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 .
Priority
Acknowledgment is made of applicant's claim for foreign priority based on an application filed in KR (REPUBLIC OF KOREA) on 09/07/2022. It is noted, however, that applicant has not filed a certified copy of the KR10-2022-0113836/PCT/KR2023/013467 application as required by 37 CFR 1.55.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp.
Claims 1-37 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. - US 12089847 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because they are substantially co-extensive in scope, at least in regard to the novel subject matter, and differ merely in equivalent terminology used as to function. Both claim a surgical tool with one or more staple pulleys to drive a reciprocating assembly connected to a staple drive assembly and configured to move linearly in response to a rotational movement of the one or more staple pulleys, one or more staple pulleys at least partially formed between the first jaw pulley or the opposing pulley; and an operation member that is in contact with the reciprocating assembly and formed to move in one direction by the reciprocating assembly when the reciprocating assembly moves in the one direction; and in which the bidirectional rotational movement of the first staple pulley or the second staple pulley produces the reciprocating linear movement/clockwise direction and a counterclockwise direction movement to alternately move toward the distal end and the proximal end of the cartridge with reciprocating assembly and operating member configured to have when the first staple pulley is rotated in the direction opposite to the first direction among the clockwise direction and the counterclockwise direction, and the second staple pulley is rotated in the first direction among the clockwise direction and the counterclockwise direction, the link member connected to the staple pulleys, and the reciprocating assembly connected to the link member are moved toward a proximal end of the end tool, and the operation member remains stationary with respect to the one direction (current claims 1 and 10 & patented claims 1 and 11, 15) and pulley/retraction wire connected to the operation member/reciprocating assembly (current claim 1 & patented claims 1 and 16), where the first jaw pulley, the staple pulley, and the second jaw pulley are sequentially stacked (current claims 37 & patented claim 20). Generally, all of the dependent claims of the patent set forth the equivalent subject matter of the dependent claims of the current application. Therefore, it would have been obvious to one skilled in the art to substitute the terminology recited in the current claims with the equivalent components of the patented claims, since to do so provides nothing new or unexpected.
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) 1-8 and 10-14 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Viola (US 20090039137 A1) or, in the alternative, under 35 U.S.C. 103 as obvious over Viola (US 20090039137 A1) in view of Bolanos et al. (US 5897562 A) in view of Olson et al. (US 20060011699 A1) and further in view of LEE et al. (US 20210244427 A1).
Regarding claims 1, 4, and 7, Viola discloses surgical instrument (10) comprising: an end tool (16) that includes a jaw having a first jaw (20) and a second jaw (22) formed to face the first jaw, a first jaw pulley (cable roller 78) coupled to the jaw and formed to be rotatable around a first shaft (76), an opposing pulley (band roller 80) formed to be rotatable around a shaft (76) substantially the same as or parallel to the first shaft and formed to be spaced apart from the first jaw pulley by a certain extent (same as – both use 76, figs. 1-5), and
a staple drive assembly including one or more staple pulleys (90/94) at least partially formed between the first jaw pulley or the opposing pulley (90 is between 80/78 since fig. 6 shows 90 between 82/78 and is overlapping cable 50 a little which puts pulley 90 at least partially between longitudinally pulleys 78 and 80) wherein the staple drive assembly includes a first staple pulley and a second staple pulley (90/94) that face each other and rotationally move (fig. 6);
a cartridge (body portion 58) that includes a reciprocating assembly (96 drives 94 and/or flexible drive band 70) connected to the staple drive assembly and configured to move linearly in response to a rotational movement of the one or more staple pulleys, and an operation member (rack 96 and/or 74) that is in contact with the reciprocating assembly (engages 94 and/or 74 is in contact via being the middle portion of flexible drive band 70) and formed to move in one direction by the reciprocating assembly (96 drives 94 and/or flexible drive band 70) when the reciprocating assembly moves in the one direction (94 rotates toward/in the one direction and flexible drive band 70 moves linearly to drive 74); and
a retraction wire (second opposing side of flexible drive band 70- see fig. 6) connected to the operation member and formed to pull the operation member toward a proximal end of the jaw wherein, when the one or more staple pulleys rotate, the reciprocating assembly connected to the staple drive assembly moves toward a distal end or a proximal end of the cartridge ([0028-0048], figs. 1-6). Viola also discloses moving clamping member (30) to clamp the jaws with cable 50 working in conjunction with pulley 82 and cable 50 having advancing side 54 and retracting side (56, [0032-0037, 0044-0046], figs. 1-6) and alternatively the pulleys (90/94) are “coupled” to the jaw via (flexible drive band 70) in which reciprocating assembly (82/30) is connected to staple drive assembly (60 with pulleys 78/79), configured to move linearly (30 moves linearly) and an operation member (30) that is in contact with the reciprocating assembly to move in one direction (advance/retract) with retraction wire (50) connected to the operation member and formed to pull the operation member (30) toward a proximal end of the jaw ([0028-0048], figs. 1-6).
