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 .
Response to Amendment
In the amendment filed on 06/02/2026, the following has occurred: claims 59 and 69 have been amended. Now, claims 59, 65-69, 74-77, and 82-83 remain pending.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
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.
Claims 59, 65-69, 74-77, and 82-83 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Step 2A Prong One
Claim 59 recites logging by a phacoemulsification system, used during the at least one surgical procedure, surgical data including least one of the following items: operating room efficiency, energy usage, energy usage over time, vacuum rate, vacuum rate over time, procedure time, time between procedures, procedures per selected time period, number of surgeries per period of selected time, settings of at least one surgical device, operating room turnover rate, system errors, user errors, and supplies used; receiving a user request to view the surgical data; generating a system request for retrieving the surgical data from the phacoemulsification system, wherein the system request includes a type identifier of the user terminal to determine a presentation format and one or more filters to retrieve the surgical data requested by the user; sending the system request for the surgical data to a phacoemulsification system; receiving the surgical data from the phacoemulsification system wherein, the surgical data is selected, based on the system request, from the data items logged during the at least one surgical procedure; and analyzing the received surgical data, including comparing the received surgical data with historical surgical data to analyze trends of selected cases as an aid to determine modified settings of the phacoemulsification system; and setting at least one parameter of the phacoemulsification system.
Claim 69 recites store surgical data from at least one surgical procedure including at least one of the following data items: operating room efficiency, energy usage, energy usage over time, vacuum rate, vacuum rate over time, procedure time, time between procedures, procedures per selected time period, number of surgeries per period of selected time, settings of at least one surgical device, operating room turnover rate, system errors, user errors, and supplies used; receive a user request to view the surgical data; generate a system request for retrieving the surgical data from the phacoemulsification system, wherein the system request includes a type identifier of the user terminal to determine a presentation format and one or more filters to retrieve the surgical data requested by the user; send the system request for the surgical data to the phacoemulsification system; receive the surgical data from the phacoemulsification system, wherein the surgical data is selected, based on the system request, from the data items stored and recorded logged during the at least one surgical procedure; analyze the received surgical data, including comparing the received surgical data with historical surgical data to analyze trends of selected cases as an aid to determine modified settings of the phacoemulsification system; and set at least one parameter of the phacoemulsification system.
These limitations, as drafted, given the broadest reasonable interpretation, but for the recitation of generic computer components, encompass managing interactions between people, which is a subgrouping of Certain Methods of Organizing Human Activity. For example, the claims encompass logging surgical data related to phacoemulsification, a user requesting data related to a phacoemulsification system, and including information regarding information regarding a user terminal (e.g. identifying a laptop or desktop), comparing the requested data to historical data for analyzing trends and determining modified settings of the phacoemulsification system. But for the recitation of generic computer components, such manual steps encompass Certain Methods of Organizing Human Activity. Note that certain activity between a person and a computer may fall within the certain methods of organizing human activity grouping (MPEP 2106.04(a)(2)C).
Claims 65-68, 74-77, and 82-83 incorporate the abstract idea identified above and recite additional limitations that expand on the abstract idea, but for the recitation of generic computer components. For example, claims 65, 67, 74, and 76 further expand on aspects of the user’s terminal and data related thereto. Claims 66 and 75 further include performing analysis of the surgical data, which further expands on the Certain Methods of Organizing Human Activity. Claims 68 and 77 further expand on the formatting. Claims 82-83 further recite formatting the received data and displaying it on a template and customization setting. Such formatting encompasses manually arranging the data, which further expands on Certain Methods of Organizing Human Activity.
Step 2A Prong Two
This judicial exception is not integrated into a practical application because amount to no more than general purpose computer components programmed to perform the abstract ideas along with insignificant, extra-solution data gathering and transmitting activity.
Claims 59, 65-68, and 82, directly or indirectly, recite the following generic computer components configured to implement the abstract idea: “a user terminal,” “at least one of a smart phone, a tablet computer, a portable computer, and a desktop computer.”
Claims 69, 74-77, and 83, directly or indirectly, recite the following generic computer components configured to implement the abstract idea: “a computer-based phacoemulsification system configured to record and store,” “a user terminal remote from the computer-based phacoemulsification system including a transceiver and a processor operatively coupled to the transceiver,” “at least one of a smart phone, a tablet computer, a portable computer, and a desktop computer.”
