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 .
Election/Restrictions
Applicant’s election without traverse of group I in the reply filed on 1/5/2026 is acknowledged.
Claims 23-29 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 1/5/2026.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 9/1/2023 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Specification
The disclosure is objected to because of the following informalities:
This application claims priority to provisional application 63/325,710 filed 3/31/2022. Examiner suggests amending the specification to include the heading “Cross-References to Related Applications” under the title, and amending the specification to include that the application claims priority to provisional application 63/325, 710 filed 3/31/2022.
Appropriate correction is required.
Claim Objections
Claim 1 is objected to because of the following informalities:
Line 25 recites “tissue and/or gas”. Line 9 introduces tissue and/or gas. As antecedent basis is already provided for the tissue and/or gas of line 25, Examiner suggests replacing “tissue and/or gas” in line 25 with “the tissue and/or the gas” if the tissue and/or gas of line 25 is the same tissue and/or gas as in line 9. If intended to be different or broad, no amendment is needed.
Claim 5 is objected to because of the following informalities:
Line 1 recites “claim 4,wherein”. Examiner suggests adding a space between “claim 4,” and “wherein”.
Claim 15 is objected to because of the following informalities:
Line 2 recites “along a lengthy of the”. This is grammatically incorrect. Examiner suggests replacing “along a lengthy of the” in line 2 of claim 15 with “along a length of the”.
Claim 19 is objected to because of the following informalities:
Line 2 recites “make-up gas”. Claim 19 depends on claim 1. Claim 1 introduces make-up gas. As antecedent basis is already provided for the make-up gas, Examiner suggests replacing “make-up gas” in line 2 of claim 19 with “the make-up gas” if the make-up gas of claim 19 is the same as in claim 1. If intended to be different or broad, no amendment is needed.
Line 3 recites “tissue and/or gas”. Claim 19 depends on claim 1. Claim 1 introduces tissue and/or gas. As antecedent basis is already provided for the tissue and/or gas of claim 19, Examiner suggests replacing “tissue and/or gas” in line 3 of claim 19 with “the tissue and/or the gas” if the tissue and/or gas of claim 19 is the same tissue and/or gas as in claim 1. If intended to be different or broad, no amendment is needed. Examiner notes if line 25 of claim 1 is not amended as suggested by the Examiner, line 3 of claim 19 should also not be amended.
Claim 22 is objected to because of the following informalities:
Line 12 recites “located in cavity”. This is grammatically incorrect. Examiner suggests replacing “located in cavity” in line 12 of claim 22 with “located in a cavity”.
Line 13 recites “and entry of make-up gas”. Examiner suggests replacing “and entry of make-up gas” in line 13 of claim 22 with “and to facilitate entry of make-up gas” to put the claim in clearer form as to what is meant by “and entry of make-up gas”.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-22 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
In regard to claim 1,
Line 3 recites “a first proximal port to the first lumen”. It is unclear what is meant by this. It is unclear if the first proximal port is connected to the first lumen or if a word has been mistakenly omitted before the term “to” like the term proximal or distal for example. For examination purposes Examiner construes “a first proximal port to the first lumen” to be “a first proximal port connected to the first lumen”. Examiner suggests replacing “a first proximal port to the first lumen” in line 3 of claim 1 with “a first proximal port connected to the first lumen”.
Line 6 recites “a first distal port to the first lumen”. It is unclear what is meant by this. It is unclear if the first distal port is connected to the first lumen or if a word has been mistakenly omitted before the term “to” like the term proximal or distal for example. For examination purposes Examiner construes “a first distal port to the first lumen” to be “a first distal port connected to the first lumen”. Examiner suggests replacing “a first distal port to the first lumen” in line 6 of claim 1 with “a first distal port connected to the first lumen”.
Line 9-11 recites “wherein the first structure causes tissue and/or gas to be drawn into the first distal port and through the first lumen when the first proximal end portion is coupled to the suction source”. It is unclear if a method step is intended to be claimed due to the term “causes”. A single claim which claims both an apparatus and the method steps of using the apparatus is indefinite under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph. See MPEP 2173.05(p). For examination purposes Examiner construes “wherein the first structure causes tissue and/or gas to be drawn into the first distal port and through the first lumen when the first proximal end portion is coupled to the suction source” to be “wherein the first structure is configured to cause tissue and/or gas to be drawn into the first distal port and through the first lumen when the first proximal end portion is coupled to the suction source”. Examiner suggests replacing “wherein the first structure causes tissue and/or gas to be drawn into the first distal port and through the first lumen when the first proximal end portion is coupled to the suction source” in line 9-11 of claim 1 with “wherein the first structure is configured to cause tissue and/or gas to be drawn into the first distal port and through the first lumen when the first proximal end portion is coupled to the suction source”.
