DETAILED ACTION
This application is being examined under AIA first-to-file provisions.
Status of claims
Canceled:
1-8 and 18-28
Pending:
9-17 and 29-46
Withdrawn:
None
Examined:
9-17 and 29-46
Independent:
9, 29 and 38
Allowable:
none
Rejections applied
Abbreviations
x
112/b Indefiniteness
PHOSITA
"a Person Having Ordinary Skill In The Art before the effective filing date of the claimed invention"
112/b "Means for"
BRI
Broadest Reasonable Interpretation
112/a Enablement,
Written description
CRM
"Computer-Readable Media" and equivalent language
112 Other
IDS
Information Disclosure Statement
x
102, 103
JE
Judicial Exception
x
101 JE(s)
112/a
35 USC 112(a) and similarly for 112/b, etc.
101 Other
N:N
page:line or column:line
x
Double Patenting
MM/DD/YYYY
date format
Priority
As detailed on the 4/11/2022 filing receipt, this application claims priority to no earlier than 12/3/2014. All claims have been interpreted as being accorded this priority date.
Objections I-III to the specification
I. The title should be amended to more specifically reflect the claims, particularly the independent claims and referencing steps/elements: setting the context of the invention, particular to all claims, and distinguishing the instant application from any related applications. The title should be "descriptive" and "as... specific as possible" (MPEP 606, 1st para. and 37 CFR 1.72; also MPEP 606.01 pertains).
II. The specification is objected to as containing one or more hyperlinks (e.g. p. 16 and possibly additional instances). The content addressed by hyperlinks may be insufficiently immutable (in contrast for example to a typical journal publication or other printed reference), such that neither the use of hyperlinks nor reference to hyperlinked content is allowed under 37 CFR 1.57(e). All hyperlink(s) must be deleted, e.g. any form of Internet address, being potentially browser executable depending on the browser configuration, all being effectively a citation to a mutable webpage. Further information is provided at MPEP § 608.01. Alternatively and if desired, organizations may be cited in plain text, to the extent such citations are supported by the original disclosure (noting that citations in the specification do not constitute an IDS, and, unless citations are included on an IDS, they may not be considered). As another alternative, dated copies of content may be included via IDS (further information is provided at MPEP § 609.04(a)).
III. Also, the disclosed “H&E slide 228” appears to be in error at p. 20, line 18, since the figure indicates “225” for “H&E.”
Claim rejections - 112/b
The following is a quotation of 35 USC 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.
Claims 9-17 and 29-46 are rejected under 112/b, as indefinite for failing to particularly point out and distinctly claim the subject matter which applicant regards as the invention. Claims depending from rejected claims are rejected similarly, unless otherwise noted, and any amendments in response to the following rejections should be applied throughout the claims, as appropriate. With regard to any suggested amendment below, for claim interpretation during the present examination it is assumed that each amendment suggested here is made. However equivalent amendments also would be acceptable.
The following issues cause the respective claims to be rejected under 112/b as indefinite:
Claim
Recitation
Comment (suggestions in bold)
9, 15, 29, 35, 38, 44
computing a risk stratification score to combine the slide scores from an included subset of individual marker tissue slides using a set of coefficients
In claim 9, the relationship is unclear between the earlier recited "scoring..." and this instance of "the slide scores," which instance requires but lacks clear antecedent. Claim 15, 35 and 44 are rejected similarly.
Also in claim 9, the relationship is unclear between the earlier recited "slides" and this instance of "an included subset of individual marker tissue slides."
Also in claim 9, the BRI is unclear as to "individual" in this context, e.g. "individual" in contrast to what.
Claims 29, 35, 38 and 44 are rejected similarly.
9, 29, 38
patient
In claim 9, the relationship is unclear between the recited "patient may be stratified..." and the preceding steps and elements of the claim.
Claims 29 and 38 are rejected similarly.
10, 30, 39
a field of view on the image of the first tissue slide to compute slide scores
In claim 10, as to the recited "computing," the relationship is unclear between this "field of view" and the recited "slide scores," at least because the two elements relate to different slides, different images and potentially different specimens.
Claims 30 and 39 are rejected similarly.
