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.
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 2 and 10 are rejected under 35 U.S.C. 103 as being unpatentable over Kerr et al. (US 2013/0304066) in view of Poulsen (US 2015/0005760).
Regarding claim 2, Kerr discloses a control device (see Figs. 1A-1B and 4) for an electrosurgical instrument (see end effector in Fig. 1A), the control device comprising: a fixed handle part (see housing 4 and fixed handle 22, Fig. 1A); a movable handle part (see movable handle 24, Fig. 1A); and an activation element (see switch assembly 8, Fig. 4, taking the particular configuration of Fig. 5) configured to activate a current flow of a first type (see current that flows through the switching elements to send a switch signal, switching assembly 8 providing for at least four types of current flow for each selection, Fig. 5), the activation element is adjustable or adjusted from a deactivation position into at least one activation position when the movable handle part is actuated (switch assembly 8 pivots about the pivot point to activated and deactivated positions as shown in Fig. 4 including when the movable handle 24 is actuated, see also [0053] and [0051]), and the movable handle part is in mechanical operative connection with the activation element (both elements are mechanically connected together though their connections to the handle and operable together, see Fig. 5). However, Kerr fails to further disclose at least one switching element for activating a current flow of a second type, the at least one switching element is formed on the movable handle part, and the at least one switching element is actuatable by a user independently of an actuation of the movable handle part.
Poulsen teaches an electrosurgical control device comprising at least one switching element for activating a current flow of a second type (see coagulation switch 8 for activating coagulation current flow, [0050]-[0051], Fig. 1), the at least one switching element is formed on the movable handle part (as shown in Fig. 1), and the at least one switching element is actuatable by a user independently of an actuation of the movable handle part (coagulation button 8 can be pressed independently of actuating the movable handle 7). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the control device as disclosed by Kerr to further include at least one switching element for activating a current flow of a second type, the at least one switching element is formed on the movable handle part, and the at least one switching element is actuatable by a user independently of an actuation of the movable handle part in light of Poulsen, the motivation being to provide the additional advantage of enabling the user to easily initiate coagulation current with their index finger when gripping the handles of the device.
Regarding claim 10, Poulsen further teaches wherein at least one or the at least one switching element is formed on the movable handle part and the fixed handle part (see coagulation button 8 on the movable handle and cutting button 9 on the fixed handle, Fig. 1).
Claims 3, 11 and 16-17 are rejected under 35 U.S.C. 103 as being unpatentable over Kerr in view of Lee et al. (US 2011/0077648).
Regarding claim 3, Kerr discloses a control device (see Figs. 1A-1B and 4) for an electrosurgical instrument (see end effector in Fig. 1A), the control device comprising: at least one switching element (see switch assembly 8, Figs. 4 and 5, taking the particular configuration from Fig. 5) configured for at least one of activating or switching a bipolar current flow (see activation or switching between sealing and cutting bipolar waveforms, [0039], [0054]-[0055]), the at least one switching element enables at least one of an activation or a switchover between at least two different switching signals, in order to generate at least two different bipolar currents by a generator of the electrosurgical instrument depending on the respective switching signal (see seal and cut signals to the generator from the switch bar provide respective seal and cut currents from the generator, [0055]), wherein the switching element is configured to either have an activated state or an inactivated state (switch assembly 8 pivots about the pivot point to activated and deactivated positions as shown in Fig. 4, see also [0053] and [0051]). However, Kerr fails to further disclose a distinction between the at least two different switching signals is based on the activated state of the switching element and a signal of an activation element.
Lee teaches a control device for an electrosurgical instrument (see Figs. 2A-2B) comprising a switching element (see monopolar switch 465, 466 and bipolar switch 460, [0071], Fig. 11), wherein the activated and deactivated states are distinguished based upon a signal of an activation element (see signal passing through monopolar safety switch 430 when handle is in a closed position, [0071], Figs. 10-11). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the at least one switching element as disclosed by Kerr such that a distinction between the at least two different switching signals is based on the activated state of the switching element and a signal of an activation element in light of Lee, the motivation being to prevent activation of energy when the jaw members are in an open position or when the jaw members have no tissue held therebetween (see Lee [0071]).
Regarding claim 11, Kerr further discloses wherein the electrosurgical instrument is configured to be switchable, by the control device, between two different bipolar currents that are generated by a generator of the electrosurgical instrument, and at least one bipolar coagulation current as the current of the second type and a bipolar sealing current as the current of the first type are activatable by at least two switching signals of the control device (see sealing and cutting bipolar waveforms activatable by respective switching signals sent from switching assembly 8, [0039], [0054]-[0055]).
Regarding claim 16, Kerr further discloses wherein the switching element is configured to be at least one of directly operated by a user (switching assembly 8 is capable of manual activation by a user, see Figs. 4 and 5).
Regarding claim 17, Kerr further discloses wherein at least one of a bipolar coagulation current or a bipolar cutting current and a bipolar sealing current are activatable by the at least two switching signals (see sealing and cutting bipolar waveforms activatable by respective switching signals sent from switching assembly 8, [0039], [0054]-[0055]).
Response to Arguments
Applicant’s arguments with respect to the rejected 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. Specifically, the current arguments do not address the new combination of references made above of Kerr in view of Poulsen as well as Kerr in view of Lee.
Allowable Subject Matter
Claims 1, 4-6, 8-9, 13-14 and 18 are allowed.
The following is a statement of reasons for the indication of allowable subject matter: The closest prior art of record, Kerr et al. (US 2013/0304066), Poulsen (US 2015/0005760), Messerly et al. (US 2013/0282003), and Garrison et al. (US 2007/0043352), fails to reasonably teach or suggest during an adjustment of the movable handle part over an activation section of a total adjustment path of the movable handle part or as long as the activation element is in the activation position, the contact element is guided slidingly along the mating contact surface, or wherein the activation element is adjustable or adjusted about a pivot point from a deactivation position into at least one activation position through actuation of the movable handle part that also is configured such that a current activated by the activation element flows or is adapted to flow through the activation element when considered in combination of the additional requirements of the claim. The closest prior art generally teaches activation elements having conductive contacts, but fail to further teach or suggest a sliding contact arrangement during the claimed condition in addition to the pivoting and current flow arrangement required when considered in combination with the additional claim requirements.
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 SEAN W COLLINS whose telephone number is (408)918-7607. The examiner can normally be reached M-F 9:00 AM-5:00 PM ET.
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/SEAN W COLLINS/Primary Examiner, Art Unit 3794