,i
`
`" From§‘l«lAHT|N & FERRARO LLP
`
`3102862795
`
`12/05/2011 15:44
`
`#321 P.002/015
`
`RECEIVED
`CENTRAL FAX CENTER
`DEC 0 5 2011
`'
`
`Attorney Docket No. 101.005;-\c}‘:§-20%
`Customer No. 22882
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`In re Application of:
`Gary Karlin Michelson
`Serial No.: 13/235,998
`Filed: September 19, 2011
`For. ANATOMIC SPINAL IMPLANT
`HAVING ANATOMIC BEARING
`
`SURFACES (as amended)
`
`\./st»/5/»/\a§4
`
`Confirmation No.: 8673
`
`Group Art Unit: 3733
`
`Mail Stop MISSING PARTS
`Commissioner for Patents
`P.O. Box 1450
`
`Alexandria, VA 22313-1450
`
`Sir:
`
`AMENDMENT
`
`In response to the Notice ‘to File Corrected Application Papers dated October 3,
`
`2011 and prior to the examination of the above-identified application. the following
`
`amendments and remarks are submitted:
`
`Amendments to the Titl begin on page 2 of this paper.
`
`Amendments to the Specification begin on page 3 of this paper.
`
`Amendments to the Abstract begin on page 4 of this paper.
`
`Amendments to the Drawings begin on page 5 of this paper and Includes an attached
`
`new sheet.
`
`Remarks begin on page 6 of this paper.
`
`An Appendix including a replacement drawing sheet and new sheet is attached
`
`following page 6 of this paper.
`
`Amendment 12-5-2011.doc
`
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`rom:‘MART|N & FERRARO LLP
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`3102862795
`
`.
`
`12/05/2011 15:44
`
`#321 P.003/015
`
`RECENED
`CENTRAL FAX CENTER
`0 5 2011
`
`I‘
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`t
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`N
`I
`Amendmerl1At‘:iF;:lt{<:£¢l1l‘;'eoecr)nt1>2r,2§52t9)$$
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`.
`
`,
`
`Amendments to the Title:
`
`Please replace the title of the invention with the following title:
`
`— ANATOMIC SPINAL lMPLANT HAVING ANATOMIC BEARING
`
`SURFACES —.
`
`‘
`
`PAGE 3/15 " RCVD AT 1215/2011 6:50:26 PM [Eastern Standard Time] " SVR:W-PTOFAX-002/21 ‘ DNlS:2738300 ‘ CSlD:3102862795 ' DURATION (mm-ss):06-35
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`2
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`" From:"llARTlN 8: FERRARO LLP
`
`3102862795
`
`12/05/2011 15:45
`
`#321 P.004/015
`
`RECEIVED
`CENTRAL FAX CENTER
`
`DEC 0 5 2011
`
`Ap 1'
`tie N .13/235,993
`Amendment fa:-Z Dreizcetlfnber 5, 2011
`
`Amendments to the Sggcification:
`
`Please add the followlngparagraphs after the first full paragraph on page 14:
`
`— As shown in Figs. 13 and 14, the implant 300 includes a first terminal
`
`part defining a first bearing surface adapted to bear against an endplate of the
`
`vertebrae V1, and an opposite second bearing surface adapted to bear against
`
`an endplate of the vertebrae V2. The implant 300 also includes a second
`
`terminal part opposite the first terminal part. The second terminal part defines a
`
`third bearing surface adapted to bear against the endplate of the vertebrae V1
`
`and a fourth bearing surface adapted to bear against the endplate of the
`
`vertebrae V2.
`
`in addition to the first and second terminal parts. the implant 300 also
`includes a first side extending between the first terminal part and the second
`
`terminal part. and a second side opposite the first side and extending between
`
`the first terminal part and the second terminal part. --—.
`
`PAGE 4I15 ‘ RCVD AT 12l5I20‘l1 6:50:26 PM [Eastern standard Time] ' SVR:W-PTOFAX-009121 ‘ DNlS:2738300 ‘ CSlD:3102862795 ‘ DURATION (mm-ss):06-35
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`From§l:lART|N & FERRARO LLP
`
`3102862795
`
`12/05/2011 15:45
`
`#321 P.O05/015
`
`RECENE
`CENTRAL FAX CENTER
`0 5
`
`Application No. 13/235,998
`Amendment dated December 5. 201 1
`
`Amendments to the Abstract:
`
`Please replace the “ABSTRACT” on page 25 with the following new Abstract:
`— The present application is directed to an interbody spinal implant having.
