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 .
Election/Restrictions
Claims 8-14 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected Invention II, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 01/28/2026.
Claim Rejections - 35 USC § 102
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 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) 1, 5-7, 15, and 18-20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Hogendijk (US 6,080,175).
Regarding claim 1, Hogendijk discloses an apparatus (10, FIG 1-2A, specifically having the distal end 24 of FIG 4C), comprising: a handle (30, FIG 1); a shaft (20) extending distally from the handle (FIG 1 and 2A); a receiver (Proximal portion of the handle shown in FIG 2A which houses spring 46 and button 44. See annotated FIG 2A below) defined in a proximal end of the handle opposite the shaft (FIG 2A), the receiver including a port (Opening in handle body at the proximal most end which 44 passes through); a foot (25, FIG 1 and particularly 4C, col 8 line 45-col 9 line 8) disposed on a distal end of the shaft opposite the handle (FIG 1), the foot including a concave contact surface (See notched head configuration 21 of the foot, wherein the inner surface is concave and shown to contact a body tissue 43), and an opening disposed on the concave contact surface (Opening which allow 48 to be plunged form a retracted position FIG 3A to an extended cutting position 3B), the concave contact surface shaped to accommodate a tendon sheath (as shown in FIG 4C, the contact surface is shaped to accommodate a vessel 43, which is roughly the same shape as a tendon. Therefore it is interpreted as being shaped to accommodate a tendon sheath); and a channel defined from the port to the opening (The combination of FIGs 2A and 3B show there is a continuous channel 26 which receives 48, 42, 44 from the port to the opening), wherein the channel is configured to receive a cutting instrument (shaft lumen received cutting instrument 40, FIGs 1-2A, col 7 lines 12-30) including a tip (48) that is configured to dissect tissue during a surgical procedure (48 is a cutting blade capable of dissecting a tissue. Col 10 lines 11-53 describe using the device for dissection of a vessel).
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Regarding claim 5, Hogendijk discloses the cutting instrument (Examiner notes that the cutting instrument is not a positively recited limitation of the claim and therefore the prior art need not explicitly teach the following limitations) further includes a hub (44) and a tube (42) that is received by the channel (FIG 2a), and wherein the hub becomes seated within the receiver when the channel receives the tube (FIG 2A shows hub 44 seated within the receiver).
Regarding claim 6, Hogendijk discloses the receiver includes a dimensional profile matching a dimensional profile of the hub (FIG 2A shows the received has a widened cavity to slidably receive the flared base at 44a of the hub and has a narrowed diameter at the port to receive the more narrow projection of the hub), such that the tube is prevented from being rotated within the channel when the hub becomes seated within the receiver (The tube 42 is prevented from rotating because of the spring 46 placed within the receiver and because blade tip 48 is flat and only slidably projects out of the opening in one orientation).
Regarding claim 7, Hogendijk discloses opposing lateral ends of the foot extend distally relative to the opening (FIG 4C), and wherein when the hub is seated within the receiver (When button 44 is pushed into the handle such that surface 44a abuts the ledge inside the receiver which defines its maximum extension), the tip of the cutting instrument projects distally out of the opening of the foot (col 7 lines 12-31) and is prevented from extending further from the opening than the opposing lateral ends of the foot (The distal extension of the blade tip is limited by how far the button can be depressed before hitting the inner wall of the receiver. As described in col 8 line 66-col 9 line 8, the concave contact surface brings the tissue into close proximity of the blade which is then plunged into the tissue. This operation does not suggest or require the blade to extend further than the opposing lateral ends of the foot).
Regarding claim 15, Hogendijk discloses an apparatus (10, FIG 1-2A, specifically having the distal end 24 of FIG 4C), comprising: a handle (30, FIG 1); a foot (25, FIG 1 and particularly 4C, col 8 line 45-col 9 line 8) connected to a distal end of the handle (FIG 1, wherein the foot is connected to the handle via shaft 20), the foot including a concave contact surface (See notched head configuration 21 of the foot, wherein the inner surface is concave and shown to contact a body tissue 43), and an opening disposed on the concave contact surface (Opening which allow 48 to be plunged form a retracted position FIG 3A to an extended cutting position 3B), the concave contact surface shaped to accommodate a tendon sheath (as shown in FIG 4C, the contact surface is shaped to accommodate a vessel 43, which is roughly the same shape as a tendon. Therefore it is interpreted as being shaped to accommodate a tendon sheath); a receiver (Proximal portion of the handle shown in FIG 2A which houses spring 46 and button 44) defined in a proximal end of the handle opposite the foot (FIG 2A), the receiver including a port (Opening in handle body at the proximal most end which 44 passes through); and a channel defined from the port to the opening (The combination of FIGs 2A and 3B show there is a continuous channel 26 which receives 48, 42, 44 from the port to the opening), wherein the channel is configured to receive a cutting instrument (shaft lumen received cutting instrument 40, FIGs 1-2A, col 7 lines 12-30) including a tip (48) that is configured to dissect tissue during a surgical procedure (48 is a cutting blade capable of dissecting a tissue. Col 10 lines 11-53 describe using the device for dissection of a vessel).
