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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on November 21, 2022 has been entered.
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 11, 15, and 18 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 11 is indefinite because it is unclear what is meant by an algebraic distance between values of a signal. It is unclear how only a single signal is used because two images are compared. Alternatively, it is unclear if values in the same signal are used and if so it is unclear from the claims and the specification how comparing a single signal is involved in a comparison of two images.
Claim 15 is indefinite because it is unclear if “different exposure times” means different starting times of exposure or different durations of exposure.
Claim 18 is indefinite because the claim recites a functional limitation without any structure to achieve said function or any explanation of how said function is achieved.
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 8, 9, 11-15, 17, and 18 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by U.S. PG Pub. No. 2010/0069759 A1 to Schuhrke et al.
Regarding claim 8, Schuhrke discloses a method, comprising monitoring diffusion over time of a fluorescent marker that has been injected into a biological tissue at an injection-time, wherein monitoring said diffusion of said fluorescent marker comprises using an excitation light source (see Figs. 1 and 4 and para 6-10, 17-19, and 23), exciting said fluorescent marker and, during an interval that begins after said injection-time and ends at an end-time (see Figs. 1 and 4 and para 6-10, 17-19, and 23), using a camera to acquire fluorescence images of an area of said biological tissue, wherein each of said fluorescence images corresponds to a set of pixels, wherein a value of a signal that represents an intensity of fluorescence emission at a point in said tissue is associated with each pixel in said set of pixels, wherein using said camera to acquire said fluorescence images comprises at a first start-time within said interval (see Figs. 1 and 4 and para 6-10, 17-19, and 23), executing a first image acquisition sequence, at a second start-time within said interval, executing a second image acquisition sequence, processing images that were acquired during said first image-acquisition (see Figs. 1 and 4 and para 6-10, 17-19, and 23), thereby generating a first image for comparison, processing images that were acquired during said second image-acquisition, thereby generating a second image for comparison, and displaying, on a screen, a result of said comparison, said result being an image representative of said area of said biological tissue (see Figs. 1 and 4 and para 6-10, 17-19, and 23).
Regarding claim 9, Schuhrke discloses a method, wherein comparing said first and second images comprises subtracting values of a signal representative of said intensity of said fluorescence emission (see Figs. 1 and 4 and para 6-10, 17-19, and 23).
Regarding claim 11, Schuhrke discloses a method, wherein comparing said first and second images comprises computing an algebraic distance between values of a signal representative of said intensity of said fluorescence emission (see Figs. 1 and 4 and para 6-10, 17-19, and 23, noting the difference taken in Schuhrke is specific form of an algebraic distance in one dimension and the specific species reads on the broader genus of an algebraic distance).
Regarding claim 12, Schuhrke discloses a method, wherein comparing said first and second images comprises executing a logic operation on values of a signal representative of said intensity of said fluorescence emission, said logic operation being selected from the group consisting of "or," “nor,” and "xor" (see Figs. 1 and 4 and para 6-10, 17-19, and 23, noting maximum values are selected and other not, such an arrangement includes “or” and “nor”).
Regarding claim 13, Schuhrke discloses a method, wherein processing of said fluorescence images is carried out for a given series of fluorescence images in order to align them with one another before summing them pixel-by-pixel (see Figs. 1 and 4 and para 6-10, 17-19, and 23).
Regarding claim 14, Schuhrke discloses a method, wherein executing an image acquisition sequence comprises acquiring a current background image, said method further comprising using said current background image to locate dynamic variations in said fluorescence signal in said area of said biological tissue when displaying said fluorescence images (see Figs. 1 and 4 and para 6-10, 17-19, and 23, noting that the first image is a background image used as a minimum value).
Regarding claim 15, Schuhrke discloses a method, wherein executing an image-acquisition sequence comprises acquiring plural series of fluorescence images, each of said series having different exposure times (see Figs. 1 and 4 and para 6-10, 17-19, and 23). Examiner notes the above rejection is in light of the indefiniteness rejection noted herein.
Regarding claim 17, Schuhrke discloses a device, for monitoring fluorescence emitted from a surface of a biological tissue, said apparatus comprising an excitation source, a camera, a computer, and a screen, wherein said excitation source is configured for emitting excitation radiation that excites a fluorescence marker, wherein said camera comprises a sensor that senses fluorescence light emitted as a result of said excitation radiation, wherein said computer is configured to record and store images captured by said camera and to execute computer- readable instructions for processing said images by carrying out said method recited in claim 8, and wherein said screen is configured to display images that result from said computer having processed said fluorescence images (see Figs. 1 and 4 and para 6-10, 17-19, and 23).
Claim 18 fails to recite a further structural limitation and the device of the prior art is capable of performing said functional limitation.
Claim Rejections - 35 USC § 102/103
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim 16 is rejected under 35 U.S.C. 102(a)(1) as anticipated by Schuhrke or, in the alternative, under 35 U.S.C. 103 as obvious over Schuhrke in view of the skill in the art.
Regarding claim 16, Schuhrke discloses a method, wherein executing an image-acquisition sequence comprises acquiring plural series of fluorescence images, each of said series having different gains (see para 10, noting that a skilled artisan would have known that amplification factor for changing brightness is another term for gain in the imaging arts).
Alternatively, Examiner takes Official Notice that multiple gains can be used and then adjusted to a common brightness for a better basis of comparison under varying imaging conditions.
Claim Rejections - 35 USC § 103
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Schuhrke in view of U.S. PG Pub. No. 2012/0326055 A1 to Wilson et al.
Regarding claim 10, Wilson discloses a similar fluorescence imaging method, wherein comparing said first and second images comprises computing a norm of a quantity represented by values of a signal representative of said intensity of said fluorescence emission (see para 51 and 71).
It would have been obvious and predictable to have used normalization of data because doing so would standardize data, thus providing for a better comparison that is already made in Schuhrke.
Response to Arguments
Applicant’s arguments with respect to claims 8-18 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
Any inquiry concerning this communication or earlier communications from the examiner should be directed to RAJEEV P SIRIPURAPU whose telephone number is (571)270-3085. The examiner can normally be reached 9-5 M-F.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor is Keith Raymond. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/RAJEEV P SIRIPURAPU/Primary Examiner, Art Unit 3798