DETAILED ACTION
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 responsive to the amendments received after a Non-Final Rejection on 05 March 2026. Claims 1-27 are currently pending.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 6 is rejected under 35 U.S.C. 112(d) as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 6 repeats the same subject matter as is present in lines 16-18 of claim 1.
Applicant may cancel the claim, amend the claim to place the claim in proper dependent form, rewrite the claim in independent form, or present a sufficient showing that the dependent claim complies with the statutory requirements.
Claim Rejections - 35 USC § 102
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 21, 25 and 27 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Markart (U.S. Patent 1,891,431).
Markart discloses (as to claim 21) an assistance device (see Figures 2-5) capable of being used in a surgical setting (see Note below regarding the effect of the preamble) comprising a substantially ring-shaped band (1); a first clasp jaw (7) extending outwardly from the band (extension as best seen in Figure 4) and having an arcuately curved prong end (9); a second clasp jaw (6) extending outwardly from the band (extension as best seen in Figure 4) and having a first arcuately curved prong end (i.e. end defined by 8), wherein the arcuately curved prong end of the first clasp jaw opposingly faces the arcuately curved first prong end of the second clasp jaw (i.e. each prong defined by 8 faces 9 as best seen in Figures 2 and 3), with the first clasp jaw and the second clasp jaw when engaged together (i.e. where 9 is engaged within a slot defined by 8) forming a channel (i.e. channel defined by 2) (regarding the phrase “configured to receive a guidewire so that the guidewire is movably advanceable through the channel for insertion into a patient,” see Note below regarding functional language); and wherein one or more of the arcuately curved prong end of the first clasp jaw and the arcuately curved first prong end of the second clasp jaw are movable in relation to one another (see page 1, lines 85-98), wherein (as to claim 25) the band, the first clasp jaw and the second clasp jaw are capable of being integrally formed of a same material (see page 1, lines 51-61), and wherein (as to claim 27) the band is discontinuous (i.e. due to shapes and orientations of 4 and 5, see Figure 5) (see Figures 2-5, and page 1, line 47 – page 2, line 51).
Note: Regarding the effect of the preamble, statements in the preamble reciting the purpose or intended use of the claimed invention must be evaluated to determine whether or not the recited purpose or intended use results in a structural difference (or, in the case of process claims, manipulative difference) between the claimed invention and the prior art. Furthermore, a preamble generally is not limiting when the claim body describes a structurally complete invention such that deletion of the preamble phrase does not affect the structure or steps of the claimed invention (see MPEP 2111.02(II)). Regarding functional language, "[a]pparatus claims cover what a device is, not what a device does." Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original). A claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987) (see MPEP 2114(II)).
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.
Claim 26 is rejected under 35 U.S.C. 103 as being unpatentable over Markart (U.S. Patent 1,891,431), as applied to claim 21 above, in view of Ray, Sr. (U.S. Patent 5,597,305).
Markart discloses wherein the device is capable of being formed of metal (see page 1, lines 51-61); however, fail to explicitly disclose wherein the band, the first clasp jaw and the second clasp jaw are formed of a metal that can withstand medical sterilization at a temperature of about 270 °F or above.
Ray, Sr. teach the use of a surgical device (see Figure 1) having portions formed of a metal that can withstand sterilization at a temperature of 600 °F (see column 4, line 57 – column 5, line 2).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to construct the invention of Markart with wherein the band, the first clasp jaw and the second clasp jaw are formed of a metal that can withstand medical sterilization at a temperature of about 270 °F or above in view of Ray, Sr. in order to provide a well-known, obvious material capable of withstanding extreme temperatures during sterilization without negative effects to yield predictable results.
Allowable Subject Matter
Claims 1-5 and 7-20 are allowed.
The following is a statement of reasons for the indication of allowable subject matter (see the statement of reasons for the indication of allowable subject matter in Non-Final Rejection mailed on 31 December 2025 regarding claims 15-20). Claims 1-5 and 7-14 in the instant application have not been rejected using prior art because no references, or reasonable combination thereof, could be found which disclose, or suggest, in combination with the underlined limitations below, a surgical assistance device, comprising: a substantially ring-shaped band; a first clasp jaw extending outwardly from the band and having an arcuate prong end with an end face; a second clasp jaw extending outwardly from the band and having an arcuate first prong end and an arcuate second prong end, said arcuate first prong end having a first end face and said arcuate second prong end having a second end face, said arcuate first prong end and said arcuate second prong end being spaced apart, wherein at least a portion of the first clasp jaw is configured to be received between the arcuate first prong end and the arcuate second prong end of the second clasp jaw, with the first clasp jaw and the second clasp jaw when so engaged together forming a channel configured to receive a guidewire so that the guidewire is movably advanceable through the channel for insertion into a patient; and wherein one or more of the arcuate prong end of the first clasp jaw and the arcuate first prong end and the arcuate second prong end of the second clasp jaw are movable in relation to one another so that the arcuate prong end of the first clasp jaw and the arcuate first prong end and the arcuate second prong end of the second clasp jaw are separable from one another to open the channel, and as so separated, the end face of the arcuate prong end of the first clasp jaw opposingly faces the first end face of the arcuate first prong end and the second end face of the arcuate second prong end of the second clasp jaw.
Claims 22-24 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.
Claims 22-24 in the instant application have not been rejected using prior art because no references, or reasonable combination thereof, could be found which disclose, or suggest, the following:
Regarding at least claim 22, in combination with the limitations required by claim 21, no prior art reference could be found disclosing or making obvious wherein the band defines an elongated slot.
Regarding claim 24, in combination with the limitations required by claim 21, no prior art reference could be found disclosing or making obvious wherein the band defines a center axis, wherein the channel defines a channel center axis, and the channel center axis is substantially parallel to the center axis of the band.
Response to Arguments
Applicant’s arguments with respect to claims 21 and 25-27 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 LARRY E WAGGLE, JR whose telephone number is (571)270-7110. The examiner can normally be reached TEAP: Monday - Friday (7:45am - 3:45pm).
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/LARRY E WAGGLE, JR/Primary Examiner, Art Unit 3775