DETAILED ACTION
This Office Action is in response to the communication dated 11 February 2026 concerning Application No. 18/435,343 filed on 07 February 2024.
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
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.
Status of Claims
Claims 1-4 and 6-20 are pending and currently under consideration for patentability; claims 1 and 16 have been amended; claim 5 has been cancelled.
Response to Arguments
Applicant’s arguments dated 11 February 2026 have been fully considered, but they are not persuasive or 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.
Applicant has amended the independent claims to recite wherein the distal end region has a tapered section extending distally beyond a distal-most aperture of the plurality of infusion apertures to the distal end of the infusion tube, the tapered section having a constant internal diameter and a sidewall that gradually decreases in thickness, the distal end region being the distal-most portion of the dual lumen cannula. The Examiner has addressed the amended limitations in the updated text of the rejection below.
Applicant argues that Examiner’s motivation for modifying the Shorey reference “is merely conclusory and not supported by the prior art,” as “it appears the Examiner is merely relying on common sense or basic knowledge, which Applicant respectfully submits is not a reasoned explanation and is insufficient to support an obviousness rejection” (Arguments, p. 8). The Examiner respectfully disagrees that the motivation “is merely conclusory,” as the Examiner has identified each of the prior art elements, minor modifications required of those elements, and the advantages which would result naturally from the proposed modifications. To the extent that the Examiner has relied on “common sense or basic knowledge,” the Examiner respectfully submits that the skilled artisan would also possess such “common sense or basic knowledge.” Therefore, the Examiner respectfully maintains the motivation for modifying the Shorey reference as presented.
Applicant argues that “since all the elements of at least Applicant’s claims 1, 3, 5, 12, 13, 16, 17, and 19 are not found in the Shorey reference, Applicant assumes that the Examiner is taking Official Notice of the missing elements” (Arguments, p, 8), continuing that “absent a reference, it appears that the Examiner is using personal knowledge to support this position, so the Examiner is respectfully requested to submit an affidavit as required by 37 C.F.R. § 1.104(d)(2)” (Arguments, pp. 8-9). The Examiner respectfully cautions Applicant from making such assumptions and submits that no Official Notice is being taken. Rather, the Examiner has articulated the reasons, based on the reference itself as well as guidance issued in the MPEP, for why the proposed modifications would have been obvious to the skilled artisan.
In response to Applicant's argument that the Examiner's conclusion of obviousness is based upon improper hindsight reasoning (Arguments, p. 9), it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). In the instant case, Examiner has identified advantages which would result naturally from the modifications proposed in the rejection. Therefore, no improper hindsight reasoning has been used, and, as Applicant freely admits (Arguments, pp. 9-11), the Examiner has identified advantages that are different than those in Applicant’s disclosure. Applicant’s own arguments are contradictory - the Examiner cannot have used knowledge gleaned only from Applicant’s disclosure and have arrived at advantages that are different than those appearing in Applicant’s disclosure. Applicant’s arguments are mutually exclusive, and Examiner respectfully maintains that the conclusion of obviousness is supported by the prior art and the statutes presented in the MPEP.
In response to Applicant's argument that the cross-sectional area of the infusion apertures is “particularly selected to specifically avoid an undesirable pressure drop” (Arguments, pp. 10-11), the fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985). The Examiner respectfully submits that there may be many different reasons to combine the references, but the combination itself is still valid, regardless of which particular advantageous benefit is used as motivation for making the combination.
Claim Objections
Claims 1 and 16 are objected to because of the following informalities.
Claims 1 and 16 contain minor typographical errors.
Claim 1, line 32: Applicant is advised to change “the tapering section” to “the tapered section”
Claim 16, line 33: Applicant is advised to change “the tapering section” to “the tapered section”
Appropriate correction is required.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-4, 6, 7, 10-17, 19, and 20 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Shorey (US 2009/0005725 A1) in view of Hicks (US 5,830,196).
