DETAILED ACTION
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
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.
Claim(s) 1-5,6,9-14,19-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hogendijk U.S Pat 6,080,175.
Claim 1: Hogendijk discloses a surgical device as best seen in figure 2a comprising: a handle 30 having a first end and an opposite second end; an elongated body 20 having a first portion and an opposite second portion, the first portion of the elongated body extending outwardly from the second end of the handle; a suction conduit (vacuum hose at 56) operably coupled along the first end of the handle, the suction conduit configured to deliver a vacuum air flow through the handle and the elongated body to draw fluid, tissue, or other debris toward the elongated body; and a suction control (a vacuum control assembly at 50) disposed between the first end and the second end of the handle, the suction control operable to adjust a flow rate of the vacuum air flow delivered through the handle and the elongated body, but is silent regarding a gripper having at least a portion thereof extending outwardly from a distal end face of the second portion of the elongated body; an actuator disposed between the first end and the second end of the handle, the actuator operably coupled to the gripper, wherein the actuator is operable to control a position of the gripper. However, Hogendijk, in another embodiment, figures 16-18 does teach a gripper (gripper assembly 536/538, see col. 14, lines 54-63) having at least a portion thereof extending outwardly from a distal end face of the second portion of the elongated body; an actuator 550 disposed between the first end and the second end of the handle 530, the actuator operably coupled to the gripper. It would have been obvious to one having ordinary skill in the art at the time the invention was made to modify Hogendijk, figure 2a with a gripper having at least a portion thereof extending outwardly from a distal end face of the second portion of the elongated body; an actuator disposed between the first end and the second end of the handle, the actuator operably coupled to the gripper, wherein the actuator is operable to control a position of the gripper, in other embodiment, figures 16-18, in order to provide a better grasping the blood vessel during the operation.
Claims 2,9-10: Hogendijk discloses further comprising a connector 54 disposed on the first end of the handle, wherein the suction conduit 56 is removably coupled to the connector; wherein the suction control 50, fig. 2a further includes a suction aperture (it is noted that an open area wherein the hose 56 that connects to vacuum control device 50) formed on the handle, and wherein the flow rate of the vacuum air flow through the elongated body is adjustable based on an obstruction of the suction aperture; wherein the actuator 44 is disposed between the suction control 56 and the second end of the handle 30.
Claims 3-6: Hogendijk teaches wherein the gripper includes a first gripper 536 segment and a second gripper segment 538, in fig. 18, and wherein the actuator 550 is operable to move the gripper into an open position, whereat the first gripper segment is spaced apart from the second gripper segment, and wherein the actuator is operable to move the gripper into a closed position, whereat the first gripper segment contacts the second gripper segment., wherein the vacuum 56 air flow through the elongated body flows through a first pathway when the gripper is in the open position, and wherein the vacuum air flow through the elongated body flows through a second pathway when the gripper is in the closed position (it is noted that the gripper assembly 536 is designed to replace the function of the vacuum described above, this embodiment may further include vacuum as described above for purposes of suctioning, etc. Further, the instrument 500 may include irrigation capability using any of the previously described mechanisms for delivering irrigation fluids, see col. 15, lines 53-59); wherein the vacuum 56 air flow through the elongated body flows between the first gripper segment 536 and the second gripper segment 538 when the gripper is in the open position., the gripper including a first gripper segment and a second gripper segment movable relative to another, wherein the first gripper segment includes a first plurality of grip elements formed on a first surface thereof, and the second gripper segment includes a second plurality of grip elements formed on a second surface thereof, wherein the first and second surfaces face one another as best seen in fig. 18.
Claims 9-10, 13: Hogendijk discloses wherein the suction control 50 further includes a suction aperture formed on the handle 30, and wherein the flow rate of the vacuum air flow through the elongated body is adjustable based on an obstruction of the suction aperture see fig. 2a., wherein the actuator 44 is disposed between the suction control 56 and the second end of the handle; wherein the actuator includes an element 44, fig. 2a extending outwardly from an exterior surface of the handle, the element movable between a first position and a second position, and wherein the gripper is in an open position when the element is in the first position and a closed position when the element is in the second position (see col. 7, lines 21-30).
Claims 11-12, 14: Hogendijk teaches wherein the actuator extends outwardly from an exterior surface of the handle and includes a line (a push rod 42) coupled to the gripper (a cutting detent 48, see col. 4, lines 55-57), and wherein the actuator is manually actuatable to adjust the line to control the position of the gripper., wherein the gripper automatically returns to an initial position in response to a release of the actuator; wherein the gripper extends into a portion of the elongated body as best seen in fig. 18.
Claims 19-20: Hogendijk discloses wherein the elongated body 20 is formed as an integral portion of the handle 30., wherein the elongated body is removably coupled to the second end of the handle as best seen in fig. 2a.
Allowable Subject Matter
Claims 7-8,15-18 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 7: The prior arts fail to disclose or reasonably suggest the claimed including the elongated body includes a first suction passage and a second suction passage for the vacuum air flow, and wherein when the gripper is in a first position, the first suction passage is open and the second suction passage is closed, and wherein when the gripper is in a second position, the first suction passage is closed and the second suction passage is open. Claim 8 is also allowed by virtue of it decency from claim 7.
Claim 15: The prior arts fail to disclose or reasonably suggest the claimed including the elongated body further includes an interior conduit and an exterior conduit surrounding the interior conduit, wherein the interior conduit includes an interior suction passage and the exterior conduit includes an exterior suction passage for the vacuum air flow through the elongated body. Claims 16-18 are also allowed by virtue of their dependency from claim 15.
Conclusion
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/VI X NGUYEN/Primary Examiner, Art Unit 3771