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 Objections
Claims 2, 10, and 17 are objected to because of the following informalities: It is not clear what the counter is counting. Appropriate correction is required.
Claim Rejections - 35 USC § 102/103
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 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.
(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.
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.
Claim(s) 1, 3-4, 6-9, 11-16, 18, and 20 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Leimbach et al. (US 20150272569 A1) or, in the alternative, under 35 U.S.C. 103 as obvious over Leimbach et al. (US 20150272569 A1) in view of Yates et al. (US 20100076474 A1) and further in view of Frauhammer et al. (US 20050161241 A1).
Regarding claims 1, 9, and 16, Leimbach et al. discloses a power tool/stapler (10/2000/2050/2093/2200, figs. 1-5, 32-41, 48-51) and method of controlling the power tool comprising: a motor (82); a trigger (32/130); and a controller (microcontroller 7004, fig. 59) connected to the trigger and the motor, the controller configured to: provide, in response to actuation of the trigger, power to the motor at a first power level, initiate, based on a characteristic of the power tool, a shutdown event, provide, in response to continued actuation of the trigger after the initiation of the shutdown event, power to the motor at a second power level ([0300-0301], figs. 51-61), and brake, in response to the trigger no longer being actuated the motor ([0230-0240, 0253] -also bailout door 2232 is removed) and teaches using a reduced pulse width modulation ("PWM") signal for the velocity/speed control [0150, 0188, 0216, 0232, 0300].
In the alternative, if it can be argued that Leimbach et al. fails to disclose initiate, based on a characteristic of the power tool, a shutdown event, provide, in response to continued actuation of the trigger after the initiation of the shutdown event, power to the motor at a second power level and brake, in response to the trigger no longer being actuated the motor –
Yates et al. teaches a similar power tool/stapler initiate, based on a characteristic of the power tool (end of stroke), a shutdown event, provide, in response to continued actuation of the trigger after the initiation of the shutdown event, power to the motor at a second power level and brake, in response to the trigger no longer being actuated the motor (reduce power at end, retract to T4 at slow speed, then proceed to fully power, then shutdown and also teaches a reduce power/soft start at T0-T1, brake when trigger released [0033, 0054-0060, 0067-0069], figs. 1-2 and 8-19, and 25).
Yates et al. states: “modulation circuit 148 may be used to control the speed of the motor 65 by driving the motor with short pulses. The duration of the pulses may be varied to control the speed of the motor 65… control the speed of the motor 65. In a frequency modulation circuit, the duty cycle of the pulse remains constant, by the frequency of the pulses changes to vary the speed of the motor [0058] ... if the operator releases the firing trigger 20 during a procedure while the motor is in the forward direction, power to the motor 65 will be eliminated or at least reduced, thereby providing a dynamic braking feature for the instrument 10”
Frauhammer et al. teaches a power tool (12) initiate, based on a characteristic of the power tool (exceeds a particular preset value- abnormal operating force and/or an abnormal operating torque), a shutdown event, provide, in response to continued actuation of the trigger after the initiation of the shutdown event, power to the motor at a second power level and brake, in response to the trigger no longer being actuated the motor (“reduce the power output more or less rapidly”, switching off or automatic braking [0017, 0023, 0034-0038], figs. 1-3).
Given the teachings of Leimbach et al. to have a microcontroller that pauses/stops a motor then starts back up a different speed, it 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 to modify the microcontroller to initiate, based on a characteristic of the power tool, a shutdown event, provide, in response to continued actuation of the trigger after the initiation of the shutdown event, power to the motor at a second power level and brake, in response to the trigger no longer being actuated the motor to have precise adjustment of speed/torque for more precise operation of the tool and more precise action on a stapling procedure with controlled stopping and/or for safety purposes such as improved control/feedback purposes to avoid dangerous rapid shutdown and ability to have continuation after stopping as taught by Yates et al. and Frauhammer et al.