The written description discloses that the recited computer components encompass generic components including “one or more of a computer-based phacoemulsification system… smart phone, tablet, portable computer, personal desktop computer or the like. The communication network may be private or public, and may include communication over the Internet” (see paragraph 0020). As set forth in the MPEP 2106.04(d) “merely including instructions to implement an abstract idea on a computer” is an example of when an abstract idea has not been integrated into a practical application.
Claims 59 65-69, 74-77, and 82-83, directly or indirectly, recite the following additional elements at a high level of generality, amounting to no more than insignificant, extra-solution data gathering and transmitting activity: “the phacoemulsification system” recited in claims as a destination for “a request for the surgical data item,” and as a source of the received “surgical data” and “logging” the data. The claims do not recite carrying out any additional steps with the “phacoemulsification system” and as shown above, the specification describes this as a “computer-based” system. These limitations, recited at this high level of generality, amount to no more than insignificant, extra-solution data gathering and transmitting activity. As set forth in MPEP 2106.05(g) insignificant, extra-solution activity, such as insignificant acquisition and data transmission, is an example of when an abstract idea has not been integrated into a practical application.
Step 2B
The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because as discussed above with respect to integration into a practical application, the additional elements are recited at a high level of generality, and the written description indicates that these elements are generic computer components. Using generic computer components to perform abstract ideas does not provide a necessary inventive concept. See Alice, 573 U.S. at 223 (“mere recitation of a generic computer cannot transform a patent-ineligible abstract idea into a patent-eligible invention.”).
Insignificant, extra solution, data gathering activity (e.g. providing data to and from a device) has been found to not amount to significantly more than an abstract idea (see MPEP 2106.05(g) and Electric Power Group, LLC v. Alstom S.A., 830 F.3d 1350, 1354-55, 119 USPQ2d 1739, 1742 (Fed. Cir. 2016)).
Storing and retrieving information in memory (e.g. logging, recording, storing data) has been recognized as well-understood, routine, and conventional activity of a general-purpose computer (see MPEP 2106.05(d) and Versata Dev. Group, Inc. v. SAP Am., Inc., 793 F.3d 1306, 1334, 115 USPQ2d 1681, 1701 (Fed. Cir. 2015); OIP Techs., 788 F.3d at 1363, 115 USPQ2d at 1092-93).
Additionally, the aforementioned additional elements, considered in combination, do not provide an improvement to a technical field or provide a technical improvement to a technical problem. These additional elements merely carry out the abstract idea through data collection, data processing, data communication, and data storage. Therefore, whether considered alone or in combination, the additional elements do not amount to significantly more than the abstract idea.
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.
Claim(s) 59, 65-67, 69, 74-76, and 82-83 is/are rejected under 35 U.S.C. 103 as being unpatentable over Zacharias, US Patent Application Publication No. 2003/0159141 in view of Fein, US Patent Application Publication No. 2010/0056877 and further in view of Wong, US Patent Application Publication No. 2008/0064935.
As per claim 59, Zacharias teaches a computer-based surgery support method to retrieve, process, and display surgical data of at least one surgical procedure, comprising: storing surgical data including least one of the following items: operating room efficiency, energy usage, energy usage over time, vacuum rate, vacuum rate over time, procedure time, time between procedures, procedures per selected time period, number of surgeries per period of selected time, settings of at least one surgical device, operating room turnover rate, system errors, user errors, and supplies used (see paragraph 0092 maximum values, accumulated ultrasonic energy, rate of change of aspiration line vacuum, etc.); receiving by a user terminal a user request to view the surgical data (see paragraph 0086; computer 56 provides user interface based on the computer keyboard and pointing device; paragraph 0017; surgical data is requested through a user interface via user commands); generating by the user terminal a system request for retrieving the surgical data from the phacoemulsification system (see paragraph 0017; surgical data is requested through a user interface command to determine the data graphics of the surgical apparatus that are displayed. This includes a phacoemulsification system – paragraph 0083); sending by the user terminal the system request for the surgical data to the phacoemulsification system (see paragraph 0017; surgical data is requested through a user interface command to determine the data graphics of the surgical apparatus that are displayed. This includes a phacoemulsification system – paragraph 0083); receiving by the user terminal the surgical data from the phacoemulsification system, wherein the surgical data is selected, based on the system request (see paragraph 0017; surgical data is received for data graphics overlay), during at least one surgical procedure (see paragraph 0083; data is retrieved during a surgery); analyzing the received surgical data to analyze trends of selected cases as an aid to determine modified settings of the phacoemulsification system (see paragraph 0092; user retrieved surgical data is analyzed with respect to several aspects including rate of change (an example of variations in surgical data). The analysis could be used by a user as an aid for the intended use of determining modified settings of the phacoemulsification system); and setting at least one parameter of the phacoemulsification system by the user terminal (see paragraphs 0088-0089; provides information to a user that allows to setup the system and correct operation problems).
