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 .
A complete action on the merits of pending claims 1-20 appears herein.
Response to Arguments
Applicant’s arguments with respect to claim(s) 1 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim(s) 1-4, 9, 10, 12, 15, 19, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Scheib (US 2017/0172614 A1) in view of Asher (US 2018/0132888 A1).
Regarding claim 1, Scheib teaches a treatment instrument, (Fig. 6A-B) comprising:
a first handle; (Fig. 6A, Char. 224: pistol grip)
a second handle configured to move in a direction toward the first handle, (Fig. 6A, Char. 228: trigger) the second handle having a first moving range and a second moving range; (Par. [0090]: Trigger 228 is moveable through four ranges of motion)
a first gripping piece; (Fig. 3, Char. 160: ultrasonic blade)
a second gripping piece; (Fig. 3, Char. 144: clamp arm)
a biasing body having a biasing force and configured to bias the second handle in a direction away from the first handle; (Par. [0083]: One or more resilient members are used to bias clamp arm (144) and/or trigger (228) to the open position)
wherein the second gripping piece moves closer to or away from the first gripping piece in response to a movement of the second handle, (Par. [0090])
wherein the first moving range is from a state in which the second gripping piece is away from the first gripping piece to a state in which the second gripping piece is in contact with the first gripping piece, (Par. [0090]: Trigger (228) is movable through a first range of motion to pivot clamp arm (144) toward blade (160) to a fully closed position.)
wherein the second moving range is from the state in which the second gripping piece is in contact with the first gripping piece to a state in which the second handle is closest to the first handle, (Par. [0090]: The combined second, third, and fourth ranges of motion form a range from a state in which the clamp arm (144) is in contact with blade (160) to a state in which trigger (228) is closest to pistol grip (224))
wherein, in the second moving range, when a gripping force applied to the second handle is released, the biasing force causes the second handle to move away from the first handle. (Par. [0083]: One or more resilient members are used to bias clamp arm (144) and/or trigger (228) to the open position; This would apply in all of the first, second, third, and fourth ranges of motion of trigger (228))
Scheib, as applied to claim 1 above, is silent regarding a magnetic body having an attracting force and configured to attract the second handle with respect to the first handle, and wherein, in the second moving range, the attracting force is smaller than the biasing force.
Asher, in another embodiment, teaches a dual urging mechanism comprising a first urging mechanism configured to bias the handles away from each other and a second urging mechanism configured to bias the handles towards each other, (Par. [0244]-[0246]) such that a clamp arm is maintained in a default position relative to an ultrasonic blade absent any outside forces applied by a user; (Par. [0245]) and that a magnetic body having an attracting force can be used to attract the handles together. (Par. [0233] and Fig. 56A, Char. 6352 and 6356)
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Scheib, as applied to claim 1 above, to incorporate the teachings of Asher, and configure the trigger (228) and pistol grip (224) of Scheib to comprise the magnets (6352 and 6356) body of Asher, such that magnets (6352 and 6356) attract the trigger with respect to the pistol grip at a level where clamp arm (144) and trigger (228) are biased in an open position by the resilient member of Scheib, absent any force exerted by a user. Doing so would minimize the amount of force required to be exerted by a user to move clamp arm (144) of Scheib, allowing for easier clamping of a target tissue.
In this combination, because the resilient members of Scheib are still configured to bias clamp arm (144) and trigger (228) in an open position despite the attracting force of the magnets (6352 and 6356) of Asher, the attracting force would have to be smaller than the biasing force.
Regarding claim 2, the combination of Scheib/Asher, as applied to claim 1 above, teaches
the first moving range is from a first state of the second handle to a second state of the second handle, wherein, in the first state, the second handle is at a maximum distance from the first handle, (Scheib: Par. [0090]: Trigger (228) can move through a first range of motion to pivot clamp arm (144) toward blade (160) to a fully closed position)
wherein the second moving range is from the second state of the second handle to a third state of the second handle, and wherein, in the third state, the second handle is at a minimum distance from the first handle. (Scheib: Par. [0090]: In the second, third, and fourth ranges of motion, the clamp arm (144) is fully closed against the blade (160) as trigger (228) is moved closer to pistol grip (224))
Regarding claim 3, the combination of Scheib/Asher, as applied to claim 1 above, teaches
a jaw at least indirectly coupled to the first handle or the second handle, (Scheib: Fig. 4, Char. 140: end effector) the jaw having the first gripping piece (Scheib: Fig. 3, Char. 160: ultrasonic blade) and the second gripping piece, (Scheib: Fig. 3, Char. 144: clamp arm)
wherein, in response to a first operation of the second handle, the second gripping piece is configured to move toward the first gripping piece, and wherein, in response to a second operation of the second handle, the second gripping piece is configured to move away from the first gripping piece. (Operation of the trigger (228) and/or pistol grip (224) relative to each other would cause opening and closing of the end effector (140))
Regarding claim 20, the combination of Scheib/Asher, as applied to claim 3 above, teaches the treatment instrument is configured to impart treatment energy to a target site, (Scheib: Claim 1) and wherein the first gripping piece and the second gripping piece are configured to grasp the target site between the first gripping piece and the second gripping piece. (Scheib: Claim 1)
Regarding claim 4, the combination of Scheib/Asher, as applied to claim 1 above, teaches movement of the second handle is opposed by a friction force, (Absent a statement otherwise, one of ordinary skill in the art would expect at least some friction between the interlocking/overlapping portions of lever (262) of Scheib and body (222) of Scheib) and wherein, in the second moving range, the attracting force is smaller than a sum of the biasing force and the friction force. (Scheib: Par. [0083]: The clamp arm (144) and trigger (228) are biased in the open position by resilient members; In the rejection to claim 1 above, the attracting force caused by the magnets of Asher is lower than the biasing force of the resilient members to maintain the biasing of the clamp arm and trigger in the open position.)
