AILED 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 .
Priority
This application is a CON of 17/660,505 04/25/2022 PAT 12096927
17/660,505 is a CON of 16/811,923 03/06/2020 PAT 11311284
16/811,923 has PRO 62/863,383 06/19/2019, 16/811,923 has PRO 62/816,633 03/11/2019, 16/811,923 has PRO 62/814,700 03/06/2019 is acknowledged.
Claim Objections
Claim 3 objected to because of the following informalities: Claim 3 recites the limitation "the upper end of the base receptacle" in line 7, page 26. It should be “an upper end of the base receptacle”. Appropriate correction is required.
Claim 5 objected to because of the following informalities: Claim 5 recites “the loop” in line 2. It should be “the gathering loop”. Appropriate correction is required.
Claim 7 objected to because of the following informalities: Claim 7 recites “the receptacle” in line 1. It should be “the base receptacle”. Appropriate correction is required.
Claim 20 objected to because of the following informalities: Claim 20 recites the limitation "the rear handle" in line 6. It should be “a rear handle”. Appropriate correction is required.
Claim 20 objected to because of the following informalities: Claim 20 recites the limitation "the upper end of the base receptacle" in line 10. It should be “an upper end of the base receptacle”. Appropriate correction is required.
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.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: “one-way mechanism” in claims 15 and 17.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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.
Claim 1-20 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 “one or more sutures” in lines 5 and 8, “locking the sutures” in line 9, “a one or a plurality of suture” in line 11 and “the plurality of sutures” in line 14. It is unclear if these are the same sutures.
Claim 2 recites the limitation "a carriage assembly" in line 6. This limitation is already recited in claim 1. It is unclear if they are the same or different limitations.
Claim 3 recites “at least one suture”. It is unclear if this suture is different or the same as the suture or sutures claimed in claim 1.
Claim 3 recites the limitation "the rear handle" in line 3, page 26. There is insufficient antecedent basis for this limitation in the claim.
Claim 3 recites the limitation "the receiving seat" in line 8, page 26. There is insufficient antecedent basis for this limitation in the claim.
Claim 3 recites the limitation "the at least one suture lead" in line 8, page 26. There is insufficient antecedent basis for this limitation in the claim.
Claim 8 recites the limitation "the tapered plug" in line 1, page 27. There is insufficient antecedent basis for this limitation in the claim.
Claim 8 recites the limitation "the tapered receiver seat" in lines 1-2, page 27. There is insufficient antecedent basis for this limitation in the claim.
Claim 8 recites “one or more sutures” in line 2, page 27. It is unclear if this is a new limitation or the same sutures as claimed in claim 1.
Claim 8 recites the limitation "the through channel" in line 2, page 27. There is insufficient antecedent basis for this limitation in the claim.
Claim 10 recites the limitation "the receiver seat" in line 1. There is insufficient antecedent basis for this limitation in the claim.
Claim 11 recites the limitation "the receiver seat of the base receptacle" in lines 1-2. There is insufficient antecedent basis for this limitation in the claim.
Claim 11 recites “sutures” in line 3. It is unclear if this sutures are the same as the sutures claimed in claim 1.
Claim 12 recites “the two or more anchors” in line 12. There is insufficient antecedent basis for this limitation in the claim.
Claim 15 recites the limitation "the one-way mechanism" in lines 2-3. There is insufficient antecedent basis for this limitation in the claim.
Claim 17 recites the limitation "the one-way mechanism" in lines 5-6. There is insufficient antecedent basis for this limitation in the claim.
Claim 18 recites the limitation "the base receptacle of the clamp assembly" in line 3, page 28 and line 1 page 29. There is insufficient antecedent basis for this limitation in the claim.
Claim 18 recites “one or more sutures” in line 1, page 29, “a one or a plurality of sutures” in line 4, page 29 and “the plurality of sutures” in line 8, page 29. It is unclear if these are the same or different limitations.
Claim 20 recites the limitation "the receiving seat" in line 10. There is insufficient antecedent basis for this limitation in the claim.
Claim 20 recites the limitation "the at least one suture lead" in line 11. There is insufficient antecedent basis for this limitation in the claim.
Double Patenting
A rejection based on double patenting of the “same invention” type finds its support in the language of 35 U.S.C. 101 which states that “whoever invents or discovers any new and useful process... may obtain a patent therefor...” (Emphasis added). Thus, the term “same invention,” in this context, means an invention drawn to identical subject matter. See Miller v. Eagle Mfg. Co., 151 U.S. 186 (1894); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Ockert, 245 F.2d 467, 114 USPQ 330 (CCPA 1957).
A statutory type (35 U.S.C. 101) double patenting rejection can be overcome by canceling or amending the claims that are directed to the same invention so they are no longer coextensive in scope. The filing of a terminal disclaimer cannot overcome a double patenting rejection based upon 35 U.S.C. 101.
Claims 1, 3-11, 18, 20 is/are rejected under 35 U.S.C. 101 as claiming the same invention as that of claims 1, 3-11, 12, 14 of prior U.S. Patent No. 11,311,284. This is a statutory double patenting rejection.
Claims 12-17 is/are rejected under 35 U.S.C. 101 as claiming the same invention as that of claims 1-6 of prior U.S. Patent No. 12,096,927. This is a statutory double patenting rejection.
There is no prior art rejection.
There are prior arts cited in the PTO-892 that are pertinent to the claimed inventions such as US 2008/0033460 to Ziniti et al. discloses suture anchor system with tension relief mechanism and US 2009/0326562 to White et al. discloses independent suture tensioning and snaring apparatus and US 10,390,817 to Bonutti et al. discloses tissue fixation system and method having tensioning mechanism but all fails to disclose the apparatus and method especially the carriage assembly comprises tension ring that translate between proximal and distal along the instrument’s long axis or the steps of gathering the suture leads as claimed.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PHONG SON DANG whose telephone number is (571)270-5809. The examiner can normally be reached Mon-Fri 8-5.
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/PHONG SON H DANG/Primary Examiner, Art Unit 3771