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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 26 March 2026 has been entered.
Response to Amendment
Receipt is acknowledged of an amendment, filed 26 March 2026, which has been placed of record and entered in the file.
Status of the claims:
Claims 1-16 and 18-19 are pending.
Claims 1 and 18 are amended.
Claim 17 is canceled.
Specification and Drawings:
Amendments to the specification have been submitted in the amendment filed 26 March 2026.
Amendments to the drawings have been submitted in the amendment filed 26 March 2026.
Drawings
Receipt is acknowledged of one replacement sheet of drawings, filed 26 March 2026.
The drawings are accepted by the examiner.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-6, 13-14, and 18-19 are rejected under 35 U.S.C. 103 as being unpatentable over Viola (EP 2,116,192) in view of Sorrentino et al. (US Patent Publ. No. 2012/0145768) and DeFonzo et al. (US Patent No. 5,560,532).
With respect to claim 1, Viola discloses an end effector for engagement with a surgical stapler actuator (fig. 1) comprising an anvil having a staple pocket (figs. 1 and 5b), and a cartridge (fig. 1) supporting a unitary staple pusher 1200 (fig. 5d) and configured to house a staple 130 (fig. 2), the staple having a backspan 134, a proximal leg 132, and a distal leg 132, the backspan 134 having a proximal portion coupled to the proximal leg 132, a distal portion coupled to the distal leg 132, and a central portion therebetween (figs. 1 and 2), the unitary staple pusher 1200 comprises a protrusion (dimpling pusher 1201, fig. 5d, [0026]), a proximal contact portion proximal to the protrusion 1205, and a distal contact portion distal to the protrusion 1205, wherein the protrusion is configured to displace the central portion of the backspan 134 of the staple relative to the proximal and distal portions of the backspan during a deployment of the staple to deform the backspan of the staple. Viola discloses that the staple slots, and therefore the staple backspan and the pushers, form an angle with the longitudinal axis of the jaw (fig. 1), such that one of the staple legs is more distal than the other leg. Therefore, the staple is considered to have a proximal leg, a distal leg, a proximal portion, and a distal portion; and the staple pusher is considered to have a proximal contact portion and a distal contact portion. Viola further discloses that the slots may be parallel to the longitudinal axis ([0026]). Viola discloses that the pusher deforms the staple ([0025]), and that the staple may be formed of a deformable material such as stainless steel or titanium ([0031]).
Viola discloses that the protrusion 1201 displaces the central portion of the backspan 134 relative to the proximal and distal portions of the backspan during deployment of the staple (figs. 3b, 5b). Comparison of figure 2 (before deformation) and figures 3b and 5b (after deformation) clearly shows that the central portion of the backspan is displaced.
Viola discloses the protrusion 1201 has a fixed height relative to the proximal contact portion and the distal contact portion (fig. 5d), but fails to disclose the protrusion has a fixed height relative to the proximal contact portion and the distal contact portion that is between 0.5 and 1.5 times a thickness of the backspan of the staple.
Sorrentino et al. disclose a similar surgical stapling instrument (figs. 2, 5) including a staple pusher (figs. 8A-8C) and a staple in which the staple comprises a backspan 116 having a central portion that is displaced from the end portions by a height that is between 0.5 and 1.5 times the thickness of the backspan (fig. 8C discloses a displacement that appears to be approximately 1 times the thickness of the backspan). Sorrentino et al. disclose the dimpled formed staple increases the holding strength of the formed staple ([0036]).
It 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 to modify the protrusion of Viola to include a fixed height relative to the proximal contact portion and the distal contact portion that is between 0.5 and 1.5 times the thickness of the backspan, to increase the holding strength of the formed staple, as taught by Sorrentino et al., and as a matter of optimization through routine experimentation, and to adjust the amount of tissue compression and avoid damage to the staple. MPEP 2144.05 II. A. The particular dimensions do not patentably distinguish Applicant’s claimed device from the prior art where the only difference between the prior art and the claims is a recitation of relative dimensions of the claimed device, and a device having the claimed dimensions would not perform differently than the prior art device. MPEP 2144.04 IV. A.
Viola discloses the unitary staple pusher 1200 comprises a top surface at a top of the protrusion (dimpling pusher 1201 having upper surface 1203, fig. 5d), a first surface extending from a first side of the top surface, a second surface extending from a second side of the top surface, the second side of the top surface being opposite from the first side of the top surface, the top surface is a planar surface extending between the first surface and the second surface, wherein the protrusion having the top surface, the first surface, and the second surface is integral with a part of the unitary staple pusher having the proximal contact portion and the distal contact portion (Annotated Fig. 5d).