`
`a structural configuration that provides for maintaining the normal anatomic
`
`relationship of two adjacent vertebrae of the spine. The spinal implant is sized to
`
`fit within the disc space created by the removal of disc material between two
`
`adjacent vertebrae and conform wholly, or in part. to the disc space created.
`
`The spinal implant of the present invention has first and second sides with upper
`
`and lower bearing surfaces that form a support structure for bearing against the
`
`end plates of the adjacent vertebrae. The upper and lower bearing surfaces of
`
`the first and second sides are shaped to create an anatomic fit with the
`
`endplates of the adjacent vertebrae. —.
`
`PAGE 5/15 - RCVD AT 1215:2011 6:50:26 PM [Eastern Standard Time] - SVR:W-PT0FAX-002I21 ‘ oms:213s3oo = CSID:3102862795 - oummou (mm-ss):06-35
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`4
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`-4—
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`4
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`
`-- From§iiARTIN & FERRARO LLP
`
`3102862795
`
`12/05/2011 15:45
`
`#321 P-005/015
`
`__ RECEIVED
`C:NTFiAL FAX CENTER
`
`DEC 0 5 2011
`
`' Application No. 13/235,998
`Amendment dated December 5. 2011
`
`Amendments to the Drawings:
`
`The attached sheets of drawings include replacement sheet 5/11 (containing
`
`Figs. 13 and 14) and new sheet 11/11 (containing Figs. 15-17). Replacement sheet
`
`5/11 and new sheet 11/11 replace sheet 5/10 (containing original Figs. 13-17).
`Replacement sheet 5/11 incorporates annotations to original Figs. 13 and 14
`
`indicating the location of inherent features of the implant 300. These inherent features
`
`include a first terminal part defining first and second bearing surfaces, a second '
`
`terminal part defining third and fourth bearing surfaces, a first side, and a second side
`
`of the-‘implant 300. New sheet 11/11 includes original Figs. 1 5-17 which (due to space
`
`considerations) were moved from original sheet 5/10.
`
`Attachment: Replacement sheet 5/11 containing Figs. 13 and 14, and new sheet 11/11
`
`containing Figs. 15-17.
`
`PAGE 6/15 ‘ RCVD AT 12/5/2011 6'50'26 PM [Eastern Standard Time)‘ SVR:W-PTOFAX-002/21 ‘ DNIS:2738300 ' CS|D:3102862795 ‘ DURATION (mm-ss):o6<t5
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`.
`
`From':HART|N & FERHARU LLP
`
`3102862795
`
`12/05/2011 15:45
`
`#321 P.007/015
`
`Application No. 13/235,998
`Amendment dated December 5. 2011
`
`REMARKS
`
`Applicant amended the drawings to annotate inherent features present in original
`
`Figs. 13 and 14, and Applicant amended the specification to discuss those inherent
`
`In addition. Applicant amended the title and abstract to correspond generally
`features.
`to the claimed invention.
`
`Entry and consideration of this Amendment prior to the examination of the
`
`above—ldentified application is respectfully requested.
`
`if there are any fees due in connection with the filing of this Amendment. please
`
`charge the fee to our Deposit Account No. 50-3726.
`
`Respectfully submitted.
`
`MARTIN & FERRARO, LLP
`
`
`
`B .
`
`Thomas H. Mart!
`
`Registration No. 34,383
`
`Date: December 5, 2011
`
`1557 Lake 0’Pines Street. NE
`Hartvllle, Ohio 44632
`Telephone: (330) 877-0700
`Facsimile: (330)877-2030
`
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`6
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`6
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`

`
`' From:'MARTlN & FERRAHO LLP
`
`3102862795
`
`12/05/2011 15:46
`
`#321 P.008/015
`
`Application No. 13f235,998
`Amendment dated December 5. 2011
`REPLACEMENT SHEET
`
`5/11'
`F1397
`BEARING
`F SUR/54$
`
`312
`
`
`
`TERMINAL
`
`HRS].
