DETAILED ACTION
The Applicant’s filing, received 05 July 2022, has been fully considered. The following rejections and/or objections constitute the complete set presently being applied to the instant application.
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 .
Status of the Claims
There were two sets of claims received on 05 July 2022. The set of claims without the header information “WO 2021/142213” and “PCT/US2021/012631” is the set of claims that has been examined.
Claims 1-15 are pending.
Claims 1-15 are rejected.
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
This application is a 371 of PCT/US2021/012631, filed 08 January 2021.
Claims 1-15 are given the benefit of provisional application number 62/958,833, filed 09 January 2020.
Drawings
There were two sets of drawings received on 05 July 2022. The set of drawings without the header information “WO 2021/142213” and “PCT/US2021/012631” is the set of drawings that has been examined.
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they include the following reference character(s) not mentioned in the description:
#270 (FIG 2G & FIG. 2H);
#3034 (FIG. 3); and
#3092 (FIG. 3).
Corrected drawing sheets in compliance with 37 CFR 1.121(d), or amendment to the specification to add the reference character(s) in the description in compliance with 37 CFR 1.121(b) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Specification
There were two specifications received on 05 July 2022. The specification without the header information “WO 2021/142213” and “PCT/US2021/012631” is the specification that has been accepted.
Information Disclosure Statement
The information disclosure statement (IDS) received 05 July 2022 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement has been considered by the examiner.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
Claim limitations in this application that use the word “means” (or “step”) and are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, are:
“a means for displaying…” in claims 1 & 2;
“a means for identifying…” in claims 1, 2, 5, 6, & 8;
“a means for receiving…” in claims 1 & 2;
“a means for resolving a conflict…” in claim 3;
“a means for determining…” in claim 5;
“a means to create…” in claim 5; and
“a means for calculating…” in claim 6.
Because these claim limitation(s) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, they are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
The written description discloses a corresponding structure for:
“a means for displaying…” in claims 1 & 2 (para. [0131], e.g., digital displays);
“a means for identifying…” in claims 1, 2, 5, 6, & 8 (paras. [0130] & [0131], e.g., processing component 6010 (FIG. 6) and multi-processor platform (FIG. 4));
“a means for receiving…” in claims 1 & 2 (para. [0130], e.g., processing component 6010 (FIG. 6) and multi-processor platform with I/O devices 4092 and input bus 4081/4091 (FIG. 4));
“a means for resolving a conflict…” in claim 3 (para. [0130], e.g., processing component 6010 (FIG. 6) and multi-processor platform (FIG. 4));
“a means for determining…” in claim 5 para. [0130], e.g., processing component 6010 (FIG. 6) and multi-processor platform (FIG. 4));
“a means to create…” in claim 5 para. [0130], e.g., processing component 6010 (FIG. 6) and multi-processor platform (FIG. 4)); and
“a means for calculating…” in claim 6 para. [0130], e.g., processing component 6010 (FIG. 6) and multi-processor platform (FIG. 4)).
If applicant does not intend to have these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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 1-15 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 is indefinite for reciting “the modified first image to collocate the first and second reduction points…” because it is not clear as to whether the “means for displaying” is also performing a method step “to collocate the first and second reduction points.”
Claims 2-8 are indefinite for depending from claim 1 and for failing to remedy the indefiniteness of claim 1.
Claim 9 is indefinite for reciting “the modified first image to collocate the first and second reduction points…” because it is not clear as to whether the instructions to “display a modified first image” also comprises instructions for “the modified first image to collocate the first and second reduction points.”
Claims 10-15 are indefinite for depending from claim 9 and for failing to remedy the indefiniteness of claim 9.
Claims 10-13 are further indefinite for reciting “wherein the processing circuitry is further enabled to…” because the claims are directed to a computer-readable storage medium comprising instructions for execution by a processor, however the computer-readable storage medium does not comprise processing circuitry.
Claims 2 and 10 recite the limitation "the third and fourth bone segments" in lines 8-9. There is insufficient antecedent basis for this limitation in the claim.
Claims 3, 4, 11, and 12 are indefinite for depending from either of claims 2 or 10 and for failing to remedy the indefiniteness of the claim from which they depend.