In the alternative, if it can be argued that Viola fails to disclose having the reciprocating assembly connected to the staple drive assembly and configured to move linearly in response to a rotational movement of the one or more staple pulleys, one or more staple pulleys at least partially formed between the first jaw pulley or the opposing pulley; and an operation member that is in contact with the reciprocating assembly and formed to move in one direction by the reciprocating assembly when the reciprocating assembly moves in the one direction; and a retraction wire connected to the operation member and formed to pull the operation member toward a proximal end of the jaw -
Bolanos et al. teaches similar surgical instrument (1 [0043], figs. 1-3) having a staple drive assembly (block member 37 and collar member 41 with cables 32) including one or more staple pulleys (48b) at least partially formed between a first jaw pulley or the opposing pulley (48a or 48c, fig. 4); and an operation member (28) that is in contact with a reciprocating assembly (36a and/or cable springs 60) connected to the staple drive assembly (block member 37 and collar member 41 with cables 32) and formed to move in one direction by the reciprocating assembly when the reciprocating assembly moves in the one direction; and a retraction wire (36) formed to pull the anvil jaw, wherein, when the one or more staple pulleys rotate, the reciprocating assembly connected to the staple drive assembly moves toward a distal end or a proximal end of the cartridge ([0028-0048], figs. 1-6). Bolanos et al. also teaches having a retraction wire (112) connected to pull a proximal end of a jaws (104 and anvil 26) to open/close/clamp (figs. 19 and 26-28) and using a single cable or a plurality of cables (col. 8, lines 47-67, col. 9 lines 1-65, figs. 19-28) and further Bolanos et al. teaches instrument 126 (figs. 29-32), having anvils 140 having operation member (146), cartridge 128, and triple staple driver/ejector 150 in which the driver 150 and anvils and operation member 146 are driven and retracted by a single wire/rod 138 (col. 9, lines 65-67, col. 10 lines 1-47, figs. 29-32).
Olson et al. also teaches a similar surgical instrument (10, fig. 1) having a staple drive assembly including one or more staple pulleys (600a/600b [0043-0076], figs. 1-12); and an operation member (150/160 with belts 700a/b) that is in contact with a reciprocating assembly (900/140 and/or reciprocating portions of 700a/b) and formed to move in one direction by the reciprocating assembly when the reciprocating assembly moves in the one direction; and a retraction wire (belt 700a/b and cable 900 will retract) connected to the operation member (150/160) and formed to pull the operation member toward a proximal end of the jaw wherein, when the one or more staple pulleys rotate, the reciprocating assembly connected to the staple drive assembly moves toward a distal end or a proximal end of the cartridge (900 is attached to the operation member 150/160 and reciprocating assembly 140 to move in the same one direction [0077-0085], figs. 1-14).
Further, LEE et al. also teaches discloses surgical instrument (100) comprising: an end tool (120) that includes a jaw having a first jaw (121) and a second jaw (122) formed to face the first jaw, a first jaw pulley (J12 pulley 123J12) coupled to the jaw and formed to be rotatable around a first shaft (123PA), an opposing pulley (J22 pulley 123J22) formed to be rotatable around a shaft (123JA) substantially the same as or parallel to the first shaft and formed to be spaced apart from the first jaw pulley by a certain extent, and a drive assembly including one or more drive pulleys (J24 pulley 123J24, pitch pulley 123P) at least partially formed between the first jaw pulley (J12 pulley 123J12) or the opposing pulley (J22 pulley 123J22) and a pitch wire (130P) connected to the pitch pulley 123P to pitch the jaws wherein, when the one or more staple pulleys rotate, the reciprocating assembly connected to the drive assembly to pitch ([0052-0070], figs. 2-12).
