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 § 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 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(s) 21-39 is/are rejected under 35 U.S.C. 103 as being unpatentable over Woloszko et al., (US 20140336630; hereinafter Woloszko) in view of Aluru et al., (US 20140200581; hereinafter Aluru).
Regarding claim 21, Woloszko (Figures 1-4) discloses a bipolar electrosurgical wand (102), comprising: a tubular body (106) having a handle (110) at a proximal end, and a return electrode (204), an insulative spacer (200) and an active electrode (202) at a distal end, the insulative spacer (200) supporting and electrically insulating the active electrode (204), ([0040]); an aspiration aperture (206) extending through the spacer (200) distally terminating with an aspiration opening (404); wherein the active electrode (204) includes a single transverse leg (406) that is curved and bridges across the aspiration opening (404), splitting the aspiration opening (404) to define a first and second aspiration opening (openings 402), ([0041]-[0043]).
Woloszko fails to disclose the first and second aspiration openings having different opening sizes to each other, wherein the single transverse leg has a curved longitudinal axis and a length, bridging across the aspiration opening, the single transverse leg free of connections to other portions of the active electrode along a majority of the length. However, Aluru (Figure 3) teaches a bipolar electrosurgical wand (90) comprising a curved active electrode (204) including aspiration openings (230, 231, 232) having different opening sizes to each other ([0011], [0076]). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Woloszko to include the active electrode being curved, wherein the first and second aspiration openings having different opening sizes to each other, as taught by Aluru, because the modification would optimize removal of the by-products and minimize clogging of the fluid aspiration element (Aluru; [0011]). Furthermore, since the modified device would include the active electrode being curved, as taught by Aluru, the single transverse leg of the active electrode disclosed by Woloszko would have a curved longitudinal axis and a length, bridging across the aspiration opening, the single transverse leg free of connections to other portions of the active electrode along a majority of the length.
Regarding claim 22, Woloszko (Figures 1-4) further discloses wherein the active electrode (202) further comprises an outer leg (U-shaped bottom legs 408), shaped in a “U”, that extends along an outer boundary of the first aspiration opening (404), the outer leg (U-shaped bottom legs 408) free of connections to other portions of the active electrode (202) along a majority of a length of the outer leg ([0042]-[0043]).
Regarding claim 23, Woloszko (Figures 1-4) further discloses wherein the active electrode outer leg (U-shaped bottom legs 408) has a first side surface (left-side surface of left bottom portion 408) and a second side surface (right-side surface of right bottom portion 408), defining a maximum width of the active electrode (202) and wherein the active electrode (202) also includes a distal-most edge surface (distal-most edge of bottom U-shaped legs 408) that extends along a continuous curve from the first side surface to the second side surface ([0041]-[0043]).
Regarding claim 24, Woloszko (Figures 1-4) further discloses wherein the outer leg (U-shaped bottom legs 408) and the single transverse leg (406) are coplanar ([0041]-[0043]).
Regarding claim 25, Woloszko (Figures 1-4) further discloses wherein the single transverse leg (406) is symmetrical about a bisecting plane of the tubular body (106) and defines an apex (top half of screen 400) disposed on the bisecting plane, the apex overlying the aspiration aperture (404), ([0041]-[0043]).
Regarding claim 26, Woloszko/Aluru further teaches wherein the apex (Woloszko; top half of screen 400) defines an inner curve side (Woloszko; on both sides of top element 408) of the apex (Woloszko; top half of screen 400) and an outer curve side (Woloszko; outer curve of top half of screen 400) of the apex (Woloszko; top half of screen 400), the outer curve side of the apex defining a boundary of the first aspiration opening (Woloszko; 404), ([0041]-[0043]), the first aspiration opening larger than the second aspiration opening (as taught by Aluru).
Regarding claim 27, Woloszko (Figures 1-4) further discloses wherein the apex (top half of screen 400) defines an inner curve side (on both sides of top element 408) of the apex (top half of screen 400) and an outer curve side (outer curve of top half of screen 400) of the apex (top half of screen 400), the outer curve side (outer curve side of top half of screen 400) of the apex (top half of screen 400) facing an outer “U” shaped leg (-shaped bottom legs 408) of the active electrode (202), ([0041]-[0043]).
