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 .
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, 9-10, 12-13, 16-29, 34-37, and 39 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The claim(s) recite(s) mental steps/ organizing human activity that collect, analyze, and display information, wherein "collecting information, analyzing it, and displaying certain results of the collection and analysis," with the data analysis steps recited at a high level of generality such that they could practically be performed in the human mind, Electric Power Group v. Alstom, S.A., 830 F.3d 1350, 1353-54, 119 USPQ2d 1739, 1741-42 (Fed. Cir. 2016), fall under the mental processes category of abstract ideas. The Examiner also notes that US 15482035 (12/2023) is a similar case that was held ineligible (organizing trailers with cameras and scanners/ generic computer components), US 14520838 (12/2020) cameras and measuring tools were held as generic with a high level of generality, and specific tools do not make the collecting and analyzing less abstract, US 14693676 (4/2020) cited Automated Tracking Solutions saying "systems 'for locating, identifying and/or tracking of' an object using RFID components," which is an abstract idea. Automated Tracking Sols., LLC v. Coca-Cola Co., 723 F. App'x. 989, 993 (Fed. Cir. 2018), thus the components of the instant claim are interpreted to fall under generic computer component.
The limitations of scanning, capturing, obtaining, and deriving are routine data gathering and analyzing and display steps that are performed with generic computer elements performing the abstract idea. The limitations of storing could be done with the aid of pen and paper (equivalent to a mental process), or in the alternative is not a practical application because it’s a generic computer component performing routine computer functions. There are not additional limitations that provide a practical application as the limitations of an image capture device, scanning module, wand, etc. are generic computer implementations of the abstract mental concepts. The limitations of storing is just reading, a mental step, and storing is memorizing the data which is mental, and displaying/ storing for displaying can be seen as mental and or post solution activity.
This judicial exception is not integrated into a practical application because the limitations are merely being applied to an environment using generic computer devices. The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the additional elements are generic computer elements recited at a high level of generality, and do not provide a practical application. The dependent claims merely recited further limitations of the abstract idea, such as specific types/ formats of data, packing of the components, and limtaitosn of data storage, which is routine data gathering as part of the abstract idea. The limitations of software is part of the generic computer elements. Displaying and storage of information has been addressed above. Re claim 28, limitations of an input to certification is again routine data gathering.
Appropriate correction is requested.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 1, 9-10, 12-13, 16-29, and 34-36 is/are rejected under 35 U.S.C. 103 as being unpatentable over Dein (US 20090317002) in view of Catchings et al. (US 20210090711) and Sayles et al. (US 10470809).
Re claim 1, Dein teaches a method comprising:
At a scanning module, obtaining packaged sterile implant usage data associated with a packaged sterile implant during surgery at a point of use of the packaged sterile implant, comprising:
Capturing, at an image capture device using a camera, an image associated with the packaged sterile implant (the packaged sterile implant is interpreted as the needle/ suture package such as per FIG. 3A. An image associated is taught as being captured (paragraph [0093]+ which teaches that automated shape recognition is used when the packaging does not have a barcode, wherein the suture is interpreted as a packaged sterile implant); and
Deriving the packaged sterile implant usage data based on the image using data (paragraph [0051]+ teaches the use of a database for shape recognition, which would have been obvious to be separate from a scanning module, such as to access information that can be bulk updated/ accessed for convenience/ sharing of data/ updating such as across systems/ networks as known in the art);
At the scanning module, obtaining tray based sterilized implant usage data associated with a tray based sterilized implant during surgery at a point of use of the tray based sterilized implant comprising:
Scanning, using a device, from a machine readable object on a surgical supply tray containing the tray based sterilized implant, data associated with the tray based sterilized implant during surgery at a point of use of the tray based sterilized implant (paragraph [0092]+ teaches screws interpreted as tray based sterilized implants, and paragraph [0162]+ teaches that a hand held scanner is used to count all the items on the tray and scan into the system, paragraph [0076] teaches barcodes and microdots, and [0095]+ teaches RFID, wherein as scanning is taught for system entry, the use of a barcode/ RFID/ indicia is an obvious expedient to facilitate the entry of data in an automated), and though silent to a wand, the Examiner notes that the form factor of a wand for scanning, though not explicitly taught, is obvious such as for ease of use./ convenience/ form factors. Additionally, it would have been obvious for the instrument to be an implant such as based on the type of procedure being performed;
Deriving the tray based sterilized implant usage data based on the data scanned from the machine-readable object using data (fetching data from a database is an obvious expedient to provide updated data as discussed above);
Storing the packaged sterile implant usage data and tray-based sterilized implant usage data in a data store (paragraph [0141]+ which teaches generating and storing of a record); and
Displaying implant usage display data derived from the package sterile implant usage data and the tray based sterilized implant usage data (FIG. 15 and display unit 1550).
