102’, note that in fig. 18, this 170 is not visible as it is disposed within tube 186 of counter torque assembly 800, see para. 95); and a lever reducer (600) comprising a base (e.g. 330), a fulcrum (shaft 340 connected to handle 330), and a swivel (note that there are several elements that can individually be interpreted as the swivel: either at 670- see fig. 6 below, at 470- see fig. 4 below or reducer tube 313- see fig. 6 below), wherein the fulcrum is configured to be coupled to the first tower (see fig. 18 below), wherein the swivel is configured to be coupled to the second tower (see fig. 18 below), wherein as a proximal portion of the base proximal to the fulcrum is lowered, a distal portion of the base distal to the fulcrum raises to lift the second tower (see fig. 18 below and note annotated arrow and arrow 291), wherein the swivel is configured to rotate relative to the distal portion of the base without translation (see para. 58).
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As for claim 24, King further discloses the lever reducer system of claim 23, wherein the lever reducer further comprises a handle (320, see fig. 6, 18 above).
As for claim 25, King further discloses the lever reducer system of claim 24, wherein the handle is coupled (though not directly attached) to the proximal portion of the base (see fig. 6, 18 above and note that all the elements are coupled together to form a single unit).
As for claim 26, King further discloses the lever reducer system of claim 24, wherein the handle is angled relative to the base (see fig. 18 above).
As for claim 27, King further discloses the lever reducer system of claim 23, wherein the fulcrum is configured to rotate relative to the base (see fig. 6 above and note shaft 340 rotates relative to a base of the lever reducer comprising 320 and channel 645).
As for claim 28, King further discloses the lever reducer system of claim 23, wherein the fulcrum is configured to translate relative to the base (see fig. 6 above, para. 70, note shaft 340 and common handle 330 can translate within channel 645, and channel 645 is at a base of the lever reducer along with the distal portion of compressor handle).
As for claim 32, King further discloses the lever reducer system of claim 23, wherein the swivel (313) is configured to be coupled to an outer keyed surface of the second tower (note that this limitation is not positively recited but this device may perform this function if one so desires).
As for claim 33, King further discloses the lever reducer system of claim 23, wherein a position (as depicted in fig. 18 above) of the swivel (313) relative to the fulcrum is configured to allow for mostly vertical motion of the second tower (see fig. 18 above and note arrow 291).
As for claim 35, King further discloses the lever reducer system of claim 23, wherein a distance between a pivot point (at 345) of the lever reducer and a pin (locking pin, see para. 64) of the swivel is constant during movement of the second tower (see fig. 4 above).
With respect to claim 37, King discloses a method of using a lever reducer system (e.g., 600 with 102, 102’) comprising: coupling a first tower (170) to a first vertebra (see para. 78); coupling a second tower (170) to a second vertebra (see para. 95); and coupling a lever reducer (600) to the first tower and the second tower (see fig. 4, 6, 18 above), wherein the lever reducer comprises a base (e.g., at 645), a fulcrum (340), and a swivel (e.g., at any of 470, 670, 313), wherein the fulcrum is coupled to the first tower (see fig. 18 above), wherein the swivel is coupled to the second tower (see fig. 18 above note that all of these elements are coupled together to constitute the system/a combined unit), lowering a proximal portion of the base proximal to the fulcrum such that a distal portion of the base distal to the fulcrum raises to lift the second tower (see para. 61), wherein the swivel rotates relative to the distal portion of the base without translation (see fig. 18 above).
As for claim 38, King further discloses the method of claim 37, wherein the lever reducer lifts a vertebra (see para. 85)
As for claim 39, King further discloses the method of claim 37, wherein the lever reducer raises a fastener (e.g., 108) such that a rod (e.g., 104) is seated within a head of the fastener (see fig. 15).
As for claim 40, King further discloses the method of claim 37, wherein the fulcrum rotates relative to the base (see fig. 6, 18 above, para. 61).
