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 .
Response to Arguments
Applicant's arguments filed 11/7/2025 have been fully considered but they are not persuasive. Regarding claims 1,32 and 42 Applicant argues Franco lacks the steps of positioning a support member within the ICA, near an ostium at a junction between the ICA and OA, and the support member including a leg or two legs applying outward forces (or comprising loops). Examiner disagrees as Franco discloses these features at Figure 3 at OA 22 and ICA (and described at paragraphs 0055 and claim 4 on page 19).
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 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.
(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) 1,23-28,31-38,41-45 is/are rejected under 35 U.S.C. 102(a)(1) and under 35 U.S.C. 102(a)(2) as being anticipated by Franco WO2016109586A1.
The applied reference has a common joint inventor with the instant application. Based upon the earlier effectively filed date of the reference, it constitutes prior art under 35 U.S.C. 102(a)(2). This rejection under 35 U.S.C. 102(a)(2) might be overcome by: (1) a showing under 37 CFR 1.130(a) that the subject matter disclosed in the reference was obtained directly or indirectly from the inventor or a joint inventor of this application and is thus not prior art in accordance with 35 U.S.C. 102(b)(2)(A); (2) a showing under 37 CFR 1.130(b) of a prior public disclosure under 35 U.S.C. 102(b)(2)(B) if the same invention is not being claimed; or (3) a statement pursuant to 35 U.S.C. 102(b)(2)(C) establishing that, not later than the effective filing date of the claimed invention, the subject matter disclosed in the reference and the claimed invention were either owned by the same person or subject to an obligation of assignment to the same person or subject to a joint research agreement.
Regarding claim 1,28,31-32,41-45 Franco discloses a method of treating eye diseases/conditions by positioning an expandable strut structure having end portions locatable in ophthalmic artery (OA), internal carotid artery (ICA), or any vessel leading to the eye to increase blood flow and oxygen such as by applying outward forces in multiple or different directions on sides of the OA to open the Ostium. (See figures and paragraphs 0022-51,55-63). Figure 3D shows first and second legs of the support member comprising loops on each side of the OA 22.
Franco discloses the structure to include diverter structures that inherently divert flow to the ophthalmic artery (e.g. stent struts and covering openings/windows or a port) whereby the flow coming into the ophthalmic artery inherently changes direction from the previous ICA path. The diverter structures are considered to have ends coupled to strut structure (struts between cylindrical region and the boundary of the opening). These struts/cover also extend from upstream or downstream, and may extend into the ICA, OA and/or Ostium. Franco also discloses the function of diverting blood flow through these structures.
The methods disclose treating macular degeneration, increasing oxygen.
Regarding claims 1,28,32,41-45 Examiner maintains Franco anticipates the claimed method because, as described in Franco paragraph 0022 and 0027, Franco discloses the method opens/clears/improves the blood flow from the internal carotid artery (ICA) to the ophthalmic artery (OA) which inherently encompasses altering a direction of blood flow from downstream the ICA to downstream the OA.
Regarding claim 23-27,34-38 the support member includes loops and Nitinol. See Figure 3.
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 WILLIAM H MATTHEWS whose telephone number is (571)272-4753. The examiner can normally be reached Monday-Friday (9-5).
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/WILLIAM H MATTHEWS/ Primary Examiner, Art Unit 3774