DETAILED ACTION
The Office acknowledges receipt of the Applicant’s response and amendments filed 2 February 2026.
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 Objections
Claim 29 is objected to because of the following informalities: The claim reads as an incomplete sentence, “wherein the predetermined power output of at least one of the first impact mode or the second impact mode is based, at least partially, on how a quantity of firing cycles completed by the firing driver”. Appropriate correction is required.
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 21, 24-32, 34-39 and 41-44 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-14 of U.S. Patent No. 11,944,297 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because they claim essentially the same subject matter with only minor differences related to grammar and synonyms of terms or as otherwise stated below would only involve minor modifications which were well-known in the prior art.
Regarding claim 21, claim 1 of the ‘297 patent is deemed to recite the limitations of the claim. The limitations of the ‘297 patent are more narrower, but still anticipate the claimed subject matter of claim 21. Regarding the limitation of there being “no power”, the ‘297 patent discloses stopping motions which would require there to be no power supplied to the motor at these points. This this is also further disclosed in claim 14.
Regarding Claim 24, claim(s) 1 and 8 of the ‘297 patent is/are deemed to be read on the limitations recited in this claim.
Regarding Claim 25, claim(s) 1 of the ‘297 patent is/are deemed to be read on the limitations recited in this claim.
Regarding Claim 26, claim(s) 1 of the ‘297 patent is/are deemed to be read on the limitations recited in this claim.
Regarding Claim 27, claim(s) 1 of the ‘297 patent is/are deemed to be read on the limitations recited in this claim.
Regarding Claim 28, claim(s) 1 and 7 of the ‘297 patent is/are deemed to be read on the limitations recited in this claim.
Regarding Claim 29, claim(s) 1 and 3 of the ‘297 patent is/are deemed to be read on the limitations recited in this claim.
Regarding Claim 30, claim(s) 1 and 6 of the ‘297 patent is/are deemed to be read on the limitations recited in this claim.
Regarding Claim 31, claim(s) 1 and 2 of the ‘297 patent is/are deemed to be read on the limitations recited in this claim.
Regarding Claim 32, claim(s) 1 of the ‘297 patent is/are deemed to be read on the limitations recited in this claim.
Regarding Claim 34, claim(s) 1 and 9 of the ‘297 patent is/are deemed to be read on the limitations recited in this claim.
Regarding Claim 35, claim 13 of the ‘297 patent is deemed to recite the claimed limitations (A robotic arm is deemed to constitute the claimed shaft. Wherein the Applicant may argue otherwise, the Office previously alternatively takes official notice in the office action of 3 November 2025 that having the robotic arm of the ‘297 claim comprise a shaft would have been obvious as robotic arms were notoriously known in the prior art to comprise shafts as shafts are easy to manufacture and provide good stability and structure for robotic arm components). The common knowledge or well-known in the art statement is taken to be admitted prior art because applicant failed to traverse the examiner’s assertion of official notice (MPEP 2144.03 C).
Regarding claim 36, claim 1 of the ‘297 patent is deemed to recite the limitations of the claim. The limitations of the ‘297 patent are more narrower, but still anticipate the claimed subject matter of claim 21. Regarding the limitation of there being “no power”, the ‘297 patent discloses stopping motions which would require there to be no power supplied to the motor at these points. This this is also further disclosed in claim 14.
Regarding Claim 37, claim(s) 1 of the ‘297 patent is/are deemed to be read on the limitations recited in this claim.
Regarding Claim 38, claim(s) 1 of the ‘297 patent is/are deemed to be read on the limitations recited in this claim.
Regarding claim 39, claim 1 of the ‘297 patent is deemed to recite wherein the impact mode comprises fluctuating the power output of the motor at the first frequency (col. 28 lines 34-37), but does not disclose using a step function. However, the Office previously took official notice in the Office Action of 3 November 2025 that utilizing a step-function to fluctuate the power of a motor was notoriously known in the art prior to effective filing and would have been an obvious choice because it would provide the benefit of having a programmable and desirable amount of frequency modification as was necessary by the frequency fluctuation of the ‘297 patent. The common knowledge or well-known in the art statement is taken to be admitted prior art because applicant failed to traverse the examiner’s assertion of official notice (MPEP 2144.03 C).
Regarding Claim 41, claim(s) 1 and 5 of the ‘297 patent is/are deemed to be read on the limitations recited in this claim.
