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 (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.
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 §§ 706.02(l)(1) - 706.02(l)(3) 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 USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The 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/process/file/efs/guidance/eTD-info-I.jsp.
Claims 1, 3-4, 7-8, and 15 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3, 6, 10, and 13-15 of U.S. Patent No. 11,090,106. Although the claims at issue are not identical, they are not patentably distinct from each other because the limitations of the examined claims 1, 3-4, 7-8, and 15 would have been obvious over the reference claims 1, 3, 6, 10, and 13-15.
With respect to claim 1, Patent ‘106 claims a electrosurgical generator, comprising: a radio frequency (RF) inverter configured to generate an electrosurgical waveform; a software compensator configured to generate a desired value for a parameter of the electrosurgical waveform based on a control algorithm utilizing state machine logic for different operational modes; and a hardware accelerator including: a dosage monitoring and controller (DMAC) configured to output a measured value of the parameter the electrosurgical waveform; a hardware compensator configured to generate a phase shift based on the measured value and the desired value; and an RF inverter controller configured to generate a pulse-width modulation (PWM) signal based on the phase shift to control the RF inverter, wherein the RF inverter controller includes a PWM module that further adjusts the PWM signal based on feedback from the hardware compensator (see reference claims 1 and 14-15).
With respect to claim 3, Patent ‘106 claims wherein the DMAC further comprises a set of analog-to-digital converters (ADCs) configured to digitize measured value of the parameter the electrosurgical waveform (see reference claims 14-15).
With respect to claim 4, Patent ‘106 claims wherein the DMAC further comprises filters configured to filter sensed voltage and current of the electrosurgical waveform to provide first and second path data (see reference claim 13).
With respect to claim 7, Patent ‘106 claims wherein the hardware compensator includes a phase gain scheduler configured to calculate a phase gain and adjust the phase shift in response to deviations between the measured value and the desired value (see reference claim 6).
With respect to claim 8, Patent ‘106 claims wherein the phase gain scheduler further executes a limit function to maintain the phase shift within a predetermined range (see reference claim 10).
With respect to claim 15, Patent ‘106 claims wherein the phase gain scheduler is configured to refine phase shift adjustments by employing a set of proportional-integral-derivative (PID) controllers to stabilize the electrosurgical waveform in response to dynamic changes in tissue impedance. (see reference claim 3).
Therefore, examined claims 1, 3-4, 7-8, and 15 are not patentably distinct from reference claims 1, 3, 6, 10, and 13-15.
This is a provisional nonstatutory double patenting rejection.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1 and 5-6 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Friedrichs (US 20120215216; hereinafter Friedrichs).
Regarding claim 1, Friedrichs (Figure 3) discloses an electrosurgical generator (300), comprising: a radio frequency (RF) inverter (102) configured to generate an electrosurgical waveform; a software compensator (321) configured to generate a desired value for a parameter of the electrosurgical waveform based on a control algorithm (313) utilizing state machine logic (314) for different operational modes; and a hardware accelerator including: a dosage monitoring and controller (DMAC), (312), configured to output a measured value of the parameter the electrosurgical waveform; a hardware compensator (322) configured to generate a phase shift based on the measured value and the desired value; and an RF inverter controller (312) configured to generate a pulse-width modulation (PWM) signal based on the phase shift to control the RF inverter (102) ([0027]-[0029], [0034]), wherein the RF inverter controller (312) includes a PWM module (323) that further adjusts the PWM signal based on feedback from the hardware compensator (322), ([0028]).
Regarding claim 5, Friedrichs (Figure 3) further discloses wherein the software compensator (321) includes a state machine (314) configured to select different operational modes based on inputs received from a user interface ([0026], [0034], [0039]).
Regarding claim 6, Friedrichs (Figure 3) further discloses wherein the operational modes include at least one of cutting, coagulating, ablating, or sealing tissue ([0007], [0077]).
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim 2 is/are rejected under 35 U.S.C. 103 as being unpatentable over Friedrichs, as applied to claim 1, and further in view of Goble, (US 6325799).
Regarding claim 2, Friedrichs fails to teach wherein the RF inverter includes a resonant tank circuit configured to tune the electrosurgical waveform to match impedance characteristics of a target tissue. However, Goble teaches an electrosurgical generator comprising an output stage including a resonant tank circuit configured to tune the electrosurgical waveform to match impedance characteristics of a target tissue. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Friedrichs to include a resonant tank circuit configured to tune the electrosurgical waveform to match impedance characteristics of a target tissue, as taught by Goble, because the modification would minimize harmonics in the output stage (Goble; Col. 5, lines 36-43).
Claims 3-4 is/are rejected under 35 U.S.C. 103 as being unpatentable over Friedrichs, as applied to claim 1, and further in view of Gilbert, (US 20120265195).