The Examiner notes that the packaged implant can be interpreted as a suture, for example, and the tray-based implant can be interpreted as a screw or other type of implant that can be placed in a tray, for example.
Dein teaches a database but is silent to it being other than from the scanning module (such as a remote database).
Catchings et al. teaches a remote database and local database used together (FIG. 9, paragraph [0028]+, and paragraph [0052]+).
Prior to the effective filing date, it would have been obvious to combine the teachings in order to have a remote database to synchronize and keep local data up to date.
Dein/ Catchings et al. is silent to the machine-readable object not coupled to the implant
Sayles et al. teaches such limitations via a tray-based system with implants that counts are tracked using codes on a tray (instead of on the implant/ screws) themselves.
Prior to the effective filing date, it would have been obvious to combine the teachings in order to track items by tagging the tray such as when it’s not convenient or easy to tag smaller items/ implants.
Re claim 9, reading/ scanning barcode has been discussed above.
Re claim 10, RFID scanning has been discussed above.
Re claim 12-13, though silent, it would have been obvious for non-sterile items to have the machine- readable object coupled to a tray/ packaging containing the sterile item as an obvious way to store/ hold items as known in the art, as items are known to be able to be held/ stored/ come in such packaging such as for holding/ organizing means. Nonetheless, re claim 12, Catchings et al. teaches a remote database and local database used together.
Prior to the effective filing date, it would have been obvious to combine the teachings in order to have a remote database to synchronize and keep local data up to date.
Re claims 16-18, as discussed above, the storage in a database it is interpreted to read on a at least one non-transitory computer- readable medium/ computer-readable storage device/
single computer. Software/ applications to perform the steps are well within the ordinary skill in the art for automated/ record keeping purposes.
Re claim 19, Dein teaches such limitations (FIG. 5).
Re claim 20, Dein teaches the storing by a computer as there is a CPU and database.
Re claim 21, Dein teaches a display unit 1550 interpreted as performed by the computer.
Re claim 22, Dein teaches the computer executes a software application, and wherein the software application cooperates with the scanning module to perform (1) and (2) as the system software tracks the items continuously (paragraph [0165]+, [0172]+, [0174]+). .
Re claim 23, Dein teaches the software application controls the computer to perform (3) because the storing of data is stored in the database as discussed above. .
Re claim 24, Dein teaches the software application controls the computer to perform (4) because the CPU 1510 cooperates with the display 1550 to display the information obtained via the software operation.
Re claim 25, though silent to contemporaneous display, the display unit 1550 displays item usage data. It would have been obvious to contemporaneously display, in a single user interface: specific data as claimed such as for a preferred output of data, aesthetics, as merely displaying a particular output of the obtained data involves only routine skill in the art to provide expected results of displaying information.
Re claims 26-27, Dein teaches such limtaiitons (paragraph [0060]+) comprising: (5) obtaining, based on the item usage data associated with the items, additional data associated with the package and tray based implant item; and (6) storing the additional data associated with the items in the data store (database). Fetching and storing data involves only routine skill in the art motivated for data processing and record keeping.
Re claim 28, Dein teaches (5) receiving, from a user, certification input indicating whether the user certifies at least some of the displayed item usage display data as accurate (paragraph [0075]+ authorization). As certification is taught, certifying both items is an obvious expedient to verify data, and involves duplication steps, and is within the ordinary skill in the art.
Re claim 29, the limitations have been discussed above re claim 1.
Re claims 34-35, the limitations have been discussed above re claims 17-18 where a computer (system is interpreted as a computer with a processor) that has the data storage and storage device such as a memory, which is routine and conventional for computers.
Re claim 36, the limitations have been discussed above via the scanning of the packaged implants and the scanning of the tray-based implants, wherein the different type of machine-readable objects use first and second scanning means to scan and obtain the data.
Claim(s) 1 and 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Dein / Catchings et al., as discussed above, in view of Codd et al. (US 20200395118).
Re claims 1 and 12, Dein is silent to packaging contained the tray based sterilized implant coupled with the machine-readable object/ not to the implant itself.
Codd et al. teaches RFID tagged instruments packaged (paragraph [0058]). It would have been obvious to be implants such as items that are used based on a particular procedure.
Prior to the effective filing date, it would have been obvious to combine the teachings to have tagged tray items in a package for convenience/ record keeping.
Claim(s) 1 and 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Dein / Catchings et al., as discussed above, in view of Sweeney et al. (US 20180303577).
Re claims 1 and 12, Dein is silent to packaging contained the tray based sterilized implant coupled with the machine-readable object/ not to the implant itself.