Regarding claims 1 and 16, Shorey describes a dual lumen cannula 10 comprising
a drainage tube 24 having a proximal end 26, a distal end 28, and a lumen extending therethrough (figure 4, lumen denoted by reinforcing coil 55)
an infusion tube 12 coaxially aligned within the lumen of the drainage tube (figure 3), the infusion tube having a proximal end 16, a distal end 20, and a lumen 14 extending therethrough
wherein the infusion tube includes a distal end region extending distally beyond the distal end of the drainage tube to the distal end of the infusion tube (figure 2, distal end region between reference characters 18 and 22 extends distally beyond distal end 28 of drainage tube)
a plurality of drainage apertures 30 extending through a sidewall of the drainage tube proximal of the distal end of the drainage tube ([0032], figure 2), the plurality of drainage apertures forming a pattern of multiple longitudinally spaced apart rows, wherein each row includes a plurality of longitudinally aligned drainage apertures spaced apart circumferentially around a circumference of the drainage tube (figures 12-15 and 17 depict such configurations), wherein the drainage apertures of a first row of the longitudinally spaced apart rows are longitudinally spaced apart from any of the drainage apertures of a second row of the longitudinally spaced apart rows by a distance (figures 12-14 and 17), wherein the first row is longitudinally adjacent to the second row with no other row of the longitudinally spaced apart rows therebetween (figures 12-14 and 17)
a plurality of infusion apertures 22 extending through a sidewall of the infusion tube adjacent the distal end of the infusion tube (figure 16, [0007], [0044]; please see also infusion basket 61 as described in [0035])
a connector 34 provided at the proximal end of the infusion tube and the proximal end of the drainage tube (figures 2 and 3), the connector including an inlet portion defining an infusion fluid pathway in fluid communication with the lumen of the infusion tube (figure 3, top portion proximal of connector 34) and an outlet portion defining a drainage fluid pathway in fluid communication with the lumen of the drainage tube (figure 3, bottom portion proximal of connector 34)
wherein the sidewall of the drainage tube has a constant thickness from a position distal of the plurality of drainage apertures to a position adjacent the proximal end of the drainage tube (figures 3-5), the drainage tube further including a connector portion at the proximal end thereof for coupling to the connector (figure 3, area marked near the reference character 32)
Regarding claim 16 in particular, Shorey describes wherein the sidewall of the drainage tube between longitudinally adjacent rows is devoid of apertures (figures 12-15 and 17).
Regarding claims 1 and 16, Shorey does not explicitly disclose wherein the longitudinal distance between the drainage apertures of the first row and the second row is greater than a diameter of any of the drainage apertures and wherein the sidewall of the connector portion of the drainage tube gradually increases in thickness. Shorey also does not explicitly disclose wherein the distal end region has a tapered section extending distally beyond a distal-most aperture of the plurality of infusion apertures to the distal end of the infusion tube, the tapering section having a constant internal diameter and a sidewall that gradually decreases in thickness, the distal end region being the distal-most portion of the dual lumen cannula.
Regarding the drainage apertures, the Examiner respectfully submits that, as Shorey describes all the structural elements of the drainage apertures arranged in rows with a longitudinal space between the rows, it would have been obvious to a person having ordinary skill in the art at the time the invention was made to adjust the exact spacing and/or size of the individual apertures or the rows of apertures to arrive at a configuration similar to that claimed, as doing so would be a matter of changing the size, shape, and/or proportion of the known elements in order to achieve a known, predictable outcome (please see MPEP 2144.04). Regarding the thickness of the sidewalls, the Examiner respectfully submits that it would have been obvious to a person having ordinary skill in the art at the time the invention was made to configure the thickness of the sidewalls as necessary, for example to ensure a better fitting between the components or to optimize the fluid flow through the cannula, as doing so would be a matter of changing the shape and/or proportion of the known elements in order to achieve a known, predictable outcome (please see MPEP 2144.04).
Regarding the tapered section, the Examiner respectfully submits that Shorey does describe an introducer 38, the distal end region of which is tapered and extends distally beyond a distal-most aperture of the plurality of infusion apertures at the distal end of the infusion tube (figure 1). Although Shorey does not explicitly disclose wherein the distal end region of the infusion tube itself is tapered, the Examiner respectfully submits that, in view of Shorey’s distally tapering introducer, it would have been obvious to a person having ordinary skill in the art at the time the invention was made to configure the infusion tube such that its distal end region had a tapered section, as doing so advantageously allows the cannula to more safely reach areas of the patient’s vasculature. Additionally, Hicks also describes a cannula, wherein a distal end region has a tapered section having a constant internal diameter and a sidewall that gradually decreases in thickness, the distal end region being the distal-most portion of the cannula (figure 11, col 6:30-49). As Hicks is also directed towards cannulae and is in a similar field of endeavor, it would have been obvious to a person having ordinary skill in the art at the time the invention was filed to incorporate a conical distal tip similar to that described by Hicks when using the cannula described by Shorey, as doing so advantageously allows the cannula to more safely reach areas of the patient’s vasculature.
Regarding claim 2, Shorey describes wherein the drainage apertures in at least some adjacent rows are circumferentially offset from one another (figures 12-15 and 17).
