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 .
Drawings
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they do not include the following reference sign(s) mentioned in the description:
-[0034] introduces element 151 in reference to Fig. 2
-[0039] introduces element 214 in reference to Fig. 3
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they include the following reference character(s) not mentioned in the description:
-Fig. 9 contains elements 552, 555, and 560 which are not found within the specification.
-Fig. 10 contains element 560 which is not found within the specification.
Corrected drawing sheets in compliance with 37 CFR 1.121(d), or amendment to the specification to add the reference character(s) in the description in compliance with 37 CFR 1.121(b) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Specification
Applicant is reminded of the proper language and format for an abstract of the disclosure.
The abstract should be in narrative form and generally limited to a single paragraph on a separate sheet within the range of 50 to 150 words in length. The abstract should describe the disclosure sufficiently to assist readers in deciding whether there is a need for consulting the full patent text for details.
The language should be clear and concise and should not repeat information given in the title. It should avoid using phrases which can be implied, such as, “The disclosure concerns,” “The disclosure defined by this invention,” “The disclosure describes,” etc. In addition, the form and legal phraseology often used in patent claims, such as “means” and “said,” should be avoided.
The use of the term Bluetooth, which is a trade name or a mark used in commerce, has been noted in this application. The term should be accompanied by the generic terminology; furthermore the term should be capitalized wherever it appears or, where appropriate, include a proper symbol indicating use in commerce such as ™, SM , or ® following the term.
Although the use of trade names and marks used in commerce (i.e., trademarks, service marks, certification marks, and collective marks) are permissible in patent applications, the proprietary nature of the marks should be respected and every effort made to prevent their use in any manner which might adversely affect their validity as commercial marks.
Appropriate correction is required.
Claim Objections
Claims 1, 3, 8, 12, 13, 17 are objected to because of the following informalities:
-Claim 1 recites “where the first acoustic” in line 7. Examiner recommends amending to –wherein the first acoustic—
-Claim 1 recites “where the at least one contact element” in line 11. Examiner recommends amending to –wherein the at least one contact element—
-Claim 1 recites “where the at least” in line 12. Examiner recommends amending to –and wherein the at least—
-Claim 3 recites “that does not engage the shaft a second cross-sectional” in line 3. Examiner recommends amending to –that does not engage the shaft and a second cross-sectional—
-Claim 8 recites “the device” in line 2. Examiner recommends amending to –the tissue treatment device—
-Claim 12 recites “where the first acoustic” in line 7. Examiner recommends amending to –wherein the first acoustic—
-Claim 12 recites “where the second wall” in line 12. Examiner recommends amending to –and wherein the second wall—
-Claim 13 recites “and delivering” in lines 6-7. Examiner recommends amending to –wherein delivering—
-Claim 17 recites “where creating” in line 1. Examiner recommends amending to –wherein creating—
Appropriate correction is required.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are:
Claim 1, 12, 13 recites “acoustic energy emitter” which is a generic placeholder. There is no sufficient structure for this limitation provided in the claims. The function of this limitation is to produce an acoustic energy. According to the specification the acoustic energy emitter includes electromagnetic device, a compressed air device and/or a cavitation device [0010] and equivalents thereof.
Claim 1 recites “contact element” which is a generic placeholder. There is no sufficient structure for this limitation provided in the claims. The function of this limitation is to transmit acoustic energy. According to the specification the contact element includes plastic, metal, base material or recess [0054] and equivalents thereof.
Claim 6 recites “electromagnetic device” which is a generic placeholder. There is no sufficient structure for this limitation provided in the claims. The function of this limitation is to emit acoustic energy. Based on the specification, there is no disclosure provided to disclose the corresponding structure.
Claim 7 recites “controller” which is a generic placeholder. There is no sufficient structure for this limitation provided in the claims. The function of this limitation is to modulate parameters of acoustic energy delivery. Based on the specification, there is no disclosure provided to disclose the corresponding structure.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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 1-11, 12, 13-17 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 recites “an axis a proximal opening” in line 2. It is unclear what is meant by this limitation. Further clarification should be provided to identify whether the claim requires the assembly to extend along an axis and a separate opening proximal to the axis, the assembly to extend along an axis proximal to an opening, the assembly to extend along an axis and a separate opening proximal to the assembly, or a separate embodiment.