12, 32, 41
hot spot
In claim 12, the recited "hot spot" is a term of relative or vague degree or form of association, neither defined in the specification (e.g. 5:8-30) nor having a well-known and sufficiently particular definition in the art and in the instant context. (MPEP 2173.05(b) pertains.)
Claims 32 and 41 are rejected similarly.
13, 33, 42
slide scoring
In claim 13, the relationship is unclear between the recitation and the claim 9 recited "scoring each of the plurality of other images of histopathological tissue slides."
Claims 33 and 42 are rejected similarly.
13, 33, 42
the image
Requires but lacks clear antecedent
13, 33, 42
each slide
Requires but lacks clear antecedent
15, 35, 44
a considered set of tissue slides
In claim 15, the relationship is unclear between this new instance of "slides" and the previously recited instances of one or more slides.
Claims 35 and 44 are rejected similarly.
15-16, 35-36, 44-45
the actual survival data...
In claim 15, the recitation requires but lacks clear antecedent.
Also in claim 15, the relationship is unclear between this element and steps and elements of claims 9-10 and 14.
Claim 16 is rejected similarly regarding its recited "tissue marker slides," "...protocols," "annotation generation," "...workflows..." and "patients."
Claims 35-36 and 44-45 are rejected similarly.
29, 38
...instructions that, when executed by the processor, cause...
Claim 29 is rejected as directly reciting a machine and a process in the same claim. A claim to a machine, e.g. here a "system," cannot directly recite a process step such as "...instructions that... cause..." MPEP 2173.05(p).II pertains. To overcome this rejection, it would suffice to add "configured to" before the process step so as properly focus on claimed structure. However, the effect of the recited "when..." clause should be considered. MPEP 2173.05(p).II pertains regarding a claim directed to both product and process.
Claim 38 is rejected similarly regarding its recited "...code that... causes..."
Claim interpretations
The following claim interpretations apply to all instances of the following terms throughout all claims:
Claim
Recitation
Comment
29, 38
...the memory to store computer-readable instructions...
In claim 29, in a BRI, the recited "...to store..." reads on intended use and does not clearly in all embodiments require actually storing.
This interpretation might be changed by, for example, amending "to store" to "storing."
Similarly, in claim 38, the recited "...configured to store..." does not clearly in all embodiments require actually storing. The recited "configured to" reads on interpretations such as "capable of."
In the above contexts, amendment reciting "storing" would be interpreted as a structural recitation, analogous to "comprising," as opposed to a process step.
Claim rejections - 35 USC 103
In the event the determination of the status of the application as subject to AIA 35 USC 102 and 103 is incorrect, any correction of the statutory basis 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 USC 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 of this title, 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 USC 102(b)(2)(C) for any potential 35 USC 102(a)(2) prior art against the later invention.
Claims 9-10, 12-17, 29-30, 32-39 and 41-46
Claims 9-10, 12-17, 29-30, 32-39 and 41-46 are rejected under 35 USC 103 as unpatentable over Giusiano (as cited on the attached "Notice of References Cited" form 892).
Regarding claim 9, the recited mapping among serial sections is taught as "serial tissue sections" and "slide images" (Giusiano: p. 890, 2nd col., 3rd through 4th paras.).
The recited scoring is taught as "Immunohistochemical expression of each marker" (Giusiano: p. 890, 2nd col., penultimate para.).
The recited computing risk is taught as "prognostic immunohistochemical signature indicative of risk" (Giusiano: abstract) and "identified patients with low risk of early metastasis," (Giusiano: p. 896, 2nd col., 3rd para.; also p. 896, 1st para.).
Repetition of previously recited steps and/or elements, such as specimen section acquisition, marking, imaging and analysis, would have been prima facie obvious (MPEP 2143 E., Example 9 pertains).
To the extent that the limitations within claim 9 are taught individually but are not explicitly taught with the recited relationships and sequencing among limitations -- as examples, separately teaching combinations of specimens, sections, markers, images, etc. -- then in the absence of a secondary consideration to the contrary, it would have been prima facie obvious to PHOSITA to try the recited combination of limitations as those limitations are taught individually as described above. Trying the recited combinations would have been examples of combining prior art elements, elements taught within the same reference, according to known methods to yield predictable results and choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success (MPEP 2143.I pertains).