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 1-15 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The claims recite: (a) mathematical concepts, (e.g., mathematical relationships, formulas or equations, mathematical calculations); and (b) mental processes, i.e., concepts performed in the human mind, (e.g., observation, evaluation, judgement, opinion).
Subject matter eligibility evaluation in accordance with MPEP 2106.
Eligibility Step 1: Step 1 of the eligibility analysis asks: Is the claim to a process, machine, manufacture or composition of matter?
Claims 1-8 recite an apparatus to determine deformity parameters (i.e., a machine or manufacture).
Therefore, these claims are encompassed by the categories of statutory subject matter, and thus, satisfy the subject matter eligibility requirements under step 1.
[Step 1: YES]
Claims 9-15 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claims do not fall within at least one of the four categories of patent eligible subject matter because:
the claims are directed to a computer-readable storage medium that is not limited to non-transitory media, and therefore these claims comprise an embodiment that is a signal per se, because the broadest reasonable interpretation of the claims does not require the CRM to be limited to non-transitory media, and therefore could comprise transitory media, e.g., carrier waves, which are not patent eligible.
This rejection at Step 1 may be overcome by amending the claimed subject matter to be limited to a “non-transitory computer-readable storage medium” (see MPEP 2106.03 I.). However, amending the claims to recite a “non-transitory computer-readable storage medium” would not overcome a rejection at Step 2A or Step 2B, for the reasons noted below.
[Step 1: NO]
However, in the interest of compact prosecution, claims 9-15 are examined herein with respect to whether the claims are directed to an abstract idea without significantly more.
Eligibility Step 2A: First it is determined in Prong One whether a claim recites a judicial exception, and if so, then it is determined in Prong Two whether the recited judicial exception is integrated into a practical application of that exception.
Eligibility Step 2A Prong One: In determining whether a claim is directed to a judicial exception, examination is performed that analyzes 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.
Independent claim 1 recites an apparatus for performing the following steps which fall within the mental processes and/or mathematical concepts groupings of abstract ideas:
identifying a first reduction point on the first bone segment and a second reduction point on the second bone segment, the first and second reduction points to represent a connection point between the first and second bone segments (i.e., mental processes).
Independent claim 9 recites a computer-readable storage medium comprising instructions for performing the following steps which fall within the mental processes and/or mathematical concepts groupings of abstract ideas:
identifying a first reduction point on the first bone segment and a second reduction point on the second bone segment, the first and second reduction points to represent a connection point between the first and second bone segments (i.e., mental processes).
Dependent claims 2-8 and 10-15 further recite the following steps which fall within the mental processes and/or mathematical concepts groupings of abstract ideas, as noted below.
Dependent claim 2 further recites:
identifying a third reduction point on the first bone segment (i.e., mental processes); and
identifying a fourth reduction point on the second bone segment, the third and fourth reduction points to represent a second connection point between the third and fourth bone segments (i.e., mental processes).
Dependent claim 3 further recites:
resolving a conflict between a deformity parameter common to the modified first image and the modified second image (i.e., mental processes).
Dependent claim 4 further recites:
the deformity parameter common to the modified first image and the modified second image comprises an axial translation (i.e., mental processes).
Dependent claim 5 further recites:
identifying a third point on the first bone segment (i.e., mental processes);
identifying a fourth point on the second bone segment, the third and fourth points to represent a second interconnection point between the first and second bone segments on the first image (i.e., mental processes);
determining a cut line between the first bone segment and the second bone segment based on a line between the second reduction point and the fourth point (i.e., mental processes); and
create divided images from the first image, the divided images to include a first divided image with the first bone segment and a second divided image with the second bone segment (i.e., mental processes), wherein
the divided images can be aligned to collocate the first and second reduction points and one or both of the first divided image and the second divided image are angled to make dividing lines are colinear (i.e., mental processes),
the dividing lines are defined between the reduction points and additional points or the dividing lines are directly drawn on the image, one dividing line per bone segment (i.e., mental processes).
Dependent claim 6 further recites:
identifying two points on the first bone segment (i.e., mental processes);
calculating a first relative point relative to one or both of the two points on the first bone segment (i.e., mental processes and mathematical concepts);
identifying two points on the second bone segment (i.e., mental processes); and
calculating a second relative point relative to one or both of the two points on the second bone segment (i.e., mental processes and mathematical concepts), wherein
the first relative point on the first bone segment is the first reduction point and the second relative point on the second bone segment is the second reduction point (i.e., mental processes).
