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 .
Drawings
Applicant’s amendment to Fig. 1 and Paragraph 0014 of the specification removes the objection to the drawings.
Response to Arguments
Applicant’s arguments, see page 8 of the Remarks, filed 12/22/2025, with respect to amended Claims 1-4 rejection under 35 U.S.C. 112(a) have been fully considered and are persuasive. The rejection of claims 1-4 has been withdrawn. With respect to the amended Claims 1-4, 11, 12 ,14 rejections under 35 U.S.C. 112(b) as being indefinite, applicant’s amendment to the claims obviates the rejections. The rejection of 1-4, 11, 12, 14 has been withdrawn.
Claim Rejections - 35 USC § 102
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 (i.e., changing from AIA to pre-AIA ) 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.
The following is a quotation of the appropriate paragraphs of 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)(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.
Claims 1-4 are again rejected under 35 U.S.C. 102(a)(1) as being anticipated by Hangai et al, Pub. No. US 2010/0106054 (hereinafter "Hangai"). Hangai discloses a vitreous removing probe type device and methods of use. Regarding claim 1, Hangai discloses a vitreous removing probe type device and methods of use, the device comprising: tubular implement/probe 12 with at least two ports 14 for the uptake of vitreous humor into a channel defined by the probe; and at least one laser emitting device 40 in a surgical console coupled to the probe for delivery of a laser light through an optical fiber 20 to the channel and adjacent the at least two ports 14 for disintegrating vitreous humor during uptake, and aspiration device 50 (see Fig. 1 and Par. 0031), wherein the method comprises steps of advancing the probe 12 into a patient's eye, removing vitreous through at least two ports 14 into a channel of the probe, and disintegrating the vitreous humor with a laser 20 in the channel, wherein the at least two ports are axially aligned on the probe as claimed (Fig. 1, and par. 0031-0035).
Claim 1 as amended further recites the limitation “wherein the disintegration comprises incising vitreous in the channel at the at least two ports in as simultaneous manner.” This limitation directed expected result, but it does not positively teach or incorporate a structure/feature of the claimed device. Expected result claim language in a treatment device is generally given a limited patentable weight.
Regarding claim 2 and 3, the vitreous device comprises a third port of the tubular probe for removal of the vitreous humor, wherein the at least two ports are axially aligned on the probe as claimed (Figs. 5-6, pars. 0050-0060).
Regarding claim 4, the optical fiber 20 terminates proximate to a fist proximal of the least two ports 14 (see Figs. 1 and 5).
Claim Rejections - 35 USC § 103
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 (i.e., changing from AIA to pre-AIA ) 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.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 16-18 are rejected under 35 U.S.C. 103 as being unpatentable over Hangai described above in view of Bacher et al., Pub. No. 2019/0201238 (hereinafter “Bacher”).
Regarding claims 16-18, Hangai teaches the laser device emits pulsed laser beam (par. 0042). Hangai further discloses various lasers suitable as the laser beam for dissecting the body tissue (see pars. 0025, 0039, 0058). However, Hangai does not teach the use of a pico or femto laser. However, the use of pico laser or femtosecond laser for removing living body tissue is known in the art. Bacher discloses ultraviolet laser vitrectomy probe for treating an eye of a patient using a pulsed femtosecond laser (Fig. 7, pars. 0045, 0050 and claim 18), wherein the laser emitting device operates within a range of about 10 – 500KHz [note: 1Hz is equal to 60 pules per minute (PPM] ) and this range can effectively provide disruption, which is the mechanical effect of light on tissue to breakdown the tissue (par. 0033). Therefore, it would have been obvious to one of ordinary skill in the art the time applicant’s invention was filed to modify Hangai in view of Bacher to use a pulsed femtosecond laser as an equivalent laser source to provide the treatment light for disintegrating of the vitreous tissue.
Allowable Subject Matter
Claims 9-14 are allowed. The following is a statement of reasons for the indication of allowable subject matter: the prior art of record alone or in combination does not teach a method of performing a vitrectomy, the method comprising the steps recited in independent claim 9 in its entirety, or provide a motivating combination thereof, making obvious the claimed invention.
Election/Restrictions
Newly submitted claims 19-25 are directed to an invention that is independent or distinct from the invention originally claimed for the following reasons: the claimed is directed to a vitreous disintegration device wherein the disintegration comprises incision of vitreous in the channel at a first proximal port of at least two ports in advance of incising of vitreous at a second distal port of the at least two ports.
Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claims 19-25 are withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03.
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
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 AHMED M FARAH whose telephone number is (571)272-4765. The examiner can normally be reached Mon - Fri. 9:30AM -10:30 PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Niketa Patel can be reached at 571-272-4156. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/AHMED M FARAH/Primary Examiner, Art Unit 3792