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 .
Election/Restrictions
Applicant's election with traverse of Group I, claims 1-10 in the reply filed on 2/17/26 is acknowledged. The traversal is on the ground(s) that there is no serious search burden. This is not found persuasive because the search did not return art which disclosed both inventions.
The requirement is still deemed proper and is therefore made FINAL.
Claim Objections
Claims 1-10 are objected to because of the following informalities:
Claim 1 recites “comprises” as the preamble transition word but this should be “comprising.”
The claims contain bullets which should be deleted. The claims’ indentations are sufficient to segregate subcombinations.
Appropriate correction is required.
Claim Interpretation
Some of the system claims contain functional language. Functional language in an apparatus/system claims are only limiting when they limit the structure of the system (what it is, not what it does). Claim 1 limitation “a second jaw cooperating with the first jaw to close over and to flatten a portion of an ear of an animal” for example is satisfied by a second jaw cooperating with a first jaw to grasp a material which need not specifically be an ear of an animal, as the ear is not a positively recited part of the invention.
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.
Claim(s) 1 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hazelton et al. [US 20200315735 A1, hereinafter “Hazelton”] in view of Timm et al. [US 20240000500 A1, hereinafter “Timm”].
Re. claim 1, Hazelton discloses a system [“animal identification” relates to the intended use of the device, not given further patentable weight beyond what is claimed] comprises:
an applicator [100, Figs. 1, with shaft shown in Fig. 2, and jaws in Fig. 4A]. comprising:
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a set of jaws [400, Fig. 4A] comprising: a first jaw [440]; and a second jaw [410]: opposing the first jaw [Fig. 4A, Par. 0060]; and capable of cooperating with the first jaw to close over and to flatten a portion of an ear of an animal [this functional language relates to the intended use of the device. The system of Hazelton is capable of such use, and it is disclosed as used in medical settings, including veterinary settings (Par. 0028) to grasp (see title) tissue, applying force to the tissue (Par. 0032)];
an optical emitter [460, “one of first imaging module 460 and second imaging module 460 may correspond to a radiation emitter,” Par. 0063, so in this instance 470 is selected as the emitter]: arranged on the first jaw; and configured to emit light toward the second jaw to illuminate the portion of the ear inserted between the first jaw and the second jaw [“capable of imaging at and/or around end effector 400, including the area and/or space between first jaw surface 450 and second jaw surface 420,” Par. 0066];
an optical detector [470, Par. 0063]: coupled to the second jaw [Fig. 4A]; and defining a field of view intersecting the optical emitter [Fig. 4A, with related description of field of vision in Par. 0053];
a sensor [260, Fig. 2]: coupled to the set of jaws; and configured to output a signal representing closure of the set of jaws over the portion of the ear [signal, Par. 0064. Par. 0069 describes the system determining the closure of the set of jaws over a portion of an anatomical object]; and
a controller [140, Fig. 1] configured to trigger the optical detector to capture an image of the portion of the ear, illuminated by the optical emitter [Par. 0066].
The invention of Hazelton differs from the claimed invention in that Hazelton is silent regarding the controller triggering the optical detector to capture an image based on the signal.
However, Timm teaches, in a medical device with a pair of jaws and an optical detector and controller: a sensor [“a first sensor to detect tissue disposed between the first jaw and the second jaw, a second sensor to detect that the end effector is in a closed configuration” Par. 0010] coupled to the set of jaws; and configured to output a signal representing closure of the set of jaws over the portion of the ear [Par. 0010], and wherein the controller is configured to configured to trigger the optical detector to capture an image of the portion of the ear, illuminated by the optical emitter [Par. 0066], based on the signal [“The control circuit determines if the end effector is in a closed configuration 1804. If the end effector is in a closed configuration, then the control circuit proceeds to determine if the jaws are clamped on tissue 1806. If the jaw is clamped on tissue, then the control circuit proceeds to calculate the distal tip location in the video data 1808. If the end effector was not in a closed configuration or the jaws were not clamped on tissue, then the control circuit would start the process 1800 over again by receiving the next batch of video data from the camera 1802,” Par. 0120]. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the system of Hazelton by configuring the controller to trigger the optical detector to capture an image of the portion of the ear, illuminated by the optical emitter [Par. 0066], based on the signal, as taught by Timm, because this “allows the control circuit to only perform the video analysis when the surgical device is clamped on tissue” which “reduces the computational burden” [Timm Par. 0120].
