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 .
Drawings
New corrected drawings (for Figures 1-7) in compliance with 37 CFR 1.121(d) are required in this application because a) the lines, numbers, figures and letters are not uniform, clean and well defined (of a generally poor quality) (37 CFR 1.84(I)). Applicant is advised to employ the services of a competent patent draftsperson outside the Office, as the U.S. Patent and Trademark Office no longer prepares new drawings. The corrected drawings are required in reply to the Office action to avoid abandonment of the application. The requirement for corrected drawings will not be held in abeyance.
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 1-3, 6, 9-10 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Weiman US 2021/0361443.
Regarding Claim 1, Weiman discloses an expandable spacer (Fig 1) comprising:
a terminal body defining a top groove (see Fig below) and a threaded terminal aperture (see Fig below, paragraph 76) which further defines a central axis (line “B-B” as seen in Fig 8a);
a driving member defining a driving aperture (see Fig below), a first top rail (tab #44, see Fig below) and a first bottom rail (not shown, see paragraph 74 where on lower side #30 there would also be a mating element similar to #38 and #40 which would also have a bottom rail/tab #44);
a bolt having both a headed portion (see Fig below) and a threaded portion (see Fig below, paragraph 86), the bolt being disposed within both the terminal body and the driving member (as seen in Fig 8b);
a top endplate defining a top endplate outer surface spaced apart from the central axis (see Fig below) and having both a top tongue disposed within the top groove (see Fig below) and a first top guide track (not shown in Fig 1 but seen in Fig 6b and see Fig below, paragraph 80 where the top and bottom endplates have similar configurations where the first top guide track has the same configuration and is opposite the first bottom guide track) in which the first top rail is disposed within (Fig 8c, see also paragraph 74 where the first top guide track is complementarily shaped to receive the first top rail), the first top guide track defining a first top ramp angle with respect to the central axis (as seen in Fig 6b, 8c, 9b); and
a bottom endplate having a first bottom guide track (see Fig below) in which the first bottom rail is disposed within (Fig 8c, see also paragraph 74 where the first bottom guide track is complementarily shaped to receive the first bottom rail),
wherein when the bolt is rotated, the headed portion of the bolt drives the top endplate along the first top ramp angle, increasing the space between the top endplate outer surface and the central axis (paragraph 96, as seen in Figs 8a-9c).
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Regarding Claim 2, Weiman discloses the terminal body further defines a bottom groove (see Fig below),
wherein the bottom endplate further defines a bottom endplate outer surface spaced apart from the central axis and having a bottom tongue disposed within the bottom groove (see Fig below, Fig 9c), and wherein the first bottom guide track further defines a first bottom ramp angle with respect to the central axis (as seen in Figs 8a-9c) such that when the bolt is rotated, the headed portion of the bolt drives the bottom endplate along the first bottom ramp angle, increasing the space between the bottom endplate outer surface and the central axis (paragraph 96, as seen in Figs 8a-9c).
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Regarding Claim 3, Weiman discloses the top groove is integral with the bottom groove (as seen in annotated Fig 5a above).
Regarding Claim 6, Weiman discloses the top endplate outer surface further defines an endplate plane (plane defined by the outer surface, see Fig 8a), wherein the endplate plane and the central axis define a plane angle (Fig 8a where the top endplate outer surface and endplate plane form an angle relative to the central axis “B-B”),
wherein the driving member further defines a second top rail (Fig 2, end of paragraph 74 where mating element #34 includes a tab/rail) spaced apart axial from the first top rail with respect to the central axis (Fig 2),
wherein the top endplate further defines a second top guide track (paragraph 85 where the mating elements of the driving member and top endplate are complimentary with each other and the, Fig 6b where mating element #94 would have a corresponding groove/track to receive the tab/rail of mating element #34) spaced apart axial from the first top guide track with respect to the central axis (Fig 1, 6b), in which the second top rail is disposed within the second top guide track, the second top guide track defining a second top ramp angle with respect to the central axis (as seen in Figs 8a-9c).
Regarding Claim 9, Weiman discloses the combination of the top endplate, the bottom endplate, and the driving member define a fluid channel generally perpendicular to the central axis (as seen in Fig 1, 2, 6a, 9a where the endplates have an opening #84 and the driving member has a cavity #84 such that together, they form a fluid channel).
Regarding Claim 10, Weiman discloses a washer (#116) configured to be disposed between the headed portion and the driving member (end of paragraph 86, Fig 8a, 8b).
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Weiman US 2021/0361443.