Given the teachings of Viola to have a compound dual/two pulley member with reciprocating cables to drive staples and a pulley cable reciprocating clamping member, 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 reciprocating assembly to be connected to the staple drive assembly and configured to move linearly in response to a rotational movement of the one or more staple pulleys, one or more staple pulleys at least partially formed between the first jaw pulley or the opposing pulley; and an operation member that is in contact with the reciprocating assembly and formed to move in one direction by the reciprocating assembly when the reciprocating assembly moves in the one direction; and a retraction wire connected to the operation member and formed to pull the operation member toward a proximal end of the jaw wherein, when the one or more staple pulleys rotate, the reciprocating assembly connected to the staple drive assembly moves toward a distal end or a proximal end of the cartridge to have increased leverage with additional pulleys, precise adjustment of the cables/staple drivers/clamping member for more precise operation of the tool, having a single drive cable system that drives the clamping member and the staples and/or for spacing purposes (more compact pulley system) as taught by Bolanos et al., Olson et al. and further taught and evidenced by LEE et al.
Regarding claim 2, Viola teaches the opposing pulley is a pulley (roller 78) for the retraction wire (opposing wire portion 74 of 70 shown in fig. 6 or cable 50), with which the retraction wire comes into contact ([0028-0048], figs. 1-6). Bolanos et al. also teaches retraction wire (36) formed to pull the anvil jaw ([0028-0048], figs. 1-6) and teaches having a retraction wire (112) connected to pull a proximal end of a jaws (104 and anvil 26) to open/close/clamp (figs. 19 and 26-28) and using a single cable or a plurality of cables (col. 8, lines 47-67, col. 9 lines 1-65, figs. 19-28) and further Bolanos et al. teaches instrument 126 (figs. 29-32), having anvils 140 having operation member (146), cartridge 128, and triple staple driver/ejector 150 in which the driver 150 and anvils and operation member 146 are driven and retracted by a single wire/rod 138 (col. 9, lines 65-67, col. 10 lines 1-47, figs. 29-32).
Regarding claim 3 Viola fails to disclose the opposing pulley is a second jaw pulley coupled to the second jaw.
Bolanos et al. teaches opposing pulley (48a or 48c, fig. 4) is a second jaw pulley coupled to the second jaw (38) and Bolanos et al. also teaches having a retraction wire (112) connected to pull a proximal end of a jaws (104 and anvil 26) to open/close/clamp (figs. 19 and 26-28) and using a single cable or a plurality of cables (col. 8, lines 47-67, col. 9 lines 1-65, figs. 19-28) and further Bolanos et al. teaches instrument 126 (figs. 29-32), having anvils 140 having operation member (146), cartridge 128, and triple staple driver/ejector 150 in which the driver 150 and anvils and operation member 146 are driven and retracted by a single wire/rod 138 (col. 9, lines 65-67, col. 10 lines 1-47, figs. 29-32).
Olson et al. also teaches staple drive assembly including one or more staple pulleys (600a/600b [0043-0076], figs. 1-12) is a second jaw pulley coupled to a second jaw (120).
Further, LEE et al. also teaches discloses surgical instrument (100) comprising: an end tool (120) that includes a jaw having a first jaw (121) and a second jaw (122) formed to face the first jaw, a first jaw pulley (J12 pulley 123J12) coupled to the jaw and formed to be rotatable around a first shaft (123PA), an opposing pulley/second jaw pulley coupled to the second jaw (J22 pulley 123J22, [0052-0070], figs. 2-12).
Given the teachings of Viola to have a compound dual/two pulley member with reciprocating cables to drive staples and a pulley cable reciprocating clamping member, 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 opposing pulley is a second jaw pulley coupled to the second jaw to have increased leverage with additional pulleys, precise adjustment of the cables/staple drivers/clamping member for more precise operation of the tool, having a single drive cable system that drives the clamping member via a specific pulley, and/or for spacing purposes (more compact pulley system) as taught by Bolanos et al., Olson et al. and further taught and evidenced by LEE et al.
Regarding claims 5-6 and 8-9, Viola discloses the one or more staple pulleys alternately rotate in a clockwise direction and a counterclockwise direction, the reciprocating assembly (96 drives 94 and/or flexible drive band 70) connected to the staple drive assembly alternately moves toward the distal end and the proximal end of the cartridge, wherein, when the reciprocating assembly moves toward the distal end of the cartridge, the operation member (rack 96 moves linear to drive 94) moves toward the distal end of the cartridge by the reciprocating assembly and a bidirectional rotational movement of the first staple pulley or the second staple pulley is converted into a reciprocating linear movement of the reciprocating assembly connected to the staple drive assembly, by the staple drive assembly (pulley 94 rotates to drive flexible drive band 70 linearly and/or rack 96 moves linear to drive 94) [0028-0048], figs. 1-6). Viola also discloses moving clamping member (30) to clamp the jaws with cable 50 working in conjunction with pulley 82 and cable 50 having advancing side 54 and retracting side (56, [0032-0037, 0044-0046], figs. 1-6) and alternatively the pulleys (90/94) are “coupled” to the jaw via (flexible drive band 70) in which reciprocating assembly (82/30) is connected to staple drive assembly (60 with pulleys 78/79), configured to move linearly (30 moves linearly) and an operation member (30) that is in contact with the reciprocating assembly to move in one direction (advance/retract) with retraction wire (50) connected to the operation member and formed to pull the operation member (30) toward a proximal end of the jaw ([0028-0048], figs. 1-6).