Viola fails to disclose a first slanted surface extending from a first side of the top surface and a second slanted surface extending from a second side of the top surface.
DeFonzo et al. disclose a similar surgical stapling instrument (fig. 1) including a unitary staple pusher (pusher plate 96, figs. 13-15, col. 13, lines 35-42) comprising a protrusion (projections 96a, 96b, figs. 13-15) having a top surface at a top of the protrusion, a first slanted surface extending from a first side of the top surface, a second slanted surface extending from a second side of the top surface, the second side of the top surface being opposite from the first side of the top surface, wherein the protrusion having the top surface, the first surface, and the second surface is integral with a part of the unitary staple pusher having the proximal contact portion and the distal contact portion (Annotated figures 13-15). DeFonzo et al. disclose that the slanted surfaces (projections 96a, 96b, figs. 13-15) are part of the protrusion that is configured to displace the central portion of the backspan ("As illustrated in greater detail in FIGS. 13-15, the distal end of pusher plate 96 includes projections 96a, 96b forming a gap 96c therebetween. Projections 96a, 96b press against central bight portion 122c of staple 122 to counter the tendency of the central bight portion 122c to bend as the staple 122 is bent as shown in FIGS. 13-15", col. 13, lines 24-53).
It 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 to modify the protrusion of Viola to replace the first and second surfaces extending from the top surface with first and second slanted surfaces extending from the top surface, as taught by DeFonzo et al., as a matter of a change in shape, since there does not appear to be any disclosed advantage to the particular orientation of the surfaces extending from the top surface of the protrusion. The particular shape does not patentably distinguish Applicant’s claimed device from the prior art where the only difference between the prior art and the claims is a recitation of the shape of the claimed device, and a device having the claimed shape would not perform differently than the prior art device. MPEP 2144.04 IV. B.
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With respect to claim 2, Viola disclose the unitary staple pusher 1200 is configured to cold work a part of the backspan during deployment (figs. 3b, 5b). Viola discloses that the pusher deforms the staple ([0025]), and that the staple may be formed of a deformable material such as stainless steel or titanium ([0031]).
Viola discloses the pusher 1200. Thus, the pusher is fully capable of cold working a part of the backspan of the staple.
The intended use recitation language (some of which has been italicized supra) carries no weight in the absence of any distinguishing structure. Viola discloses the structure as claimed and is thus capable of performing the functions. See MPEP 2114 which states: APPARATUS CLAIMS MUST BE STRUCTURALLY DISTINGUISHABLE FROM THE PRIOR ART While features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function. In re Schreiber, 128 F.3d 1473, 1477-78, 44 USPQ2d 1429, 1431-32 (Fed. Cir. 1997) (The absence of a disclosure in a prior art reference relating to function did not defeat the Board's finding of anticipation of claimed apparatus because the limitations at issue were found to be inherent in the prior art reference); see also In re Swinehart, 439 F.2d 210,212-13, 169 USPQ 226,228-29 (CCPA 1971); In re Danly, 263 F.2d 844, 847, 120 USPQ 528,531 (CCPA 1959). "[A]pparatus claims cover what a device is, not what a device does." Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original).
With respect to claim 3, Viola discloses the staple pocket is configured to form the staple into a Figure-8 shape (the ends of the staple legs are turned toward the center of the backspan forming a Figure-8 shape, fig. 3a).
With respect to claim 4, Viola discloses that during deployment, the unitary pusher is configured to contact the central portion of the backspan prior to contacting the proximal and distal portions of the backspan. Viola discloses the staple 130 (figs. 2 and 6) comprises a flat backspan, and therefore the contact portions 1205 are considered to be configured to contact the backspan after the protrusion (dimpling pusher 1201) extending above the contact portions 1205 (fig. 5d).
With respect to claim 5, Viola discloses the staple pocket is configured to receive both the proximal leg and the distal leg of the staple when the staple is moved toward the anvil (figs. 3a, 5b).
With respect to claim 6, Viola discloses the staple pocket comprises a recess formed in the anvil, the recess having a proximal portion, a distal portion, and a recessed surface therebetween (figs. 3a, 5b).