`
`PART
`
`330
`
`SECOND
`TERMIIWIL
`PART
`
`Faugm
`354/21/vs
`SURFACE
`
`FIG. 14
`
`SECOND
`3” BEARING
`SURFACE
`
`320
`
`TERMINAI.
`
`5105
`
`PAGE 8/15 ‘ RCVD AT ‘l2I5I2011 6:50:26 PM [Eastern Standard Tlme] " SVR:W«PTOFAX-OO2!21 ‘ DNlS:2738300 ‘ CSlD:3102862795 " DURATION (mm-ss):08<i5
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`1 From:'MART|N & FERRARO LLP
`
`3102862795
`
`12/05/2011 15:46
`
`#321 P.009/015
`
`Application No. 13/235,998
`Amendment dated December 5, 201 1
`NEW SHEET
`
`11/11
`
`23
`
`314
`
`
`
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`PAGE 9/15 ‘ RCVD AT 12I5I2011 6:50:26 PM [Eastern Standard Time] ’ SVR:W-PTOFAX-002121 ‘ DNlS:2738300 ‘ CSID:3102362795 ‘ DURATION (mm-ss):06<i5
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`
`From3llARTlN & FERRARO LLP
`
`3102862795
`
`12/05/2011 15:48
`
`#321 P.0l0/015
`
`FIECEI
`CENTRAL FA)\(/EQNTER
`DEC 0 5 ZUII
`
`Attorney Docket No.101.00;'$-GEONOE
`Customer No. 22882
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`Confirmation No.1 8673
`
`Group Art Unit: 3733
`Examiner: Not Assigned
`
`)
`
`i
`)
`
`) )
`
`In re Application of:
`Gary Kariin Michelson
`Serial No.: 13/235,998
`Filed: September 19, 2011
`For: LORDOTIC INTERBODY SPINAL
`FUSION IMPLANTS
`
`Mail Stop AMENDMENT
`Commissioner for Patents
`P.0. Box 1450
`
`Alexandria, VA 22313-1450
`
`Sir:
`
`INFORMATION DISCLOSURE STATEMENT UNDER 37 C.F.R. § 1.97|b)
`
`Pursuant to 37 C.F.R. §§ 1.56 and 1.97(b), Applicant brings to the attention of
`
`the Examiner the documents listed on the attached Fonn PTO/SBl08. This information
`
`. Disclosure Statement is being filed within three months of the filing date of the above-
`referenced application.
`
`Copies of the listed non—U.S. patent documents were previously submitted in a
`
`prior application. Ser. No. 12/807,489, filed September 7, 2010. now U.S. Patent No.
`
`8,021,430; which is a continuation of application Ser. No. 10/926,766, filed August 26,
`
`2004. now U.S. Pat. No. 7,789,914; which is a continuation of application Ser. No.
`
`10/237,751, filed Sep. 9, 2002; which is a continuation of application Ser. No.
`
`09/412,090, filed Oct. 4, 1999, now U.S. Pat. No. 6,447,544; which is a continuation of
`- application Ser. No. 08/813,283, filed Mar. 10, 1997, now U.S. Pat. No. 6,302,914;
`
`which is a divisional of application Ser. No. 08/482,146. filed Jun. 7, 1995, now U.S.
`
`Pat. No. 5,609,635. upon which Applicant relies for the benefits provided in 35 U.S.C.
`
`§ 120. Applicant respectfully requests that the Examiner consider the listed documents
`
`and indicate that they were considered by making appropriate notations on the attached
`
`form.
`
`pace 10:15 ‘ ncvn AT 1215/2011 6:50:26 pm [Eastern standard Time] - SVR:W-PTOFAX-002121 - DNlS:2738:i00 1* csm::i1o2aa2795 = DURATION (mm-ss):os-as
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`9
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`9
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`

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`' From':l-lARTlN & FERRARO LLP
`
`3102862795
`
`12/05/2011 15:47
`
`#321 P.0l1/015
`
`This submission does not represent that a search has been made or that no
`better art exists and does not constitute an admission that each or all of the listed
`
`documents are material or constitute "prior art.‘ If the Examiner applies any of the
`
`documents as prior art against any claim in the application and Applicant determines
`
`that the cited documents do not constitute "prior art" under United States law, Applicant
`
`reserves the right to present to the office the relevant facts and law regarding the
`
`appropriate status of such documents.
