DETAILED ACTION
Note: The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . This action is responsive to the preliminary amendments received on 10 May 2024. Claims 1-3, 5-11, 13-14, 17, 20, 26 and 28-32 are currently pending.
Priority
Applicant’s claim for the benefit of a prior-filed application under 35 U.S.C. 119(e) or under 35 U.S.C. 120, 121, 365(c), or 386(c) is acknowledged. Acknowledgment is made of applicant’s claim for foreign priority under 35 U.S.C. 119 (a)-(d). Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Drawings
The drawings received on 10 May 2024 are accepted by the examiner.
Claim Objections
Claim 1 is objected to because of the following informalities:
In lines 1-2, it appears that the phrase “the larynx” should read “a larynx.”
In line 8, it appears that the phrase “the axis” should read “an axis.”
Claim 9 is objected to because of the following informalities:
In line 2, it appears that the phrase “the end of the pen light” should read “an end of the penlight.”
Claim 13 is objected to because of the following informality:
In line 2, it appears that the phrase “the cross-sectional profile” should read “a cross-sectional profile.”
Claim 14 is objected to because of the following informality:
In line 3, it appears that the phrase “the vocal chords” should read “vocal chords.”
Claim 17 is objected to because of the following informalities:
In lines 1-2, it appears that the phrase “the cross-sectional profile” should read “a cross-sectional profile.”
In line 3, it appears that the phrase “the opening of the vocal chords” should read “an opening of vocal chords.”
Claim 20 is objected to because of the following informalities:
In line 1, it appears that the phrase “the mid-point” should read “a mid-point.”
In line 2, it appears that the phrase “the blade of the probe the cross sectional profile” should read “the blade portion of the probe the cross-sectional profile.”
Claim 26 is objected to because of the following informality:
In line 5, it appears that the phrase “the pharynx and/or larynx” should read “a pharynx and/or the larynx.”
Claim 28 is objected to because of the following informalities:
In line 8, it appears that the phrase “the axis” should read “an axis.”
In line 13, it appears that the phrase “the buccal cavity” should read “a buccal cavity.”
In line 14, it appears that the phrase “the roof of the mouth in contact with the hard palate” should read “a roof of a mouth in contact with a hard palate.”
In line 15, it appears that the phrase “the epiglottis, lifting the soft palate” should read “an epiglottis, lifting a soft palate.”
In line 17, it appears that the phrase “the proximal larynx” should read “a proximal larynx.”
In line 19, it appears that the phrase “the small fornix” should read “a small fornix.”
In line 20, it appears that the phrase “the vocal folds between the arytenoid cartilages” should read “vocal folds between arytenoid cartilages.”
Claim 29 is objected to because of the following informality:
In lines 3-4, it appears that the phrase “the open mouth” should read “an open mouth.”
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
Claims 5, 9-11, 13-14, 17, 20, 26 and 28-32 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
Claim 5 recites the limitation "The laryngoscope of claim 4" in line 1. There is insufficient antecedent basis for this limitation in the claim. Since claims 9-11, 13-14, 17, 20 and 26 are dependent upon claim 5, they contain the same issue.
Note: It appears that amending line 1 of claim 5 to read “The laryngoscope of claim 1” would overcome this rejection. For examination purposes, claim 5 will be treated as reading as such.
Regarding claim 9, the phrase "may include" renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention (see MPEP § 2173.05(d)). Since claims 10-11, 13-14, 20 and 26 are dependent upon claim 9, they contain the same issue.
Note: It appears that removing the phrase “wherein the blade portion may include a straight portion extending between the grip portion and a curve start point of the probe” would overcome this rejection. For examination purposes, claim 9 will be treated as such.
Claim 10 recites the limitation "the tip angle of deflection" in lines 1-2. There is insufficient antecedent basis for this limitation in the claim. Since claims 11, 13-14, 20 and 26 are dependent upon claim 10, they contain the same issue.
Note: It appears that amending lines 1-2 of claim 10 to read “a tip angle of deflection” would overcome this rejection. For examination purposes, claim 10 will be treated as such.
Claim 13 recites the limitation "the curved portion" in line 2. There is insufficient antecedent basis for this limitation in the claim. Since claims 14, 20 and 26 are dependent upon claim 13, they contain the same issue.
Note: It appears that amending line 2 of claim 13 to read “a curved portion” would overcome this rejection. For examination purposes, claim 13 will be treated as such.
Claim 17 recites the limitation "the near tip position" in line 2. There is insufficient antecedent basis for this limitation in the claim. Since claim 26 is dependent upon claim 17, it contains the same issue.
Note: It appears that amending line 2 of claim 17 to read “a near tip position” would overcome this rejection. For examination purposes, claim 17 will be treated as such.
Claim 28 recites the limitation "the lubricated tip " in line 19. There is insufficient antecedent basis for this limitation in the claim. Since claims 29-32 are dependent upon claim 28, they contain the same issue.