The art is applied similarly to claims 29 and 38. The computational hardware of which claims would have been obvious over the computational aspects of Giusiano (e.g. "computerized devices," p. 896, last sentence and "computer-assisted densitometric quantification," p. 896, 2nd col., 3rd para.). Additionally, automating an activity, already known to be performed without automation, would have been prima facie obvious to PHOSITA (MPEP 2144.04.III pertains).
Regarding claim 10, the recited field of view is taught as "digitised microscopic micro-array images" (Giusiano: abstract) and "cropping of the slide image" (Giusiano: p. 890, 2nd col., 4th para.).
Regarding claim 12, the recited hot spot selection is taught as "cropping of the slide image" (Giusiano: p. 890, 2nd col., 4th para.).
Regarding claim 13, the recited analyzing and scoring are taught as "Image analysis" and "Densitometric measurements" (Giusiano: p. 890, 2nd col., 4th para.).
Regarding claim 14, the recited coefficients based on the field of view is taught as "Densitometric measurements... were assessed.. in each individually identified core after digitization and cropping of the slide images..." (Giusiano: p. 890, 2nd col., 4th para.).
Regarding claim 15, the recited Cox proportional hazard model is taught as "NCSS and Statistica statistical software" (Giusiano: p. 891, 2nd col., penultimate para.).
Regarding claim 16 the recited staining, scanning, annotation and analysis are taught as "Materials and methods" (Giusiano: p. 890, 1st through 2nd cols.).
Regarding claim 17, the recited cut-off is taught as "Cut-point values..." (Giusiano: p. 896, 1st para.).
The art is applied similarly to claims 10, 12-17, 30, 32-37, 39 and 41-46.
Claims 11, 31 and 40
Claims 11, 31 and 40 are rejected under 35 USC 103 as unpatentable over Giusiano as applied to claims 9-10, 12-17, 29-30, 32-39 and 41-46 above and further in view of Beck (as cited on the attached "Notice of References Cited" form 892).
The claim 11 recited field of view comprising a whole tumor is obvious over Beck's "...more powerful prognostic model by analyzing whole-slide images, because these might allow the generation of additional higher-level features (such as measurements of tumor heterogeneity) and might facilitate more robust model performance because we would be summarizing our features over a much larger area of the tumor" (Beck: p. 8, last para.).
The art is applied similarly to claims 31 and 40.
Combining Giusiano and Beck
In the absence of a secondary consideration to the contrary, it would have been prima facie obvious for PHOSITA to modify the teaching of Giusiano using the related teaching of Beck. As motivation to combine, an advantage taught by Beck of modifying methods such as those of Giusiano would have been the teaching of Beck that "...we could have derived a more powerful prognostic model..." (p. 8, last para.). Thus, PHOSITA would have been motivated to modify Giusiano using the above techniques of Beck in order to achieve the above advantage. One would have had a reasonable expectation of success in doing so because Giusiano and Beck are generally drawn to related teaching, and PHOSITA would have understood how to and would have been motivated to apply the teaching of Beck to the related teaching of Giusiano.
Prior art made of record but not relied upon
Additional art is listed on the attached form 892, made of record but not relied upon, and also is considered pertinent to applicant's disclosure.
Claim rejections - 101
35 USC 101 reads:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
For each rejection below, dependent claims are rejected similarly as not remedying the rejection, unless otherwise noted.
Judicial exceptions (JE) to 101 patentability
Claims 9-17 and 29-46 are rejected under 35 USC 101 because the claimed inventions are not directed to patent eligible subject matter. After consideration of relevant factors with respect to each claim as a whole, each claim is directed to one or more JEs (i.e. an abstract idea, a natural phenomenon, a law of nature and/or a product of nature), as identified below. Any elements or combination of elements beyond the JE(s) (i.e. "additional elements") are conventional and do not constitute significantly more than the JE(s). Thus, no claim includes additional elements amounting to significantly more than the JE(s), as explained below.