Sweeney et al. teaches RFID tagged instruments packaged (paragraph [0111]). It would have been obvious to be implants such as items that are used based on a particular procedure.
Prior to the effective filing date, it would have been obvious to combine the teachings to have tagged tray items in a package for convenience/ record keeping.
Claim(s) 1 and 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Dein / Catchings et al., as discussed above, in view of Satish et al. (US 20220296332).
Re claims 1 and 12, Dein is silent to packaging contained the tray based sterilized implant coupled with the machine-readable object/ not to the implant itself.
Satish et al. teaches RFID tagged package of instruments (paragraph [0045]). It would have been obvious to be implants such as items that are used based on a particular procedure.
Prior to the effective filing date, it would have been obvious to combine the teachings to have tagged tray items in a package for convenience/ record keeping.
Claim(s) 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Dein/ Catchings et al./ Sayles et al., as discussed above, in view of Sayani et al. (US 10357325).
Re claim 13, Dein/ Catchings et al./ Sayles et al. is silent to the machine-readable object being in the tray.
Sayani et al. teaches such limitations ( col 5, lines 28+) which teaches tagged surgical trays.
Prior to the effective filing date, it would have been obvious to combine the teachings to have an automated means to identify/ record keep.
Claim(s) 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Dein/ Catchings et al./ Sayles et al., as discussed above, in view of Bonutti et al. (US 20070088362).
Re claim 13, Dein/ Catchings/ Sayles et al. is silent to the machine-readable object being in the tray.
Bonutti et al. teaches such limitations (paragraph [0145]+ teachings RFID tagged screws, bolts, etc.).
Prior to the effective filing date, it would have been obvious to combine the teachings to have an automated means to identify/ record keep.
Claim(s) 1, 9-10, 12-13, 16-29, and 34-36 is/are rejected under 35 U.S.C. 103 as being unpatentable over Dein (US 20090317002) in view of Catchings et al. (US 20210090711) and Sayani et al. (US 10357325).
Re claim 1, Dein teaches a method comprising:
At a scanning module, obtaining packaged sterile implant usage data associated with a packaged sterile implant during surgery at a point of use of the packaged sterile implant, comprising:
Capturing, at an image capture device using a camera, an image associated with the packaged sterile implant (the packaged sterile implant is interpreted as the needle/ suture package such as per FIG. 3A. An image associated is taught as being captured (paragraph [0093]+ which teaches that automated shape recognition is used when the packaging does not have a barcode, wherein the suture is interpreted as a packaged sterile implant); and
Deriving the packaged sterile implant usage data based on the image using data (paragraph [0051]+ teaches the use of a database for shape recognition, which would have been obvious to be separate from a scanning module, such as to access information that can be bulk updated/ accessed for convenience/ sharing of data/ updating such as across systems/ networks as known in the art);
At the scanning module, obtaining tray based sterilized implant usage data associated with a tray based sterilized implant during surgery at a point of use of the tray based sterilized implant comprising:
Scanning, using a device, from a machine readable object on a surgical supply tray containing the tray based sterilized implant, data associated with the tray based sterilized implant during surgery at a point of use of the tray based sterilized implant (paragraph [0092]+ teaches screws interpreted as tray based sterilized implants, and paragraph [0162]+ teaches that a hand held scanner is used to count all the items on the tray and scan into the system, paragraph [0076] teaches barcodes and microdots, and [0095]+ teaches RFID, wherein as scanning is taught for system entry, the use of a barcode/ RFID/ indicia is an obvious expedient to facilitate the entry of data in an automated), and though silent to a wand, the Examiner notes that the form factor of a wand for scanning, though not explicitly taught, is obvious such as for ease of use./ convenience/ form factors. Additionally, it would have been obvious for the instrument to be an implant such as based on the type of procedure being performed;
Deriving the tray based sterilized implant usage data based on the data scanned from the machine-readable object using data (fetching data from a database is an obvious expedient to provide updated data as discussed above);
Storing the packaged sterile implant usage data and tray-based sterilized implant usage data in a data store (paragraph [0141]+ which teaches generating and storing of a record); and
Displaying implant usage display data derived from the package sterile implant usage data and the tray based sterilized implant usage data (FIG. 15 and display unit 1550).
The Examiner notes that the packaged implant can be interpreted as a suture, for example, and the tray-based implant can be interpreted as a screw or other type of implant that can be placed in a tray, for example.
Dein teaches a database but is silent to it being other than from the scanning module (such as a remote database).
Catchings et al. teaches a remote database and local database used together (FIG. 9, paragraph [0028]+, and paragraph [0052]+).
Prior to the effective filing date, it would have been obvious to combine the teachings in order to have a remote database to synchronize and keep local data up to date.
