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 .
Specification
The disclosure is objected to because of the following informalities: the cross reference data needs to be updated with the status of each copending application. For reference:
14/440,848 is now abandoned
15/619,335 is now Patent No. 10,857,274
17/109,612 is now Patent No. 11,813,445
18/471,638 is now Patent No. 12,151,092.
Appropriate correction is required.
Priority
Acknowledgment is made of applicant's claim for foreign priority based on an application filed in The United Kingdom on 11/6/2012. It is noted, however, that applicant has not filed a certified copy of the GB 1219958.4 application as required by 37 CFR 1.55. No foreign priority documents can be found in this application or the preceding applications above.
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 (i.e. nonce term) that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder (nonce term) is not preceded by a structural modifier.
The three-prong analysis to determine if claim limitations should be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, includes: (A) does the claim limitation include a nonce term or a non-structural term having no specific structural meaning for performing the claimed function, (B) Is the nonce term modified by a linking term and (C) is the nonce term modified by sufficient structure, material or acts for performing the claimed function. This analysis is found below:
Claim 29:
line 7: “the inlet is configured to be placed in the descending aorta”
the inlet is considered to be a nonce term, the nonce term is modified by linking phrase configured to and the nonce term is modified by the function to be placed in the descending aorta. Therefore, the language is being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
lines 7-8: “the outlet is configured to be placed in the descending aorta”
the outlet is considered to be a nonce term, the nonce term is modified by linking phrase configured to and the nonce term is modified by the function to be placed in the descending aorta. Therefore, the language is being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
lines 9-11: “the mechanical circulation support device is configured to have an outflow condition, the outflow condition is selected to emulate a vortex in a healthy native descending aorta”.
the mechanical circulation support device is considered to be the nonce term which is modified by linking phrase configure to, and the nonce term is modified by the function to have an outflow condition, the outflow condition is selected to emulate a vortex in a healthy native descending aorta. Therefore, the language is being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
lines 12-13: “the mechanical circulation support device is configured to work in series with the heart”
the mechanical circulation support device is considered to be the nonce term which is modified by linking phrase configure to, and the nonce term is modified by the function to work in series with the heart. Therefore, the language is being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim 30:
“the mechanical circulation support is configured to be less disruptive to the normal functioning of the heart”
the mechanical circulation support device is considered to be the nonce term which is modified by linking phrase configure to, and the nonce term is modified by the function to be less disruptive to the normal functioning of the heart. Therefore, the language is being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim 31:
“the mechanical circulation support is configured to promote regeneration of muscle of the heart”.
the mechanical circulation support device is considered to be the nonce term which is modified by linking phrase configure to, and the nonce term is modified by the function to promote regeneration of muscle of the heart. Therefore, the language is being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claims 32 and 48:
“the mechanical circulation support is configured to be installed via percutaneous installation or thoracoscopy”
the mechanical circulation support device is considered to be the nonce term which is modified by linking phrase configure to, and the nonce term is modified by the function to be installed via percutaneous installation or thoracoscopy. Therefore, the language is being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim 33:
“the mechanical circulation support is configured to reduce a load on the heart by lowering a resistance to blood flow”
the mechanical circulation support device is considered to be the nonce term which is modified by linking phrase configure to, and the nonce term is modified by the function to reduce a load on the heart by lowering a resistance to blood flow. Therefore, the language is being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim 34:
line 7: “the inlet is configured to be placed in the descending aorta”
the inlet is considered to be a nonce term, the nonce term is modified by linking phrase configured to and the nonce term is modified by function only to be placed in the descending aorta. Therefore, the language is being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
lines 7-8: “the outlet is configured to be placed in the descending aorta”
the outlet is considered to be a nonce term, the nonce term is modified by linking phrase configured to and the nonce term is modified by the function to be placed in the descending aorta. Therefore, the language is being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim 35:
“the mechanical circulation support device” which is “configured to provide a pressure rise of less than about 120 mmHg”
the mechanical circulation support device is considered to be the nonce term which is modified by linking phrase configure to, and the nonce term is modified by the function to provide a pressure rise of less than about 120 mmHg. Therefore, the language is being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim 36:
“the mechanical circulation support device” which is “configured to pump blood at a continuous flow”
the mechanical circulation support device is considered to be the nonce term which is modified by linking phrase configure to, and the nonce term is modified by the function to pump blood at a continuous flow. Therefore, the language is being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claims 37 and 42:
“the mechanical circulation support device” which is “configured to maintain a flow rate of 5 L/min”
the mechanical circulation support device is considered to be the nonce term which is modified by linking phrase configure to, and the nonce term is modified by the function to maintain a flow rate of 5 L/min. Therefore, the language is being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim 38
“the mechanical circulation support is configured to add a rotational velocity to a fluid flowing through device”
the mechanical circulation support device is considered to be the nonce term which is modified by linking phrase configure to, and the nonce term is modified by the function to add a rotational velocity to a fluid flowing through device. Therefore, the language is being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim 39:
“the mechanical circulation support device” which is “further configured to form a vortex”
the mechanical circulation support device is considered to be the nonce term which is modified by linking phrase configure to, and the nonce term is modified by the function to form a vortex. Therefore, the language is being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim 40:
“the mechanical circulation support device” which is “further configured to provide a lower acceleration and deceleration of blood as compared to pulsatile pumps”.
