DETAILED ACTION
A complete action on the merits of pending claims 19-37 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.
Double Patenting
Claims 19-34 are rejected on the grounds of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 11903635. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of patent anticipate the claims of the application. Accordingly, the application claims are not patentably distinct from the patent claims. Here, the more specific patent claims encompass the broader application claims. Following the rationale in In re Goodman cited in the preceding paragraph, where applicant has once been granted a patent containing a claim for the specific narrow invention, applicant may not obtain a second patent with a claim for the generic or broader invention without first submitting an appropriate terminal disclaimer.
Claim Rejections - 35 USC § 103
Claims 19-22 and 25-37 are rejected under 35 U.S.C. 103 as being unpatentable over Chernov US 20120296205 in view of Robinson US 20120209288. Par. [0038] of Chernov incorporates US Application 12757310 by reverence. Haorau US 20110251605 is used for the incorporated reference.
Regarding claim 19, Chernov teaches a display (Fig. 1 display 118); a sensor (par. [0061] optical sensor); one or more processors; and a memory coupled to the one or more processors, the memory having instructions stored thereon which, when executed by the one or more processors, cause the one or more processors to: receive sensor data from the sensor (par. [0032]); generate a tissue indication based upon the sensor data; and output the tissue indication to the display as an overlay of the tissue indication onto the end effector assembly in the video image (par. [0035] microprocessor transfers sensor data to the display), wherein the tissue indication indicates a location along the first jaw member at which the grasped tissue is grasped between the first and second jaw members (pars. [0058] and [0061] images sent to display showing the tissue and vessel position within a translucent jaw).
Chernov does not explicitly teach a signal to the display, the signal causing the display to display a video image of a surgical site including first and second jaw members of an end effector assembly grasping tissue at the surgical site.
Robinson, in an analogous device, teaches displaying the tissue being clamped in the jaws and superimposing a knife position within the jaws (par. [0059]).
It would have been obvious to one of ordinary skill in the art at the time the invention was effectively filed to modify Chernov to display the jaw, as in Robinson. The tracking of Robinson allows for portions not visible in the surgical area to be superimposed onto the display (Abstract).
Regarding claim 28, Chernov teaches a display (Fig. 1 display 118) ; a sensor (par. [0061] optical sensor); one or more processors; and a memory coupled to the one or more processors, the memory having instructions stored thereon which, when executed by the one or more processors (par. [0032]), cause the one or more processors to: receive sensor data from the sensor, the sensor data associated with tissue grasped between first and second jaw members of an end effector assembly; determine at least one of a type of the grasped tissue, a state of the grasped tissue, or the presence of a foreign object or a critical tissue within the grasped tissue based upon the sensor data (par. [0035] microprocessor transfers sensor data to the display); generate a tissue indication based upon the determined at least one of the type of the grasped tissue, the state of the grasped tissue, or the presence of a foreign object or a critical tissue within the grasped tissue (par. [0036] identifying tissue type); and output the tissue indication to the display as an overlay of the tissue indication onto the end effector assembly in the video image (pars. [0058] and [0061] images sent to display showing the tissue and vessel position within a translucent jaw).
Chernov does not explicitly teach a signal to the display, the signal causing the display to display a video image of a surgical site including first and second jaw members of an end effector assembly grasping tissue at the surgical site.
Robinson, in an analogous device, teaches displaying the tissue being clamped in the jaws and superimposing a knife position within the jaws (par. [0059]).
It would have been obvious to one of ordinary skill in the art at the time the invention was effectively filed to modify Chernov to display the jaw, as in Robinson. The tracking of Robinson allows for portions not visible in the surgical area to be superimposed onto the display (Abstract).
Regarding claims 20 and 29, Chernov teaches wherein the overlay is displayed over an exterior-facing surface of the first jaw member of the end effector assembly in the video image (pars. [0058] and [0061] the jaw is translucent so the tissue can be seen by the user looking at the device or on the display).
