DETAILED ACTION
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 amendments received after a Non-Final Rejection on 23 October 2025. Claims 1-2 and 6-12 are currently pending.
Claim Objections
Claim 12 is objected to because of the following informality:
In lines 2-3, it appears that the phrase “at least one virtually spherical or ball-shaped bulges” should read “at least one virtually spherical or ball-shaped bulge.”
Appropriate correction is required.
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.
Claims 1-2 and 6-10 are rejected under 35 U.S.C. 103 as being unpatentable over Nestor et al. (U.S. Patent 4,099,521) in view of Fowler, Jr. (U.S. Patent 5,785,649).
Nestor et al. disclose (as to part of claim 1) a hook arrangement (i.e. arrangement defined by 35 and 36/37/38/39) for a medical retraction system (i.e. system as best seen in Figure 2), having an elongated fixation arrangement (35) capable of connecting the hook arrangement to a retractor frame (22) of a medical retraction system (i.e. system as best seen in Figure 2), wherein the fixation arrangement has a plurality of at least virtually spherical or ball-shaped bulges (35a, see Note below regarding the term “virtually”); and a hook element (e.g. 38), wherein the hook element has on a first side (i.e. side defining 38c) a hook (38c) and on a second side (i.e. side defining 38b) has a connection mechanism (38b), via which the hook element is detachably connectable or connected to the fixation arrangement (see Figure 12, and column 5, lines 39-47), wherein the connection mechanism has an opening (38b), via which a section (35b) of the fixation arrangement can be introduced into the connection mechanism (see Figure 12, and column 5, lines 39-47), and wherein the opening has an at least virtually circular section (i.e. circular section as best seen in Figure 12 and defined by the “slotted opening,” see annotated Figure below and Note below regarding the term “virtually”) and an at least virtually slot-shaped section (i.e. slot-shaped section as best seen in Figure 12 and defined by the “slotted opening,” see annotated Figure below and Note below regarding the term “virtually”), wherein (as to claim 2) the hook element is formed by a rigid material (i.e. metal, see column 5, lines 13-15), wherein (as to claim 6) the fixation arrangement has an extension mechanism (35b), via which the fixation arrangement is detachably connectable or connected to (i.e. via 34b) an extension arrangement (30), wherein (as to claim 7) the hook arrangement is part of a medical retraction system (i.e. system as best seen in Figure 2) having a retractor frame (22); and at least one hook arrangement (i.e. arrangements defined by 35/36, 35/37, 35/38 and 35/39), wherein (as to claim 8) the at least one hook arrangement has a plurality of hook arrangements (i.e. arrangements defined by 35/36, 35/37, 35/38 and 35/39), wherein a hook element (e.g. 38) of a first of the plurality of hook arrangements (e.g. 35/38) has a hook (e.g. 38c) with a first hook shape (i.e. shaped as best seen in Figure 12) and a hook element (e.g. 36) of a second of the plurality of hook arrangements (e.g. 35/36) has a hook (e.g. hook defined by 36c and 36c) with a second hook shape (i.e. shape as best seen in Figure 10) differing from the first hook shape, wherein (as to claim 9) a plurality of hook elements (i.e. 36, 37, 38 and 39) is provided and a fixation arrangement (35) of the at least one hook arrangement is detachably connectable via the connection mechanism optionally to one of the plurality of hook elements (i.e. it is an option for any instance of 35 to be detachably connected to any one of 36, 37, 38 and 39), and wherein (as to claim 10) the at least one hook arrangement is connectable via the respective fixation arrangement detachably to (i.e. via 30) the retractor frame (connections as best seen in Figure 2) (see annotated Figure below, Figures 2 and 9-13, and column 3, line 4 – column 7, line 42).
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Nestor et al. disclose the claimed invention except for wherein (as to the remainder of claim 1) the fixation arrangement is formed by an elastic material.
Fowler, Jr. teach the use of a hook arrangement (33) for a medical retraction system (see Figure 8) having an elongated fixation arrangement (34); and a hook element (11), wherein the fixation arrangement if formed of an elastic material (see column 4, lines 48-62) (see Figures 5-8, and column 4, lines 44-67).
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 Nestor et al. with wherein the fixation arrangement is formed by an elastic material in view of Fowler, Jr. in order to provide an alternative, well-known and obvious fixation arrangement material for holding tissue relative to a frame to yield predictable results. Furthermore, it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice (In re Leshin, 125 USPQ 416).