In Alice, citing Mayo and Bilski, two Mayo/Alice questions determine eligibility under 101: First, is a claim directed to a JE? And second, if so, does the claim recite significantly more than the JE?
MPEP 2106 organizes JE analysis into Steps 1, 2A (1st & 2nd prongs) and 2B as follows below.
MPEP 2106 and the following USPTO website provide further explanation and case law citations: www.uspto.gov/patent/laws-and-regulations/examination-policy/examination-guidance-and-training-materials.
Step 1: Are the claims directed to a process, machine, manufacture, or composition of matter? -- MPEP 2106.I and 2106.03
[Step 1: claims 9-17 and 29-46: YES]
Step 2A, 1st prong: Do the claims recite a judicially recognized exception, i.e. a law of nature, a natural phenomenon, or an abstract idea? -- abstract idea -- MPEP 2106.I and 2106.04
Preliminarily, in a 1st prong of Step 2A, elements of independent claim 9 are interpreted as directed to the abstract idea of data processing for cancer prognosis including the JE elements of "mapping…,” “scoring…” and “computing...," each of which, including all recitation within each listed element, in at least some embodiments within a BRI, involves only manipulation of data. While manipulation of data is not per se directed to an abstract idea, in this instance the above-identified elements are directed to the abstract ideas identified below.
Claims 29 and 38 are analyzed similarly.
BRIs of the claims are analogous to an abstract idea in the form of at least a mental process, at least equivalent to a computer-implemented process, including obtaining and comparing intangible data (e.g. Cybersource, Synopsys and Electric Power Group). In a BRI, it is not clear that the claim embodiments are limited so as to require complexity precluding analogy to a mental process.
BRIs of the claims also are analogous to an abstract idea in the form of a mathematical concept, including mathematical relationships and calculations, as found in the following case law, as cited and discussed above: collecting information, analyzing it, and displaying certain results of the collection and analysis (Electric Power Group) and/or obtaining and comparing intangible data (e.g. Cybersource, Ambry and Myriad CAFC) and/or execution of an algorithm to implement mathematical relationships and/or formulas, including image processing (e.g. TLI, Digitech, Benson, Flook, Diehr, FuzzySharp, In re Grams and In re Abele all as cited in MPEP 2106).
Instant examples of math concepts include the recited scoring images and computing risk stratification, as well as relationships inherent in recitations as the only supported embodiments.
The preceding case law examples are cited for the basic form of their identified abstract ideas, and analogy to these example abstract ideas need not be within the same technology field, 101 analysis generally being assumed to be neutral with respect to technology field.
Regarding inherency of abstract ideas, MPEP 2106.04.II.A.1 includes: "the claims in Alice Corp. v. CLS Bank, 'described' the concept of intermediated settlement without ever explicitly using the words 'intermediated' or 'settlement'" (emphasis added, p. 1). Similarly, inherency can effectively be recitation, as in, for example, "By claiming simply 'crystalline paroxetine hydrochloride hemihydrate' with no reference to how it was produced, SKB effectively claimed 'crystalline paroxetine hydrochloride hemihydrate whether non-naturally occurring or arising through natural conversion.' Claim 1, as issued, therefore combines patentable and unpatentable subject matter, and is invalid under Section 101." (capitalization added, SmithKline Beecham Corp. v. Apotex Corp., 365 F.3d 1306, 1321-33, Fed. Cir. 2004).
In the instant type of data processing claims, the specification is not merely adding background explanation as to how a claimed process works, e.g. a physical process based on, involving or further explained by abstract ideas and natural laws. Rather, the specification is detailing the only disclosed way that a programmer may proceed from the recited inputs to the recited outputs, e.g. through actual performance of the disclosed judicial exceptions (JEs).