With respect to claim 13, Viola discloses the proximal contact portion 1205 (fig. 5d) is configured to contact the backspan after the protrusion 1202 contacts the backspan. Viola discloses the staple 130 (figs. 2 and 6) comprises a flat backspan, and therefore the contact portions 1205 are considered to be configured to contact the backspan after the protrusion (dimpling pusher 1201) extending above the contact portions 1205 (fig. 5d).
With respect to claim 14, Viola discloses the distal contact portion 1205 (fig. 5d) is configured to contact the backspan after the protrusion 1202 contacts the backspan. Viola discloses the staple 130 (figs. 2 and 6) comprises a flat backspan, and therefore the contact portions 1205 are considered to be configured to contact the backspan after the protrusion (dimpling pusher 1201) extending above the contact portions 1205 (fig. 5d).
With respect to claim 18, Viola discloses an end effector for engagement with a surgical stapler actuator (fig. 1) comprising an anvil having a staple pocket (figs. 1 and 5b), and a cartridge (fig. 1) supporting a staple pusher 1200 (fig. 5d) and housing a staple 130 (fig. 2), the staple having a backspan 134, a proximal leg 132, and a distal leg 132, the backspan 134 having a proximal portion coupled to the proximal leg 132, a distal portion coupled to the distal leg 132, and a central portion therebetween (figs. 1 and 2), the staple pusher 1200 has a protrusion (dimpling pusher 1201, fig. 5d, [0026]), a proximal contact portion 1205, and a distal contact portion 1205, the proximal contact portion 1205 extending from a first side edge of the pusher 1200 (fig. 5d), the distal contact portion extending from a second side edge of the pusher 1200 (fig. 5d), and the proximal contact portion 1205 and the distal contact portion 1205 are configured to contact the backspan 134 after the protrusion 1201 contacts the central portion of the backspan 134 during deployment of the staple (the crimping pusher 1207 and dimpling pusher 1201 are integrally formed, the pusher 1200 closes the staple and forms a recess in the backspan at the same time, figs. 5b, 5d, [0026]), and wherein the staple pusher is configured to deform the backspan of the staple. Viola discloses that the staple slots, and therefore the staple backspan and the pushers, form an angle with the longitudinal axis of the jaw (fig. 1), such that one of the staple legs is more distal than the other leg. Therefore, the staple is considered to have a proximal leg, a distal leg, a proximal portion, and a distal portion; and the staple pusher is considered to have a proximal contact portion and a distal contact portion. Viola further discloses that the slots may be parallel to the longitudinal axis ([0026]). Viola discloses the staple 130 (figs. 2 and 6) comprises a flat backspan, and therefore the contact portions 1205 are considered to be configured to contact the backspan after the protrusion (dimpling pusher 1201) extending above the contact portions 1205 (fig. 5d). Viola discloses that the pusher deforms the staple ([0025]), and that the staples may be formed of a deformable material such as stainless steel or titanium ([0031]).
Viola discloses the protrusion 1201 has a fixed height relative to the proximal contact portion (fig. 5d), but fails to disclose the protrusion has a fixed height relative to the proximal contact portion that is between 0.5 and 1.5 times a thickness of the backspan of the staple.
Sorrentino et al. disclose a similar surgical stapling instrument (figs. 2, 5) including a staple pusher (figs. 8A-8C) and a staple in which the staple comprises a backspan 116 having a central portion that is displaced from the end portions by a height that is between 0.5 and 1.5 times the thickness of the backspan (fig. 8C discloses a displacement that appears to be approximately 1 times the thickness of the backspan). Sorrentino et al. disclose the dimpled formed staple increases the holding strength of the formed staple ([0036]).
It 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 to modify the protrusion of Viola to include a fixed height relative to the proximal contact portion that is between 0.5 and 1.5 times the thickness of the backspan, to increase the holding strength of the formed staple, as taught by Sorrentino et al., and as a matter of optimization through routine experimentation, and to adjust the amount of tissue compression and avoid damage to the staple. MPEP 2144.05 II. A. The particular dimensions do not patentably distinguish Applicant’s claimed device from the prior art where the only difference between the prior art and the claims is a recitation of relative dimensions of the claimed device, and a device having the claimed dimensions would not perform differently than the prior art device. MPEP 2144.04 IV. A.
