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 .
Election/Restrictions
Applicant’s election without traverse of Group III (claims 15-48) in the reply filed on April 22, 2026 is acknowledged. Claims 15-48 have been examined on the merits in this office action.
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the triangulation legend of claims 16 and 17 must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
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 15-48 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.
In claims 15 and 38, the recitation “a physiological parameter” renders the claim vague and indefinite because the scope of Applicant’s invention is unclear. Although Applicant’s disclosure describes the physiological parameter to include BMI, depth of subcutaneous fat and/or other physiological parameters. Physiological parameters could include a variety of parameters such as heart rate, blood pressure etc. and Applicant’s disclosure does not describe “physiological parameter” with sufficient specificity to understand the scope of Applicant’s invention.
In claim 15, the recitation “wherein the second port incision locators are arranged such that different ones of the second port incision locators correspond to different degrees of a physiological parameter” renders the claims vague and indefinite. It is unclear how the markings are labeled according to different degrees of a physiological parameter when the parameter is different from “BMI and depth of subcutaneous fat.”
In claim 16, the recitation “a triangulation legend correlating the incision locators to the different degrees of the physiological parameter” renders the claim vague and indefinite because it is unclear what the triangulation legend is and how it enables triangulation. Further, the recitation “incision locators” is confusing since it is unclear whether this is referring to the previously recited “first port incision locator” and the “second port incision locators.”
In claim 17, the recitation “triangulation legend” renders the claim vague and indefinite because it is unclear what this is.
In claim 20, it is unclear which length is being referred to. It appears that Applicant intended to recite the label indicates an incision length wherein the incision length is equal to or greater than a maximum transverse dimension of an insertion portion of one of the instruments.
In claim 24, it is unclear which length is being referred to. It appears that Applicant intended to recite the label indicates an incision length wherein the incision length is equal to or greater than a diameter of a distal portion of the endoscope.
In claim 38, the recitation “wherein the plurality of elongated slots are arranged such that different ones of the plurality of elongated slots correspond to different degrees of a physiological parameter” renders the claim vague and indefinite because it is unclear how the markings correspond to different degrees of a physiological parameter when the parameter is different from “depth of subcutaneous fat.”
Appropriate correction is required.
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.
Claim(s) 15, 19, 22 and 23 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Mueller et al. (US 7833233).
Regarding claim 15, Mueller et al. disclose a multi-portal surgical kit, including: a multi-portal marking guide (310, Fig. 26) having a plurality of discrete incision locators including a first port incision locator 313a indicating a first port location, and a set of second port incision locators (311a, 311b) each indicating a respective second port location, wherein the second port incision locators are arranged such that different ones of the second port incision locators correspond to different degrees of a physiological parameter (neck contour, Fig. 2); and a set of instruments including: handset or handle 60 (Figs. 6-7), ports 80 and probing device (Figs. 46-47) each configured to be inserted through one of a first incision at the first port location along a subject, or a second incision at one of the second port location along the subject (col. 6, lines 7-42).
Regarding claim 19, Mueller et al. disclose marking guide 310 to have a planar body and the discrete incision locators each include an elongated through-hole 313a and 313b in the planar body (Fig. 26).
Regarding claims 22 and 23, the incision port locators of Mueller et al. can be used to place ports 80 to enable introduction of instruments including a scope or endoscope and a working instrument such as a probe (col. 13, lines 40-67 and col. 14, lines 1-47).
Allowable Subject Matter
Non application of prior art to claims 16-18, 20-21and 24-48 indicates allowable subject matter provided the rejection(s) under 35 U.S.C. 112(b) are overcome.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Anu Ramana whose telephone number is (571)272-4718. The examiner can normally be reached 8:00 am-5:00 pm.
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, Kevin Truong can be reached at (571)272-4705. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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July 8, 2026
/Anu Ramana/Primary Examiner, Art Unit 3775
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