Dependent claim 7 further recites:
the first bone segment and the second bone segment comprise two segments of a fractured or osteotomized bone (i.e., mental processes); and
a coordinate system of the first image is established by a bone axis overlaid on the first image and image orientation requirements for the first image (i.e., mental processes and mathematical concepts).
Dependent claim 8 further recites:
identifying a cut line to separate the first image into a first portion comprising the first bone segment and a second portion comprising the second bone segment (i.e., mental processes).
Dependent claim 10 further recites:
identify a third reduction point on the first bone segment (i.e., mental processes); and
identify a fourth reduction point on the second bone segment, the third and fourth reduction points to represent a second connection point between the third and fourth bone segments (i.e., mental processes).
Dependent claim 11 further recites:
resolve a conflict between a deformity parameter common to the modified first image and the modified second image (i.e., mental processes).
Dependent claim 12 further recites:
modify image segments of the first image relative to the reduction points (i.e., mental processes), wherein
the image segments include a first image segment with the first bone segment and the first reduction point and a second image segment with the second bone segment and the second reduction point (i.e., mental processes), wherein
modifications to the image segments translate the first and second reduction points relative to one another (i.e., mental processes).
Dependent claim 13 further recites:
identify a third point on the first bone segment (i.e., mental processes);
identify a fourth point on the second bone segment, the third and fourth points to represent a second interconnection point between the first and second bone segments on the first image (i.e., mental processes); and
determine a cut line between the first bone segment and the second bone segment based on a line between the second reduction point and the fourth point (i.e., mental processes).
Dependent claim 14 further recites:
identification of two points on the first bone segment (i.e., mental processes);
calculation of the midpoint between the two points on the first bone segment (i.e., mental processes and mathematical concepts);
identification of two points on the second bone segment (i.e., mental processes); and
calculation of the midpoint between the two points on the second bone segment, wherein the midpoint between the two points on the first bone segment is the first reduction point and the midpoint between the two points on the second bone segment is the second reduction point (i.e., mental processes and mathematical concepts).
Dependent claim 15 further recites:
the first bone segment and the second bone segment comprise two segments of a fractured or osteotomized bone (i.e., mental processes).
The abstract ideas recited in the claims are evaluated under the broadest reasonable interpretation (BRI) of the claim limitations when read in light of and consistent with the specification. As noted in the foregoing section, the claims are determined to contain limitations that can practically be performed in the human mind with the aid of a pen and paper (e.g., identifying a first reduction point on the first bone segment and a second reduction point on the second bone segment, the first and second reduction points to represent a connection point between the first and second bone segments), and therefore recite judicial exceptions from the mental process grouping of abstract ideas. Additionally, the recited limitations that are identified as judicial exceptions from the mathematical concepts grouping of abstract ideas (e.g., calculation of the midpoint between the two points on the second bone segment, wherein the midpoint between the two points on the first bone segment is the first reduction point and the midpoint between the two points on the second bone segment is the second reduction point) are abstract ideas irrespective of whether or not the limitations are practical to perform in the human mind.
Therefore, claims 1-15 recite an abstract idea.
[Step 2A Prong One: YES]
Eligibility Step 2A Prong Two: In determining whether a claim is directed to a judicial exception, further examination is performed that analyzes if the claim recites additional elements that when examined as a whole integrates the judicial exception(s) into a practical application (MPEP 2106.04(d)). A claim that integrates a judicial exception into a practical application will apply, rely on, or use the judicial exception in a manner that imposes a meaningful limit on the judicial exception. The claimed additional elements are analyzed to determine if the abstract idea is integrated into a practical application (MPEP 2106.04(d)(I); MPEP 2106.05(a-h)). If the claim contains no additional elements beyond the abstract idea, the claim fails to integrate the abstract idea into a practical application (MPEP 2106.04(d)(III)).
The judicial exceptions identified in Eligibility Step 2A Prong One are not integrated into a practical application because of the reasons noted below.
Dependent claims 7, 14, and 15 do not recite any elements in addition to the judicial exception, and thus are part of the judicial exception.
