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 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 that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: biasing mechanism in claims 2-3, which find support in the spec. as filed at [0025].
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/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 § 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.
Claim(s) 1-20 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US 2018/0116663 A1 to Bucciaglia et al. (hereinafter “Bucciaglia”).
Regarding claim 1, Bucciaglia discloses (see abstract; Figs. 1-2 & 15-17; Examiner's Diagram of Figs. 15-17 below; and [0056]-[0122]) a surgical instrument (100) comprising: a first jaw (102); a second jaw (104); and a first actuator (actuators at [0065], see Fig. 2 and [0057]) having a cam mechanism (112a and 110, see Figs. 15-17) configured to engage the first jaw to effectuate movement of the first jaw relative to the second jaw between an open position (Fig. 16)and a clamping position (Fig. 17), and to effectuate movement of the first jaw relative to the second jaw between the clamping position and a closed position (Fig. 15); wherein the cam mechanism has a first cam surface, a second cam surface at a first side of the cam mechanism, and a third cam surface at a second side of the cam mechanism; wherein the first jaw comprises a first jaw surface, a second jaw surface, and a third jaw surface facing the second jaw surface; and wherein the second cam surface is configured to engage the second jaw surface, and the third cam surface is configured to engage the third jaw surface, as the first actuator is moved distally to limit rotation of the first jaw relative to the second jaw between the clamping position and closed position (see Examiner's Diagram of Figs. 15-17 below and [0057], [0065], & [0109]-[0113]).
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Bucciaglia further discloses (claim 2) a biasing mechanism configured to bias the first jaw towards the open position (see Fig. 16, the distal end of 112a is considered an equivalent under 112f to a known mechanism for biasing, as it acts as a cam to engage the surface of the jaw to bias the jaw into the open position); (claim 3) wherein the biasing mechanism is configured to apply a translational force or a rotational force to the first jaw (see Figs. 15-16, the distal end of 112a is applying a rotational force to the jaw); (claim 4) wherein the second cam surface and the third cam surface are configured to simultaneously engage with the second jaw surface and the third jaw surface, respectively (see Figs. 15-17); (claim 5) wherein the second cam surface engaging the second jaw surface simultaneously with the third cam surface engaging the third jaw surface is configured to cause the first and second jaws to transition from the clamping position to the closed position (see Figs. 17/15); (claim 6) wherein the second cam surface engaging the second jaw surface simultaneously with the third cam surface engaging the third jaw surface is configured to stop a rotation of the first jaw relative to the second jaw (see Figs. 17/15); (claim 7) wherein the third cam surface is an upper surface of the first actuator (see Examiner's Diagram of Figs. 15-17 above); (claim 8) wherein the first jaw surface and the second jaw surface define a slot for allowing a part of the cam mechanism with the first and second cam surfaces to enter therein (see Figs. 15-17); (claim 9) wherein the slot has a slot axis that forms an acute angle with respect to a longitudinal axis of the first jaw (see Figs. 15-17); (claim 10) wherein the movement of the first jaw relative to the second jaw between the clamping position and the closed position is strictly translational (see Figs. 17/15); (claim 11) further comprising: a pin (176) at one of the first jaw or the second jaw; an elongated slot (174) positioned on the other one of the first jaw or the second jaw; wherein the pin and elongated slot are configured to allow a pivot axis of the first jaw to translate between a first position and a second position different from the first position (see [0089]-[0090] and Figs. 15-17); (claim 12) wherein the pin is distal to the second jaw surface and the third jaw surface (see Figs. 15-17); (claim 13) further comprising: a second actuator (122); and a translating member (118) positioned between the first actuator and the second actuator (see Fig. 2 and [0119]); (claim 14) wherein the translating member comprises a cutting mechanism (108) (see Fig. 2, [0094]/[0095]/[0119]); (claim 15) wherein the first cam surface extends between the second cam surface and the third cam surface, and forms an acute angle with respect to the second cam surface (see Figs. 15-17); (claim 16) wherein the second jaw surface and the third jaw surface are parallel to each other (see Fig. 17); (claim 17) wherein the first jaw surface is proximal to the second and third jaw surfaces (see Examiner's Diagram of Figs. 15-17 above); (claim 18) wherein the movement of the first jaw relative to the second jaw between the open position and the clamping position includes a rotational component (see Figs. 16-17); (claim 19) wherein the first side and the second side are opposite from each other (see Figs. 15-17); and (claim 20) wherein the first actuator is configured to translate between a first actuator position and a second actuator position to effectuate the movement of the first jaw relative to the second jaw between the open position and the clamping position, and to translate between the second actuator position to a third actuator position to effectuate the movement of the first jaw relative to the second jaw between the clamping position and the closed position (see Figs. 2 and 15-17 and [00587]/[0065]/[0109]-[0113]).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SHAUN L DAVID whose telephone number is (571)270-5263. The examiner can normally be reached M-F 10AM-6:30PM.
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, Darwin Erezo can be reached at 571-272-4695. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/SHAUN L DAVID/Primary Examiner, Art Unit 3771