`
`Applicant further reserves the right to take appropriate action to establish the
`
`patentability of the disclosed Invention over the listed documents. should one or more of
`
`the documents be applied against the claims of the present application.
`
`If there is any fee due in connection with the filing of this Statement, please
`
`charge the fee to our Deposit Account No. 50-3726.
`
`Respectfully submitted.
`
`MARTIN & FERRARO, LLP
`
`Date:
`
`
`December 5 201 1
`
`I"
`
`By:
`
`Thomas H. Martin
`
`Registration No. 34,383
`
`1557 Lake O’Pines Street, NE
`Hartville, Ohio 44632
`Telephone: (330)877-0700
`Facsimile: (330) 877-2030
`
`use 11/15 - RCVD AT 1215:2011 6:50:26 PM [Eastern Standard Time] - SVR:W-PTOFAX-002121 - oms:273a:mo * CSlD:3102862795 - oummou (mm-ss):0€<i5
`
`10
`
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`
`10
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`'
`_
`'
`From:HART|N & FERRARO LLP
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`F?EU1:wL:D
`31o28627fiNTRALFAXCEfl7I<!§R2011 15147
`
`#33‘ P-°‘3’°‘5
`
`DEC 0 5 2011
`
`Substitute for FORM PTO-1449
`
`INFORMATION DISCLOSURE CITATION
`IN AN APPLlcA11ON
`
`Attomay Docket Number
`101.0051 -06000
`
`
`
`Applicant
`Gary Karlin Michelson
`
`.
`
`OMB 0651-0031 '
`
`customer No.
`22882
`
`APP"l>8fl°fl NIWBOI‘
`131235.998
`
`(Use several sheets If necessary)
`.
`sheet; of 5
`
`Flllng Date
`September 19, 2011
`
`Group Art Unlt Examiner
`3733
`MA
`
`U5. PATENT DOCUMENTS
`
`mm: suscuxss
`DOCUMENTNUMBER
`E"m“"r"‘i'£ER
`— 3/1945: —
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`PAGE 12/15 1 RCVD AT 12/5/2011 6:50:26 PM [Eastern Standard Time] - SVR:W-PTOFAX-002/21 * DNlS:2738300 * cslD:a1o2s62795 * DURATION (mm-ss):o6-35
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`11
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`PAGE 13/15 ‘ RCVD AT 12/5/2011 6:50:26 PM [Eastern standard Time] ‘ SVR:W-PTOFAX-002/21 ' DN|S:2738300 " CSlD:3102862795 " DURATION (mm-ss):o6-35
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`7
`12/05/2011 15:48
`3102862
`
`#321 P.014/015
`
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`PAGE 14I15" ncvu AT 1215:2011 6:50:26 PM [Eastern Standard Time] ~ SVR:W-PTOFAX-002r21 - nm§:21:asaoo - csm:31o2as279s = DURATION (mm-ss):06-35
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`13
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`""\From‘:_'HARTlN & FERRARO LLP
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`3102862795
`
`12/05/2011 15:44
`
`#321 P.oo1/015
`
`_ RECEIVED
`C1:NTRAL FAX CENTER
`
`DEC 0 5 2011
`
`MARTIN & FERRARO, LLP
`ATTORNEYS AT LAW
`
`Facsimile
`Telephone
`(330) 877-0 700
`(330) 877-2030
`
`
`1557 Lake O’Pines Street, NE
`Hartville, Ohio 44632
`
`_
`
`TO:
`
`.
`
`—
`
`FROM:
`
`FACSIMILE TRANSMITTAL
`
`Name: Mail Stop MISSING PARTS
`Group Art Unit 3733
`Examiner (unknown)
`
`Name:
`
`Thomas H. Martin, Esq.
`
`Firm: U.S. Patent & Trademark Otfice
`
`Phone No.: 330-877-2277
`
`Fax No.: 571-273-8300
`
`.