Regarding claim 3, Friedrichs fails to teach wherein the DMAC further comprises a set of analog-to-digital converters (ADCs) configured to digitize measured value of the parameter the electrosurgical waveform. However, Gilbert teaches an electrosurgical generator including a plurality of analog-to-digital converters, ADCs (215), configured to digitally sample sensed voltage and current waveforms ([0039]). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Friedrichs to include a set of analog-to-digital converters (ADCs) configured to digitize measured value of the parameter the electrosurgical waveform, as taught by Gilbert, because the modification would provide a means for converting analog signal to digital signals (Gilbert, [0039]) so that analog sensors may be used with the device. Furthermore, the DMAC of the modified device would be coupled to the plurality of ADCs since it requires the sampled waveforms from the plurality of ADCs.
Regarding claim 4, Friedrichs fails to teach filters configured to filter sensed voltage and current of the electrosurgical waveform to provide first and second path data. However, Gilbert teaches (Figure 2) a controller having a signal processor (DSP) which is configured to decimate and filter sensed voltage and current waveforms of an electrosurgical waveforms to provide first and second path data through a polyphase filter and decimator ([0011]). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Friedrichs to include the polyphaser filter and decimator in the signal processor, as taught by Gilbert, because the modification would provide filtering and decimation as a combined function within the signal processor (Gilbert, [0011]) to provide usable data paths efficiently.
Claim 7-15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Friedrichs, as applied to claim 1 above, and further in view of Wham et al., (US 8303580; hereinafter Wham).
Regarding claim 7, Friedrichs fails to teach wherein the hardware compensator includes a phase gain scheduler configured to calculate a phase gain and adjust the phase shift in response to deviations between the measured value and the desired value. However, Wham teaches a compensator which includes: a phase gain scheduler configured to calculate a phase gain (see current/voltage control gain multiplier), (Col. 11, lines 14-36). Furthermore the compensation is done in the PID compensator by multiplying the gains by the PID values (Col. 17, 11-18). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Friedrichs to include a phase gain scheduler in order to multiply the PID values, as taught by Wham because the modification would modulate the PID gains during a procedure in virtual real-time based on the input signals (Wham; Col. 17, lines 11-18) to provide efficient control of the signal.
Regarding claim 8, Friedrichs/Wham further teaches wherein the phase gain scheduler (Wham; see current/voltage control gain multiplier) further executes a limit function (Wham; limit algorithm) to maintain the phase shift within a predetermined range (Wham; Col. 15, lines 52-65).
Regarding claim 9, Friedrichs/Wham further teaches wherein the phase gain scheduler (Wham; see current/voltage control gain multiplier) further executes a fitting curve (Wham; control curve) component to adjust the phase gain, the fitting curve (Wham; control curve) component configured to determine phase adjustments based on an inverse relationship between the measured value and the desired value (Wham; Col. 16, line 33 – Col. 17, line 18).
Regarding claim 10, Friedrichs/Wham further teaches wherein the fitting curve (control curve) component includes a lookup table (configuration data) to rapidly access pre-calculated phase adjustments corresponding to specific values of measured and desired parameters (Col. 14, lines 36-48; Col. 16, lines 32-55).
Regarding claim 11, Friedrichs/Wham further teaches wherein the phase gain scheduler (Wham; see current/voltage control gain multiplier) uses a limit function (Wham; limit algorithm) to restrict the phase shift, the limit function (Wham; limit algorithm) employing an error calculator that adjusts the phase shift based on a linear interpolation between measured and desired values (Wham; Col. 15, lines 52-65).
Regarding claim 12, Friedrichs/Wham further teaches wherein the error calculator uses an inverse lookup table (Wham; configuration data) to calculate real-time adjustments of the phase shift by reversing calculated phase deviations (Wham; Col. 16, line 33 – Col. 17, line 18).
Regarding claim 13, Friedrichs/Wham further teaches wherein the phase gain scheduler (Wham; see current/voltage control gain multiplier) adjusts the phase shift using a multiphase limiter algorithm (Wham; limit algorithm), (Wham; Col. 16, lines 10-22).
Regarding claim 14, Friedrichs/Wham further teaches wherein the phase gain scheduler (Wham; see current/voltage control gain multiplier) adjusts the phase shift incrementally based on successive approximations (Wham; Col. 11, lines 14-36: loop control).
Regarding claim 15, Friedrichs/Wham further teaches wherein the phase gain scheduler (Wham; see current/voltage control gain multiplier) is configured to refine phase shift adjustments by employing a set of proportional-integral-derivative (PID) controllers to stabilize the electrosurgical waveform in response to dynamic changes in tissue impedance (Wham; Col. 11, line 14 – Col. 12, line 12).
Response to Arguments
Applicant’s arguments, filed 07/08/2026, with respect to the rejection(s) of claim(s) 1 under 35 U.S.C. 103 have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of a new interpretation of the Friedrichs reference. Under the new interpretation, Friedrichs discloses that the RF inverter controller (312) includes a PWM module (323) that further adjusts the PWM signal based on feedback from the hardware compensator (322), ([0028]). Therefore, Friedrichs teaches at least independent claim 1.
Conclusion
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/C.C.P./Examiner, Art Unit 3794
/EUN HWA KIM/Primary Examiner, Art Unit 3794
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