Line 13-14 recites “a second proximal port to the second lumen”. It is unclear what is meant by this. It is unclear if the second proximal port is connected to the second lumen or if a word has been mistakenly omitted before the term “to” like the term proximal or distal for example. For examination purposes Examiner construes “a second proximal port to the second lumen” to be “a second proximal port connected to the second lumen”. Examiner suggests replacing “a second proximal port to the second lumen” in line 13-14 of claim 1 with “a second proximal port connected to the second lumen”.
Line 18 recites “a second distal port to the second lumen”. It is unclear what is meant by this. It is unclear if the second distal port is connected to the second lumen or if a word has been mistakenly omitted before the term “to” like the term proximal or distal for example. For examination purposes Examiner construes “a second distal port to the second lumen” to be “a second distal port connected to the second lumen”. Examiner suggests replacing “a second distal port to the second lumen” in line 18 of claim 1 with “a second distal port connected to the second lumen”.
Line 22 recites “the patient”. There is insufficient antecedent basis for the limitation in this claim. Line 8 introduces a subject. It is unclear if the patient is intended to be the same or different than the subject. For examination purposes Examiner construes them to be the same. Examiner suggests replacing “the patient” in line 22 of claim 1 with “the subject”.
Line 23 recites “wherein the second structure allows make-up gas to flow”. It is unclear if a method step is intended to be claimed due to the term “allows”. A single claim which claims both an apparatus and the method steps of using the apparatus is indefinite under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph. See MPEP 2173.05(p). For examination purposes Examiner construes “wherein the second structure allows make-up gas to flow” to be “wherein the second structure is configured to allow make-up gas to flow”. Examiner suggests replacing “wherein the second structure allows make-up gas to flow” in line 23 of claim 1 with “wherein the second structure is configured to allow make-up gas to flow”.
Examiner notes claims 2-21 are similarly rejected by virtue of their dependency on claim 1.
In regard to claim 9,
Line 2 recites “the first distal port of the first structure includes one or more openings”. It is unclear what is meant by line 2 and how a single port as claimed can include multiple openings. For examination purposes Examiner construes “the first distal port of the first structure includes one or more openings” to require the first structure to include one or more additional distal ports. Examiner suggests amending line 2 of claim 9 to replace “the first distal port of the first structure includes one or more openings” with “the first structure includes one or more additional distal ports”. All claims that depend on claim 9 should be amended accordingly if line 2 of claim 9 is amended to state “the first structure includes one or more additional distal ports”.
Line 3 recites “the second distal port of the second structure includes one or more openings”. It is unclear what is meant by line 3 and how a single port as claimed can include multiple openings. For examination purposes Examiner construes “the second distal port of the second structure includes one or more openings” to require the second structure to include one or more additional distal ports. Examiner suggests amending line 3 of claim 9 to replace “the second distal port of the second structure includes one or more openings” with “the second structure includes one or more additional distal ports”. All claims that depend on claim 9 should be amended accordingly if line 3 of claim 9 is amended to state “the second structure includes one or more additional distal ports”.
Line 4 recites “the second proximal port of the second structure includes one or more openings”. It is unclear what is meant by line 4 and how a single port as claimed can include multiple openings. For examination purposes Examiner construes “the second proximal port of the second structure includes one or more openings” to require the second structure to include one or more additional proximal ports. Examiner suggests amending line 4 of claim 9 to replace “the second proximal port of the second structure includes one or more openings” with “the second structure includes one or more additional proximal ports”. All claims that depend on claim 9 should be amended accordingly if line 4 of claim 9 is amended to state “the first structure includes one or more additional distal ports”.
Examiner notes claims 10-18 are similarly rejected by virtue of their dependency on claim 9.
In regard to claim 10,
Line 1-2 recites “the one or more openings of the second distal port”. As noted above, it is unclear how a single port as claimed can include multiple openings. Examiner suggests amending claim 10 to be consistent with how claim 9 is amended as suggested above.
Line 2-3 recites “the one or more openings of the first distal port”. As noted above, it is unclear how a single port as claimed can include multiple openings. Examiner suggests amending claim 10 to be consistent with how claim 9 is amended as suggested above.
Examiner notes claim 11 is similarly rejected by virtue of its dependency on claim 10.
In regard to claim 11,
Line 1-2 recites “the at least one or more openings of the second distal port”. Claim 11 depends on claim 10. Claim 10 recites “at least one of the one or more openings of the second distal port”. It is unclear if “the at least one or more openings of the second distal port” of claim 11 refers to “the at least one of the one or more openings of the second distal port” or to “the one or more openings of the second distal port”. For examination purposes Examiner construes “the at least one or more openings of the second distal port” in line 1-2 to be “the at least one of the one or more openings of the second distal port”. Examiner suggests amending claim 11 to be consistent with how claim 9 and 10 are amended as suggested above.
