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 Arguments
Applicant’s arguments with respect to claim(s) 2-5 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.
Applicant’s arguments and amendment filed 02/04/26, with respect to the Mendelson et al reference have been fully considered and are persuasive. The rejection of claims 1-10 has been withdrawn.
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.
Claims 2-5 are rejected under 35 U.S.C. 103 as being unpatentable over Garcia US Patent Pub. 2019/0231568A1.
Garcia discloses a delivery device (70) for delivering a stented prosthesis (32) to a target site. The delivery device comprising a distal portion (see Figs. 2A-2B) configured to retain the stented prosthesis, the distal portion comprising a plurality of tiers (22 and 72) extending along a length of the distal portion, the plurality of tiers comprising a first tier (22) comprising a first length (see figure below) and a first lumen (see Fig. 2A) extending along the first length to a first distal aperture (see figure below). The first lumen defined by a circumferential wall of the first tier surrounding an axis of the first tier. A second tier (72) comprising a second length (See figure below) and a second lumen (see figure below) extending along the second length to a second distal aperture, the second tier comprising a second wall at least partially defining the second lumen (See figure below). The application is silent regarding the interaction between the two tiers. As shown below, tier (22) and tier (72) are in contact with each other at the proximal end of the figure below. Additionally, wherein the second length is less than the first length such that the second distal aperture is proximally spaced from the first distal aperture to stagger the first distal aperture and the second distal aperture along the length of the distal portion (See Figs. 2A-2B).
The reference does not explicitly disclose if the second wall of the second tier is attached to the circumferential wall of the first tier along the second length.
At the time the invention was made, it would have been an obvious matter of design choice to a person of ordinary skill in the art to attached tier (22) and tier (72) together along the circumferential wall of each tier because Applicant has not disclosed that by attaching the tiers provides an advantage, is used for a particular purpose, or solves a stated problem. One of ordinary skill in the art, furthermore, would have expected Applicant’s invention to perform equally well without attaching the two tiers together because it would perform equally as well.
Therefore, it would have been an obvious matter of design choice to modify the Garcia reference to obtain the invention as specified in claim 5.
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Regarding claims 2 and 3 see element (30) as the first elongate tension member and element (76) as the second elongate tension member passing through the lumens of the 1st tier (22) and the lumen of the 2nd tier (72).
Regarding claim 4, see the figure above showing that the two lumens are parallel to each other.
Allowable Subject Matter
Claims 6-12 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
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 ALVIN J STEWART whose telephone number is (571)272-4760. The examiner can normally be reached Monday-Friday 8:30AM-6PM EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Thomas Barrett can be reached at 571-272-4746. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ALVIN J STEWART/Primary Examiner, Art Unit 3799 3/18/26