Regarding the "Meaning of 'Recites,'" MPEP 2106.04.II.A.1 states:
In Prong One examiners evaluate whether the claim recites a judicial exception, i.e. whether a law of nature, natural phenomenon, or abstract idea is set forth or described in the claim. While the terms "set forth" and "described" are thus both equated with "recite", their different language is intended to indicate that there are two ways in which an exception can be recited in a claim. For instance, the claims in Diehr, 450 U.S. at 178 n. 2, 179 n.5, 191-92, 209 USPQ at 4-5 (1981), clearly stated a mathematical equation in the repetitively calculating step, and the claims in Mayo, 566 U.S. 66, 75-77, 101 USPQ2d 1961, 1967-68 (2012), clearly stated laws of nature in the wherein clause, such that the claims "set forth" an identifiable judicial exception. Alternatively, the claims in Alice Corp., 573 U.S. at 218, 110 USPQ2d at 1982, described the concept of intermediated settlement without ever explicitly using the words "intermediated" or "settlement."
While the "set forth" language approximates explicit recitation, it also is fundamental that all recitation must be interpreted and that to be patent eligible a claim must satisfy 101 according to its properly interpreted scope, e.g. for all embodiments on which the claim reads, e.g. according to any inherency pertinent to a given claim and disclosure accompanying that claim, i.e. consistent with the "described" meaning of "recites" as in the MPEP. Thus, within a BRI, the identified abstract idea elements read on one or more embodiments which only involve manipulation of data. It is not clear than any improvement argument clearly on the record causes a claim not to be directed to a JE for all embodiments within the scope of the claim.
As in Alice (at 306, as cited in the MPEP above) and Bilski (as cited in Alice, id), an abstract idea may comprise multiple abstract elements or steps (i.e. from Alice: "a series of steps" at 306) and need not be a single equation, relationship or principle.
It is not clear that the identified elements must represent other than an abstract idea according to any relevant analysis or case law.
[Step 2A, 1st prong, abstract idea: claims 9, 29 and 38: YES]
Step 2A, 2nd prong: If the claims recite a judicial exception under the 1st prong, then is the judicial exception integrated into a practical application? -- MPEP 2106.I and 2106.04(d)
MPEP 2106.04(d).I lists the following example considerations for evaluating whether a judicial exception is integrated into a practical application:
An improvement in the functioning of a computer or an improvement to other technology or another technical field, as discussed in MPEP §§ 2106.04(d)(1) and 2106.05(a);
Applying or using a judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition, as discussed in MPEP § 2106.04(d)(2);
Implementing a judicial exception with, or using a judicial exception in conjunction with, a particular machine or manufacture that is integral to the claim, as discussed in MPEP § 2106.05(b);
Effecting a transformation or reduction of a particular article to a different state or thing, as discussed in MPEP § 2106.05(c); and
Applying or using the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception, as discussed in MPEP § 2106.05(e).
In Step 2A, 1st prong above, claim steps and/or elements were identified as part of one or more judicial exceptions (JEs).
In Step 2B below, any remaining steps and/or elements are therefore in addition to the identified JE(s). Any such additional steps and additional elements are further discussed in Step 2B.
Here in Step 2A, 2nd prong, no additional step or element clearly demonstrates integration of the JE(s) into a practical application.
At this point in examination it is not yet the case that any of the Step 2A, 2nd prong considerations enumerated above clearly demonstrates integration of the identified JE(s) into a practical application. Referring to the considerations above, none of 1. an improvement, 2. treatment, 3. a particular machine or 4. a transformation is clear in the record.
For example, regarding the first consideration at MPEP 2106.04(d)(1), the record, including for example the specification, does not yet clearly disclose an explanation of improvement over the previous state of the technology field. The claims do not yet clearly result in such an improvement (e.g. specification: 2:7-15).
[Step 2A, 2nd prong: claims 9, 29 and 38: NO]
Step 2B: Do the claims recite a non-conventional arrangement of additional elements in addition to the identified JEs? -- MPEP 2106.I and 2106.05
Addressing the second Mayo/Alice question, all elements of claim 9 are part of one or more identified JEs (as described above), except for elements identified here as conventional elements in addition to the above judicial exceptions:
The recited "processor" (claim 29), "memory" (claim 29) and "medium" (claim 38) are conventional elements of a laboratory and/or computing environment and/or conventional data gathering/input/output elements, as exemplified in MPEP 2106.05(d).II and 2106.05(f-g).
It is emphasized that, outside of an improvement argument, analysis of what is conventional generally pertains to the above-identified additional elements and not to elements identified as part of a JE.
