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 .
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 21-40 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-31 of U.S. Patent No. US 9675739 B2, claims 1-20 of US Patent US 9987404 B2, claims 1-20 of US Patent US 10737005 B2, claims 1-20 of US Patent US 11633586 B2, and claims 1-19 of US Patent US 11998729 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because the application claims read on the patent claims.
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 factual inquiries 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.
Claim(s) 21-40 is/are rejected under 35 U.S.C. 103 as being unpatentable over Campbell (US 9138518 B2) in view of Muller (US 2015/0290371 A1).
Regarding claim 21, Campbell discloses a catheter pump system (eg. Fig. 1), comprising: a catheter assembly including an impeller assembly adapted to be percutaneously insertable within a vasculature of a heart patient (eg. Col, 4, Ln. 20-39); and a motor causing the impeller assembly to pump blood in a desired location in the vasculature (eg. Col. 3, Ln. 29 – Col. 5, Ln. 17), wherein the motor includes: a stator (eg. Col. 4, Ln. 39-51, Col. 5, Ln. 3-17, Col. 15, Ln. 35-46, magnet Fig. 11-12); a rotor disposed radially with the stator assembly (eg. Fig. 11-12 Col. 4, Ln. 39-51, Col. 5, Ln. 3-17, Col. 15, Ln. 35-46, rotor 470): an output shaft (Eg. Col. 15, Ln. 25-46); but does not disclose at least one damper configured to reduce a transmission of vibration while the percutaneously insertable impeller assembly is pumping blood in the performance of a heart procedure.
Muller teaches a catheter pump system that has a damper between the drive and the drive member to reduce noise (eg. Para. 19-21, 80-81).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have combined the invention of Campbell with the dampener as taught by Muller since both references are related to catheter pumps and the dampener is used to provide the predictable result of reducing the noise at and around the connection between the drive and drive members (eg. Muller, Para. 20).
Regarding claim 22, the combined invention of Campbell and Muller discloses the motor further includes a housing and at least one mounting flange coupled to the housing, the at least one damper provided on the at least one mounting flange (eg. Campbell, Col. 15, Ln. 25-35, Col. 21, Ln. 28 – Col. 22, Ln. 5, drive housing, Muller, Para. 69, 74-76).
Regarding claim 23, the combined invention of Campbell and Muller discloses the at least one mounting flange includes an inner flange portion and an outer flange portion, the inner flange portion radially spaced apart from the outer flange portion and defining an annular gap (eg. Campbell, Col. 8, Ln. 66 – Col. 9, Ln. 36, annular space 274 with outer surface 278, Muller, Para. 19-21, 80-81 disposed between separate housings and radially outside housing as an O-ring).
Regarding claim 24, the combined invention of Campbell and Muller discloses the at least one damper is disposed within the annular gap (eg. Muller, Para. 19-21, 80-81, O-ring, it would have been obvious to one of ordinary skill to have modified the O-rings to be in an annular ring to provide the predictable result of dampening vibrations between any parts as desired).
Regarding claim 25, the combined invention of Campbell and Muller discloses at least one damper includes a rubber material (eg. Muller, Para. 81 visco-elastic or elastic polymer).
Regarding claim 26, the combined invention of Campbell and Muller discloses the at least one damper includes a elastomer material (eg. Muller, Para. 81 visco-elastic or elastic polymer).
Regarding claim 27, the combined invention of Campbell and Muller discloses at least one damper includes a polymer material (eg. Muller, Para. 81 visco-elastic or elastic polymer).
Regarding claim 28, the combined invention of Campbell and Muller discloses at least one damper includes a spring (eg. Muller, Para. 81 visco-elastic or elastic polymer, a spring acts like an elastic material and would be an obvious alternative).
Regarding claim 29, the combined invention of Campbell and Muller discloses the at least one damper includes a grommet disposed about the catheter assembly in a spaced relation from the at least one mounting flange, wherein the grommet reduces mechanical vibration of a drive shaft for the percutaneously insertable impeller assembly (eg. Muller, Para. 19-21, 80-81, O-ring basically functions as a grommet).
Regarding claim 30, the combined invention of Campbell and Muller discloses at least one damper includes a first damper and second damper spaced apart from one another (eg. Muller, Para. 19-21, 80-81, can be put on multiple locations).
Regarding claim 31, the combined invention of Campbell and Muller discloses the first damper and the second damper are respectively associated with first and second motor mounting flanges eg. Muller, Para. 19-21, 80-81, Muller teaches damper on the cap/housing interface and another around the motor, one of ordinary skill would have been able to rearrange the O rings onto Campbell’s motor mounting structures eg. Col. 15, Ln. 25-35, to provide the predictable result of reducing vibration at each location).
Regarding claim 32, the combined invention of Campbell and Muller discloses the rotor extends between the first and second motor mounting flanges (eg. Campbell, Col. 15, Ln. 25-40, Muller, Para. 85).
Regarding claim 33, the combined invention of Campbell and Muller discloses a flow diverter defining a chamber, and the rotor extending in the chamber (Eg. Col. 9, Ln. 35-50, Col. 21, Ln. 48 – Col. 22, Ln. 55).
Regarding claim 34, the combined invention of Campbell and Muller discloses the first damper and the second damper extend radially in the respective first and second motor mounting flanges (eg. Campbell, Col. 8, Ln. 66 – Col. 9, Ln. 36, annular space 274 with outer surface 278, Muller, Para. 19-21, 80-81 disposed between separate housings and radially outside housing as an O-ring, one of ordinary skill would have been able to put the damper to extend radially in the motor flanges to provide spaced damping).
Regarding claim 35, the combined invention of Campbell and Muller discloses the motor is located outside the vasculature of the heart patient while the percutaneously insertable impeller assembly is pumping blood (eg. Campbell, Col. 4, Ln. 39-51).
Regarding claim 36, the combined invention of Campbell and Muller discloses a drive shaft extending through the catheter assembly, wherein the drive shaft interconnects the motor output shaft and the percutaneously insertable impeller assembly (eg. Col. 4, Ln. 65 – Col. 5, Ln. 17, Col. 13, Ln. 30-51, Col. 31, Ln. 35-65).
Regarding claim 37, the combined invention of Campbell and Muller discloses the at least one damper includes a first damper operable to attenuate a mechanical vibration of the drive shaft (eg. Muller, Para. 19-21, 80-81, the damper is capable of reducing vibration).
Regarding claim 38, the combined invention of Campbell and Muller discloses the first damper is a grommet eg. Muller, Para. 19-21, 80-81, O-ring basically functions as a grommet).
Regarding claim 39, the combined invention of Campbell and Muller discloses at least one damper further includes a second damper operable to reduce a mechanical vibration of the motor (eg. Muller, Para. 19-21, 80-81, the damper is capable of reducing vibration).
Regarding claim 40, the combined invention of Campbell and Muller discloses the second damper reduces a mechanical vibration of a motor housing (eg. Muller, Para. 19-21, 80-81, the damper is capable of reducing vibration).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL J LAU whose telephone number is (571)272-2317. The examiner can normally be reached 8-5:30 PM.
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/MICHAEL J LAU/Examiner, Art Unit 3796
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