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 .
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 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.
Information Disclosure Statement
The information disclosure statements (IDS) submitted on April 29, 2024; January 3, 2025; January 16, 2025; January 24, 2025; August 5, 2025; October 15, 2025; February 3, 2026 are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
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 1-8 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 the limitation “the receiving portion” in lines 5-6. There is insufficient antecedent basis for this limitation in the claim because claim 1 lacks a prior reference to a receiving portion.
Claims 2-8 are rejected as being dependent upon rejected claim 1 and failing to remedy the indefiniteness issue.
Claim 6 recites the limitation “the driver” in line 3. There is insufficient antecedent basis for this limitation in the claim because claim 6 lacks a prior reference to a driver.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-13 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-7 and 14-18 of Buck (U.S. Patent No. 10939913; hereinafter “Buck ‘913”). Although the claims at issue are not identical, they are not patentably distinct from each other.
Regarding claim 1, as presented below, claim 1 of Buck ‘913 “anticipate(s)” application claim 1. Accordingly, application claim 1 is not patentably distinct from patent claim 1. Here, patent claim 1 requires a ring forming an aperture and including a plurality of receiving portions and a cartridge having a plurality of fasteners while application claim1 only requires a ring and a cartridge including a fastener.
Application claim 1
Buck ‘913 claim 1
Examiner Notes
1. An anastomotic coupler comprising:
a ring operable to be disposed external to a tubular structure;
a cartridge operable to be disposed within a lumen of the tubular structure, the cartridge including a fastener,
wherein the ring is aligned with the cartridge such that the receiving portion is aligned with the fastener,
wherein the ring is operable to be coupled with the tubular structure when the fastener extends radially outward from the lumen of the tubular structure.
1. An anastomotic coupler comprising:
a ring forming an aperture operable to receive a tubular structure, the ring including a plurality of receiving portions;
a fixation device including a housing and a cartridge, the cartridge including a plurality of fasteners, the housing operable to receive the tubular structure such that the cartridge is inserted into a lumen of the tubular structure,
wherein the ring is aligned with the cartridge such that the plurality of receiving portions are aligned with the plurality of fasteners,
wherein upon actuation of the fixation device, the plurality of fasteners puncture the tubular structure radially outward from the lumen and are received by the receiving portions such that the tubular structure is coupled with the ring.
Thus it is apparent that the more specific patent claim 1 encompasses application claim 1. Following the rationale in In re Goodman cited in the preceding paragraph, where applicant has once been granted a patent containing a claim for the specific or narrower invention, applicant may not then obtain a second patent with a claim for the generic or broader invention without first submitting an appropriate terminal disclaimer.
Regarding claim 2, claim 1 of Buck ‘913 recites the same limitations as application claim 2.
Regarding claims 3-8, claims 2-7 of Buck ‘913 recite the same limitations as application claims 3-8.
Regarding claim 9, as presented below, claim 14 of Buck ‘913 “anticipate(s)” application claim 9. Accordingly, application claim 9 is not patentably distinct from patent claim 14. Here, patent claim 14 requires receiving a tubular structure in an aperture of a ring, receiving the tubular structure by a fixation device, aligning the ring with the cartridge, actuating the fixation device to puncture fasteners radially outward, and coupling the tubular structure with the ring while application claim 9 only requires aligning a ring with a cartridge, causing the fastener to extend radially outward, and coupling the tubular structure with the ring..
Application claim 9
Buck ‘913 claim 14
Examiner Notes
9. A method comprising:
aligning a ring disposed external to a tubular structure
with a cartridge disposed within a lumen of the tubular structure such that
a receiving portion of the ring is aligned with a fastener of the cartridge;
causing the fastener to extend radially outward from the lumen of a tubular structure; and
coupling the tubular structure with the ring.
14. A method comprising:
receiving a tubular structure in an aperture of a ring;
receiving, by a fixation device, the tubular structure such that a cartridge is inserted into a lumen of the tubular structure;
aligning the ring with the cartridge such that a plurality of receiving portions of the ring are aligned with a plurality of fasteners of the cartridge;
actuating the fixation device such that the plurality of fasteners puncture the tubular structure radially outward from the lumen; and
coupling the tubular structure with the ring by the receiving portions receiving the plurality of fasteners.
Thus it is apparent that the more specific patent claim 14 encompasses application claim 9. Following the rationale in In re Goodman cited in the preceding paragraph, where applicant has once been granted a patent containing a claim for the specific or narrower invention, applicant may not then obtain a second patent with a claim for the generic or broader invention without first submitting an appropriate terminal disclaimer.
Regarding claims 10-13, claims 15-18 of Buck ‘913 recite the same limitations as application claims 10-13.
Claims 1-8 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-7 of Buck (U.S. Patent No. 11998208; hereinafter “Buck ‘208). Although the claims at issue are not identical, they are not patentably distinct from each other.
Regarding claim 1, as presented below, claim 1 of Buck ‘208 “anticipate(s)” application claim 1. Accordingly, application claim 1 is not patentably distinct from patent claim 1. Here, patent claim1 requires a ring including a plurality of receiving portions, a cartridge including a plurality of fasteners while application claim 1 only a ring and a cartridge including a fastener.
Application claim 1
Buck 208 claim 1
Examiner Notes
1. An anastomotic coupler comprising:
a ring operable to be disposed external to a tubular structure;
a cartridge operable to be disposed within a lumen of the tubular structure, the cartridge including a fastener,
wherein the ring is aligned with the cartridge such that the receiving portion is aligned with the fastener,
wherein the ring is operable to be coupled with the tubular structure when the fastener extends radially outward from the lumen of the tubular structure.
1. An anastomotic coupler comprising:
a ring including a plurality of receiving portions, the ring operable to be disposed external to a tubular structure·
a cartridge operable to be disposed within a lumen of the tubular structure, the cartridge including a plurality of fasteners,
wherein the ring is aligned with the cartridge such that the plurality of receiving portions are aligned with the plurality of fasteners,
wherein the plurality of fasteners are operable to puncture the tubular structure radially outward from the lumen and are received by the plurality of receiving portions of the ring such that the tubular structure is coupled with the ring.
Thus it is apparent that the more specific patent claim 1 encompasses application claim 1. Following the rationale in In re Goodman cited in the preceding paragraph, where applicant has once been granted a patent containing a claim for the specific or narrower invention, applicant may not then obtain a second patent with a claim for the generic or broader invention without first submitting an appropriate terminal disclaimer.
Regarding claim 2, claim 1 of Buck ‘208 recites the same limitations as application claim 2.
Regarding claims 3-8, claims 2-7 of Buck ‘208 recite the same limitations as application claims 3-8.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Jonathan A Hollm whose telephone number is (703)756-1514. The examiner can normally be reached Mon - Fri 8:30-5:30.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Elizabeth Houston can be reached at (571) 272-7134. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JONATHAN A HOLLM/Examiner, Art Unit 3771