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 .
Response to Amendment
Claims 1-3, 6-11, 13-15, 17-23, and 25 are pending in the application. Claims 4, 5, 12, 16, 24, 26-48 have been cancelled. Claims 1-3, 6-11, 13-15, 17-23, and 25 are rejected.
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 9, 21, and 25 is 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.
Claims 9 and 21 each recite the limitations “wherein the first portion extends…. Wherein the second portion extends…… and wherein the third portion extends….” There is insufficient antecedent basis for these limitations in the claim. It is noted that claim 9 depends from claim 1 and claim 21 depends from claim 13. Neither claim 9 nor claim 13 recite “a first portion”, “a second portion”, or “a third portion”. It is also noted that claims 8 and 20 do recite “each of the anchor members include a first portion….a second portion…. and a third portion…”. It appears claim 9 should depend from claim 8 and claim 21 should depend from claim 20. Appropriate action is required.
Claim 25 recites the limitation "wherein adjacent petal of the generally disc-shaped member…" in line 7. There is insufficient antecedent basis for this limitation in the claim since the claim has not previously recited the general disc-shaped member has petals.
Claim 25 reads in relevant part: “…an occlusion frame comprising a plurality of elongate frame members arranged to form a generally disc-shaped member when the occlusion frame assumes an expanded configuration, each of the elongate frame members forming a generally disc-shaped member, wherein adjacent petals of the generally disc-shaped member at least partially overlap one another…” This is believed to be a typo-graphical error, since claims 1 and 13 have a similar limitation which reads: “…the elongate frame members arranged to form a generally disc-shaped member when the occlusion frame assumes an expanded configuration, each of the elongate frame members forming a petal of the generally disc-shaped member, wherein adjacent petals of the generally disc-shaped member at least partially overlap one another”. Appropriate action is required.
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) 1-3, 8, 10, 11, 13-15, 17, 20, 22, 23, and 25 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by applicant cited Erzberger et al. (Pub. No. 2013/0218192).
Regarding claim 1, Erzberger teaches an occlusive device (10) ( See paragraph [0014] and FIG. 1), comprising:
a covering component (66) (See paragraph [0019]) configured to modulate passage of blood or thrombus through the covering component (See paragraph [0019]);
an occlusion frame (12) (See paragraph [0014] and FIG. 1) comprising a plurality of elongate frame members (22) (See paragraph [0015] and FIG. 1), each of which comprise1 a portion of a tube (See FIG. 1; note wire loop 22 forms a portion of the tubular 10), the elongate frame members arranged to form a generally disc-shaped member when the occlusion frame assumes an expanded configuration (See FIG. 1; note 12 is “generally disc-shaped”), each of the elongate frame members forming a petal of the generally disc-shaped member (See paragraph [0019] 70 and 72, which is the equivalent of 22, form petals; See also FIG. 3), wherein adjacent petals of the generally disc-shaped member at least partially overlap one another (See paragraph [0019]; note the petals of 70 and 72 partially overlap adjacent petals; See also FIG. 3), and wherein the occlusion frame is at least partially covered by the covering component (See paragraph [0019]; note 66 partially covers 12);
an anchor frame (14) (See paragraph [0014] and FIG. 1) comprising a plurality of anchor members (wire loops 24 including barbs 40/52) (See paragraph [0016] and FIG. 1) configured to anchor the occlusive device at an implant location (See paragraph [0017] note portion 14 is used to anchor the device at the desired implant location, see also FIG. 2);
a first hub component (proximal post 16) from which the plurality of elongate frame members extend (See paragraph [0015] and FIG. 1), the first hub component disposed between the occlusion frame and the anchor frame (See FIG. 1; note 16 is between 12 and 14);
a second hub component (intermediate post 18) from which the anchor members extend (See paragraph [0015] and FIG. 1), the second hub component disposed between the occlusion frame and the anchor frame (See FIG. 1; note 18 is between 12 and 14); and
a connecting member (segment of wire 22) that connects the first hub component to the second hub component (See paragraph [0023]; note a single nitinol wire 22 connects 16 and 18. See also FIG. 1).
