DETAILED ACTION
This office action is in response to the amendments to the claims filed on 19 February 2026. Claims 1 – 6, 10, 16 – 20, 22, 24 and 25 are pending and currently being examined.
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 .
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: “first connection section”, “second connection section” in claim 25.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 103
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.
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(s) 1 – 6, 10, 16 – 20 and 22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Xalabarder (PG Pub US 20180184957 A1) in view of Seyler (US Patent 2,693,766 A) and in view of Schmid (US Patent 4,233,001 A) and further in view of Xia (Chinese patent CN 203730265 U, Machine Translation provided).
In Re Claim 1, Xalabarder discloses a peristaltic pump (Figure 10), comprising: a rotary body (31) with a plurality of squeeze sections (33) whose centers are arranged around a circumference of a circle and moveable about a rotation axis, a tube carrier (35) for carrying a flexible tube (25) along an arcuate engagement section (35) arcuately surrounding the rotary body (31), and an actuator (41) for selectively moving the tube carrier (35) relative to the rotary body (31) between a pump position (Figure 13) in which the flexible tube (25) carried by the tube carrier (35) is positioned in engagement between the engagement section (35) and at least one of the squeeze sections (33) to allow for a pumping action when moving the rotary body (31) about the rotation axis, and a release position (Figure 12) in which the flexible tube (25) carried by the tube carrier (35) is disengaged from the plurality of squeeze sections (33) to allow for free flow through the flexible tube (25), wherein the tube carrier (35) is biased towards the release position (by spring 41), wherein, in the release position (Figure 12), the arcuate engagement section (35) is radially and axially offset (because the arcuate engagement section rotates about an unlabeled pivot pin at the bottom of the figure) from the squeeze sections (33) with respect to the rotation axis compared to their relative position in the pump position (Figure 13); (paragraphs [0088],[0089]; Figures 10 – 14).
Xalabarder does not disclose that the angle of the arcuate section is between 60 and 120 degrees.
However, Seyler discloses that the tube carrier (2; Figure 13) having an arcuate engagement section that surrounds the rotary body by 120 degrees (Column 4, Lines 30 – 34) which is in the claimed range of 60 to 120 degrees.
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed the invention to design the arcuate engagement section of Xalabarder such that it is 120 degrees as taught by Seyler because such a modification would have involved a mere change in the size of a component. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237, (CCPA 1955). Furthermore, the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. In Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984).
Xalabarder does not explicitly disclose that the squeeze sections are biased outwards, away from the rotation axis.
However, Figure 13 of Seyler discloses that squeeze sections (3) are biased outwards (by spring 12) away from the rotation axis (Column 5, Line 22: “radially-outward urge of springs 12”). Seyler also discloses in Figure 3 that at least two squeeze sections (3) are in functional position with respect to the arcuate engagement section to allow for the engagement of the flexible tube.
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed the invention to modify the rotary body and squeeze sections of Xalabarder such that the squeeze sections are rollers that are biased radially outward by springs as taught by Seyler for the purpose of safeguarding against overpressure which is liable to cause the tube to burst (Column 5, Lines 14 – 20 of Seyler).
Xalabarder and Seyler do not disclose that there are always at least two squeeze sections in functional position while the rotary body moves about the rotary axis.
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However, Schmid discloses a tube carrier (70; Figure 3; Column 4, Lines 46 – 48) for carrying a flexible tube (50) along an arcuate engagement section arcuately surrounding the rotary body about an angle of between 60 degrees and 120 degrees (the angle appears to be about 108 degrees calculated based on angular roller spacing of 36 degrees since there are ten rollers), and wherein the tube carrier (70) and the plurality of squeeze sections (40) are configured such that, in the pump position, while the rotary body moves about the rotation axis, there are always at least two squeeze sections (there appear to be at least three) in functional position with respect to the arcuate engagement section while the flexible tube (50) is positioned therebetween to allow for the engagement of the flexible tube as depicted.
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed the invention to increase the number of rollers of Xalabarder / Seyler from three to ten as taught by Schmid because when a large head is desired, the rollers need to be brought closer together (Column 4, Lines 30 – 31 of Seyler).
Xalabarder, Seyler and Schmid do not disclose an engagement groove in which a pin element driven by an actuator moves along an arcuate path.
However, Xia discloses a tube carrier (2) having an engagement groove (21), wherein an actuator (5 which is driven by a “drive-motor”) is configured to move a pin element (51) along an arcuate path (since the pin rotates) within the engagement groove (21) to move the tube carrier (2) between the pump position (Figure 2) and the release position (Figure 1); (Translation Page 2, Lines 23 – 34; Figures 1, 2).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed the invention to modify the tube carrier of Xalabarder to incorporate a groove as taught by Xia and to modify the rotor base housing of Xalabarder to incorporate an actuator and pin as taught by Xia in the apparatus of Xalabarder / Seyler / Schmid for the purpose of saving manual effort of moving the tube carrier from the release position to the pump position (because this is done by the actuator/drive-motor of Xia).
In Re Claim 2, the combined references above disclose all the limitations of Claim 1, and Xia discloses that the actuator (5 which is driven by a “drive-motor”) is functionally connected to the tube carrier (2) to allow for the movement of the tube carrier (2) relative to the rotary body (3).
In Re Claim 3, the combined references above disclose all the limitations of Claim 1, and Xia discloses that the actuator (5) comprises a drive motor, although an electric motor has not specifically been disclosed as the drive motor, this is common knowledge in the art (MPEP 2144.03).
In Re Claim 4, the combined references above disclose all the limitations of Claim 1, and Xalabarder discloses that the movement of the tube carrier (35) is rotational (because its support pivots about an unlabeled pivot pin at the bottom of the figure) and translational (because it is displaced laterally with reference to the rotary body 31).