-Claim 1 recites “acoustic energy” in line 12. It is unclear whether this is the same or different from acoustic energy originally referenced in claim 1, line 6. Further clarification should be provided.
-Claim 2 recites “emitters can be positioned on a single side such that a tubular assembly” in lines 2-3. It is unclear whether the tubular assembly is required because it is not positively recited. Further clarification should be provided.
-Claim 12 recites “an axis a proximal opening” in line 2. It is unclear what is meant by this limitation. Further clarification should be provided to identify whether the claim requires the assembly to extend along an axis and a separate opening proximal to the axis, the assembly to extend along an axis proximal to an opening, the assembly to extend along an axis and a separate opening proximal to the assembly, or a separate embodiment.
-Claim 12 recites “acoustic energy” in line 13. It is unclear whether this is the same or different from acoustic energy originally referenced in claim 12, line 6. Further clarification should be provided.
-Claim 12 recites “an interior chamber” in line 10. It is unclear whether this is the same or different from interior chamber originally recited in claim 12, line 3. Further clarification should be provided.
-Claim 13 recites “delivering acoustic energy” in line 7. It is unclear whether this is the same or different from delivering acoustic energy originally referenced in claim 13, line 4.
-Claim 13 recites “one or more acoustic energy emitters disposed on opposing sides” in lines 5-6. It is unclear how the limitation could only require one acoustic energy emitter if the emitters are required to be disposed on opposing sides. Further clarification should be provided.
-Claim 16 recites “at least one acoustic energy emitter” in line 2. It is unclear whether this is the same or different from the one or more acoustic energy emitters originally referenced in claim 13, line 5.
-Claim 17 recites “delivering acoustic energy” in line 3. It is unclear whether this is the same or different from delivering acoustic energy originally referenced in claim 13, line 4.
Claim limitation “electromagnetic device” invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. However, the written description fails to disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function. While electromagnetic device is recited throughout the specification, there is no corresponding structure disclosed for this device. Electromagnetic device could encompass an electromagnet or a device that induces electromagnetism. Therefore, the claim is indefinite and is rejected under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph.
Applicant may:
(a) Amend the claim so that the claim limitation will no longer be interpreted as a limitation under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph;
(b) Amend the written description of the specification such that it expressly recites what structure, material, or acts perform the entire claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(c) Amend the written description of the specification such that it clearly links the structure, material, or acts disclosed therein to the function recited in the claim, without introducing any new matter (35 U.S.C. 132(a)).
If applicant is of the opinion that the written description of the specification already implicitly or inherently discloses the corresponding structure, material, or acts and clearly links them to the function so that one of ordinary skill in the art would recognize what structure, material, or acts perform the claimed function, applicant should clarify the record by either:
(a) Amending the written description of the specification such that it expressly recites the corresponding structure, material, or acts for performing the claimed function and clearly links or associates the structure, material, or acts to the claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(b) Stating on the record what the corresponding structure, material, or acts, which are implicitly or inherently set forth in the written description of the specification, perform the claimed function. For more information, see 37 CFR 1.75(d) and MPEP §§ 608.01(o) and 2181.
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(s) 1-7, 9, 12, 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Spector (U.S. 9913748) in view of Blanche (U.S. 20180296383).
Regarding Claim 1, Spector teaches a tissue treatment device [Abstract] and [Col 1, lines 35-38] comprising: an elongate tubular assembly extending along an axis a proximal opening adjacent to an interior chamber adapted for receiving a shaft of a mammalian penis [Fig. 2, elements 152 (penis treatment assembly housing), 164 (shockwave…lumen)], 10 (penis), 162p (proximal opening)]; and
a plurality of acoustic energy emitters comprising at least a first acoustic energy emitter and a second acoustic energy emitter [Fig. 2, elements 116 (shockwave transmission… lumen) and 110 (shockwave generator ensemble)],
a wall adjacent to the interior chamber [Fig. 2, element 114 (shockwave reflector)], the wall comprising an elastomeric portion having at least one contact element [Col 10, lines 15-24]—discussing the propagation medium which can be water, solution, etc. which when referring to [Col 1, lines 35-38] encompasses an elastic medium, where the at least one contact element is configured to transmit acoustic energy to a greater degree than the elastomeric portion [Fig. 2, element 116 (shockwave…aqueous medium filled lumen)] and [Col 10, lines 29-37], where the at least one contact element is adjacent to at least one of the plurality of acoustic energy emitters [Fig. 2, elements 116 and 110 (shockwave generator ensemble)].