Although Zacharias teaches providing the user selected information in a format according to an overlay display terminal, as explained above, Zacharias does not explicitly teach the request includes a type identifier of the user terminal to determine a presentation format and one or more filters to retrieve the surgical data requested by the user. Zacharias also does not explicitly teach comparing the received surgical data with historical surgical data.
Fein teaches a request for surgical data include a type identifier of a user terminal and formatting the surgical data based on the type identifier of the user terminal (see paragraphs 0030-0032; user may initiate a request for data analysis results from a surgical procedure using user interface device. The type of device requesting the data is identified by a type of type of device (e.g. desktop, mobile, handheld, etc.), and requested data is formatted for the type of device performing the request)); to determine a presentation format and one or more filters to retrieve the surgical data requested by the user (see paragraphs 0030-0032; requested data formatted for the type of device as explained above, data results of the query being representative of filtered data). Note that the request for data may come from many types of user devices (see paragraph 0028), but is formatted differently for different types of user devices (see paragraph 0030). It would have been obvious to one of ordinary skill in the art at the time of the effective filing date to incorporate such user terminal type based formatting into the system of Zacharias with the motivation of enabling information provided to a user to be functional, accurate, and useful (see paragraph 0030 of Fein).
Zacharias and Fein do not explicitly teach the surgical data is selected from a plurality of data items logged during the at least one surgical procedure. Wong teaches logging surgical data during a surgical procedure (see paragraphs 0018 and 0020; surgical device records (logs) a plurality of data items during a surgical procedure and sends them to a surgical media center) and comparing the received surgical data with historical surgical data (see paragraph 0017; logged surgical device settings are compared to historical values of these parameters at least by evaluating the parameters and system settings at a particular instant and the parameters and system settings over the previous few seconds and how they have changed, as explained in Wong). This logged data set can be used for display in a graphical overlay during a phacoemulsification procedure (see paragraph 0022). It would have been obvious to one of ordinary skill in the art at the time of the effective filing date to incorporate this logging of procedure data for request, comparison, and overlay in the system of Zacharias and Fein with the motivation of providing historical analysis of surgical parameters during and after surgical procedures (see paragraph 0003 of Wong).
As per claim 65, Zacharias Fein, and Wong teaches the method of claim 59 as described above. Zacharias further teaches the type identifier indicates whether the user terminal is a smart phone, a tablet computer, a portable computer, or a desktop computer (see paragraph 0106; video overlay console connection can be performed to different computers. It can be a portable personal computer such as a notebook computer or a stationary personal computer).
As per claim 66, Zacharias, Fein, and Wong teaches the method of claim 59 as described above. Zacharias further teaches the analysis of the received surgical data pertains to at least one of the at least one surgical procedure, at least one surgeon, efficiency, product usage, and phacoemulsification system program settings (see paragraph 0090; includes at least analysis pertaining to the surgical procedure and phacoemulsification system program settings).
As per claim 67 Zacharias, Fein, and Wong teaches the method of claim 59 as described above. Zacharias further teaches the user terminal is at least one of a smart phone, a tablet computer, a portable computer, and a desktop computer (see paragraph 0106; video overlay console connection can be performed to different computers. It can be a portable personal computer such as a notebook computer or a stationary personal computer).
As per claim 82, Zacharias, Fein, and Wong teaches the method of claim 69 as described above. Zacharias further teaches formatting the received surgical data for display (see paragraph 0083; characters formatted in ASCII format). Zacharias does not explicitly teach the format is based on the type identifier of the user terminal; and display the received surgical data based on at least one of predefined templates and user selected customization settings. Fein teaches format is based on the type identifier of the user terminal (see paragraphs 0030-0032; user may initiate a request for data analysis results from a surgical procedure using user interface device. The type of device requesting the data is identified by a type of type of device (e.g. desktop, mobile, handheld, etc.), and requested data is formatted for the type of device performing the request)); and displaying the received surgical data based on at least one of predefined templates and user selected customization settings (see paragraph 0015; displayed overlay is according to personal settings and different templates). It would have been obvious to one of ordinary skill in the art at the time of the effective filing date to incorporate such user terminal type based formatting into the system of Zacharias with the motivation of enabling information provided to a user to be functional, accurate, and useful (see paragraph 0030 of Fein).