Line 2-3 recites “a proximal-most opening of the one or more openings of the first distal port”. Claim 11 depends on claim 10. Claim 10 recites “a proximal-most opening of the one or more openings of the first distal port”. It is unclear if line 2-3 of claim 11 is intending to claim a second proximal-most opening of the one or more openings of the first distal port or refer to the proximal-most opening of the one or more openings of the first distal port. For examination purposes Examiner construes “a proximal-most opening of the one or more openings of the first distal port” in line 2-3 of claim 11 to be “the proximal-most opening of the one or more openings of the first distal port”.
In regard to claim 12,
Line 1-2 recites “wherein the second distal port of the second structure includes a plurality of openings”. It is unclear how a single port as claimed can include multiple openings. Additionally, claim 12 depends on claim 9. Claim 9 requires the second distal port of the second structure to include one or more openings. It is unclear if the plurality of openings of claim 12 are in addition to the one or more openings of claim 9 or if the second distal port of the second structure includes one or more openings and the one or more openings comprise a plurality of openings. For examination purposes Examiner construes the one or more openings of the second distal port of the second structure to comprise a plurality of openings. Examiner suggests amending claim 12 to be consistent with how claim 9 is amended as suggested above and specifying that the one or more additional distal ports of the second structure comprise a plurality of openings.
In regard to claim 13,
Line 1-2 recites “wherein the second distal port of the second structure includes an opening”. Claim 13 depends on claim 9. Claim 9 requires “the second distal port of the second structure includes one or more openings”. It is unclear if the opening of claim 13 is in addition to the one or more openings of claim 9 or if the opening is of the one or more openings. For examination purposes Examiner construes the one or more openings of the second distal port of the second structure to comprise an opening. Examiner suggests amending claim 13 to be consistent with how claim 9 is amended as suggested above and specifying that the one or more additional distal ports of the second structure comprise an opening.
In regard to claim 14,
Line 1-2 recites “wherein the second proximal port of the second structure includes one or more openings”. It is unclear how a single port as claimed can include multiple openings. Additionally, claim 14 depends on claim 9. Claim 9 requires the second proximal port of the second structure to include one or more openings. It is unclear if the one or more openings of claim 14 are in addition to the one or more openings of claim 9. For examination purposes Examiner construes the second proximal port to be one or more second proximal ports. Examiner suggests canceling claim 14 as detailed below. Examiner notes the dependency of claim 15-16 should be updated accordingly if claim 14 is canceled.
Examiner notes claims 15-16 are similarly rejected by virtue of their dependency on claim 14.
In regard to claim 15,
Line 1-2 recites “the second proximal port of the second structure includes a plurality of openings”. It is unclear how a single port as claimed can include multiple openings. Additionally, claim 15 depends on claim 9 and 14. Claim 9 and 14 require the second proximal port of the second structure to include one or more openings. It is unclear if the plurality of openings of claim 15 are in addition to the one or more openings of claim 9 and claim 14 or if the second proximal port of the second structure includes one or more openings and the one or more openings comprise a plurality of openings. For examination purposes Examiner construes the one or more openings of the second proximal port of the second structure to comprise a plurality of openings. Examiner suggests amending claim 15 to be consistent with how claim 9 is amended as suggested above and specifying that the one or more additional proximal ports of the second structure comprise a plurality of openings.
In regard to claim 16,
Line 1-2 recites “wherein the second proximal port of the second structure includes an opening”. Claim 16 depends on claim 9 and 14. Claim 9 requires “the second proximal port of the second structure includes one or more openings”. It is unclear if the opening of claim 16 is in addition to the one or more openings of claim 9 or if the opening is of the one or more openings. For examination purposes Examiner construes the one or more openings of the second proximal port of the second structure to comprise an opening. Examiner suggests amending claim 16 to be consistent with how claim 9 is amended as suggested above and specifying that the one or more additional proximal ports of the second structure comprise an opening.
In regard to claim 17,
Line 1-2 recites “wherein first distal port of the first structure includes one or more openings”. Claim 17 is dependent on claim 9. Claim 9 requires “the first distal port of the first structure includes one or more openings”. It is unclear if the one or more openings of claim 17 are in addition to the one or more openings of claim 9 or if the one or more openings of claim 17 are the same or included in the one or more openings of claim 9. For examination purposes Examiner construes the one or more openings of claim 17 to be of the one or more openings of claim 9. Examiner suggests amending claim 17 to be consistent with how claim 9 is amended as suggested above and specifying that the one or more additional distal ports of the first structure includes one or more openings through a side of the first structure.
