Ex Parte Levy et al

Patent Trial and Appeal Board

Dec 18, 2018

14130950 (P.T.A.B. Dec. 18, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/130,950 07/22/2014
32964 7590 12/19/2018
DEKEL PATENT LTD., DAVID KLEIN
BEIT HAROFIM
18 MENUHA VENAHALA STREET, ROOM 27
REHOVOT, 76209
ISRAEL
MarkM. Levy
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
2053LEV-US 8043
EXAMINER
COLEY, ZADE JAMES
ART UNIT PAPER NUMBER
3775
MAIL DATE DELIVERY MODE
12/19/2018 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)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARK M. LEVY, SHIMON SPECTOR, EY AL TEICHMAN,
ELAD SAPIR, and GAL AMAR
Appeal2017-010119
Application 14/130,950 1
Technology Center 3700
Before JEFFREY N. FREDMAN, DAVID COTTA, and
RACHEL H. TOWNSEND, Administrative Patent Judges.
TOWNSEND, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a bone
structural device, which have been rejected as obvious. We have jurisdiction
under 35 U.S.C. § 6(b).
We reverse.
STATEMENT OF THE CASE
"Implant devices, such as vertebral spacers, intravertebral or
intervertebral fusion devices and disc replacement devices, have been
developed to assist with stabilization and fixation or functional support of
1 Appellants identify the real party in interest as Expanding Orthopedics Inc.
( Appeal Br. 1.)
Appeal2017-010119
Application 14/130,950
the spine." (Spec. 1.) The claimed invention is directed at such an
implantable device that is "used to strengthen or support bony structures in
the body." (Id.)
Claims 19-23 are on appeal. Claim 19 is representative and reads as
follows:
19. A bone structural device comprising:
a plurality of bone structural segments, each of said bone
structural segments comprising a pair of parallel support plates,
wherein adjacent bone structural segments are pivotally
connected to one another about a pivot axis, and wherein said
bone structural segments are expandable in height, which is in a
direction generally parallel to said pivot axis, and wherein said
bone structural segments are expandable by an intermediate
jacking mechanism that comprises at least one set of hinged
flaps which are raised and lowered by a flexible screw drive
connected to said hinged flaps.
(Appeal Br. 13.)
The following grounds of rejection by the Examiner are before us on
review:
Claims 19-23 under 35 U.S.C. § 103 as unpatentable over Matthis,2
Abdelgany, 3 and Butler. 4
DISCUSSION
The Examiner finds that Matthis discloses a bone structural device
that includes a plurality of bone structural segments. (Final Action 3.)
According to the Examiner, a left segment and a right segment of the
2 Matthis et al., US 2008/0147193 Al, published June 19, 2008.
3 Abdelgany, US 2008/0125865 Al, published May 29, 2008.
4 Butler et al., US 2006/0224241 Al, published Oct. 5, 2006.
2
Appeal2017-010119
Application 14/130,950
structure depicted in Figure 3, reproduced below, are the "plurality of bone
segments" required by the claim. (Id.)
Fig. 3
3
~4
Figure 3 depicts a perspective top view of an intervertebral implant.
(Matthis ,r 15.)
In addition, the Examiner finds that Matthis' s implant includes a pair
of parallel support plates. (Final Action 3.) The Examiner indicates that
elements 31 and 31' depicted in Figure 1, reproduced below, are the claimed
support plates.
Figure 1 depicts an exploded perspective view of an intervertebral implant.
(Matthis ,r 13 . )
The Examiner further finds that the adjacent bone structural segments
of Matthis, i.e., the half of the device that includes the structure near element
3 and the half of the device that includes the structure near element 4, are
3
Appeal2017-010119
Application 14/130,950
connected to each other about an axis, i.e., "near where 2 [as seen in both
Figures 1 and 3] points." (Id.) The Examiner notes that Mathis does not
disclose the bone segments being pivotally connected to one another about a
pivot axis as required by the claims. (Id. at 4.)
The Examiner also finds that the bone structural elements are
expandable in height by an intermediate jacking mechanism that comprises a
flexible screw drive, which drive is depicted in Figure 5, reproduced below.
(Id. at 3--4.)
Fig. 5
Figure 5 shows the drive mechanism of the implant shown in Figure 3.
(Matthis ,r 17.) The Examiner notes that Matthis does not disclose that the
jacking mechanism includes "at least one set of hinged flaps which raise and
lower by the flexible screw drive" as required by the claims. (Final Action
at 4.)
According to the Examiner, it would have been obvious to attach the
two segments of Matthis' bone structure device pivotally in light of the
teachings of Abdelgany. (Id.) Moreover, the Examiner contends that it
would have been obvious to provide a jacking mechanism as claimed as a
substitute for the one shown in Matthis in light of the teachings of Butler.
(Id. at 4--5).
4
Appeal2017-010119
Application 14/130,950
Regarding the pivotal connection, the Examiner finds that Abdelgany
teaches a bone structural device with a plurality of segments that are
pivotally connected to each other, pointing to Figures 2 and 14 of Abdelgany
reproduced below.
Fl@,2
1 FIG.1