Regarding claim 42, claim 1 of the ‘297 patent is deemed to recite the limitations of the claim. The limitations of the ‘297 patent are more narrower, but still anticipate the claimed subject matter of claim 21. Regarding the limitation of there being “no power”, the ‘297 patent discloses stopping motions which would require there to be no power supplied to the motor at these points. This this is also further disclosed in claim 14.
Regarding Claim 43, claim(s) 1 and 7 of the ‘297 patent is/are deemed to be read on the limitations recited in this claim.
Regarding Claim 44, claim 1 of the ‘297 patent is deemed to recite wherein the impact mode comprises fluctuating the power output of the motor at the first frequency (col. 28 lines 34-37), but does not disclose using a step function. However, the Office previously took official notice in the Office Action of 3 November 2025 that utilizing a step-function to fluctuate the power of a motor was notoriously known in the art prior to effective filing and would have been an obvious choice because it would provide the benefit of having a programmable and desirable amount of frequency modification as was necessary by the frequency fluctuation of the ‘297 patent. The common knowledge or well-known in the art statement is taken to be admitted prior art because applicant failed to traverse the examiner’s assertion of official notice (MPEP 2144.03 C).
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) 21, 25-26, 29-32, 34-35 and 41-42 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Zemlok et al. (US 2011/0022032 A1) hereinafter referred to as Zemlok.
Regarding claim 21, Zemlok discloses a surgical stapler (10; paragraph 0060), comprising:
(a) an end effector (160; fig. 17) comprising:
(i) a body (164; or 168),
(ii) a plurality of staples (paragraph 0061 – “the staples are housed in cartridge assembly 164 to apply linear rows of staples to body tissue”), and
(iii) a firing driver (213, 220, 266; paragraphs 0068, 0096) being operable to drive the plurality of staples into tissue;
(b) a motor (200) operable to actuate the firing driver (paragraph 0066); and
(c) a processor (500; or 500, 501 and/or 600) configured to:
(i) activate the motor to distally advance the firing driver within the body of the end effector (paragraphs 0066, 0096, 0118, 0126),
(ii) detect an initiation condition (paragraph 0140 – “If a stall situation is detected, or the current draw exceeds predetermined limits, the position calculator 416 then determines whether the firing rod 220 is at a mechanical stop”; paragraph 0141 – “If slippage is detected, the position calculator 416 then determines whether the firing rod 220 is at a mechanical stop.”; paragraph 0173 – “the sensors can detect sudden spikes in the force exerted on the knife, which is indicative of encountering a foreign body”; paragraph 0187 – “The microcontroller 600 may control the components of powered surgical instrument 10 in the event that limits are reached or approached”), and
(iii) in response to detecting the initiation condition, activate an algorithmic bumping sequence (paragraphs 0140 and 0141 – “If this is the case, then the microcontroller 500 can shut down the drive motor 200 or enters a pulse and/or pause mode (e.g., discontinuous supply of power to the drive motor 200)”; a “pulse mode” is deemed to be a “bumping sequence”; paragraphs 0174 and 0187), wherein the algorithmic bumping sequence comprises;
a first impact mode (paragraph 0066 – “a first direction to advance firing rod 220” – firing direction; alternatively, this mode could be the retraction direction (see below)) that includes, fluctuating a power output of the motor at a predetermined frequency between substantially no power output and a predetermined power output to thereby longitudinally advance the firing driver discontinuously at a non-constant linear speed through a plurality of stopped positions in a predetermined longitudinal direction (paragraphs 0140 and 0141 – “discontinuous supply of power to the drive motor 200”; paragraph 0164 – “The adjustments to the instrument 10 may including powering the instrument 10 on or off, speed control by means of voltage regulation or voltage pulse width modulation, torque limitation by reducing duty cycle or pulsing the voltage on and off to limit average current delivery during a predetermined period of time”; paragraphs 0173-0175, 0186-0187), and
a second impact mode (paragraph 0066 – “Conversely, the switch 114b may be configured to retract the firing rod 220”; Second impact mode is during the retraction direction when initiation conditions happen; alternatively, this mode could be that of the firing direction (see above)) that includes fluctuating a power output of the motor at a predetermined frequency between substantially no power output and a predetermined power output to thereby longitudinally advance the firing driver discontinuously at a non-constant linear speed through a plurality of stopped positions in a predetermined longitudinal direction (paragraphs 0140 and 0141 – “enters a pulse and/or pause mode (e.g., discontinuous supply of power to the drive motor 200) to prevent damage to the motor 200, battery or power source 400, and microcontroller 500, to unlock the instrument 10 and to retract the firing rod 220”; paragraph 0176 – “In controlled current activation mode, the current is either ramped up or down to prevent damaging current and torque spiked when transitioning between static to dynamic mode to provide for so-called ‘soft start’ and ‘soft stop.’”; also paragraphs 0164, 0173-0175, 0186-0187),
wherein the first and second impact modes differ in at least one of the predetermined frequencies, the predetermined power outputs, or the predetermined longitudinal directions (first impact mode = paragraph 0066 – “a first direction to advance firing rod 220”; second impact mode = paragraph 0066 – “Conversely, the switch 114b may be configured to retract the firing rod 220”; alternatively, the first impact mode may be the retraction direction and the second impact mode may be the firing direction).