Regarding claim 28, Woloszko (Figures 1-4) further discloses wherein the aspiration opening (404) is laterally disposed relative to a central axis of the tubular body (106) distal end ([0041]-[0043]).
Regarding claim 29, Woloszko (Figures 1-4) discloses a bipolar electrosurgical wand (102), comprising: a tubular body (106) having a handle (110) at a proximal end and a return electrode (204), an insulative spacer (200) and an active electrode (202) at a distal end thereof, the insulative spacer (200) supporting and electrically insulating the active electrode (202), ([0040]); an aspiration aperture (206) extending through the spacer (200) terminating with an aspiration opening (404); wherein the active electrode (202) includes a single transverse leg (406) that is symmetrical about a bisecting plane of the tubular body (106), the single transverse leg (406) having an apex (top half of screen 400) that is on the bisecting plane, the apex (top half of screen 400) located over the aspiration aperture, the single transverse leg (406) extending across the spacer aspiration opening (404), splitting the spacer aspiration opening (404) to define a first and second aspiration opening (openings 402), ([0041]-[0043]).
Woloszko fails to disclose the first and second aspiration openings having different opening sizes, the first and second aspiration openings being spaced apart in a proximal-distal direction from each other. However, Aluru (Figure 3) teaches a bipolar electrosurgical wand (90) comprising an curved active electrode (204) including aspiration openings (230, 231, 232) having different opening sizes, wherein the aspiration openings are spaced apart in a proximal-distal direction from each other ([0011], [0076]). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Woloszko to include the first and second aspiration openings having different opening sizes, the first and second aspiration openings being spaced apart in a proximal-distal direction from each other, as taught by Aluru, because the modification would optimize removal of the by-products and minimize clogging of the fluid aspiration element (Aluru; [0011]).
Regarding claim 30, Woloszko (Figures 1-4) further discloses wherein the active electrode (202) further comprises an outer leg (U-shaped bottom legs 408), shaped in a “U”, that extends along an outer boundary of the first aspiration opening (404), ([0042]-[0043]).
Regarding claim 31, Woloszko (Figures 1-4) further discloses wherein the outer leg (U-shaped bottom legs 408) and the transverse leg (406) are coplanar ([0041]-[0043]).
Regarding claim 32, Woloszko (Figures 1-4) further discloses wherein the active electrode outer leg (U-shaped bottom legs 408) has a first side surface (left-side surface of left bottom portion 408) and a second side surface (right-side surface of right bottom portion 408), defining a maximum width of the active electrode (202) and wherein the active electrode (202) also includes a distal-most tip (distal-most edge of bottom U-shaped legs 408) that extends along a continuous curve from the first side surface to the second side surface ([0041]-[0043]).
Regarding claim 33, Woloszko/Aluru further teaches wherein the apex (Woloszko; top half of screen 400) defines an inner curve side (Woloszko; on both sides of top element 408) of the apex (Woloszko; top half of screen 400) and an outer curve side (Woloszko; outer curve of top half of screen 400) of the apex (Woloszko; top half of screen 400), the outer curve side of the apex defining a portion of the first aspiration opening (Woloszko; 404), ([0041]-[0043]), the first aspiration opening larger than the second aspiration opening (as taught by Aluru).
Regarding claim 34, Woloszko (Figures 1-4) further discloses wherein the apex (top half of screen 400) defines an inner curve side (on both sides of top element 408) of the apex (top half of screen 400) and an outer curve side (outer curve of top half of screen 400) of the apex (top half of screen 400), the outer curve side (outer curve side of top half of screen 400) of the apex (top half of screen 400) facing an outer “U” shaped leg (U-shaped bottom legs 408) of the active electrode (202), ([0041]-[0043]).
Regarding claim 35, Woloszko (Figures 1-4) further discloses wherein the aspiration opening (first or second aspiration opening) is offset relative to a central axis of the tubular body (106) distal end ([0041]-[0043]).
