DETAILED ACTION
The following is a Final Office Action on the merits.
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 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.
Response to Amendment
Acknowledgment is made to the amendment received 7/21/2026.
Applicant’s amendments to the claims are sufficient to overcome most of the claim objections set forth in the previous office action.
Applicant’s amendments are sufficient to overcome the prior art claim rejections of claims 29-35.
Claim Objections
Claim 29 is objected to because of the following informalities: amend “the wand distal end portion” to -the elongate shaft distal end portion- in ll. 10. Appropriate correction is required.
Claim 29 is objected to because of the following informalities: amend “surface” to -surface portion- in ll. 11 & 13 (twice). Appropriate correction is required.
Claim 36 is objected to because of the following informalities: amend “each aspiration aperture” to -each of the first and second aspiration apertures- in ll. 13. Appropriate correction is required.
Claim Rejections - 35 USC § 102
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(s) 21-22, 27-28, 36 & 40 is/are rejected under 35 U.S.C. 102(a)(1) or 102(a)(2) as being anticipated by Kramer et al. (2010/0160910, previously cited).
Concerning claim 21, as illustrated in at least Figs. 1-17, Kramer et al. disclose an electrosurgical wand (electrosurgical tool 10; [0032]) comprising:
an elongate shaft having a handle end and a distal end portion (outer shaft 15; [0037]), the distal end portion comprising an active electrode (active electrode 17; [0032]), an insulative spacer body (insulator cap 57; [0038]) and a return electrode (exposed distal end 18 of the outer shaft 15 defines a return or reference electrode; [0032]), wherein the active electrode is supported on the insulative spacer body and is spaced distally from the return electrode (insulator cap 57 supports electrode 17 on a distal surface and insulates from the distal end 18 of outer shaft 15; [0038]);
wherein the insulative spacer body defines an aspiration cavity fluidly connected with an aspiration lumen, the aspiration cavity terminating with a cavity aperture defining a perimeter (cap 57 comprises bore 85 and bore 105 which connect to interior conduit 54; [0038], [0042], [0044], [0052]), and wherein the active electrode extends across and covers a portion of the aspiration cavity aperture (insulator cap 57 supports electrode 17 and covers bore 85; [0038], [0049]), defining a first aspiration aperture and as second aspiration aperture, both the first and second aspiration apertures bounded by the cavity aperture perimeter and a peripheral edge surface of the active electrode (suction openings 171 are bounded by the cavity aperture perimeter and peripheral edge(s) 128, 138, 132 of active electrode 17; [0045], [0055]), the active electrode defining a bifurcating plane extending along the central longitudinal axis, wherein the bifurcating plane extends through and bisects each of the first and second aspiration apertures (a plane that extends parallel to the top active surface of the active electrode 17 bifurcates the electrodes 17, extends along the central longitudinal axis, and extends through and bisects each of the suction openings 171; see annotated Fig. 13 below).
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Concerning claim 22, Kramer et al. disclose the active electrode (17) peripheral edge surface (128, 138, 132 ) defines a distal edge surface (128 and half of 138) and a proximal edge surface (132 and other half of 138), and wherein both the distal edge surface (128) and the proximal edge surface (132) are U-shaped edge surfaces that define respective U-shaped boundary portions of the first and second aspiration apertures (171) ([0045]; Fig. 7).
Concerning claim 27, Kramer et al. disclose the insulative spacer (57) includes a telescoping portion (90) that extends within an internal diameter of the return electrode (18) ([0043]; Fig. 6 & 10).
Concerning claim 28, Kramer et al. disclose the insulative spacer body (57) includes a radial projection (92) configured to engage a distal edge of the return electrode (18) ([0043]; Fig. 10).
Concerning claim 36, as illustrated in at least Figs. 1-17, Kramer et al. disclose an electrosurgical wand (electrosurgical tool 10; [0032]) comprising:
an elongate shaft having a handle end and a distal end portion (outer shaft 15; [0037]), the distal end portion comprising an active electrode (active electrode 17; [0032]), an insulative spacer body (insulator cap 57; [0038]) and a return electrode (exposed distal end 18 of the outer shaft 15 defines a return or reference electrode; [0032]), wherein the active electrode is disposed on a distal surface of the insulative spacer body and is spaced away from the return electrode (insulator cap 57 supports electrode 17 on a distal surface and insulates from the distal end 18 of outer shaft 15; [0038]);
wherein the active electrode defines a peripheral edge surface defining distal and proximal edge surfaces (active electrode 17 comprises peripheral edge surface(s) distal: 128 & half of 138, proximal: 132 & other half of 138; [0045], [0055]);
wherein the insulative spacer body defines an aspiration cavity fluidly connected with an aspiration lumen and configured to aspirate fluid and plasma by-products therethrough, the aspiration cavity terminating on the distal surface of the insulative spacer body defining a cavity aperture (cap 57 comprises bore 85 and bore 105 which connect to interior conduit 54; [0038], [0042], [0044], [0052]), and wherein the active electrode covers a portion of the cavity aperture (insulator cap 57 supports electrode 17 and covers bore 85; [0038], [0049]) to define a first and a second aspiration aperture, each aspiration aperture defined by the active electrode peripheral edge surface and a perimeter of the cavity aperture (suction openings 171 are bounded by the cavity aperture perimeter and peripheral edge(s) 128, 138, 132 of active electrode 17; [0045], [0055]), both the first and second aspiration apertures centrally located on a central longitudinal axis of the active electrode (suction openings 171 are centrally located on, or in close proximity with, the central longitudinal axis of electrode 17, where “on” can be defined as “used as a function word to indicate position in close proximity with”, www.m-w.com).