In regard to claim 18,
Line 1-2 recites “wherein the first distal port of the first structure includes an opening”. Claim 18 depends on claim 9. Claim 9 requires “the first distal port of the first structure includes one or more openings”. It is unclear if the opening of claim 18 is in addition to the one or more openings of claim 9 or if the opening is of the one or more openings. For examination purposes Examiner construes the one or more openings of the first distal port of the first structure to comprise an opening. Examiner suggests amending claim 18 to be consistent with how claim 9 is amended as suggested above and specifying that the one or more additional distal ports of the first structure comprise an opening.
In regard to claim 22,
Line 3 recites “a first proximal port to the first lumen”. It is unclear what is meant by this. It is unclear if the first proximal port is connected to the first lumen or if a word has been mistakenly omitted before the term “to” like the term proximal or distal for example. For examination purposes Examiner construes “a first proximal port to the first lumen” to be “a first proximal port connected to the first lumen”. Examiner suggests replacing “a first proximal port to the first lumen” in line 3 of claim 22 with “a first proximal port connected to the first lumen”.
Line 5 recites “a first distal port to the first lumen”. It is unclear what is meant by this. It is unclear if the first distal port is connected to the first lumen or if a word has been mistakenly omitted before the term “to” like the term proximal or distal for example. For examination purposes Examiner construes “a first distal port to the first lumen” to be “a first distal port connected to the first lumen”. Examiner suggests replacing “a first distal port to the first lumen” in line 5 of claim 22 with “a first distal port connected to the first lumen”.
Line 7-8 recites “a second proximal port to the second lumen”. It is unclear what is meant by this. It is unclear if the second proximal port is connected to the second lumen or if a word has been mistakenly omitted before the term “to” like the term proximal or distal for example. For examination purposes Examiner construes “a second proximal port to the second lumen” to be “a second proximal port connected to the second lumen”. Examiner suggests replacing “a second proximal port to the second lumen” in line 7-8 of claim 22 with “a second proximal port connected to the second lumen”.
Line 9 recites “a second distal port to the second lumen”. It is unclear what is meant by this. It is unclear if the second distal port is connected to the second lumen or if a word has been mistakenly omitted before the term “to” like the term proximal or distal for example. For examination purposes Examiner construes “a second distal port to the second lumen” to be “a second distal port connected to the second lumen”. Examiner suggests replacing “a second distal port to the second lumen” in line 9 of claim 22 with “a second distal port connected to the second lumen”.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 14 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
In regard to claim 14,
Line 1-2 recites “wherein the second proximal port of the second structure includes one or more openings”. Claim 14 is dependent on claim 9. Claim 9 requires “ the second proximal port of the second structure includes one or more openings”. Claim 14 fails to further limit claim 9 as the limitations of claim 14 are already stated in claim 9. Examiner suggests canceling claim 14.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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 19-22 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by a first interpretation of Cimino (U.S. Patent no 6129701).
In regard to claim 1,
Cimino discloses an instrument (see figure 1 and figure 4, item 10), comprising:
a first structure (item 28 and the portion of item 19 that defines lumen 20) defining a first lumen (figure 1 and 1A, item 20), the first structure including:
a first proximal end portion (see proximal end portion of item 20 shown in figure 1) comprising a first proximal port (opening of item 20 connected to item 13 as shown in figure 1) to the first lumen (see figure 1), wherein the first proximal port is configured to be coupled to a suction source (figure 1, item 11; Examiner notes “configured to be coupled to a suction source” is a functional limitation. The suction source is not positively required by the claim. As shown in figure 1, the first proximal port is coupled to suction source 11);
a first distal end portion (see distal end portion of formed by the distal most end of item 28 shown in figure 4) comprising a first distal port (figure 4, item 29) to the first lumen (see figure 4), wherein the first distal end portion including the first distal port are configured to be located at a site within a cavity of a subject (Examiner notes “configured to be located at a site within a cavity of a subject” is a functional limitation. The first distal end portion including the first distal port are fully capable of the recited function due to their structure; see column 8, line 27-30); and
wherein the first structure causes tissue and/or gas to be drawn into the first distal port and through the first lumen when the first proximal end portion is coupled to the suction source (column 3, line 12-14 and line 32-57); and
a second structure (portion of item 19 that defines lumen 21) defining a second lumen (figure 1 and 1A, item 21), the second structure including:
a second proximal end portion (see proximal end portion of item 21 shown in figure 1) comprising a second proximal port (opening of item 21 connected to item 13 as shown in figure 1) to the second lumen (see figure 1), wherein the second proximal end portion including the second proximal port are configured to be located outside the cavity of the subject when the first distal end portion including the first distal port of the first structure are located within the cavity of the subject (see figure 1; Examiner notes “wherein the second proximal end portion including the second proximal port are configured to be located outside the cavity of the subject when the first distal end portion including the first distal port of the first structure are located within the cavity of the subject” is a functional limitation. The second proximal end portion including the second proximal port are fully capable of the recited function due to their structure); and
a second distal end portion (see distal end portion of item 21 shown in figure 4) comprising a second distal port (figure 4, item 30) to the second lumen (see figure 4), wherein the second distal end portion including the second distal port are configured to be located within the cavity of the subject when the first distal end portion including the first distal port of the first structure are located within the cavity of the patient (Examiner notes “wherein the second distal end portion including the second distal port are configured to be located within the cavity of the subject when the first distal end portion including the first distal port of the first structure are located within the cavity of the patient” is a functional limitation. The second distal end portion including the second distal port is fully capable of the recited function due to their structure. See also column 8, line 32-35); and
wherein the second structure allows make-up gas to flow into the second proximal port, through the second lumen and out the second distal port, and into the cavity of the subject (column 5, line 38-41; Examiner notes make-up gas would be allowed to flow into the second proximal port, through the second lumen and out the second distal port due to the fact that biocompatible gas can be delivered through item 21), when tissue and/or gas is drawn into the first distal port of the first lumen of the first structure (column 3, line 32-57; Examiner notes irrigation with gas and suction can be applied simultaneously).
In regard to claim 2,
Cimino discloses the instrument of claim 1, wherein:
the first structure defines a first length between the first proximal end portion and the first distal end portion (see figure 1 and 4); and
the second structure defines a second length between the second proximal end portion and the second distal end portion (see figure 1 and 4).
In regard to claim 3,
Cimino discloses the instrument of claim 2, wherein the first and second structures are coupled to one another along the first and second lengths (see figure 1 and 4).
In regard to claim 4,
Cimino discloses the instrument of claim 3, further comprising a handle (figure 1, item 13) on the first proximal end portion of the first structure (see figure 1).
In regard to claim 5,
Cimino discloses the instrument of claim 4, wherein the first length is greater than the second length (see analysis of claim 1 and 2 above).
In regard to claim 6,
Cimino teaches the instrument of claim 5, wherein the handle is located on the first structure proximal of the second proximal end portion of the second structure (see figure 1).
In regard to claim 7,
Cimino discloses the instrument of claim 4, wherein the first proximal port is located adjacent to or proximal to a distal end of the handle (see figure 1).
In regard to claim 8,
Cimino discloses the instrument of claim 2, wherein the first length is greater than the second length (see analysis of claim 1 and 2 above).
In regard to claim 19,
Cimino discloses the instrument of claim 1, wherein the second structure is configured to allow make-up gas to be drawn into the second proximal port, through the second lumen and out the second distal port, and into the cavity of the subject, in response to tissue and/or gas being drawn into the first distal port of the first lumen of the first structure (Examiner notes “configured to allow make-up gas to be drawn into the second proximal port, through the second lumen and out the second distal port, and into the cavity of the subject, in response to tissue and/or gas being drawn into the first distal port of the first lumen of the first structure” is a functional limitation. The second structure is fully capable of the recited function as supported by column 5, line 38-41 and column 32-57. Examiner notes biocompatible gas can be delivered through item 21 and irrigation with gas and suction can be applied simultaneously).
In regard to claim 20,
Cimino discloses the instrument of claim 1, wherein the second proximal port of the second structure is configured to be exposed to atmospheric pressure outside the cavity of the subject (Examiner notes “configured to be exposed to atmospheric pressure outside the cavity of the subject” is a functional limitation. The second proximal port is fully capable of the recited function due to its structure. For example, the second proximal port is outside of the cavity and can be disconnected from the irrigation source which would allow the second proximal port of the second structure to be exposed to atmospheric pressure outside the cavity of the subject).
In regard to claim 21,
Cimino discloses the instrument of claim 1, wherein the second proximal port of the second structure is configured to be coupled to a source of gas (figure 1, item 12; column 5, line 38-41) at a pressure greater than atmospheric pressure (Examiner notes configured to be coupled to a source of gas at a pressure greater than atmospheric pressure is a functional limitation. The second proximal port of the second structure is fully capable of the recited function due to its structure. A source of gas at a pressure greater than atmospheric pressure is not positively required by the claim).
