Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Response to Arguments
Applicant’s arguments with respect to claim(s) 1 - 9 have been considered but are moot because the new ground of rejection does not rely on any combination of references applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
The Double Patenting rejection is overcome.
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 pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1 - 9 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Jackson et al. (US 2010/0036433 A1) in view of Carcagno et al. (US 2010/0181762 A2) and in view of Jackson (US 2005/0182410 A1).
Regarding claim 1, Jackson discloses a bone anchor assembly (Abstract) comprising:
a receiver housing (Fig. 33, ref. 210’) including a pair of arms (paragraph [0129], Fig. 35, refs. 252’, 254’) and a channel between the arms for receiving an elongate rod (ref. 256’, Fig. 35), each of the pair of arms including an inner surface with a portion of a mating helically wound thread formed therein (paragraph [0129], ref. 262’) with a receiver load flank having a downwardly facing linear surface (see remarked Fig. 35 below);
a closure (paragraph [0127], ref. 218’) having a central axis (Fig. 34, ref. “E”), a cylindrical body (Fig. 34 shows the closure to be cylindrical) including a top end having a top surface, (Fig. 35, ref. 328’) a bottom end having a bottom surface opposite the top surface (Fig. 35, ref. 329’), a central internal drive structure extending into the top end (Fig. 35, ref. 336’), and an outer mating continuous helically wound thread formed thereon (Fig. 35, ref. 331’) and comprising a closure load flank having an upwardly facing linear loading surface (see remarked Fig. 35 below) extending radially outwardly from a curved corner surface at a root- loading juncture (see remarked Fig. 35) with a lower end of a root surface (see remarked Fig. 35), the upwardly facing linear loading surface having a slope angle sloping upwardly toward the top end of the cylindrical body (Fig. 35) or extending radially outward substantially perpendicular to the central axis, the outer mating continuous helically wound thread form further comprising a stab flank having a downwardly facing linear clearance surface (see remarked Fig. 35) extending radially outwardly from another curved corner surface at a root-stab juncture with an upper end of the root surface (see remarked Fig. 35), the downwardly facing linear clearance surface having a slope angle sloping upwardly toward the top end of the cylindrical body (Fig. 35), the outer mating continuous helically wound thread further comprising an inner thread height defined as a vertical thread thickness of the outer mating continuous helically wound thread between the root-loading juncture and the root-stab juncture (see remarked Fig. 35), a thread pitch defined as a distance from a location on the mating discontinuous helically wound thread to a same location on an adjacent thread, a thread crest having a cylindrical surface extending parallel with respect to the central axis of the closure (Fig. 35 shows the thread crest, or outer most surface of the thread extending parallel with respect to the central axis), and a thread depth defined as a horizontal distance between a vertical line for the thread thickness between the junctures thereof and the cylindrical surface on the thread crest (see remarked Fig. 35).
Jackson is silent regarding a ratio of the thread depth to the thread thickness is less than 1. It is noted that the images appear to support such a claim, but no specific values are given and the drawings are not disclosed as being to scale.
In addition, Jackson is silent regarding the thread crest of the closure is spaced apart from the helically wound thread in the receiver housing when the closure is rotatably tightened down within the receiver housing, wherein the assembly is configured to control outwardly splaying of the air of arms of the receiver housing relative to each other with an axial loading from the closure.
Carcagno discloses a thread (Abstract), in the related field of thread design, comprising a thread depth (paragraph [0030], Fig. 3, ref. 15) and a thread height (paragraph [0030], Fig. 3, ref. 17), wherein a ratio of the thread depth to the thread height is less than 1 (paragraph [0030] discloses the depth 15 is 1.27 mm and the height 17 is 2.53 mm, thus having a ratio of 0.5 which is less than 1). It would have been obvious to one having ordinary skill in the art at the time the invention was made to modify the thread depth and height such that the ratio of depth to height is less than 1, as taught by Carcagno, for the purpose of super heigh torque performance (Carcagno, paragraph [0002]) and reduced chance of stripping the threads and over-stressing the threads.
