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 .
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.
Claims 25, 26, 28, 32, and 52 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Lemoine (U.S. Publication 2015/0201987).
Lemoine discloses a method of using a device comprising the steps of:
(claim 25) inserting a driver (14) through a lumen of a retaining sleeve (40) such that a tip formed at a distal most end of the driver interfaces with a drive feature formed on a shank of a bone screw assembly (50; for example see Figure 1 and Figure 5)
(claim 25) coupling the retaining sleeve to a receiver head (56) of the bone screw assembly (for example see Figure 5)
(claim 52) wherein coupling the retaining sleeve to the receiver head includes threading a distal end of the retaining sleeve into a threaded recess of the receiver head (see Figures 2A and 5)
(claim 25) coupling a driver adapter (12) to the driver such that a proximal portion of the driver (16) is received within a distal-facing cavity of the driver adapter and the driver adapter is locked against axial separation from the driver (paragraph 37)
(claim 25) rotating the driver adapter to impart corresponding rotation of the driver and the shank of the bone screw assembly (paragraph 59)
(claim 26) wherein rotation of the driver and the shank of the bone screw assembly is relative to the retaining sleeve (the driver and the shank rotated with, i.e. relative, to the sleeve)
(claim 28) locking the driver against axial separation of the retaining sleeve (paragraphs 59-60)
(claim 32) wherein the steps of coupling the retaining sleeve to the receiver head, inserting the driver through the lumen of the retaining sleeve, and coupling the driver adapter to the driver are performed outside a surgical field, i.e. outside of the patient while in the operating room (see paragraph 58; the driver assembly is coupled to the screw by the surgeon in the operating room before inserting into the patient)
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 29 and 30 are rejected under 35 U.S.C. 103 as being unpatentable over Lemoine (U.S. Publication 2015/0201987) in view of Kumar (U.S. Patent 8,100,916).
The invention of Lemoine discloses the method as claimed, see above, except for inserting the retaining sleeve through a lumen of a second sleeve prior to coupling the retaining sleeve to a receiver head. Kumar discloses the method of using a device comprising a driver (902), a retaining sleeve (904) coupled to a receiver head of a screw assembly, wherein the method further comprises inserting the retaining sleeve through a lumen of a second sleeve (906) prior to coupling the retaining sleeve to a receiver head (see Figure 9 and Figure 10) in order to protect nearby tissue while implanting the bone screw assembly. It would have been obvious to one having ordinary skill in the art at the time the invention was filed to perform the method of Lemoine further comprising the steps of inserting the retaining sleeve through a lumen of a second sleeve prior to coupling the retaining sleeve to a receiver head of the bone screw assembly in view of Kumar in order to protect nearby tissue while implanting the bone screw assembly.
Allowable Subject Matter
Claims 27, 31, 33, 45-51, and 53-55 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.
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.
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/NICHOLAS W WOODALL/Primary Examiner, Art Unit 3775
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