`
`No. of Pages (including this): 15
`
`Subject: U.S. Patent Application No. 13/235,998
`Gary K. Michelson
`Filed: September 19, 2011
`ANATOMIC SPINAL IMPLANT HAVING
`ANATOMIC BEARING SURFACES
`
`Attomey Docket No. 101.0051-06000
`Customer No. 22882
`
`Confirmation No.: 8673
`
`Date:
`
`December 5, 2011
`
`Confirmation Copy to Follow: NO
`
`
`
`Message:
`
`CERTIFICATE OF TRANSMISSION UNDER 37 CFR 1.8
`
`I hereby certify that the attached Amendment, Information Disclosure Statement and Form SB/08
`are being facsimile transmitted to the U.S. Patent and Trademark Office on December 5, 201 1.
`
`Todd M. Martin
`
`If there is a problem with this transmission please call the sender at the number above.
`
`The information contained in this facsimile message is privileged and confidential information intended only
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`PAGE 1115 - RCVD AT 121512011 6:50:26 PM [Eastern Standard Time] - SVR:W-PT0FAX-002I21 * ou1s:273s3oo - cs1o:31o2ss27n5 - nummou (mm-ss):O6-35
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`14
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`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`UNITED STATES DEPARTMENT OF COMMERCE
`United States Patent and Trademark Office
`Address: COMMISSIONER FOR PATENTS
`P.O. Box 1450
`Alexandria, Virginia 22313-1450
`www.uspto.goV
`
`APPLICATION NO.
`
`F ING DATE
`
`FIRST NAMED INVENTOR
`
`ATTORNEY DOCKET NO.
`
`CONF {MATION NO.
`
`13/235,998
`
`09/19/2011
`
`Gary Karlin Michelson
`
`101.0051—06000
`
`8673
`
`22882
`7590
`MARTIN & FERRARO, LLP
`1557 LAKE O'PINES STREET, NE
`HARTVILLE, OH 44632
`
`12/07/2012
`
`EXAMINER
`STEWART, ALVINJ
`ART UNIT
`PAPER NUMBER
`
`3774
`
`MAIL DATE
`
`12/07/2012
`
`DELIVERY MODE
`
`PAPER
`
`Please find below and/or attached an Office communication concerning this application or proceeding.
`
`The time period for reply, if any, is set in the attached communication.
`
`PTOL—90A (Rev. 04/07)
`
`1 5
`
`15
`
`

`
`Office Action Summary
`
`Application No.
`
`App|icant(s)
`
`13/235,998
`
`Examiner
`ALVIN STEWART
`
`MICHELSON, GARY KARLIN
`
`A“ Unit
`3774
`
`-- The MAILING DA TE of this communication appears on the cover sheet with the correspondence address --
`Period for Reply
`
`A SHORTENED STATUTORY PERIOD FOR REPLY IS SET TO EXPIRE § MONTH(S) OR THIRTY (30) DAYS,
`WHICHEVER IS LONGER, FROM THE MAILING DATE OF THIS COMMUNICATION.
`Extensions of time may be available under the provisions of 37 CFR1.136(a).
`In no event, however, may a reply be timely filed
`after SIX (6) MONTHS from the mailing date of this communication.
`If NO period for reply is specified above, the maximum statutory period will apply and will expire SIX (6) MONTHS from the mailing date of this communication.
`—
`— Failure to reply within the set or extended period for reply will, by statute, cause the application to become ABANDONED (35 U.S.C. § 133).
`Any reply received by the Office later than three months after the mailing date of this communication, even if timely filed, may reduce any
`earned patent term adjustment. See 37 CFR 1.704(b).
`
`Status
`
`1)I:l Responsive to communication(s) filed on
`
`2a)I:I This action is FINAL.
`
`2b)IXl This action is non—final.
`
`3)I:l An election was made by the applicant in response to a restriction requirement set forth during the interview on
`
`; the restriction requirement and election have been incorporated into this action.
`
`4)I:l Since this application is in condition for allowance except for formal matters, prosecution as to the merits is
`
`closed in accordance with the practice under Exparte Quayle, 1935 C.D. 11, 453 O.G. 213.
`
`Disposition of Claims
`
`5)IZl Claim(s) 1) is/are pending in the application.
`
`5a) Of the above claim(s) j is/are withdrawn from consideration.
`
`6)I:l Claim(s) j is/are allowed.
`
`7)|Zl Claim(s) 1) is/are rejected.
`
`8)I:l Claim(s) j is/are objected to.
`
`9)I:l Claim(s) j are subject to restriction and/or election requirement.