Note: It appears that amending line 19 of claim 28 to read “lubricating and pushing the distal tip” would overcome this rejection. For examination purposes, claim 28 will be treated as such.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 32 recites the broad recitation “a rodent, or a canine”, and the claim also recites “a feline” (i.e. since claim 32 includes the limitations of claim 31) which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
Note: It appears that amending line 1 of claim 32 to read “method of claim 28” would overcome this rejection. For examination purposes, claim 32 will be treated as such.
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 1-2, 5-8 and 26 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Covington et al. (U.S. Patent 6,569,089).
Covington et al. disclose (as to claim 1) a laryngoscope (see Figure 1) capable of providing a clear and direct view of the larynx during endotracheal intubation of a mammal (see Note below regarding effect of the preamble) comprising a pen grip (10) capable of holding the laryngoscope like a pen (see Note below regarding functional language); an elongated probe (18) attached coaxially with the pen grip, wherein the elongated probe is elongated and tapered (i.e. taper defined at 12) such that a distal tip (12) of the probe has a smallest cross section profile (i.e. smallest profile of 12 as best seen in Figure 1) as compared to any cross section (e.g. section of probe adjacent 20 as best seen in Figure 1) of the probe taken between the tip of the probe and a portion (i.e. portion of probe adjacent 20 as best seen in Figure 1) of the probe proximate the grip, the elongated probe is curved and deflects away from an axis (i.e. axis defined along and through center of 10/18) of probe and pen grip, and the elongated probe is substantially made from a material that transmits light (see column 3, lines 35-41); and a light source (14) that is directed to the probe, wherein light incident on the probe is transmitted or scattered in such a way that the probe becomes illuminated and emits light for aid in intubation (see column 4, lines 30-41), wherein (as to claim 2) the pen grip incorporates the light source (see column 4, lines 42-45), wherein (as to claim 5) the pen grip and light source is a penlight (i.e. the examiner interprets this as capable of being held by a single hand, see column 3, lines 49-53), wherein (as to claim 6) the probe is hollow (i.e. hollow due to 16) and made from plastic or polymer material (see column 4, lines 30-41), wherein (as to claim 7) the probe is capable of being autoclaved (see column 5, lines 39-40), wherein (as to claim 8) the probe is adapted for single use and disposal (see column 5, lines 39-40), and wherein (as to claim 26) the laryngoscope is hollow (i.e. hollow due to 16) and includes a connection (32) capable of connecting a medical gas (see Note below regarding functional language given claim 26 does not add/require additional structure for connecting a medical gas), a passageway (16) through the probe to an aperture (e.g. 38 and 38’) located near the distal tip of the probe capable of communicating the medical gas to the mammal during the use of the laryngoscope (see Note below regarding functional language given claim 26 does not add/require additional structure for communicating the medical gas) (see Figures 1-6, and column 5, line 32 – column 5, line 49).
Note: Regarding functional language, "[a]pparatus 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) (emphasis in original). A claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987) (see MPEP 2114(II)). Regarding the effect of the preamble, statements in the preamble reciting the purpose or intended use of the claimed invention must be evaluated to determine whether or not the recited purpose or intended use results in a structural difference (or, in the case of process claims, manipulative difference) between the claimed invention and the prior art. Furthermore, a preamble generally is not limiting when the claim body describes a structurally complete invention such that deletion of the preamble phrase does not affect the structure or steps of the claimed invention (see MPEP 2111.02(II)).
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.
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.
Claims 3, 9-11, 13-14, 17, 20 and 26 are rejected under 35 U.S.C. 103 as being unpatentable over Covington et al. (U.S. Patent 6,569,089), as applied to claims 2 and 5 above respectively, in view of Geraghty (U.S. Patent 10,010,690).
Regarding claims 3 and 26, Covington et al. disclose wherein (as to claim 26) the laryngoscope is hollow (i.e. hollow due to 16) and includes a connection (32) capable of connecting a medical gas (see Note above regarding functional language given claim 26 does not add/require additional structure for connecting a medical gas), a passageway (16) through the probe to an aperture (e.g. 38 and 38’) located near the distal tip of the probe capable of communicating the medical gas to the mammal during the use of the laryngoscope (see Note above regarding functional language given claim 26 does not add/require additional structure for communicating the medical gas); however, fail to disclose wherein (as to claim 3) the pen grip and the probe are capable of being detached and the pen grip and the probe are attached via frictional forces.
Geraghty teaches the use of a device (10) comprising a first portion (40) capable of being detached from a second portion (22), and attached via frictional forces (see Figure 1, and column 3, lines 56-67).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to construct the invention of Covington et al. with wherein the pen grip and the probe are capable of being detached and the pen grip and the probe are attached via frictional forces in view of Geraghty in order to provide a well-known obvious means for attaching/detaching the probe to/from the pen grip to yield predictable results. Furthermore, it has been held that constructing a formerly integral structure in various elements involves only routine skill in the art (Nerwin v. Erlichman, 168 USPQ 177, 179).