Regarding claims 9 and 10, the combination of Scheib/Asher, as applied to claim 1 above, teaches the magnetic body includes a first magnet located on the first handle and a second magnet located on the second handle., and wherein the magnet is located on at least one of the first handle and the second handle. (In the rejection to claim 1 above, trigger (228) and pistol grip (224) of Scheib were configured to include the magnets (6352 and 6356) of Asher)
Regarding claim 12, the combination of Scheib/Asher, as applied to claim 1 above, teaches the treatment instrument is configured to apply ultrasonic energy to a biological tissue. (Scheib: Par. [0085])
Regarding claim 15, the combination of Scheib/Asher, as applied to claim 1 above, teaches the magnetic body includes a first magnet located on the first handle and a second magnet located on the second handle, (Asher: Fig. 56A-C and Par. [0233] – it is implicit that this feature be present in the Scheib/Asher combination based on the rejection to claim 1 above.) wherein the first magnet and the second magnet are opposed to each other in a direction along a line that traces a movement locus of the second magnet moving with the second handle in a state where the second handle is closest to the first handle, and wherein a magnetizing direction of the first magnet and a magnetizing direction of the second magnet are along the line. (Asher: Fig. 56A-C and Par. [0233] – it is implicit that this feature be present in the Scheib/Asher combination based on the rejection to claim 1 above.)
Regarding claim 19, the combination of Scheib/Asher, as applied to claim 1 above, teaches the biasing body includes a coil spring or a micro-mechanical system, (Scheib: Fig. 5 and Par. [0077]: Spring (136) is a resilient member configured to bias clamp arm (144) in the open position) and wherein the magnetic body includes a magnet. (Asher: Fig. 56A-C and Par. [0233] – it is implicit that this feature be present in the Scheib/Asher combination based on the rejection to claim 1 above.)
Claim(s) 11 is rejected under 35 U.S.C. 103 as being unpatentable over Scheib (US 2017/0172614 A1) in view of Asher (US 2018/0132888 A1), as applied to claim 1 above, and further in view of Miersch (US 2006/0206144 A1).
Regarding claim 11, the combination of Scheib/Asher, as applied to claim 1 above, teaches the magnetic body includes a first magnet and a second magnet, wherein the first magnet is located on at least one of the first handle and the second handle, and wherein the second magnet is located on the other of the first handle and the second handle. (In the rejection to claim 1 above, trigger (228) and pistol grip (224) of Scheib were configured to include the magnets (6352 and 6356) of Asher)
The combination of Scheib/Asher, as applied to claim 1 above, is silent regarding the second magnet being a ferromagnetic body.
Miersch, in a similar field of endeavor, teaches a magnetic engagement mechanism in which one of the magnets in said magnetic engagement mechanism comprises a ferromagnetic body. (Par. [0030])
It has been held that “the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination”- MPEP 2144.07 In the instant case, one of ordinary skill in the art would recognize the benefits or suitability of the disclosed materials (e.g. cost-effectiveness, manufacturing feasibility, etc.) It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the combination of Scheib/Asher, as applied to claim 1 above, to incorporate the teachings of Miersch and have the second magnet (6356) of Asher be/include a ferromagnetic body since these materials offer the benefits of cost-effectiveness, manufacturing feasibility, etc, as stated above, and Miersch recognizes ferromagnetic bodies as being suitable for use in a similar magnetic engagement mechanism.
Claim(s) 13, 14, and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Scheib (US 2017/0172614 A1) in view of Asher (US 2018/0132888 A1), as applied to claim 1 above, and further in view of Hushka (US 7,686,827 A1).
Regarding claims 13 and 14, the combination of Scheib/Asher, as applied to claim 1 above, teaches the magnetic body includes a magnet located on at least one of the first handle and the second handle. (In the rejection to claim 1 above, trigger (228) and pistol grip (224) of Scheib were configured to include the magnets (6352 and 6356) of Asher)
The combination of Scheib/Asher, as applied to claim 1 above, is silent regarding the magnet having a convex portion protruding toward the other of the first handle and the second handle; wherein the magnetic body includes an impact relieving body configured to mitigate impact when the second handle is in closest proximity to the first handle.
