DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 07/01/2026 has been entered.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 21-22, 24-28, and 30-36 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US 20180092699 A1 by Eric Finley (hereafter Finley, previously of record).
Regarding claim 21, Finley teaches: 21. A system for determining poses of at least two vertebrae of a patient (see Finley’s Abstract), the system comprising:
a first tracker trackable in 5 degrees of freedom (DOF), and configured to be attached to a first vertebra (see Finley’s Fig. 8A-E part 52 which shows showing bone pins and bone screws of the sort which are both fully capable of and specifically intended to attach to the vertebra);
a second tracker trackable in 5 DOF and configured to be attached to a second vertebra (see Finley’s Fig. 10 noting there can be plural of the same parts 52 attached to plural vertebra),
wherein each of the first tracker and the second tracker comprises an elongated body, and two optically trackable markers attached to the elongated body and spaced apart from each other along a length of the elongated body (see Finley’s Fig. 8A as depicted, with the optical trackers being parts 78. For the sake of clarity, the examiner notes that being a “imaged glyph element 78” means that it is imageable in multiple modalities including expressly optical modalities per se, see e.g. [0106]-[0108]),
wherein the respective two optically trackable markers have the same mutual arrangement for each of the first tracker and the second tracker such that the first tracker and the second tracker cannot be differentiated solely by imaging the optically trackable markers (see Finley’s Fig. 10 noting the same use of two identical trackers 52. As such the lack of differentiability is inherent due to their very construction. However, and to address this from a second perspective, see the rejection of the visually detectable identification characteristic below),
the two optically trackable markers being spherically shaped and symmetrically sat upon the elongated body (see Finley’s Figs. 8 as depicted with the position of parts 78 in Fig. 8A being exemplary),
wherein a surface of the elongated body of each of the first tracker and the second tracker comprises visually detectable identification characteristics that are distinguishable from one another (see Finley’s Figs. 8B-C wherein part 38 is located at a surface of, specifically the end surface of, the elongated body, and where part 38 is both capable of (as demonstrated by the Figs. alone with no further reference) and even specifically intended to be used to distinguish the otherwise undistinguishable trackers 52. See e.g. Finley’s [0083]-[0084] or [0087] where individual vertebra are distinguished/registered/identified based on visually identifying the different arrangements of markers 42 on part 38),
and wherein the 5 DOF of the tracker poses exclude a 6th DOF pertaining to a respective rotation of the first tracker and the second tracker with regard to a rotational axis defined by the respective elongated body for each of the first tracker and the second tracker (this is inherent to the arrangement depicted in Finley’s Fig. 8A; however and for compact prosecution purposes, see Finley’s [0107] which also spells this out directly as it addresses the need to have multiple pins in image or otherwise to have additional glyphs beyond the two symmetrically located ones of Fig. 8A in order to allow for 6DOFs);
one or more processors (see Finley Fig. 41 part 12) configured to:
register a tracking coordinate system in 6 DOF with an image coordinate system associated with first image data taken by a medical imaging system and indicative of the first vertebra and the second vertebra (see Finley’s [0103]-[0111] which covers registering the image coordinate system, tracking coordinate system, and locations of the vertebra and spine pins in the images);
receive intraoperative tracking data comprising second image data taken by a camera of a tracking system and indicative of the imageable markers of the first tracker and the second tracker (the examiner notes that the processing step is merely of receiving data and that the applicant does not have the structure of the tracking system as such first grounds of rejection is that the processor is fully capable of receiving input. For compact prosecution see Finley’s Fig. 41 noting the connection between 12 and 32-36);
determine, from the intraoperative tracking data, tracker poses of the first tracker and the second tracker in 5 DOF (see Finley’s [0103]-[0111] which covers registering the image coordinate system, tracking coordinate system, and locations of the vertebra and spine pins in the images),
determine, from the tracker poses and based on registration of the tracking coordinate system with the image coordinate system, poses of the first vertebra and the second vertebra in 5 DOF (see Finley’s [0103]-[0111] which covers registering the image coordinate system, tracking coordinate system, and locations of the vertebra and spine pins in the images).
Regarding claim 22, Finley further teaches: 22. The system according to claim 21, wherein at least one of the first and second tracker is an electromagnetic tracker and the intraoperative tracking data comprise data based upon an output signal of the electromagnetic tracker (Finley’s sensing of the output signal (i.e. optical/IR reflection or x-ray transmission/absorption) is already covered above in regards to parent claim 21, e.g. in [0106]-[0108]. Notably this is in line with the broadest reasonable interpretation of EM tracker (i.e. a tracker that utilizes EM principles such as absorbing, reflecting, or emitting EM radiation) but for compact prosecution purposes the examiner also notes that this interpretation is in line with the applicant’s broad usage in their own specification at page 4 lines 1-7 and/or at page 9 lines 18-26. Lastly and to compact prosecution to the utmost the examiner knows and understands that the applicant’s other potential usages of the term (i.e. comprises a coil and outputs a signal based on an external magnetic field) are not taught by Finley but reminds the applicant that they did not narrow the claimed structure (e.g. by a coil) nor claimed functional language (e.g. by being configured to sense a magnetic field) such that this limitation is not under examination currently and additionally that Snyder (previously of record, also cited below) already teaches as much in a way that is already of record as to how it could be combined with Finley which will become relevant if and when the claim is narrowed to require such a modification).
