DETAILED ACTION
Applicant's amendments and remarks, filed 5/26/26, are fully acknowledged by the Examiner. Currently, claims 1-23 are pending with claims 1, 3-4, 7, 10-13, 16-18, 20-21 amended. The following is a complete response to the 5/26/26 communication.
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 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, 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Matey (US 5,649,021) in view of Hale (US 2021/0127074), in further view of Mohr (US 2010/0228249).
Regarding claim 1, Matey teaches an energy-based surgical system comprising: at least one
energy instrument (electrosurgical tool 20) with a configuration for delivering energy to tissue (cutting tool as in col. 3 lines 1-9); an endoscope configured to capture video data of a surgical site including the at least one energy instrument (endoscope 40 to capture video data via camera 50);
an endoscope controller configured to process the video data to determine contextual data pertaining to one of the surgical site or the at least one energy instrument (controller 89 to process data as color from the camera 50); and
an energy generator coupled to the at least one energy instrument (generator 30), the energy generator configured to:
determine, based on the contextual data, the energizing configuration of the at least one energy instrument (video data to determine from the color that the instrument for surgical cutting as in col. 2 line 61 to col. 3 line 8 is configured for cutting in the desired location);
generate an energy output to the at least one energy instrument and to control the energy output based on the determined energizing configuration of the at least one energy instrument (30 to generate output based on the detected signal from 80 and the tool configuration).
Matey is silent regarding the control configured to process by executing a neural network.
However, Hale teaches the use of a neural network in processing video data to determine contextual information (par. [0069]).
It would have been obvious to one of ordinary skill in the art to modify Matey with the neural network of Hale, as a known logic system for processing video information and determining relevant contextual data.Matey is not explicit regarding the energizing configuration determined based on the contextual data.However, Mohr teaches instruments operable in a plurality of configurations (par. [0149] with different settings of a tool for cutting, coagulation).
It would have been obvious to one of ordinary skill in the art to modify Matey with the tool having different configurations, as in Mohr, allowing for different types of treatment with a tool. Mohr teaches
Regarding claim 2, Matey teaches wherein the contextual data includes at least one of type, operational state, position, or orientation of the at least one energy instrument (col. 15, lines 5-13 position data of instrument).
Regarding claim 3, Matey is not explicit regarding wherein the at least one energy instrument is
an electrosurgical instrument operable in a plurality of configurations. However, Mohr teaches instruments operable in a plurality of configurations (par. [0149] with different settings of a tool for cutting, coagulation).
It would have been obvious to one of ordinary skill in the art to modify Matey with the tool having different configurations, as in Mohr, allowing for different types of treatment with a tool.
Regarding claim 4, Matey is silent wherein the energy generator is further configured to select an electrosurgical mode based on a configuration of the at least one energy instrument.
However, Mohr teaches instruments operable in a plurality of configurations, the power supply
generating a different output for different settings (par. [0149] with different settings of a tool for cutting, coagulation).
It would have been obvious to one of ordinary skill in the art to modify Matey with the tool having different configurations, as in Mohr, allowing for different types of treatment with a tool.
Regarding claim 5, Matey teaches wherein the endoscope controller is further configured to determine whether the at least one energy instrument is obstructed or outside of field of vision of the endoscope (col. 5, lines 45-52, marker 22 of instrument presence to determine if tool is present).
Regarding claim 6, Matey teaches wherein the energy generator is further configured to disable the energy output based on determination whether the at least one energy instrument is at least one obstructed or outside of field of vision of the endoscope (col. 3, lines 40-43).
Regarding claim 12, Matey teaches the energy output is RF energy (electrosurgical generator 30).
Claim(s) 13-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Matey (US 5,649,021) in view of Hale (US 2021/0127074), in view of Mohr, in further view of Atarot (US 2015/0238276).
Regarding claim 13, Matey teaches an energy-based surgical system comprising:
One or more electrosurgical instruments having an energizing configuration for delivering energy to tissue (RF cutting instrument 20);
an endoscope configured to capture video data of a surgical site including the one or more electrosurgical instruments (endoscope 40 capturing video data via camera 50 of a surgical site including the electrosurgical instrument as in at least Fig. 1);
an endoscope controller configured to process the video data to determine contextual data pertaining to at least one of the surgical site or the electrosurgical instruments and to identify the one or more electrosurgical instruments (89 to process video data as color and identify the instrument); and an energy generator coupled to the electrosurgical instrument (generator 30), the energy generator configured to provide radio frequency (RF) energy output to the electrosurgical instrument and to control the RF energy output based on the contextual data (electrosurgical energy output to the instrument, controlled by controller 80, 89).
Matey is not explicit regarding the electrosurgical instrument as a plurality of electrosurgical instruments.
However, Mohr teaches multiple surgical instruments viewed in a camera and detected (par. [0284] tools 101a-b).