Viola discloses the unitary staple pusher 1200 comprises a top surface at a top of the protrusion (dimpling pusher 1201 having upper surface 1203, fig. 5d), a first surface extending from a first side of the top surface, a second surface extending from a second side of the top surface, the top surface is a planar surface extending between the first and second surfaces, the second side of the top surface being opposite from the first side of the top surface, wherein the protrusion having the top surface, the first surface, and the second surface is integral with a part of the unitary staple pusher having the proximal contact portion and the distal contact portion (Annotated Fig. 5d).
Viola fails to disclose a first slanted surface extending from a first side of the top surface and a second slanted surface extending from a second side of the top surface.
DeFonzo et al. disclose a similar surgical stapling instrument (fig. 1) including a unitary staple pusher (pusher plate 96, figs. 13-15, col. 13, lines 35-42) comprising a protrusion (projections 96a, 96b, figs. 13-15) having a top surface at a top of the protrusion, a first slanted surface extending from a first side of the top surface, a second slanted surface extending from a second side of the top surface, the second side of the top surface being opposite from the first side of the top surface, wherein the protrusion having the top surface, the first surface, and the second surface is integral with a part of the unitary staple pusher having the proximal contact portion and the distal contact portion (Annotated figures 13-15). DeFonzo et al. disclose that the slanted surfaces (projections 96a, 96b, figs. 13-15) are part of the protrusion that is configured to displace the central portion of the backspan ("As illustrated in greater detail in FIGS. 13-15, the distal end of pusher plate 96 includes projections 96a, 96b forming a gap 96c therebetween. Projections 96a, 96b press against central bight portion 122c of staple 122 to counter the tendency of the central bight portion 122c to bend as the staple 122 is bent as shown in FIGS. 13-15", col. 13, lines 24-53).
It 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 to modify the protrusion of Viola to replace the first and second surfaces extending from the top surface with first and second slanted surfaces extending from the top surface, as taught by DeFonzo et al., as a matter of a change in shape, since there does not appear to be any disclosed advantage to the particular orientation of the surfaces extending from the top surface of the protrusion. The particular shape does not patentably distinguish Applicant’s claimed device from the prior art where the only difference between the prior art and the claims is a recitation of the shape of the claimed device, and a device having the claimed shape would not perform differently than the prior art device. MPEP 2144.04 IV. B.
With respect to claim 19, Viola discloses the staple pusher 1200 includes a protrusion 1201 that deforms the central portion of the backspan 134 of the staple during deployment of the staple by displacing the central portion of the backspan relative to the proximal and distal portions of the backspan (figs. 3b, 5d). In the absence of any particular definition of “cold work” beyond deforming in the claims or specification (paragraph [0028]), deforming is considered to be synonymous with “cold work”. Accordingly, the protrusion is considered to be configured to cold work the central portion of the backspan.
In addition, Viola discloses the staple pusher including a protrusion. Thus, the protrusion is fully capable of cold working the central portion of the backspan.
The intended use recitation language (some of which has been italicized supra) carries no weight in the absence of any distinguishing structure. Viola discloses the structure as claimed and is thus capable of performing the functions. See MPEP 2114 which states: APPARATUS CLAIMS MUST BE STRUCTURALLY DISTINGUISHABLE FROM THE PRIOR ART While features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function. In re Schreiber, 128 F.3d 1473, 1477-78, 44 USPQ2d 1429, 1431-32 (Fed. Cir. 1997) (The absence of a disclosure in a prior art reference relating to function did not defeat the Board's finding of anticipation of claimed apparatus because the limitations at issue were found to be inherent in the prior art reference); see also In re Swinehart, 439 F.2d 210,212-13, 169 USPQ 226,228-29 (CCPA 1971); In re Danly, 263 F.2d 844, 847, 120 USPQ 528,531 (CCPA 1959). "[A]pparatus claims cover what a device is, not what a device does." Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original).
Viola discloses that the protrusion 1201 displaces the central portion of the backspan 134 relative to the proximal and distal portions of the backspan during deployment of the staple (figs. 3b, 3d, 5b). Comparison of figure 2 (before deformation) and figures 3b, 3d, and 5b (after deformation) clearly shows that the central portion of the backspan is displaced.
Sorrentino et al. disclose a similar surgical stapling instrument (figs. 2, 5) including a staple pusher (figs. 8A-8C) and a staple in which the staple comprises a backspan 116 having a central portion that is displaced from the end portions by a height that is between 0.5 and 1.5 times the thickness of the backspan (fig. 8C discloses a displacement that appears to be approximately 1 times the thickness of the backspan). Sorrentino et al. disclose the dimpled formed staple increases the holding strength of the formed staple ([0036]).
