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 Objections
Claims 13, 3 are objected to because of the following informalities:
Claims 2, 10, 11, 14-19 recite “according to Claim”, should be changed to read “according to claim”
Claims 4-9, 11-13, 15, 17, and 19 recite “according to claim… wherein” should be changed to read “according to claim …, wherein”.
Claim 3 recites “wherein the at least one duct is at least partially formed as a duct or channel which is open towards an outside the valve unit.” Should be changed to recite “wherein the at least one duct is at least partially formed as a duct or channel which is open towards an outside of the valve unit.”
Claim 13 recites “a diffusor insert configured to deflect hydraulic fluid from the at least one passage opening) in a direction towards an outlet disposed in the cavity.” Should be changed to recite “a diffusor insert configured to deflect hydraulic fluid from the at least one passage opening[[)]] in a direction towards an outlet disposed in the cavity”.
Appropriate correction is required.
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 1 and 13 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of copending Application No. 18739484 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because claim 1 of ‘484 anticipates the limitations of claims 1 and 13 of the instant application.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
18748524 claims
18739484 claims
1. Adjustment valve (control valve) for a hydraulic actuator in a flow duct of an orthopaedic device, comprising:
a valve sleeve;
a valve unit (valve member);
wherein the valve sleeve comprises a sleeve wall which forms a receptacle space (receiving space), and at least one radially aligned sleeve wall opening (radially orientated inlet opening) formed in the sleeve wall (the sleeve wall surrounds the receptacle space, therefore if the opening is formed in the receiving space it would be formed in the receptacle space);
wherein the valve unit is disposed within the receptacle space of the valve sleeve so as to be repositionable between a closed position and an open position, and wherein a cavity (hollow space) is formed by the valve unit; wherein the valve unit comprises at least one valve unit wall (at least one valve member wall) which lies opposite the at least one sleeve wall opening of the valve sleeve, wherein at least one passage opening (through-hole opening) is formed in the at least one valve unit wall that in an open position lies opposite a corresponding sleeve wall opening of said at least one sleeve wall opening; and
at least one duct (duct is interpreted as the combination of the outlet and the through hole opening in the open position/ duct is interpreted as the combination of the inlet and the inlet opening) formed in at least one of the sleeve wall and the at least one valve unit wall, wherein if the at least one duct is formed in the sleeve wall the at least one duct opens out at the at least one radially aligned sleeve wall opening (inlet opening opens out into the sleeve wall from the inlet), and wherein if the at least one duct is formed on the at least one valve unit wall the at least one duct opens out at the at least one passage opening (through hole opening opens out to the outlet).
1. A hydraulic actuator for orthopaedic devices, comprising:
a control valve in a flow channel which has an inlet and an outlet for a hydraulic fluid, wherein the control valve comprises
a valve sleeve and a valve member,
wherein the valve sleeve has a sleeve wall which forms a receiving space, wherein at least one radially orientated inlet opening is formed in the receiving space,
wherein the valve member is displaceably arranged inside the receiving space of the valve sleeve between a closed position and an open position, and wherein the valve member opens in the outlet of the flow channel,
wherein the valve member has at least one valve member wall which is opposite the at least one inlet opening, wherein the at least one valve member wall comprises at least one through-opening which is opposite the at least one inlet opening,
wherein the valve member forms a hollow space in which a diffuser insert is arranged, wherein the diffuser insert redirects the hydraulic fluid in a direction towards the outlet.
13. The adjustment valve according to claim 1 wherein a cavity formed by the valve unit opens into an outlet (opening formed by the hollow space), and further comprising a diffusor insert configured to deflect hydraulic fluid from the at least one passage opening in a direction towards an outlet disposed in the cavity.
See claim 1.
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 1-9, 11-16, 18, and 19 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by James (US5571205).