Claim(s) 2, 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hazelton in view of Timm, as applied to claim 1 above, and further in view of Arya et al. [US 20160089198 A1, hereinafter “Arya”].
Re. claim 2, the modified Hazelton discloses the device set forth above including the optical emitter emitting light towards the tissue, but fails to teach the lens on the second jaw. However, Arya teaches, in a medical device with a pair of jaws and a light emitter and receiver [Figs 4-5]: a lens [442, Fig. 5; Par. 0111] arranged on the second jaw [420, the jaw with the receiving element] facing the optical emitter [432, Fig. 5]; and configured to direct light emitted by the optical emitter toward the ear [Par. 0111. Note that the ear is not a positively recited part of the invention. The light is emitted toward the tissue which may be an ear]. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the apparatus of the modified Hazelton to include a lens on the second jaw member as taught by Arya in order to receive and direct the light emitted by the light emitter [Arya Par. 0111].
Re. claim 4, the modified Hazelton discloses the device set forth above including the jaw articulation path being vertical in Figs. 1, 4A, etc., and wherein the optical emitter is configured to emit light toward the second jaw perpendicular to the articulation path [Fig. 4A]; wherein the optical detector defines a focus axis perpendicular to the articulation path [Fig. 4A], and a light pipe [Par. 0076] configured to direct light, emitted by the optical emitter perpendicular to the articulation path, along the articulation path toward the portion of the ear
but fails to teach a handle, the light pipe being arranged adjacent the optical emitter, and the mirror.
Regarding the handle, Timm teaches a handle [1205, Fig 6] configured to close the set of jaws along a jaw articulation path [Par. 0099]; It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the apparatus of Hazelton to add aa handle as taught by Timm in order to allow a user to actuate the jaws to close when desired.
Regarding the light pipe being adjacent the optical emitter: Hazelton discloses both. Configuring them to be adjacent amounts to a simple rearrangement of parts which does not impact the operation of the device and thus is an obvious modification. See MPEP 2144.04.VI.
Regarding the mirror, Arya teaches a mirror configured to redirect light, directed along the articulation path, toward the optical detector [Par. 0107, Figs. 4A-C]. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the apparatus of the modified Hazelton to add a mirror as taught by Arya in order to direct light to the desired area. Regarding the mirror being arranged adjacent the optical detector; and configured to redirect light, directed along the articulation path and through the ear by the light pipe, toward the optical detector, this amounts to a simple rearrangement of parts and would have been obvious in order to ensure that the emitted light reaches its desired location.
Claim(s) 3 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hazelton in view of Timm, and further in view of Baily [US 20050021026 A1].
Re. claim 3, the modified Hazelton discloses the device set forth above but fails to teach the handle or the stop.
Regarding the handle, Timm teaches a handle [1205, Fig 6] configured to close the set of jaws along a jaw articulation path [Par. 0099]; It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the apparatus of Hazelton to add aa handle as taught by Timm in order to allow a user to actuate the jaws to close when desired.
Regarding the stop, Baily teaches, in a device with a pair of jaws, a stop [150 a, b, c] interposed between the first jaw and the second jaw [Fig. 3C]; and configured to prevent the set of jaws from impinging the portion of the ear [Pars. 0016,0017]. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the apparatus of the modified Hazelton to add stops to at least one of the jaws, between the first and second jaws, in order to regulate the distance between the jaw members [Par. 0015] which avoid over-pressing the tissue.
Claim(s) 5-6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hazelton in view of Timm, as applied to claim 1 above, and further in view of Neumann et al. [US 20120013439 A1, hereinafter “Neumann”].