Regarding claim 24, Finley further teaches: The system according to claim 21, wherein the two optically trackable markers of one of the first tracker and the second tracker and at least one of the two optically trackable markers of the other of the first tracker and the second tracker define a virtual 6 DOF tracker being configured to be imaged in third image data taken by the camera of the tracking system, and wherein the one or more processors are further configured to register the tracking coordinate system with the image coordinate system using the at least the at least three optically trackable markers of the 6 DOF tracker as imaged in the third image data (see Finley’s [0106]-[0108], as explained therein).
Regarding claim 25, Finley further teaches: 25. The system according to claim 21, further comprising a 6 DOF reference tracker having a fixed relation to the patient and comprising at least three optically trackable markers (Finley teaches this in multiple ways, first see Finley’s [0103]-[0111] which explain that either by having multiple of the 5 DOF trackers or by having additional glyphs 78/128 or by having arrays 38 one can form a 6 DOF tracker, any of which qualify and can be used as reference locations for the vertebra to which they are affixed. For example, [0107] gives an example of mounting three spine pins 52 in three separate vertebra) that are imaged in fourth image data taken by the camera of the tracking system (this holds no patentable weight as it does not modify the structure of the reference tracker and/or because the tracking system is not claimed and is therefore something that the reference tracker is inherently fully capable of), wherein the one or more processors are further configured to register the tracking coordinate system with the image coordinate system using the at least three imageable markers of the 6 DOF reference tracker as imaged in the fourth image data (again, see Finley’s [0106]-[0108], as explained therein).
Regarding claims 26-27, Finley further teaches: 26. The system according to claim 25, wherein the one or more processors are further configured to determine a change of the pose of at least one of the first and the second tracker relative to a pose of the reference tracker. And 27. The system according to claim 21, wherein the one or more processors are further configured to determine a change of a pose of the first tracker relative to a pose of the second tracker (the tracking occurs in real time for each tracker, see e.g. Finley’s [0103], [1008], [0124]-[0125], or [0133]).
Regarding claim 28, Finley further teaches: 28. The system according to claim 21, wherein the one or more processors are further configured to identify at least one of the first tracker and the second tracker based on the respective identification characteristic (this is taught about in regards to the parent claim 21 where the visually identifiable characteristic has been moved to, but for compact prosecution see again e.g. Finley’s [0106]-[0108]).
Regarding claims 30-32, Finley further teaches: 30. The system according to claim 21, wherein the one or more processors are further configured to define, based on the determined poses of the first vertebra and the second vertebra in 5 DOF, a trajectory for guiding a surgical tool. And 31. The system according to claim 21, wherein the one or more processors are further configured to visualize the determined pose of the first vertebra and the second vertebra, or information derived therefrom. And 32. The system according to claim 31, wherein the one or more processors being configured to visualize the determined pose of the first vertebra and the second vertebra, or information derived therefrom, comprises the one or more processors being configured to: generate a first image data segment of the first image data including the first vertebra and a second image data segment of the first image data including the second vertebra; and arrange the first image data segment relative to the second image data segment based on the determined poses of the first vertebra and the second vertebra in 5 DOF (Regarding these together, see Finley’s [0014] and [0119]-[0124] for providing trajectories and tracked images of all screws/instruments and tracked images of all vertebra wherein the placement of tools of further screws can be simulated/overlaid on imaged by the processor and this can be based on the current tracked arrays and current surgical conditions, with the determination of the surgical conditions (i.e. tracking of the surgical field and objects in it) being already addressed above in parent claim 21. From there, it may compact prosecution to additionally note that Finley’s mention of individual vertebra can be images of individual vertebra, e.g. see Figs. 15-17 for selecting and displaying individual vertebra in their orientation, or see e.g. Figs. 33 and 36-39 for showing both individual vertebra and the individual vertebra highlighted as part of a larger display relevant to showing the poses and trajectories together).
Regarding claim 33, the claim is identical in scope to claim 21 excepting that the “one or more processors” is replaced by “a computer program product comprising non-transitory computer readable medium storing instructions that, when executed by one or more processors,”. As such see the rejection of claim 21 is incorporated herein to rebut the claim limitations for the sake of brevity, then additionally note that Finley teaches that his processor runs based on stored computer executable instructions (i.e. instructions stored in non-transitory media) which may be locally stored or cloud stored (see Finley’s [0074] and [0116]).