Regarding claim 25, Zemlok discloses wherein the predetermined longitudinal direction of the second impact mode (paragraph 0066 – “Conversely, the switch 114b may be configured to retract the firing rod 220” – i.e. proximal direction) differs from the predetermined longitudinal direction of the first impact mode (paragraph 0066 – “a first direction to advance firing rod 220” – i.e. distal direction).
Regarding claim 26, Zemlok discloses wherein the predetermined longitudinal direction of the first impact mode comprises a distal direction (paragraph 0066 – “a first direction to advance firing rod 220” – i.e. distal direction) and the predetermined longitudinal direction of the second impact mode comprises a proximal direction (paragraph 0066 – “Conversely, the switch 114b may be configured to retract the firing rod 220” – i.e. proximal direction).
Regarding claim 29, Zemlok discloses wherein the predetermined power output of at least one of the first impact mode or the second impact mode is based, at least partially, on how a quantity of firing cycles completed by the firing driver (Zemlok - paragraphs 0124, 0157-0159 – if the end effector has been previously fired the first power level is not engaged; paragraph 0167 – “Additional parameters which may be used by the microcontroller 500 to control the instrument 10 include… number of cycles remaining and used”).
Regarding claim 30, Zemlok discloses wherein the initiation condition comprises a predetermined power input used by the motor to longitudinally advance the firing driver (paragraph 0140 – “If a stall situation is detected, or the current draw exceeds predetermined limits, the position calculator 416 then determines whether the firing rod 220 is at a mechanical stop”; paragraph 0141 – “If slippage is detected, the position calculator 416 then determines whether the firing rod 220 is at a mechanical stop.”; paragraph 0187 – “The microcontroller 600 may control the components of powered surgical instrument 10 in the event that limits are reached or approached”).
Regarding claim 31, Zemlok discloses wherein the initiation condition comprises a predetermined rate of travel of the firing driver (paragraph 0140 – “If a stall situation is detected, or the current draw exceeds predetermined limits, the position calculator 416 then determines whether the firing rod 220 is at a mechanical stop”).
Regarding claim 32, Zemlok discloses wherein the end effector further comprises a cutting edge (paragraph 0096 – “knife blade”) configured to sever tissue, the cutting edge being actuatable by the firing driver (213, 220, 266; paragraphs 0068, 0096).
Regarding claim 34, Zemlok discloses wherein the end effector comprises a pair of jaws (162, 189 as seen in fig. 17) configured to cooperate to grasp tissue.
Regarding claim 35, Zemlok discloses a shaft (any of 168, 171 or 140; figs. 1 and 17) extending proximally from the end effector.
Regarding claim 41, Zemlok discloses wherein the processor is configured to perform the algorithmic bumping sequence in the second impact mode after performing the algorithmic bumping sequence in the first impact mode (paragraph 0140 – “If a stall situation is detected, or the current draw exceeds predetermined limits, the position calculator 416 then determines whether the firing rod 220 is at a mechanical stop. If this is the case, then the microcontroller 500 can shut down the drive motor 200 or enters a pulse and/or pause mode (e.g., discontinuous supply of power to the drive motor 200) to prevent damage to the motor 200, battery or power source 400, and microcontroller 500, to unlock the instrument 10 and to retract the firing rod 220”; paragraph 0141 – “If slippage is detected, the position calculator 416 then determines whether the firing rod 220 is at a mechanical stop.”; paragraph 0173 – “the sensors can detect sudden spikes in the force exerted on the knife, which is indicative of encountering a foreign body”; paragraph 0187 – “The microcontroller 600 may control the components of powered surgical instrument 10 in the event that limits are reached or approached” – Zemlok is deemed to disclose being configured to perform the claimed algorithmic bumping sequence in either the first or second impact mode depending on if an obstruction or stoppage is encountered during each of these modes).