In regard to claim 22,
Cimino discloses an instrument (see figure 1 and figure 4, item 10), comprising:
a first structure (portion of item 19 that defines lumen 20) defining a first lumen (figure 1 and 1A, item 20), including:
a first proximal end portion (see proximal end portion of item 20 shown in figure 1) comprising a first proximal port (opening of item 20 connected to item 13 as shown in figure 1) to the first lumen (see figure 1); and
a first distal end portion (see distal end portion of item 20 shown in figure 4) comprising a first distal port (figure 4, item 29) to the first lumen (see figure 4); and
a second structure (portion of item 19 that defines lumen 21) defining a second lumen (figure 1 and 1A, item 21), including:
a second proximal end portion (see proximal end portion of item 21 shown in figure 1) comprising a second proximal port (opening of item 21 connected to item 13 as shown in figure 1) to the second lumen (See figure 1); and
a second distal end portion (see distal end portion of item 21 shown in figure 4) comprising a second distal port (figure 4, item 30) to the second lumen (see figure 4); and
wherein the instrument is configured to be inserted into a subject with the first and second distal end portions located in cavity of the subject to facilitate suction of tissue and/or gas from the cavity through the first lumen and entry of make-up gas into the cavity through the second lumen (Examiner notes “configured to be inserted into a subject with the first and second distal end portions located in cavity of the subject to facilitate suction of tissue and/or gas from the cavity through the first lumen and entry of make-up gas into the cavity through the second lumen”. The instrument is fully capable of the recited function due to its structure as supported by figure 1 and 4, column 8, line 27-35, column 3, line 12-14 and line 32-57, and column 5, line 38-41. Examiner notes make-up gas would be allowed to flow through the second lumen into the cavity due to the fact that biocompatible gas can be delivered through item 21. Irrigation with gas and suction can be applied simultaneously a supported by column 3, line 32-57).
Claims 1-3 and 9-22 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by a second interpretation of Cimino (U.S. Patent no 6129701). Examiner notes the second interpretation differs from the first in regard to the second structure and first structure.
In regard to claim 1,
Cimino discloses an instrument (see figure 1 and figure 4, item 10), comprising:
a first structure (portion of item 19 that defines lumen 20) defining a first lumen (figure 1 and 1A, item 20), the first structure including:
a first proximal end portion (see proximal end portion of item 20 shown in figure 1) comprising a first proximal port (opening of item 20 connected to item 13 as shown in figure 1) to the first lumen (see figure 1), wherein the first proximal port is configured to be coupled to a suction source (figure 1, item 11; Examiner notes “configured to be coupled to a suction source” is a functional limitation. The suction source is not positively required by the claim. As shown in figure 1, the first proximal port is coupled to suction source 11);
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a first distal end portion (see distal end portion of item 20 shown in figure 4) comprising a first distal port (figure 4, item 29; see figure 4 above) to the first lumen, wherein the first distal end portion including the first distal port are configured to be located at a site within a cavity of a subject (Examiner notes “configured to be located at a site within a cavity of a subject” is a functional limitation. The first distal end portion including the first distal port are fully capable of the recited function due to their structure; see column 8, line 27-30); and
wherein the first structure causes tissue and/or gas to be drawn into the first distal port and through the first lumen when the first proximal end portion is coupled to the suction source (column 3, line 12-14 and line 32-57); and
a second structure (figure 1, item 13 and the portion of item 19 that defines lumen 21 collectively forms a second structure) defining a second lumen (figure 1 and 4, item 21 and 18), the second structure including:
a second proximal end portion (see proximal end portion formed by item 13) comprising a second proximal port (see opening of item 18 in figure 1) to the second lumen (see figure 1), wherein the second proximal end portion including the second proximal port are configured to be located outside the cavity of the subject when the first distal end portion including the first distal port of the first structure are located within the cavity of the subject (see figure 1; Examiner notes “wherein the second proximal end portion including the second proximal port are configured to be located outside the cavity of the subject when the first distal end portion including the first distal port of the first structure are located within the cavity of the subject” is a functional limitation. The second proximal end portion including the second proximal port are fully capable of the recited function due to their structure); and
a second distal end portion (see distal end portion of item 21 shown in figure 4) comprising a second distal port (figure 4, item 30; see figure 4 above) to the second lumen (see figure 4), wherein the second distal end portion including the second distal port are configured to be located within the cavity of the subject when the first distal end portion including the first distal port of the first structure are located within the cavity of the patient (Examiner notes “wherein the second distal end portion including the second distal port are configured to be located within the cavity of the subject when the first distal end portion including the first distal port of the first structure are located within the cavity of the patient” is a functional limitation. The second distal end portion including the second distal port is fully capable of the recited function due to their structure. See also column 8, line 32-35); and
wherein the second structure allows make-up gas to flow into the second proximal port, through the second lumen and out the second distal port, and into the cavity of the subject (column 5, line 38-41; Examiner notes make-up gas would be allowed to flow into the second proximal port, through the second lumen and out the second distal port due to the fact that biocompatible gas can be delivered through item 21), when tissue and/or gas is drawn into the first distal port of the first lumen of the first structure (column 3, line 32-57; Examiner notes irrigation with gas and suction can be applied simultaneously).
