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 Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-20 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 recites the limitation "the upper end portion of the tube body" in lines 6-7. There is insufficient antecedent basis for this limitation in the claim. No upper end of the tube body is introduced prior to this recitation in the claim. For examination purpose, the office will interpret this recitation to read, “the proximal end of the tube body”.
Claims 4, 10, and 17 recite the limitation "of the arms" in lines 6-7. There is insufficient antecedent basis for this limitation in the claim. Only one arm has been introduced prior to each respective recitation of “arms”. For examination purposes, these recitations will be interpreted to read “of the arm”.
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 (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 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.
Claims 1-5, 7, 10, 12-15, and 17-18 are rejected under 35 U.S.C. 103 as being unpatentable over Aferzon (US 20100240961 A1) in view of Sayegh (US 20140052140 A1).
Aferzon teaches a retractor tube device (2600, see Fig. 26), comprising:
a tube body (2300) with a proximal end (see labelled diagram of Fig. 26 below) and a distal end (see labelled diagram of Fig. 26 below), wherein the tube body (2300) includes at least one slot therein (2430);
an arm (2500) including an end portion (2502) thereof engaged with the proximal end (see labelled diagram of Fig. 26 below) of the tube body (2300; see Para. [0112]); and
at least one attachment member (2508),
wherein the end portion (2502) of the arm (2500) and the proximal end of the tube body (2300) are connected together with the at least one attachment member (2508) jointly engaged within a hole (2308) in the proximal end (see labelled diagram of Fig. 26 below) of the tube body (2300) and a mating engagement within the end portion (2502) of the arm (2500, see Para. [0112]) (claim 1),
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wherein: the proximal end portion of the tube body (2300) includes a channel (defined by additional bore 2308) therein;
the end portion (2502) of the arm (2500) is an annular-shaped end portion (see Fig. 25); and
the annular-shaped end portion (2502) of the arm (2500) is engaged within the channel (2308, see Para. [0112]) (claim 2),
wherein: the end portion (2502) of the arm (2500) includes a plurality of mating engagements (2508) therein (see Para. [0112]);
the proximal end (see labelled diagram of Fig. 26 above) of the tube body (2300) includes a plurality of holes (2308) therein (see Fig. 26);
each of the mating features (2508) of the arm is aligned with a respective one of the holes (2308) of the tube body (2300) to provide a plurality of aligned passages (see Para. [0112]);
the at least one attachment member (2508) is a plurality of attachment members (see three attachment members 2508 shown in Fig. 25); and
each one of the attachment members (2508) is engaged within a respective one of the aligned passages (see Para. [0112]) (claims 4, 10, and 17),
wherein the at least one slot (2904, located on distal end, see labelled diagram of Fig. 26 above) is located opposite the at least one attachment member (located on proximal end, see labelled diagram of Fig. 26 above) (claim 5),
wherein the tube body includes two opposing lateral window slots (2904) at the distal end thereof (see Para. [0123]) (claim 7),
wherein: the proximal end (see labelled diagram of Fig. 26 above) of the tube body (2300) includes a flange or a lip (2303); and
the end portion (2502) of the arm (2500) is engaged with the flange or the lip (2303) (claim 12), wherein: the flange or the lip (2303) includes a channel (additional bore 2308) therein; and
the end portion (2502) of the arm (2500) is engaged with the channel (see Para. [0112]) (claim 13), wherein the end portion (2502) of the arm (2500) is an annular-shaped end portion (see Fig. 25) (claim 14), wherein: the flange or the lip (2303) includes a channel (third of four holes 2308, see Para. [0098]) therein;
the end portion (2502) of the arm (2500) is engaged with the channel (see Para. [0112]); and
the end portion (2502) of the arm (2500) is an annular-shaped end portion (see Fig. 25) (claim 5), however fails to teach a hole within the end portion of the arm (claim 1), wherein the at least one attachment member is a pin (claims 3 and 15), wherein: the end portion of the arm includes a plurality of holes therein, each aligned with a corresponding hole of the tube body (claims 4, 10, and 17).