Regarding claim 42, Zemlok discloses a surgical instrument (10; paragraph 0060), comprising:
(a) an end effector (160; fig. 17) including:
(i) a plurality of surgical fasteners (paragraph 0061 – “the staples are housed in cartridge assembly 164 to apply linear rows of staples to body tissue”), and
(ii) a firing driver (213, 220, 266; paragraphs 0068, 0096) operable to drive the surgical fasteners into tissue;
(b) a motor (200) operable to actuate the firing driver (paragraph 0066); and
(c) a processor (500; or 500, 501 and/or 600) configured to:
(i) activate the motor to advance the firing driver within the end effector (paragraphs 0066, 0096, 0118, 0126),
(ii) detect an initiation condition (paragraph 0140 – “If a stall situation is detected, or the current draw exceeds predetermined limits, the position calculator 416 then determines whether the firing rod 220 is at a mechanical stop”; paragraph 0141 – “If slippage is detected, the position calculator 416 then determines whether the firing rod 220 is at a mechanical stop.”; paragraph 0173 – “the sensors can detect sudden spikes in the force exerted on the knife, which is indicative of encountering a foreign body”; paragraph 0187 – “The microcontroller 600 may control the components of powered surgical instrument 10 in the event that limits are reached or approached”) while advancing the firing driver within the end effector, and
(iii) in response to detecting the initiation condition, perform a sequence (paragraphs 0140 and 0141 – “If this is the case, then the microcontroller 500 can shut down the drive motor 200 or enters a pulse and/or pause mode (e.g., discontinuous supply of power to the drive motor 200)”; a “pulse mode” is deemed to be a “bumping sequence”; paragraphs 0174 and 0187) having a first sequence portion (paragraph 0066 – “a first direction to advance firing rod 220” – firing direction; alternatively, this portion could be the retraction direction (see below)) and a subsequent second sequence portion (paragraph 0066 – “Conversely, the switch 114b may be configured to retract the firing rod 220”; Second impact mode is during the retraction direction when initiation conditions happen; alternatively, this portion could be that of the firing direction (see above)), each of the first and second sequence portions including fluctuating a power output of the motor at a predetermined frequency (paragraph 0174 – “When force spikes are encountered, the instrument 10 notifies the user of the condition and takes preventative measures by entering a so-called "pulse", or pulse width modulation (PWM) or an electronic clutching mode”) between substantially no power output and a predetermined power output to thereby advance the firing driver discontinuously at a non-constant linear speed through a plurality of stopped positions in a predetermined direction (paragraphs 0140 and 0141 – “discontinuous supply of power to the drive motor 200”; paragraph 0164 – “The adjustments to the instrument 10 may including powering the instrument 10 on or off, speed control by means of voltage regulation or voltage pulse width modulation, torque limitation by reducing duty cycle or pulsing the voltage on and off to limit average current delivery during a predetermined period of time”; paragraph 0176 – “In controlled current activation mode, the current is either ramped up or down to prevent damaging current and torque spiked when transitioning between static to dynamic mode to provide for so-called ‘soft start’ and ‘soft stop.’”; also paragraphs 0164, 0173-0175, 0186-0187),
wherein the first and second sequence portions differ in at least one of the predetermined frequency, the predetermined power output, or the predetermined direction (first impact mode = paragraph 0066 – “a first direction to advance firing rod 220”; second impact mode = paragraph 0066 – “Conversely, the switch 114b may be configured to retract the firing rod 220”; alternatively, the first impact mode may be the retraction direction and the second impact mode may be the firing direction).
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 text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim(s) 24, 27-28, 36-39 and 43 is/are rejected under 35 U.S.C. 103 as being unpatentable over Zemlok (US 2011/0022032 A1) in view of Yates et al. (PG Pub 2015/0374369 A1) hereinafter referred to as Yates.
Regarding claim 24, Zemlok fails to disclose wherein the predetermined frequency of the second impact mode differs from the predetermined frequency of the first impact mode.
