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 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 18-24 and 31-37 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 claim 18, the term “substantially longer” renders the scope of the claim indefinite. It is noted that this term is subjective, and a standard by which to evaluate what qualifies as “substantially longer” is not set forth. As best understood, and for purposes of examination, this limitation will be treated as “longer.”
In claim 31, the term “substantial stretching” (the first blade, the second blade, and the third blade are configured to fit lengthwise within the incision without requiring substantial stretching of the incised tissue prior to opening the retractor) renders the scope of the claim indefinite. It is noted that this term is subjective, and a standard by which to evaluate what qualifies as “substantial stretching” is not set forth. As best understood, and for purposes of examination, this limitation will be treated without the indefinite term as, “the first blade, the second blade, and the third blade are configured to fit lengthwise within the incision prior to opening the retractor.”
Dependent claims are also rejected because they include the limitations of their respective parent claim(s).
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 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.
Claims 18-37 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Weiman et al. (2011/0224497; cited by Applicant).
Regarding claim 18, Weiman et al. disclose a retractor 10 (Fig. 4) comprising:
a first blade 12;
a second blade 14; and
a third blade 16, wherein the first blade, the second blade, and the third blade are configured to be inserted into an incision in a closed position,
wherein the first blade 12 and the second blade 14 are configured to move apart in a direction parallel to a length of the incision to cause the tissue to stretch in at least one direction along the length of the incision, creating an opening having a length longer than the incision (paras. 0043). It is noted that the first and second blades are parallel (Fig. 1, e.g., their axes and edges) and move apart in a parallel direction even along an arcuate path, i.e., they remain parallel. It is further noted (though the term substantially longer is indefinite; supra), that the opening created by the blades would be substantially longer than the incision (cf. Figs. 1 and 4).
Regarding claim 19, a first rotation mechanism 32 is configured to rotate the first blade 12 (Fig. 4; para. 0037).
Regarding claim 20, a second rotation mechanism 40 is configured to rotate the second blade 14 (Fig. 4; para. 0037).
Regarding claim 21, a first pivot mechanism 54 is configured to pivot the first blade 12 (Fig. 4; para. 0040).
Regarding claim 22, a second pivot mechanism 54 is configured to pivot the second blade 14 (Fig. 4; para. 0040).
Regarding claim 23, the first blade 12 is in front of the second blade 14 at least with respect to a desired frame of reference (Fig. 1).
Regarding claim 24, the first blade 12 is parallel to the second blade 14, e.g., as between axes and edges thereof, in the closed position (Fig. 1).
Regarding claim 25, the retractor 10 (Fig. 4) of Weiman et al. comprises:
a first blade 12;
a second blade 14; and
a third blade 16, wherein the first blade, the second blade, and the third blade are configured to be inserted into an incision in a closed position (Fig. 1; para. 0043),
wherein a length of the first blade 12, the second blade 14, and the third blade 16 are approximately equal to a length of the first blade in the closed position (Fig. 1; i.e., all three blades have a similar length, the length being the length of the first blade; note that “length” as defined by Applicant refers to the distance between the longitudinal edges of each blade),
wherein the first blade 12 and the second blade 14 are configured to move apart to increase a length of the incision from the length approximately equal to the length of the first blade (the diameter or length of an incision is approximately the length of the first blade 12; Fig. 1) to a length greater than the length of the first blade (para. 0043).
Regarding claim 26, the first blade 12 is configured to rotate via rotation mechanism 32 relative to the second blade 14 (Fig. 4; paras. 0034 and 0037).
Regarding claim 27, the first blade 12 is configured to pivot via pivot mechanism 54 relative to the second blade 14 (Fig. 4; paras. 0034 and 0040).
Regarding claim 28, the first blade 12 is configured to rotate via rotation mechanism 32 relative to the third blade 16 (Fig. 4; paras. 0034 and 0037).
Regarding claim 29, the first blade 12 is configured to pivot via pivot mechanism 54 relative to the third blade 16 (Fig. 4; paras. 0034 and 0037).
Regarding claim 30, the first blade 12 is configured to translate relative to the third blade 16 (Fig. 1; para. 0034, describing independent motion of the blades; e.g., blade 16 can translate away from blades 12 and 14).
Regarding claim 31, the retractor 10 (Figs. 1 and 4) of Weiman et al. comprises:
a first blade 12;
a second blade 14; and
a third blade 16, wherein the first blade, the second blade, and the third blade are configured to be inserted into an incision having a length (para. 0043),
wherein the first blade, the second blade, and the third blade are configured to fit lengthwise within the incision (i.e., a component of their length fits lengthwise within an incision) of the incised tissue prior to opening the retractor (Fig. 1). It is noted that the blades would be expected to fit within an incision without substantial stretching (though this limitation is indefinite; supra), because the blades are moved significantly outwardly after insertion (Fig. 4) which would be substantial relative to the insertion position (Fig. 1).
Regarding claim 32, a first rotation mechanism 32 is configured to rotate the first blade 12 about a first axis (Fig. 4; para. 0037).
Regarding claim 33, a second rotation mechanism 40 is configured to rotate the second blade 14 about a second axis (Fig. 4; para. 0037).
Regarding claim 34, the first blade 12 and the second blade 14 are configured to translate along a third axis (Fig. 1; para. 0034). For example, the first blade 12 and the second blade 14 can translate relative to the third blade 16 along the axis of motion of blade 16.
Regarding claim 35, a first pivot mechanism 54 is configured to pivot the first blade 12 about a fourth axis (Fig. 4; para. 0040).
Regarding claim 36, a second pivot mechanism 54 is configured to pivot the second blade 14 about a fifth axis (Fig. 4; para. 0040).
Regarding claim 37, the first blade 12 and the second blade 14 are configured to slide along (i.e., parallel with and near) a sixth axis, e.g., an axis centered between the blades as they are inserted into the arms 22 and 26 (Fig. 1).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure (see attached PTO-892).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DAVID C COMSTOCK whose telephone number is (571)272-4710. The examiner can normally be reached M-F 9:00-5:00 PST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Eduardo Robert can be reached at 571-272-4719. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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DAVID C. COMSTOCK
Examiner
Art Unit 3773
/DAVID C COMSTOCK/Examiner, Art Unit 3773
/EDUARDO C ROBERT/Supervisory Patent Examiner, Art Unit 3773