As discussed, In the alternative, if it can be argued that Viola fails to disclose having the reciprocating assembly connected to the staple drive assembly and configured to move linearly in response to a rotational movement of the one or more staple pulleys, one or more staple pulleys at least partially formed between the first jaw pulley or the opposing pulley; and an operation member that is in contact with the reciprocating assembly and formed to move in one direction by the reciprocating assembly when the reciprocating assembly moves in the one direction; and a retraction wire connected to the operation member and formed to pull the operation member toward a proximal end of the jaw in which the bidirectional rotational movement of the first staple pulley or the second staple pulley produces the reciprocating linear movement/clockwise direction and a counterclockwise direction movement to alternately move toward the distal end and the proximal end of the cartridge with reciprocating assembly and operating member -
Bolanos et al. teaches similar surgical instrument (1 [0043], figs. 1-3) having a staple drive assembly (block member 37 and collar member 41 with cables 32) including one or more staple pulleys (48b) at least partially formed between a first jaw pulley or the opposing pulley (48a or 48c, fig. 4); and an operation member (28) that is in contact with a reciprocating assembly (36a and/or cable springs 60) connected to the staple drive assembly (block member 37 and collar member 41 with cables 32) and formed to move in one direction by the reciprocating assembly when the reciprocating assembly moves in the one direction; and a retraction wire (36) formed to pull the anvil jaw, wherein, when the one or more staple pulleys rotate, the reciprocating assembly connected to the staple drive assembly moves toward a distal end or a proximal end of the cartridge jaw in which the bidirectional rotational movement of the first staple pulley or the second staple pulley produces the reciprocating linear movement/clockwise direction and a counterclockwise direction movement to alternately move toward the distal end and the proximal end of the cartridge with the reciprocating assembly and operating member ([0028-0048], figs. 1-6). Bolanos et al. also teaches having a retraction wire (112) connected to pull a proximal end of a jaws (104 and anvil 26) to open/close/clamp (figs. 19 and 26-28) and using a single cable or a plurality of cables (col. 8, lines 47-67, col. 9 lines 1-65, figs. 19-28) and further Bolanos et al. teaches instrument 126 (figs. 29-32), having anvils 140 having operation member (146), cartridge 128, and triple staple driver/ejector 150 in which the driver 150 and anvils and operation member 146 are driven and retracted by a single wire/rod 138 (col. 9, lines 65-67, col. 10 lines 1-47, figs. 29-32).
Olson et al. also teaches a similar surgical instrument (10, fig. 1) having a staple drive assembly including one or more staple pulleys (600a/600b [0043-0076], figs. 1-12); and an operation member (150/160 with belts 700a/b) that is in contact with a reciprocating assembly (900/140 and/or reciprocating portions of 700a/b) and formed to move in one direction by the reciprocating assembly when the reciprocating assembly moves in the one direction; and a retraction wire (belt 700a/b and cable 900 will retract) connected to the operation member (150/160) and formed to pull the operation member toward a proximal end of the jaw wherein, when the one or more staple pulleys rotate, the reciprocating assembly connected to the staple drive assembly moves toward a distal end or a proximal end of the cartridge jaw in which the bidirectional rotational movement of the first staple pulley or the second staple pulley produces the reciprocating linear movement/clockwise direction and a counterclockwise direction movement to alternately move toward the distal end and the proximal end of the cartridge with the reciprocating assembly and operating member (900 is attached to the operation member 150/160 and reciprocating assembly 140 to move in the same one direction [0077-0085], figs. 1-14).