However, Yates teaches wherein the predetermined frequency of the second (i.e. retraction mode) impact mode differs from the predetermined frequency of the first (i.e. firing mode) impact mode (paragraphs 0005-0006 – “After the initial soft start, the motor can ramp up to full power for the majority of the cutting stroke, but then transition to a lower power mode before and shortly after the cutting reverses direction”; paragraph 0059 – “Accordingly, low frequency pulses may be used when the cutting instrument 32 is initially leaving or returning to its initial position, or approaching or leaving its end-of-stroke position, etc., and high frequency pulses may be used when greater motor speed is required.”).
Given the teachings of Yates, it would have been obvious to one of ordinary skill in the art at the time of effective filing to modify the invention of Zemlok with the first and second differing frequencies of Yates. Both Zemlok and Yates are concerned with modulating the firing and retracting motions of a firing bar of an end effector. Yates discloses how it would be obvious to have different pulse frequency modulations during the retracting relative to the firing motion. This provides the benefit of putting less stress on the motor when less force is needed and helps to prolong the life of the instrument components.
Regarding claim 27, Zemlok fails to disclose wherein the predetermined power output of the second impact mode differs from the predetermined power output of the first impact mode.
However, Yates teaches wherein the predetermined power output of the second (i.e. firing direction) impact mode differs from the predetermined power output of the first (i.e. retraction direction) impact mode (paragraphs 0005-0006 – “After the initial soft start, the motor can ramp up to full power for the majority of the cutting stroke, but then transition to a lower power mode before and shortly after the cutting reverses direction”; paragraphs 0054-0055, 0059; fig. 12 – T1 to T2 is second impact mode and T3 to T4 is first impact mode).
Given the teachings of Yates, it would have been obvious to one of ordinary skill in the art at the time of effective filing to modify the invention of Zemlok with the first and second predetermined power outputs of Yates. Both Zemlok and Yates are concerned with modulating the firing and retracting motions of a firing bar of an end effector. Yates discloses how it would be obvious to have different power outputs during the retracting relative to the firing motion. This provides the benefit of putting less stress on the motor when less force is needed and helps to prolong the life of the instrument components.
Regarding claim 28, Zemlok as modified by Yates discloses wherein the predetermined power output of the second (i.e. firing direction) impact mode is greater than the predetermined power output of the first (i.e. retraction direction) impact mode (Yates - paragraphs 0005-0006 – “After the initial soft start, the motor can ramp up to full power for the majority of the cutting stroke, but then transition to a lower power mode before and shortly after the cutting reverses direction”; paragraphs 0054-0055, 0059; fig. 12 – T1 to T2 is second impact mode and T3 to T4 is first impact mode).
Regarding claim 36, Zemlok discloses a surgical stapler (10; paragraph 0060), comprising:
(a) an end effector (160; fig. 17) comprising:
(i) a body (164; or 168),
(ii) a cutting edge (paragraph 0096 – “knife blade”),
(ii) a plurality of staples (paragraph 0061 – “the staples are housed in cartridge assembly 164 to apply linear rows of staples to body tissue”), and
(iv) a firing driver (213, 220, 266; paragraphs 0068, 0096) being operable to drive:
(A) the cutting edge to sever tissue (paragraph 0096), and
(B) the plurality of staples into tissue (paragraph 0096);
(b) a motor (200) operable to actuate the firing driver (paragraph 0066); and
(c) a processor (500; or 500, 501 and/or 600) configured to:
(i) activate the motor to distally advance the firing driver within the body of the end effector (paragraphs 0066, 0096, 0118, 0126),
(ii) detect an initiation condition (paragraph 0140 – “If a stall situation is detected, or the current draw exceeds predetermined limits, the position calculator 416 then determines whether the firing rod 220 is at a mechanical stop”; paragraph 0141 – “If slippage is detected, the position calculator 416 then determines whether the firing rod 220 is at a mechanical stop.”; paragraph 0173 – “the sensors can detect sudden spikes in the force exerted on the knife, which is indicative of encountering a foreign body”; paragraph 0187 – “The microcontroller 600 may control the components of powered surgical instrument 10 in the event that limits are reached or approached”), and
(iii) in response to detecting the initiation condition, activate an algorithmic bumping sequence (paragraphs 0140 and 0141 – “If this is the case, then the microcontroller 500 can shut down the drive motor 200 or enters a pulse and/or pause mode (e.g., discontinuous supply of power to the drive motor 200)”; a “pulse mode” is deemed to be a “bumping sequence”; paragraph 0187) that includes:
fluctuating a power output of the motor between substantially no power output and a first power output (paragraphs 0140 and 0141 – “discontinuous supply of power to the drive motor 200”; paragraph 0164 – “The adjustments to the instrument 10 may including powering the instrument 10 on or off, speed control by means of voltage regulation or voltage pulse width modulation, torque limitation by reducing duty cycle or pulsing the voltage on and off to limit average current delivery during a predetermined period of time”; paragraphs 0173-0175, 0186-0187) to thereby advance the firing driver through a plurality of stopped positions in a first direction (paragraph 0066 – “a first direction to advance firing rod 220” – firing direction; alternatively, this mode could be the retraction direction (see below)), and
fluctuating a power output of the motor between substantially no power output and a second power output (paragraphs 0140 and 0141 – “enters a pulse and/or pause mode (e.g., discontinuous supply of power to the drive motor 200) to prevent damage to the motor 200, battery or power source 400, and microcontroller 500, to unlock the instrument 10 and to retract the firing rod 220”; paragraph 0176 – “In controlled current activation mode, the current is either ramped up or down to prevent damaging current and torque spiked when transitioning between static to dynamic mode to provide for so-called ‘soft start’ and ‘soft stop.’”; also paragraphs 0164, 0173-0175, 0186-0187) to thereby advance the firing driver through a plurality of stopped positions in a second direction (paragraph 0066 – “Conversely, the switch 114b may be configured to retract the firing rod 220”; Second impact mode is during the retraction direction when initiation conditions happen; alternatively, this mode could be that of the firing direction (see above)) different than the first direction.
Zemlok fails to disclose fluctuating a power output of the motor a first frequency between substantially no power output and a first power output, fluctuating a power output of the motor a second frequency different than the first frequency between substantially no power output and a second power output different than the first power output.
However, Yates teaches fluctuating a power output of the motor a first frequency between substantially no power output and a first power output, fluctuating a power output of the motor a second frequency different than the first frequency between substantially no power output and a second power output different than the first power output (paragraphs 0005-0006 – “After the initial soft start, the motor can ramp up to full power for the majority of the cutting stroke, but then transition to a lower power mode before and shortly after the cutting reverses direction”; paragraph 0059 – “Accordingly, low frequency pulses may be used when the cutting instrument 32 is initially leaving or returning to its initial position, or approaching or leaving its end-of-stroke position, etc., and high frequency pulses may be used when greater motor speed is required.”).
Given the teachings of Yates, it would have been obvious to one of ordinary skill in the art at the time of effective filing to modify the invention of Zemlok with the first and second differing frequencies of Yates. Both Zemlok and Yates are concerned with modulating the firing and retracting motions of a firing bar of an end effector. Yates discloses how it would be obvious to have different pulse frequency modulations during the retracting relative to the firing motion. This provides the benefit of putting less stress on the motor when less force is needed and helps to prolong the life of the instrument components.
Regarding claim 37, Zemlok discloses wherein the first direction comprises a distal direction (paragraph 0066 - “a first direction to advance firing rod 220”; When the initiation conditions are met in this direction).
Regarding claim 38, Zemlok discloses wherein the second direction comprises a proximal direction (paragraph 0066 - “Conversely, the switch 114b may be configured to retract the firing rod 220”; When the initiation conditions are met in this direction).
Regarding claim 39, Zemlok as modified by Yates discloses wherein the algorithmic bumping sequence comprises fluctuating the power output of the motor (Zemlok - paragraphs 0140-0141, 0174-0175, 0186-0187; Yates - paragraphs 0005-0006, 0059) as a step function (Zemlok - paragraphs 0069, 0164, 0175; Yates – paragraph 0059 – “a frequency modulation circuit 149”).
The Office deems Zemlok as modified by Yates to disclose the limitation of a step function. Wherein the Applicant may argue that the step function is not inherently disclosed, the Office previously official notice in the Office Action of 3 November 2025 that it was known in the field prior to the time of effective filing to make use of step functions as a matter of motor control for fluctuating the power output and frequency of the motor as is already present in the prior art. The frequency modulation circuit of Zemlok as modified by Yates uses a series of rectangular pulses switching rapidly between an on and off state. Each of these pulses as carried out by a processor would have been ideally suited for being carried out as part of a step function as such pulses desired by Zemlok as modified by Yates can be represented or created as part of a step function. The common knowledge or well-known in the art statement is taken to be admitted prior art because applicant failed to traverse the examiner’s assertion of official notice (MPEP 2144.03 C).