Claims 69, 74-76, and 83 recite substantially similar system limitations to method claims 59, 65-68, and 82 and, as such, are rejected for similar reasons as given above.
Claim(s) 68, and 77 is/are rejected under 35 U.S.C. 103 as being unpatentable over Zacharias, US Patent Application Publication No. 2003/0159141 in view of Fein, US Patent Application Publication No. 2010/0056877 and Wong, US Patent Application Publication No. 2008/0064935 and further in view of Gharib, US Patent Application Publication No. 2005/0075578.
As per claim 68, Zacharias, Fein, and Wong teaches the method of claim 82 as described above. Zacharias further teaches the received surgical data is formatted for display in a graphic representation of the numeric values (see paragraph 0090). However, Zacharias, Fein, and Wong does not explicitly teach at least one of a bar chart and a pie chart for the graphic representation. Gharib teaches displaying surgical data in at least one of a bar chart and a pie chart (see paragraph 0093). It would have been obvious to one of ordinary skill in the art at the time of the effective filing date to add a bar chart, as taught by Gharib, for the graphic display of numeric values of Zacharias and Fein with the motivation of presenting numeric data in an intuitive manner (see paragraph 0090 of Zacharias).
Claim 77 recites substantially similar system limitations to method claim 68 and, as such, is rejected for similar reasons as given above.
Response to Arguments
In the remarks filed 06/02/2026, Applicant argues (1) the claims are not limited to human activities applied in generic computer components because they include controlling of the phacoemulsification system based on retrieved data of past logged procedures; (2) the claims integrate any abstract idea into a practical application because they provide a technical solution to the technical problem of error prone surgical apparatus settings; (3) the claims differ from those in Electric Power Group because they require setting at least one parameter of the phacoemulsification system; (4) the data analysis of Zacharias, including determining rate of change of aspiration line vacuum is not an analysis of trends as recited in the claims.
In response to argument (1), the phacoemulsification system continues to only be recited as performing data storage, a destination of a requestion for information, and as a source of the requested information. The amended feature of “setting at least one parameter of the phacoemulsification system by the user terminal,” only involves setting a parameter, but does not require any physical operations by any phacoemulsification devices. This limitation encompasses a user entering any parameter based on any subjective reasoning because it is unrelated to any of the previously recited steps. Therefore, the examiner respectfully maintains that the claims are directed to an abstract idea as set forth in the updated rejections.
In response to argument (2), as explained above, the recited operations of the phacoemulsification system continue to only include those of a generic computer component. The claims do not recite any functional or structural limitations for the phacoemulsification system other than receiving and storing data, which are generic computer operations. As set forth in MPEP 2106.05(g) insignificant, extra-solution activity, such as insignificant acquisition and data transmission, is an example of when an abstract idea has not been integrated into a practical application. Furthermore, the argued improvement of addressing user inconvenience and user error is not a technical problem, but the results of users manually determining and implementing system settings. The solution of having a computer determine these settings does not integrate the abstract idea into a practical application. Rather it is the application of generic computer implementation to the abstract idea.
In response to argument (3), as explained above, the broadest reasonable interpretation of “setting at least one parameter of the phacoemulsification system by the user terminal” encompassing simply inputting parameter data. This continues to be similar to the receiving, analyzing, and outputting data of Electric Power Group.
In response to argument (4), it is first noted that the highlighted recitation of “comparing the received surgical data with historical surgical data to analyze trends” primarily relies on the teachings of Wong. With regard to “analyze trends,” the examine respectfully disagrees with Applicant’s position on this term and that of analyzing a rate of change of surgical data. The broadest reasonable interpretation of “trend” is a general direction in which something is developing or changing and “rate of change” is encompassed by this interpretation.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Bisch, International Publication WO 9808453 A1, discloses a touchscreen for setting the functions of a phacoemulsification system.
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 C. Luke Gilligan whose telephone number is (571)272-6770. The examiner can normally be reached Monday through Friday 9:00 - 5:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Robert Morgan can be reached on 571-272-6773. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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C. Luke Gilligan
Primary Examiner
Art Unit 3683
/CHRISTOPHER L GILLIGAN/ Primary Examiner, Art Unit 3683
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