The additional elements in independent claim 1 include:
an apparatus (i.e., a computer platform (e.g., 6000 (FIG. 6), comprising a processing component 6010 (FIG. 6));
a means for displaying a first image of a first bone segment and a second bone segment (i.e., a display);
a means for displaying a modified first image, the modified first image to collocate the first and second reduction points, the modified first image to display the first bone segment connected to the second bone segment at the collocated first and second reduction points; (i.e., a display) and
a means for receiving an indication, the indication representing approval of the modified first image to determine deformity parameters (i.e., a computer platform (e.g., 6000 (FIG. 6), comprising a communications interface 6030 (FIG. 6)).
The additional elements in independent claim 9 include:
a computer-readable storage medium;
processing circuitry;
display a first image of a first bone segment and a second bone segment (i.e., displaying data);
display a modified first image, the modified first image to collocate the first and second reduction points, the modified first image to display the first bone segment connected to the second bone segment at the collocated first and second reduction points (i.e., displaying data); and
receive an indication, the indication representing approval of the modified first image to determine deformity parameters (i.e., receiving data).
The additional element in dependent claims 2, 3, 5, 6, 8, 10, and 11-13 include:
a means for identifying (i.e., a computer platform (e.g., 6000 (FIG. 6), comprising a processing component 6010 (FIG. 6)) (claims 2, 5, 6, and 8);
a means for displaying (i.e., a display) (claim 2);
a means for receiving (i.e., a computer platform (e.g., 6000 (FIG. 6), comprising a communications interface 6030 (FIG. 6)) (claim 2);
a means for resolving a conflict (i.e., a computer platform (e.g., 6000 (FIG. 6), comprising a processing component 6010 (FIG. 6)) (claim 3);
a means for determining (i.e., a computer platform (e.g., 6000 (FIG. 6), comprising a processing component 6010 (FIG. 6)) (claim 5);
a means to create (i.e., a computer platform (e.g., 6000 (FIG. 6), comprising a processing component 6010 (FIG. 6)) (claim 5);
input from a user (i.e., data input) (claim 5);
a means for calculating (i.e., a computer platform (e.g., 6000 (FIG. 6), comprising a processing component 6010 (FIG. 6)) (claim 6);
processing circuitry (claims 10-13);
display a second image of the first bone segment and the second bone segment, the second image illustrating the first bone segment and the second bone segment at a perspective that is different from a perspective of the first image (i.e., displaying data) (claim 10);
display a modified second image, the modified second image to collocate the third and fourth reduction points, the modified second image to display the first bone segment connected to the second bone segment at the collocated third and fourth reduction points (i.e., displaying data) (claim 10); and
receive an indication, the indication representing approval of the modified second image to determine the deformity parameters (i.e., receiving data) (claim 10).
The additional elements of a computer platform comprising a processing component (claims 1-9) and a communications interface and/or input device/bus (claims 1 and 2); a display (claims 1 and 2); a computer-readable storage medium (claim 9); and processing circuitry (claims 9-13); invoke a computer and/or computer-related components merely as tools for use in the claimed process, and therefore are not an improvement to computer functionality itself, or an improvement to any other technology or technical field, and thus, do not integrate the judicial exceptions into a practical application (MPEP 2106.04(d)(1)).
The additional elements of receiving data (claims 9 and 10); and inputting data (claim 5); are merely pre-solution activities of gathering data for use in the claimed process – nominal additions to the claims that do not meaningfully limit the claims, and therefore do not add more than insignificant extra-solution activity to the judicial exceptions (MPEP 2106.05(g)).
The additional element of displaying data (claims 9 and 10) is merely a pre-solution activity used as a step in the data gathering process and/or a post-solution activity of outputting data – a nominal addition to the claims that does not meaningfully limit the claims, and therefore does not add more than insignificant extra-solution activity to the judicial exceptions (MPEP 2106.05(g)).
Thus, the additionally recited elements merely invoke a computer and/or computer related components as tools; and/or amount to insignificant extra-solution activity; and as such, when all limitations in claims 1-15 have been considered as a whole, the claims are deemed to not recite any additional elements that would integrate a judicial exception into a practical application, and therefore claims 1-15 are directed to an abstract idea (MPEP 2106.04(d)).