Regarding claim 34, Finley teaches: 34. A system for determining poses of at least two vertebrae of a patient (see Finley’s Abstract), the system comprising:
a first tracker configured to be attached to a first vertebra (see Finley’s Fig. 8A-E part 52 which shows showing bone pins and bone screws of the sort which are both fully capable of and specifically intended to attach to the vertebra);
a second tracker configured to be attached to a second vertebra (see Finley’s Fig. 10 noting there can be plural of the same parts 52 attached to plural vertebra),
wherein each of the first tracker and the second tracker comprises an elongated body, and two optically trackable markers attached to the elongated body and spaced apart from each other along a length of the elongated body, the two optically trackable markers being spherically shaped and symmetrically sat on the elongated body (see Finley’s Fig. 8A as depicted, with the optical trackable markers being parts 78. For the sake of clarity, the examiner notes that being a “imaged glyph element 78” means that it is imageable in multiple modalities including expressly optical modalities per se, see e.g. [0106]-[0108]),
wherein the respective two optically trackable markers have the same mutual arrangement for each of the first tracker and the second tracker such that the first tracker and the second tracker cannot be differentiated solely by imaging the optically trackable markers (see Finley’s Fig. 10 noting the same use of two identical trackers 52. As such the lack of differentiability is inherent due to their very construction. However, and to address this from a second perspective, see the rejection of the visually detectable identification characteristic below),
wherein a surface of the elongated body of each of the first tracker and the second tracker comprises a visually detectable identifying characteristic that are optically distinguishable from one another (see Finley’s Figs. 8B-C wherein part 38 is located at a surface of, specifically the end surface of, the elongated body, and where part 38 is both capable of (as demonstrated by the Figs. alone with no further reference) and even specifically intended to be used to distinguish the otherwise undistinguishable trackers 52. See e.g. Finley’s [0083]-[0084] or [0087] where individual vertebra are distinguished/registered/identified based on visually identifying the different arrangements of markers 42 on part 38).
Regarding claim 35, Finley further teaches: 35. The system of claim 34, wherein each of the first tracker and the second tracker is trackable in 5 DOF, the 5 DOF excluding a 6th DOF pertaining to a respective rotation of the first tracker and the second tracker with regard to a rotational axis defined by the respective elongated body for each of the first tracker and the second tracker (as best understood this is inherent/holds no patentable weight as it addresses a preamble limitation of pose determination and/or addresses that a structure outside of the invention such as a processor may interact with the invention in a particular way. While not required by the current claim drafting it may compact prosecution to note that this is inherent to the arrangement depicted in Finley’s Fig. 8A and/or to note for compact prosecution purposes that Finley’s [0107] which also spells this out directly as it addresses the need to have multiple pins in image or otherwise to have additional glyphs beyond the two symmetrically located ones of Fig. 8A in order to allow for 6DOFs).
Regarding claim 36, Finley further teaches: 36. The system according to claim 34, further comprising a reference tracker configured to be attached to the patient, wherein the reference tracker comprises at least three imageable markers (Finley teaches this in multiple ways, first see Finley’s [0103]-[0111] which explain that either by having multiple of the 5 DOF trackers or by having additional glyphs 78/128 or by having arrays 38 one can form a 6 DOF tracker, any of which qualify and can be used as reference locations for the vertebra to which they are affixed. For example, [0107] gives an example of mounting three spine pins 52 in three separate vertebra).
Allowable Subject Matter
Claim 23 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter: Claim 23 requires both a physical modification of a divot, and more importantly the use by a processor of this divot in determining/verifying the length of screws using optical image data and known lengths between the divot of the tracker and the tool holding the screw which is neither taught by nor reasonably obvious over the prior art. For the sake of clarity the examiner further notes that verifying the length of the screw using optical imaging is accomplished by Finley (of record) at [0132] in a materially different way not related to the divot and that Snyder (of record) does not use optical tracking with the divot placed into the bone pathway of Fig. 9. As such while the prior arts have some similar teachings there is no way to reasonably hold that the claimed configuration is obvious over these or other arts.
Response to Arguments
Applicant’s arguments, see pages 7-8, filed 07/01/2026, with respect to the previously issued 103(a) rejections have been fully considered but are not persuasive. In this instance the examiner has still changed the grounds of rejection, as it is now clear from the amendment that Finley is a better reference than Snyder, so as to render these arguments moot. However and because the examiner may rely on Snyder, either as a base or modifying reference in the future, the examiner has chosen to respond to these arguments despite being formally moot.
To that end, the main thrust of the applicant’s argument is that the new wording relating to the visually detectable characteristic mounted on a surface of the cylindrical member is not taught by Snyder or Finley. In this instance the examiner notes that due to the broad claim wording (i.e. they did not specify which surface) this is actually taught by both Snyder and Finley. The teachings of Finely are clear from the above new grounds of rejection, but the examiner reminds the applicant that Snyder’s Fig. 10 still has e.g. 330 and 334 mounted on an end surface of the cylindrical member. As such while it may not be the same sort of visually identifiable surface as is found in the applicant’s specification, the claimed language is still taught by both references.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Michael S Kellogg whose telephone number is (571)270-7278. The examiner can normally be reached M-F 9am-1pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Keith Raymond can be reached at (571)270-1790. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MICHAEL S KELLOGG/Examiner, Art Unit 3798
/KEITH RAYMOND/Supervisory Patent Examiner, Art Unit 3798
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