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 Objections
Claims 24 and 35 are objected to because of the following informalities:
Regarding claim 24, “first section” should be “the first section”.
Regarding claim 35, “the plurality of staple pockets” should be “the plurality of staple forming pockets”.
Appropriate correction is required.
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.
(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 21-24, 26-29, 32-34, 37-38, and 40 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Shelton et al (US 2018/0368839), hereinafter Shelton.
Regarding claim 21, Shelton discloses a surgical instrument (Fig. 10), comprising:
(a) a first portion (Fig. 10, item 1111, 1110) including a stapling assembly (Fig. 10, item 1111, 1110) having a plurality of staples (Para. 0450); and
(b) a second portion (Fig. 10, item 1130, 1135, 1146) including an anvil (Fig. 10, item 1130, 1135, 1146), the anvil including a plurality of staple forming pockets (Fig. 13, staple forming pockets are the two elongate anvil passages 1146 on either side of slot 1138) (Fig. 14, one staple forming pocket is left side of slot 1138 and other staple forming pocket is right side of slot 1138) configured to deform the staples (Para. 0457, pockets 1143, 1144, 1145 are located on underside of anvil 1130, on the anvil passage 1146 and are used to form staples simultaneously), wherein a total quantity of the staple forming pockets is less than a total quantity of the staples (Para. 0457, anvil has two anvil passages 1146, and cartridge 1111 holds more than two staples, see Fig. 10).
Regarding claim 22, Shelton discloses the surgical instrument of claim 21, wherein adjacent staple forming pockets of the plurality of staple forming pockets are identical (Fig. 14, one staple forming pocket is left side of slot 1138 and other staple forming pocket is right side of slot 1138, these staple forming pockets 1146 are identical, both containing pockets 1143, 1144, 1145).
Regarding claim 23, Shelton discloses the surgical instrument of claim 21, wherein the plurality of staple forming pockets are divided into a first section (Fig. 14, first section is left side staple forming pocket) and a second section (Fig. 14, second section is right side staple forming pocket) by an opening (Fig. 14, item 1138) in the anvil, wherein the opening is sized to fit a knife (Fig. 10, item 1666) (Para. 0449).
Regarding claim 24, Shelton discloses the surgical instrument of claim 23, wherein first section and the second section are symmetric to each other (Fig. 14, first section (left side) and second section (right side) are symmetric about the slot 1138).
Regarding claim 26, Shelton discloses the surgical instrument of claim 21, wherein the anvil includes a lateral wall (Fig. 14, lateral wall is side wall of anvil 1130), wherein a staple forming pocket (Fig. 14, left side of slot 1138 and right side of slot 1138 both extend to the lateral side walls of anvil 1130) of the plurality of staple forming pockets extends to the lateral wall (Fig. 14).
Regarding claim 27, Shelton discloses the surgical instrument of claim 21, wherein the anvil includes a proximal wall (Fig. 13, item 1148), wherein a staple forming pocket (Fig. 14, left side of slot 1138 and right side of slot 1138 both extend to the proximal wall 1148 of anvil 1130) of the plurality of staple forming pockets extends to the proximal wall (Fig. 13-14, Para. 0457-0458).
Regarding claim 28, Shelton discloses the surgical instrument of claim 21, wherein the anvil includes a longitudinal axis (Fig. 10, longitudinal axis occurs when anvil 1130 is in the closed position and anvil 1130 is parallel to cartridge 1111 and shaft 1400), wherein a staple forming pocket (Fig. 14, one staple forming pocket is left side of slot 1138 and other staple forming pocket is right side of slot 1138) of the plurality of staple forming pockets defines a pocket axis (Fig. 10, pocket axis runs parallel to staple forming pockets 1146), wherein the pocket axis is angled relative to the longitudinal axis at an angle being between perpendicular and parallel (Para. 0460, when anvil is in the open position, pocket axis, defined by staple forming pockets 1146 is at an angle from longitudinal axis, defined as parallel to staple cartridge 1111 and shaft 1400).
Regarding claim 29, Shelton discloses the surgical instrument of claim 21, wherein the anvil is a linear anvil (Fig. 10, 13-14, anvil 1130 is a linear anvil).
Regarding claim 32, Shelton discloses a surgical instrument (Fig. 10) having an anvil (Fig. 10, item 1130, 1135, 1146), the anvil including a staple forming pocket (Fig. 13, staple forming pockets are the two elongate anvil passages 1146 on either side of slot 1138) (Fig. 14, one staple forming pocket is left side of slot 1138 and other staple forming pocket is right side of slot 1138), the staple forming pocket being configured to form at least a portion of each of a plurality of staples simultaneously (Para. 0457, pockets 1143, 1144, 1145 are located on underside of anvil 1130, on the anvil passage 1146 and are used to form staples simultaneously).
