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 . In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the engagement portions being “aligned” and fasteners being located at the distal end of both inner and outer tubes must be shown or the feature(s) canceled from the claim(s). The specification does not discuss this alignment and only refers to fasteners at the proximal end of the tubes and in the handle. No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) 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. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. 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 1.121(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.
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.
Claim 1 is rejected under 35 U.S.C. 103 as being unpatentable over Houser (U.S. Patent No. 7846155) in view of Johnson (U.S. Patent Application Publication No. 20090318954).
Regarding claim 1, Houser teaches a therapeutic ultrasound device for use during a medical procedure to cauterize tissue (Abstract), the therapeutic ultrasound device comprising: an inner tube having a proximal end and a distal end (Fig. 2, element 76), an outer tube having a proximal end and a distal end (Fig. 2, element 72), wherein the outer tube is disposed about the inner tube such that the second engagement portion is aligned with the first engagement portion (Figs. 1, 2); a tissue clamping assembly having a width less than about 15 millimeters and configured to apply a clamping force at a target site (Col. 6, lines 45-51, 59-62), wherein the tissue clamping assembly includes at least one transducer configured to provide therapeutic ultrasound (Col. 6, lines 65-67, Col. 7, lines 1-5), wherein the tissue clamping assembly comprises a first jaw and a second jaw (Fig. 4a, 4b, elements 56, 79), and wherein a distal end of the tissue clamping assembly is configured to engage with the first engagement portion of the inner tube and the second engagement portion of the outer tube (Fig. 4a, 4b); and a housing assembly secured to the proximal end of the inner tube and the proximal end of the outer tube (Fig. 1, element 68), wherein the housing assembly comprises a handle configured to actuate the inner tube relative to the outer tube and close the tissue clamping assembly (Col. 8, lines 30-33, Fig. 1, element 34). Houser does not teach wherein the distal end of the inner tube comprises a first engagement portion configured to receive and secure a first moveable fastener; and wherein the distal end of the outer tube comprises a second engagement portion configured to receive and secure a second moveable fastener. Johnson, in an analogous device, teaches wherein the distal end of the inner tube comprises a first engagement portion configured to receive and secure a first moveable fastener ([0047]; Fig. 10a, 10b, elements 402, 420, 406, 408); and wherein the distal end of the outer tube comprises a second engagement portion configured to receive and secure a second moveable fastener ([0047]; Fig. 10a, 10b, elements 402, 420, 406, 408). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Houser to where the distal end of the inner tube comprises a first engagement portion configured to receive and secure a first moveable fastener; and wherein the distal end of the outer tube comprises a second engagement portion configured to receive and secure a second moveable fastener as taught by Johnson in order to allow for a greater range of movement for the engagement portions during use.
Claim 1 is rejected under 35 U.S.C. 103 as being unpatentable over Kendrick (US 2013/0304058) in view of Parihar (US 2014/0243799) and Waaler (US 2013/0289561).
Regarding claim 1, Kendrick discloses an electrosurgical forceps (figs. 1 and 3) including a housing (20) with a handle (30) that moves an inner tube (132) relative to an outer tube (12) for the purpose of opening and closing a tissue clamping assembly (12, [0047]). This translation of force is possible because the tubes have engagement portions each having a fastener (139, 95, fig. 3) that are connected to the distal end of the clamp assembly (114a, 114b). These broadly defined “portions” can be considered “aligned.” Kendrick does not disclose the diameter of the clamping assembly or the use of ultrasound transducers. However, both of these elements are extremely common in the art. Parihar, for example, discloses a forceps with a diameter of less than 3 mm ([0006], [0016]) and Waaler discloses a forceps and teaches that any of several types of tissue treatment elements can be employed including ultrasound transducers ([0008]), which is a teaching of functional equivalence (MPEP 2144.06). Therefore, before the application was filed, it would have been obvious to modify the forceps of Kendrick to have any commonly known diameter including around 3 mm as taught by Parihar and to have any commonly known tissue treatment element including ultrasound transducers as taught by Waller, that would produce the predictable result of allowing a user to treat tissue in a desired manner.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DANIEL WAYNE FOWLER whose telephone number is (571)270-3201. The examiner can normally be reached Monday-Friday (9-5).
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/DANIEL W FOWLER/Primary Examiner, Art Unit 3794