Hushka, in a similar field of endeavor, teaches a closure mechanism comprising a first magnet disposed on a first handle and protruding towards a second handle and a second magnet disposed on the second handle and protruding towards the first handle; (Fig. 2A-B) wherein the magnetic body includes an impact relieving body configured to mitigate impact when the second handle is in closest proximity to the first handle. (Col. 5, Line 59 – Col. 6, Line 10)
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified the combination of Scheib/Asher, as applied to claim 1 above, to incorporate the teachings of Hushka, and include the magnets (11 and 12) and polymeric coatings (11a and 12a) of Hushka in place of the magnets (6352 and 6356) of Asher. Doing so would be a simple substitution of one magnetic closing assistance mechanism for another for the predictable result of aiding a user in moving the handles towards each other.
The combination of Scheib/Asher/Hushka, as applied to claim 13 above, is silent regarding the magnet having a convex portion protruding toward the other of the first handle and the second handle.
Absent a statement of criticality AND unexpected results, it would have been an obvious matter of design choice to make the different portions of the magnets (11 and (12) of Hushka of whatever form or shape was desired or expedient, including configuring one of said magnets to have a convex surface protruding towards the other magnet/handle. A change in form or shape is generally recognized as being within the level of ordinary skill in the art, absent any showing of unexpected results. In re Dailey et al., 149 USPQ 47.
Regarding claim 18, the combination of Scheib/Asher, as applied to claim 15 above, teaches in a state where the second handle is closest to the first handle, one of the first magnet and the second magnet has a surface that is opposed to the other of the first magnet and the second magnet, (Asher: Fig. 56A-C – it is implicit that this feature be present in the Scheib/Asher combination based on the rejection to claim 15 above)
The combination of Scheib/Asher, as applied to claim 15 above, is silent regarding wherein, in a state where the second handle is the furthest from the first handle, the first magnet and the second magnet are arranged such that the surface is inclined to and faces a side of the other of the first magnet and the second magnet.
Hushka, in a similar field of endeavor, teaches a closure mechanism comprising a first magnet disposed on a first handle and protruding towards a second handle and a second magnet disposed on the second handle and protruding towards the first handle; (Fig. 2A-B) wherein, in a state where the second handle is the furthest from the first handle, the first magnet and the second magnet are arranged such that the opposing surfaces of said first and second magnets are inclined to and face the opposing surface of the other of the first magnet and the second magnet. (Fig. 2A)
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified the combination of Scheib/Asher, as applied to claim 15 above, to incorporate the teachings of Hushka, and include the magnets (11 and 12) and polymeric coatings (11a and 12a) of Hushka in place of the magnets (6352 and 6356) of Asher. Doing so would be a simple substitution of one magnetic closing assistance mechanism for another for the predictable result of aiding a user in moving the handles towards each other.
Allowable Subject Matter
As allowable subject matter has been indicated, applicant's reply must either comply with all formal requirements or specifically traverse each requirement not complied with. See 37 CFR 1.111(b) and MPEP § 707.07(a).
Claims 5-8, 16, and 17 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.
The following is a statement of reasons for the indication of allowable subject matter:
Regarding claim 5, the prior art of record fails to explicitly teach all of the limitations of claim 4, and further teach the limitation “wherein a difference between the sum of the biasing force and the friction force and the attracting force defines a gripping force, and wherein the gripping force is at a minimum in the second moving range.”
Regarding claim 6, the prior art of record fails to explicitly teach all of the limitations of claim 1, and further teach the limitation “wherein the attracting force in the first moving range is 30 percent or less of the attracting force in the second moving range.”
Regarding claim 7, the prior art of record fails to explicitly teach all of the limitations of claim 1, and further teach the limitation “wherein the biasing body includes a first biasing body; and wherein the first biasing body is configured to bias the second handle in the direction away from the first handle only when the second handle is in the second moving range.”
Claim 8 would be allowable due to its dependency on claim 7.
Regarding claim 16, the prior art of record fails to explicitly teach all of the limitations of claim 1, and further teach the limitation “wherein the magnetic body includes a first magnet located on the first handle and a second magnet located on the second handle, wherein the first magnet and the second magnet are opposed to each other in a direction perpendicular to a line that traces a movement locus of the second handle with respect to the first handle in a state where the second handle is closest to the first handle, and wherein a magnetizing direction of the first magnet and a magnetizing direction of the second magnet intersect the line.”
Claim 17 would be allowable due to its dependency on claim 16.
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 NICHOLAS SHEA BORSCH whose telephone number is (571)272-5681. The examiner can normally be reached Monday-Thursday 7:30AM-5:30PM EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Joanne Rodden can be reached at 3032974276. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/N.S.B./Examiner, Art Unit 3794
/JOANNE M RODDEN/Supervisory Patent Examiner, Art Unit 3794
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