the mechanical circulation support device is considered to be the nonce term which is modified by linking phrase configure to, and the nonce term is modified by the function to provide a lower acceleration and deceleration of blood as compared to pulsatile pumps. Therefore, the language is being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim 41:
line 7: “the inlet is configured to be placed in the descending aorta”
the inlet is considered to be a nonce term, the nonce term is modified by linking phrase configured to and the nonce term is modified by function only to be placed in the descending aorta. Therefore, the language is being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
lines 7-8: “the outlet is configured to be placed in the descending aorta”
the outlet is considered to be a nonce term, the nonce term is modified by linking phrase configured to and the nonce term is modified by function only to be placed in the descending aorta. Therefore, the language is being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
lines 9-10: “the device is configured to have an outflow condition, the outflow condition selected to emulate a vortex in a healthy native descending aorta”
the device is considered to be the nonce term, the nonce term is modified by the linking phrase configure to and the nonce term is modified by the function to emulate a vortex in a healthy native descending aorta. Therefore, the language is being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
line 11: “the device is configured to increase renal perfusion without affecting brain flow”
the device is considered to be the nonce term, the nonce term is modified by the linking phrase configure to and the nonce term is modified by the function to increase renal perfusion without affecting brain flow. Therefore, the language is being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim 43:
“the mechanical circulation support device” which is “further configured to provide an increased potential for regeneration of diseased tissue”
the mechanical circulation support device is considered to be the nonce term which is modified by linking phrase configure to, and the nonce term is modified by the function to provide an increased potential for regeneration of diseased tissue. Therefore, the language is being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim 44:
“the inlet is further configured to pump blood at a continuous flow”
the inlet is considered to be the nonce term which is modified by linking phrase configure to, and the nonce term is modified by the function to pump blood at a continuous flow. Therefore, the language is being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim 45:
“the mechanical circulation support device” which is “further configured to provide a pressure rise between 20 mmHg and 50 mmHg in blood flow”
the mechanical circulation support device is considered to be the nonce term which is modified by linking phrase configure to, and the nonce term is modified by the function to provide a pressure rise between 20 mmHg and 50 mmHg in blood flow. Therefore, the language is being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim 46:
“the mechanical circulation support device” which is “further configured to provide a pressure rise between 40 mmHg and 80 mmHg in blood flow”
the mechanical circulation support device is considered to be the nonce term which is modified by linking phrase configure to, and the nonce term is modified by the function to provide a pressure rise between 40 mmHg and 80 mmHg in blood flow. Therefore, the language is being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim 47:
“the mechanical circulation support device” which is “further configured to provide a pressure rise of less than about 120 mmHg”
the mechanical circulation support device is considered to be the nonce term which is modified by linking phrase configure to, and the nonce term is modified by the function provide a pressure rise of less than about 120 mmHg. Therefore, the language is being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Because this/these claim limitations are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, they 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.
The claim limitations above which are designated as invoking 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. However, the written description fails to disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function. In each case related to claims 29-48 there is insufficient structure, materials or acts to perform the claimed function. Therefore, for the purposes of expedited prosecution the language will be treated as functional because the exact structure cannot be determined.
Regarding claim 29:
line 7 recites: “the inlet is configured to be placed in the descending aorta”
The specification provides no disclosure as to how the inlet is specifically configured for placement in the descending aorta.
lines 7-8: “the outlet is configured to be placed in the descending aorta”
The specification provides no disclosure as to how the outlet is specifically configured for placement in the descending aorta.
lines 9-11: “the mechanical circulation support device is configured to have an outflow condition, the outflow condition is selected to emulate a vortex in a healthy native descending aorta”.