Regarding claims 9 and 26, Covington et al. disclose wherein (as to part of claim 9) the probe has a grip portion (i.e. portion of 18 adjacent 20 as best seen in Figure 1) and a blade portion (i.e. portion of 18 including and extending from 12 as best seen in Figure 1) that extends from the grip portion, wherein (as to claim 26) the laryngoscope is hollow (i.e. hollow due to 16) and includes a connection (32) capable of connecting a medical gas (see Note above regarding functional language given claim 26 does not add/require additional structure for connecting a medical gas), a passageway (16) through the probe to an aperture (e.g. 38 and 38’) located near the distal tip of the probe capable of communicating the medical gas to the mammal during the use of the laryngoscope (see Note above regarding functional language given claim 26 does not add/require additional structure for communicating the medical gas); however, fail to disclose wherein (as to the remainder of claim 9) the grip portion extends over the end of the penlight and attaches via frictional forces.
Geraghty teaches the use of a device (10) comprising a first portion (22) extending over an end (46) of a second portion (40) and attached via frictional forces (see Figure 1, and column 3, lines 56-67).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to construct the invention of Covington et al. with wherein the grip portion extends over the end of the penlight and attaches via frictional forces in view of Geraghty in order to provide a well-known obvious means for attaching/detaching the probe to/from the penlight to yield predictable results. Furthermore, it has been held that constructing a formerly integral structure in various elements involves only routine skill in the art (Nerwin v. Erlichman, 168 USPQ 177, 179).
Regarding claims 10-11, 13-14, 17, 20 and 26, Covington et al. disclose wherein (as to claim 13) cross-sectional profiles of a curved portion (i.e. portion defined between 12 and 20 as best seen in Figure 1) of the blade portion of the probe are elliptical/circular (see Figure 6), wherein (as to claim 26) the laryngoscope is hollow (i.e. hollow due to 16) and includes a connection (32) capable of connecting a medical gas (see Note above regarding functional language given claim 26 does not add/require additional structure for connecting a medical gas), a passageway (16) through the probe to an aperture (e.g. 38 and 38’) located near the distal tip of the probe capable of communicating the medical gas to the mammal during the use of the laryngoscope (see Note above regarding functional language given claim 26 does not add/require additional structure for communicating the medical gas); however, Covington et al. in view of Geraghty fail to disclose wherein (as to claim 10) a tip angle of deflection is between 5 degrees and 90 degrees and wherein the deflection measured in mm is between 5mm and 90mm, wherein (as to claim 11) the tip angle of deflection is between 20 degrees and 70 degrees and wherein the deflection measured in mm is between 20mm and 70mm, wherein (as to claim 14) the cross-sectional profile of the blade portion of the probe at its distal tip is compressed such that it is taller than it is wide to facilitate the probes insertion between the vocal chords or arytenoids of the mammal being intubated (see Note above regarding functional language), wherein (as to claim 17) a cross-sectional profile of the blade portion flares out at a near tip position of the blade portion such that it is wider than it is tall which facilitates the opening of the vocal chords of the mammal being intubated (see Note above regarding functional language), and wherein (as to claim 20) at the mid-point of the blade of the probe the cross sectional profile is flattened dorsally with a greater width than height.
However, Covington et al. set forth that the shape and size of the probe is a result effective variable, wherein the shape and size is customizable depending on the application (see column 3, lines 61-65). Furthermore, Covington et al. disclose wherein the probe is capable of being flexible (i.e. allowing for a variable tip angle of deflection, see column 5, lines 29-30).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to construct the invention of Covington et al. in view of Geraghty with wherein a tip angle of deflection is between 5 degrees and 90 degrees and wherein the deflection measured in mm is between 5mm and 90mm, wherein the tip angle of deflection is between 20 degrees and 70 degrees and wherein the deflection measured in mm is between 20mm and 70mm, wherein the cross-sectional profile of the blade portion of the probe at its distal tip is compressed such that it is taller than it is wide, wherein a cross-sectional profile of the blade portion flares out at a near tip position of the blade portion such that it is wider than it is tall, and wherein at the mid-point of the blade of the probe the cross sectional profile is flattened dorsally with a greater width than height, for the purpose of providing a custom probe shape/size depending on the application, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art (In re Aller, 105 USPQ 233).
Allowable Subject Matter
Claim 28 would be allowable if rewritten or amended to overcome the rejection under 35 U.S.C. 112(b) set forth in this Office action.
Claims 29-32 would be allowable if rewritten to overcome the rejections under 35 U.S.C. 112(b) set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter. Claims 28-32 in the instant application have not been rejected using prior art because no references, or reasonable combination thereof, could be found which disclose, or suggest, providing the currently claimed laryngoscope in combination with the particular method steps as claimed.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LARRY E WAGGLE, JR whose telephone number is (571)270-7110. The examiner can normally be reached TEAP: Monday - Friday (7:45am - 3:45pm).
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/LARRY E WAGGLE, JR/Primary Examiner, Art Unit 3775