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 .
Claim Objections
Claim(s) 11-16 is/are objected to because of the following informalities:
Claim 11 recites the limitation “The clamp of wound retractor clamp 10" in line 1, instead of “The wound retractor clamp of claim 10” in order to be consistent with the previously used claim terminology and in order to be free of typographical errors.
Appropriate correction is required.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claim(s) 2-17 is/are rejected on the ground of nonstatutory double patenting as being unpatentable over claim(s) 1-11 of U.S. Patent No. 11,684,354 B2 in view of Brustad et al. (U.S. Pub. No. 2007/0088241 A1, hereinafter “Brustad”).
The table below shows the application claims and the patent claims side by side for direct comparison, with the differences between the claims are highlighted below by bolding all the limitations that differ, italicizing additional limitations, and underlining limitations that will be addressed below.
Application Claims:
Patent Claims:
2. A wound retractor clamp comprising: an annular clamp body comprising a periphery configured to surround a proximal end of a wound retractor; and a tab and a lever configured for selective engagement and disengagement of the clamp body with the wound retractor, wherein: the tab and the lever are configured to snap onto the wound retractor to engage the clamp body with the wound retractor; and the lever is configured to pivot about an axis that is parallel to a longitudinal axis of the clamp body and the wound retractor and is resiliently biased toward engagement of the clamp body with the wound retractor.
7. (New) The wound retractor clamp of claim 2, wherein the tab and the lever are on opposite sides of the periphery of the clamp body.
8. (New) The wound retractor clamp of claim 7, wherein the lever is configured to be actuated to pivot to disengage the portion of the clamp body including the lever from the wound retractor such that the portion of the clamp body including the lever can be tilted proximally to disengage the tab from the wound retractor without deflecting the tab radially outward.
1. A wound retractor clamp comprising: an annular clamp body comprising a periphery configured to surround a proximal end of a wound retractor; and a resilient tab and a resilient lever connected to opposing portions of the periphery of the clamp body; wherein the tab and the lever deflect radially outward upon engagement of the clamp body with the wound retractor; wherein the tab and the lever snap onto the wound retractor and secure the clamp body to the wound retractor subsequent to the engagement of the clamp body with the wound retractor; and wherein the lever is configured to be actuated to pivot about an axis that is parallel to a longitudinal axis of the clamp body and the wound retractor to disengage the portion of the clamp body including the lever from the wound retractor such that the portion of the clamp body including the lever can be tilted proximally to disengage the tab from the wound retractor without deflecting the tab radially outward.
6. The wound retractor clamp of claim 2, wherein the tab is formed integral with the clamp body.
2. The clamp of claim 1, wherein: the tab is formed integral with the clamp body.
9. The wound retractor clamp of claim 2, wherein: the clamp body and the tab comprise at least one of polycarbonate and thermoplastic polyurethane; and the lever comprises polycarbonate.
3. The clamp of claim 1, wherein: the clamp body and the tab comprise at least one of polycarbonate and thermoplastic polyurethane; and the lever comprises polycarbonate.
10. The wound retractor clamp of claim 2, wherein: the tab and the lever each comprise a tapered surface; and the tapered surface of the tab and the tapered surface of the lever are each configured to be engaged by the wound retractor to deflect the tab and the lever radially outward in response to the clamp body being pushed distally onto the wound retractor.
4. The clamp of claim 1, wherein: the tab and the lever each comprise a tapered surface; and the tapered surface of the tab and the tapered surface of the lever are each configured to be engaged by the wound retractor to deflect the tab and the lever radially outward in response to the clamp body being pushed distally onto the wound retractor.
11. The clamp of wound retractor clamp 10, wherein the tapered surface of the tab and the tapered surface of the lever are each configured to be engaged by a tapered surface of the wound retractor to deflect the tab and the lever radially outward in response to the clamp body being pushed distally onto the wound retractor.
5. The clamp of claim 4, wherein: the tapered surface of the tab and the tapered surface of the lever are each configured to be engaged by a tapered surface of the wound retractor to deflect the tab and the lever radially outward in response to the clamp body being pushed distally onto the wound retractor.
