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 .
CLAIM INTERPRETATION
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.
No claim limitation has been interpreted under 35 U.S.C. 112(f) because each term connotes sufficient structure (e.g., ‘elongate member’) to a person of ordinary skill in the art. See MPEP § 2181. If applicant contends otherwise, please point to supporting disclosure.
Claim Objections
Claim 8 is objected to because of the following informalities: please change “a cuff” to “a cuff”. Appropriate correction is required.
Claim Rejections - 35 USC § 102
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.
The following is a quotation of the appropriate paragraphs of pre-AIA 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 –
(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of application for patent in the United States.
Claim(s) 1 is/are rejected under pre-AIA 35 U.S.C. 102(b) as being anticipated by Buelna et al. (US 5,836,955, “Buelna”).
Regarding claim 1, Buelna discloses a device capable of positioning suture through tissue. The device includes an elongate member (cannula 30; Fig. 3, 5, 6,10) with a proximal end and distal end. The elongate member includes one or more guiding lumens (85, 87) extending therethrough. A tubular closure element (45;C5:L40-67) includes slits in a living hinge (C7:L1-5) adjacent elongate flexible members (114, 118), wherein at least a portion of the tubular closure element is disposed within the distal end of the elongate member. A needle (90, 92) is detachably coupled to the elongate member, wherein the needle is configured to advance distally through a guiding lumen. A handle (54) is operably linked to the needle (C5:L21-42) and is configured to facilitate distal advancement of the needle through the distal end of the elongate member and around a proximal portion of the tubular closure element (Figs. 3, 5).
Allowable Subject Matter
Claims 2-11 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Claims 12-20 are allowed.
Regarding claim 12, the prior art does not disclose or suggest a device for positioning suture through tissue, the device including a proximal elongate member having a central passage and at least one needle lumen extending from approximal end toward a distal end of the proximal elongate member, a tissue locator coupled to an elongate member extending through the proximal elongate member, the tissue locator including a proximal portion having a plurality of slits disposed therein to facilitate the proximal portion changing from a delivery configuration to a deployed configuration by axially compressing and radially expanding, a distal portion having a plurality of slits disposed therein to facilitate the proximal portion changing from a delivery configuration to a deployed configuration by axially compressing and radially expanding, a distal member of the distal portion extends radially in the deployed configuration and is separated along the longitudinal axis from a proximal member that extends radially in the deployed configuration, a plurality of needle guide apertures formed in the proximal portion, a cuff removably mounted in the proximal member of the distal portion, in combination with the other claimed limitations.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Scribner et al. (US 5,830,125) discloses an elongate member having one or more guiding lumens, a handle and a needle.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOCELIN C TANNER whose telephone number is (571)270-5202. The examiner can normally be reached M-F 8am-4pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jackie Ho can be reached at (571)272-4696. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JOCELIN C TANNER/Primary Examiner, Art Unit 3771
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