Dein/ Catchings et al. is silent to the machine-readable object not coupled to the implant
Sayani et al. teaches such limitations ( col 5, lines 28+) which teaches tagged surgical trays.
Prior to the effective filing date, it would have been obvious to combine the teachings to have an automated means to identify/ record keep.
Re claim 9, reading/ scanning barcode has been discussed above.
Re claim 10, RFID scanning has been discussed above.
Re claim 12-13, though silent, it would have been obvious for non-sterile items to have the machine- readable object coupled to a tray/ packaging containing the sterile item as an obvious way to store/ hold items as known in the art, as items are known to be able to be held/ stored/ come in such packaging such as for holding/ organizing means. Nonetheless, re claim 12, Catchings et al. teaches a remote database and local database used together.
Prior to the effective filing date, it would have been obvious to combine the teachings in order to have a remote database to synchronize and keep local data up to date.
Re claim 13, Dein/ Catchings et al. is silent to the machine readable object being in the tray.
Sayani et al. teaches such limitations ( col 5, lines 28+) which teaches tagged surgical trays.
Prior to the effective filing date, it would have been obvious to combine the teachings to have an automated means to identify/ record keep.
Re claims 16-18, as discussed above, the storage in a database it is interpreted to read on a at least one non-transitory computer- readable medium/ computer-readable storage device/
single computer.
Re claim 19, Dein teaches such limitations (FIG. 5).
Re claim 20, Dein teaches the storing by a computer as there is a CPU and database.
Re claim 21, Dein teaches a display unit 1550 interpreted as performed by the computer.
Re claim 22, Dein teaches the computer executes a software application, and wherein the software application cooperates with the scanning module to perform (1) and (2) as the system software tracks the items continuously (paragraph [0165]+, [0172]+, [0174]+). .
Re claim 23, Dein teaches the software application controls the computer to perform (3) because the storing of data is stored in the database as discussed above. .
Re claim 24, Dein teaches the software application controls the computer to perform (4) because the CPU 1510 cooperates with the display 1550 to display the information obtained via the software operation.
Re claim 25, though silent to contemporaneous display, the display unit 1550 displays item usage data. It would have been obvious to contemporaneously display, in a single user interface: specific data as claimed such as for a preferred output of data, aesthetics, as merely displaying a particular output of the obtained data involves only routine skill in the art to provide expected results of displaying information.
Re claims 26-27, Dein teaches such limtaiitons (paragraph [0060]+) comprising: (5) obtaining, based on the item usage data associated with the items, additional data associated with the package and tray-based implant item; and (6) storing the additional data associated with the items in the data store (database). Fetching and storing data involves only routine skill in the art motivated for data processing and record keeping.
Re claim 28, Dein teaches (5) receiving, from a user, certification input indicating whether the user certifies at least some of the displayed item usage display data as accurate (paragraph [0075]+ authorization).
Re claim 29, the limitations have been discussed above re claim 1.
Re claims 34-35, the limitations have been discussed above re claims 17-18 where a computer (system is interpreted as a computer with a processor) that has the data storage and storage device such as a memory, which is routine and conventional for computers.
Re claim 36, the limitations have been discussed above via the scanning of the packaged implants and the scanning of the tray-based implants, wherein the different type of machine-readable objects use first and second scanning means to scan and obtain the data.
Claim(s) 1, 9-10, 12-13, 16-29, and 34-36 is/are rejected under 35 U.S.C. 103 as being unpatentable over Dein (US 20090317002) in view of Catchings et al. (US 20210090711) and Bonutti et al. (US 20070088362).
Re claim 1, Dein teaches a method comprising:
At a scanning module, obtaining packaged sterile implant usage data associated with a packaged sterile implant during surgery at a point of use of the packaged sterile implant, comprising:
Capturing, at an image capture device using a camera, an image associated with the packaged sterile implant (the packaged sterile implant is interpreted as the needle/ suture package such as per FIG. 3A. An image associated is taught as being captured (paragraph [0093]+ which teaches that automated shape recognition is used when the packaging does not have a barcode, wherein the suture is interpreted as a packaged sterile implant); and
Deriving the packaged sterile implant usage data based on the image using data (paragraph [0051]+ teaches the use of a database for shape recognition, which would have been obvious to be separate from a scanning module, such as to access information that can be bulk updated/ accessed for convenience/ sharing of data/ updating such as across systems/ networks as known in the art);
At the scanning module, obtaining tray based sterilized implant usage data associated with a tray based sterilized implant during surgery at a point of use of the tray based sterilized implant comprising:
Scanning, using a device, from a machine readable object on a surgical supply tray containing the tray based sterilized implant, data associated with the tray based sterilized implant during surgery at a point of use of the tray based sterilized implant (paragraph [0092]+ teaches screws interpreted as tray based sterilized implants, and paragraph [0162]+ teaches that a hand held scanner is used to count all the items on the tray and scan into the system, paragraph [0076] teaches barcodes and microdots, and [0095]+ teaches RFID, wherein as scanning is taught for system entry, the use of a barcode/ RFID/ indicia is an obvious expedient to facilitate the entry of data in an automated), and though silent to a wand, the Examiner notes that the form factor of a wand for scanning, though not explicitly taught, is obvious such as for ease of use./ convenience/ form factors. Additionally, it would have been obvious for the instrument to be an implant such as based on the type of procedure being performed;
Deriving the tray based sterilized implant usage data based on the data scanned from the machine-readable object using data (fetching data from a database is an obvious expedient to provide updated data as discussed above);
Storing the packaged sterile implant usage data and tray-based sterilized implant usage data in a data store (paragraph [0141]+ which teaches generating and storing of a record); and
Displaying implant usage display data derived from the package sterile implant usage data and the tray based sterilized implant usage data (FIG. 15 and display unit 1550).