Spector is silent on the plurality of acoustic energy emitters configured to produce an acoustic energy at a high intensity sufficient to produce shock waves, where the first acoustic energy emitter and the second acoustic energy emitter are positioned on opposing sides of the interior chamber to deliver the acoustic energy to opposing sides of the shaft when placed within the interior chamber. Blanche teaches a plurality of acoustic energy emitters comprising at least a first acoustic energy emitter and a second acoustic energy emitter [Fig. 6, elements 156 (ultrasonic transducers)], the plurality of acoustic energy emitters configured to produce an acoustic energy at a high intensity sufficient to produce shock waves [0048], where the first acoustic energy emitter and the second acoustic energy emitter are positioned on opposing sides of the interior chamber to deliver the acoustic energy to opposing sides of the shaft when placed within the interior chamber [Fig. 6]—depicts elements 156 on opposite sides of the device along an axis.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include multiple energy emitters as taught by Blanche to provide therapeutic energy to a cylindrical object as suggested by Spector, as Spector discusses the housing being provided in any shape such as a cylinder [Col 9, lines 1-3] with Blanche because Blanche teaches mounting the transducers on either side of the penis [0042].
Regarding Claim 2, Spector is silent on wherein the plurality of acoustic energy emitters can be positioned on a single side such that a tubular assembly is rotated during use. Blanche teaches wherein the plurality of acoustic energy emitters can be positioned on a single side such that a tubular assembly is rotated during use [0042]—discusses the transducers being positioned to correspond to the anatomy. This limitation is read as intended use and is also not positively recited. Therefore, in light of the limitation is broadly interpreted to required emitters on one side to allow the device the capability to be rotated. Blanche would be capable of rotation during use due to the emitters being shown on one side of the tubular assembly.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include energy emitters on a single side of the device as taught by Blanche to provide therapeutic energy to a treatment zone as suggested by Spector, as Spector discusses the use of a focal zone [Col 9, lines 37-47] with Blanche because Blanche teaches the importance of specificity during treatment [0038].
Regarding Claim 3, Spector further teaches wherein the interior chamber includes at least one wall portion configured to be adjusted between a first cross-sectional shape that does not engage the shaft a second cross-sectional shape that engages the shaft [Fig. 2, element 108 (seal)] and [Col 10, lines 57-62].
Regarding Claim 4, Spector further teaches further comprising a negative pressure source coupled to the interior chamber adapted for adjusting the elongate tubular assembly between the first cross-sectional shape and the second cross-sectional shape [Fig. 2, elements 130 (pressure/vacuum inlet/outlet)] and [Col 10, lines 55-62].
Regarding Claim 5, Spector further teaches further comprising a sponge-like cuff disposed around an open proximal end of the interior chamber [Fig. 2, element 106 (flexible ESWT cushioned treatment head)].
Regarding Claim 6, Spector further teaches wherein each of the plurality of acoustic energy emitters comprises an electromagnetic device [Col 8, lines 49-53].
Regarding Claim 7, Spector further teaches further comprising a controller configured for modulating parameters of acoustic energy delivery [Col 4, lines 24-30].
Regarding Claim 9, Spector is silent on further teaches further comprising a negative pressure source coupled to the interior chamber. Blanche teaches further teaches further comprising a negative pressure source coupled to the interior chamber [0018].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include a vacuum source as taught by Blanche to provide stimulation as suggested by Spector, as Spector discusses a vacuum configuration [Col 6, lines 45-54] with Blanche because Blanche teaches the use of vacuum to stimulate blood flow and sensory nerves [0037].
Regarding Claim 12, Spector teaches a tissue treatment device [Abstract] and [Col 1, lines 35-38] comprising: an elongate tubular assembly extending along an axis a proximal opening adjacent to an interior chamber adapted for receiving a shaft of a mammalian penis [Fig. 2, elements 152 (penis treatment assembly housing), 164 (shockwave…lumen)], 10 (penis), 162p (proximal opening)];
a wall surrounding an interior chamber [Fig. 2, element 114 (shockwave reflector)], the wall comprising a first wall portion and a second wall portion [Fig. 2]—depicts element 114 shown on both sides of the device as two separate portions, and the second wall portion includes a deflectable material [Col 10, lines 15-24]—discussing the propagation medium which can be water, solution, etc. which when referring to [Col 1, lines 35-38] encompasses an elastic medium, where the second wall portion also includes at least one non-elastomeric section adapted for transmission of acoustic energy therethrough [Fig. 2, element 112 (spark plugs)] and [Col 10, lines 15-20].