Regarding claim 18, Hogendijk discloses the cutting instrument (Examiner notes that the cutting instrument is not a positively recited limitation of the claim and therefore the prior art need not explicitly teach the following limitations) further includes a hub (44) and a tube (42) that is received by the channel (FIG 2a), and wherein the hub becomes seated within the receiver when the channel receives the tube (FIG 2A shows hub 44 seated within the receiver).
Regarding claim 19, Hogendijk discloses the receiver includes a dimensional profile matching a dimensional profile of the hub (FIG 2A shows the received has a widened cavity to slidably receive the flared base at 44a of the hub and has a narrowed diameter at the port to receive the more narrow projection of the hub), such that the tube is prevented from being rotated within the channel when the hub becomes seated within the receiver (The tube 42 is prevented from rotating because of the spring 46 placed within the receiver and because blade tip 48 is flat and only slidably projects out of the opening in one orientation).
Regarding claim 20, Hogendijk discloses opposing lateral ends of the foot extend distally relative to the opening (FIG 4C), and wherein when the hub is seated within the receiver (When button 44 is pushed into the handle such that surface 44a abuts the ledge inside the receiver which defines its maximum extension), the tip of the cutting instrument projects distally out of the opening of the foot (col 7 lines 12-31) and is prevented from extending further from the opening than the opposing lateral ends of the foot (The distal extension of the blade tip is limited by how far the button can be depressed before hitting the inner wall of the receiver. As described in col 8 line 66-col 9 line 8, the concave contact surface brings the tissue into close proximity of the blade which is then plunged into the tissue. This operation does not suggest or require the blade to extend further than the opposing lateral ends of the foot).
Claim(s) 1-3 and 15-16 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Cleveland et al. (US 2013/0317437).
Regarding claim 1 and 15, Cleveland discloses an apparatus (70, FIG 7A, [0034-0037]), comprising: a handle (72); a shaft (74) extending distally from the handle (FIG 7A); a receiver (Proximal portion of the handle shown in FIG 7A-7B) defined in a proximal end of the handle opposite the shaft (FIG 7B, [0034]), the receiver including a port (Opening 106, [0035], shown in FIG 7A and 8B-8D); a foot (76, 78) disposed on a distal end of the shaft opposite the handle (FIG 7A), the foot including a concave contact surface (FIG 7A shows the concave shape, best shown in FIGs 6A-6F as illustrated for the previous embodiment), and an opening disposed on the concave contact surface (Opening which allows 86 to be plunged from a retracted position to an extended cutting position, best shown in FIG 6C or 6E), the concave contact surface shaped to accommodate a tendon sheath (as shown in FIG 6A-6F, the contact surface is shaped to accommodate a fibrous tissue 50. It is interpreted as being shaped to accommodate a tendon sheath due to the concave structure which can receive an elongate shaped tissue therein such as a tendon sheath); and a channel defined from the port to the opening (FIG 7B shows the handle and shaft receiving cutting instrument 82 extending from the port on the proximal end of the handle. Although not shown at the distal end for this embodiment, is it understood that blade tip 86 extends out of the concave contact surface of the foot and therefore there is a channel defined continuously from the port to the opening), wherein the channel is configured to receive a cutting instrument (82, FIG 8A, [0034-0036]) including a tip (86) that is configured to dissect tissue during a surgical procedure (86 is a cutting blade capable of dissecting a tissue).
Regarding claims 2-3 and 16, Cleveland et al. discloses the concave contact surface and a rear surface of the handle on the proximal end of the handle are parallel, wherein each of the concave contact surface and the rear surface form a seventy-degree angle relative to a longitudinal axis of the shaft. Cleveland et al. shows in FIG 6A-6F and 12A-12 that the concave contact surface forms a range of angles relative to the longitudinal axis of the shaft, including every degree from 0 to 90 degrees. Cleveland further shows in FIG 7A-7B that the rear surface of the handle at the proximal end has a curvature also ranging from 0 degrees (at bottom or top surfaces of the handle) to 90 degrees (At the rounded proximal most tip), and every angle in between (in order to achieve the curved shape). Thus, at some point along the concave contact surface and the rear surface of the handle, the surfaces form a 70-degree angle relative to a longitudinal axis of the device.
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.
Claim(s) 4 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Cleveland et al. (US 2013/0317437).
Regarding claims 4 and 17, Cleveland et al. discloses the invention substantially as claimed, as set forth above for claims 3 and 16. Cleveland et al. further discloses the concave contact surface is curved (See curvature in Figs 6A-7A), such that the concave contact surface forms a first radius of curvature (Best shown as defined in FIG 6A), wherein the rear surface of the handle forms is curved (FIG 7B), such that the rear surface forms a second radius of curvature (See annotated FIG 7B below).
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Cleveland et al. is silent regarding the first radius of curvature and the second radius of curvature being equivalent.
However, it would have been an obvious matter of design choice to modify the radius of curvature of the handle to match that of the contact surface, since such a modification would have involved a mere change in the form or shape of a component. A change in form or shape is generally recognized as being within the level of ordinary skill in the art. In re Dailey, 149 USPQ47 (CCPA 1976).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BROOKE N LABRANCHE whose telephone number is (571)272-9775. The examiner can normally be reached M-F 8-5.
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/BROOKE LABRANCHE/ Primary Examiner, Art Unit 3771