Re. claim 5, the modified Hazelton discloses the device set forth above, but fails to teach the controller configured to detect a set of ear features and generate an earprint. However, Neumann teaches, in an apparatus for comparing biometric information, a controller is configured to: access the image of the portion of the ear [first representation, Pars. 0112,0113; 0018]; detect a set of ear features in the image; based on the set of ear features, generate an earprint uniquely identifying the animal [Pars. 0140-0141]; and populate an electronic profile, associated with the animal, with the earprint [Par. 0147]. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the system of the modified Hazelton so that the controller is configured to access an image to detect a set of ear features and generate a unique earprint and populate a data profile as taught by Neumann in order to allow a person/animal being operated on to be uniquely identified.
Re. claim 6, Neumann further teaches the controller is further configured to: detect a second set of ear features in a second image captured by the optical detector [second representation, Par. 0113]; based on the second set of ear features, generate a second earprint [Par. 0113]; retrieve the earprint from the electronic profile [inherent in the above steps]; characterize a difference between presence and spatial distribution of the set of ear features represented in the earprint and the second set of ear features represented in the second earprint [Par. 0141]; and in response to the difference falling below a threshold difference match the second earprint and the earprint, to identify the second earprint as corresponding to the animal [Par. 0080]. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the system of the modified Hazelton so that the controller is configured to generate a second earprint and compare that with the first as taught by Neumann in order to allow a person/animal being operated on to be uniquely identified
Claim(s) 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hazelton in view of Timm, as applied to claim 1 above, and further in view of Destoumieux et al. [US 20130204159 A1, hereinafter “Destoumieux”].
Re. claim 7, the modified Hazelton discloses the device set forth above, but fails to teach a tissue sample collection system. However, Destoumieux teaches, in a device [Figs. 4-5] with first and second jaws [412 and 411, respectively], a tissue sample collection system [as set forth below] comprising: a die [23] arranged on the first jaw; and a punch [21] arranged on the second jaw opposite the die; and configured to cooperate with the die to resect a tissue sample from the ear during closure of the set of jaws onto the portion of the ear [Pars. 0106-0107]. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the apparatus of the modified Hazelton by adding a tissue sample collection system as taught by Destoumieux in order to preserve cells for disease identification [Destoumieux Par. 0002].
Re. claim 8, the requirement that the tissue sample collection system is configured to transiently install on the set of jaws is a requirement that the sample system be separable. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the apparatus of the modified Hazelton such that the tissue sample collection system is configured to transiently install on the set of jaws because this allows the sample collection system to be removed when a tissue sample is not needed. See MPEP 2144.4.V.C.
Re. claim 9, the modified Hazelton discloses the device set forth above. Destoumieux further teaches a vial holder arranged on the second jaw behind the die [tube 31 is held in the second jaw behind the die, Fig. 5A-B]; and a replaceable vial [31] transiently coupled to the vial holder; arranged below the die; and configured to receive the tissue sample resected from the ear [Par. 0116]. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the apparatus of the modified Hazelton to add the vial holder and couple it to the vial, as taught by Destoumieux, in order to allow a sample to be transmitted to a laboratory [Destoumieux, Par. 0116].
Re. claim 10, the modified Hazelton discloses the device set forth above. Destoumieux further teaches the tissue sample collection system further comprises an actuator [42] affixed to one of the punch and the die; and wherein the system is configured to trigger the actuator to drive the punch toward the die to resect the tissue sample from the ear during closure of the set of jaws onto the portion of the ear [Par. 0161]. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the apparatus of the modified Hazelton to include the actuator and to trigger the actuator as claimed in order to allow a sample to be taken. Regarding the controller causing the actuator to actuate, Destoumieux teaches a manual actuator. However, configuring the controller to perform the actuation amounts to automating a manual activity. This does not provide a difference in operation and thus it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the actuator to be actuated by the controller as claimed. See MPEP 2144.04.III.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ERIN MCGRATH whose telephone number is (571)270-0674. The examiner can normally be reached M-F 9 am to 5 pm ET.
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/ERIN MCGRATH/Primary Examiner, Art Unit 3771