Regarding claims 3 and 17, Shorey describes the dual lumen cannula of claim 1 and claim 16, including wherein a first row of drainage apertures is spaced apart from a second row of drainage apertures by a first distance and the second row is spaced apart from a third row by a second distance (figures 12-17). Although Shorey does not explicitly disclose wherein the first distance is larger than the second distance, Shorey does describe adjusting the number of apertures, angle of the apertures, dimensions of the apertures, and overall arrangement of the apertures ([0042]), including that various configurations of the apertures may be employed in order to best meet whatever patient constraints may be present ([0042], [0044]). Based on this, the Examiner respectfully submits that it would have been obvious to a person having ordinary skill in the art at the time the invention was made to configure the distances between the rows of apertures such that the first distance, between the first and second rows, was larger than the second distance, between the second and third rows, as doing so would be a matter of changing the size, shape, and/or proportion of the known elements or rearranging the known elements without changing the overall operation of the cannula (please see MPEP 2144.04).
Regarding claim 4, Shorey describes wherein each row of drainage apertures is longitudinally spaced apart from adjacent rows of drainage apertures by a segment of the drainage tube without any drainage apertures (figures 12-15 and 17).
Regarding claim 6, Shorey describes wherein the infusion fluid pathway and the drainage fluid pathway transition from a coaxial arrangement at a distal end of the connector to an axially offset arrangement at a proximal end of the connector (figure 3, [0032], the lumens are shown as being coaxial at the right, or distal, end of the connector and axially offset at the left, or proximal, end of the connector).
Regarding claim 7, Shorey describes wherein the distal end region of the drainage tube has a tapered portion extending distally beyond a distal-most aperture of the plurality of drainage apertures to the distal end of the drainage tube (figure 2, please see zoomed-in view of tapered portion, circled by Examiner, below).
PNG
media_image1.png
360
517
media_image1.png
Greyscale
[AltContent: oval]
Regarding claim 10, Shorey describes wherein one or both of the infusion tube and the drainage tube includes a reinforcing coil ([0034], [0041], figure 3).
Regarding claims 11 and 20, Shorey describes wherein the lumen of one or both of the infusion tube and the drainage tube includes a wire mesh basket at a location surrounding the infusion apertures or drainage apertures, respectively ([0035]).
Regarding claims 12 and 13, although Shorey does not explicitly disclose wherein each infusion aperture has a diameter of 1 mm or wherein the diameter of each drainage aperture is 1.5 mm, the Examiner respectfully submits that, as Shorey describes adjusting the dimensions of the apertures ([0042]), including that various configurations of the apertures may be employed in order to best meet whatever patient constraints may be present ([0042], [0044]), it would have been obvious to a person having ordinary skill in the art at the time the invention was made to configure the infusion and drainage apertures with the diameters recited, as doing so would be a matter of changing the size, shape, and/or proportion of the known elements without changing the overall operation of the cannula (please see MPEP 2144.04).
Regarding claim 14, Shorey describes wherein the plurality of drainage apertures extends through the sidewall of the drainage tube in a direction perpendicular to a longitudinal axis of the drainage tube ([0042]).
Regarding claim 15, Shorey describes wherein the plurality of drainage apertures extends through the sidewall of the drainage tube at an angle with respect to a longitudinal axis of the drainage tube ([0042]).
Regarding claim 19, although Shorey describes wherein each infusion aperture has a first diameter and each drainage aperture has a second diameter (figures 12-17, diameters being inherent properties of the apertures), Shorey does not explicitly disclose wherein the first diameter is smaller than the second diameter. Shorey does, however, describe adjusting the dimensions of the apertures ([0042]), including that various configurations of the apertures may be employed in order to best meet whatever patient constraints may be present ([0042], [0044]), it would have been obvious to a person having ordinary skill in the art at the time the invention was made to configure the infusion and drainage apertures such that the infusion apertures had a smaller diameter than the drainage apertures, as doing so would be a matter of changing the size, shape, and/or proportion of the known elements without changing the overall operation of the cannula (please see MPEP 2144.04).
Claims 8, 9, and 18 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Shorey in view of Hicks, further in view of Barnitz et al. (US 2006/0184098 A1).