Further, LEE et al. also teaches discloses surgical instrument (100) comprising: an end tool (120) that includes a jaw having a first jaw (121) and a second jaw (122) formed to face the first jaw, a first jaw pulley (J12 pulley 123J12) coupled to the jaw and formed to be rotatable around a first shaft (123PA), an opposing pulley (J22 pulley 123J22) formed to be rotatable around a shaft (123JA) substantially the same as or parallel to the first shaft and formed to be spaced apart from the first jaw pulley by a certain extent, and a drive assembly including one or more drive pulleys (J24 pulley 123J24, pitch pulley 123P) at least partially formed between the first jaw pulley (J12 pulley 123J12) or the opposing pulley (J22 pulley 123J22) and a pitch wire (130P) connected to the pitch pulley 123P to pitch the jaws wherein, when the one or more staple pulleys rotate, the reciprocating assembly connected to the drive assembly to pitch in which the bidirectional rotational movement of the first pulley or the second pulley produces the reciprocating linear movement/clockwise direction and a counterclockwise direction movement to alternately move toward the distal end and the proximal end of the jaw with the reciprocating assembly and operating member ([0052-0070], figs. 2-12).
Given the teachings of Viola to have a compound dual/two pulley member with reciprocating cables to drive staples and a pulley cable reciprocating clamping member, 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 reciprocating assembly to be connected to the staple drive assembly and configured to move linearly in response to a rotational movement of the one or more staple pulleys, one or more staple pulleys at least partially formed between the first jaw pulley or the opposing pulley; and an operation member that is in contact with the reciprocating assembly and formed to move in one direction by the reciprocating assembly when the reciprocating assembly moves in the one direction; and a retraction wire connected to the operation member and formed to pull the operation member toward a proximal end of the jaw wherein, when the one or more staple pulleys rotate, the reciprocating assembly connected to the staple drive assembly moves toward a distal end or a proximal end of the cartridge jaw in which the bidirectional rotational movement of the first staple pulley or the second staple pulley produces the reciprocating linear movement/clockwise direction and a counterclockwise direction movement to alternately move toward the distal end and the proximal end of the cartridge with reciprocating assembly and operating member to have increased leverage with additional pulleys, precise adjustment of the cables/staple drivers/clamping member for more precise operation of the tool, having a single drive cable system that drives the clamping member and the staples and/or for spacing purposes (more compact pulley system) as taught by Bolanos et al., Olson et al. and further taught and evidenced by LEE et al.
Regarding claims 19-20, Viola fails to disclose an elastic member is disposed between the second jaw and the first jaw, and in a standby state, the second jaw and the first jaw maintain an open state through the elastic member, wherein the elastic member is disposed to apply an elastic force in a direction in which the second jaw moves away from the first jaw.
Bolanos et al. teaches having an elastic member (spring 39 figs. 3 and 6 and/or spring 152 figs. 29-31) is disposed between the second jaw and the first jaw, and in a standby state, the second jaw and the first jaw maintain an open state through the elastic member wherein the elastic member is disposed to apply an elastic force in a direction in which the second jaw moves away from the first jaw (col. 5, lines 43-67, col. 6 lines 1-8, col. 9, lines 65-67, col. 10 lines 1-47, figs. 3, 6, and 29-32).
Given the teachings of Viola to have a compound dual/two pulley member with reciprocating cables to drive staples and a pulley cable reciprocating clamping member, 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 an elastic member is disposed between the second jaw and the first jaw, and in a standby state, the second jaw and the first jaw maintain an open state through the elastic member to have increased leverage, precise slower adjustment via bias of springs for more precise operation of the tool, having effector ready to go in open position, and/or for control the force of the clamping as taught by Bolanos et al.
Regarding claims 28, Viola discloses the retraction wire (second opposing side of flexible drive band 70 and/or cable 50- see fig. 6) is formed to be attachable and detachable by being fastened to or unfastened from the operation member (both flexible band 70 and cable 50 are “attachable and detachable by being fastened to or unfastened from the operation member”).
Regarding claims 34 and 37, Viola discloses one or more staple wires (70/50) coupled to the one or more staple pulleys and configured to rotate the one or more staple pulleys (80/90/94 and 78/82) and wherein the first jaw pulley, the one or more staple pulleys, and the opposing pulley are sequentially stacked (60 – compound pulley forming 78/80). Also, Bolanos et al. teaches having one or more staple pulleys, and the opposing pulley are sequentially stacked (drive pulleys 48a-48c fig. 4) and LEE et al. also teaches one or more staple pulleys, and the opposing pulley are sequentially stacked (J12 pulley 123J12, J22 pulley 123J22, J24 pulley 123J24, pitch pulley 123P, [0052-0070], figs. 2-12).