Regarding claim 33, Shelton discloses the surgical instrument of claim 32, wherein anvil includes a plurality of staple forming pockets (Fig. 13, staple forming pockets are the two elongate anvil passages 1146 on either side of slot 1138) (Fig. 14, one staple forming pocket is left side of slot 1138 and other staple forming pocket is right side of slot 1138) of which the staple forming pocket is one thereof, wherein the plurality of staple forming pockets are less than the plurality of staples (Para. 0457, anvil has two anvil passages 1146, and cartridge 1111 holds more than two staples, see Fig. 10).
Regarding claim 34, Shelton discloses the surgical instrument of claim 32, wherein the anvil includes a lateral wall (Fig. 14, lateral wall is side wall of anvil 1130), wherein the staple forming pocket (Fig. 14, left side of slot 1138 and right side of slot 1138 both extend to the lateral side walls of anvil 1130) extends to the lateral wall (Fig. 14).
Regarding claim 37, Shelton discloses a method of using a surgical instrument (Fig. 10) having a plurality of staples (Para. 0450) and a plurality of staple forming pockets (Fig. 13, staple forming pockets are the two elongate anvil passages 1146 on either side of slot 1138) (Fig. 14, one staple forming pocket is left side of slot 1138 and other staple forming pocket is right side of slot 1138), the method including forming the plurality of staples using the plurality of staple forming pockets (Para. 0457, pockets 1143, 1144, 1145 are located on underside of anvil 1130, on the anvil passage 1146 and are used to form staples simultaneously), wherein each staple forming pocket of the plurality of staple forming pockets forms at least a portion of at least two staples of the plurality of staples (Para. 0457, anvil has two anvil passages 1146, and cartridge 1111 holds more than two staples, see Fig. 10).
Regarding claim 38, Shelton discloses the method of claim 37, wherein the step of forming includes simultaneously forming at least the portion of each of the at least two staples (Para. 0457, pockets 1143, 1144, 1145 are located on underside of anvil 1130, on the anvil passage 1146 and are used to form staples simultaneously).
Regarding claim 40, Shelton discloses the method of claim 37, the plurality of staple forming pockets being a portion of an anvil (Fig. 10, item 1130, 1135, 1146), the anvil including a lateral wall (Fig. 14, lateral wall is side wall of anvil 1130), wherein a staple forming pocket (Fig. 14, left side of slot 1138 and right side of slot 1138 both extend to the lateral side walls of anvil 1130) of the plurality of staple forming pockets extends to the lateral wall (Fig. 14).
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 25 is rejected under 35 U.S.C. 103 as being unpatentable over Shelton.
Regarding claim 25, Shelton discloses the surgical instrument of claim 21, wherein the anvil includes a deck surface (Fig. 13, item 1135), wherein a staple forming pocket (Fig. 13, staple forming pockets are the two elongate anvil passages 1146 on either side of slot 1138) (Fig. 14, one staple forming pocket is left side of slot 1138 and other staple forming pocket is right side of slot 1138) of the plurality of staple forming pockets is recessed into the deck (Fig. 13, staple forming pockets 1146 are recessed into underside 1135 of anvil) and includes a first angled wall (Fig. 13, item 1148) and a second angled wall (Fig. 13, angled wall at tip of anvil 1132).
Shelton does not expressly disclose wherein each of the first and second angled walls include different slopes to each other and relative to the deck surface.
However, it would have been an obvious matter of design choice to make the different portions of the angled walls of the staple forming pockets of whatever form or shape was desired or expedient. A change in form or shape is generally recognized as being within the level of ordinary skill in the art, absent any showing of unexpected results. In re Dailey et al., 149 USPQ 47.
Claims 30 and 35 are rejected under 35 U.S.C. 103 as being unpatentable over Shelton in view of Nalagatla et al (US 2017/0281189), hereinafter Nalagatla.
Regarding claim 30, Shelton is silent about the surgical instrument of claim 21, wherein the anvil is an annular anvil.
However, Nalagatla teaches a surgical instrument (Nalagatla, Fig. 15) comprising an anvil (Nalagatla, Fig. 15, item 2230) having a plurality of staple forming pockets (Nalagatla, Fig. 27, item 2234, wherein the anvil is an annular anvil (Nalagatla, Para. 0309-0311).
It would have been obvious to a person of ordinary skill in the art at the effective filing date of the invention having the teachings of Shelton and Nalagatla to modify the surgical instrument to include the annular anvil configuration of Nalagatla. A person of ordinary skill in the art would have been motivated to make such change in order to form the staples in a circular pattern to meet the needs of the patient and clinician (Nalagatla, Para. 0483).
