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 Arguments
Applicant's arguments filed 07 August 2025 have been fully considered but they are not persuasive.
Applicant argues that Fraser reduces the average size of tissue pieces by enzymatic digestion and not mechanical processing and thus there is no teaching that the device of Fraser can perform the mechanical processing to reduce the average size of tissue pieces. Examiner respectfully disagrees. While the device of Fraser indeed has a step of washing, the claim limitations recite “said lipoaspirate processing unit configured, when activated to mechanically process lipoaspirate inside the liposuction filter canister functionally- associated with the liposuction device reduce the average size of the adipose tissue pieces in the lipoaspirate without rupturing the lipocytes”. This mechanically processing of the lipoaspirate only needs to reduce the average size of the adipose tissue pieces in the lipoaspirate without rupturing the lipocytes which is already taught in [0102] wherein the vibration of the filter would indeed result in the movement of material through the pores of the filter and thus reduces the average size through natural filtration. The examiner position is not that the mechanical processing involves the enzyme digestion but merely the movement of the adipose tissues through the actual filter would result in reducing the average size due to filtration. Thus, Applicant’s arguments while are correct with regard to the enzymes, Fraser still meets the limitations of the claim as the vibrating filter would result in reducing the average size of tissue. The rejection below is supplemented to further clarify the rejection and does not change the grounds of rejection.
Claims 1-8, 10, 24-26 are pending and examined on the merits.
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: lipoaspirate processing unit in claim 1, liposuction vacuum module in claim 2, vibration unit in claim 10.
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 [0062-0063] for teaching the lipoaspirate processing unit.
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 § 102
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 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.
Claims 1-8 and 10 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Fraser (US 2005/0048033).
Regarding claim 1, Fraser discloses a liposuction device (10) configured for performing liposuction by drawing in vivo adipose tissue from a body as a lipoaspirate through a cannula ([0071]) and transferring at least some the harvested adipose tissue into a liposuction filter canister (30, [0075], figure 3 and 6) functionally associated with the liposuction device, the device comprising: a lipoaspirate processing unit (30 and 36), said lipoaspirate processing unit configured, when activated to mechanically process lipoaspirate ([0124], vibrating member coupled to the filter) contained inside the liposuction filter canister (30) functionally- associated with the liposuction device, said mechanically processing reduces the average size of the adipose tissue pieces in lipoaspirate without substantially rupturing lipocytes ([0102], figure 6, said mechanically processing reducing the average size).
Regarding claim 2, Fraser discloses the liposuction device comprising a liposuction vacuum module (26 34, [0118], [0093], figures 1-3) attachable to the liposuction filter canister functionally-associated with the liposuction device through a vacuum port (figure 2, vacuum attached to the canister through 12g) thereof, said liposuction vacuum module configured, when attached to a liposuction filter canister and activated, to effect liposuction through said liposuction filter canister and through a liposuction probe functionally associated therewith, thereby allowing trapping of harvested adipose tissue in a filter liner of the attached filter canister ([0122-0124]).
Regarding claim 3, Fraser discloses the liposuction device configured to allow activation of said lipoaspirate processing unit to mechanically process the contents of a liposuction filter canister functionally associated with the liposuction device while the liposuction filter canister is attached to said liposuction vacuum module ([0118], [0122-0124]).
Regarding claim 4, Fraser discloses said liposuction vacuum module further configured to remove liquids from a container of liposuction filter canister functionally-associated with the liposuction device (34, [0093], figure 3).
Regarding claim 5, Fraser discloses said liposuction filter canister includes functionally associated with the liposuction device through a drainage port configured to allow removal of liquids from the filter canister ([0122-0124]).
Regarding claim 6, Fraser discloses further comprising a liposuction probe ([0081]) having a distal end attachable to a liposuction cannula ([0081, standard cannula part of a probe) and a proximal end (end of the line 12a) attachable to the liposuction filter canister (30) functionally-associated with the liposuction device through an aspirate inlet (inlet at the end of 12a) thereof, said liposuction probe configured to direct liposuction aspirate harvested via an attached liposuction cannula into a container (container of 30) of the attached liposuction filter canister ([0081]).