`
`* If any claims have been determined allowable, you may be eligible to benefit from the Patent Prosecution Highway
`program at a participating intellectual property office for the corresponding application. For more information, please see
`ht‘:
`://www.us to. ov./Watents/init events/bah/index.'s or send an inquiry to PPHfeedba<:i< usr*to.L ev.
`
`Application Papers
`
`10)IXI The specification is objected to by the Examiner.
`
`11)|Z| The drawing(s) filed on 9/19/11' 12/05/11 is/are: a)IZl accepted or b)|:I objected to by the Examiner.
`
`Applicant may not request that any objection to the drawing(s) be held in abeyance. See 37 CFR 1.85(a).
`
`Replacement drawing sheet(s) including the correction is required if the drawing(s) is objected to. See 37 CFR 1.121 (d).
`
`Priority under 35 U.S.C. § 119
`
`12)I:| Acknowledgment is made of a claim for foreign priority under 35 U.S.C. § 119(a)-(d) or (f).
`
`a)|:I All
`
`b)I:l Some * c)I:I None of:
`
`1.|:I Certified copies of the priority documents have been received.
`
`2.|:I Certified copies of the priority documents have been received in Application No. _.
`
`3.|:I Copies of the certified copies of the priority documents have been received in this National Stage
`
`application from the International Bureau (PCT Rule 17.2(a)).
`
`* See the attached detailed Office action for a list of the certified copies not received.
`
`Attachment(s)
`
`1) El Notice of References Cited (PTO-892)
`
`2) X Information Disclosure Statement(s) (PTO/SB/08)
`Paper No(s)/Mail Date 12/05/11.
`U.S. Patent and Trademark Office
`
`3) El Interview Summary (PTO-413)
`Paper No(s)/Mail Date.
`4) D Other:
`.
`
`PTOL-326 (Rev. 09-12)
`
`Office Actioi glmmary
`
`Part of Paper No./Mail Date 20121204
`
`16
`
`

`
`Application/Control Number: 13/235,998
`
`Page 2
`
`Art Unit: 3774
`
`DETAILED ACTION
`
`Drawings
`
`The drawings are objected to as failing to comply with 37 CFR l.84(p)(5) because they
`
`include the following reference character(s) not mentioned in the description: in Figures 13 and
`
`14 elements 320 and 330 are not in the written specification. Corrected drawing sheets in
`
`compliance with 37 CFR l.l2l(d), or amendment to the specification to add the reference
`
`character(s) in the description in compliance with 37 CFR l.l2l(b) are required in reply to the
`
`Office action to avoid abandonment of the application. Any amended replacement drawing sheet
`
`should include all of the figures appearing on the immediate prior version of the sheet, even if
`
`only one figure is being amended. Each drawing sheet submitted after the filing date of an
`
`application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet”
`
`pursuant to 37 CFR l.l2l(d). If the changes are not accepted by the examiner, the applicant will
`
`be notified and informed of any required corrective action in the next Office action. The
`
`objection to the drawings will not be held in abeyance.
`
`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 obviousness—type double patenting rejection
`
`is appropriate where the conflicting claims 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
`
`17
`
`17
`
`

`
`Application/Control Number: 13/235,998
`
`Page 3
`
`Art Unit: 3774
`
`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 conflicting 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.
`
`Effective January 1, 1994, a registered attorney or agent of record may sign a terminal
`
`disclaimer. A terminal disclaimer signed by the assignee must fully comply with 37 CFR
`
`3.73(b).
`
`Claims 1-20 are rejected on the ground of nonstatutory obviousness—type double
`
`patenting as being unpatentable over claims 1-18 of U.S. Patent No. 7,789,914B2. Although the
`
`conflicting claims are not identical, they are not patentably distinct from each other because both
`
`cases disclose the same structure limitations.
`
`Claims 1-20 are rejected on the ground of nonstatutory obviousness—type double
`
`patenting as being unpatentable over claims 1-32 of U.S. Patent No. 8,021,430B2. Although the
`
`conflicting claims are not identical, they are not patentably distinct from each other because both
`
`cases disclose the same structure limitations.
`
`18
`
`18
`
`

`
`Application/Control Number: 13/235,998
`
`Page 4
`
`Art Unit: 3774
`
`Conclusion
`
`Any inquiry concerning this communication or earlier communications from the
`
`examiner should be directed to ALVIN STEWART whose telephone number is (571)272-4760.