Spector is silent on wherein the first wall portion includes a non-deflectable material, a plurality of acoustic energy emitters comprising at least a first acoustic energy emitter and a second acoustic energy emitter, the plurality of acoustic energy emitters configured to produce an acoustic energy at a high intensity sufficient to produce shock waves, where the first acoustic energy emitter and the second acoustic energy emitter are positioned on opposing sides of the interior chamber to deliver the acoustic energy to opposing sides of the shaft when placed within the interior chamber.
Blanche teaches wherein the first wall portion includes a non-deflectable material [Fig. 3, element 154 (meta strip)], a plurality of acoustic energy emitters comprising at least a first acoustic energy emitter and a second acoustic energy emitter [Fig. 6, elements 156 (ultrasonic transducers)], the plurality of acoustic energy emitters configured to produce an acoustic energy at a high intensity sufficient to produce shock waves [0048], where the first acoustic energy emitter and the second acoustic energy emitter are positioned on opposing sides of the interior chamber to deliver the acoustic energy to opposing sides of the shaft when placed within the interior chamber [Fig. 6]—depicts elements 156 on opposite sides of the device along an axis.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include multiple energy emitters as taught by Blanche to provide therapeutic energy to a cylindrical object as suggested by Spector, as Spector discusses the housing being provided in any shape such as a cylinder [Col 9, lines 1-3] with Blanche because Blanche teaches mounting the transducers on either side of the penis [0042].
Regarding Claim 13, Spector teaches a tissue treatment method [Abstract] and [Col 1, lines 35-38] comprising: positioning a mammalian penile shaft in an interior chamber of an elongate tubular assembly [Fig. 2, elements 152 (penis treatment assembly housing), 164 (shockwave…lumen)], 10 (penis), 162p (proximal opening)]; and delivering acoustic energy includes delivering acoustic waves along a first transmission axis and second transmission axis [Fig. 5B]—depicts different treatment focal zones which energy is delivered to where zones 5-7 encompass different axes then those shown for the areas in zones 1-4; and creating a negative pressure environment in the interior chamber [Col 5, lines 42-49].
Spector is silent on and delivering acoustic energy at a high intensity sufficient to produce shock waves to the shaft from one or more acoustic energy emitters disposed on opposing sides of the interior chamber. Blanche teaches and delivering acoustic energy at a high intensity sufficient to produce shock waves to the shaft from one or more acoustic energy emitters disposed on opposing sides of the interior chamber [0048].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include multiple energy emitters as taught by Blanche to provide therapeutic energy to a cylindrical object as suggested by Spector, as Spector discusses the housing being provided in any shape such as a cylinder [Col 9, lines 1-3] with Blanche because Blanche teaches mounting the transducers on either side of the penis [0042].
Claim(s) 8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Spector (U.S. 9913748) in view of Blanche (U.S. 20180296383) and in further view of Cioanta (U.S. 20180221688).
Regarding Claim 8, Spector and Blanche are silent on wherein the controller is configured for adjustment using a touchscreen coupled to the device. Cioanta teaches wherein the controller is configured for adjustment using a touchscreen coupled to the device [0205].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to control the system by means of a touchscreen as taught by Cioanta to adjust pressure shock treatment as suggested by Spector, and Blanche as Spector discusses adjustability of the treatment parameters [Col 13, lines 4-8] and Blanche which discloses controlling aspects of the rheostat, pressure gauge and vacuum [0039] with Cioanta because Cioanta teaches controlling operational parameters of the treatment apparatus and console/unit [0205].
Claim(s) 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Spector (U.S. 9913748) in view of Blanche (U.S. 20180296383) and in further view of Chen (CN 206675697).
Regarding Claim 10, Spector and Blanche are silent on further comprising a pump configured to evacuate air from the interior chamber. Chen teaches further comprising a pump configured to evacuate air from the interior chamber [0008].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate a pump to evacuate air as taught by Chen to provide vacuum environments for positioning as suggested by Spector, and Blanche, as Spector discusses the outlet contributing to positioning by use of vacuum strength [Col 6, lines 47-54] and Blanche which discloses controlling aspects of the rheostat, pressure gauge and vacuum [0039] with Chen because Chen teaches adjusting the size of the device by means of the vacuum pump [0019].