It 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 to modify the protrusion of Viola to displace the backspan by a height between 0.5 and 1.5 times the thickness of the backspan as taught by Sorrentino et al., as a matter of optimization through routine experimentation, and to adjust the amount of tissue compression and avoid damage to the staple. MPEP 2144.05 II. A. and B.
Claims 7-12 are rejected under 35 U.S.C. 103 as being unpatentable over Viola in view of Sorrentino et al. and DeFonzo et al., as applied to claim 1, and further in view of Harris et al. (US Patent Publ. No. 2022/0079590).
With respect to claim 7, Viola discloses an anvil having pockets, each pocket comprising a recess having a bottom surface and a plurality of side surfaces (fig. 5b), but fails to disclose a flat bottom surface.
Harris et al. disclose a surgical stapler including an anvil having pockets, each pocket comprising a flat bottom surface (5058, figs. 116A-116C, [0675], [0676]) and a plurality of side surfaces, to direct the staple legs into the pocket to form the deployed staple.
It 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 to modify the anvil pocket of Viola to provide a flat bottom surface as taught by Harris et al., to direct the staple legs into the pocket to form the deployed staple.
With respect to claim 8, Viola discloses the side surfaces comprise a proximal guide surface and a distal guide surface (fig. 5b).
With respect to claim 9, Viola discloses the bottom surface and the side surfaces cause the legs of the staple to bend (fig. 5b), but fails to disclose a flat bottom surface.
Harris et al. disclose the flat bottom surface and the side surfaces cause the staple legs to bend (figs. 116A-116C, [0675]).
It 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 to modify the anvil pocket of Viola to provide a flat bottom surface as taught by Harris et al., to direct the staple legs into the pocket to form the deployed staple.
With respect to claim 10, Viola discloses a vertical thickness of the backspan (fig. 5b). Accordingly, the depth of the recess of the pocket appears to be between one half and two times the vertical thickness of the backspan (fig. 5b).
Insofar as Viola can be considered not to disclose the depth of the pocket recess between one half and two times the vertical thickness of the backspan, it 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 to modify the device of Viola to provide the depth of the pocket recess between one half and two times the vertical thickness of the backspan, as a matter of optimization through routine experimentation, and to adjust the amount of tissue compression and avoid damage to the staple. MPEP 2144.05 II. A. and B.
With respect to claim 11, Viola discloses a vertical thickness of the backspan (fig. 5b). Accordingly, the depth of the recess of the pocket appears to be at least as great as the vertical thickness of the backspan (fig. 5b).
Insofar as Viola can be considered not to disclose the depth of the pocket recess at least as great as the vertical thickness of the backspan, it 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 to modify the device of Viola to provide the depth of the pocket recess at least as great as the vertical thickness of the backspan, as a matter of optimization through routine experimentation, and to adjust the amount of tissue compression and avoid damage to the staple. MPEP 2144.05 II. A. and B.
With respect to claim 12, Viola disclose the backspan has a vertical thickness (the distance between the legs 132, fig. 2), and the recess of the pocket having a depth. The depth of the recess appears to be less than one half the thickness of the backspan (fig. 5b).
Insofar as Viola can be considered not to disclose the depth of the pocket recess to be less than one half the thickness of the backspan, it 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 to modify the device of Viola to be less than one half the thickness of the backspan, as a matter of optimization through routine experimentation, and to adjust the amount of tissue compression and avoid damage to the staple. MPEP 2144.05 II. A. and B.
Claims 15-16 are rejected under 35 U.S.C. 103 as being unpatentable over Viola in view of Sorrentino et al. and DeFonzo et al., as applied to claim 1, and further in view of Soutorine et al. (US Patent No. 2010/0102105).
With respect to claim 15, Viola discloses the cartridge is configured to house a staple formed from a wire (fig. 2), but fails to disclose the wire has a diameter of 0.18 millimeters or less.
Soutorine et al. disclose a surgical stapler including a cartridge (fig. 1) configured to house staples formed from a wire having a diameter of about 0.1 mm to about 0.5 mm ([0118])
It 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 to modify the device of Viola to provide staples formed of a wire having a diameter of 0.18 millimeters or less as taught by Soutorine et al., to adjust the amount of tissue compression.
