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 .
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.
Claim(s) 25-27, 30-38 and 41 are rejected under 35 U.S.C. 102 (a) (1) as being anticipated by Strobl et al. (US 2016/0270841).
Regarding claim 25 and 38, Strobl discloses an apparatus (fig.2; the ultrasonic surgical device 104), comprising: an end effector (fig.2; end effector 126) comprising an ultrasonic blade (fig.3; blade 151) and a clamp arm (fig.3; clamp arm 155) pivotally movable between a plurality of positions relative to the ultrasonic blade (fig.3); a sensor (fig.3; proximity sensors 191) to generate a signal based on a movement of the clamp arm relative to the ultrasonic blade [0130]; and a control circuit to: receive the signal generated by the sensor; determine a position of the clamp arm from the plurality of positions relative to the ultrasonic blade based on the signal [0086]; and adjust an operating parameter associated with the ultrasonic blade based on the position of the clamp arm [0086].
Regarding claim 26, Strobl discloses the apparatus of claim 25, further comprising a first tube movable relative to a second tube, wherein movement of the first tube relative to the second tube causes the movement of the clamp arm relative to the ultrasonic blade [0043].
Regarding claim 27, Strobl discloses the apparatus of claim 26, further comprising a magnet positioned on the first tube (fig.3; proximity sensor 191), wherein the signal comprises a voltage change based on a motion of the magnet relative to the sensor [0086].
Regarding claim 30, Strobl discloses the apparatus of claim 25, wherein adjustment of the operating parameter is further based on waveform samples stored in a dynamically-updated lookup table [0113].
Regarding claim 31, Strobl discloses the apparatus of claim 25, wherein the operating parameter comprises at least one of a waveform shape, a frequency, or an amplitude of a drive signal output by a generator, or combinations thereof (fig.26, see also [0113]).
Regarding claim 32, Strobl discloses the apparatus of claim 25, further comprising a feedback device, and wherein the control circuit is further to cause the feedback device to provide an indication associated with the adjusted operating parameter [0064].
Regarding claim 33, Strobl discloses the apparatus of claim 32, wherein the feedback device comprises a speaker, and wherein the indication comprises a sound associated with the adjusted operating parameter [0064].
Regarding claim 34, Strobl discloses the apparatus of claim 32, wherein the feedback device comprises a display, and wherein the indication comprises a light associated with the adjusted operating parameter [0064].
Regarding claim 35, Strobl discloses the apparatus of claim 32, wherein the control circuit is to further delay adjustment of the operating parameter of the ultrasonic blade after causing the feedback device to provide the indication [0064].
Regarding claim 36, Strobl discloses the apparatus of claim 25, further comprising a ratcheting device to generate an audible sound associated with operating parameters of the ultrasonic blade [0064].
Regarding claim 37, Strobl discloses the apparatus of claim 25, wherein the control circuit is further to prevent power from being delivered to the end effector in excess of a predetermined threshold [0129].
Regarding claim 41, Strobl discloses the method of claim 38 wherein adjusting the operating parameter is further based on waveform samples stored in a dynamically-updated lookup table (fig.26, see also [0113]).
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.
Claim 25-44 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1-11 of U.S. Patent No. 11,998,230 and claim 1-17 of U.S. Patent No. 11,266,430. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of U.S. Patent No. 11,998,230 and claims of U.S. Patent No. 11,266,430 anticipate the claims of the application. Accordingly, the application claims are not patentably distinct from the patent claims. Here, the more specific patent claims encompass the broader application claims. 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 narrow invention, applicant may not obtain a second patent with a claim for the generic or broader invention without first submitting an appropriate terminal disclaimer.
18/670,238
US 11,998,230
25. An apparatus, comprising: an end effector comprising an ultrasonic blade and a clamp arm pivotally movable between a plurality of positions relative to the ultrasonic blade; a sensor to generate a signal based on a movement of the clamp arm relative to the ultrasonic blade; and a control circuit to: receive the signal generated by the sensor; determine a position of the clamp arm from the plurality of positions relative to the ultrasonic blade based on the signal; and adjust an operating parameter associated with the ultrasonic blade based on the position of the clamp arm.
28. The apparatus of claim 25, wherein determination of the position of the clamp arm is further based on a fit curve of voltage change as a function of the plurality of positions relative to the ultrasonic blade.
1. An apparatus for controlling an end effector comprising a clamp arm, the apparatus comprising: a sensor configured to generate signals in response to movement of a first tube relative to a second tube, the first tube driving movement of the clamp arm of the end effector; and a control circuit configured to: receive a first signal, second signal, and a third signal from the sensor, wherein the first signal, the second signal, and the third signal are associated with positions of the clamp arm of the end effector as it moves; generate a fit curve based on the first signal, the second signal, and the third signal; receive a fourth signal from the sensor, wherein the fourth signal is associated with a current position of the clamp arm of the end effector as it moves; and generate a conclusion associated with a relative position of the clamp arm based on the fourth signal and the generated fit curve.