Regarding claim 8, Shorey in view of Hicks suggests the dual lumen cannula of claim 1, but Shorey and Hicks do not explicitly disclose wherein a total cross-sectional area of the plurality of drainage apertures is equal to or greater than a cross-sectional area of the lumen extending through the drainage tube. Shorey does, however, describe adjusting the number of apertures, angle of the apertures, and dimensions of the apertures ([0042]), and that various configurations of the apertures may be employed in order to best meet whatever patient constraints may be present ([0042], [0044]). Being motivated to ensure that the flow through the infusion and drainage apertures would be sufficient to both deliver and remove fluid through the respective apertures, the skilled artisan would seek guidance on how to best configure the size, shape, number, and/or configuration of the apertures. Barnitz provides such guidance when describing multi-lumen catheters 200 comprising a plurality of apertures (600, 610), stating that “apertures...have diameters...depending upon the diameter of the catheter and the ability of the catheter to maintain the ACSF [artificial cerebrospinal fluid] flow rates discussed...” ([0038]). Barnitz further explains that “aperture size, diameter, number, spacing, pattern, and shape are selected to obtain a useful or optimum flow rate for transport of fluids...to and from the...space” ([0039]). Therefore, the Examiner respectfully submits that it would have been obvious to a person having ordinary skill in the art at the time the invention was made to adjust the size, diameter, number, spacing, pattern, and/or shape of the infusion and drainage apertures, as taught by Barnitz, and to incorporate such design changes into the system disclosed by Shorey and Hicks, as doing so advantageously ensures that the flow rates through the apertures and their corresponding lumens and tubes would be sufficient for patient treatment. As variations in the apertures necessarily cause variations in the total cross-sectional area of the apertures, the Examiner respectfully submits that, through routine experimentation, the skilled artisan would arrive at a configuration wherein the total cross-sectional area of the plurality of drainage apertures is equal to or greater than the cross-sectional areas of the lumen extending through the drainage tube, as doing so maximizes the flow rates and minimizes the flow disturbances as fluids are passing through the apertures and lumen.
Regarding claim 9, Shorey in view of Hicks suggests the dual lumen cannula of claim 1, but Shorey and Hicks do not explicitly disclose wherein a total cross-sectional area of the plurality of infusion apertures is equal to or greater than a cross-sectional area of the lumen extending through the infusion tube. Shorey does, however, describe adjusting the number of apertures, angle of the apertures, and dimensions of the apertures ([0042]), and that various configurations of the apertures may be employed in order to best meet whatever patient constraints may be present ([0042], [0044]). Being motivated to ensure that the flow through the infusion and drainage apertures would be sufficient to both deliver and remove fluid through the respective apertures, the skilled artisan would seek guidance on how to best configure the size, shape, number, and/or configuration of the apertures. Barnitz provides such guidance when describing multi-lumen catheters 200 comprising a plurality of apertures (600, 610), stating that “apertures...have diameters...depending upon the diameter of the catheter and the ability of the catheter to maintain the ACSF [artificial cerebrospinal fluid] flow rates discussed...” ([0038]). Barnitz further explains that “aperture size, diameter, number, spacing, pattern, and shape are selected to obtain a useful or optimum flow rate for transport of fluids...to and from the...space” ([0039]). Therefore, the Examiner respectfully submits that it would have been obvious to a person having ordinary skill in the art at the time the invention was made to adjust the size, diameter, number, spacing, pattern, and/or shape of the infusion and drainage apertures, as taught by Barnitz, and to incorporate such design changes into the system disclosed by Shorey and Hicks, as doing so advantageously ensures that the flow rates through the apertures and their corresponding lumens and tubes would be sufficient for patient treatment. As variations in the apertures necessarily cause variations in the total cross-sectional area of the apertures, the Examiner respectfully submits that, through routine experimentation, the skilled artisan would arrive at a configuration wherein the total cross-sectional area of the plurality of infusion apertures is equal to or greater than the cross-sectional areas of the lumen extending through the infusion tube, as doing so maximizes the flow rates and minimizes the flow disturbances as fluids are passing through the apertures and lumen.