Note: For examination purposes and in light of the broadest reasonable interpretation, the term “virtually” is being interpreted as for the most part; almost wholly; just about (definition retrieved from https://www.thefreedictionary.com/virtually).
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Nestor et al. (U.S. Patent 4,099,521) in view of Fowler, Jr. (U.S. Patent 5,785,649), as applied to claim 2 above, further in view of O’Malley et al. (U.S. Patent Application Publication 2004/0186356).
Nestor et al, in view of Fowler, Jr. disclose the claimed invention except for wherein the rigid material is plastic.
O’Malley et al. teach the use of a hook arrangement (110) having a fixation arrangement (116) and a hook element (112), wherein the hook arrangement is formed by metal or plastic (see paragraph 0068) (see Figures 26-27, and paragraphs 0064-0068).
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 Nestor et al. in view of Fowler, Jr. with wherein the rigid material is plastic in view of O’Malley et al. in order to provide an alternative, well-known and obvious material for the retraction of tissue to yield predictable results. Furthermore, it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice (In re Leshin, 125 USPQ 416).
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Nestor et al. (U.S. Patent 4,099,521) in view of Fowler, Jr. (U.S. Patent 5,785,649), as applied to claim 1 above, further in view of Harrison et al. (U.S. Patent 6,854,693).
Nestor et al, in view of Fowler, Jr. disclose the claimed invention except for wherein the opening is capable of permitting passage therethrough of at least one virtually spherical or ball-shaped bulges of the plurality of at least virtually spherical or ball-shaped bulges.
Harrison et al. teach the use of an arrangement (50) having an elongated fixation arrangement (10A) formed by an elastic material (see column 2, lines 32-34) and having an at least virtually spherical or ball-shaped bulge (14); and an element (20A) having a first side (i.e. side defining 22) and a second side (i.e. side defining 24) having a connection mechanism (i.e. mechanism defined by 28 and 32), via which the element is detachably connectable or connected to the fixation arrangement (see column 2, lines 58-64), wherein the connection mechanism has an opening (i.e. opening defined by 28 and 32), via which a section (14) of the fixation arrangement can be introduced into the connection mechanism (see Figure 1), wherein the opening has an at least virtually circular section (28, see Note above regarding the term “virtually”) and an at least virtually slot-shaped section (32, see Note above regarding the term “virtually”), and wherein the opening is capable of permitting passage therethrough of the virtually spherical or ball-shaped bulge (see Figures 1 and 3, and column 2, line 24 – column 3, line 21).
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 Nestor et al. in view of Fowler, Jr. with wherein the opening is capable of permitting passage therethrough of at least one virtually spherical or ball-shaped bulges of the plurality of at least virtually spherical or ball-shaped bulges in view of Harrison et al. in order to provide an alternative, well-known and obvious means for allowing for a secure and reversible connection between the fixation arrangement and the hook element to yield predictable results.
Note: It has been held that a prior art reference must either be in the field of the inventor’s endeavor or, if not, then be reasonably pertinent to the particular problem with which the inventor was concerned, in order to be relied upon as a basis for rejection of the claimed invention (see In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992)). In this case, it is the examiner’s position that Harrison et al. is reasonably pertinent to the particular problem with which the inventor was concerned. In light of the current specification, the subject matter of claim 12 appears to be directed toward a secure and reversible connection between the fixation arrangement and the hook element. Since Harrison et al. teach a similar secure and reversible connection, it is deemed analogous art.
Response to Arguments
The applicant's arguments with respect to the Nestor et al. reference have been fully considered but they are not persuasive.
In summary, it appears that the applicant is arguing that the interpreted opening as disclosed by Nestor et al. cannot be considered an opening according to claim 1. The examiner respectfully disagrees. As shown in the annotated Figure above, Nestor et al. does disclose the opening as claimed (i.e. to include at least virtually circular and at least virtually slot-shaped sections). "[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)). Claim 1 only requires that a section of the fixation arrangement be introduced into the connection mechanism via the opening. As recited in the rejections above, Nestor et al. disclose this requirement. For at least claim 1 and outside of the recited limitation, there is no additional requirement for the fixation arrangement to be introduced as argued by the applicant. Therefore, it is the examiner’s position that Nestor et al. (i.e. now in view of Fowler, Jr., O’Malley et al., and Harrison et al.) disclose the claimed invention
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
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