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 § 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.
(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.
Claims 1-8 are rejected under 35 U.S.C. 102(a)(1) and (a)(2) as being anticipated by Miyagishima et al (U.S. Patent Application 2023/0018150, hereinafter “Miyagishima”). Regarding claim 1, Miyagishima teaches an ultrasonic endoscope comprising:
a distal end portion that is disposed on a distal end side of an insertion part extending along a longitudinal axis direction (figure 6 element 340)
an ultrasonic transducer that is provided at the distal end portion and that emits an ultrasonic wave toward one side in a first direction orthogonal to the longitudinal axis direction (figure 6 element 346 with first direction shown by arrow below)
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an elevator that is disposed on a base end side in the longitudinal axis direction with respect to the ultrasonic transducer and that is provided to be rotatable between an elevating position and a falling position (figure 6 element 370 and paragraph 93 details rising and falling of elevator)
and an observation window (figure 6 element 352) that is disposed on the base end side in the longitudinal axis direction with respect to the elevator and through which an inside of a subject is observed
wherein, in the first direction, an end portion of the observation window on the one side in the first direction, an end portion of the elevator on the one side in the first direction in a case in which the elevator is located at the falling position, and an end portion of the ultrasonic transducer on the one side in the first direction are disposed in order from the one side (figure 6 see three elements pointed at with arrows below, with the observation window lower edge being lower than the pointed towards edge of the elevator, which is lower than the edge of the ultrasonic transducer in the first direction).
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Regarding claim 2, Miyagishima teaches an ultrasonic endoscope wherein:
the distal end portion includes a first region in which the ultrasonic transducer is provided and a second region that is disposed on the base end side in the longitudinal axis direction with respect to the first region and in which the elevator and the observation window are provided (figure 6 left of the dotted arrow below denotates the first region and the second region is to the right of the dotted arrow)
a first bottom surface portion of the first region and a second bottom surface portion of the second region are each disposed on the other side in the first direction, which is opposite to the one side, and the first bottom surface portion is disposed on the other side in the first direction with respect to the second bottom surface portion (figure 6 first and second bottom surfaces pointed at with arrows below)
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Regarding claim 3, Miyagishima teaches an ultrasonic endoscope wherein, in a case of being viewed in a second direction orthogonal to each of the longitudinal axis direction and the first direction, an angle formed between a first central axis of the first region and a second central axis of the second region is 1 degree or less (figure 7 see that ultrasonic transducer region and the elevator/observation window region are formed parallelly with respect to each other and the longitudinal direction of the device).
Regarding claim 4, Miyagishima teaches an ultrasonic endoscope wherein, in a case of being viewed in a second direction orthogonal to each of the longitudinal axis direction and the first direction, an angle formed between a first central axis of the first region and a second central axis of the second region is 1 degree or less (figure 7 see that ultrasonic transducer region and the elevator/observation window region are formed parallelly with respect to each other and the longitudinal direction of the device).
Regarding claim 5, Miyagishima teaches an ultrasonic endoscope wherein the distal end portion includes a balloon groove that is provided between the first region and the second region and that is used for attaching a balloon that covers the ultrasonic transducer (figure 6 balloon groove 390).
Regarding claim 6, Miyagishima teaches an ultrasonic endoscope wherein a groove region of the balloon groove on the other side in the first direction is formed of a pair of groove side surface portions facing each other in the longitudinal axis direction, a first groove side surface portion that is one of the pair of groove side surface portions is provided on a base end side of the first region in the longitudinal axis direction, and a second groove side surface portion that is the other of the pair of groove side surface portions is provided on a distal end side of the second region in the longitudinal axis direction, and the first groove side surface portion is formed to extend toward the other side in the first direction with respect to the second groove side surface portion (figure 6 see two groove side surfaces pointed at with arrows below).
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Regarding claim 7, Miyagishima teaches an ultrasonic endoscope wherein the ultrasonic transducer is a convex type (paragraph 90 “the ultrasonic observation part 336 has a convex type ultrasound transducer 346”) in which a plurality of ultrasonic oscillators are arranged in an arc shape along the longitudinal axis direction, and the elevator is disposed outside an ultrasonic wave scanning range of the ultrasonic transducer (figure 2 see ultrasonic oscillators 48 arranged in an arc along the longitudinal axis direction, and figure 6 see that elevator is not in view of the ultrasonic transducer).
Claim Rejections - 35 USC § 103
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 8 is rejected under 35 U.S.C. 103 as being unpatentable over Miyagishima in view of Miyagishima. Miyagishima discloses an ultrasonic endoiscope, but fails to explicitly disclose wherein the ultrasonic wave scanning range of the ultrasonic transducer is 180 degrees or less.
However, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to set the ultrasonic wave scanning range of the ultrasonic transducer of Miyagishima to be 180 degrees or less since it has been held that “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device” Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 SPQ 232 (1984). In the instant case, the ultrasonic transducer would not operate differently with the wave scanning range. Further, Applicant places no criticality on the range claimed, indicating in paragraph 87 that “the ultrasonic wave scanning range W of the ultrasonic transducer 50 shown in Fig. 7 is about 180 degrees, but the ultrasonic wave scanning range W need only be 180 degrees or less, and is, for example, preferably 90 degrees or more”. The applicant does not produce reason for this chosen value, and does not state that other values would not produce a working device.
Conclusion
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/DAYTON HYUN JIN BARKER/Patent Examiner, Art Unit 3795
/MICHAEL J CAREY/Supervisory Patent Examiner, Art Unit 3795
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