CTNF 18/810,407 CTNF 95418 DETAILED ACTION Notice of Pre-AIA or AIA Status 07-03-aia AIA 15-10-aia The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA. 07-06 AIA 15-10-15 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 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. Status of the Claims The current office action is made responsive to claims filed 08/20/2024. Claims 1-15 are pending. A complete action on the merits appears below. Claim Rejections - 35 USC § 103 07-20-aia AIA 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. 07-23-aia AIA The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows: 1. Determining the scope and contents of the prior art. 2. Ascertaining the differences between the prior art and the claims at issue. 3. Resolving the level of ordinary skill in the pertinent art. 4. Considering objective evidence present in the application indicating obviousness or nonobviousness. 07-21-aia AIA Claim 1, 3-4, 11-12, and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Orszulak (US 20090248003 A1) in view of Yates (US 20170000554 A1) . Regarding claim 11, Orszulak teaches a surgical instrument configured to operate in a first activation mode associated with radio frequency (RF) energy and a second activation mode, the surgical instrument (Abstract, [0008]) comprising: a processor (Fig. 2; controller 24 ) configured to: monitor first data from a first data source([0029] discusses the sense processor as providing signals representative of tissue and/or energy properties to the controller) and second data from a second data source ([0030] discusses the controller as receiving information, such as RF input signals, from the PSP), wherein the first data and the second data are each at least one of electrical data ([0029]- [0030]), mechanical data, or visual data; detect an actuation event of a button of the surgical instrument ([0025], [0027]); determine, in response to the actuation event, whether to enable activation mode selection based on the first data and the second data ([0026]- [0027], [0029]); and select, based on the first data and the second data, an activation mode from the first activation mode and the second activation mode ([0037]- [0038]). However, Orszulak fails to teach the second activation mode as being associated with ultrasonic energy. Yates teaches a device which provides energy in a mode to seal ([0238]) Yates further teaches the energy which is provided to seal as being ultrasonic energy ([0238]). Therefore it would have been obvious to a person having ordinary skill in the art before the effective filing date to have incorporated the energy which seals tissue as being ultrasonic energy as is taught by Yates, into the energy which is provided in a mode to seal tissue as is taught by Orszulak, to produce the predictable result of sealing tissue using a known tissue sealing energy, such as ultrasonic energy, as is taught by Yates, as it has been held that the incorporation and/or combination of prior art elements according to known methods to yield predictable results is an obvious modification. MPEP 2141(III). Regarding claim 12, The surgical instrument of claim 11,wherein determining whether to enable activation mode selection further comprises: determining whether the first data and the second data are consistent (the term “consistent” is defined by Merriam-Webster online dictionary as being “free from … contradiction,” therefore, [0036] which teaches the controller as receiving RF input signals which correspond with a selected mode and receiving information from the sense processor, and determining that the sense processor information is within ranges which are to a specific mode, teaches this language as broadly as is currently claimed), wherein: upon a determination that the first data and the second data are consistent, activation mode selection is enabled ([0036]), and upon a determination that the first data and the second data are inconsistent, activation mode selection is disabled ([0008], [0036]). Regarding claim 14, Orszulak teaches the surgical instrument of claim 11,wherein the processor is further configured to: deliver, in response to the determination to enable activation mode selection, an energy of an energy output modality associated with the selected activation mode ([0036]- [0038]). Regarding claims 1 and 3-4, the recited methods are considered inherent as being taught by the apparatus as currently rejected above . 07-21-aia AIA Claim 2, 9-10, and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Orszulak (US 20090248003 A1) in view of Yates (US 20170000554 A1) further in view of Messerly (US 20210196345 A1) . Regarding claim 15, Orszulak teaches the surgical instrument of claim 11. However, Orszulak fails to teach the surgical instrument ,wherein the processor is further configured to: provide, in response to a determination to disable activation mode selection, an indication that an activation mode is not selected; and provide, in response to a determination to enable activation mode selection, an indication of the selected activation mode. Messerly teaches a surgical instrument having a user interface and an activation button to select an energy mode (Abstract). Messerly further teaches the energy mode being displayed on a visual indicator to provide feedback to the user concerning the mode or other parameters ([0122]). Therefore it would have been obvious to a person having ordinary skill in the art before the effective filing date to have incorporated the use of a visual indicator, as is taught by Messerly, into the instrument which provide a selected mode of energy delivery to patient tissue as is taught by Orszulak, to produce the predictable result of providing feedback to the user concerning the mode or other parameter, as is taught by Messerly, as it has been held that the incorporation and/or combination of prior art elements according to known methods to yield predictable results is an obvious modification. MPEP 2141(III). Regarding claims 2 and 9-10, the recited methods are considered inherent as being taught by the apparatus as currently rejected above . 