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 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.
Claims 1-2, 4-6, 9 and 11-12 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Strobl (US 2015/0190191).
Regarding claim 1, Strobl discloses a blood vessel harvesting device (see Figs. 1-4B) comprising: a cylindrical body extending along an axis (see shaft 40 extending along the axis as shown in Fig. 1); a jaw structure coupled to a distal end portion of the cylindrical body and comprising a first jaw and a second jaw that are openable to an open state and closeable to a closed state (see jaws 52 and 54; Figs. 1 and 2); and a cutter blade disposed between the first jaw and the second jaw (see cutting blade assembly 80; [0044], Fig. 2), the cutter blade being moveable in a direction of the axis along cutter grooves defined by the first jaw and the second jaw (see [0044]), the jaw structure having ridgelines formed at a distal-most tip end of the first jaw and a distal-most tip end of the second jaw, wherein the ridgelines are offset from the axis in a first direction such that the first jaw and the second jaw have asymmetric shapes with respect to the axis (see ridgelines of the distal tips of jaws 52 and 54 that are offset from the axis of shaft 40 and have asymmetric shapes with respect to the axis as shown in Figs. 3A-4B).
Regarding claim 2, Strobl further discloses wherein the first jaw and the second jaw each have a first inclined surface adjacent to the ridgeline and extending in the first direction and a second inclined surface adjacent to the ridgeline and extending in a second direction opposite to the first direction, the ridgelines being an intersection line between the first inclined surface and the second inclined surface (see first and second inclined surfaces on either side of the ridgelines when viewing the side profiles in Figs. 3A and 4A, wherein the second inclined surface extends in a second direction opposite to the first direction as also shown in Figs. 3B and 4B).
Regarding claim 4, Strobl further discloses wherein the first jaw and the second jaw each have a first side surface adjacent to the first inclined surface and extending proximally, the first side surface comprising a curved surface that defines an arc having a center located away from the axis in the first direction (see curved sides of jaws 52 and 54 with centers located away from the axis in the first direction (as shown in Figs. 3A-4B).
Regarding claims 5 and 6, Strobl further discloses wherein each of the first side surfaces approaches the axis as the first side surface extends to a proximal end thereof where the first side surfaces are closest to the axis, and wherein the curved surface of each of the first side surfaces is closest to the axis at an intermediate portion of the curved surface (see the curved surfaces of the jaws approaching the axis as they extend proximally to a proximal end thereof, Figs. 3A-4B).
Regarding claim 9, Strobl discloses a blood vessel harvesting device (see Figs. 1-4B) comprising: a cylindrical body extending along an axis (see shaft 40 extending along the axis as shown in Fig. 1); a jaw structure coupled to a distal end portion of the cylindrical body and comprising a first jaw and a second jaw that are openable to an open state and closeable to a closed state (see jaws 52 and 54; Figs. 1 and 2); and a cutter blade disposed between the first jaw and the second jaw (see cutting blade assembly 80; [0044], Fig. 2), the cutter blade being moveable in a direction of the axis along cutter grooves defined by the first jaw and the second jaw (see [0044]), wherein, while the jaw structure is in the closed state: (i) opposing face surfaces of the first jaw and the second jaw are inclined in relation to each other and in relation to the axis (the inclined side surfaces of the distal tips of the jaws are inclined in relation to each other and the axis as can be appreciated in Figs. 3A-4B), and (ii) the axis extends between portions of the first jaw and the second jaw that are located distal to the cutter grooves (see axis as shown in Figs. 3A-4B).
Regarding claim 11, Strobl further discloses wherein a distal-most tip end of the first jaw and a distal-most tip end of the second jaw are each offset from the axis in a first direction such that the first jaw and the second jaw have asymmetric shapes with respect to the axis (as can be appreciated in Figs. 3B and 4B).
Regarding claim 12, Strobl further discloses wherein the opposing face surfaces of the first jaw and the second jaw each comprise a planar electrode formed of an electrically conductive material (see electrodes disposed on both jaws, [0048]).
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Strobl.
Regarding claim 3, Strobl discloses the limitations of claim 2, however fails to further disclose wherein the first inclined surfaces and the second inclined surfaces meet at the ridgelines and define an acute angle therebetween.
However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have made the ridgelines where the first second surfaces meet to form an acute angle in order to specifically target the geometry of specific tissue being treated in light of [0049] of Strobl that teaches “a person skilled in the art will appreciate that the second and first jaws 52, 54 can have any suitable shape and length for engaging tissue, with the shape, length, and overall configuration being selected, at least in part, based on the targeted anatomical structure for treatment and the other components with which the jaws 52, 54 are being used”. Additionally, 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. See MPEP 2144(IV)(B).
Claims 7-8, 10 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Strobl et al. (US 20170312016) (“Strobl ‘016”).
Regarding claims 7 and 13, Strobl discloses the limitations of claims 1 and 12, and further discloses wherein the first jaw and the second jaw each have a planar electrode on surfaces facing each other (see electrodes disposed on both jaws, [0048]), however Strobl fails to further disclose wherein at least one of the surfaces has a spacer formed of an electrically insulating material that is protruding from the planar electrode.
Strobl ‘016 teaches an electrosurgical device operable for blood vessel harvesting (see Figs. 1-3C), comprising electrically insulative gap setting members that protrude from at least one of the opposing surfaces and protrude from the planar electrode (see electrically insulative tissue engaging members 240, [0094]-[0095], Figs. 2-3C). Therefore, 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 at least one of the surfaces facing each other as disclosed by Strobl to further include a spacer formed of an electrically insulating material that is protruding from the planar electrode in light of Strobl ‘016, the motivation being to provide the additional advantage of preventing electrical shorting between the electrodes of the jaws and to facilitate gripping of tissue during operation (see Strobl ‘016, [0052]).
Regarding claims 8 and 10, Strobl discloses the limitations of claims 1 and 9, and further discloses wherein the first jaw and the second jaw each have a planar electrode on surfaces facing each other (see electrodes disposed on both jaws, [0048]), however fails to further disclose wherein while the jaw structure is in the closed state the planar electrodes of the first jaw and the second jaw define a non-zero inclination angle therebetween, and wherein, while the jaw structure is in the closed state, a clearance between the opposing face surfaces of the first jaw and the second jaw at a distal end of the jaw structure is smaller than a clearance at a proximal end of the jaw structure.
Strobl ‘016 teaches an electrosurgical device operable for blood vessel harvesting (see Figs. 1 and 4), comprising a non-zero inclination angle between the planar electrically conductive surfaces 430a and 430b, creating a clearance between the opposing face surfaces of the first jaw and the second jaw at a distal end of the jaw structure is smaller than a clearance at a proximal end of the jaw structure (as shown in Fig. 4). Therefore, 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 closed state as disclosed by Strobl to be configured such that the planar electrodes of the first jaw and the second jaw define a non-zero inclination angle therebetween, and wherein, while the jaw structure is in the closed state, a clearance between the opposing face surfaces of the first jaw and the second jaw at a distal end of the jaw structure is smaller than a clearance at a proximal end of the jaw structure in light of Strobl ‘016, since one of ordinary skill in the art would have recognized that the prior art structure would have only provided the predictable advantage of providing additional mechanical force towards the distal tip of the jaw as it closes upon tissue in order to pinch vessels closed and/or accommodation of differently shaped tissue portions being grasped.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SEAN W COLLINS whose telephone number is (408)918-7607. The examiner can normally be reached M-F 9:00 AM-5:00 PM ET.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Joanne Rodden can be reached at 303-297-4276. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/SEAN W COLLINS/Primary Examiner, Art Unit 3794
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