In regard to claim 2,
Cimino discloses the instrument of claim 1, wherein:
the first structure defines a first length between the first proximal end portion and the first distal end portion (see figure 1 and 4); and
the second structure defines a second length between the second proximal end portion and the second distal end portion (see figure 1 and 4).
In regard to claim 3,
Cimino discloses the instrument of claim 2, wherein the first and second structures are coupled to one another along the first and second lengths (see figure 1 and 4)..
In regard to claim 9,
Cimino discloses the instrument of claim 1, wherein:
[AltContent: textbox (First distal port)][AltContent: rect][AltContent: connector][AltContent: arrow][AltContent: arrow][AltContent: textbox (One or more additional distal ports of the second structure)][AltContent: arrow][AltContent: textbox (One or more additional distal ports of the first structure)][AltContent: arrow][AltContent: connector][AltContent: textbox (Second distal port)][AltContent: rect]
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the first distal port of the first structure includes one or more openings (see 112 rejection above for claim interpretation wherein the first structure includes one or more additional distal ports; see figure 4 above);
the second distal port of the second structure includes one or more openings (see 112 rejection above for claim interpretation wherein the second structure includes one or more additional distal ports; see figure 4 above); and
the second proximal port of the second structure includes one or more openings (see 112 rejection above for claim interpretation wherein the second structure includes one or more additional proximal ports; see figure 1 wherein item 13 of the second structure includes one or more additional proximal ports).
In regard to claim 10,
Cimino discloses the instrument of claim 9, wherein at least one of the one or more openings of the second distal port (see 112 above for claim interpretation) is located proximal to a proximal-most opening of the one or more openings of the first distal port (see 112 above for claim interpretation; see figure 4 above).
In regard to claim 11,
Cimino discloses the instrument of claim 10, wherein each of the at least one or more openings of the second distal port (see 112 above for claim interpretation) is located proximal to a proximal-most opening of the one or more openings of the first distal port (see 112 above for claim interpretation; see figure 4 above).
In regard to claim 12,
Cimino discloses the instrument of claim 9, wherein the second distal port of the second structure includes a plurality of openings spaced apart from one another along a length of the second structure (see 112 above for claim interpretation; see figure 4 above), including one or more openings through a side of the second structure (see figure 4 above).
In regard to claim 13,
Examiner notes for the rejection of claim 13 an alternative interpretation of claim 9 has been used as detailed below.
[AltContent: arrow][AltContent: textbox (First distal port)][AltContent: rect][AltContent: connector][AltContent: arrow][AltContent: arrow][AltContent: textbox (One or more additional distal ports of the second structure)][AltContent: arrow][AltContent: textbox (One or more additional distal ports of the first structure)][AltContent: arrow][AltContent: connector][AltContent: textbox (Second distal port)][AltContent: rect]
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Cimino discloses the instrument of claim 9 (see alternative rejection of claim 9: Cimino discloses the instrument of claim 1, wherein: the first distal port of the first structure includes one or more openings (see 112 rejection above for claim interpretation wherein the first structure includes one or more additional distal ports; see figure 4 above); the second distal port of the second structure includes one or more openings (see 112 rejection above for claim interpretation wherein the second structure includes one or more additional distal ports; see figure 4 above); and the second proximal port of the second structure includes one or more openings (see 112 rejection above for claim interpretation wherein the second structure includes one or more additional proximal ports; see figure 1 wherein item 13 of the second structure includes one or more additional proximal ports), wherein the second distal port of the second structure includes an opening on a distal end face of the second structure (see 112 rejection above for claim interpretation; see figure 4 above).
In regard to claim 14,
Cimino discloses the instrument of claim 9, wherein the second proximal port of the second structure includes one or more openings (see 112 rejection above for claim interpretation; see figure 1).
In regard to claim 15,
Cimino discloses the instrument of claim 14, wherein the second proximal port of the second structure includes a plurality of openings spaced apart from one another along a lengthy of the second structure (see 112 rejection above for claim interpretation; see figure 1), including one or more openings through a side of the second structure (see figure 1).
In regard to claim 16,
Cimino discloses the instrument of claim 14, wherein the second proximal port of the second structure includes an opening on a proximal end face of the second structure (see 112 rejection above for claim interpretation; see figure 1).
