DETAILED ACTION
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.
Claims 1-4, 6-7 9, 10 are rejected under 35 U.S.C. 103(a) as being unpatentable over Thompson (2,873,582 (reissued as Re. 24,693)) in view of MCGuire (5,203,699).
Regarding claims 1, 2 Thompson discloses a siphoning device (figures 1-5) suited for removing fluid/blood from a surgical site, comprising: a sterile tubing (e.g. fig 1, loop 10) having a first open end (e.g. 10a), a second open end (e.g. 10b), and a central portion between the first open end and the second open end (fig. 1); the tubing between the first open end and the central portion is flexible (e.g. col. 1 lines 51-60) and the tubing between the second open end and the central portion is flexible (e.g. col. 1 lines 51-60) wherein a section of the central portion is sized and capable to extend across an airway of a person's throat (fig. 4) and is conformable to the person’s throat due to its flexibility properties; the section of the central at least one or more sets of a plurality of holes distributed in a longitudinal direction along the circumference of the tubing in a fluid communication with an interior of the tubing, a vacuum system (e.g. evacuator) coupled to each of the first open end and the second open end of the tubing, the vacuum system being configured to create a negative pressure in the tubing by removing air from the device via the first open end and the second open end, causing any fluids in the sterile absorbent sponge to be evacuated into the one or more sets of the plurality of holes of the tubing into the vacuum system,
but fail to disclose the central portion is encompassed by a sterile absorbent sponge configured to block the airway at the back of the person's throat, and the section of the central portion a sterile absorbent sponge of at least 2 cm in diameter and at least 2 cm in length; wherein, the sterile absorbent sponge has a porosity that permits air to pass through the airway at the back of the person's throat, is permeable to bodily fluids and configured to avoid evacuation of non-fluid materials; at least three sets of the plurality of holes are distributed along a longitudinal direction of the tubing and each set of the plurality of holes is covered by a discrete section of the sterile absorbent sponge, the sterile absorbent sponge is substantially cylindrical in shape and formed from at least one of a cellulose, foam, melamine, animal, and layered fabric material.
MCGuire discloses a sterile absorbent sponge (e.g. 25, col. 4, ln 1-20) covering suctioning portion that is permeable to fluid and encompassing a set of a plurality of hole of a fluid suction device (Fig. 1), at least three sets of the plurality of holes are distributed along a longitudinal direction of the tubing and each set of the plurality of holes is covered by a discrete section of the sterile absorbent sponge (fig.1 ), the sterile absorbent sponge is substantially cylindrical (fig. 1) in shape and formed from at least one of a cotton, absorbent polyurethan foam. Therefore, it would have been obvious to one having ordinary skill in the art at the time of the invention to incorporate the absorbent coverings as taught by MCGuirein to the siphoning device as taught by Thompson for the purpose of providing greater patient comfort and gentle suction as taught by MCGuire. Thompson/MCGuire discloses the invention substantially as claimed but does not disclose the diameter and length of the sterile covering and tubing diameter; however, it would have been obvious to one of ordinary skill in the art at the time of the invention was made to have diameter in a desired size based on the intended use (e.g. to be used around teeth or throat) since it has been held that discovering the optimum value of a result effective variable involves only routing skills in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980).
Regarding claims 6-7, Thompson discloses structure substantially identical to the instant application as discussed above but fails to explicitly disclose where the coupler is fitted over two sections of the tubing and moveable over the two sections of the tubing to allow the loop to be increased or reduced in size.
McGuire discloses a siphoning device suited for automatically removing fluid/blood from a surgical site in the mouth (title, abstract, Fig. 6), with a length of sterile flexible tubing able to be configured into a loop (Fig. 6 elements 60 and 61), further having a coupler fitted over two sections of tubing (Fig. 6 elements 65), moveable over the two sections of the tubing (column 7 lines 10-19). Therefore it would have been obvious to one having ordinary skill in the art at the time of the invention to incorporate the movable coupler over two end sections as taught by McGuire into the coupler connecting to the two ends of the loop as taught by Thompson/MCGuire for the purpose of providing control over the lengths of the different ends of the tube and control the slack of the suction tube within the mouth of the patient as taught by McGuire (column 7 lines 10-19).
Claim 5 is rejected under 35 U.S.C. 103(a) as being unpatentable over Thompson et al. (7,300,401) in view of MCGuire and further in view of Bergheim et al. (US 2012/0237893 A1).
Thompson/McGuire discloses the invention as claimed except the sponge is PVA sponge as claimed; however, Bergheim discloses a device for endodontic treatment (title and abstract) which has a sterile absorbent sponge made of poly-vinyl alcohol for restriction of fluid flow away from a treatment site (paragraph [0175] lines 1-16).
Therefore it would have been obvious to one having ordinary skill in the art at the time of the invention to incorporate the absorbent covering further being a sponge made of polyvinyl alcohol as taught by Bergheim into the siphoning device as taught by Thompson/McGuire for the purpose of providing an absorbent material that can deform to the contours of a treatment site as taught by Bergheim (paragraph [0175] lines 14-16).
Claim 8 is rejected under 35 U.S.C. 103(a) as being unpatentable over Thompson et al. (7,300,401) in view of McGuire and further in view of Maycher et al. (2012/0237894).
Thompson/McGuire discloses structure substantially identical to the instant application as discussed above but fails to explicitly disclose where the coupler further includes a control valve to control the amount of vacuum pressure.
Maycher discloses a siphoning device and methods suited for automatically removing fluid/blood from a site in the mouth (title and Fig. 1), with a control valve that controls the vacuum pressure (Fig. 2 element 40). Therefore, it would have been obvious to one having ordinary skill in the art at the time of the invention to incorporate the control valve as taught by Maycher into the coupler connecting to the two ends of the loop as taught by Thompson/McGuire for the purpose of providing the patient with a manner to control the amount of vacuum at the patient’s desired level as taught by Maycher (paragraph [0032] lines 16-20).
Response to Arguments
Applicant’s arguments with respect to claims 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.
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.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Examiner Patel Yogesh whose telephone number is (571) 270-3646. The examiner can normally be reached between 9 AM – 5:30 PM on Monday, Thursday and Friday.
If attempts to reach the examiner by telephone are unsuccessful, please contact the examiner’s supervisor, SPE Bosques Edelmira, at (571) 270-5614.
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/YOGESH P PATEL/Primary Examiner, Art Unit 3772
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