Claim 40 is rejected upon the same rationale as applied to claim 27-28.
Claim Rejections - 35 USC § 102
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(s) 25 & 37 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kramer et al. (2010/0160910), as applied to claims 21 & 26.
Concerning claims 25 & 37, Kramer et al. disclose the first aspiration aperture (171) has an aspiration aperture perimeter bounded by the cavity aperture perimeter (132) and the peripheral edge surface (128, 138, 132 ) of the active electrode (17), the peripheral edge surface (128, 138, 132) defining a U-shaped portion of the first aspiration aperture (171) ([0045-0046]; Fig. 7 & 13). Kramer et al. fail to disclose the U-shaped portion being symmetrical about the bifurcating plane. It would have been obvious to one having ordinary skill in the art at the time the invention the invention was effectively filed to modify the invention of Kramer et al. such that disclose the U-shaped portion being symmetrical about the bifurcating plane is of whatever desired or expedient form or shape, since a change in form or shape is generally recognized as being within the level of ordinary skill in the art, absent any showing of unexpected results. In re Dailey et al., 149 USPQ 47. Further, Applicant places no criticality on the u-shaped apertures being symmetrical about the bifurcating plane.
Claim(s) 24 & 38 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kramer et al. (2010/0160910, previously cited), as applied to claim 21, in further view of Davison et al. (2003/0097129, previously cited).
Concerning claims 24 & 38, while, Kramer discloses varying aspiration sized apertures (133, 171) ([0055]; Fig. 7), Kramer et al. fail to disclose the first aspiration aperture is smaller than the second aspiration aperture. However, Davison et al. disclose an electrosurgical wand comprising an active electrode having a plurality of aspiration ports coupled to a common aspiration channel, where the suction pressure of each working zone is a function of the number and size of the least one aspiration port in that zone, where the extent to which the active electrode(s) in each zone form a plasma is dependent, in part, on the local environment of that zone, wherein the local environment is determined by the aspiration rate. At the time the invention was effectively filed, it would have been obvious to one of ordinary skill in the art to modify the invention of Kramer et al. such that the first aspiration aperture is smaller than the second aspiration aperture in order to provide the benefit of controlling the relative rate of ablation as taught by Davison et al. ([0355-0356]).
Claim(s) 26 & 39 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kramer et al. (2010/0160910, previously cited), as applied to claims 21 & 36, in further view of Earley et al. (2006/0235377, previously cited).
Concerning claims 26 & 39, Kramer et al. disclose the aspiration lumen (54) extends along the elongate shaft (15), the aspiration lumen (54) having a longitudinal axis (any of a plurality of longitudinal axes that are not co-axial with the central longitudinal axis of the shaft) that is offset from a longitudinal axis of the elongate shaft (15) (Fig. 6). Kramer et al. fail to disclose the elongate shaft includes a bend defining an outer curved side and an inner curved side of the elongate shaft. However, Earley et al. disclose an electrosurgical wand (10) having either a straight or bent configuration. At the time the invention was effectively filed, it would have been obvious to one of ordinary skill in the art to modify the invention of Kramer et al. such that the elongate shaft includes a bend defining an outer curved side and an inner curved side of the elongate shaft in order to provide the benefit of gaining better access to targeted tissue at the surgical site as taught by Earley et al. ([0046]; Fig. 1 & 11) The modified invention of Kramer et al. in view of Earley et al. teaches wherein the aspiration lumen extends along the elongate shaft including along the bend, the aspiration lumen having a plurality of longitudinal axes (any longitudinal axis that is not co-axial with the shaft central longitudinal axis) that are offset from a central longitudinal axis of the elongate shaft, offset towards the outer curved side.
Allowable Subject Matter
Claims 29-35 are allowed. As allowable subject matter has been indicated, applicant's reply must either comply with all formal requirements or specifically traverse each requirement not complied with. See 37 CFR 1.111(b) and MPEP § 707.07(a).
The following is a statement of reasons for the indication of allowable subject matter: the prior art fails to teach “the wand distal end portion includes a first and a second aspiration aperture, the first aspiration aperture bounded by the distal medial edge surface of the active electrode and a distal-most portion of the opening perimeter and the second aspiration aperture bounded by the proximal medial edge surface of the active electrode and a proximal-most portion of the opening perimeter.”
Response to Arguments
Applicant’s arguments with respect to claim(s) 21-28 & 36-40 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 response to Applicant's argument regarding claim 21 that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., the specific bifurcating plane of the active electrode as there are at least two) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
The Examiner notes claim 26 fails to recite a “central” longitudinal axis of the aspiration lumen and claim 39 fails to recites either a “central” longitudinal axis of the aspiration lumen or the shaft.
The Examiner notes claim 36 fails to recite the central longitudinal axis of the active electrode intersects the aspiration apertures.
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 JAYMI E DELLA whose telephone number is (571)270-1429. The examiner can normally be reached on M-Th 6:00 am - 4:45 pm.
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/JAYMI E DELLA/Primary Examiner, Art Unit 3794
JAYMI E. DELLA
Primary Examiner
Art Unit 3794
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