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 .
This action is in response to the documents received on March 6, 2025.
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 1-3, 6 and 9-14 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by REITZE (US 4,718,803).
In reference to claim 1, REITZE discloses a staple 30 comprising: a backspan 31 extending between a first leg and a second leg 32; a first bend (see Diagram I below) between the first leg and the backspan; a second bend (see Diagram I below) between the second leg and the backspan; a first recess 33 (see Diagram I below) at the first bend; a second recess 33 (see Diagram I below) at the second bend; wherein figure 4 illustrates the surgical staple in a pre-deployed configuration where both recesses and both legs are closer to an (inner) first side of the backspan than an opposing second side of the backspan; wherein figures 1 and 2 illustrates the surgical staple in a deployed configuration in which both recesses and both legs are closer to an (inner) first side of the backspan than an opposing second side of the backspan; the first side of the backspan 31 configured to abut a substrate 20, 21 in the deployed configuration (figures 1 and 2).
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Diagram I
Regarding claim 2, column 2 lines 12-15 of REITZE further discloses the first recess 33 at the first bend as a configuration configured to reduce the force required to move the first leg (i.e. weaken) at the first bend (figure 2).
With respect to claim 3, figure 2 of REITZE further discloses a gap between the first and second staple legs 22 and the backspan 31 in the deployed configuration in which the substrate is supported.
In reference to claim 6, figure 1 of REITZE discloses the backspan 31 having a rectilinear configuration (column 2 lines 58-65)
Regarding claims 9, 10 and 12, figure 4 of REITZE discloses the first recess formed in a curvilinear inner side of the first bend, the first bend further having an outer curvinlinear side formed from a deformation of a wire defining the staple (column 2 lines 58-61).
With respect to claim 11, figure 11 of REITZE discloses the first and second legs 32 having a rectilinear configuration (column 2 lines 58-65).
In reference to claim 13, column 3 lines 3-7 of REITZE discloses a stapler comprising a cartridge (e.g. carriage) configured to house the staple 30.
Regarding claim 14, column 3 lines 3-10 of REITZE further discloses the stapler to comprise and anvil 40 that opposes the cartridge (e.g. carriage).
Claim Rejections - 35 USC § 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 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.
Claims 4 and 5 are rejected under 35 U.S.C. 103 as being unpatentable over HUANG et al. (US 2016/0100837).
In reference to claim 4 and 5, figure 2 of REITZE discloses a gap between the first and second staple legs 22 and the backspan 31 in the deployed configuration in which the substrate is supported, but does not disclose the specific dimensions of the gap.
It would have been obvious to one having ordinary skill in the art at the time the invention was filed to form the gap of less than or greater to 0.3048 millimeters since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art.1 Furthermore, it is well known in the art of stapling that the gap formed between the backspan and the legs of the staple in the deployed configuration are contingent upon the thickness of the substrate to which the staple is secured.
Claims 15-18 are rejected under 35 U.S.C. 103 as being unpatentable over HUANG et al. (US 2016/0100837) in view of REITZE (US 4,718,803).
With respect to claim 15, HUANG et al. discloses a stapler (figure 1) comprising: a cartridge 140, 240 housing a plurality of staples 285 formed from a wire (paragraph [0047]); an anvil 130 opposing the cartridge; and a cutting mechanism (figure 2) having an elongated member 160 supporting a cutting surface 163 at a distal end of the elongated member 160, and an elongated slot (figure 5) extending a portion of the length of the elongated member at the distal end (figure 2; See Diagram II below of Figure 5). Although figure 8 of HUANG et al. discloses the wire staples 285 to have a backspan extending between a first and second bend in a pre-deployed configuration, HUANG et al. does not disclose the wire staples 285 having a recess at the bends as claimed.
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Diagram II
REITZE teaches a staple 30 comprising: a backspan 31 extending between a first leg and a second leg 32; a first bend (see Diagram I below) between the first leg and the backspan; a second bend (see Diagram I below) between the second leg and the backspan; a first recess 33 (see Diagram I below) at the first bend; a second recess 33 (see Diagram I below) at the second bend; wherein figure 4 illustrates the surgical staple in a pre-deployed configuration where both recesses and both legs are closer to an (inner) first side of the backspan than an opposing second side of the backspan; wherein figures 1 and 2 illustrates the surgical staple in a deployed configuration in which both recesses and both legs are closer to an (inner) first side of the backspan than an opposing second side of the backspan; the first side of the backspan 31 configured to abut a substrate 20, 21 in the deployed configuration (figures 1 and 2). It would have been obvious to one having ordinary skill in the art at the time of filing the invention to provide a first and second recess in the first and second staple legs of the wire staples disclosed by HUANG et al. since column 2 lines 12-15 of REITZE states such a modification weakens the wire for the purpose of forming the wire staple into the pre-deployed configuration.
In reference to claim 16, HUANG et al. further discloses the elongated slot of the elongated member 160 to have a proximal slot portion, an intermediate slot portion and a distal slot portion (figure 5); wherein the distal slot portion extends higher than the proximal slot portion (see Diagram II of figure 5 above).
Regarding claim 17, HUANG et al. discloses the stapler further comprising a clamping member 114 detachably engaged (paragraph [0028]) by the distal portion 164 of the elongated member 160.
With respect to claim 18, figure 5 of HUANG et al. discloses the stapler further comprising a staple pusher 170 detachably engaged by a distal portion 162 of the elongated member 160.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Refer to the attached PTO-892 for a notice of references cited and recommended for consideration based on their disclosure of limitations related to the claimed invention; in particular, the disclosures of ROTHFUSS (US 4,014,492), NOILES et al. (US 4,407,286), CRAWFORD et al. (US 4,489,875), HOPKINS et al. (US 9,872,683) and GOODSTEIN (US 1,910,688) which are drawn to staples having a recess/notch formed therein.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to GLORIA R WEEKS whose telephone number is (571)272-4473. The examiner can normally be reached M-F 8am-2pm & 5pm-7pm EST.
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/GLORIA R WEEKS/Primary Examiner, Art Unit 3731
March 10, 2023
1 In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 198C).