Regarding claim 18, Shorey in view of Hicks suggests the dual lumen cannula of claim 16, but Shorey and Hicks do not explicitly disclose wherein a total cross-sectional area of the plurality of drainage apertures is equal to or greater than a cross-sectional area of the lumen extending through the drainage tube, and wherein a total cross-sectional area of the plurality of infusion apertures is equal to or greater than a cross-sectional area of the lumen extending through the infusion tube. Shorey does, however, describe adjusting the number of apertures, angle of the apertures, and dimensions of the apertures ([0042]), and that various configurations of the apertures may be employed in order to best meet whatever patient constraints may be present ([0042], [0044]). Being motivated to ensure that the flow through the infusion and drainage apertures would be sufficient to both deliver and remove fluid through the respective apertures, the skilled artisan would seek guidance on how to best configure the size, shape, number, and/or configuration of the apertures. Barnitz provides such guidance when describing multi-lumen catheters 200 comprising a plurality of apertures (600, 610), stating that “apertures...have diameters...depending upon the diameter of the catheter and the ability of the catheter to maintain the ACSF [artificial cerebrospinal fluid] flow rates discussed...” ([0038]). Barnitz further explains that “aperture size, diameter, number, spacing, pattern, and shape are selected to obtain a useful or optimum flow rate for transport of fluids...to and from the...space” ([0039]). Therefore, the Examiner respectfully submits that it would have been obvious to a person having ordinary skill in the art at the time the invention was made to adjust the size, diameter, number, spacing, pattern, and/or shape of the infusion and drainage apertures, as taught by Barnitz, and to incorporate such design changes into the system disclosed by Shorey and Hicks, as doing so advantageously ensures that the flow rates through the apertures and their corresponding lumens and tubes would be sufficient for patient treatment. As variations in the apertures necessarily cause variations in the total cross-sectional area of the apertures, the Examiner respectfully submits that, through routine experimentation, the skilled artisan would arrive at a configuration wherein the total cross-sectional area of the plurality of drainage apertures is equal to or greater than the cross-sectional areas of the lumen extending through the drainage tube and wherein the total cross-sectional area of the plurality of infusion apertures is equal to or greater than the cross-sectional areas of the lumen extending through the infusion tube, as doing so maximizes the flow rates and minimizes the flow disturbances as fluids are passing through the apertures and lumen.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-17 of U.S. Patent No. 11,918,725 B2 in view of Shorey and Hicks.
Regarding claim 1, the ’725 patent recites the limitations of a dual lumen cannula comprising a drainage tube, an infusion tube, a plurality of drainage apertures, a plurality of infusion apertures, and a connector substantially as recited in the pending claims with the exception of not explicitly reciting the thickness of the sidewalls of the connector portion and the tapered distal section. However, it would have been obvious to a person having ordinary skill in the art at the time the invention was made to include a connector portion similar to that described by Shorey and a distal tapered section similar to that described by Hicks, adjusting the thickness of the sidewall section as described in the text of the rejection above. As Shorey and Hicks are also directed towards cannulae and are in a similar field of endeavor, it would have been obvious to a person having ordinary skill in the art at the time the invention was made to include the connector portion described by Shorey and the distal section described by Hicks, including the modifications described by the Examiner, when using the cannula described by the ‘725 patent, as doing so advantageously optimizes the fluid flow through the cannula.
Regarding claims 4-10, 16, and 18, a brief, but non-exhaustive matching of the pending claims and the reference claims is provided via the table below.
U.S. Application No. 18/435,343
(Pending Claims)
U.S. Patent No. 11,918,725 B2
(Reference Claims)
4
1
5
1
6
1
7
2
8
3
9
4
10
6,9
16
1
18
3,4
Regarding claims 2, 3, 11-15, 17, 19, and 20, although the ‘725 patent does not recite, within the claims, the configurations and sizes of the apertures and the inclusion of a wire mesh basket as claimed, Shorey does describe these elements, as described in the text of the rejection above. As Shorey is also directed towards a dual lumen cannula and is in a similar field of endeavor, it would have been obvious to a person having ordinary skill in the art at the time the invention was made to include the configurations described by Shorey when using the cannula described by the ‘725 patent, as doing so advantageously allows the resulting cannula to best meet whatever patient constraints may be present, as described by Shorey ([0042], [0044]).
Statement on Communication via Internet
Communications via Internet e-mail are at the discretion of the applicant. Without a written authorization by applicant in place, the USPTO will not respond via Internet e-mail to any Internet correspondence which contains information subject to the confidentiality requirement as set forth in 35 U.S.C. 122. Where a written authorization is given by the applicant, communications via Internet e-mail, other than those under 35 U.S.C. 132 or which otherwise require a signature, may be used. USPTO employees are NOT permitted to initiate communications with applicants via Internet e-mail unless there is a written authorization of record in the patent application by the applicant. The following is a sample authorization form which may be used by applicant:
“Recognizing that Internet communications are not secure, I hereby authorize the USPTO to communicate with the undersigned and practitioners in accordance with 37 CFR 1.33 and 37 CFR 1.34 concerning any subject matter of this application by video conferencing, instant messaging, or electronic mail. I understand that a copy of these communications will be made of record in the application file.”
Please refer to MPEP 502.03 for guidance on Communications via Internet.
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 Ankit D. Tejani, whose telephone number is 571-272-5140. The Examiner may normally be reached on Monday through Friday, 8:30AM through 5:00PM EST. 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, Carl Layno, can be reached by telephone at 571-272-4949. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (in USA or Canada) or 571-272-1000.
/Ankit D Tejani/
Primary Examiner, Art Unit 3792