Sayegh teaches a retractor device (see Fig. 1), comprising a surgical retraction tube (20) and an arm (12), wherein the arm (12) has an end portion (14) configured to attach to an upper portion of the retractor tube (at portion 30); wherein the retractor tube (20) comprises a hole (see Para. [0035]) and the end portion (14) of the arm (12) also has a hole (see Para. [0035]), and where in the holes correspond in position (see Fig. 10A) and are configured to be joined with respective pins (16, see Fig. 10A).
It would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the attachment member of Aferzon such that it comprises a pin and a corresponding through hole in the arm (claims 1, 3, 15), such that the holes are aligned with corresponding holes in the body (claims 4, 10, and 17) as taught by Sayegh, as this would enable ease of attachment of the arm to the curvate body of the retractor tube (see Para. [0050] of Sayegh).
Claims 6, 8, 9, 11, 16, and 19-20 are rejected under 35 U.S.C. 103 as being unpatentable over Aferzon (US 20100240961 A1) in view of Sayegh (US 20140052140 A1) as applied in claims 1, 2, 15, and 18 above, and further in view of Mather et al. (US 20160270816 A1) (hereon referred to as Mather).
Aferzon teaches a retractor tube device as outlined in the rejection of claims 1, 2, 15, and 18 above, wherein the distal end (see labelled diagram of Fig. 26 above) of the tube body (2300) is inclined with a curved angular cut (see Fig. 23); and
the curved angular cut (see Fig. 23) at the inclined distal end (see labelled diagram of Fig. 26 above) is configured to allow a more accurate anatomical placement of the retractor tube preventing tissue creep by not being flush with an underlying bone structure of an anatomical structure of a patient (see Para. [0100]) (claims 9 and 20),
wherein the proximal end portion (see labelled diagram of Fig. 26 above) of the tube body (2300) includes a channel (defined by additional bore 2308) therein;
the end portion (2502) of the arm (2500) is an annular-shaped end portion (see Fig. 25);
the annular-shaped end portion (see Fig. 25) of the arm (2500) is engaged within the channel (see Para. [0112]);
the annular-shaped end portion (2502) of the arm (2500) and the upper end portion of the tube body (2300) are connected together with the at least one attachment member (2508) jointly engaged within a hole (2308) in the proximal end of the tube body (2300) and the end portion (2502) of the arm (2500); and
the at least one east one attachment member (2508) jointly engaged within the hole (2308) in the proximal end of the tube body (2300) and the end portion (2502) of the arm (2500) is located opposite the at least one slot (note that the attachment member is located on the proximal end of the body, while the at least one slot is located on the distal end of the body; see labelled diagram of Fig. 26 above) (claim 16),
and Sayegh teaches a pin configuration as outlined in the rejection above, such that the end portion of the arm comprises a hole (claim 16),
however the combination of the two fails to teach a slot that extends along an entire length of the tube body (claims 6, 11, and 16), wherein the pin is located opposite the at least one slot extends along an entire length of the tube body (claim 16), a full slot extending along an entire length of the tube body between the two lateral window slots (claims 19 and 8).
Mather teaches a retractor (10), comprising a tube body (12) and an arm (14, 16) comprising an end portion (14), wherein the tube body comprises a slot (20) that extends the entire length of the body (see Para. [0128]), such that it is located opposite to where the arm portion (16) is formed (see Figs. 3A-3C).
It would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the tube body of Aferzon to have a slot extending along the entire length of the tube body (claims 6, 11, and 16), such that the slot is formed opposite to the handle and therefore pin of Aferzon in view of Sayegh (claim 16), wherein the full slot falls between the two lateral window slots (claims 19 and 8) as taught by Mather, as the presence of a long slot would enable greater angular position of tools passing through the tube body as required for some procedures (see Para. [0131] of Mather).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
US 5125396 A: This reference teaches a retractor device with multiple detachable arms.
US 9247866 B2: This reference teaches a retractor device with a detachable arm portion.
US 20140128979 A1: This reference teaches a tubular retractor device with an arm.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to HOLLY J LANE whose telephone number is (703)756-4702. The examiner can normally be reached Monday-Friday 9:00am-5:00pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Eduardo Robert can be reached at 571-272-4719. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/H.J.L./Examiner, Art Unit 3773 /JACQUELINE T JOHANAS/Primary Patent Examiner, Art Unit 3773
