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 9 and 11 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.
The term “above” in claim 9 and “bottom” in claim 11 are relative terms which renders the claim indefinite. The terms “above” and “bottom” are not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
Specifically, it is not known what is considered above and below especially since the device may be positioned in different positions (i.e., flipped).
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.
Claims 1 and 5 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Timmons (U.S. Pat. No. 4,942,886).
Regarding claim 1, Timmons discloses a clamping device (Fig. 1) comprising: a first part 10, 16 that has a first side wall 10 and a second side wall 16 that is spaced opposite from and is joined to the first side wall (i.e., by 14; see Fig. 1), the first side wall and the second side wall being flexible (i.e., Col. 2 lines 16-28 discloses plastic such as polypropylene and although discloses rigidity, it is known that polypropylene has flexibility (i.e., as well as all plastic materials)), and being configured to move toward one another (Figs. 1-2 show open and closed configurations), wherein the first part includes a locking bar 38 and the second side wall includes a locking protrusion (i.e., tooth on 36 that engages with a channel on 38) that is configured to engage and lock with the locking bar (Figs. 1-2); and a cushioned second part 12 that lines an inner face of the first part (Fig. 2); wherein the clamping device has an open unlocked position for receiving a traumatized digit (Fig. 1) and a closed locked position (Fig. 2) for capturing the traumatized digit between the cushioned second part (Col. 2 lines 16-28).
The device of Timmons is fully capable of receiving a traumatized digit, if one desired to do so - note that the limitations of claim 1 are merely functional limitations and do not affect the structure of the claimed invention - a claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987) -see also MPEP 2114(11), which states that the manner of operating a device does not differentiate apparatus claims from the prior art).
Regarding claim 5, Timmons discloses the clamping device of claim 1. Timmons also discloses wherein the locking bar has teeth (i.e., see 38) formed along a top surface thereof (Figs. 1-2) and the locking protrusion engages the teeth to lock the locking bar to the second side wall (Figs. 1-2).
Claims 1-4, 6-9, 11-14 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Starkweather et al. (US 2024/0122604 A1).
Regarding claim 1, Starkweather discloses a clamping device 10 (Fig. 1) comprising: a first part 18 that has a first side wall 22 and a second side wall 24 that is spaced opposite from and is joined to the first side wall (i.e., by 16; see Fig. 4), the first side wall and the second side wall being flexible (i.e., para. [0051] discloses that they can be made from plastic and as such at least some flexibility is inherent in the material property) and being configured to move toward one another (Figs. 2, 4 show open and closed configurations), wherein the first part includes a locking bar 38 and the second side wall includes a locking protrusion 36 that is configured to engage and lock with the locking bar (Fig. 5); and a cushioned second part 26 that lines an inner face of the first part (Fig. 4); wherein the clamping device has an open unlocked position (Fig. 2) and a closed locked position (Fig. 4) for capturing the traumatized digit between the cushioned second part (para. [0047]).
The limitation “for receiving a traumatized digit” is being interpreted as an intended use limitation. As seen in MPEP section 2114 section 2, a claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647. Thus, it’s seen if the prior art has the claimed structure of the invention, it is able to perform the function. As seen here (explain the situation and how all the structure is met, thus the function is met).
Regarding claim 2, Starkweather discloses the clamping device of claim 1. Starkweather also discloses wherein the first part has a pair of outer levers 20 at a top end of the first part that when compressed toward one another are configured to separate the first and second side walls (Gigs. 1-4).
Regarding claim 3, Starkweather discloses the clamping device of claim 1. Starkweather also discloses wherein the locking bar is attached to the first side wall at a fulcrum (Figs. 4-5).
Regarding claim 4, Starkweather discloses the clamping device of claim 3. Starkweather also discloses wherein the locking bar comprises an elongated cantilevered structure (i.e., 34) that has a free end 36 proximate the second side wall (i.e., as shown in Fig. 4).
Regarding claim 6, Starkweather discloses the clamping device of claim 1. Starkweather also discloses wherein the locking bar has a pair of downwardly extending legs 20 on which the device can stand upright.
The legs 20 of Starkweather are fully capable of allowing the device to stand upright, if one desired to do so - note that the limitations of claim 6 are merely functional limitations and do not affect the structure of the claimed invention - a claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987) -see also MPEP 2114(11), which states that the manner of operating a device does not differentiate apparatus claims from the prior art).