Regarding claim 2, Erzberger teaches the occlusive device as required by claim 1 as set forth above and further teaches each anchor member of the plurality of anchor members comprises a wire (See paragraph [0015]; note anchor members 24 are wires).
Regarding claim 3, Erzberger teaches the occlusive device as required by claim 1 as set forth above and further teaches each anchor member of the plurality of anchor members comprises a portion of the tube (See FIG. 1; note wires 24 also help form the overall tubular structure of 10).
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Regarding claim 8, Erzberger teaches the occlusive device as required by claim 1 as set forth above and further teaches each of the anchor members includes a first portion that extends generally distally and radially from the second hub component, a second portion that extends from the first portion in a generally distal and radial direction, and a third portion that extends from the second portion in a generally proximal and radial direction. (See annotated Fig. 1 above)
Regarding claim 10, Erzberger teaches the occlusive device as required by claim 1 as set forth above and further teaches each of the anchor members includes a first portion that extends generally radially from the second hub component (See FIG. 1; note 24 extends radially outward from 18), and a second portion that extends from the first portion in a generally proximal direction (See FIG. 2; note 52 extend from 24 and in a generally proximal direction).
Regarding claim 11, Erzberger teaches the occlusive device as required by claim 1 as set forth above and further teaches the connecting member is flexible (See paragraph [0023]; note 22 is made of a flexible wire) and includes a first end portion that is attached to the first hub component (See FIG. 1; note 22 has a first end connected to 16) and a second end portion that is attached to the second hub component (See FIG. 1; note 22 has a second end connected to 18).
Regarding claim 13, Erzberger discloses an occlusive device (10) (See paragraph [0014] and FIG. 1), comprising:
a covering component (66) (See paragraph [0019]) configured to modulate passage of blood or thrombus through the covering component (See paragraph [0019])
an occlusion frame (12) (See paragraph [0014] and FIG. 1) comprising a plurality of elongate frame members (22) (See paragraph [0015] and FIG. 1), the elongate frame members arranged to form a generally disc-shaped member when the occlusion frame assumes an expanded configuration (See FIG. 1; note 12 is “generally disc-shaped”), each of the elongate frame members forming a petal of the generally disc-shaped member (See paragraph [0019] note elements 70 and 72, which is the equivalent of 22, form petals; See also FIG. 3), wherein adjacent petals of the generally disc-shaped member at least partially overlap one another (See paragraph [0019]; note the petals of 70 and 72 partially overlap adjacent petals; See also FIG. 3), and wherein the occlusion frame is at least partially covered by the covering component (See paragraph [0019]; note 66 partially covers 12);
an anchor frame (14) (See paragraph [0014] and FIG. 1) comprising a plurality of anchor members (wire loops 24 including barbs 40/52) (See paragraph [0016] and FIG. 1) each of which comprise a portion of a tube (See FIG. 1; note wires 24 help form the overall tubular structure of 10) wherein anchor members are configured to anchor the occlusive device at an implant location (See paragraph [0017] note portion 14 is used to anchor the device at the desired implant location, see also FIG. 2)
a first hub component (proximal post 16) from which the plurality of elongate frame members extend (See paragraph [0015] and FIG. 1), the first hub component disposed between the occlusion frame and the anchor frame (See FIG. 1; note 16 is between 12 and 14);
a second hub component (intermediate post 18) from which the anchor members extend (See paragraph [0015] and FIG. 1), the second hub component disposed between the occlusion frame and the anchor frame (See FIG. 1; note 18 is between 12 and 14); and
a connecting member (segment of wire 22) that connects the first hub component to the second hub component (See paragraph [0023]; note nitinol wire 22 connects 16 and 18. See also FIG. 1).
Regarding claim 14, Erzberger teaches the occlusive device as required by claim 13 as set forth above and further teaches each elongate frame member of the plurality of elongate frame members comprises a wire (See paragraph [0015] note 22 is formed of wire).
Regarding claim 15, Erzberger teaches the occlusive device as required by claim 13 as set forth above and further teaches each anchor member of the plurality of anchor members comprises a portion of the tube (See FIG. 1; note wire loop 22 forms a portion of the tubular shape of 10).