07-21-aia AIA Claim 6 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Orszulak (US 20090248003 A1) in view of Yates (US 20170000554 A1) further in view of Batchelor (US 20200352629 A1) . Regarding claim 13, Orszulak teaches the surgical instrument of claim 11. However, Orszulak fails to teach the surgical instrument, wherein determining whether to enable activation mode selection further comprises: determining whether the data is complete, wherein: upon a determination that the data is complete, activation mode selection is enabled, and upon a determination that the data is incomplete, activation mode selection is disabled. In accordance with the above rejection, Orszulak teaches the data as being first data and second data. Batchelor teaches controlling energy delivery of a medical device based on electrical measurements ([0218]). Batchelor further teaches the measurement as being based on if the information has been interrupted ([0218]). Therefore it would have been obvious to a person having ordinary skill in the art before the effective filing date to have incorporated the known use of controlling a treatment based on the electrical measurements of the circuit, as is taught by Batchelor, into the system which controls a treatment based on electrical measurements as is taught by Orszulak, to produce the predictable result of controlling a treatment based on electrical measurements as is taught by Batchelor, as it has been held that the incorporation and/or combination of prior art elements according to known methods to yield predictable results is an obvious modification. MPEP 2141(III). Regarding claim 6, the recited methods are considered inherent as being taught by the apparatus as currently rejected above . 07-21-aia AIA Claim 5 and 7-8 are rejected under 35 U.S.C. 103 as being unpatentable over Orszulak (US 20090248003 A1) in view of Yates (US 20170000554 A1) further in view of Nair (US 20140180273 A1) . Regarding claim 5, Orszulak teaches the method of claim 1, wherein determining whether to enable activation mode selection further comprises: wherein: upon the first data and the second data being consistent, activation mode selection is enabled, and upon the first data and the second data being inconsistent, activation mode selection is disabled ([0008], [0036]). However, Orszulak fails to teach determining a first tissue characteristic of a tissue in a surgical site based on the first data; and determining a second tissue characteristic of the tissue based on the second data. Nair teaches a surgical instrument which receives data associated with a surgical instrument and setting so as to control a surgical treatment ([0174]- [0176]) Nair further teaches determining a tissue characteristic based on the received data([0175]). Therefore it would have been obvious to a person having ordinary skill in the art before the effective filing date to have incorporated the known use of tissue characteristic data to control a surgical treatment, as is taught by Nair, into the system which uses data to control a surgical treatment procedure as is taught by Orszulak, to produce the predictable result of using information to control a surgical procedure, as is taught by Nair, as it has been held that the incorporation and/or combination of prior art elements according to known methods to yield predictable results is an obvious modification. MPEP 2141(III). Regarding claim 7, Nair further teaches the method of claim 1,further comprising: determining, based on the data, a proximity of the surgical instrument to a biological structure within a surgical site, wherein a power level of the energy of the energy output modality associated with the selected activation mode is based on the proximity of the surgical instrument to the biological structure ([0185]). In accordance with the above rejection, Orszulak teaches the data as being first data and second data. Regarding claim 8, Nair further teaches the method of claim 1,further comprising: determining, based on the data, a proximity of the surgical instrument to a surgical device, wherein a power level of the energy of the energy output modality associated with the selected activation mode is based on the proximity of the surgical instrument to the surgical device ([0185]). In accordance with the above rejection, Orszulak teaches the data as being first data and second data. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to LINDSAY REGAN LANCASTER whose telephone number is (571)272-7259. The examiner can normally be reached Monday-Thursday 8-4 EST. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Linda Dvorak can be reached on 571-272-4764. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. 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If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /L.R.L./Examiner, Art Unit 3794 /JOSEPH A STOKLOSA/Supervisory Patent Examiner, Art Unit 3794 Application/Control Number: 18/810,407 Page 2 Art Unit: 3794 Application/Control Number: 18/810,407 Page 3 Art Unit: 3794 Application/Control Number: 18/810,407 Page 4 Art Unit: 3794 Application/Control Number: 18/810,407 Page 5 Art Unit: 3794 Application/Control Number: 18/810,407 Page 6 Art Unit: 3794 Application/Control Number: 18/810,407 Page 7 Art Unit: 3794 Application/Control Number: 18/810,407 Page 8 Art Unit: 3794 Application/Control Number: 18/810,407 Page 9 Art Unit: 3794
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