Regarding claim 7, Starkweather discloses the clamping device of claim 1. Starkweather also discloses wherein the second part is attached to the first part at at least three locations (i.e., the three locations being on a distal piece of 18, a middle piece, and a proximal piece of 18; i.e., note that location is a broad term and can include anywhere on face 18).
Regarding claim 8, Starkweather discloses the clamping device of claim 7. Starkweather also discloses wherein the second part is attached to the first part at a first end, a second end and a center of the second part (Fig. 1).
Regarding claim 9, Starkweather discloses the clamping device of claim 1. Starkweather also discloses wherein the second part is disposed above the locking bar (i.e., see Fig. 2).
Regarding claim 11, Starkweather discloses the clamping device of claim 1. Starkweather also discloses wherein the first part includes a first flange (i.e., distal portion of 18) at a bottom of the first side wall (i.e., bottom is interpreted as inside) and a second flange at a bottom of the second side wall (Fig. 1), the first flange including a first inner channel 22 and the second flange including a second inner channel 22.
Regarding claim 12, Starkweather discloses the clamping device of claim 11. Starkweather also discloses wherein the locking protrusion is formed adjacent the second inner channel (i.e., Fig. 1 shows the locking protrusion being adjacent (i.e., directly adjacent is not required).
Regarding claim 13, Starkweather discloses the clamping device of claim 11. Starkweather also discloses wherein the second part is received at a first end within the first inner channel and is received at a second end within the second inner channel (Fig. 1).
Regarding claim 14, Starkweather discloses a clamping device 10 comprising: a flexible first part 18 that has a first side wall and a second side wall (i.e., opposing faces of 18) that is spaced opposite from and is joined to the first side wall (i.e., via 16), the first side wall and the second side wall being flexible (i.e., para. [0051] discloses that they can be made from plastic and as such at least some flexibility is inherent in the material property) and being configured to move toward one another (i.e., Figs. 1-4), wherein the first part includes a locking bar 38 coupled to the first side wall (Figs. 4-5) and the second side wall includes a locking protrusion 36 that is configured to engage and lock with the locking bar to close off and lock the first part (Fig. 5; para. [0049]), the first part having an open unlocked position (Fig. 1), in which the locking bar is disengaged with the locking protrusion (Fig. 1); and a cushioned second part 26 that lines an inner face of the first part (Fig. 1), the cushioned second part including rounded inner portions (i.e., contoured as disclosed in para. [0050]).
The device of Starkweather is fully capable of configured to support a digit when the device is in a closed locked position for capturing the traumatized digit between the cushioned second part, if one desired to do so - note that the limitations of claim 14 are merely functional limitations and do not affect the structure of the claimed invention - a claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987) -see also MPEP 2114(11), which states that the manner of operating a device does not differentiate apparatus claims from the prior art).
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.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Starkweather.
Regarding claim 10, Starkweather discloses the clamping device of claim 1. Starkweather also discloses wherein the second part is contoured (para. [0050]). Starkweather doesn’t specifically disclose that the second part includes an enlarged upper opening, a narrow waist, and a flared lower opening in order to conform to a wound bed.
Starkweather also discloses (para. [0050]) that the contouring of the foam needs to be optimized to “conform to the wound bed.” Further, it appears that one of ordinary skill in the art would have had a reasonable expectation of success in modifying the Starkweather device to have a second part including an enlarged upper opening, a narrow waist, and a flared lower opening in order to conform to a wound bed, as it involves only adjusting the dimension of a component disclosed to require adjustment. Therefore, it would have been obvious to one having ordinary skill in the art at the time of the invention to modify the device of Starkweather by making the contour of the second part include an enlarged upper opening, a narrow waist, and a flared lower opening since it has been held that “where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to RACHAEL LYNN GEIGER whose telephone number is (571)272-6196. The examiner can normally be reached Mon-Fri 8:00am-5:00pm EST.
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, Darwin Erezo can be reached at 5712724695. 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.
/RACHAEL L GEIGER/ Examiner, Art Unit 3771
/SHAUN L DAVID/ Primary Examiner, Art Unit 3771