Regarding claim 17, Erzberger teaches the occlusive device as required by claim 13 as set forth above and further teaches the connecting member comprises one or more nitinol wires (See paragraph [0015] which states wires 22 are made of nitinol).
Regarding claim 20, Erzberger teaches the occlusive device as required by claim 13 as set forth above and further teaches each of the anchor members includes a first portion that extends generally distally and radially from the second hub component, a second portion that extends from the first portion in a generally distal and radial direction, and a third portion that extends from the second portion in a generally proximal and radial direction. (See annotated Fig. 1 above)
Regarding claim 22, Erzberger teaches the occlusive device as required by claim 13 as set forth above and further teaches each of the anchor members includes a first portion that extends generally radially from the second hub component (See FIG. 1; note 24 extends radially outward from 18), and a second portion that extends from the first portion in a generally proximal direction (See FIG. 2; note 52 extend from 24 and in a generally proximal direction).
Regarding claim 23, Erzberger teaches the occlusive device as required by claim 13 as set forth above and further teaches the connecting member is flexible (See paragraph [0023]; note 22 is made of a flexible wire) and includes a first end portion that is attached to the first hub component (See FIG. 1; note 22 has a first end connected to 16) and a second end portion that is attached to the second hub component (See FIG. 1; note 22 has a second end connected to 18).
Regarding claim 25, Erzberger et al. discloses an occlusive device (10) ( See paragraph [0014] and FIG. 1) comprising:
a covering component (66) (See paragraph [0019]) configured to modulate passage of blood or thrombus through the covering component (See paragraph [0019]);
an occlusion frame (12) (See paragraph [0014] and FIG. 1) comprising a plurality of elongate frame members (22) (See paragraph [0015] and FIG. 1), arranged to form a generally disc-shaped member when the occlusion frame assumes an expanded configuration (See FIG. 1; note 12 has a “generally disc-shape”), each of the elongate frame members forming a generally disc-shaped member (See paragraph [0019] 70 and 72, which is the equivalent of 22, form petals which are “generally disc-shaped”; See also FIG. 3), wherein adjacent petals of the generally disc-shaped member at least partially overlap one another (See paragraph [0019]; note the petals of 70 and 72 partially overlap adjacent petals; See also FIG. 3), and wherein the occlusion frame is at least partially covered by the covering component (See paragraph [0019]; note 66 partially covers 12);
an anchor frame (14) (See paragraph [0014] and FIG. 1) comprising a fist and second anchor arms (wire loops 24 including barbs 40/52) (See paragraph [0016] and FIG. 1) wherein the first and second anchor arms are configured to anchor the occlusive device at an implant location (See paragraph [0017] note portion 14 is used to anchor the device at the desired implant location, see also FIG. 2), the first anchor arm being oriented opposite the second anchor arm (Note at least two of the arms 24 are oriented opposite each other);
a first hub component (proximal post 16) from which the plurality of elongate frame members extend (See paragraph [0015] and FIG. 1), the first hub component disposed between the occlusion frame and the anchor frame (See FIG. 1; note 16 is between 12 and 14);
a second hub component (intermediate post 18) from which the first and second anchor arms extend (See paragraph [0015] and FIG. 1), the second hub component disposed between the occlusion frame and the anchor frame (See FIG. 1; note 18 is between 12 and 14); and
a flexible connecting member (segment of wire 22) comprising first and second end portions, wherein the first end portion is attached to the first hub component (See FIG. 1; note wire 22 has a first end connected to 16), and the second end portion is attached to the second hub component (See FIG. 1; note 22 has a second end connected to 18).
a flexible connecting member (See paragraph [0023] note flexible wire 22 connects 16 and 18; See also FIG. 1) comprising first and second end portions, wherein the first end portion is attached to the first hub component (See FIG. 1; note 22 has a first end connected to 16), and the second end portion is attached to the second hub component (See FIG. 1; note 22 has a second end connected to 18).
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 6, 7, 18, and 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over applicant cited Erzberger et al. (Pub. No. 2013/0218192) in view of applicant cited Heipl et al. (Pub. No. 2014/0296909).