Regarding claim 36, Woloszko (Figures 1-4) discloses a bipolar electrosurgical wand (102), comprising: a tubular body (106) having a handle (110) at a proximal end and a return electrode (204), an insulative spacer (200) and an active electrode (202) at a distal end thereof, the insulative spacer (200) supporting and electrically insulating the active electrode (202), ([0040]); an aspiration aperture (206) extending through the spacer (200) terminating with an aspiration opening (404); wherein the active electrode (202) includes; an outer most leg that is “U” shaped (U-shaped bottom portions 408) and has a first side (left side of left bottom portion 408) and a second side (right side of right bottom portion 408), defining a maximum width of the active electrode (202); a single transverse leg (406) that is curved to define an apex (top half of screen 400), the single transverse leg (406) extending across the spacer aspiration opening (404), splitting the spacer aspiration opening (404) to define a first and second aspiration opening (openings 402), the apex (top half of screen 400) defining a boundary of both the first and second aspiration openings (402); and a distal-most edge (distal-most edge of bottom U-shaped legs 408) that extends along a continuous curve from the first side surface to the second side surface ([0041]-[0043]).
Woloszko fails to disclose the first and second aspiration openings having different opening sizes and arranged in a proximal-distal relationship, one of the first and second aspiration openings extending across a majority of a maximum opening size of the aspiration aperture. However, Aluru (Figure 3) teaches a bipolar electrosurgical wand (90) comprising a curved active electrode (204) including aspiration openings (230, 231, 232) having different opening sizes, one of the first and second aspiration openings extending across a majority of a maximum opening size of the aspiration aperture ([0011], [0076]: opening 230 is the widest of the openings). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Woloszko to include the first and second aspiration openings having different opening sizes, one of the first and second aspiration openings extending across a majority of a maximum opening size of the aspiration aperture, as taught by Aluru, because the modification would optimize removal of the by-products and minimize clogging of the fluid aspiration element (Aluru; [0011]).
Regarding claim 37, Woloszko (Figures 1-4) further discloses wherein the outer leg (U-shaped bottom legs 408) and the transverse leg (406) extend along a common plane to each other ([0041]-[0043]).
Regarding claim 38, Woloszko/Aluru further teaches wherein the apex (Woloszko; top half of screen 400) defines an inner curve side (Woloszko; on both sides of top element 408) of the apex (Woloszko; top half of screen 400) and an outer curve side (Wolozko; outer curve of top half of screen 400) of the apex (Wolozko; top half of screen 400), the apex (Woloszko; top half of screen 400) located over the aspiration aperture (Woloszko; 404) and the outer curve side of the apex defining a boundary of the first aspiration opening (Wolozko; 402), ([0041]-[0043]), the first aspiration opening larger than the second aspiration opening (as taught by Aluru).
Regarding claim 39, Woloszko (Figures 1-4) further discloses wherein the apex (top half of screen 400) defines an inner curve side (on both sides of top element 408) of the apex (top half of screen 400) and an outer curve side (outer curve of top half of screen 400) of the apex (top half of screen 400), the outer curve side (outer curve side of top half of screen 400) of the apex (top half of screen 400) facing an outer “U” shaped leg (U-shaped bottom legs 408) of the active electrode (202), ([0041]-[0043]).
Response to Arguments
Applicant's arguments filed 06/30/2026 have been fully considered.
As an initial matter, Examiner notes that the amendments and arguments are sufficient to overcome the provisional nonstatutory double patenting rejections of claims 21, 29, and 36.
Applicant’s arguments directed to the newly amended limitations of claims 21, 29, and 26 have been fully considered and are persuasive. Therefore, the rejection(s) has/have been withdrawn. However, upon further consideration, a new ground(s) of rejection is/are made in view of a new interpretation of the Aluru reference. Under the new interpretation, Aluru teaches the active electrode having a curved shape and the first and second aspiration openings having different opening sizes being spaced apart in a proximal-distal direction from each other. Therefore, the Woloszko/Aluru combination, under the new interpretation, teaches the invention as claimed at least in amended claims 21, 29, and 36.
Conclusion
THIS ACTION IS MADE FINAL. 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.
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/C.C.P./Examiner, Art Unit 3794
/EUN HWA KIM/Primary Examiner, Art Unit 3794
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