Allowable Subject Matter
Claims 10-18, 21-27, 29-33, 35-36 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 and if a proper and if a Terminal Disclaimer is filed for U.S. Patent No. - US 12089847 B2
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 surgical instrument device comprising all the structural and functional limitations and further comprising, amongst other limitations/features, a staple drive assembly comprising a first staple pulley and a second staple pulley formed adjacent to the first jaw pulley or the second jaw pulley; and
a cartridge comprising:
a reciprocating assembly that is connected to the staple drive assembly, and is linearly moved when the first staple pulley and the second staple pulley are rotationally moved; and
an operation member that is brought into contact with the reciprocating assembly, and is moved in one direction by the reciprocating assembly when the reciprocating assembly is moved in the one direction and “when the first staple pulley is rotated in the direction opposite to the first direction among the clockwise direction and the counterclockwise direction, and the second staple pulley is rotated in the first direction among the clockwise direction and the counterclockwise direction, the link member connected to the staple pulleys, and the reciprocating assembly connected to the link member are moved toward a proximal end of the end tool, and the operation member remains stationary with respect to the one direction”.
Viola (US 20090039137 A1) and Bolanos et al. (US 5897562 A) are considered to be the closest prior art.
Viola discloses a surgical stapler comprising an end tool comprising first and second jaws, first and second jaw pulleys, and a staple drive assembly comprising staple pulleys 90/94/78/80 and a cable driven slider beam 70/74, and a cartridge comprising an operational member that is moved by the cable driven slider beam. Viola fails to disclose a cartridge comprising a reciprocating assembly connected to the staple drive assembly, the reciprocating assembly being linearly moved when the staple pulleys are rotationally moved, and an operation member that contacts the reciprocating assembly and is moved in one direction by the reciprocating assembly when the reciprocating assembly is moved and “when the first staple pulley is rotated in the direction opposite to the first direction among the clockwise direction and the counterclockwise direction, and the second staple pulley is rotated in the first direction among the clockwise direction and the counterclockwise direction, the link member connected to the staple pulleys, and the reciprocating assembly connected to the link member are moved toward a proximal end of the end tool, and the operation member remains stationary with respect to the one direction”.
Bolanos et al. (US 5897562 A) also disclose a surgical stapler comprising an end tool comprising first and second jaws, a staple drive assembly comprising and staple drive pulleys (48a/48b/48c, fig. 4) and a cable driven slider beam 28, and a cartridge (38) comprising an operational member (36) that is moved by the cable driven slider beam. Bolanos et al. fails to disclose a first jaw pulley coupled to the first jaw, a second jaw pulley coupled to the second jaw, and a staple drive assembly including a first staple pulley and a second staple pulley and “when the first staple pulley is rotated in the direction opposite to the first direction among the clockwise direction and the counterclockwise direction, and the second staple pulley is rotated in the first direction among the clockwise direction and the counterclockwise direction, the link member connected to the staple pulleys, and the reciprocating assembly connected to the link member are moved toward a proximal end of the end tool, and the operation member remains stationary with respect to the one direction”.
The difference between the claimed subject matter and Viola, or a combination of Viola and Bolanos et al, is that neither disclose or teach “a cartridge comprising a reciprocating assembly connected to the staple drive assembly, the reciprocating assembly being linearly moved when the staple pulleys are rotationally moved, and an operation member that contacts the reciprocating assembly and is moved in one direction by the reciprocating assembly when the reciprocating assembly is moved and “when the first staple pulley is rotated in the direction opposite to the first direction among the clockwise direction and the counterclockwise direction, and the second staple pulley is rotated in the first direction among the clockwise direction and the counterclockwise direction, the link member connected to the staple pulleys, and the reciprocating assembly connected to the link member are moved toward a proximal end of the end tool, and the operation member remains stationary with respect to the one direction”.
The difference between the claimed subject matter and Viola, or a combination of Viola and Bolanos et al, would not have been obvious to a person having ordinary skill in the art, before the effective filing date of the claimed invention, since such modifications to the Viola structure would have gone beyond mere substitution or incorporation of a known structure capable of achieving predictable results. Any modification to the Viola structure to arrive at the claimed subject matter would have required a reworking of the structure and the principle of operation in a manner (replace band portion 74 with a I beam knife or sled type member) which would not have been apparent to a person having ordinary skill in the relevant art, and would have required the improper benefit of the teachings of Applicant’s disclosure.
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.”
Conclusion
Additional prior art considered pertinent: see form 892.
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/ROBERT F LONG/Primary Examiner, Art Unit 3731