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)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 16-18 and 20 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Zakelj (US 2021/0401586).
The applied reference has a common assignee and inventor with the instant application. Based upon the earlier effectively filed date of the reference, it constitutes prior art under 35 U.S.C. 102(a)(2). This rejection under 35 U.S.C. 102(a)(2) might be overcome by: (1) a showing under 37 CFR 1.130(a) that the subject matter disclosed in the reference was obtained directly or indirectly from the inventor or a joint inventor of this application and is thus not prior art in accordance with 35 U.S.C. 102(b)(2)(A); (2) a showing under 37 CFR 1.130(b) of a prior public disclosure under 35 U.S.C. 102(b)(2)(B) if the same invention is not being claimed; or (3) a statement pursuant to 35 U.S.C. 102(b)(2)(C) establishing that, not later than the effective filing date of the claimed invention, the subject matter disclosed in the reference and the claimed invention were either owned by the same person or subject to an obligation of assignment to the same person or subject to a joint research agreement.
Regarding claim 16, Zakelj discloses an expandable implant comprising a lower support (18); an upper support (20) movably coupled to the lower support, the upper support comprising a first surface (202) configured to engage bone and a control aperture (see figures below) defined by the upper support and extending through the first surface (figure 10); a control shaft (166) rotatably coupled to the lower support, wherein the control shaft includes a head (167) configured to receive a tool (¶38), wherein manipulation of the control shaft causes relative movement between the upper support and the lower support (¶38); a base member (164) coupled to the control shaft (¶39); a pivot member (162, ¶40) coupled to the base member and sliding received in the control aperture (¶37, the rotation is a form of sliding); a first pivot pin (“right” 12, figure 8) extending through a first side of the upper support and into the lower support (via “right” 188, 212); and a second pivot pin (“left” 12, figure 8) extending through a second side of the upper support opposite the first side of the upper support and into the lower support (via “left” 188, 212).
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Regarding claim 17, Zakelj discloses the control shaft is translationally fixed relative to the lower support (¶41, ¶44). Regarding claim 18, Zakelj discloses the expandable implant defines a cavity (30/32) providing access to an interior of the expandable implant (figures 2-3). Regarding claim 20, Zakelj discloses the base member includes a flat bottom surface (see figure below) that slidingly engages a second surface (see figure below) of the lower support (18).
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Allowable Subject Matter
Claims 1-15 are allowed.
Claim 19 is 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.
The following is an examiner’s statement of reasons for allowance: None of the cited art either alone or in combination teach or discloses all the elements of the indicated claims. Zakelj teaches all the structures and functions of claims 1-85 with the exception of “translation of the base member along the control shaft causes a first ramp surface of the first pivot member to engage a ramp surface defining the control aperture to move the first pivot member within the control aperture”. The pivot member of Zakelj does not have a ramp surface which engage a ramp surface of the control aperture which interact to move the pivot member within the control aperture. Instead, there is a pin and slot relationship and the pivot member rotates around pin 14 to move the supports away from one another. The same rationale applies to claims 9-15 where the language only changes in that interior ramped surfaces of the first support engage first and second ramp surface of the pivot member.
Blain (US 12,433,763) teaches the use of surfaces but they are not ramped surfaces and the separation of the support members does not change the angle between the first and second supports. Michelson (US 6,478,823) teaches the engagement and movement of ramped surfaces, but the absence of the first and second support members being movable relative to one another to adjust the angle between them. Biedermann et al. (US 6,176,882) teaches all the limitations with the exception of the pivot member moving within the control aperture and the pivot member being rotatably coupled to the base member as required by claims 1 and 9.
Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MATTHEW JAMES LAWSON whose telephone number is (571)270-7375. The examiner can normally be reached Mon - Fri 6:30-3:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Anita Coupe can be reached at 571-270-3614. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MATTHEW J LAWSON/Primary Examiner, Art Unit 3619
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