Jackson teaches an analogous assembly (Abstract) comprising analogous thread formed on a closure and receiver (for example, see Fig. 3), wherein the thread crest of the closure is spaced apart from the helically wound thread in the receiver housing when the closure is rotatably tightened down within the receiver housing (see Figs. 6 – 7 which show an similar thread form having clearances on the crest and stab surfaces), wherein the assembly is configured to control outwardly splaying of the air of arms of the receiver housing relative to each other with an axial loading from the closure (paragraph [0061] discloses limiting splaying, thus controlling it). It would have been obvious to one having ordinary skill in the art at the time the invention was made to modify the threads on the receiver and closure such that the thread crest of the closure is spaced apart from the helically wound thread in the receiver housing when the closure is rotatably tightened down within the receiver housing, wherein the assembly is configured to control outwardly splaying of the air of arms of the receiver housing relative to each other with an axial loading from the closure, for the purpose of better clamping the rod to the anchor member (Jackson 2005, Abstract).
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Regarding claim 2, Jackson in view of Carcagno and in view of Jackson discloses the bone anchor assembly of claim 1, except wherein the thread depth ranges between about 0.4 mm to about 0.8 mm and the thread pitch ranges from about 1.0 mm to about 1.6 mm. It would have been obvious to one having ordinary skill in the art at the time the invention was made to construct the thread of Jackson in view of Carcagno and in view of Jackson such that the thread depth ranges between about 0.4 mm to about 0.8 mm and the thread pitch ranges from about 1.0 mm to about 1.6 mm which results in a shallow thread for better torque performance and decreased chance of stripping, and 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.
Regarding claim 3, Jackson in view of Carcagno and in view of Jackson discloses the bone anchor assembly of claim 1, wherein each of the portions of the mating helically wound thread in the receiver housing includes an upwardly facing stab flank and an inwardly facing root surface spaced apart from the stab flank and cylindrical surface on the thread crest of the closure, respectively, when the elongate rod is locked in the channel by the closure (Jackson 2005, Figs. 6 – 7).
Regarding claim 4, Jackson in view of Carcagno and in view of Jackson discloses the bone anchor assembly of claim 1, wherein the root surface extends between the root- loading juncture and the root-stab juncture (Jackson 2010, Fig. 35).
Regarding claim 5, Jackson in view of Carcagno and in view of Jackson discloses the bone anchor assembly of claim 1, wherein the root surface is parallel with respect to the central axis of the closure and helically wound around the cylindrical body of the closure (Jackson 2010, Fig. 35).
Regarding claim 6, Jackson in view of Carcagno and in view of Jackson discloses the bone anchor assembly of claim 1, wherein the outer mating continuous helically wound thread further comprises a toe defined between the upwardly facing linear surface of the closure load flank and the cylindrical surface on the thread crest, the toe angling upward from the upwardly facing linear surface of the closure load flank (see remarked Fig. 35 below of Jackson 2010).
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Regarding claim 7, Jackson in view of Carcagno and in view of Jackson discloses the bone anchor assembly of claim 1, wherein the bottom surface of the bottom end of the closure end includes a central nub protruding downward therefrom (Jackson 2020, Fig. 35, ref. 333’).
Regarding claim 8, Jackson in view of Carcagno and in view of Jackson discloses the bone anchor assembly of claim 1, further comprising a shank configured to be received in the receiver housing (Jackson 2010, Fig. 34, 201’).
Regarding claim 9, Jackson in view of Carcagno and in view of Jackson discloses the bone anchor assembly of claim 1, wherein the curved corner surfaces of the root- loading juncture and the root-stab juncture are radiused (Fig. 35 of Jackson 2010 shows the junctures as a rounded edge or corner, thus being radiused).
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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