[Step 2A Prong Two: NO]
Eligibility Step 2B: Because the claims recite an abstract idea, and do not integrate that abstract idea into a practical application, the claims are probed for a specific inventive concept. The judicial exception alone cannot provide that inventive concept or practical application (MPEP 2106.05). Identifying whether the additional elements beyond the abstract idea amount to such an inventive concept requires considering the additional elements individually and in combination to determine if they amount to significantly more than the judicial exception (MPEP 2106.05A i-vi).
The claims do not include any additional elements that are sufficient to amount to significantly more than the judicial exception(s) because of the reasons noted below.
Dependent claims 7, 14, and 15 do not recite any elements in addition to the judicial exception(s).
The additional elements recited in independent claims 1 and 9 and dependent claims 2, 3, 5, 6, 8, 10, and 11-13 are identified above, and carried over from Step 2A Prong Two along with their conclusions for analysis at Step 2B. Any additional element or combination of elements that was considered to be insignificant extra-solution activity at Step 2A Prong Two was re-evaluated at Step 2B, because if such re-evaluation finds that the element is unconventional or otherwise more than what is well-understood, routine, conventional activity in the field, this finding may indicate that the additional element is no longer considered to be insignificant; and all additional elements and combination of elements were evaluated to determine whether any additional elements or combination of elements are other than what is well-understood, routine, conventional activity in the field, or simply append well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception, per MPEP 2106.05(d).
The additional elements of a computer platform comprising a processing component (claims 1-9) and a communications interface and/or input device/bus (claims 1 and 2); a display (claims 1 and 2); a computer-readable storage medium (claim 9); processing circuitry (claims 9-13); receiving data (claims 9 and 10); inputting data (claim 5); and displaying data (claims 9 and 10); are conventional computer components and/or functions (see MPEP at 2106.05(b) and 2106.05(d)(II) regarding conventionality of computer components and computer processes).
Therefore, when taken alone, all additional elements in claims 1-15 do not amount to significantly more than the above-identified judicial exception(s). Even when evaluated as a combination, the additional elements fail to transform the exception(s) into a patent-eligible application of that exception. Thus, claims 1-15 are deemed to not contribute an inventive concept, i.e., amount to significantly more than the judicial exception(s) (MPEP 2106.05(II)).
[Step 2B: NO]
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.
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.
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.
Claims 1-15 are rejected under 35 U.S.C. 103 as being unpatentable over Sabczynski et al. (EP 3421001, “Transformation determination for anatomically aligning fragments of a broken bone”) in view of Buschbaum et al. (“Computer-assisted fracture reduction: a new approach for repositioning femoral fractures and planning reduction paths.” International Journal of Computer Assisted Radiology and Surgery (IJCARS), (2015), Vol. 10:149-159).
Independent claims 1 and 9 are broadly directed to an apparatus and computer-readable storage medium comprising instructions for displaying an image of first and second segments of a fractured bone, identifying a reduction point on each segment of the fractured bone, displaying a modified image showing the first and second bone fragments aligned in accordance with the identified reduction points, and receiving an indication representing approval of the modified image to determine deformity parameters.
Dependent claims 2-8 and 10-15 further define the steps used to align the first and second bone fragments, in particular, by identifying additional reduction points on each fragment using different perspective of the bone fragments.
Sabczynski et al. is directed to a computer-implemented method for determining a transformation for anatomically aligning fragments of a broken bone (para. [0009]).
Buschbaum et al. is directed to computer-assisted fracture reduction using a virtual environment which repositions the fracture fragments automatically and provides the ability to plan reduction paths (Abstract).