Regarding claim 1, James discloses an adjustment valve for a hydraulic actuator in a flow duct of an orthopaedic device (see Abstract), comprising:
a valve sleeve (piston 24);
a valve unit (valve 23, shaft 36 and lobes 125);
wherein the valve sleeve comprises a sleeve wall (side walls 123, see Fig. 25) which forms a receptacle space (walls 123 define a space that lead to the openings 122, see Fig. 24), and at least one radially aligned sleeve wall opening (122) formed in the sleeve wall (123);
wherein the valve unit is disposed within the receptacle space of the valve sleeve so as to be repositionable between a closed position and an open position (Fig. 25, C11:L38-50), and wherein a cavity (120) is formed by the valve unit (see Fig. 25);
wherein the valve unit comprises at least one valve unit wall (wall of aperture 116, see annotated Fig. 25) which lies opposite the at least one sleeve wall opening (122) of the valve sleeve (see annotated Fig. 25, where the components are on opposite sides of the device), wherein at least one passage opening (see annotated Fig. 25) is formed in the at least one valve unit wall that in an open position lies opposite a corresponding sleeve wall opening of said at least one sleeve wall opening (the passage opening lies opposite the sleeve wall opening 122 by being on opposite sides of the device, where the features are present on both sides of the device; where the open position is interpreted as when the openings 122 are open, C11:L38-50); and
at least one duct formed (duct is formed when the opening 122 is opened, see annotated Fig. 25-2) in at least one of the sleeve wall and the at least one valve unit wall (duct formed in the sleeve wall 123, see annotated Fig. 25-2), wherein if the at least one duct is formed in the sleeve wall (side wall 123 of the piston 24 as shown in Fig. 25; where the duct is formed in the sleeve wall as shown in annotated Fig. 25-2) the at least one duct opens out at the at least one radially aligned sleeve wall opening (the duct opens at the sleeve wall opening 122 by the duct passing through the passage opening and sleeve wall opening 122 as shown in annotated Figs. 25, 25-2), and wherein if the at least one duct is formed on the at least one valve unit wall the at least one duct opens out at the at least one passage opening (this limitation has not been considered, since it is an optimal limitation).
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Regarding claim 2, James discloses the adjustment valve according to claim 1, wherein the at least one duct comprises a first duct (opening formed by 122 and is on the sleeve wall 123) formed on the sleeve wall and a second duct (opening of the passage opening formed on the valve unit wall of valve unit 24) formed on the at least one valve unit wall, wherein the first duct is opposite the second duct (the first duct is opposite to the second duct by being disposed on opposite sides of the sleeve wall opening see Fig. 25).
Regarding claim 3, James discloses the adjustment valve according to claim 1, wherein the at least one duct is at least partially formed as a duct or channel which is open towards an outside the valve unit (see Fig. 25, where the duct formed opens to an outside of the valve unit 24).
Regarding claim 4, James discloses the adjustment valve according to claim 1, wherein the at least one duct is enlarged in a direction towards the at least one radially aligned sleeve wall opening and/or the at least one passage opening (the at least one duct is interpreted as being enlarged when the piston is moved downwardly to open the opening 122, C11:L43-45).
Regarding claim 5, James discloses the adjustment valve according to claim 1 wherein the cavity formed by the valve unit is a closed design with the exception of the at least one passage opening and an access opening (see Fig. 25).
Regarding claim 6, James discloses the adjustment valve according to claim 1, wherein the valve unit is mounted so as to be displaceable in the valve sleeve (C11:L4-5).
Regarding claim 7, James discloses the adjustment valve according to claim 1, wherein the valve unit is coupled to an adjustment device.
Regarding claim 8, James discloses the adjustment valve according to claim 1, wherein the valve sleeve is formed as part of a housing (the valve sleeve piston 24, is formed as part of a housing of the entirety of the push rod 22 and piston 24, see Fig. 24).
Regarding claim 9, James discloses the adjustment valve according to claim 1 wherein the at least one radially aligned sleeve wall opening (122) is designed as a slot (122 is a horizontal slit, C12:L17; see Fig. 25).
