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 .
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.
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 § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-4 and 6-10 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 recites the limitation "the applicator tube" in lines 10 and 11. There is insufficient antecedent basis for this limitation in the claim.
Regarding claim 2, the recitation of "preferably" renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Claim 8 recites the limitation the reactive species" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claims 3, 4, 6, 7, 9 and 10 are necessarily rejected as being dependent on a rejected claim.
Claim Rejections - 35 USC § 102
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1-4 and 8-10 is/are rejected under 35 U.S.C. 102(a)(1) and (a)(2) as being anticipated by RU 2 258 242 C1 to Pedder et al. (Pedder, see machine translation attached).
Regarding claim 1, Pedder teaches a device (Figure 2) for mounting on a plasma source (coaxial electrode system 5.2), including a housing (supporting dielectric housing 5.1) that delimits a space (activation region 5.14) between a plasma source (coaxial electrode system 5.2) and the housing (Figure 2), wherein the housing has an outlet opening (Figure 2) and an inlet opening (Figure 2), wherein a sealing element (support sealing sleeve 5.9) is situated around the inlet opening on which the plasma source is mounted (Figure 2), the sealing element being configured to close off the space between the plasma source and the inlet opening (Figure 2), and an applicator (Figure 2) with a proximal end (Figure 2), wherein the proximal end of the applicator includes an applicator tube fixing means (a removable outlet fitting 5.8) that is suitable for connecting to an applicator tube (cannula 7), and wherein the applicator tube is connected to the applicator fixing means by means of an adapter (nozzle 6).
Regarding claim 2, Pedder teaches the device of claim 1 as well as wherein the plasma source is a device for generating a cold plasma jet (abstract), the device preferably being a handheld plasma device (Figure 6).
Regarding claim 3, Pedder teaches the device of claim 1 as well as wherein the sealing element (support sealing sleeve 5.9) is a sealing ring (Figure 2).
Regarding claim 4, Pedder teaches the device of claim 1 as well as wherein the applicator tube is detachable fastened to the applicator (pg. 5, last paragraph which states in part “on the working part of the supporting body 5.1, a removable outlet fitting 5.8 is installed with a nozzle 6 connected to it and connected to a cannula 7…”).
Regarding claim 8, Pedder teaches the device of claim 1 as well as wherein the applicator tube is suitable for guiding the reactive species generated by the plasma source to the treatment site (Figures 2 and 6).
Regarding claim 9, Pedder teaches the device of claim 8 as well as wherein the applicator tube is configured in such a way that treatment sites can be reached (Figures 2 and 6).
Regarding claim 10, Pedder teaches the device of claim 1 as well as wherein the applicator tube is a hose, a cannula (cannula 7), or a catheter.
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.
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.
Claim(s) 6 and 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Pedder.
Regarding claim 6, Pedder teaches the device of claim 1, but not wherein the applicator tube fixing means is a Luer lock connection. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the applicator tube fixing means of Pedder to be a Luer lock connection as an obvious matter of engineering design choice because applicant has not disclosed that the Luer lock connection provides an advantage, is used for a particular purpose, or solves a stated problem. Furthermore, one of ordinary skill in the art would have expected Pedder and applicant’s invention to perform equally well with either the removable outlet fitting of Pedder or a Luer lock connection. Therefore, it would have been prima facie obvious to modified Pedder to obtain the invention as specified in claim 6, because such a modification would have been considered a mere design consideration which fails to patentably distinguish over the prior art reference of Pedder or the claimed Luer lock connection because both fixing means would perform the same.
Regarding claim 7, Pedder teaches the device of claim 1 as well as that the applicator tube is connected to the applicator tube fixing means via the adapter (pg. 5, last paragraph which states in part “a removable outlet fitting 5.8 is installed with a nozzle 6 connected to is and connected to a cannula 7…”), but not specifically that the applicator tube is detachably connected to the applicator tube fixing means via the adapter. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified Pedder so that the applicator tube is detachable connected to the applicator tube fixing means via the adapter, since it has been held that constructing a formerly integral structure in various elements involves only routine skill in the art.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KAITLYN E SMITH whose telephone number is (571)270-5845. The examiner can normally be reached Monday-Friday 9am-5pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Joanne M Rodden can be reached at (303) 297-4726. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KAITLYN E SMITH/Primary Examiner, Art Unit 3794
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