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 Amendment
In light of Applicant’s amendment filed 11/19/2024, claim 1 is amended. Claims 1, 7-8, 13, and 16-17 are now pending.
Response to Arguments
Applicant’s arguments with respect to claim(s) 1 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. Examiner agrees the previous rejection fails to disclose the new limitation of a “each tooth formation including a smooth, planar, mutually opposable contact surface that is free of any protrusions”. However, a new grounds of rejection is provided over Kammerer.
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.
Claim(s) 1, 7-8, 13 and 17 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Kammerer (US 20070156162 A1).
Regarding claim 1, Kammerer discloses a surgical dissector instrument (2) including:
a pair of arms (4, 18) pivotably connected intermediate their ends (Figure 1; Paragraph 0039-41),
each arm having a handle (16, 28) at one end and a tooth formation (10, 24) at the other end, each tooth formation including a smooth, planar, mutually opposable contact surface that is free of any protrusions (Figure 1, 4; Paragraph 0039-40; 0054),
each arm further including a conductor (body of 2) extending from a location at or near the handle to the mutually opposable contact surfaces so that current can flow from the location of one of the arms along that arm to its mutually opposable contact surface and electrically arc to the mutually opposable contact surface of the other arm and flow along that other arm and out of that other arm's location, to complete an electrical circuit so that the mutually opposable contact surfaces are able to cauterize a blood vessel or other body tissue (Paragraph 0051) (The body of surgical instrument 2 can be made of various metals, such as stainless steel, aluminum, titanium or Nitinol (Paragraph 0051). As a result, the instrument would be a conductor and be fully capable so that current can flow from the location of one of the arms along that arm to its mutually opposable contact surface and electrically arc to the mutually opposable contact surface of the other arm and flow along that other arm and out of that other arm's location, to complete an electrical circuit so that the mutually opposable contact surfaces are able to cauterize a blood vessel or other body tissue. "[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). A claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim.), and
each arm also having a curvilinearly shaped scissor blade (32) disposed only between a pivot connection and each corresponding tooth formation (Figure 2; 16-17; Paragraph 0055), with each scissor blade having a cutting edge (34) disposed only in-line with the smooth, planar, mutually opposable contact surface of the corresponding tooth formation (Figure 16-17; Paragraph 0052),
wherein the profiles of the mutually opposable contact surfaces are asymmetrical, with each of the mutually opposable contact surfaces tapering towards its distal end to form an apex which co-extends with a respective blunt apex of each tooth formation, wherein the apexes of the mutually opposable contact surfaces or the respective blunt apexes of the tooth formations can be used to gouge or lacerate tissue during surgical procedures (Figure 1, 4; Paragraph 0054), and
wherein the mutually opposable contact surfaces align with each other and contact each other when closed together (Figure 2; Paragraph 0044).
Regarding claim 7, Kammerer further discloses wherein the mutually opposable contact surfaces are smooth so as not to stick to a blood vessel or body tissue when used to cauterise a blood vessel or body tissue (Paragraph 0039-40). (The flat regions disclosed by Kammerer are viewed as smooth.) ("[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). A claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim.)
Regarding claim 8, Kammerer further discloses wherein the mutually opposable contact surfaces are sized to cauterise a blood vessel in a single action at a single location on the blood vessel to enable the blood vessel to be bisected at the cauterised location so as to cause effective stop of blood flow from the ends of the bisected blood vessel (Figure 1; Paragraph 0061). (Since the mutually opposable contact surfaces are capable of gripping blood vessels, they must be “sized” to be able to do so. "[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). A claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim.)
Regarding claim 13, Kammerer further discloses wherein the handle of each arm further includes a circular finger support aperture (loops of 16, 28) and the respective portions of the arms intersecting the circular finger support apertures include respective circular finger supports (labeled in Annotated Figure 1) substantially similar to a portion of either or both of the circular finger support apertures (Figure 1; Paragraph 0040).
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Regarding claim 17, Kammerer further discloses wherein the mutually opposable contact surfaces are smooth, planar surfaces so as not to be brought into sliding contact with, while simultaneously cauterising a flap tissue, blood vessel or capillary (Figure 1, 4; Paragraph 0054). (The flat regions disclosed by Kammerer are viewed as smooth, planar surfaces and are fully capable to not to be brought into sliding contact with, while simultaneously cauterising a flap tissue, blood vessel or capillary.)
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(s) 16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kammerer in view of Ding et al. (US 20180103995 A1) (previously of record).
Regarding claim 16, Kammerer discloses the surgical dissector instrument as claimed in claim 1, and further discloses wherein the mutually opposable contact surfaces are smooth, planar surfaces so as not to stick to a blood vessel or body tissue when used to cauterize a blood vessel or body tissue (The flat regions disclosed by Kammerer are viewed as smooth, planar surfaces and are fully capable to not to stick to a blood vessel or body tissue when used to cauterize a blood vessel or body tissue.), and wherein the profiles of the mutually opposable contact surfaces align with each other and contact each other when closed together (Figure 2; Paragraph 0044).
Kammerer fails to explicitly disclose wherein the profiles of the mutually opposable contact surfaces align with each other and contact each other when closed together to cause an electrical current to flow along a first of the arms to a first of the of the mutually opposable contact surfaces and arc across to a respective mutually opposable second of the of the mutually opposable contact surfaces to flow along a second of the arms.
However, Ding is directed to a surgical instrument and teaches and wherein the profiles of the mutually opposable contact surfaces (154, 164) align with each other and contact each other when closed together to cause an electrical current to flow along a first of the arms (110) to a first of the of the mutually opposable contact surfaces (154) and arc across to a respective mutually opposable second of the of the mutually opposable contact surfaces (164) to flow along a second of the arms (120) (Figure 6; Paragraph 0059; 0062; 0064).
A person of ordinary skill in the art before the effective filing date of the claimed invention would have been motivated to modify Kammerer such that an electrical current to flows along a first of the arms to a first of the of the mutually opposable contact surfaces and arc across to a respective mutually opposable second of the of the mutually opposable contact surfaces to flow along a second of the arms, as taught by Ding, as both references and the claimed invention are directed to surgical devices. It would be obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified Kammerer with the teachings of Ding by incorporating an electrical current to flow along a first of the arms to a first of the of the mutually opposable contact surfaces and arc across to a respective mutually opposable second of the of the mutually opposable contact surfaces to flow along a second of the arms in order to electrically seal the tissue after dissection (Ding Paragraph 0046; 0057), which could result in reducing bleeding and preventing infection.
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.
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/Z.J./Examiner, Art Unit 3771
/KATHERINE H SCHWIKER/Primary Examiner, Art Unit 3771