Weiman discloses the claimed invention as discussed above where the first top angle and the bottom top angle each have an absolute value (Figs 8a-9c) and the bolt is rotated, there is a rate of spatial increase between the top endplate outer surface and the central axis and a rate of spatial increase between the bottom endplate and the central axis (paragraph 96, Figs 8a-9c) but does not disclose an absolute value of first top ramp angle and the bottom ramp angle is the same such that when the bolt is rotated the rate of spatial increase between the top endplate outer surface and the central axis is the same as the rate of spatial increase between the bottom endplate and the central axis.
However, Weiman discloses that the top and bottom endplates have the same features (paragraph 80).
As such, it would have been obvious to one having ordinary skill in the art at a time before the effective filing date of the claimed invention to modify Weiman to have the first top angle and the bottom top angle to each have the same absolute value since such a configuration is already inferred. Furthermore, it would have also been obvious to one having ordinary skill in the art at a time before the effective filing date of the claimed invention to modify Weiman to have the absolute angle be the same since this provides one of only two finite possibilities for the absolute angle (either the same or different) to obtain predictable results of increase the spatial distance between the top and bottom end plates. See MPEP 2143 (I)(E). The examiner notes that since the absolute values are the same and the top and bottom endplates are mirror images of each other, that when the bolt is rotated the rate of spatial increase between the top endplate outer surface and the central axis is the same as the rate of spatial increase between the bottom endplate and the central axis.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Weiman US 2021/0361443.
Weiman discloses the claimed invention as discussed above where the first top angle and the bottom top angle each have an absolute value (Figs 8a-9c) and the bolt is rotated, there is a rate of spatial increase between the top endplate outer surface and the central axis and a rate of spatial increase between the bottom endplate and the central axis (paragraph 96, Figs 8a-9c) but does not disclose an absolute value of the first top ramp angle and the bottom ramp angle is not the same such that when the bolt is rotated the rate of spatial increase between the top endplate outer surface and the central axis is not the same as the rate of spatial increase between the bottom endplate and the central axis.
However, it would have also been obvious to one having ordinary skill in the art at a time before the effective filing date of the claimed invention to modify Weiman to have the absolute angle be the different since this provides one of only two finite possibilities for the absolute angle (either the same or different) to obtain predictable results of increase the spatial distance between the top and bottom end plates. See MPEP 2143 (I)(E). The examiner notes that since the absolute values are the different and the top and bottom endplates are mirror images of each other otherwise, that when the bolt is rotated the rate of spatial increase between the top endplate outer surface and the central axis is the different as the rate of spatial increase between the bottom endplate and the central axis.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Weiman US 2021/0361443.
Weiman discloses the claimed invention as discussed above where the first top ramp angle and the second top ramp angle have an absolute value (Figs 8a-9c) and when the bolt is rotated the space is expanded (paragraph 96, Fig 8a-8c) but does not disclose an absolute value of the first top ramp angle and the second top ramp angle is the same such that when the bolt is rotated the plane angle remains the same.
However, it would have also been obvious to one having ordinary skill in the art at a time before the effective filing date of the claimed invention to modify Weiman to have the absolute angle be the same since this provides one of only two finite possibilities for the absolute angle (either the same or different) to obtain predictable results of increase the spatial distance between the top and bottom end plates. See MPEP 2143 (I)(E). The examiner notes that since the absolute values are the same that when the bolt is rotated the plane angle remains the same.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Weiman US 2021/0361443.
Weiman discloses the claimed invention as discussed above where the first top ramp angle and the second top ramp angle have an absolute value (Figs 8a-9c) and when the bolt is rotated the space is expanded (paragraph 96, Fig 8a-8c) but does not disclose an absolute value of the first top ramp angle and the second top ramp angle is not the same such that when the bolt is rotated the plane angle does not remain the same.
However, it would have also been obvious to one having ordinary skill in the art at a time before the effective filing date of the claimed invention to modify Weiman to have the absolute angle be not be the same/different since this provides one of only two finite possibilities for the absolute angle (either the same or different) to obtain predictable results of increase the spatial distance between the top and bottom end plates. See MPEP 2143 (I)(E). The examiner notes that since the absolute values are not the same that when the bolt is rotated the plane angle does not remain the same.
Conclusion
See PTO-892 for art of cited interest, in particular other expandable spacers.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JAN CHRISTOPHER L MERENE whose telephone number is (571)270-5032. The examiner can normally be reached Mon-Fri 8:30 am - 6pm EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
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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/JAN CHRISTOPHER L MERENE/ Primary Examiner, Art Unit 3773
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