Regarding claims 21 and 30, Chernov teaches wherein the tissue indication includes at least one of a visual effect, a contrast pattern, a color highlight, or a banner (pars. [0058] and [0061] the jaw is translucent so the tissue can be seen through it).
Regarding claims 22 and 31, Chernov teaches wherein the sensor is disposed on the end effector assembly (par. [0061] optical sensor.
Regarding claims 25 and 32, Chernov teaches further comprising a surgical instrument including the end effector assembly (Fig. 1).
Regarding claims 26 and 33, Chernov teaches wherein the surgical instrument includes a housing (par. [0028] handpiece 104) and a shaft extending distally from the housing (Fig. 1 and Fig. 2 shaft that 115 is in), wherein the end effector assembly is disposed at a distal end portion of the shaft (Fig. 2), wherein the housing includes at least one actuator configured to manipulate the end effector assembly (Hoarau Fig. 14 440).
Regarding claims 27 and 34, Chernov teaches further comprising a robotic arm, wherein the surgical instrument is configured to releasably connect to the robotic arm (Haurau Fig. 14).
Regarding claim 35, Chernov teaches wherein the sensor detects a position of the grasped tissue with respect to the first jaw member (par. [0013] determining the position based on light).
Regarding claim 36, Chernov teaches wherein the instructions further cause the one or more processors to: determine, based on the sensor data, a position of the grasped tissue with respect to the first jaw member (par. [0013] determining the position based on light).
Regarding claim 37, Chernov teaches wherein the tissue indication indicates a position of grasped tissue as seen through the first jaw member (par. [0013] determining the position based on light).
Claim Rejections - 35 USC § 103
Claims 23 and 24 are rejected under 35 U.S.C. 103 as being unpatentable over Chernov and Robinson as applied to claim 22, and further in view of Worrell US 20170238991.
Regarding claims 23 and 24, Chernov and Robinson do not explicitly teach wherein the sensor includes at least one pressure-sensitive resistive panel and wherein the sensor includes an elastomeric contact sensor.
Worrell, in an analogous device, teaches where the light measuring device has an elastomer strip embedded in it (par. [0161]).
It would have been obvious to one of ordinary skill in the art at the time the invention was effectively filed to modify the sensing of Chernov and Robinson to have an elastomeric sensor, as in Worrell. The elastomeric sensor is able to determine micro force changes (Worrell par. [0535]).
Response to Arguments
Applicant's arguments filed 12/16/25 have been fully considered but they are not persuasive. Applicant's arguments fail to comply with 37 CFR 1.111(b) because the applicant has conceded their right to file timely arguments regarding newly added claims without specifically pointing out how the language of the claims patentably distinguishes them from the references. Therefore, new claims 35-37 are read on by the current art of record as seen in the rejection above.
The applicant argues, regarding the double patenting rejection, that U.S. Patent No. 11903635 doe not specifically state that the jaws are shown in the display. The rejection relies on In re Goodman and the applicant has not stated how the current set of claims are more specific and would not fall under this kind of double patenting.
The applicant argues that Chernov does not teach the image of the vessels on display 118 indicates a location along the first jaw member. The applicant underlines and italicized that par. [0058] states a surgeon can continually direct her eyes toward a surgical site within a surgical field of view without needing to redirect her eyes to a separate monitor or display. First, that is just one embodiment and the display can be the image that is projected on the eyes of the surgeon. The passage states a separate display or monitor not that there is not one at all. Further, that paragraph states that the surgeon based on the image is able to see if the vessel is properly placed within the jaws. Thus, the tissue location related to the jaws is known. The applicant further states that Robinson does not teach the tissue and end effector shown together. However, Fig. 10 shoes the image of an end effector with the tissue between the jaws and the cutter relative to the tissue. 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.
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/R.T.C./Examiner, Art Unit 3794
/LINDA C DVORAK/Primary Examiner, Art Unit 3794