2. The apparatus of claim 1, wherein the end effector further comprises an ultrasonic blade, and wherein the control circuit is further configured to: determine an impedance of the ultrasonic blade in contact with tissue; and determine a type of the tissue based on the impedance.
18/670,238
US 11,266,430
25. An apparatus, comprising: an end effector comprising an ultrasonic blade and a clamp arm pivotally movable between a plurality of positions relative to the ultrasonic blade; a sensor to generate a signal based on a movement of the clamp arm relative to the ultrasonic blade; and a control circuit to: receive the signal generated by the sensor; determine a position of the clamp arm from the plurality of positions relative to the ultrasonic blade based on the signal; and adjust an operating parameter associated with the ultrasonic blade based on the position of the clamp arm.
1. An apparatus for controlling an end effector, the apparatus comprising: a sensor configured to detect a signal in response to movement of a first tube relative to a second tube, the first tube driving movement of a clamp arm of the end effector; a processor configured to: determine a clamp arm position of the end effector relative to an ultrasonic blade of the end effector based on the signal; determine a thickness of a tissue based on the clamp arm position; determine an impedance of the ultrasonic blade in contact with the tissue; and determine a type of the tissue based on the impedance; and a transducer configured to dynamically adjust a power output to the ultrasonic blade of the end effector during an ultrasonic treatment, to adjust a tissue cut based on the thickness and the type of the tissue.
26. The apparatus of claim 25, further comprising a first tube movable relative to a second tube, wherein movement of the first tube relative to the second tube causes the movement of the clamp arm relative to the ultrasonic blade.
2. The apparatus of claim 1, wherein the first tube is an inner tube and the second tube is an outer tube, the outer tube being moveable relative to the inner tube, the inner tube being static relative to the outer tube.
27. The apparatus of claim 26, further comprising a magnet positioned on the first tube, wherein the signal comprises a voltage change based on a motion of the magnet relative to the sensor.
4. The apparatus of claim 1, further comprising: a magnet positioned on the first tube; and wherein the sensor is a Hall-effect sensor used to detect the signal based on a position of the magnet.
42. An apparatus for controlling an end effector, the apparatus comprising: a sensor configured to detect a signal in response to movement of a first tube relative to a second tube, the first tube driving movement of a clamp arm of the end effector; a processor configured to: determine a clamp arm position of the end effector relative to an ultrasonic blade of the end effector based on the signal; determine a thickness of a tissue based on the clamp arm position; determine an impedance of tissue in contact with the ultrasonic blade; and determine a type of the tissue based on the impedance; and a transducer configured to dynamically adjust a power output to the ultrasonic blade of the end effector during an ultrasonic treatment, to adjust a tissue cut based on the thickness and the type of the tissue.
12. A control system for an ultrasonic surgical instrument, the ultrasonic surgical instrument comprising an ultrasonic blade, a clamp arm, a first tube movable relative to a second tube to cause the clamp arm to pivot towards the ultrasonic blade, and a transducer coupled to the ultrasonic blade and configured to ultrasonically oscillate the ultrasonic blade, the control system comprising: a sensor configured to detect a position of the first tube relative to the second tube; and a control circuit coupled to the sensor, the control circuit configured to: monitor the sensor to sense the position of the first tube; determine a clamp arm position of an end effector relative to an ultrasonic blade of the end effector based on the position of the first tube; determine a thickness of a tissue between the clamp arm and the ultrasonic blade according to the clamp arm position; determine an impedance of the ultrasonic blade in contact with the tissue; determine a type of the tissue based on the impedance; and dynamically adjust a power output via the transducer during an ultrasonic treatment, to adjust a tissue cut according to the thickness and the type of the tissue.
Allowable Subject Matter
Claim 28-29 and 39-40 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Claim 42-44 would be allowable if rewritten or amended to overcome nonstatutory double patenting rejection, set forth in this Office action.
Strobl does not disclose wherein determination of the position of the clamp arm is further based on a fit curve of voltage change as a function of the plurality of positions relative to the ultrasonic blade.
The Examiner has failed to identify any reference which that, either alone or in combination discloses, suggests or renders obvious of wherein determination of the position of the clamp arm is further based on a fit curve of voltage change as a function of the plurality of positions relative to the ultrasonic blade while also teaching each and every limitation set forth in independent claims.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TIGIST S DEMIE whose telephone number is (571)270-5345. The examiner can normally be reached Monday-Friday 8am-5Pm.
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/TIGIST S DEMIE/Primary Examiner, Art Unit 3794
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