Regarding claim 6, Erzberger teaches the occlusive device as required by claim 1 as set forth above but does not explicitly teach the first hub component, the second hub component, and the connecting member being covered by the covering component.
Heipl teaches an analogous LAA occluding device (See paragraph [0002]), where the device (See paragraph [0105]) has an outer membrane (See paragraph [0105]; note the implant can be covered with a PTFE non-fibrous film membrane) which covers the entire outside of the device (See paragraph [0105] which states the membrane can cover the entire expanded diameter of the implant). Heipl teaches covering the entire device is advantageous for improving occlusion and rapid endothelialization through greater overall coverage (See paragraph [0105]).
It would have been obvious to one of ordinary skill in the art before the effective filing date to have modified the covering component of Erzberger to cover the entire device, including the hub components and connecting member, as taught by Heipl, since it is known that covering the entire device advantageously improves occlusion and rapid endothelialization through greater overall coverage.
Regarding claim 7, Erzberger teaches the occlusive device as required by claim 1 as set forth above but does not explicitly teach the anchor frame is at least partially covered by the covering component.
Heipl teaches an analogous LAA occluding device (See paragraph [0002]), where the device (See paragraph [0105]) has an outer membrane (See paragraph [0105]; note the implant can be covered with a PTFE non-fibrous film membrane) which covers the entire outside of the device (See paragraph [0105] which states the membrane can cover the entire expanded diameter of the implant). Heipl teaches covering the entire device is advantageous for improving occlusion and rapid endothelialization through greater overall coverage (See paragraph [0105]).
It would have been obvious to one of ordinary skill in the art before the effective filing date to have modified the covering component of Erzberger to cover the entire device, including the anchor frame, as taught by Heipl, since it is known that covering the entire device advantageously improves occlusion and rapid endothelialization through greater overall coverage.
Regarding claim 18, Erzberger teaches the occlusive device as required by claim 13 as set forth above but does not explicitly teach the first hub component, the second hub component, and the connecting member being covered by the covering component.
Heipl teaches an analogous LAA occluding device (See paragraph [0002]), where the device (See paragraph [0105]) has an outer membrane (See paragraph [0105]; note the implant can be covered with a PTFE non-fibrous film membrane) which covers the entire outside of the device (See paragraph [0105] which states the membrane can cover the entire expanded diameter of the implant). Heipl teaches covering the entire device is advantageous for improving occlusion and rapid endothelialization through greater overall coverage (See paragraph [0105]).
It would have been obvious to one of ordinary skill in the art before the effective filing date to have modified the covering component of Erzberger to cover the entire device, including the hub components and connecting member, as taught by Heipl, since it is known that covering the entire device advantageously improves occlusion and rapid endothelialization through greater overall coverage.
Regarding claim 19, Erzberger teaches the occlusive device as required by claim 13 as set forth above but does not explicitly teach the anchor frame is at least partially covered by the covering component.
Heipl teaches an analogous LAA occluding device (See paragraph [0002]), where the device (See paragraph [0105]) has an outer membrane (See paragraph [0105]; note the implant can be covered with a PTFE non-fibrous film membrane) which covers the entire outside of the device (See paragraph [0105] which states the membrane can cover the entire expanded diameter of the implant). Heipl teaches covering the entire device is advantageous for improving occlusion and rapid endothelialization through greater overall coverage (See paragraph [0105]).
It would have been obvious to one of ordinary skill in the art before the effective filing date to have modified the covering component of Erzberger to cover the entire device, including the anchor frame, as taught by Heipl, since it is known that covering the entire device advantageously improves occlusion and rapid endothelialization through greater overall coverage.
Claim(s) 9 and 21 is/are rejected under 35 U.S.C. 102(a)(1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over applicant cited Erzberger et al. (Pub. No. 2013/0218192).
