DETAILED ACTION
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 Invention I and Species G in the reply filed on 8/3/26 is acknowledged. The applicant argues that “Independent claim 1 is generic to all three Invention Groups I, II, and III.” This argument is unclear as the restriction requirement specifically set forth claims 1-9 as part of Invention Group I and not as part of Group II or III. Additionally, whether or not a claim is “generic” applies only to the election of species. For example, claim 1 can be considered generic if it applies to all species specified in the restriction requirement. The applicant also argues that “Independent claim 1 and dependent claims 2, 3, and 9 are generic to both Species G and H” and “There is therefore no search or examination burden for the Examiner to examine Species H along with Species G.” The examiner notes that claims 2, 3, and 9 do not appear to be generic as they do not apply to all species in the disclosure. Additionally, even if species G and H share some similarities, there is still a search burden as they require searching for different, mutually exclusive features. The examiner notes that if a particular claim is eventually found to be allowable, and that claim reads on both species G and H, the species would effectively be rejoinable.
The requirement is still deemed proper and is therefore made FINAL.
Within invention Group I, it appears that claims 1-4 and 9 read on elected species G. Claims 5-8 and 10-20 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention and/or species, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 8/3/26.
Specification
The specification uses reference numeral 790 to describe both “plunger 790” and “pin 790” (see at least paragraph [0052]-[0053] of instant specification). It is believed that reference numeral 790 should only apply to the pin. This is seemingly only an issue with the specification and not the drawings, and as such no drawing objections are currently being given.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: “a positive pressure pulse generator mechanism…” in claim 1.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of pre-AIA 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) 1-4 and 9 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Brady et al. (US 2019/0239910 A1, hereafter “Brady”).
As to claim 1, Brady discloses a cyclic aspiration system (Fig. 19) producing a cyclic aspiration pressure waveform of intermittent cyclic intervals of vacuum pressure below atmospheric pressure and positive pressure higher than vacuum pressure (see para 0020, 0021, 0034, 0148), the system comprising:
a vacuum pump (502) generating the vacuum pressure (abstract, para 0035, 0148);
a flexible inlet tubing (504) having a proximal end (end connected to vacuum pump 502), an opposite distal end (end connected to connector 505); the proximal end of the flexible inlet tubing is connected in fluid communication to the vacuum pump (Fig. 19, para 0148);
an aspiration catheter (503) having a distal tip (tip near clot 508 in Fig. 19) and a proximal hub (505) connected in fluid communication to the distal end of the flexible inlet tubing (Fig. 19, para 0148); and
a positive pressure pulse generator mechanism (501) intermittently cyclically applying an external force compressing a section of the flexible inlet tubing reducing internal volume and displacing fluid collectable therein thereby generating a positive pressure pulse; wherein upon withdrawal of the external force applied by the positive pulse generator mechanism, the flexible inlet tubing being configured to be forcibly restorable to a non-compressed state increasing the internal volume while reducing pressure therein until eventual regeneration of the vacuum pressure thereby minimizing recovery time and maximizing cycling frequency (see Figs. 19-21 and para 0148-0150).
As to claim 2, Brady discloses the cyclic aspiration system in accordance with claim 1, wherein the positive pressure pulse generator mechanism is arranged externally of the flexible inlet tubing, not contaminatable by blood and reusable (see Figs. 20A-21, para 0148); whereas the flexible inlet tubing is contaminatable by blood, and discardable after a single use (Fig. 19-21, para 0148).
As to claim 3, Brady discloses the cyclic aspiration system in accordance with claim 2, wherein the positive pressure pulse generator mechanism is a displaceable plunger (551; see para 0149).
As to claim 4, Brady discloses the cyclic aspiration system in accordance with claim 1, wherein the flexible inlet tubing is forcibly restorative to the non-compressed state via a radially self-expanding restoring structure disposed therein coinciding with the section compressed by the external force applied by the positive pressure pulse generator mechanism; and the radially self-expanding restoring structure also providing resistance against collapse of the flexible inlet tubing while under the vacuum pressure (para 0148-0149).
As to claim 9, Brady discloses the cyclic aspiration system in accordance with claim 1, further comprising a displaceable gating device (602) associated with the flexible inlet tubing disposed between the positive pressure pulse generator mechanism (in this instance, the positive pressure pulse generator mechanism interpreted only as cams 604 & 605) and the vacuum pump (see Fig. 21); the displaceable gating device controlling passage therethrough of the vacuum pressure generated by the vacuum pump (para 0150); wherein the positive pressure pulse generator mechanism and the displaceable gating device are separate components independent of one another or a single integrated component (each including separate cams; see Fig. 21 & para 0150).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to James D Ponton whose telephone number is (571)272-1001. The examiner can normally be reached M-F 9am-5pm.
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, Chelsea Stinson can be reached at 571-270-1744. 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 (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/James D Ponton/Primary Examiner, Art Unit 3783
Prosecution Insights