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 .
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1 and 21-32 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1, lines 22-23, “the second member” lacks clear antecedent basis. It appears that this should read “the second top member”.
Claim 1, lines 23-24, “the second, main member” lacks clear antecedent basis. It appears that this should read “the bottom member”.
Claim 1, lines 26-27, “configured to provides” is unclear.
Claim 1, line 28, “the force of exertion” lacks antecedent basis.
Claim 1, line 29, “the force of distribution” lacks antecedent basis.
Claim 1, line 29, “the first resilient sheet” lacks antecedent basis.
Claim 1, line 29, after “sheet”, “.” should be deleted (or, alternatively, the period at the end of line 36 should be deleted) as it renders where the claim ends unclear (the amendment currently includes two periods at the end of claim 1).
Claim 29, line 1, “the first frame” lacks antecedent basis.
Claim 29, line 2, “the portion of the first strut” lacks antecedent basis.
Regarding claim 29, as best understood, and for purposes of examination, this claim will be treated as reciting “wherein the first frame assembly is fixedly attached to a portion of the first strut”.
Dependent claims include the limitations of their respective parent claim(s) and are therefore also rejected.
Appropriate correction is required.
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.
Claims 1 and 21-32, as best understood, are rejected under 35 U.S.C. 103 as being unpatentable over Sauer (2018/0177499; previously cited by Applicant) in view of Powley et al. (2018/0296203).
Regarding claim 1, Sauer discloses a first arm unit 76 configured to be coupled to a housing 68 (see annotated Fig. 1A, below), the first arm unit comprising:
a first arm extending from a first end to a second end; and
a first strut pivotably coupled to the first arm at a first portion of the first arm.
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Sauer does not disclose the first frame assembly comprising:
a first top member that extends from a first end to a second end, the first end of the first top member being coupled to a first portion of the first strut;
a second top member that extends from a first end to a second end, the first end of the second top member being coupled to a second portion of the first strut:
a bottom member extending from a first end to a second end;
an elongated first side member that extends from a first end to a second end, the first end of the first side member is at the second end of the first top member and the second end of the first side member is at the first end of the bottom member;
an elongated second side member that extends from a first end to a second end, the first end of the second side member is at the second end of the second top member and the second end of the second side member is at the second end of the bottom member; and
a resilient sheet extending between the bottom member and at least one of the first top member and the second top member, the resilient sheet configured to provide a surface that contacts a rib or other soft anatomical tissue with a structure that spreads or equilibrates the force of exertion onto the rib or other soft tissue in a manner that spreads the force distribution across the first resilient sheet.
Powley et al. also disclose a retractor, including for ribs and soft tissue (para. 0034), and show a frame assembly comprising (see annotated Fig. 5A, below, and Fig. 5B):
a first top member (e.g., defined by the portion attached to the position controller 62 and extending to the side member 230) that extends from a first end to a second end, the first end of the first top member being integrally coupled to a first portion of a first strut;
a second top member (the counterpart portion on the other side) that extends from a first end to a second end, the first end of the second top member being integrally coupled to a second portion of the first strut:
a bottom member 220, 234, 244 extending from a first end to a second end (e.g., of portion 220);
an elongated first side member 230 that extends from a first end (top) to a second end (bottom), the first end (top) of the first side member 230 is at the second end of the first top member and the second end (bottom) of the first side member 230 is at a first end of the bottom member 220, 234, 244 (the second end is labeled in a dotted circle; the first end is the counterpart on the other end and is not shown due to limitations of the figure);
an elongated second side member 240 that extends from a first end (top) to a second end (bottom), the first end (top) of the second side member 240 is at the second end of the second top member and the second end (bottom) of the second side member 240 is at a second end of the bottom member 220, 234, 244 (shown in a dotted circled in annotated Fig. 5A, below); and
a resilient sheet 250 extending between the bottom member 220, 234, 244 and at least one of the first top member and the second top member (both), the resilient sheet 250 configured to provide a surface that contacts a rib or other soft anatomical tissue with a structure that spreads or equilibrates a force of exertion onto the rib or other soft tissue in a manner that spreads a force distribution across the first resilient sheet (paras. 0004 and 0034).
This configuration provides effective retraction while preserving the vitality of the tissue being retracted (para. 0004).