12. The wound retractor clamp of claim 11, wherein a slope of the tapered surface of the tab and the tapered surface of the lever is equal and opposite to a slope of the tapered surface of the wound retractor.
6. The clamp of claim 5, wherein: a slope of the tapered surface of the tab and the tapered surface of the lever is equal and opposite to a slope of the tapered surface of the wound retractor.
13. The wound retractor clamp of claim 11, wherein the tapered surface of the tab and the tapered surface of the lever each increases in diameter from a distal end of the clamp toward a proximal end of the clamp.
7. The clamp of claim 5, wherein: the tapered surface of the tab and the tapered surface of the lever each increases in diameter from a distal end of the clamp toward a proximal end of the clamp.
14. The wound retractor clamp of claim 13, wherein the tapered surface of the wound retractor increases in diameter from the proximal end of the clamp toward the distal end of the clamp.
8. The clamp of claim 7, wherein: the tapered surface of the wound retractor increases in diameter from the proximal end of the clamp toward the distal end of the clamp.
15. The wound retractor clamp of claim 14, wherein the tapered surface of the wound retractor is a proximal facing annular tapered surface.
9. The clamp of claim 7, wherein: the tapered surface of the wound retractor is a proximal facing annular tapered surface.
16. The wound retractor clamp of claim 11, wherein: the lever comprises a lip extending radially inward from a proximal end of the tapered surface of the lever;
the tab comprises a lip extending radially inward from a proximal end of the tapered surface of the tab; the wound retractor comprises a lip extending radially inward from a distal end of the tapered surface of the wound retractor; and the lip of the lever and the lip of the tab are configured to engage the lip of the wound retractor after the clamp body has been pushed distally onto the wound retractor to deflect the tab and the lever radially outward.
10. The clamp of claim 5, wherein: the lever comprises a lip extending radially inward from a proximal end of the tapered surface of the lever; the tab comprises a lip extending radially inward from a proximal end of the tapered surface of the tab; the wound retractor comprises a lip extending radially inward from a distal end of the tapered surface of the wound retractor; and the lip of the lever and the lip of the tab are configured to engage the lip of the wound retractor after the clamp body has been pushed distally onto the wound retractor to deflect the tab and the lever radially outward.
17. The wound retractor clamp of claim 2, wherein: the clamp further comprising a gasket connected to the clamp body; and the gasket is configured to seal the connection between the clamp and the wound retractor.
11. The clamp of claim 1, wherein: the clamp further comprising a gasket connected to the clamp body; and the gasket is configured to seal the connection between the clamp and the wound retractor.
While Patent claim 1 uses slightly different wording, e.g. “a resilient tab and a resilient lever connected to opposing portions of the periphery of the clamp body” instead of “wherein the tab and the lever are on opposite sides of the periphery of the clamp body”; and “and secure” instead of “to engage”; it is clear that the tab and lever connected to opposing portions of the periphery means that the tab and lever are on opposite sides of the periphery; and that to secure is to engage. As is evident from the table above, Patent claim 1 discloses all of the features of application claims 2, 7-8, except regarding claim 2, that the clamp body is configured for selective engagement and disengagement of the clamp body with the wound retractor and is resiliently biased toward engagement of the clamp body with the wound retractor; and regarding claim 8, wherein the lever is configured to be actuated to pivot. Patent claim 1 further fails to disclose, regarding claim 3, wherein the lever comprises an elongated curved lever body arranged circumferentially on the periphery of the clamp body; regarding claim 4, wherein the lever comprises a first curved portion connected to the clamp body and a second curved portion extending from the first curved portion; and regarding claim 5, wherein the second curved portion of the lever curves radially outward and is configured to be engaged by a user to deflect the lever radially outward to disengage the clamp body from the wound retractor.