The Examiner notes that the packaged implant can be interpreted as a suture, for example, and the tray-based implant can be interpreted as a screw or other type of implant that can be placed in a tray, for example.
Dein teaches a database but is silent to it being other than from the scanning module (such as a remote database).
Catchings et al. teaches a remote database and local database used together (FIG. 9, paragraph [0028]+, and paragraph [0052]+).
Prior to the effective filing date, it would have been obvious to combine the teachings in order to have a remote database to synchronize and keep local data up to date.
Dein/ Catchings et al. is silent to the machine-readable object not coupled to the implant
Sayles et al. teaches such limitations via a tray-based system with implants that counts are tracked using codes on a tray (instead of on the implant/ screws) themselves.
Prior to the effective filing date, it would have been obvious to combine the teachings in order to track items by tagging the tray such as when it’s not convenient or easy to tag smaller items/ implants.
Re claim 9, reading/ scanning barcode has been discussed above.
Re claim 10, RFID scanning has been discussed above.
Re claim 12-13, though silent, it would have been obvious for non-sterile items to have the machine- readable object coupled to a tray/ packaging containing the sterile item as an obvious way to store/ hold items as known in the art, as items are known to be able to be held/ stored/ come in such packaging such as for holding/ organizing means. Nonetheless, re claim 12, Catchings et al. teaches a remote database and local database used together.
Prior to the effective filing date, it would have been obvious to combine the teachings in order to have a remote database to synchronize and keep local data up to date.
Re claim 13, Dein/ Catchings et al. is silent to the machine-readable object being in the tray.
Bonutti et al. teaches such limitations (paragraph [0145]+ teachings RFID tagged trays for screws, bolts, etc.).
Prior to the effective filing date, it would have been obvious to combine the teachings to have an automated means to identify/ record keep.
Re claims 16-18, as discussed above, the storage in a database it is interpreted to read on a at least one non-transitory computer- readable medium/ computer-readable storage device/
single computer.
Re claim 19, Dein teaches such limitations (FIG. 5).
Re claim 20, Dein teaches the storing by a computer as there is a CPU and database.
Re claim 21, Dein teaches a display unit 1550 interpreted as performed by the computer.
Re claim 22, Dein teaches the computer executes a software application, and wherein the software application cooperates with the scanning module to perform (1) and (2) as the system software tracks the items continuously (paragraph [0165]+, [0172]+, [0174]+). .
Re claim 23, Dein teaches the software application controls the computer to perform (3) because the storing of data is stored in the database as discussed above. .
Re claim 24, Dein teaches the software application controls the computer to perform (4) because the CPU 1510 cooperates with the display 1550 to display the information obtained via the software operation.
Re claim 25, though silent to contemporaneous display, the display unit 1550 displays item usage data. It would have been obvious to contemporaneously display, in a single user interface: specific data as claimed such as for a preferred output of data, aesthetics, as merely displaying a particular output of the obtained data involves only routine skill in the art to provide expected results of displaying information.
Re claims 26-27, Dein teaches such limtaiitons (paragraph [0060]+) comprising: (5) obtaining, based on the item usage data associated with the items, additional data associated with the package and tray based implant item; and (6) storing the additional data associated with the items in the data store (database). Fetching and storing data involves only routine skill in the art motivated for data processing and record keeping.
Re claim 28, Dein teaches (5) receiving, from a user, certification input indicating whether the user certifies at least some of the displayed item usage display data as accurate (paragraph [0075]+ authorization).
Re claim 29, the limitations have been discussed above re claim 1.
Re claims 34-35, the limitations have been discussed above re claims 17-18 where a computer (system is interpreted as a computer with a processor) that has the data storage and storage device such as a memory, which is routine and conventional for computers.