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It would have been obvious to a person having ordinary skill in the art before the effective filing date to configure the retractor and arm unit of Sauer with a frame assembly comprising:
a first top member that extends from a first end to a second end, the first end of the first top member being coupled to a first portion of the first strut;
a second top member that extends from a first end to a second end, the first end of the second top member being coupled to a second portion of the first strut:
a bottom member extending from a first end to a second end;
an elongated first side member that extends from a first end to a second end, the first end of the first side member is at the second end of the first top member and the second end of the first side member is at the first end of the bottom member;
an elongated second side member that extends from a first end to a second end, the first end of the second side member is at the second end of the second top member and the second end of the second side member is at the second end of the bottom member; and
a resilient sheet extending between the bottom member and at least one of the first top member and the second top member, the resilient sheet configured to provides a surface that contacts a rib or other soft anatomical tissue with a structure that spreads or equilibrates a force of exertion onto the rib or other soft tissue in a manner that spreads a force distribution across the first resilient sheet; in view of Powley et al., to provide effective retraction while preserving the vitality of the tissue being retracted.
Regarding claim 21, the resilient sheet is an elastomeric (para. 0084) or polymeric material (para. 0049).
Regarding claim 22, a portion of the first side member 230 is parallel to a portion of the second side member 240.
Regarding claim 23, the bottom member 220, 234, 244 includes a linear portion, e.g., the linear portion of 234, extending along a bottom linear axis of portion 234 (annotated Fig. 5B, below).
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Regarding claim 24, a first end (attached to 220) of the linear portion 234 is offset from a first end of the bottom member, e.g., the overhanging/extending tip of 220 (more visible in Fig. 5A), and a second end of the linear portion, i.e., the opposite end thereof (attached to the curve leading to the first side member 230; Fig. 5B) is offset from a second end of the bottom member, e.g., the opposite tip of 220 (id.).
Regarding claim 25, a first portion of the bottom member 220, 234, 244 from a first end of the bottom member (e.g., far tip of 220) to the first end of the linear portion 234 (up to the dashed line) is non-linear (annotated Fig. 5B, above), and a second portion of the bottom member 220, 234, 244 from the second end of the bottom member (e.g., the close tip of 220) to the second end of the linear portion (along portion 220 up to the dashed line; annotated Fig. 5B, above) is also non-linear. It is noted that both the first end and the second end of the linear portion lie along the dashed line.
Regarding claim 26, Sauer shows that the first portion of the first strut is offset from the second portion of the first strut (see annotated Fig. 1A, above).
Regarding claim 27, Sauer shows that the first portion of the first arm is at or adjacent to the second end of the first arm (id.).
Regarding claim 28, the first strut is movable relative to the first arm in a first plane defined by the first arm (id.).
Regarding claim 29, the first frame assembly as taught by Powley et al. is fixedly attached to a portion of the first strut as taught by Sauer in the combination (supra).
Regarding claim 30, the resilient sheet is a fabric material (i.e., a woven material; para. 0049).
Regarding claim 31, a first portion of the resilient sheet is coupled to at least a portion of the first top member (annotated Fig. 5A, above), a second portion of the resilient sheet is coupled to at least a portion of the second top member (id.), and a third portion of the resilient sheet is coupled to a portion 220 of the bottom member 220, 234, 244 (id.).
Regarding claim 32, because the resilient sheet is resilient, its shape is considered to be variable. Therefore, the limitation that it be substantially planar is interpreted as a statement of intended use. Here, the resilient sheet of the combination is capable of assuming a planar shape, e.g., at and when retracting a flat portion of anatomy.
Terminal Disclaimer
The terminal disclaimer filed on 29 December 2025 disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of U.S. Pat. No. 11,944,286 has been reviewed and is accepted. The terminal disclaimer has been recorded.
Double Patenting
The double patenting rejection set forth in the Office action mailed 25 August 2025 has been withdrawn in light of the above-noted terminal disclaimer.
Response to Arguments
Applicant’s arguments, see Remarks, pages 6-7, filed 29 December 2025, with respect to the rejection under 35 U.S.C. 102 of claims 1-20 prior to the latest amendment, have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration of the amended and new claims presented, new grounds of rejection are made, as set forth above. It is noted that Applicant’s arguments are persuasive only insofar as they address the newly added limitations pertaining to the first frame assembly including the resilient sheet. Sauer (2018/0177499; previously cited by Applicant) remains applicable and exactly discloses the claimed invention except for the particulars of the first frame assembly including the resilient sheet. It is further noted that this reference is prior art to the present application and is also from the same inventor and discloses the same invention except for the particulars of the first frame assembly including the resilient sheet. Accordingly, the new grounds of rejection set forth above utilize Sauer as a base reference in view of art teaching the concepts of the first frame assembly including the resilient sheet, as set forth above.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See attached PTO-892.
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 DAVID C COMSTOCK whose telephone number is (571)272-4710. The examiner can normally be reached M-F 9:00-5:00 PST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Eduardo Robert can be reached at 571-272-4719. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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DAVID C. COMSTOCK
Examiner
Art Unit 3773
/DAVID C COMSTOCK/Examiner, Art Unit 3773
/EDUARDO C ROBERT/Supervisory Patent Examiner, Art Unit 3773