Regarding claims 6-8, Leimbach et al. discloses an input device (use indicator/accelerometer 2406 or counter 2408, current sensor); and wherein the controller is further configured to: receive, via the input device, a parameter (usage cycle count/ measuring the number of firings, acceleration above the maximum acceleration tolerance [0267]) associated with the second power level (maximum acceleration tolerance [0259-0277, 0290]), an indicator (visual indication to the operator that the surgical instrument 2410 has exceeded the predetermined usage limit, cutting and/or firing resistance, display 2250, visual feedback devices [0191, 0200, 0235, 0276, 0290]); and wherein the controller is further configured to: control, in response to the shutdown event, the indicator to provide an indication of the shutdown event and in response to providing power to the motor at the second power level, the indicator to provide an indication of the shutdown event (predefined threshold values, current increases, “compare the most recent current reading to the immediately proceeding current reading” display 2250, visual feedback devices [0191, 0200, 0235, 0244-0245, 0253, 0259-0277, 0290-0301], claim 6, figs. 49-52).
Regarding claims 3-4, 11-12, 14-15, and 18, Leimbach et al. discloses: a sensor (use indicator/accelerometer 2406 or counter 2408, current sensor) configured to sense movement of the power tool, and wherein the controller is further configured to: determine, in response to continued actuation of the trigger after the initiation of the shutdown event and based on a signal from the sensor, whether movement of the power tool is greater than or equal to a movement threshold, and brake, in response to movement of the power tool being greater than or equal to the movement threshold, the motor, wherein the controller is further configured to: pulse, in response to movement of the power tool being less than the movement threshold, power to the motor using the reduced PWM signal ([0150, 0188-0191, 0200, 0216, 0232-0235, 0244-0245, 0253, 0259-0277, 0290-0301], claim 6, figs. 49-52).
Regarding claims 13 and 20, Leimbach et al. discloses: an input device (velocity control module); receiving, via an input device, a parameter associated with the second power level, and wherein the controller is further configured to: receive, via the input device, a frequency of the reduced PWM signal [0300].
Allowable Subject Matter
Claim 2, 5, 10, 17, and 19 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.
As allowable subject matter has been indicated, applicant's reply must either comply with all formal requirements or specifically traverse each requirement not complied with. See 37 CFR 1.111(b) and MPEP § 707.07(a).
Reasons for Allowable Subject Matter
The following is an examiner’s statement of reasons for allowance: the prior art of record fails to teach or render obvious a power tool device comprising all the structural and functional limitations and further comprising, amongst other limitations/features, a controller configured to increment, in response to continued actuation of the trigger after the initiation of the shutdown/pause event control speed with a counter; compare the counter to a counter threshold; and provide, in response to continued actuation of the trigger after the initiation of the shutdown event and in response to the counter being greater than or equal to the counter threshold, power to the motor at the second power level, :a sensor configured to sense movement of the power tool, wherein the controller is further configured to: determine, in response to continued actuation of the trigger after the initiation of the shutdown event and based on a signal from the sensor, whether movement of the power tool is greater than or equal to a movement threshold, and brake, in response to movement of the power tool being greater than or equal to the movement threshold, the motor. Though Leimbach et al. teaches a controller is further configured to: increment, in response to continued actuation of the trigger after the initiation of the shutdown/pause event control speed and teaches using a reduced pulse width modulation ("PWM") signal for the velocity/speed control [0150, 0188, 0216, 0232, 0300] one of ordinary skill would recognize that a adding a counter to a counter threshold or movement sensor to detect movement of the power tool to a movement threshold after the shutdown event would require modifying the control system to have the unexpected result of a safety system imitated after a hazard detected (a current/voltage of the motor, a current/voltage provided by the battery pack, a speed of the motor, a temperature of the electronics/battery pack, a torque provided by the motor and etc.) to have the power tool operate under guided caution. Having the efficiency and safety of the added sensor system to control the power tool to operate safety after a detected hazard (shutdown event) provides an effective feedback safety system.
While various features of the claimed subject matter are found individually in the prior art, a skilled artisan would have to include knowledge gleaned only from the applicant's disclosure to combine or modify the teachings of the prior art to produce the claimed subject matter, and thus obviousness would not be proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). There is no teaching, suggestion, or motivation found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art to combine or modify the teachings of the prior art to produce the claimed invention, and thus obviousness would not be proper. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007).
Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
Response to Arguments
In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., position of the trigger) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). Examiner contends that Leimbach et al.'s motor (82) is controlled by trigger (32/130) with microcontroller 7004 and Leimbach et al. does teach tracking the trigger position - Leimbach et al. states: “system 800, for example, configured to determine the position of the closure trigger 32 and/or the position of the firing trigger 130 [0123] … microcontroller can determine whether the firing trigger 130 is in its unfired position, its fully fired position, or a position therebetween” [0127]. Leimbach et al. also teaches stopping the motor based on a “characteristic” of the power tool (feedback – bailout, exceeds a threshold, “position of the longitudinally-movable drive member 2226 during a firing stroke of the firing drive system 2214” position thresholds [0230-0240]. Also, Leimbach et al. teaches the motor is controlled by firing trigger which is pivoted between an unactuated position and an actuated position [0126-0127].
With respect to stopping/shutdown the motor and then afterwards, power the motor at a second level, Leimbach et al. does teach stopping/shutdown the motor (pausing the firing element for a predefined period of time) and then afterwards power the motor at a second level – reduced level or increased level [0300-0301]. Leimbach et al. stops/pauses when current is increased and to help cut tissue and reduce chance of malformation of staples (slower speed reduces chance of malformed staple). If the trigger (130) is no longer actuated the motor is stopped/braked.
However, as discussed In the alternative, if it can be argued that Leimbach et al. fails to disclose initiate, based on a characteristic of the power tool, a shutdown event, provide, in response to continued actuation of the trigger after the initiation of the shutdown event, power to the motor at a second power level and brake, in response to the trigger no longer being actuated the motor –
Yates et al. teaches a similar power tool/stapler initiate, based on a characteristic of the power tool (end of stroke), a shutdown event, provide, in response to continued actuation of the trigger after the initiation of the shutdown event, power to the motor at a second power level and brake, in response to the trigger no longer being actuated the motor (reduce power at end, retract to T4 at slow speed, then proceed to fully power, then shutdown and also teaches a reduce power/soft start at T0-T1, brake when trigger released [0033, 0054-0060, 0067-0069], figs. 1-2 and 8-19, and 25). Yates et al. teaches stopping the motor, then slowing the motor speed to for cutting instrument (32) and stop retracting/no longer actuating the trigger to stop the motor.
Yates et al. states: “operator could stop retracting the firing trigger 20 to remove thereby force from the sensor 100, to stop thereby the motor 65 [0033] …if the operator releases the firing trigger 20 during a procedure while the motor is in the forward direction, power to the motor 65 will be eliminated or at least reduced, thereby providing a dynamic braking feature for the instrument 10” [0060]
Frauhammer et al. further teaches a power tool (12) initiate, based on a characteristic of the power tool (exceeds a particular preset value- abnormal operating force and/or an abnormal operating torque), a shutdown event, provide, in response to continued actuation of the trigger after the initiation of the shutdown event, power to the motor at a second power level and brake, in response to the trigger no longer being actuated the motor (“reduce the power output more or less rapidly”, switching off or automatic braking [0017, 0023, 0034-0038], figs. 1-3). Frauhammer et al. teaches both stopping and/or slowing the power tool if a characteristic (abnormal operating force) is detected.
Frauhammer et al. states: “control and/or regulating unit associated with the electric tool can reduce the power output more or less rapidly and more or less sharply, to zero if need be, possibly by switching off the drive motor, and/or an automatic braking mechanism can be triggered, which achieves a particularly rapid stopping of the insert tool and/or of the power end” [0023]
Given the teachings of Leimbach et al. to have a microcontroller that pauses/stops a motor then starts back up a different speed, it 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 to modify the microcontroller to initiate, based on a characteristic of the power tool, a shutdown event, provide, in response to continued actuation of the trigger after the initiation of the shutdown event, power to the motor at a second power level and brake, in response to the trigger no longer being actuated the motor to have precise adjustment of speed/torque for more precise operation of the tool and more precise action on a stapling procedure (have proper formed staples, cut tissue correctly/successfully) with controlled stopping and/or for safety purposes such as improved control/feedback purposes to avoid dangerous rapid shutdown and ability to have continuation after stopping as taught by Yates et al. and Frauhammer et al.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ROBERT LONG whose telephone number is (571)270-3864. The examiner can normally be reached M-F, 9am-5pm, 8-9pm (EST).
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/ROBERT F LONG/Primary Examiner, Art Unit 3731