Re claim 36, the limitations have been discussed above via the scanning of the packaged implants and the scanning of the tray-based implants, wherein the different type of machine-readable objects use first and second scanning means to scan and obtain the data.
Claim(s) 37 and 39 is/are rejected under 35 U.S.C. 103 as being unpatentable over Dein/ Catchings et al./ Sayles et al., as discussed above, in view of Cerda et al. (US 20170156811).
The teachings of Dein/ Catchings et al./ Sayles et al. have been discussed above but are silent to a well in the tray (re claims 37 and 39).
Cerda et al. teaches wells in the compartments 21, wherein the machine-readable objects and implants would be held.
Prior to the effective filing date, it would have been obvious to combine the teachings to hold and organized surgical items.
Claim(s) 37 and 39 is/are rejected under 35 U.S.C. 103 as being unpatentable over Dein/ Catchings et al./ Sayani et al., as discussed above, in view of Cerda et al. (US 20170156811).
The teachings of Dein/ Catchings et al./ Sayani et al. have been discussed above but are silent to a well in the tray (re claims 37 and 39).
Cerda et al. teaches wells in the compartments 21, wherein the machine-readable objects and implants would be held.
Prior to the effective filing date, it would have been obvious to combine the teachings to hold and organized surgical items.
Claim(s) 37 and 39 is/are rejected under 35 U.S.C. 103 as being unpatentable over Dein/ Catchings et al./ Bonutti et al., as discussed above, in view of Cerda et al. (US 20170156811).
The teachings of Dein/ Catchings et al./ Bonutti et al. have been discussed above but are silent to a well in the tray (re claims 37 and 39).
Cerda et al. teaches wells in the compartments 21, wherein the machine-readable objects and implants would be held.
Prior to the effective filing date, it would have been obvious to combine the teachings to hold and organized surgical items.
Response to Arguments
Applicant's arguments filed have been fully considered but they are not persuasive in light of the art and rejection above which teaches machine readable object on a tray/ not coupled to the implant. The Examiner maintains the 101 as described above. Re the Applicants argument of claim 17, the Examiner notes that Dein teaches reading of the packaged and tray-based items. Therefore, this obviates the limitations about a single computer/ medium/ display/ software/ application, as it would have been obvious to perform such limitations in a single computer/ application/ storage/ display in order to consolidate, as discussed above.
The rejection of claims 1, 9-10, 12-13, 16, 29, 37, and 39 under 35 U.S.C. 103 are maintained.
Re the 103 rejections, the Examiner notes that during surgery is interpreted to be read on by the prior art, as it’s a sufficiently broad recitation.
Re the Applicants argument that there is not a motivation to combine, the Examiner notes that tracking/ synchronization of data has been discussed as a motivation, and is generally accepted in data management as a desirous outcome. As the prior art teaches sterile/ sterilized implants (tray and packaged) capturing of data in the field of medical/ surgery, and it is recognized that both types are used in surgery, the motivation to combine is obvious for such record keeping.
Re the Applicants argument that storing both types of data in a single store is not supported, the Examiner notes that as both types of data are taught as being stored, it would have been obvious that when the general conditions are taught, that integrating/ combining is well within the ordinary skill in the art. One would have been motivated to use a combined storage for expected results of consolidation.
In response to applicant's argument that the examiner has combined an excessive number of references, reliance on a large number of references in a rejection does not, without more, weigh against the obviousness of the claimed invention. See In re Gorman, 933 F.2d 982, 18 USPQ2d 1885 (Fed. Cir. 1991).
Re the Applicants argument about storing data in a record, as data is stored, it would have been obvious for the data obtained to be stored for record keeping purposes.
Re the Applicants argument about a single computer, the Examiner notes that claim 22 recites a software application which given an electronic/ computer system, wud have been obvious to be contained within a computer storage device (memory) of a computer, wherein a computer is interpreted to read on a computer system, for example. When the general conditions are taught, making integral/ consolidating is within the ordinary skill in the art, thus obviating a single computer based system for expected results of consolidation, cost savings, efficiency, etc.
Re the Applicants argument regarding certifying, the Examiner notes that this has been taught above, re claim 28, via the authorization.
Re the Applicants argument regarding displaying of data, the Examiner notes that displaying data contemporaneous data is obviated by the generic display of data, and that displaying additional data would have been obvious for information providing purposes.
Re the Applicants argument regarding the well, the Examiner has providing the teachings of Cerda et al. for such limitations.
The rejection of claims 1, 9-10, 12-13, 16, 29, 37, and 39 under 35 U.S.C. 101 are maintained.