Regarding claim 11, James discloses the adjustment valve according to Claim 9 wherein the slot is of a rectilinear design (122 is a horizontal slit, C12:L17; see Fig. 25)
Regarding claim 12, James discloses the adjustment valve according to claim 1 wherein the at least one duct comprises a plurality of ducts (the ducts formed by ports 122 and 124 and the space within the piston chamber, see annotated Fig. 25-2 where the passage openings and one of the ports 122, 124 in combination form a duct) which are formed such that in the closed position there is no fluidic connection between the at least one radially aligned sleeve wall opening (122, 124) and the at least one passage opening (see annotated Fig. 25 from the rejection of claim 1, C11:L36-50).
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Regarding claim 13, James discloses the adjustment valve according to claim 1 wherein the cavity (120) formed by the valve unit (23) opens into an outlet (see Fig. 25), and further comprising a diffusor insert (115) configured to deflect hydraulic fluid from the at least one passage opening (122) (ring seal 115 directs fluid in the cylinder 26, C11:L14-15) in a direction towards an outlet disposed in the cavity (outlet is interpreted as the space within the cylindrical bore 102 of cylinder 26, where the ring seal 115 directs flow in the cavity of cylinder 26 downward, see Fig. 25).
Regarding claim 14, James discloses the adjustment valve according to Claim 13, wherein the diffusor insert is made separately from the valve unit and is in the valve unit (see Fig. 25)
Regarding claim 15, James discloses the adjustment valve according to Claim 13 wherein the at least one passage opening comprises a plurality of passage openings (see annotated Fig. 25-3), and wherein the diffusor insert comprises partition walls (the walls of the ring that form a seal are interpreted as partition walls, C11:L14-15) which are disposed between at least two passage openings of the plurality of passage openings (see annotated Fig. 25-3, where the ring seal 115 is disposed between the passage openings along a longitudinal axis).
Regarding claim 16, James discloses the adjustment valve according to Claim 15, wherein the partition walls terminate in front of the outlet (where the outlet is interpreted as the empty space within the cylindrical bore 102 of cylinder 26 below the ring 115 and openings 124, where the walls of the ring 115 terminate at an end of this outlet within the cylinder 26, see Fig. 115).
Regarding claim 18, James discloses the adjustment valve according to Claim 3, wherein the at least one duct is configured such that a laminar flow is formed in the at least one duct, and wherein there is a proportional correlation between pressure and volumetric flow in the at least one duct (where laminar flow is capable of being formed through the at least one duct, dependent on the velocity of the fluid and the size of the opening which is controllable).
Regarding claim 19, James discloses the adjustment valve according to Claim 3 wherein the at least one duct has a constant width and/or a constant depth (duct is interpreted as space only through the port 122 and therefore would have a constant width, see Fig. 25).
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 of this title, 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.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over James (US5571205) in view of Imaizumi (US5072812).
Regarding claim 10, James discloses the adjustment valve according to Claim 9; yet, does not explicitly disclose wherein the slot is oriented obliquely in relation to a longitudinal extent of the adjustment valve. Imaizumi teaches a piston 17 with at least one passage 21 formed through the piston that is oblique to the longitudinal axis of the piston and connecting to the cylinder chamber. The passages are oriented oblique to form passages without entailing significant reduction in the strength of the piston (C4:L10-15; C5:L55-60) It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the ports 122, 124 of James to be oriented obliquely in relation to the longitudinal axis of the adjustment valve in order to allow the piston of James to allow the ports to be arranged with increased flow cross-sectional area without compromising the structural integrity of the piston side wall (C4:L10-15, C5:L55-60 of Imaizumi).
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over James (US5571205) in view of Smith (US2360731).
Regarding claim 17, James discloses the adjustment valve according to Claim 13; yet, is silent regarding wherein the diffusor insert is designed to taper in a direction towards the outlet. Smith teaches a sealing ring that is wedge shaped to fit within a V-shaped groove and would therefore be tapered in a direction toward the hydraulic chamber (C2:L26-29). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have substituted the V-shaped seal of Smith for the sealing ring of James, since the substitution would have yielded the same predictable result of providing a seal for moving hydraulic fluid in a chamber with no leakage.
Conclusion
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/MIKAIL A MANNAN/Examiner, Art Unit 3774
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