Brustad discloses a wound retractor clamp (180, see Figs. 17-20) with a tab (182) and a lever (182), wherein the tab and the lever are configured for selective engagement and disengagement of the clamp body with the wound retractor (see para. [0078]), wherein: the tab and the lever are configured to snap onto the wound retractor to engage the clamp body with the wound retractor (see paras. [0077]-[0078]); and the lever is actuated to pivot and the wound retractor and is resiliently biased toward engagement of the clamp body with the wound retractor (see paras. [0077]-[0078]); wherein the lever comprises an elongated curved lever body arranged circumferentially on the periphery of the clamp body (see annotated Fig. 18 below); wherein the lever comprises a first curved portion connected to the clamp body and a second curved portion extending from the first curved portion (see annotated Fig. 20 below); wherein the second curved portion of the lever curves radially outward (see annotated Fig. 20 above, note that the second curved portion extends radially outward from clamp body where the first curved portion is attached) and is configured to be engaged by a user to deflect the lever radially outward to disengage the clamp body from the wound retractor (see paras. [0077]-[0078]) in order to enable the wound retractor clamp to be releasably coupled by deflecting the tab / lever radially outward and enables the wound retractor clamp to be automatically secured in a mating relationship once pressed onto the wound retractor when the tab and lever automatically return to their neutral position (see paras. [0077]-[0078]).
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It would have been obvious to one having ordinary skill in the art at the time the invention was made to modify the tab and lever in Patent claim 1 to be configured for selective engagement and disengagement of the clamp body with the wound retractor and the lever is actuated to pivot and the wound retractor and is resiliently biased toward engagement of the clamp body with the wound retractor in view of Brustad in order to enable the wound retractor clamp to be releasably coupled by deflecting the tab / lever radially outward and enables the wound retractor clamp to be automatically secured in a mating relationship once pressed onto the wound retractor when the tab and lever automatically return to their neutral position.
Claim Rejections - 35 USC § 102
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 2-7, 9-17 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Brustad et al. (U.S. Pub. No. 2007/0088241 A1, hereinafter “Brustad”).
Brustad discloses, regarding claim 2, a wound retractor clamp (180, see Figs. 17-20) comprising: an annular clamp body (see annotated Fig. 17 below) comprising a periphery configured to surround a proximal end (184) of a wound retractor (56, see Fig. 17); and a tab (182) and a lever (182) configured for selective engagement and disengagement of the clamp body with the wound retractor (see paras. [0077]-[0078]), wherein: the tab and the lever are configured to snap onto the wound retractor to engage the clamp body with the wound retractor (see paras. [0077]-[0078]); and the lever is configured to pivot about an axis that is parallel to a longitudinal axis of the clamp body (see annotated Fig. 17 below) and the wound retractor and is resiliently biased toward engagement of the clamp body with the wound retractor (see paras. [0077]-[0078]).
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Regarding claim 3, wherein the lever comprises an elongated curved lever body arranged circumferentially on the periphery of the clamp body (see annotated Fig. 18 below).
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Regarding claim 4, wherein the lever comprises a first curved portion connected to the clamp body and a second curved portion extending from the first curved portion (see annotated Fig. 20 below).
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Regarding claim 5, wherein the second curved portion of the lever curves radially outward (see annotated Fig. 20 above, note that the second curved portion extends radially outward from clamp body where the first curved portion is attached) and is configured to be engaged by a user to deflect the lever radially outward to disengage the clamp body from the wound retractor (see paras. [0077]-[0078]).
Regarding claim 6, wherein the tab is formed integral with the clamp body (see Fig. 17).
Regarding claim 7, wherein the tab and the lever are on opposite sides of the periphery of the clamp body (see Fig. 17).
Regarding claim 9, wherein: the clamp body and the tab comprise at least one of polycarbonate (see para. [0078]) and thermoplastic polyurethane; and the lever comprises polycarbonate (see paras. [0077]-[0078]).
Regarding claim 10, wherein: the tab and the lever each comprise a tapered surface (186, see Fig. 20); and the tapered surface of the tab and the tapered surface of the lever are each configured to be engaged by the wound retractor to deflect the tab and the lever radially outward in response to the clamp body being pushed distally onto the wound retractor (see paras. [0077]-[0078]).
Regarding claim 11, wherein the tapered surface of the tab and the tapered surface of the lever are each configured to be engaged by a tapered surface (188, see Fig. 20) of the wound retractor to deflect the tab and the lever radially outward in response to the clamp body being pushed distally onto the wound retractor (see paras. [0077]-[0078]).