Re the argument against the 101 rejection, regarding Ex Parte Desjardins, the Examiner notes that in Desjardins, the Director determined that a step of adjusting first values of a plurality of parameters to optimize performance of a machine learning model on a second machine learning task while protecting performance of the machine learning model on a first machine learning task reflected an improvement (also reflected in the specification) to how the machine learning model itself operated rather than an improvement to the identified mathematical calculation. Desjardins, Slip. Op. at 8-9. The Director determined that the panel decision in that case "eschewed the clear teachings of' Enfish, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir.
2016). Id. at 9-10.
In Enfish, the Federal Circuit recognized that "[s]oftware can make non-abstract improvements to computer technology," found it "relevant to ask whether the claims are directed to an improvement to computer functionality versus being directed to an abstract idea," and inquired "whether the focus of the claims is on the specific asserted improvement in computer capabilities (i.e., the self-referential table for a computer database) or, instead, on a process that qualifies as an 'abstract idea' for which computers are invoked merely as a tool." 822 F.3d at 1335-36. With these considerations in mind, the Federal Circuit determined that "the plain focus
of the claims [was] on an improvement to computer functionality itself, not on economic or other tasks for which a computer is used in its ordinary capacity." Id. at 1336. Similarly, in DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1257 (Fed. Cir. 2014), cited in the Appeal Brief at 8-9, claims to a system that generates and directs a visitor to a composite web page that displays product information from third-party merchants, but retains the host website's look and feel, were determined eligible because they were "necessarily rooted in computer technology in order to overcome a problem specifically arising in the realm of computer networks."
The Examiner notes that the instant claims are not an instance of reciting an improvement in computer functionality. Id. Instead, claim 1 (example) recites a generic computer components that are being used for routine data gathering such as to receive input data / obtain data and output results related to generic computer processing. Thus, in claim 1 (example claim), "computers are invoked merely as a tool," and, instead of improving computer functionality, the claim is directed to "other tasks for which a computer is used in its ordinary capacity." Enfish, 822 F.3d at 1335-36. In other words, claim 1 is nothing more than "[a] simple instruction to apply an abstract idea on a generic computer components," which is "not enough" for eligibility. Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363, 1367 (Fed. Cir. 2015).
Additionally, Desjardins is for AI and machine learning models, which is not germane to the instant claims of the current application, and the Examiner notes that Desjardins is not intended to announce any new USPTO practice or procedure and is meant to be consistent with existing USPTO guidance.
Re the Applicants argument that that a BRI has not been established, the Examiner notes that the BRI defines the scope of the claim as understood by one or ordinary skill in the art consistent with the specification and is used to determine where the claims fall with respect to the statutory categories and whether it is directed to a judicial exception. Regarding claim 1 (example), this has been discussed above as a method of using generic computer components for routine data gathering such as mental steps/ organizing human activity that collect, analyze, and display information, wherein "collecting information, analyzing it, and displaying certain results of the collection and analysis," with the data analysis steps recited at a high level of generality such that they could practically be performed in the human mind. Such limitations are reciting an abstract idea/ concepts, which are not improvements to a computer / operation of a computer, as they are merely abstract concepts applied in a generic computer environment, when considered as a whole.
Re the Applicants argument that image capture is not a mental process, it is seen as a mental process performed by generic computer components. There is no improvement of the functioning of a computer itself, as the computer (generic computer devices) are used as tools in a particular environment (abstract idea). The use of such generic computer devices in their ordinary capacity (to store, transmit, receive, display, etc.) or the adding of such devices to abstract idea do not integrate the exception into a practical application.
Re the argument that a wand scanner and camera for image capture are not generic, the Examiner disagrees and notes that they are ubiquitous as evidenced by their historical and continued usage. For support under Berkheimer, the Examiner notes that Smith et al. (US 20140351317) teaches general barcode readers such as pen, wand, laser, ccd, camera based readers, RFID readers, etc.(paragraph [0028]+) and Srivastava et al. (US 20190005343) teaches item recognition using cameras for image capture (FIG. 1+ and paragraph [0029]+). Therefore, re the argument of claim 1 that a wand is a specific, non-generic, technological component that reads data, the Examiner respectfully disagrees. A wand is interpreted as a generic computer input component as it is ubiquitous, and a “wand” is a broad, non-specific description of a generic computing/ input device.
Re the argument that the limitations of an external database for sterile and non-sterile data integrate the abstract idea into a practical application, the Examiner disagrees. A database is seen as part of a mental process/ organized human activity (MPEP 2106.04.a.2.III.A a claim to "collecting information, analyzing it, and displaying certain results of the collection and analysis," where the data analysis steps are recited at a high level of generality such that they could practically be performed in the human mind, Electric Power Group v. Alstom, S.A., 830 F.3d 1350, 1353-54, 119 USPQ2d 1739, 1741-42 (Fed. Cir. 2016).