As for claim 41, King further discloses the method of claim 37, wherein the fulcrum translates relative to the base (see para. 70).
As for claim 42, King further discloses the method of claim 37, wherein the second tower is gripped by the swivel (313) without obstructing a lumen of the second tower (see para. 96 and fig. 18 above).
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.
Claim(s) 29-31 and 34 is/are rejected under 35 U.S.C. 103 as being unpatentable over King (US 20100030283), as applied to claim 23 above, in view of Arlet (US 20140058450).
As for claims 29-31 and 34, King further teaches wherein an engagement feature (e.g., locking mechanism of knob 670, see para. 70) is configured to allow rotational motion of the swivel in a first direction; wherein the engagement feature is configured to allow clockwise rotation of the swivel (see para. 70).
King does not appear to teach wherein the engagement feature prevents rotational motion of the swivel in a second direction, opposite the first direction; prevents counterclockwise rotation of the swivel; wherein the engagement feature comprises a ratchet; and wherein the swivel comprises one or more gears.
Arlet, also drawn to spinal correction systems, teaches the use of a ratchet gear engagement feature (e.g., cooperating teeth 48) on a swivel (e.g., knob 22) provides incremental rotation of the swivel (see para. 46) in order to allow the user fine control of the rotation of the swivel to set the swivel in the desired orientation (see para. 46).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify King, as a matter of engineering design choice, wherein the engagement feature prevents rotational motion of the swivel in a second direction, opposite the first direction; prevents counterclockwise rotation of the swivel; wherein the engagement feature comprises a ratchet; and wherein the swivel comprises one or more gears, in view of Arlet, in order to allow the user fine control of the rotation of the swivel to set the swivel in the desired orientation.
Claim(s) 36 is/are rejected under 35 U.S.C. 103 as being unpatentable over King (US 20100030283).
With respect to claim 36, King discloses a lever reducer system (e.g., see fig. 6, 18 below) comprising: a first tower (e.g., 170, note that shaft 340 is compatible with extender sleeve 170, see para. 96 and fig. 6 and fig.18 below); a second tower (e.g., extender sleeve 170 over bone fastener assembly 102’, note that in fig. 18, this 170 is not visible as it is disposed within tube 186 of counter torque assembly 800, see para. 95); and a lever reducer (600) comprising a base (e.g. 330), a fulcrum (shaft 340 connected to handle 330), and a swivel (note that there are several elements that can individually be interpreted as the swivel: either at 670- see fig. 6 below, at 470- see fig. 4 below or reducer tube 313- see fig. 6 below), wherein the fulcrum is configured to be coupled to the first tower (see fig. 18 below), wherein the swivel is configured to be coupled to the second tower (see fig. 18 below), wherein as a proximal portion of the base proximal to the fulcrum is lowered, a distal portion of the base distal to the fulcrum raises to lift the second tower (see fig. 18 below and note annotated arrow and arrow 291), wherein the swivel is configured to rotate relative to the distal portion of the base without translation (see para. 58).
King does not appear to teach wherein the fulcrum (340) comprises a tapered end configured to be inserted into the first tower.
King teaches another embodiment including a fulcrum (2140) that comprises a tapered end (e.g., see fig. 21, 22a, 22b, 26 28) configured to be inserted into the first tower (170) (see para. 107) as an alternate equivalent shape of the uniform distal end of the fulcrum that will provide the same function of easy insertion into the first tower.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify King wherein the fulcrum (340) comprises a tapered end configured to be inserted into the first tower, in view of King (as shown in figures 21, 22a, 22b, 26 and 28), as a matter of engineering design choice, as an alternate equivalent shape of the uniform distal end of the fulcrum that will provide the same function of easy insertion into the first tower.
Conclusion
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/TARA ROSE E CARTER/ Examiner, Art Unit 3773 /EDUARDO C ROBERT/ Supervisory Patent Examiner, Art Unit 3773
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