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.
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 26-32 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Onik (US 2018/0028260).
Regarding claims 26-32, Onik discloses a system for skin tightening of various areas including the face ([0005], [0027] [0132]) that includes a medical device with an elongate probe body having a distal treatment portion with a blunt, rounded distal tip configured for subdermal insertion beneath a skin surface that includes a first electrode and a second electrode separated by an insulator portion (3, 4, fig. 15, [0078], where it is noted the electrodes would not work as bipolar electrodes as indicated by the positive and negative signs if they are not separated by an insulator). The system further includes a bipolar RF generator (16, fig. 9, [0066]) connected to the electrodes and a controller (14) coupled to the generator for controlling the bipolar energy delivered to the electrodes. The system of this embodiment does not have suction lumen. The claims recite several functional limitations, that is, limitations that describe how the system can be used. While features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function, because apparatus claims cover what a device is, not what a device does (Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990)). Thus, if a prior art structure is capable of performing the intended use as recited in the preamble, or elsewhere in a claim, then it meets the claim. In this case, the controller of Onik can be used to control RF energy at any number of tissue depths and within any number of treatment sectors. The energy can be delivered to heat collagen-containing subdermal tissue.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The claims recite substantial functional limitations directed to skin treatment. While the reference used in the rejection above is used in skin treatment, a reference like US 6,091,995 to Ingle could have also been used to reject at least several of the claims on the grounds that the system could be used to perform the recited functions (see figs. 1-2, two electrodes on a probe with a blunt tip connected to a generator and controller). See also figures 17-18 of US 2001/0025190 to Weber for another skin tightening device that is directly relevant to the claimed invention.
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 DANIEL WAYNE FOWLER whose telephone number is (571)270-3201. The examiner can normally be reached Monday-Friday (9-5).
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, Joseph Stoklosa can be reached at 571-272-1213. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DANIEL W FOWLER/Primary Examiner, Art Unit 3794
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