Regarding claim 43, Zemlok fails to disclose wherein the predetermined power output of the second sequence portion differs from the predetermined power output of the first sequence portion.
However, Yates teaches wherein the predetermined power output of the second (i.e. retraction direction or alternatively firing direction) sequence portion differs from the predetermined power output of the first (i.e. firing direction or alternatively retraction direction) sequence portion (paragraphs 0005-0006 – “After the initial soft start, the motor can ramp up to full power for the majority of the cutting stroke, but then transition to a lower power mode before and shortly after the cutting reverses direction”; paragraphs 0054-0055, 0059; fig. 12 – T1 to T2 is one portion and T3 to T4 is a different portion).
Given the teachings of Yates, it would have been obvious to one of ordinary skill in the art at the time of effective filing to modify the invention of Zemlok with the first and second predetermined power outputs of Yates. Both Zemlok and Yates are concerned with modulating the firing and retracting motions of a firing bar of an end effector. Yates discloses how it would be obvious to have different power outputs during the retracting relative to the firing motion. This provides the benefit of putting less stress on the motor when less force is needed and helps to prolong the life of the instrument components.
Claim(s) 44 is/are rejected under 35 U.S.C. 103 as being unpatentable over Zemlok (US 2011/0022032 A1).
Regarding claim 44, Zemlok discloses wherein each of the first and second sequence portions includes fluctuating the power output of the motor (paragraphs 0140-0141, 0174-0175, 0186-0187) as a step function (paragraphs 0069 – “microelectronic pulse width modulation circuit”; paragraph 0164 – “voltage pulse width modulation”; paragraph 0175 – “The microcontroller 500 controls the drive motor 200 through a motor driver via a pulse width modulated control signal”).
The Office deems Zemlok to disclose the limitation of a step function. Wherein the Applicant may argue that the step function is not inherently disclosed, the Office previously official notice in the Office Action of 3 November 2025 that it was known in the field prior to the time of effective filing to make use of step functions as a matter of motor control for fluctuating the power output and frequency of the motor as is already present in the prior art. The frequency modulation circuit of Zemlok uses a series of rectangular pulses switching rapidly between an on and off state. Each of these pulses as carried out by a processor would have been ideally suited for being carried out as part of a step function as such pulses desired by Zemlok can be represented or created as part of a step function. The common knowledge or well-known in the art statement is taken to be admitted prior art because applicant failed to traverse the examiner’s assertion of official notice (MPEP 2144.03 C).
Response to Arguments
Applicant's arguments filed 2 February 2026 have been fully considered but they are not persuasive.
The obvious double patenting rejections have been considered in view of the Applicant’s amendments and are still deemed to be applicable to the current set of claims as detailed above. While the wording is not identical between the instant claims and those of the ‘297 patent, the subject matter claimed in the ‘297 patent is deemed to be a narrower recitation of the current invention which effectively reads on the current claim language.
The Applicant argues that Zemlok fails to disclose that the cited first and second impact modes fail to disclose “a second such mode that differs from the disclosed mode in at least one of a predetermined frequency, a predetermined motor power output, or a predetermined longitudinal direction as required by amended claim 21”. As noted in the rejection above, Zemlok, at the very least, discloses two different impact modes (paragraphs 0140-0141, 0173, 0187; These passages refer to sudden stops, i.e. impacts, that are indicative of mechanical stops or obstructions that can happen in either firing or retraction movements) that differ in terms of direction (i.e. firing vs. retraction directions). Zemlok is therefore to broadly read on this limitation.
Regarding the newly amended language of claim 36 speaking to first and second power outputs being different, this is deemed to be taught by Yates as detailed above. Yates has different power outputs at different times of operation. Zemlok already teaches firing and retraction motions. Yates teaches how the power during a firing portion can be larger than power during a retraction portion. As such there is motivation to combine these references because different power is needed at different times during the firing cycle of a surgical tool. This then broadly reads on the claimed subject matter as current written. Yates also makes use of different frequencies during these two operation modes.
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 ANDREW M TECCO whose telephone number is (571)270-3694. The examiner can normally be reached M-F 11a-7p.
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, Anna Kinsaul can be reached at (571) 270-1926. 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.
/ANDREW M TECCO/ Primary Examiner, Art Unit 3731