[Step 2B: claims 9, 29 and 38: NO]
Summary and conclusion regarding claims 9, 29 and 38
Summing up the above analysis of claims 9, 29 and 38, each viewed as a whole and considering all elements individually and in combination, no claim recites limitations that transform the claim, finally interpreted as directed to the identified JE(s), into patent eligible subject matter, and it is not clear that any claim is sufficiently analogous to controlling case law identifying an example of an eligible claim.
Remaining claims
Claims 10-17, 30-37 and 39-46 add elements which also are part of the identified JEs for the same reasons described above regarding the independent claims and therefore do not provide the something significantly more necessary to satisfy 101.
None of the dependent claim elements provides the something significantly more than the identified JE(s) necessary to satisfy 101.
Nonstatutory double patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine to prevent the improper timewise extension of the "right to exclude" granted by a patent and to prevent multiple suits against an accused infringer by different assignees of the same invention (MPEP 804.II.B, 1st para.). A nonstatutory double patenting rejection is appropriate where the conflicting claims (instant v. reference) are not identical, but an examined-application claim (instant claim) is not patentably distinct from a reference claim because the instant claim is either anticipated by, or would have been obvious over, the reference claim (MPEP 804.II.B, 2nd para.).
In cases of double patenting rejections versus reference claims of pending applications, as opposed to claims of an issued patent, the rejections are provisional because the reference claims have not been patented. Presently, no rejections are provisional.
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the application or patent of the reference claim either is shown to be commonly owned with the instant application or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. A registered attorney or agent of record may sign a terminal disclaimer. A terminal disclaimer signed by the assignee must comply fully with 37 CFR 3.73(b).
Applicant may wish to consider electronically filing a terminal disclaimer (MPEP 1490.V pertains, along with https://www.uspto.gov/patents-application-process/applying-online/eterminal-disclaimer). Electronic filing may lead to faster approval of the disclaimer. Also, if filing electronically, Applicant is encouraged to notify the examiner by telephone so that examination may resume more quickly.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used.
A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Double patenting rejections of instant claims 9-17 and 29-46
Instant claims 9-17 and 29-46 are rejected on the grounds of nonstatutory double patenting as unpatentable over one or more claims in reference patents:
10,489,904 (from application 15/374,998);
11,257,209 (from application 15/613,113);
11,288,795 (from application 16/659,545); and
12,100,146 (from application 17/685,115),
in view of Giusiano (as cited on the attached form 892), Linke (as cited on the attached form 892), Piramuthu (as cited on the attached form 892), Beck (as cited on the attached form 892), Ghaznavi (as cited on the attached form 892) and Klauß (as cited on the 7/25/2022 IDS).
Each reference patent as well as the instant application recite claims which input and analyze image data to result in quantitative risk assessment.
Although the reference claims are not identical to the instant claims, in a BRI they also are not patentably distinct from the instant claims: either (i) because the instant claims recite obviously equivalent or broader limitations in comparison to the reference claims or (ii) because the instant claims recite limitations which are obvious over the cited art. It is not clear that the instant claims recite limitations which are narrower than limitations in the reference claims.
It would have been obvious in view of the cited art to modify reference claims to arrive at the rejected instant claims. Either the instant limitations are interpreted as reading on a reference limitation, or the instant limitations would have been obvious in view of the cited art. That is, to the extent that any instant claims are narrower than reference claims, then any such narrowing would have been obvious over the cited art.
Citations to art
In the above citations to documents in the art, rejections refer to the portions of each document cited as example portions as well as to the entirety of each document, unless otherwise noted in the situation of lengthy, multi-subject documents. Other passages not specifically cited within a document may apply as well.
Conclusion
No claim is allowed.
A shortened statutory period for reply is set to expire THREE MONTHS from the mailing date of this communication.
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The examiner for this Office action, G. Steven Vanni, may be contacted at:
(571) 272-3855 Tu-F 8-7 (ET). If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Larry D. Riggs, II, may be reached at (571) 270-3062.
/G. STEVEN VANNI/Primary patents examiner, Art Unit 1686