Regarding claim 7, Fraser discloses further comprising the liposuction filter canister includes an access port (31c) configured to allow an amount of liquid to be added to said liposuction filter canister ([0122]).
Regarding claim 8, Fraser discloses a controller ([0144]) configured to automatically process lipoaspirate contained in the liposuction filter canister that is functionally associated with the liposuction device ([0144-0145]), said automatic processing comprising activation of said lipoaspirate processing unit, said fluid drainage module and said washing module in a desired order for a desired duration ([0145]).
Regarding claim 10, Fraser discloses wherein said lipoaspirate processing unit comprises a vibration unit ([0124]), said vibration unit configured when activated to produce and apply vibration to lipoaspirate contained inside a liposuction filter canister functionally-associated with the liposuction device, said vibration effective to mechanically process said lipoaspirate ([0124], vibrating member coupled to the filter).
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.
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 24 is rejected under 35 U.S.C. 103 as being unpatentable over Fraser (US 2005/0048033).
Regarding claim 24, Fraser does not disclose wherein said vibrations have a frequency of less than 20kHz.
Fraser discloses that the vibrating member may be coupled to the filter 36b (e.g., the small pore filter). Vibrating can reduce an incidence of cells becoming trapped in the filters. The vibration frequency is a result effective variable in that changing vibration would reduce incidence of cells trapped in the filter. Further, it appears that one of ordinary skill in the art would have had a reasonable expectation of success in modifying the Fraser device to have a vibration frequency within the claimed range, as it involves only adjusting the settings of a component disclosed to require adjustment. Therefore, it would have been obvious to one having ordinary skill in the art at the time of the invention to modify the device of Fraser by making the vibration of less than 20kHz as a matter of routine optimization since it has been held that “where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Claim(s) 25-26 are rejected under 35 U.S.C. 103 as being unpatentable over Fraser (US 2005/0048033) in view of Kamikawa (US 2003/0084929).
Regarding claim 25, Fraser does not disclose wherein said vibration unit comprises at least one sonic transmitter probe configured to be positioned in a volume enclosed by a filter liner of the liposuction filter canister functionally associated with the liposuction device.
Kamikawa discloses a processing system relatively pertinent to problem posed by Applicant of filtering material. Kamikawa teaches vibrating unit (sonic vibrator, [0121]) comprises at least one sonic transmitter probe configured to be positioned on the filter and thus inside the interior volume ([0121]). The combined device would have the transmitter on the filter inside the liner.
Kamikawa provides the sonic vibrations on the filter in order to release undesired material on the filter ([0120]). It would have been obvious to a person of ordinary skill in the art at the effective filling date to modify Fraser by putting the sonic transmitter on the filter in order to release unreleased material since Fraser already teaches the use of a vibrator but doesn’t specify the location.
Regarding claim 26, Fraser discloses the vibration unit coupled to the filter liner (36b, [0124]) and causes the filter to vibrate when activated ([0124]), but Fraser does not disclose said vibration unit comprises a sonic transmitter, said sonic transmitter causes a physically-associated said filter liner to vibrate.
Kamikawa discloses a processing system relatively pertinent to problem posed by Applicant of filtering material. Kamikawa teaches vibrating unit comprises at least one sonic transmitter probe (sonic vibrator, [0121]) configured to be positioned on the filter and vibrate the filter ([0120-0121]).
Kamikawa provides the sonic vibrations on the filter in order to release undesired material on the filter ([0120]). It would have been obvious to a person of ordinary skill in the art at the effective filling date to modify Fraser by putting the sonic transmitter on the filter in order to release unreleased material since Fraser already teaches the use of a vibrator but doesn’t specify the location.
Conclusion
THIS ACTION IS MADE FINAL. 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 KAI H WENG whose telephone number is (571)272-5852. The examiner can normally be reached M-F 9am-5pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Rebecca Eisenberg can be reached on (571) 270-5879. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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KAI H. WENG
Primary Examiner
Art Unit 3761
/KAI H WENG/Primary Examiner, Art Unit 3781