`
`The examiner can normally be reached on Monday—Friday 7:00AM-5:30PM(l Friday B-Week
`
`off).
`
`If attempts to reach the examiner by telephone are unsuccessful,
`
`the examiner’s
`
`supervisor, Dave Isabella can be reached on 571-272-4749. The fax phone number for the
`
`organization where this application or proceeding is assigned is 571-273-8300.
`
`Information regarding the status of an application may be obtained from the Patent
`
`Application Information Retrieval (PAIR) system. Status information for published applications
`
`may be obtained from either Private PAIR or Public PAIR. Status information for unpublished
`
`applications is available through Private PAIR only. For more information about the PAIR
`
`system, see http://pair-direct.uspto. gov. Should you have questions on access to the Private PAIR
`
`system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would
`
`like assistance from a USPTO Customer Service Representative or access to the automated
`
`information system, call 800-786-9199 (IN USA OR CANADA) or 57l-272-1000.
`
`December 4, 2012.
`
`/Alvin J SteWart/
`
`Primary Examiner, Art Unit 3774
`
`19
`
`19
`
`

`
`Attorney Docket No. 101 .0051—06000
`Customer No. 22882
`
`PATENT
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`in re Application of:
`Gary Karlin Michelson
`Serial No.: 13/235,998
`Filed: September 19, 2011
`For: ANATOMIC SPINAL IMPLANT
`
`HAVING ANATOMIC BEARING
`
`SURFACES
`
`\.a\./\/\y\./"./\../
`
`Confirmation No.: 8673
`
`Group Art Unit: 3774
`Examiner: Alvin J. Stewart
`
`Mail Stop AMENDMENT
`Commissioner for Patents
`
`P.O. Box 1450
`
`Alexandria, VA 22313-1450
`
`Sir:
`
`AMENDMENT
`
`in reply to the Office Action dated December 7, 2012 (“Office Action”), please
`
`amend the application as follows:
`
`Amendments to the Specification begin on page 2 of this paper.
`
`Amendments to the Claims are reflected in the listing of claims, which begins on
`
`page 3 of this paper.
`
`Remarks begin on page 16 of this paper.
`
`Amendment as filed 2-25-2013.doc
`
`20
`
`20
`
`

`
`Application No. 13/235,998
`Amendment dated February 25, 2013
`Reply to Office Action of December 7, 2012
`
`Amendments to the Sgecification:
`
`Please amend the following paragraphs which were added in the prior
`
`amendment after the first full paragraph on page 14 as follows:
`
`-- As shown in—i="igs~. FIGS. 13 and 14, the implant 300 includes an
`
`insertion end 320 and a trailing end 330. Furthermore, as shown in FIGS. 13
`
`and 14, the imglant 300 includes a first terminal part defining a first bearing
`
`surface adapted to bear against an endplate of the vertebrae V1, and an
`
`opposite second bearing surface adapted to bear against an endplate of the
`
`vertebrae V2. The implant 300 also includes a second terminal part opposite the
`
`first terminal part. The second terminal part defines a third bearing surface
`
`adapted to bear against the endplate of the vertebrae V1 and a fourth bearing
`
`surface adapted to bear against the endplate of the vertebrae V2.
`
`in addition to the first and second terminal parts, the implant 300 also
`
`includes a first side extending between the first terminal part and the second
`
`terminal part, and a second side opposite the first side and extending between
`
`the first terminal part and the second terminal part. —-.
`
`21
`
`21
`
`

`
`Application No. 13/235,998
`Amendment dated February 25, 2013
`Reply to Office Action of December 7, 2012
`
`Amendments to the Claims:
`
`This listing of claims will replace all prior versions, and listings, of claims in the
`
`application:
`
`Listing of Claims:
`
`1.
