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 .
Response to Arguments
Applicant’s arguments with respect to claim(s) below have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. New rejections for claim 1 were made in view of applicant’s amendments.
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, 6, 8, 12-13, 18, 37-38 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Clough US 447,761.
Regarding Claim 1, Clough discloses a visualization device (Figs 1-5) comprising:
an expandable retractor assembly having a visualization channel (Figs 1-5, see Fig below),
the retractor assembly comprising a first retractor member comprising a pin coupled thereto (see Fig below) and a second retractor member defining a slot (#18, see Fig below) for receiving the pin (see Fig below) and the retractor assembly configured to be coupled to an actuator assembly configured to actuate the retractor assembly (examiner notes that the actuator is functionally recited and not part of the claimed invention, page 2 lines 45-60 where an actuator in the form of a balloon can be placed in the channel and inflated to move/actuate the retractor members, alternatively an actuator in the form of a forceps type device with multiple arms can be used to couple to the retractor members of the retractor assembly to expand the retractor assembly),
wherein when the retractor assembly transitions from an unexpanded position to an expanded position, the pin slides within the slot from a first position to a second position (as seen in Figs 2-3, 5 page 2 lines 45-60), and
wherein the retractor assembly expands uniformly radially outward relative to a central axis of said assembly (see Fig below, central axis is represented as a dot as the central axis extends outward from the page) and along a full length of the assembly where expansion is taken along multiple radial directions such that a diameter of the assembly is greater in the expanded position than in the unexpanded position (as seen in Fig 1-2, page 1 line 18-21, page 2 lines 45-60 where the first and second retractor members, as well as the other two retractor members can be actuated simultaneously, via by hand, balloon or other tool, such that the retractor assembly is able to expand uniformly radially outward relative to the central axis of said assembly along a full length of the assembly in multiple radial directions).
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Regarding Claim 6, Clough discloses the first retractor member is configured to move with respect to the second retractor member or the second retractor member is configured to move with respect to the first retractor member (as seen in Fig 1-2, page 2 lines 45-60, the first and second retractor members can move with respect to each other).
Regarding Claim 8, Clough discloses t the first retractor member and the second retractor member are configured to move uniformly with respect to each other (as discussed at the end of claim 1 above, where the first and second retractor members, as well as the other two retractor members can be actuated simultaneously, via by hand, balloon or other tool, such that the retractor assembly is able to expand/move uniformly radially outward).
Regarding Claim 12-13, Clough discloses the first retractor member forms the visualization channel, a surface of the first retractor member forms the visualization channel (Fig 1-2, Fig above in claim 1 where an inner surface of the first retractor members helps form the visualization channel).
Regarding Claim 18, Clough discloses wherein the visualization device is configured for insertion into a surgical site and the surgical site is in the cervical spine (Fig 5, the tip of the visualization device is capable of being placed in a cervical spine of an animal).
Regarding Claim 37, Clough discloses where the pin and the slot are centrally located along the length of the retractor assembly (see Fig below, Fig 5 where the slot and pin are located centrally along the length of #13 of the retractor assembly).
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Regarding Claim 38, Clough discloses wherein the slot is linear (as seen in fig 5).
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 11 is rejected under 35 U.S.C. 103 as being unpatentable over Clough US 447,761 in view of Pisarik US 6,024,697.
Clough discloses the claimed invention as discussed above where the second retractor member includes a blade (#14) but does not disclose the second retractor member is a sheath.
Pisarik discloses a second retractor member (#26) that includes a blade (#20), where the second retractor member is a sheath (Fig 2 where blade #20 has a concave face facing the channel such that it forms a c-shaped sheath).
It would have been obvious to one having ordinary skill in the art at a time before the effective filing date to modify the blade of the second retractor member of Clough to have a concave face such that it forms a c-shaped sheath because this provides a known alternate configuration for providing a blade for engaging tissue (Col 12 lines 30-50, Fig 11 in Pisarik).
Claims 1, 10 are rejected under 35 U.S.C. 103 as being unpatentable over Clough US 447,761 in view of DiPoto US 2005/0245942.
Regarding Claim 1, Clough discloses a visualization device (Figs 1-5) comprising:
an expandable retractor assembly having a visualization channel (Figs 1-5, see Fig below),
the retractor assembly comprising a first retractor member and a second retractor member (see Fig below) and the retractor assembly configured to be coupled to an actuator assembly configured to actuate the retractor assembly (examiner notes that the actuator is functionally recited and not part of the claimed invention, page 2 lines 45-60 where an actuator in the form of a balloon can be placed in the channel and inflated to move/actuate the retractor members, alternatively an actuator in the form of a forceps type device with multiple arms can be used to couple to the retractor members of the retractor assembly to expand the retractor assembly),
wherein when the retractor assembly transitions from an unexpanded position to an expanded position, the pin slides within the slot from a first position to a second position (as seen in Figs 2-3, 5 page 2 lines 45-60), and
wherein the retractor assembly expands uniformly radially outward relative to a central axis of said assembly (see Fig below, represented as a dot as the central axis extends outward from the page) and along a full length of the assembly where expansion is taken along multiple radial directions such that a diameter of the assembly is greater in the expanded position than in the unexpanded position (as seen in Fig 1-2, page 1 line 18-21, page 2 lines 45-60 where the first and second retractor members, as well as the other two retractor members can be actuated simultaneously, via by hand, balloon or other tool, such that the retractor assembly is able to expand uniformly radially outward relative to the central axis of said assembly along a full length of the assembly in multiple radial directions).
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Clough discloses the first retractor member having a slot and the second retractor member having a pin coupled thereto (see Fig above), wherein when the retractor assembly transitions from an unexpanded position to an expanded position, the pin slides within the slot from a first position to a second position (as seen in Figs 2-3, 5 page 2 lines 45-60) but does not disclose the first tractor member comprising a pin coupled there to and the second retractor member defining a slot for receiving the pin.
DiPoto discloses a similar visualization device (#9182, Figs 193a-193b) comprising: an expandable retractor assembly (Fig 193a-193b) having a visualization channel (channel extending through #9182, Fig 193a-193b), the retractor assembly comprising a first retractor member (#9184) and a second retractor member (#9186), a pin (#9190) and a slot (#9188), wherein the pin is coupled to the first retractor member (Fig 193a-193b, paragraph 664) and the slot is defined in the second retractor member and configured to receive the pin (Fig 193a-193b, paragraph 664), such that when the retractor assembly transitions from an unexpanded state to an expanded state, the pin slides within the slot from a first position (as seen in Fig 193a) to a second position (as seen in Fig 193b, paragraph 664), where the pin and slot allows helps guide expansion of the visualization device (paragraph 664).
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 the device of Clough to have the first tractor member comprising the pin coupled there to and the second retractor member defining the slot in view of DiPoto above because this provides a known alternative configuration for helping guide expansion of the device. Likewise, with the modification, the pin would not protrude into the channel. The examiner also notes that this modification involves a mere reversal of parts where it has been held that a mere reversal/relocation of the essential working parts of a device would be obvious to one having ordinary skill in the art. See MPEP 2144.04 Sections VI: (A) and (C).
Regarding Claim 10, Clough as modified discloses the first retractor member is positioned within the second retractor member (see Fig above in claim 1).
Allowable Subject Matter
Claims 15, 26 are allowed.
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 JAN CHRISTOPHER L MERENE whose telephone number is (571)270-5032. The examiner can normally be reached Mon-Fri 8:30 am - 6pm EST.
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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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/JAN CHRISTOPHER L MERENE/ Primary Examiner, Art Unit 3773
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