Regarding claims 9 and 21, Erzberger teaches the device of claims 1 and 13 respectively, as set forth above and further teaches wherein the first portion extends from the second hub component at an angle that is about 30 degrees distal from a directly radial direction (See Fig. 1 as annotated above, note the first portion extends away from the hub at a similar angle to applicant’s first portion 196 as seen in applicant’s Fig. 12), wherein the second portion extends from the first portion at an angle that is about 75 degrees distal from a directly radial direction (See annotated Fig. 1 above, note the second portion extends from the first portion at a similar angle to applicant’s second portion 197 as seen in applicant’s Fig. 12), and wherein the third portion extends from the second portion at an angle that is about 60 degrees proximal from a directly radial direction. (See annotated Fig. 1 above, note the third portion extends from the second portion at a similar angle to applicant’s third portion 198 as seen in applicant’s Fig. 12).
Alternatively, it would have been obvious to one of ordinary skill in the art before the effective filing date to have each anchor member have a first portion that extends from the second hub component at an angle that is about 30 degrees distal from a directly radial direction, wherein the second portion extends from the first portion at an angle that is about 75 degrees distal from a directly radial direction, and wherein the third portion extends from the second portion at an angle that is about 60 degrees proximal from a directly radial direction since a change of proportions or degree is prima facie obvious. As stated in MPEP §2144.05(II)(A): “It is a settled principle of law that a mere carrying forward of an original patented conception involving only change of form, proportions, or degree, or the substitution of equivalents doing the same thing as the original invention, by substantially the same means, is not such an invention as will sustain a patent, even though the changes of the kind may produce better results than prior inventions." In re Williams, 36 F.2d 436, 438, 4 USPQ 237 (CCPA 1929). Furthermore, it would have been an obvious matter of design choice to modify the Erzberger reference to have the anchor members extend from the hub with the curvature as claimed, since applicant has not disclosed that having that specific curvature of the anchor members solves any stated problem or is for any particular purpose and it appears that the device would perform equally well with either designs. Furthermore, absent a teaching as to criticality of the specific angled curvature of the anchor members, this particular arrangement is deemed to have been known by those skilled in the art since the instant specification and evidence of record fail to attribute any significance (novel or unexpected results) to a particular arrangement. In re Kuhle, 526 F.2d 553,555,188 USPQ 7, 9 (CCPA 1975).
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 1-3, 6-11, 13-15, 17-23, and 25 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-7, 10-19, 22-30, 35-37 of co-pending Application No. 17/571,125 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because both the ‘125 application and the instant claims require: “ An occlusive device, comprising: a covering component configured to modulate passage of blood or thrombus through the covering component; an occlusion frame comprising a plurality of elongate frame members, each of which comprise a portion of a tube, the elongate frame members arranged to form a generally disc-shaped member when the occlusion frame assumes an expanded configuration, each of the elongate frame members forming a petal of the generally disc-shaped member, wherein adjacent petals of the generally disc-shaped member at least partially overlap one another, and wherein the occlusion frame is at least partially covered by the covering component; an anchor frame comprising a plurality of anchor members configured to anchor the occlusive device at an implant location; a first hub component from which the plurality of elongate frame members extend, the first hub component disposed between the occlusion frame and the anchor frame; a second hub component from which the anchor members extend, the second hub component disposed between the occlusion frame and the anchor frame; and a connecting member that connects the first hub component to the second hub component.”
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to RACHEL S. HIGHLAND whose telephone number is (571)270-3254. The examiner can normally be reached on Mondays, Tuesdays, Thursdays, and Fridays generally between 9:30am and 2:30pm .
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Melanie Tyson can be reached at 571-272-9062. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/R.S.H/Examiner, Art Unit 3774
/SARAH W ALEMAN/Primary Examiner, Art Unit 3774
1 It is noted that this is a product-by-process limitation, and as such only the product will be examined. As noted by the court in Thorpe. “[e]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” In re Thorpe. 777 F.2d 695, 698 (Fed. Cir. 1985) (citations omitted). The court further stated in Brown. “[w]e are therefore of the opinion that when the prior art discloses a product which reasonably appears to be either identical with or only slightly different than a product claimed in a product by process claim, a rejection based alternatively on either section 102 or section 103 of the statute is eminently fair and acceptable. As a practical matter the Patent Office is not equipped to manufacture products by the myriad of processes put before it and then obtain prior art products and make physical comparisons therewith.” In re Brown, 173 USPQ 685, 688 (CCPA 1972) See MPEP §2113
Prosecution Insights