DETAILED ACTION
Claims 2, 5, 8, 10, 13, and 16 are currently amended. A complete action on the merits of pending claims 1-16 appears below.
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 .
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim Interpretation
Claims 3, 4, 6, 11, 12, and 14 are interpretated as product-by-process claims. Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process. In re Thorpe, 777 F.2d 695, 698; 227 USPQ 964, 966 (Fed. Cir. 1985).
Claim Rejections - 35 USC § 102
Claims 1-16 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Yasunaga US 20170215938.
Regarding claims 1 and 9, Yasunaga teaches first and second jaw members (Fig. 2A and par. [0044] first and second jaws are the same so the numerals used are the same) movable between a spaced apart position and an approximated position for sealing and cutting tissue (Figs. 2A and B), the first jaw member including: a first seal plate assembly including first and second seal plates joined atop one another (Fig. 4 110 and any other layer since they are stacked), the second seal plate defining a first channel extending from a proximal to a distal end thereof (Fig. 3C 322); a thermal cutter assembly including: a first substrate (Fig. 3C 150) disposed within the first channel and extending from the proximal to distal end of the second seal plate (Fig. 4 the layers form the channel therefore are within); an insulator disposed atop the first substrate and configured to extend therealong (Fig. 4 130); a resistive element disposed atop the insulator (Fig. 4 134) and configured to generate heat upon activation thereof (par. [0046]); and an encapsulant configured to electrically insulate the resistive element and thermally conduct heat from the resistive element (Fig. 4 120), such that, upon activation thereof, tissue disposed between opposing first and second jaw members of the end effector assembly is cut along the resistive element; and the second seal plate including a second seal plate assembly including first and second seal plates joined atop one another (Fig. 3C stacked configuration including 110), the second seal plate defining a second channel extending from a proximal to a distal end thereof configured to receive a second substrate therein (Fig. 3C 322), wherein the second substrate opposes the thermal cutter assembly of the first jaw member when the first and second jaw members are moved to the approximated position (Fig. 2B).
Regarding claims 2 and 10, Yasunaga teaches wherein the first and second substrates are made from thermally nonconductive materials (par. [0050]).
Regarding claims 3 and 11, Yasunaga teaches wherein at least one of the first or second substrates is disposed within a respective first and second channel (Fig. 3C the layers form the channel therefore are within) utilizing a thermal spraying or deposition process (product by process limitation).
Regarding claims 4 and 12, Yasunaga teaches wherein the insulator is disposed atop the first substrate (Fig. 3C and 4) using a deposition process (product by process limitation).
Regarding claims 5 and 13, Yasunaga teaches wherein the insulator is made from a thermally conductive, electrically insulative material (par. [0050] electrothermal conversion element 130).
Regarding claims 6 and 14, Yasunaga teaches wherein the insulator is treated after the deposition process to facilitate adhesion of the resistive element thereon (product by process limitation).
Regarding claims 7 and 15, Yasunaga teaches wherein opposing ends of the resistive element are configured to connect to a pair of conductive pads disposed at a proximal end of the insulator (Fig. 4 136).
Regarding claims 8 and 16, Yasunaga teaches wherein the encapsulant is made from an electrically insulative, thermally conductive material (par. [0048] what thermally conductive sheet 120 can be made of).
Response to Arguments
Applicant's arguments filed 3/23/26 have been fully considered but they are not persuasive. The applicant argues that the layers of the jaw other than 110 cannot be considered a sealing plate. The examiner disagrees with this assertion. There is no structure of the second sealing plate in the claims other than it has a channel in it. All of the layers aid in the sealing and cutting of tissue, thus can be considered a sealing plate. It would appear based on the dependent claims that applicant does not put stock in properties of elements based upon their names. The applicant claims the different properties of each element like the encapsulant made from a thermally conductive and electrically insulating material. Again, there is nothing in the claims regarding the second sealing plate other than it has a channel.
Next, the applicant argues that there is nothing disposed within the channel and would need to be clear so the cutter can be advanced without obstruction. The examiner disagrees with this assertion. As seen in Figs. 3C and 8-11, the different layers make up the walls of the channel 322. Since they make up the walls of the channel they are seen to be within the channel. Therefore, the arguments presented by the applicant are not persuasive.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to RYAN T. CLARK whose telephone number is (408)918-7606. The examiner can normally be reached on Monday-Friday 7AM-3PM MT.
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/R.T.C./Examiner, Art Unit 3794
/THOMAS A GIULIANI/Primary Examiner, Art Unit 3794
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