In regard to claim 17,
[AltContent: textbox (First distal port)][AltContent: rect][AltContent: connector][AltContent: arrow][AltContent: arrow][AltContent: textbox (One or more additional distal ports of the second structure)][AltContent: arrow][AltContent: textbox (One or more additional distal ports of the first structure)][AltContent: arrow][AltContent: connector][AltContent: textbox (Second distal port)][AltContent: rect]
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Cimino discloses the instrument of claim 9, wherein first distal port of the first structure includes one or more openings through a side of the first structure (see 112 rejection above for claim interpretation; see figure 4).
In regard to claim 18,
Cimino discloses the instrument of claim 9, wherein the first distal port of the first structure includes an opening on a distal end face of the first structure (see 112 rejection above for claim interpretation; see figure 4).
In regard to claim 19,
Cimino discloses the instrument of claim 1, wherein the second structure is configured to allow make-up gas to be drawn into the second proximal port, through the second lumen and out the second distal port, and into the cavity of the subject, in response to tissue and/or gas being drawn into the first distal port of the first lumen of the first structure (Examiner notes “configured to allow make-up gas to be drawn into the second proximal port, through the second lumen and out the second distal port, and into the cavity of the subject, in response to tissue and/or gas being drawn into the first distal port of the first lumen of the first structure” is a functional limitation. The second structure is fully capable of the recited function as supported by column 5, line 38-41 and column 32-57. Examiner notes biocompatible gas can be delivered through item 21 and irrigation with gas and suction can be applied simultaneously).
In regard to claim 20,
Cimino discloses the instrument of claim 1, wherein the second proximal port of the second structure is configured to be exposed to atmospheric pressure outside the cavity of the subject (Examiner notes “configured to be exposed to atmospheric pressure outside the cavity of the subject” is a functional limitation. The second proximal port is fully capable of the recited function due to its structure. For example, the second proximal port is outside of the cavity and can be disconnected from the irrigation source which would allow the second proximal port of the second structure to be exposed to atmospheric pressure outside the cavity of the subject).
In regard to claim 21,
Cimino discloses the instrument of claim 1, wherein the second proximal port of the second structure is configured to be coupled to a source of gas (figure 1, item 12; column 5, line 38-41) at a pressure greater than atmospheric pressure (Examiner notes configured to be coupled to a source of gas at a pressure greater than atmospheric pressure is a functional limitation. The second proximal port of the second structure is fully capable of the recited function due to its structure. A source of gas at a pressure greater than atmospheric pressure is not positively required by the claim).
In regard to claim 22,
Cimino discloses an instrument (see figure 1 and figure 4, item 10), comprising:
a first structure (portion of item 19 that defines lumen 20) defining a first lumen (figure 1 and 1A, item 20), including:
a first proximal end portion (see proximal end portion of item 20 shown in figure 1) comprising a first proximal port (opening of item 20 connected to item 13 as shown in figure 1) to the first lumen (see figure 1); and
a first distal end portion (see distal end portion of item 20 shown in figure 4) comprising a first distal port (figure 4, item 29) to the first lumen (see figure 4); and
a second structure (figure 1, item 13 and the portion of item 19 that defines lumen 21 collectively forms a second structure) defining a second lumen (figure 1 and 4, item 21 and 18), including:
a second proximal end portion (see proximal end portion formed by item 13) comprising a second proximal port (see opening of item 18 in figure 1) to the second lumen (see figure 1); and
a second distal end portion (see distal end portion of item 21 shown in figure 4) comprising a second distal port (figure 4, item 30) to the second lumen (see figure 4); and
wherein the instrument is configured to be inserted into a subject with the first and second distal end portions located in cavity of the subject to facilitate suction of tissue and/or gas from the cavity through the first lumen and entry of make-up gas into the cavity through the second lumen (Examiner notes “configured to be inserted into a subject with the first and second distal end portions located in cavity of the subject to facilitate suction of tissue and/or gas from the cavity through the first lumen and entry of make-up gas into the cavity through the second lumen”. The instrument is fully capable of the recited function due to its structure as supported by figure 1 and 4, column 8, line 27-35, column 3, line 12-14 and line 32-57, and column 5, line 38-41. Examiner notes make-up gas would be allowed to flow through the second lumen into the cavity due to the fact that biocompatible gas can be delivered through item 21. Irrigation with gas and suction can be applied simultaneously a supported by column 3, line 32-57).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALEXANDRA ELIZABETH LALONDE whose telephone number is (313)446-6594. The examiner can normally be reached M-F 8-5 EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Kevin Sirmons can be reached at (571) 272-4965. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ALEXANDRA LALONDE/ Examiner, Art Unit 3783 /KEVIN C SIRMONS/Supervisory Patent Examiner, Art Unit 3783