It would have been obvious to one of ordinary skill in the art to modify Matey with the multiple surgical instruments of Mohr, allowing for multiple tools for different surgical procedures.
Matey is silent regarding the method to determine, based on the contextual data, at least one additional parameter comprising at least one of: a configuration of the one or more electrical instruments, a tissue property change at the surgical site, a presence of an obstruction at the surgical site, a positioning of grasped tissue relative to a jaw member of the one or more electrosurgical instruments, a thermal energy spread at the surgical site, or a presence of a critical tissue structure.
However, Atarot teaches the use of color detected from a camera to determine types of tissue (par. [0373]).
It would have been obvious to one of ordinary skill in the art that data gathered by the camera would be able to determine multiple parameters for treatment, including tissue type as in Atarot, to allow for determining when and what to treat.
Matey is silent regarding the control configured to process by executing a neural network.
However, Hale teaches the use of a neural network in processing video data to determine contextual information (par. [0069]).
It would have been obvious to one of ordinary skill in the art to modify Matey with the neural network of Hale, as a known logic system for processing video information and determining relevant contextual data.
Regarding claim 14, Matey teaches wherein the contextual data includes at least one of type,
operational state, position, or orientation of each of the plurality of electrosurgical instruments (col. 15, lines 5-13 position data).
Regarding claim 15, Matey teaches wherein the endoscope controller is further configured to
determine whether one of the plurality of electrosurgical instruments is obstructed or outside of field of vision of the endoscope and the energy generator is further configured to disable the RF energy output based on determination whether one of the plurality of electrosurgical instruments is at least one obstructed or outside of field of vision of the endoscope (col. 5, lines 45-52, marker 22 of instrument presence to determine if tool is present, and col. 3, lines 40-43).
Regarding claim 16, Matey teaches a method for controlling an energy generator, the method includes:
capturing video data of a surgical site and at least one electrosurgical instrument through an endoscope (endoscope 40 with video camera 50 capturing data of a surgical site and electrosurgical instrument 20 as in at least Fig. 1);
processing the video data at an endoscope controller to determine contextual data pertaining to one of the surgical site or the at least one electrosurgical instrument (controller 89 to process data from the camera 50 determine data); and outputting radio frequency (RF) energy to the at least one
electrosurgical instrument from an energy generator (generator 30 outputs energy to 20); and
controlling the output RF energy based on the determined at least one additional parameter (30 to generate output based on the detected signal from 80).
Matey is silent regarding executing a neural network.
However, Hale teaches the use of a neural network in processing video data to determine contextual information (par. [0069]).
It would have been obvious to one of ordinary skill in the art to modify Matey with the neural network of Hale, as a known logic system for processing video information and determining relevant contextual data.
Matey is silent regarding the method to determine, based on the contextual data, at least one additional parameter comprising at least one of: a configuration of the one or more electrical instruments, a tissue property change at the surgical site, a presence of an obstruction at the surgical site, a positioning of grasped tissue relative to a jaw member of the one or more electrosurgical instruments, a thermal energy spread at the surgical site, or a presence of a critical tissue structure.
However, Atarot teaches the use of color detected from a camera to determine types of tissue (par. [0373]).
It would have been obvious to one of ordinary skill in the art that data gathered by the camera would be able to determine multiple parameters for treatment, including tissue type as in Atarot, to allow for determining when and what to treat, and treatment with RF depending on all the parameters.
Regarding claim 17, Matey is not explicit regarding further comprising operating the at least one electrosurgical instrument in one of a plurality of energizing configurations.
However, Mohr teaches instruments operable in a plurality of energizing configurations (par. [0149] with different settings of a tool for cutting, coagulation).
It would have been obvious to one of ordinary skill in the art to modify Matey with the tool having different configurations, as in Mohr, allowing for different types of treatment with a tool.
Regarding claim 18, Matey is not explicit regarding further comprising selecting at the energy
generator an electrosurgical mode based on the energizing configuration of the at least one electrosurgical instrument.
However, Mohr teaches instruments operable in a plurality of configurations, the power supply
generating a different output for different settings (par. [0149] with different settings of a tool for cutting, coagulation).
It would have been obvious to one of ordinary skill in the art to modify Matey with the tool having different energizing configurations, as in Mohr, allowing for different types of treatment with a tool.
Regarding claim 19, Matey teaches determining whether the at least one electrosurgical instrument is obstructed or outside of field of vision of the endoscope (col. 5, lines 45-52, marker 22 of instrument presence to determine if tool is present).
Regarding claim 20, Matey teaches disabling the RF energy output based on determination whether the at least one electrosurgical instrument is at least one obstructed or outside of field of vision of the endoscope (col. 3, lines 40-43).
Claim(s) 7-9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Matey in view of Hale, in view of Mohr, in further view of McKenna (US 2009/0248021).