In Re Claim 5, the combined references above disclose all the limitations of Claim 1, and Schmid further discloses in Figure 3 that there are 3 squeeze sections that are in functional position with respect to the arcuate engagement section.
In Re Claim 6, the combined references above disclose all the limitations of Claim 1, and Xalabarder discloses that in the pump position (Figure 13), the arcuate engagement section (35) is coaxially positioned with respect to the rotation axis (in order for the apparatus to function as disclosed).
In Re Claim 10, the combined references above disclose all the limitations of Claim 1, and Seyler discloses that the squeeze sections (3) are rollers as depicted.
In Re Claim 16, Xalabarder, Seyler, Schmid and Xia as applied to Claim 1 discloses all the claimed limitations. Claim 16 is broader than Claim 1 because it does not have the limitation “the tube carrier is biased towards the release position”.
In Re Claim 17, Xalabarder, Seyler, Schmid and Xia as applied to Claim 2 discloses all the claimed limitations.
In Re Claim 18, Xalabarder, Seyler, Schmid and Xia as applied to Claim 3 discloses all the claimed limitations.
In Re Claim 19, Xalabarder, Seyler, Schmid and Xia as applied to Claim 4 discloses all the claimed limitations.
In Re Claim 20, Xalabarder, Seyler, Schmid and Xia as applied to Claim 6 discloses all the claimed limitations.
In Re Claim 22, Xalabarder, Seyler, Schmid and Xia as applied to Claim 10 discloses all the claimed limitations.
Claim(s) 24 is/are rejected under 35 U.S.C. 103 as being unpatentable over Xalabarder (PG Pub US 20180184957 A1) in view of Seyler (US Patent 2,693,766 A) and in view of Schmid (US Patent 4,233,001 A) and in view of Xia (Chinese patent CN 203730265 U, Machine Translation provided) and further in view of Livni (French Patent FR 8216763 A, Machine Translation provided).
In Re Claim 24, Xalabarder, Seyler, Schmid and Xia disclose all the limitations of Claim 1, and although Xia discloses that the actuator is a drive motor and a mechanical transmission mechanism, it does not explicitly disclose that the transmission is a gear drive.
However, Livni further discloses that the actuator (Page 2, Line 42: “pinion 51 fixed to a motor”) comprises a gear drive comprising a gear (Page 2, Line 42: “pinion 51”, a pinion is a round gear) in engagement with a gear section (Page 2, Line 42: “motor” which is not shown, in order for the pinion to be rotated by the motor, there is another meshing gear) rotatable about a second rotation axis (rotation axis of the disclosed motor), wherein the pin element (42, 46) is configured to move together with the gear section along the arcuate path (the cylinder and pinion rotate, the pin is eccentrically connected to the cylinder, therefore the pin follows an arcuate path when the cylinder rotates)(Translation Page 2, Lines 41 – 45; Figure 3).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed the invention to incorporate the gear drive of Livni as the mechanical transmission mechanism of Xia in the apparatus of Xalabarder / Seyler / Schmid / Xia because it is only a matter of substituting the broadly disclosed transmission mechanism of Xia with the specifically disclosed gear drive of Livni, therefore the results of the substitution are predictable (MPEP 2141, Section III, Rationale B).
Claim(s) 25 is/are rejected under 35 U.S.C. 103 as being unpatentable over Xalabarder (PG Pub US 20180184957 A1) in view of Seyler (US Patent 2,693,766 A) and in view of Schmid (US Patent 4,233,001 A) and in view of Xia (Chinese patent CN 203730265 U, Machine Translation provided) and further in view of Xanthopoulos (US Patent 4,187,057 A).
In Re Claim 25, Xalabarder, Seyler, Schmid and Xia disclose all the limitations of Claim 1, but they do not disclose that the tube has an upstream end connected to a first connection section, a downstream end connected to a second connection section, and that the actuator moving the first and second connections as well in addition to the tube carrier.
However, Xanthopoulos discloses a tube carrier (10; Figure 1) for carrying a flexible tube (18; Figure 2) along an arcuate engagement section (68; Figure 3) arcuately surrounding the rotary body (200), wherein the flexible tube (18) has an upstream end connected to a first connection section (30) and a downstream end connected to a second connection section (20), wherein the first connection section (30) is further operable to connect a product supply (IV fluid source; Column 4, Line 60) to the upstream end of the flexible tube (18), and wherein the second connection section (20) is further operable to connect a product discharge section (which is connected via tubing to a patient; Column 4, Lines 29 – 30) to the downstream end of the flexible tube (18), and actuator (148) for selectively moving the tube carrier (10), the flexible tube (18), the first connection section (30), and the second connection section (20) relative to the rotary body (200) between a pump position (Figure 12) and a release position (Figure 10)(Column 9, Lines 47 – 52).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed the invention to modify the tube carrier of Lussi in the apparatus of Xalabarder / Seyler / Schmid / Xia to incorporate the first connection section and second connection section such that the actuator moves the first and second connections as well in addition to the tube carrier as taught by Xanthopoulos for the purpose of shortening the portion of the tube directly subjected to peristaltic action, thus saving the costs of making the entire tubing from the fluid source to the fluid destination (Column 4, Lines 26 – 32 of Xanthopoulos).
Response to Arguments
Applicant’s arguments with respect to claim(s) 1 and 16 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.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DNYANESH G KASTURE whose telephone number is (571)270-3928. The examiner can normally be reached Mon-Thu, 7:30 AM to 6:00 PM.
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/D.G.K/Examiner, Art Unit 3746
/ESSAMA OMGBA/Supervisory Patent Examiner, Art Unit 3746