`
`(currently amended) An-A spinal fusion implant for insertion between a first
`
`vertebra and a second vertebra adjacent the first vertebra, the first vertebra
`
`having a generally vertically extending first peripheral wall and a first eertieal
`
`leeneendplate and the second vertebra having a generally vertically extending
`
`second peripheral wall and a second endplate, wherein the implant
`
`comprises:
`
`a first terminal part defining a trailing face, a first bearing surface adapted
`
`to bear against a portion of the first endplate
`
` , and an opposite second bearing surface adapted to bear against
`
`a portion of the second endplate
`
` , said trailing face extending between said first bearing surface
`
`and second bearing surface, said trailing face having a recessed portion and a
`
`threaded opening configured to receive an insertion instrument for inserting said
`
`implant between the first vertebra and the second vertebra;
`
`a second terminal part opposite said first terminal part, said second
`
`terminal part having an insertion face
`
`extending frem—between a third bearing surface te—a_n_d__a fourth bearing surface,
`
`said implant having a longitudinal axis extending through said trailing face of said
`
`first terminal part and said insertion face of said second terminal part, and having
`
`a cross section in a first plane extending through said first bearing surface and
`
`said second bearing surface, and along the longitudinal axis, thefirstplane
`
`'
`
`'
`
`'
`
`'
`
`'
`
`'
`
`said implant having a length
`
`between said trailing face of said first terminal part and said insertion face of said
`
`second terminal part and parallel to the longitudinal axis, said implant having a
`
`-3-
`
`22
`
`22
`
`

`
`Application No. 13/235,998
`Amendment dated February 25, 2013
`Reply to Office Action of December 7, 2012
`
`width and a height each perpendicular to the length of said implant, the width of
`
`said implant being greater than the height of said implant;
`
`a first side and an opposite second side, said first side and said second
`
`side extending from said first terminal part to said second terminal part, portions
`
`of said first side and said second side being substantially flat, said substantially
`
`flat portions intersecting a second plane that is perpendicular to the first plane
`
`and extends through said insertion face and said trailing face, wherein said
`
`substantially flat portions of said first side and said second side are symmetrical
`
`about the first plane; and
`
`an opening between said trailing face and said insertion face and between
`
`said first and second sides to permit for the growth of bone through said implant
`
`from the first vertebra to the second vertebra’
`
`upper and lower bearing surfaces each having a length measured parallel
`
`to the longitudinal axis of said implant, said upper and lower bearing surfaces
`
`having portions proximate each of said first and second sides and being convex
`
`along the entire length of said upper and lower bearing surfaces relative to the
`
`second plane and in a direction parallel to the longitudinal axis, whereina
`
`
`
`said trailing face having a height
`
`less than and measured parallel to a maximum height measured between said
`
`upper and lower bearing surfaces proximate one of said first and second sides;
`
`ratchetings on each of said upper and lower bearing surfaces adapted to
`
`engage the first vertebra and the second vertebra, respectively, each of said
`
`ratchetings having a ridge oriented in a direction generally parallel to the width of
`
`said implant, said ratchetings on each of said upper and lower
`
`bearing surfaces facing one direction; and
`
`said implant being adapted to hold bone fusion promoting materials.
`
`-4-
`
`23
`
`23
`
`

`
`Application No. 13/235,998
`Amendment dated February 25, 2013
`Reply to Office Action of December 7, 2012
`
`Claims 2-20 (cancelled).
`
`21.
`
`(new) The implant of claim 1, wherein said implant has a plurality of openings
`
`between said trailing face and said insertion face and between said first and
`
`second sides to permit for the growth of bone through said implant from the first
`
`vertebra to the second vertebra.
`
`22.
`
`23.
`
`(new) The implant of claim 1, wherein said convex portions of said upper and
`
`lower bearing surfaces are convex along a continuous uninterrupted majority of
`
`the lengths of said upper and lower bearing surfaces.
`
`(new) A spinal fusion implant for insertion between a first vertebra and a second
`
`vertebra adjacent the first vertebra, the first vertebra having a generally vertically
`
`extending first peripheral wall and a first endplate and the second vertebra
`
`having a generally vertically extending second peripheral wall and a second
`
`endplate, wherein the implant comprises:
`
`a first terminal part defining a trailing face, a first bearing surface adapted
`
`to bear against a portion of the first endplate, and an opposite second bearing
`
`surface adapted to bear against a portion of the second endplate, said trailing
`
`face extending between said first bearing surface and second bearing surface,
`
`said trailing face having a recessed portion and a threaded opening configured to
`
`receive an insertion instrument for inserting said implant between the first
`
`vertebra and the second vertebra;
`