Regarding claim 35, Shelton discloses the surgical instrument of claim 32, wherein anvil includes a plurality of staple forming pockets (Fig. 13, staple forming pockets are the two elongate anvil passages 1146 on either side of slot 1138) (Fig. 14, one staple forming pocket is left side of slot 1138 and other staple forming pocket is right side of slot 1138) of which the staple forming pocket is one thereof (Fig. 13), wherein each staple forming pocket of the plurality of staple pockets are identical (Fig. 14, one staple forming pocket is left side of slot 1138 and other staple forming pocket is right side of slot 1138, these staple forming pockets 1146 are identical, both containing pockets 1143, 1144, 1145).
Shelton is silent about wherein the anvil is annular.
However, Nalagatla teaches a surgical instrument (Nalagatla, Fig. 15) comprising an anvil (Nalagatla, Fig. 15, item 2230) having a plurality of staple forming pockets (Nalagatla, Fig. 27, item 2234, wherein the anvil is an annular anvil (Nalagatla, Para. 0309-0311).
It would have been obvious to a person of ordinary skill in the art at the effective filing date of the invention having the teachings of Shelton and Nalagatla to modify the surgical instrument to include the annular anvil configuration of Nalagatla. A person of ordinary skill in the art would have been motivated to make such change in order to form the staples in a circular pattern to meet the needs of the patient and clinician (Nalagatla, Para. 0483).
Claims 31, 36, and 39 are rejected under 35 U.S.C. 103 as being unpatentable over Shelton in view of Shelton et al (US 2012/0080339), hereinafter Shelton ‘339.
Regarding claim 31, Shelton is silent about the surgical instrument of claim 21, wherein a staple forming pocket of the plurality of staple forming pockets includes a length sized to simultaneously form and thereby overlap adjacent staples of the plurality of staples.
However, Shelton ‘339 teaches a staple forming pocket (Shelton ‘339, Fig. 9, item 912) of the plurality of staple forming pockets (Shelton ‘339, Fig. 9, item 90, 912) includes a length sized to simultaneously form (Shelton ‘339, Para. 0481) and thereby overlap adjacent staples of the plurality of staples (Shelton ‘339, Para. 0481).
It would have been obvious to a person of ordinary skill in the art at the effective filing date of the invention having the teachings of Shelton and Shelton ‘339 to modify the surgical instrument of Shelton to include the overlapping staple pattern of Shelton ‘339. A person of ordinary skill in the art would have been motivated to make such change in order to minimize the need for multiple lateral rows of staple while also minimizing the open pathways through which blood may pass (Shelton ‘339, Para. 0481).
Regarding claim 36, Shelton discloses the surgical instrument of claim 32, wherein anvil includes a plurality of staple forming pockets (Fig. 13, staple forming pockets are the two elongate anvil passages 1146 on either side of slot 1138) (Fig. 14, one staple forming pocket is left side of slot 1138 and other staple forming pocket is right side of slot 1138) of which the staple forming pocket is one thereof (Fig. 13).
Shelton is silent about wherein the anvil is configured to overlap the plurality of staples simultaneously.
However, Shelton ‘339 teaches a staple forming pocket (Shelton ‘339, Fig. 9, item 912) of the plurality of staple forming pockets (Shelton ‘339, Fig. 9, item 90, 912) includes a length sized to simultaneously form (Shelton ‘339, Para. 0481) and thereby overlap adjacent staples of the plurality of staples (Shelton ‘339, Para. 0481).
It would have been obvious to a person of ordinary skill in the art at the effective filing date of the invention having the teachings of Shelton and Shelton ‘339 to modify the surgical instrument of Shelton to include the overlapping staple pattern of Shelton ‘339. A person of ordinary skill in the art would have been motivated to make such change in order to minimize the need for multiple lateral rows of staple while also minimizing the open pathways through which blood may pass (Shelton ‘339, Para. 0481).
Regarding claim 39, Shelton is silent about the method of claim 37, further comprising using the plurality of staple forming pockets to interlock adjacent staples of the plurality of staples.
However, Shelton ‘339 teaches a method using a staple forming pocket (Shelton ‘339, Fig. 9, item 912) of the plurality of staple forming pockets (Shelton ‘339, Fig. 9, item 90, 912) to interlock adjacent staples of the plurality of staples (Shelton ‘339, Para. 0481).
It would have been obvious to a person of ordinary skill in the art at the effective filing date of the invention having the teachings of Shelton and Shelton ‘339 to modify the surgical instrument of Shelton to include the overlapping staple pattern of Shelton ‘339. A person of ordinary skill in the art would have been motivated to make such change in order to minimize the need for multiple lateral rows of staple while also minimizing the open pathways through which blood may pass (Shelton ‘339, Para. 0481).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to VERONICA MARTIN whose telephone number is (571)272-3541. The examiner can normally be reached Monday-Thursday 8:00-6:00.
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/VERONICA MARTIN/Primary Examiner, Art Unit 3731