The specification is not clear as to how the mechanical circulation support device is specifically configured for this specific outflow condition. This could be a specific part of the mechanical circulation support device however there are multiple components and the claim language in combination with the specification provides no disclosure as to which specific component provides this outflow condition.
lines 12-13: “the mechanical circulation support device is configured to work in series with the heart”
The specification is not clear as to which component of the mechanical circulation support device provides for the function of working in series. This appears to be the placement of the device and not a specific component.
Claim 30:
“the mechanical circulation support is configured to be less disruptive to the normal functioning of the heart”
The specification provides not disclosure as to which part of the mechanical circulation support or how it is configured to be less disruptive.
Claim 31:
“the mechanical circulation support is configured to promote regeneration of muscle of the heart”.
The specification provides no disclosure as to how the mechanical circulation support device is specifically configured to promote regeneration of the heart muscle.
Claims 32 and 48:
“the mechanical circulation support is configured to be installed via percutaneous installation or thoracoscopy”
The specification provides no discussion as to which component of or how the mechanical circulation support is specifically configured to be installed percutaneously or via thoracoscopy.
Claim 33:
“the mechanical circulation support is configured to reduce a load on the heart by lowering a resistance to blood flow”
The specification provides no discussion as to which component of or how the mechanical circulation support device is specifically configured to reduce load by lowering resistance to blood flow.
Claim 34:
line 7: “the inlet is configured to be placed in the descending aorta”
The specification provides no disclosure as to how the inlet is specifically configured for placement in the descending aorta.
lines 7-8: “the outlet is configured to be placed in the descending aorta”
The specification provides no disclosure as to how the outlet is specifically configured for placement in the descending aorta.
Claim 35:
“the mechanical circulation support device” which is “configured to provide a pressure rise of less than about 120 mmHg”
The specification provides no discussion as to which component of or how the mechanical circulation support device is specifically configured to provide a pressure rise of less than 120 mmHg.
Claim 36:
“the mechanical circulation support device” which is “configured to pump blood at a continuous flow”
The specification provides no discussion as to which component of or how the mechanical circulation support device is specifically configured to pump blood at a continuous rate.
Claims 37 and 42:
“the mechanical circulation support device” which is “configured to maintain a flow rate of 5 L/min”
The specification provides no discussion as to which component of or how the mechanical circulation support device is specifically configured to maintain a flow rate of 5 L/min..
Claim 38
“the mechanical circulation support is configured to add a rotational velocity to a fluid flowing through device”
The specification provides no discussion as to which component of or how the mechanical circulation support device is specifically configured to add a rotational velocity to a fluid flowing through device.
Claim 39:
“the mechanical circulation support device” which is “further configured to form a vortex”
The specification provides no discussion as to which component of or how the mechanical circulation support device is specifically configured to form a vortex.
“the mechanical circulation support device” which is “further configured to provide a lower acceleration and deceleration of blood as compared to pulsatile pumps”.
The specification provides no discussion as to which component of or how the mechanical circulation support device is specifically configured to lower acceleration and deceleration of blood as compared to pulsatile pumps.
Claim 41:
line 7: “the inlet is configured to be placed in the descending aorta”
The specification provides no disclosure as to how the inlet is specifically configured for placement in the descending aorta.
lines 7-8: “the outlet is configured to be placed in the descending aorta”
The specification provides no disclosure as to how the outlet is specifically configured for placement in the descending aorta.
lines 9-10: “the device is configured to have an outflow condition, the outflow condition selected to emulate a vortex in a healthy native descending aorta”.
The specification provides no discussion as to which component of or how the mechanical circulation support device is specifically configured to emulate a vortex in a healthy native descending aorta.
line 11: “the device is configured to increase renal perfusion without affecting brain flow”
The specification provides no discussion as to which component of or how the mechanical circulation support device is specifically configured to increase renal perfusion without affecting brain flow.
Claim 43:
“the mechanical circulation support device” which is “further configured to provide an increased potential for regeneration of diseased tissue”.
The specification provides no discussion as to which component of or how the mechanical circulation support device is specifically configured to provide an increased potential for regeneration of diseased tissue.
Claim 44:
“the inlet is further configured to pump blood at a continuous flow”
The specification provides no disclosure as to how the inlet is configured to provide continuous flow.