With respect to claim 16, Viola discloses the cartridge is configured to house a staple formed from a wire (fig. 2), but fails to disclose the wire has a diameter of about 0.1524 millimeters.
Soutorine et al. disclose a surgical stapler including a cartridge (fig. 1) configured to house staples formed from a wire having a diameter of about 0.1 mm to about 0.5 mm ([0118]).
It 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 to modify the device of Viola to provide staples formed of a wire having a diameter of about 0.1524 millimeters as taught by Soutorine et al., to adjust the amount of tissue compression.
Response to Arguments
With respect to the objection to the specification, the specification amendments and applicant’s arguments have been fully considered and are persuasive. The objection is hereby withdrawn.
With respect to the rejection of claim 1 under 35 U.S.C. 103 over Viola (EP 2,116,192) in view of Sorrentino et al. (US Patent Publ. No. 2012/0145768) and DeFonzo et al. (US Patent No. 5,560,532), applicant's arguments have been fully considered but are not persuasive.
Applicant argues that Viola fails to disclose that the top surface is a planar surface.
In response, Viola discloses a pusher (crimping pusher 1207) comprising a protrusion (dimpling pusher 1201), the protrusion including a top surface 1203 that is planar (Annotated Figure 5d).
Applicant further argues that DeFonzo et al. is deficient because claim 1 requires that the slanted surface is part of the protrusion that is configured to displace the central portion of the backspan, and that the slanted surfaces of DeFonzo et al. are not part of the protrusion that displaces the central portion of the backspan of the staple, and do not engage the backspan until after the staple is deformed. Applicant points to figures 13-15 as such disclosure.
In response, DeFonzo et al. clearly disclose that the slanted surfaces (projections 96a, 96b, figs. 13-15) are part of the protrusion that is configured to displace the central portion of the backspan ("As illustrated in greater detail in FIGS. 13-15, the distal end of pusher plate 96 includes projections 96a, 96b forming a gap 96c therebetween. Projections 96a, 96b press against central bight portion 122c of staple 122 to counter the tendency of the central bight portion 122c to bend as the staple 122 is bent as shown in FIGS. 13-15", col. 13, lines 24-53). Accordingly, DeFonzo et al. clearly disclose that the projections 96a, 96b contact the backspan while the staple is being deformed, and therefore are part of the protrusion that is configured to deform the staple.
Applicant further argues that the rectangular block 136c is the member that engages the central portion of the staple backspan during staple deployment. In response, DeFonzo et al. clearly disclose that member 136c is a central resilient member that biases a staple in position for deformation, and is not a pusher. Defonzo et al. disclose the spring channel member 136 biases an unformed staple prior to deformation, and biases the deformed staple to disengage the staple from the anvil legs after the staple is deformed by the pusher plate 96 (The spring channel member 136 includes central resilient member 136c and lateral resilient members 136l, 136r forming a "W" configuration at the distal end of the spring channel member 136. Anvil legs 132, 134 extend upward between the central resilient member 136c and lateral resilient members 136r, 136l, respectively, so a surgical staple 122 as shown in FIG. 11, for example, is biased upward by upwardly biased resilient members 136l, 136r as the staple 122 is advanced distally towards anvil legs 132, 134. Therefore, after the pusher plate 96 is withdrawn proximally, resilient members 136l, 136r raise the formed staple 122 as shown in FIG. 15 off anvil legs 132, 134 to disengage the formed staple 122 from the apparatus 10, col. 14, line 62 - col. 15, line 7).
Accordingly, in view of all of the above, the rejection of claim 1 under 35 U.S.C. 103 over Viola (EP 2,116,192) in view of Sorrentino et al. (US Patent Publ. No. 2012/0145768) and DeFonzo et al. (US Patent No. 5,560,532) is still deemed proper.
Applicant has submitted no specific arguments with respect to independent claim 18, other than that the same logic applies to claim 18 as is applied to claim 1. The arguments have been fully responded to above.
Applicant has provided no arguments pointing out errors with respect to the rejections of dependent claims 2-16 and 19, and these rejections are still deemed proper.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
McGarry et al. (US Patent No. 5,289,963) disclose a surgical stapler including a pusher plate 104 having a protrusion with a top surface, and opposite slanted surfaces (fig. 19).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Linda J. Hodge whose telephone number is (571)272-0571. The examiner can normally be reached Monday-Friday 8:00-5:00.
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/LINDA J. HODGE/Primary Examiner, Art Unit 3731
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