Regarding claim 7, Matey is silent wherein the at least one energy instrument includes an electrosurgical forceps with a bipolar energizing configuration and
configured to form a tissue seal.
However, McKenna teaches a bipolar forceps for creating a seal (par. [0012)).
It would have been obvious to one of ordinary skill in the art that the tool of Matey could be a bipolar forceps configured to form a tissue seal as in McKenna, as an electrosurgical tool that would benefit from being viewed during treatment to ensure treatment of the target tissue.
Regarding claim 8, Matey is silent regarding wherein the endoscope controller is further configured to determine at least one parameter of the tissue seal.
However, McKenna teaches determining a parameter of the seal (impedance determined as in par. [0009]).It would have been obvious to one of ordinary skill in the art to modify the combination such that a parameter of the seal, such as impedance, is determined, as in McKenna, to better control the sealing procedure.
Regarding claim 9, Matey is silent regarding wherein the energy generator is configured to adjust the energy output based on the at least one parameter of the tissue seal.
However, McKenna teaches adjusting energy output based on the parameter of the tissue seal (par. [0009] adjusting energy transmitted based on impedance detected, such as end seal condition as in par. [0013}).
It would have been obvious to one of ordinary skill in the art to modify the combination such that a parameter of the seal, such as impedance, is determined, as in McKenna, to better control energy delivered in the sealing procedure.
Claim(s) 21-23 is/are rejected under 35 U.S.C. 103 as being unpatentable over Matey in view of Hale, in further view of McKenna (US 2009/0248021), in view of Mohr, in further view of Atarot.
Regarding claim 21, Matey is silent wherein the at least one electrosurgical instrument is a bipolar forceps configured to form a tissue seal.
However, McKenna teaches a bipolar forceps for creating a seal (par. [0012]).
It would have been obvious to one of ordinary skill in the art that the tool of Matey could be a bipolar forceps configured to form a tissue seal as in McKenna, as an electrosurgical tool that would benefit from being viewed during treatment to ensure treatment of the target tissue.
Regarding claim 22, Matey is silent regarding determining at least one parameter of the tissue seal.
However, McKenna teaches determining a parameter of the seal (impedance determined as in par. [0009)).
It would have been obvious to one of ordinary skill in the art to modify the combination such that a parameter of the seal, such as impedance, is determined, as in McKenna, to better control the sealing procedure.
Regarding claim 23, Matey is silent regarding adjusting the RF energy output based on the at least one parameter of the tissue seal.
However, McKenna teaches adjusting energy output based on the parameter of the tissue seal (par. [0009] adjusting energy transmitted based on impedance detected, such as end seal condition as in par. [0013)).
It would have been obvious to one of ordinary skill in the art to modify the combination such that a parameter of the seal, such as impedance, is determined, as in McKenna, to better control energy delivered in the sealing procedure.
Claim(s) 10-11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Matey in view of Hale, in view of Mohr, in further view of Price (US 2017/0196585).
Regarding claim 10, Matey does not necessitate the tool as an ultrasonic dissector, but teaches ultrasonic tools may be used as in col. 1, lines 28-30. However, Price teaches ultrasonic dissectors of electrosurgical tools (par. [0022]). It would have been obvious to one of ordinary skill in the art to modify the tool of Matey to be an ultrasonic dissector as in Price, giving specificity to the ultrasonic tools that may be used in Matey.
Regarding claim 11, Matey is not explicit wherein the energy generator is further configured to adjust the energy output or vibration duration in response to an orientation of the ultrasonic dissection instrument relative to tissue. However, Price teaches adjusting vibration or frequency due to orientation (claim 39, [0062]). It would have been obvious to one of ordinary skill in the art to modify Matey with the adjusting parameters in response to an orientation of the ultrasonic dissection instrument relative to tissue, as in Price, allowing for adjusting treatment according to sensed parameters (par. [0062)).
Response to Arguments
Applicant’s arguments, see the remarks, filed 5/26/26/, with respect to the rejection(s) of claim(s) 1 under 35 USC 103 have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Mohr as a secondary reference. Mohr teaches different energizing configurations of a device, and Matey teaches identifying a cutting instrument.
Applicant's arguments filed 5/26/26 have been fully considered but they are not persuasive. Regarding claim 16, Applicant argues that the office action reaches determining types of tissue rather than a tissue property change. However, a change in tissue type would be a change in a tissue property.
Regarding claim 13, Applicant argues that the office action reaches determining types of tissue rather than a tissue property change. However, a change in tissue type would be a change in a tissue property.
Applicant’s remaining arguments are dependent on arguments addressed above and are not persuasive for the same reasoning.
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 BO OUYANG whose telephone number is (571)272-8831. The examiner can normally be reached M-F 8-5 EST.
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/BO OUYANG/Examiner, Art Unit 3794
/MICHAEL F PEFFLEY/Primary Examiner, Art Unit 3794
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