Claim 45:
“the mechanical circulation support device” which is “further configured to provide a pressure rise between 20 mmHg and 50 mmHg in blood flow”
The specification provides no discussion as to which component of or how the mechanical circulation support device is specifically configured to provide a pressure rise between 20-50 mmHg in blood flow.
Claim 46:
“the mechanical circulation support device” which is “further configured to provide a pressure rise between 40 mmHg and 80 mmHg in blood flow”
The specification provides no discussion as to which component of or how the mechanical circulation support device is specifically configured to provide a pressure rise between 40-80 mmHg in blood flow.
Claim 47:
“the mechanical circulation support device” which is “further configured to provide a pressure rise of less than about 120 mmHg”.
The specification provides no discussion as to which component of or how the mechanical circulation support device is specifically configured to a pressure rise of less than about 120 mmHg.
Therefore, claims 29-48 are indefinite and are rejected under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph.
Applicant may:
(a) Amend the claim so that the claim limitation will no longer be interpreted as a limitation under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph;
(b) Amend the written description of the specification such that it expressly recites what structure, material, or acts perform the entire claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(c) Amend the written description of the specification such that it clearly links the structure, material, or acts disclosed therein to the function recited in the claim, without introducing any new matter (35 U.S.C. 132(a)).
If applicant is of the opinion that the written description of the specification already implicitly or inherently discloses the corresponding structure, material, or acts and clearly links them to the function so that one of ordinary skill in the art would recognize what structure, material, or acts perform the claimed function, applicant should clarify the record by either:
(a) Amending the written description of the specification such that it expressly recites the corresponding structure, material, or acts for performing the claimed function and clearly links or associates the structure, material, or acts to the claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(b) Stating on the record what the corresponding structure, material, or acts, which are implicitly or inherently set forth in the written description of the specification, perform the claimed function. For more information, see 37 CFR 1.75(d) and MPEP §§ 608.01(o) and 2181.
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.
Claims 29-48 are rejected under 35 U.S.C. 103 as being unpatentable over Moulder US 5,267,940 in view of Pacella et al. US 5,711,753.
Regarding claims 29, 34 and 41: Moulder discloses a centrifugal pump (column 6, lines 1-2) which includes an inlet 28 (figure 1A) connected to the descending aorta and an outlet 29 (figure 1A) also connected to the descending aorta (column 7, lines 63-67), an inlet chamber 205 (figure 1C) is considered to be an internal volume. In this case both the inlet and the outlet are clearly configured to be implanted in the descending aorta. Moulder finally discloses that the pump is working in series with the heart (column 7, line 64). However, although Moulder discloses a centrifugal pump there is no discussion as to an impeller with blades arranged along a longitudinal axis with the blades defining an outer circumference. Pacella however also teaches of a blood pump which includes an inlet cannula 15 and inlet port 13 (figure 2), an outlet cannula 16 and outlet port 14 (figure 2) an impeller 40 (figure 2) and impeller blades (column 14, lines 8-10). The blades would define an outer circumference of the impeller, and the central axis would run down the center of the impeller. It therefore would have been obvious to one of ordinary skill in the art at the time the invention was filed to modify Moulder to include an impeller with blades, as taught by Pacella, in order to pump blood in a patient (Pacella, column 5, lines 20-22). Specifically regarding claim 34: Pacella further teaches that centrifugal pumps are advantageous over pulsatile pumps (column 2, lines 4-8). It therefore would have been obvious to one of ordinary skill in the art at the time the invention was filed to modify Moulder to further include a non-pulsatile pump, as taught by Pacella in order to utilize a centrifugal pump which is advantageous over pulsatile pumps.
Regarding the functional claim language as discussed in the 112 rejections and found in claims 29-48. The claims limitations are directed to functional/intended use recitations. Applicant is reminded that it makes no difference if the devices of the prior art are used in a different way since a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use. In this instance, the prior art is capable of meeting the claimed intended use recitations since the device comprises all of the mechanical components claimed including the inlet, outlet, internal volume, impeller and impeller blades. The remainder of the claim language found in claims 29-48 not specifically rejected is considered to be functional in that it cannot be determined which structural component is necessary or capable of the recited function.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PAULA J. STICE whose telephone number is (303)297-4352. The examiner can normally be reached Monday - Friday 7:30am -4pm MST.
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, Carl H Layno can be reached at 571-272-4949. 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. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
PAULA J. STICE
Primary Examiner
Art Unit 3796
/PAULA J STICE/Primary Examiner, Art Unit 3796
Prosecution Insights