Claim(s) 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Spector (U.S. 9913748) in view of Blanche (U.S. 20180296383) and in further view of Dills (DE 102017123569).
Regarding Claim 11, Spector and Blanche is silent on wherein at least one of the plurality of acoustic energy emitters comprises a device selected from the group consisting of a compressed air device and a cavitation device. Dills teaches wherein at least one of the plurality of acoustic energy emitters comprises a device selected from the group consisting of a compressed air device and a cavitation device [0021]—reference to a pneumatic connections.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate compressed/pressurized/pneumatic sources as taught by Dills to allow for drawing air in and out of the vacuum environments as suggested by Spector, and Blanche, as Spector discusses the outlet contributing to positioning by use of vacuum strength [Col 6, lines 47-54] and Blanche which discloses controlling aspects of the rheostat, pressure gauge and vacuum [0039] with Dills because Dills teaches controlling airflow via the pneumatic connections [0021].
Claim(s) 14, 15, 16, 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Spector (U.S. 9913748) in view of Blanche (U.S. 20180296383) and in further view of Chen (CN 110613598).
Regarding Claim 14, Spector and Blanche are silent on further comprising a pump actuated by an actuator switch to evacuate air from the interior chamber through vents in a distal portion of an elongated member. Chen teaches further comprising a pump [0014] actuated by an actuator switch [0019] to evacuate air from the interior chamber through vents in a distal portion of an elongated member [0035].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate a pump, switch and vents to evacuate air as taught by Chen to provide vacuum environments for positioning as suggested by Spector, and Blanche, as Spector discusses the outlet contributing to positioning by use of vacuum strength [Col 6, lines 47-54] and Blanche which discloses controlling aspects of the rheostat, pressure gauge and vacuum [0039] with Chen because Chen teaches the ventilation means to remove heat from the interior of the structure [0035].
Regarding Claim 15, Spector further teaches wherein creating the negative pressure environment causes the interior chamber to adjust between first and second cross- sectional shapes [Fig. 2, element 108 (seal)] and [Col 10, lines 57-62].
Regarding Claim 16, Spector further teaches wherein creating the negative pressure environment causes at least one acoustic energy emitter to contact the shaft [Col 10, lines 55-62].
Regarding Claim 17, Spector further teaches where creating the negative pressure environment in the interior chamber comprises creating at least first and second levels of negative pressure in the interior chamber; and delivering acoustic energy to the shaft at each of the at least first and second levels [Col 6, lines 45-54]—describes the vacuum providing strength at various levels between 0.1 atm to 0.8 atm.
Double Patenting
A rejection based on double patenting of the “same invention” type finds its support in the language of 35 U.S.C. 101 which states that “whoever invents or discovers any new and useful process... may obtain a patent therefor...” (Emphasis added). Thus, the term “same invention,” in this context, means an invention drawn to identical subject matter. See Miller v. Eagle Mfg. Co., 151 U.S. 186 (1894); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Ockert, 245 F.2d 467, 114 USPQ 330 (CCPA 1957).
A statutory type (35 U.S.C. 101) double patenting rejection can be overcome by canceling or amending the claims that are directed to the same invention so they are no longer coextensive in scope. The filing of a terminal disclaimer cannot overcome a double patenting rejection based upon 35 U.S.C. 101.
Claims 1, 3, 4, 6, 7, 9, 11 and 12 is/are rejected under 35 U.S.C. 101 as claiming the same invention as that of claims 1, 3, 10, 11, 12, 14, 15 and 18 of prior U.S. Patent No. 11998501. This is a statutory double patenting rejection.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
-Merrill (U.S. 5125890)—describes a tubular vacuum chamber including elastic and inelastic components
-Squicciarini (U.S. 20080065187)—includes a male prosthetic device transmitting stimulation parameters
-Gordon (U.S. 11179292)—includes delivery of acoustic wave stimulus to a female
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BROOKE NICOLE KOHUTKA whose telephone number is (571)272-5583. The examiner can normally be reached Monday-Friday 7:30am-5:00pm EST.
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/B.N.K./ Examiner, Art Unit 3791
/CHRISTINE H MATTHEWS/ Primary Examiner, Art Unit 3791
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