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 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: “anti-vacuum surge (AVS) mechanism” in claims 1 and 5.
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.
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 § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
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.
Claims 1-8 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.
As to claim 1, the wording of “calculating in real-time a correlation between vacuum readings and pressure readings of respective aspiration and irrigation channels” is ambiguous. Firstly, it is not clear if “respective aspiration and irrigation channels” means that there is more than one aspiration channel and/or more than one irrigation channel. Secondly, if there are multiple aspiration channels, it is not clear if the correlation is being compared between multiple of the aspiration channels or an aspiration channel and an irrigation channel (the same can be said if there is more than one irrigation channel). The examiner assumes that the applicant intends to only recite one aspiration channel and one irrigation channel, and thus recommends introducing “an aspiration channel and an irrigation channel
Claim 2 recites the limitation "the increase in pressure level" in lines 1-2. There is insufficient antecedent basis for this limitation in the claim.
Claim 3 recites “the aspiration channel” in lines 2-3, however because claim 1 is not necessarily limited to only one aspiration channel (the wording of “respective aspiration and irrigation channels” is open-ended in that there could be more than one aspiration channel and/or more than one irrigation channel), this limitation is unclear/lacks antecedent basis.
Claim 4 recites “the irrigation channel” in lines 2-3, however because claim 1 is not necessarily limited to only one irrigation channel (the wording of “respective aspiration and irrigation channels” is open-ended in that there could be more than one aspiration channel and/or more than one irrigation channel), this limitation is unclear/lacks antecedent basis.
Claims 2-4 are rejected as they inherit the deficiencies of the claims from which they depend.
As to claim 5, the wording of “calculating in real-time a correlation between vacuum readings and pressure readings of respective aspiration and irrigation channels” is ambiguous. Firstly, it is not clear if “respective aspiration and irrigation channels” means that there is more than one aspiration channel and/or more than one irrigation channel. Secondly, if there are multiple aspiration channels, it is not clear if the correlation is being compared between multiple of the aspiration channels or an aspiration channel and an irrigation channel (the same can be said if there is more than one irrigation channel). The examiner assumes that the applicant intends to only recite one aspiration channel and one irrigation channel, and thus recommends introducing “an aspiration channel and an irrigation channel
Claim 6 recites the limitation "the increase in pressure level" in lines 1-2. There is insufficient antecedent basis for this limitation in the claim.
Claim 7 recites “the aspiration channel” in lines 3-4, however because claim 5 is not necessarily limited to only one aspiration channel (the wording of “respective aspiration and irrigation channels” is open-ended in that there could be more than one aspiration channel and/or more than one irrigation channel), this limitation is unclear/lacks antecedent basis.
Claim 8 recites “the irrigation channel” in lines 3-4, however because claim 5 is not necessarily limited to only one irrigation channel (the wording of “respective aspiration and irrigation channels” is open-ended in that there could be more than one aspiration channel and/or more than one irrigation channel), this limitation is unclear/lacks antecedent basis.
Claims 6-8 are rejected as they inherit the deficiencies of the claims from which they depend.
Allowable Subject Matter
Claims 1-8 would be allowable if rewritten or amended to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action. The examiner notes that any amendment to obviate the rejections under 35 U.S.C. 112(b) may affect the prior art considerations.
The following is a statement of reasons for the indication of allowable subject matter:
As to claim 1, The closest prior art appears to be Boukhny et al. (US 2020/0297534 A1, hereafter “Boukhny ‘534”), Gordon et al. (US 2005/0209561 A1, hereafter “Gordon”), and Boukhny et al. (US 2005/0209560 A1, hereafter “Boukhny ‘560”).
Boukhny ‘534 discloses measuring in real-time vacuum readings and pressure readings of respective aspiration (1155) and irrigation (1140) channels of a phacoemulsification handpiece (1150) engaged in a phacoemulsification procedure in an eye (1145) (see Fig. 1, para 0031, 0039, 0044).
Gordon discloses calculating a linear correlation between the monitored aspiration vacuum and irrigation pressure and a pre-determined pattern of aspiration vacuum and irrigation pressure; e) establishing a match between the monitored aspiration vacuum and irrigation pressure and the pre-determined patterns of aspiration vacuum and irrigation pressure based on the linear correlation; f) detecting an occurrence of a surgical event based upon the establishment of the match between the monitored aspiration vacuum and irrigation pressure and the pre-determined pattern of aspiration vacuum and irrigation pressure based on the linear correlation; and g) varying the operation of the surgical system based on the detection of the occurrence of the surgical event (see para 0025 and Claims 9-11, 17).
Boukhny ‘560 discloses calculating a linear correlation between a sample sequence of irrigation and vacuum pressures during a procedure (see para 0060, 0066, 0068).
However, none of the references appear to teach or make obvious the limitations of: upon detecting an increase in the vacuum readings and an increase in the pressure readings, checking a current level of the correlation; and provided that the current level of the correlation is above a given value, activating an anti-vacuum surge (AVS) mechanism fluidly coupled with at least one of the irrigation and aspiration channels in combination with the rest of the limitations of claim 1.
Claims 2-4 depend from claim 1.
Claim 5 recites limitations largely similar to claim 1, albeit as an apparatus claim (rather than a method) with a processor specifically configured to: upon detecting an increase in the vacuum readings and an increase in the pressure readings, check a current level of the correlation; and provided that the current level of the correlation is above a given value, activate an anti-vacuum surge (AVS) mechanism fluidly coupled with at least one of the irrigation and aspiration channels. Claim 5 is thus considered non-obvious over the prior art for the same reasons above.
Claims 6-8 depend from claim 5.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to James D Ponton whose telephone number is (571)272-1001. 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, Chelsea Stinson can be reached at 571-270-1744. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/James D Ponton/Primary Examiner, Art Unit 3783