Regarding independent claims 1 and 9, Sabczynski et al. shows a computer program product comprising a computer readable storage medium, the computer readable medium having computer readable code being configured such that, on execution by a processor, the processor is caused to perform the method for determining a transformation for anatomically aligning fragments of a broken bone (para. [0017]); an apparatus for determining a transformation for anatomically aligning fragments of a broken bone, the apparatus comprising a processor configured to: acquire an image of a broken bone of a subject, wherein the bone is broken into two or more fragments; acquire a model of a corresponding unbroken bone and at least one parameter defining one or more deformations to the model that are permitted when fitting portions of the model of the unbroken bone to corresponding fragments of the broken bone based on the at least one parameter; and determine a transformation that anatomically aligns the fragments of the broken bone with the corresponding portions of the model (para. [0018]); at least on user interface to render (or output or display) the images (para. [0028]); the user interface may be configured to receive a user input (para. [0028]); the fitting of portions of the model of the unbroken bone to corresponding fragments of the broken bone can comprise dividing (or segmenting) the model of the unbroken bone into the portions that correspond to the fragments of the broken bone in the image, and in this way, portions of the model of the unbroken bone can be fitted to different fragments of the broken bone in the image without overlap (para. [0047]); selecting the optimally fitting deformed model (para. [0048]); aligning the fragments of the broken bone with the corresponding portion of the model, which may comprise a translation of the fragments of the broken bone, a rotation of the broken bone, or a combination of a translation of the fragments of the broken bone and a rotation of the broken bone (para. [0056]).
Regarding independent claims 1 and 9, Sabczynski et al. does not show identifying reduction points on the first and second fragments that represent a connection point between the fragments; or collocating the first and second reduction points.
Regarding independent claims 1 and 9, Buschbaum et al. shows assignment of matching points on osseous fragments and comparing generated fracture lines to calculate a desired target position (Abstract: Methods; Fig. 2; and Fig. 3). Buschbaum et al. further shows an algorithm for determining when an optimum number of best matching points is reached (page 153, col. 1, para. 2) (i.e., an indication of approval of the desired target position).
Therefore, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the method shown by Sabczynski et al. by incorporating methods for virtually aligning reduction points between fractured bone segments, as shown by Buschbaum et al. and discussed above. One of ordinary skill in the art would have been motivated to combine the methods of Sabczynski et al. with the methods of Buschbaum et al., because Sabczynski et al. shows a method and system for aligning fragments to a reference model using deformity parameters and Buschbaum et al. shows methods for aligning reduction points along the fracture lines of the fragments. This modification would have had a reasonable expectation of success given that both Sabczynski et al. and Buschbaum et al. disclose methods for computer-assisted fracture reduction.
Regarding dependent claims 5, 8, 13, and 15, Sabczynski et al. further shows the bone is broken into two or more fragments (Abstract); and dividing (or segmenting) the reference model (i.e., the unbroken bone) along a corresponding surface so that portions of the model of the unbroken bone can be fitted to different fragments of the broken bone in the image without overlapping (para. [0047]).
Regarding dependent claims 5, 8, and 13, Sabczynski et al. does not show segmenting (dividing or cutting) the fragments of the broken bone from one another.
Regarding dependent claims 5, 8, and 13, Buschbaum et al. further shows segmenting the bone fragments from a CT scan, and creating virtual models (page 157, col. 2, para. 4).
Therefore, it would have been further prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the method shown by Sabczynski et al. by incorporating methods for virtually segmenting bone fragments into virtual models, as shown by Buschbaum et al. and discussed above. One of ordinary skill in the art would have been motivated to combine the methods of Sabczynski et al. with the methods of Buschbaum et al., because Sabczynski et al. shows segmenting a reference model to accommodate alignment of bone fragments to the model and Buschbaum et al. shows methods for segmenting bone fragments to accommodate repositioning the fragments to oneanother. This modification would have had a reasonable expectation of success given that both Sabczynski et al. and Buschbaum et al. disclose methods for computer-assisted fracture reduction between bone fragments.
Regarding dependent claims 2-4, 6, 7, 10-12, and 14, Buschbaum et al. further shows that the method reduces the fracture automatically by reconstructing the fracture lines of the fracture surface by computing the surface curvatures of the triangulated models which were created from CT scans, and from which crest lines were generated in the area of highly curved fracture edges, and these fracture lines consist of particular characteristic points, with geometrical features (i.e., deformities), which represent almost completely the contour of the fracture edges, and by using the properties of the surfaces at the fracture lines, matching points are assigned and subsequently used to calculate the exact transformation, thereby repositioning the two fragments (page 157, col. 1, para. 1).
Therefore, the claimed invention is prima facie obvious.
Conclusion
No claims are allowed.
This Office action is a Non-Final action. A shortened statutory period for reply to this action is set to expire THREE MONTHS from the mailing date of this application.
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/S.W.B./Examiner, Art Unit 1687
/Joseph Woitach/Primary Examiner, Art Unit 1687