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 .
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.
Claim(s) 2-3, 6-7, and 21-22 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Heuring et al. (US 20140128659), cited previously.
Regarding claim 2, Heuring discloses a blood flow assist system (Abstract) comprising: a pump 80, 82, 110 configured for percutaneous insertion to a treatment location of a patient (section 0098); the pump 82 comprising a motor housing 90 (Fig. 27a), the motor housing comprising, a retrieval feature (#3 arrow in Fig. 27A shown below, Section 0202, The devices power wire and a snare wire extend from the end of the device, through and past the end of the obturator. The snare wire is enclosed on the retrieval hook or slot at the end of the device. the retrieval process could be followed if retrieval or repositioning is needed) disposed at a proximal portion (end indicated by arrow 2 in Fig. 27A shown below) of the motor housing 90; and an elongate body (indicated by arrow 1 in fig. 27A) extending proximally from the pump, the elongate body disposed proximal the motor housing (Fig. 27A, section 0100, A power wire is associated with motor, and as will hereinafter described in greater detail, it extends from intravascular pumping module to a point at which it may be associated with a power source, such as a battery);
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Regarding claim 3, Heuring discloses the enlarged diameter section 248 comprises a first curved portion having a first radius of curvature and a second curved portion having a second radius of curvature different from the first radius of curvature (Fig. 26D, section 0158).
Regarding claim 6, a proximal portion of the motor housing comprises the proximal curved portion (Fig 26D, section 0158).
Regarding claim 7, the pump comprises a pump housing 82 and an impeller 94 in the pump housing, and wherein the motor housing includes a motor 90 operably coupled with the impeller (Figs. 9-10).
Regarding claim 21, Heuring discloses wherein the motor housing comprises a retrieval feature 117 between a proximal curved portion (#3 arrow in Fig. 27A shown below, Section 0202) of the pump and the elongate body, the retrieval feature comprising an enlarged diameter section (#1 arrow in Fig. 27A shown below) and a neck (#2 arrow in Fig. 27A shown below) between the enlarged diameter section and the proximal curved portion of the pump (Fig. 27A, Section 0202, The snare wire is enclosed on the retrieval hook or slot at the end of the device).
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Regarding claim 22, the enlarged diameter section ((#1 arrow in Fig. 27A shown above) is wider than the neck (#2 arrow in Fig. 27A shown above).
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.
Claim 4 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 18 of U.S. Patent No. 11517736, cited previously. Although the claims at issue are not identical, they are not patentably distinct from each other because both claim a first and second curved portion with an angle different than the first curved portion as stated in the specification (column 10 lines 55-60).
Allowable Subject Matter
Claims 5 and 8 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Claims 9-20 are allowed.
The following is a statement of reasons for the indication of allowable subject matter:
Regarding independent claim 9, for a blood flow assist system comprising the retrieval feature comprising an enlarged diameter section and a neck between the enlarged diameter section and the proximal curved portion of the pump, wherein the enlarged diameter section comprises a plurality of lobes extending radially outward has not been suggested or disclosed in the prior art when combined with the rest of the claim limitations of independent claim 9.
Regarding independent claim 15, for a blood flow assist system comprising the retrieval feature comprising an enlarged diameter section and a neck between the enlarged diameter section and the proximal curved portion of the pump, wherein the neck comprises a first depth at a first circumferential position of the retrieval feature and a second depth less than the first depth at a second circumferential position of the retrieval feature spaced apart from the first circumferential position has not been suggested or disclosed in the prior art when combined with the rest of the claim limitations of independent claim 15.
Response to Arguments
Applicant's arguments filed 11/24/2025 have been fully considered but they are not persuasive. Examiner finds that Heuring discloses the motor housing comprising, a retrieval feature 3 arrow in Fig. 27A shown below, Section 0202, The devices power wire and a snare wire extend from the end of the device, through and past the end of the obturator. The snare wire is enclosed on the retrieval hook or slot at the end of the device. the retrieval process could be followed if retrieval or repositioning is needed) disposed at a proximal portion (end indicated by arrow 2 in Fig. 27A shown below) of the motor housing 90; and an elongate body (indicated by arrow 1 in fig. 27A) extending proximally from the pump, the elongate body disposed proximal the motor housing (Fig. 27A, section 0100, A power wire is associated with motor, and as will hereinafter described in greater detail, it extends from intravascular pumping module to a point at which it may be associated with a power source, such as a battery);
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Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JON ERIC C MORALES whose telephone number is (571)272-3107. The examiner can normally be reached Monday-Friday 830AM-530PM CST.
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/JON ERIC C MORALES/Primary Examiner, Art Unit 3796