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 .
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.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 16-29 are rejected under 35 U.S.C. 103 as being unpatentable over Lath et al. (US 2022/0218406) in view of Eder et al. (US 2011/0202058).
Regarding claim 16, Lath discloses a surgical system, comprising: a surgical instrument comprising an end effector to capture tissue (see Figs. 1-2), wherein the end effector comprises an electrode to apply radio-frequency (RF) energy to the tissue captured by the end effector (see electrodes 320 and 330; [0041], [0043], Figs. 3A-3B); an RF energy source to provide RF energy to the electrode (see energy control 180, [0030], Fig. 1); and a control circuit (see control unit 140, Fig. 1), to: transmit a control signal to the RF energy source (see signals between the control modules, Fig. 1), wherein the control signal causes the RF energy source to provide RF energy to the electrode to apply a seal to the tissue captured by the end effector (see [0044], [0060], Fig. 4 and 5); predict a quality of the seal (see [0082]-[0095], Fig. 5); and provide feedback to a user based on the prediction (see [0083], [0086], [0092]). However, Lath fails to disclose predicting the quality of the seal using an inference model trained on data from prior energy delivery applications.
Eder teaches a surgical system (see Fig. 1) including an algorithm that determines quality of the RF sealing process based on prior empirical analysis of monitored electrical values during energy delivery (see [0050]). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the seal quality prediction to include predicting the quality of the seal using an inference model trained on data from prior energy delivery applications in light of Eder, the motivation being to optimize the safety and consistency of the procedures by matching current conditions of seal quality to known successful conditions that were empirically derived (see Eder [0050]).
Regarding claim 17, Lath further discloses wherein to predict the quality of the seal, the control circuit is to: generate a value associated with the seal; and compare the value to a seal threshold; wherein to provide feedback to the user based on the prediction, the control circuit is to provide feedback to the user based on results of the comparison (see generation of a material amount value and feedback based on a comparison to a threshold in [0082]-[0083], and generation of a impedance value and feedback based on comparison to a threshold in [0086]).
Regarding claim 18, Lath further discloses wherein the control circuit is to abstain from providing feedback based on the value reaching or exceeding the seal threshold (see the notifications not being sent when the thresholds are not met, [0083] and [0086]).
Regarding claim 19, Lath further discloses wherein the surgical system further comprises a display, wherein the control circuit is to transmit a signal to the display based on the value being below the seal threshold, wherein the feedback comprises visual feedback on the display, and wherein the visual feedback is based on the signal (a display is implied to show textual messages, blinking lights, or color changes based on the signal; [0083] and [0086]).
Regarding claim 20, Lath further discloses wherein the surgical system further comprises an audio feedback module, wherein the control circuit is to transmit a signal to the audio feedback module based on the value being below the seal threshold, wherein the feedback comprises audio feedback via the audio feedback module, and wherein the audio feedback is based on the signal (see audio alerts, [0083] and [0086]).
Regarding claim 21, Lath further discloses wherein the surgical system further comprises a haptic feedback module, wherein the control circuit is to transmit a signal to a haptic feedback module based on the value being below the seal threshold, wherein the feedback comprises haptic feedback via the haptic feedback module, and wherein the haptic feedback is based on the signal (see haptic feedback, [0083] and [0086]).
Regarding claim 22, Lath further discloses wherein the RF energy source comprises the control circuit (see energy control 180 comprised as control unit 140, Fig. 1).
Regarding claim 23, Lath further discloses wherein the surgical system further comprises a processing unit comprising the control circuit (see processor 150 of control unit 140, Fig. 1).
Regarding claims 24-29, Lath in view of Eder teaches the limitations of these claims under the same rationale as applied in the rejection of claims 16-21 above.
Response to Arguments
Applicant’s arguments with respect to the rejected claims have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. In the instant case, the arguments of record are drawn to only the Lath reference, where the newly made grounds of rejection now rely upon Lath in view of Eder.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SEAN W COLLINS whose telephone number is (408)918-7607. The examiner can normally be reached M-F 9:00 AM-5:00 PM ET.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Joanne Rodden can be reached at 303-297-4276. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/SEAN W COLLINS/Primary Examiner, Art Unit 3794
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