Regarding claim 12, wherein a slope of the tapered surface of the tab and the tapered surface of the lever is equal and opposite to a slope of the tapered surface of the wound retractor (see Fig. 20, note slopes in different direction).
Regarding claim 13, wherein the tapered surface of the tab and the tapered surface of the lever each increases in diameter from a distal end of the clamp toward a proximal end of the clamp (see Fig. 20).
Regarding claim 14, wherein the tapered surface of the wound retractor increases in diameter from the proximal end of the clamp toward the distal end of the clamp (see Fig. 20).
Regarding claim 15, wherein the tapered surface of the wound retractor is a proximal facing annular tapered surface (see Fig. 20).
Regarding claim 16, wherein: the lever comprises a lip (186, see Fig. 20) extending radially inward from a proximal end of the tapered surface of the lever; the tab comprises a lip (186) extending radially inward from a proximal end of the tapered surface of the tab (see Fig. 20); the wound retractor comprises a lip (188) extending radially inward from a distal end of the tapered surface of the wound retractor (see Fig. 20); and the lip of the lever and the lip of the tab are configured to engage the lip of the wound retractor after the clamp body has been pushed distally onto the wound retractor to deflect the tab and the lever radially outward (see Fig. 20, see paras. [0077]-[0078]).
Regarding claim 17, wherein: the clamp further comprising a gasket (60) connected to the clamp body (see Fig. 17); and the gasket is configured to seal the connection between the clamp and the wound retractor (see para. [0038]).
Allowable Subject Matter
Claim(s) 8 would be allowable if a terminal disclaimer is filed to overcome the Nonstatutory Double Patenting Rejection, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
Claim(s) 18-21 is/are allowed.
The following is a statement of reasons for the indication of allowable subject matter: The claims in the instant application have not been rejected using prior art because no references, or reasonable combination thereof could be found which disclose, or suggest:
A wound retractor clamp comprising: an annular clamp body; a tab and a lever, wherein: the tab and the lever are configured to snap onto the wound retractor to engage the clamp body with the wound retractor; and the lever is configured to pivot about an axis that is parallel to a longitudinal axis of the clamp body and the wound retractor and is resiliently biased toward engagement of the clamp body with the wound retractor; and as per claim 8, wherein the lever is configured to be actuated to pivot to disengage the portion of the clamp body including the lever from the wound retractor such that the portion of the clamp body including the lever can be tilted proximally to disengage the tab from the wound retractor without deflecting the tab radially outward.
A method comprising: securing a wound retractor clamp to the proximal end of a wound retractor by manually urging a clamp body of the clamp into engagement with the proximal end of the wound retractor to snap first and second resilient members connected to opposing portions of the periphery of the clamp body onto the wound retractor; and deflecting the first resilient member radially outward from the wound retractor to disengage the portion of the clamp body including the first resilient member from the wound retractor; and, as per claim 18, tilting the portion of the clamp body including the first resilient member to disengage the second resilient member from the wound retractor without deflecting the second resilient member radially outward.
Brustad et al. (U.S. Pub. No. 2007/0088241 A1) discloses a wound retractor clamp with snaps for enabling attachment to a wound retractor; however fails to disclose a tab and a lever that are configured to snap onto the wound retractor and wherein the lever can be tilted proximally to disengage the tab from the wound retractor without deflecting the tab radially outward.
Malkowski et al. (U.S. Pub. No. 2016/0128726 A1) discloses a wound retractor clamp that is tilted onto position on a wound retractor and with a lever that is pivoted into engagement; however fails to disclose a tab and a lever that are configured to snap onto the wound retractor and wherein the lever can be tilted proximally to disengage the tab from the wound retractor without deflecting the tab radially outward.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See PTO-892.
The following references disclose retractor clamps caps:
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Any inquiry concerning this communication or earlier communications from the examiner should be directed to Michelle C. Green whose telephone number is (571)270-7051. The examiner can normally be reached on Monday-Friday between 9am-5pm.
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/M.C.G/ Examiner, Art Unit 3773 /EDUARDO C ROBERT/ Supervisory Patent Examiner, Art Unit 3773
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