Re the argument stating that claim 1 should be eligible for similar reasons analogous to claim 2 of Example 36 of the USPTO PEG, and the argument that claim 1 involves non-conventional and non-generic arrangement of technology (camera and wand) and is more than just data collection, the Examiner respectfully disagrees. The Examiner maintains that using a camera and a wand to obtain data in their known way, is seen as generic computer components performing generic computer operations. Example 36 claim 2 included (among other elements) a high-resolution video camera array positioned at specific locations (pre-determined) with overlapping views, creating a record, adding different data to the images, reconstructing 3d coordinates using location data and updating inventors with 3d coordinates. Example 2, unlike the appealed claim 1, includes additional limitations a specific arrangement of high resolution cameras. Additionally, the specific array provided determination of a 3d location as a solution to prior art vision system by addressing a specific problem. However, the prior art camera and wand are merely being used as generic data entry tools/ inputs and do not address a specific problem because the camera and wand are performing their normal/ expected operations. Tools do not make collecting of data and analyzing any less abstract when they are merely being used as a generic implementation of a manual input, as well.
Re the argument that claim 1 should be eligible for similar reasons analogous to claim 3 of Example 36 of the USPTO PEG, the Examiner respectfully disagrees for similar reasons as cited above with respect to claim 2 of Example 36. As both claim 2 and 3 are using components to perform steps that are well understood, routine, conventional functions of processing, acquiring and storing information, claim 3 has a specific combination of camera array capturing sequences of images, , recognition model, and a processor that extracts characteristics to form feature vectors, and processing the vectors to recognize and track the item position to determine location information, which are not well understood activity in the field as it provides hardware and software to provide a practical application to improve inventory management with computer vision instead of RFID and GPS. However, the instant claims are merely using a wand and camera for their well understood, routine, conventional functions of acquiring, processing, and storing information.
Re the argument that claims 17 and 34 are eligible as the data storage is a computer readable storage device, again, the Examiner respectfully disagrees and notes that such limitations are seen as generic computer components performing generic computer steps of routine data storage. The storage of different types of data on a single storage is still abstract data storage.
Re the argument that claims 18 and 35 that a single data store is a specific improved technological solution to a problem, the Examiner respectfully disagrees and notes that such limitations are seen as generic computer components performing generic computer steps of routine data storage (See MPEP 2106.05(a)). The storage of different types of data on a single storage is still abstract data storage.
Re the argument that claims 19 and 36 is eligible as it is an improved method of operation because it recites coupling to a computer, the Examiner notes that a generic computer component performing generic computer steps cannot integrate an abstract idea into a practical application.
Re the argument that claim 20 is patent eligible subject matter because it recites computer technology to solve a specific problem, the Examiner notes that the recitation of a general purpose computer performing data storage is no more than using generic computer components for their well understood conventional functions, and cannot integrate the abstract idea into a practical application.
Re the argument that claim 21 that integrating the display of data into the computer goes beyond passive data storage or processing as it actively engages in rendering information and is an improved use of a computer and leverages computer technology as an integral component of surgical management that address a concrete problem of ensuring display of critical data and provides a technical solution, the Examiner respectfully disagrees. The display of gathered data is interpreted as insignificant post solution activity, merely applying the abstract idea using a generic computer component. Additionally, a claim to "collecting information, analyzing it, and displaying certain results of the collection and analysis," where the data analysis steps are recited at a high level of generality such that they could practically be performed in the human mind, Electric Power Group v. Alstom, S.A., 830 F.3d 1350, 1353-54, 119 USPQ2d 1739, 1741-42 (Fed. Cir. 2016), further supporting that displaying of data does not provide a practical application.
Re the argument that claim 22 presents a specific improved metho of using a computer and software application to enhance surgical data management, the Examiner respectfully disagrees. Claim 22 is drawn to software to be executed to perform the image capture using a camera and scanning using a wand. The Examiner note that the recitation of “software” is merely the generic computer implementation of abstract steps of data gathering (Electric Power Group v. Alstom). Merely applying software to implement the abstract idea is inadequate to integrate an abstract idea into a practical application. It imposes no limits on how the steps are performed and is merely applying a computer to the environment.
Re the argument that claim 23 that controlling a computer to perform data storage results in a specific improved method that does not require multiple software applications and therefore is a technological improvement and is eligible under 101, the Examiner disagrees. The general storing of data can be seen as a mental process/ organized human activity performed by general computer components and is analogous to someone storing by using paper/ pen (Electric Power Group v. Alstom. Alternatively, storing can be seen as insignificant post solution activity. Therefore, data storage is not providing a practical application.
Re the argument that claim 24 is patent eligible subject matter because it’s a specific, improved method that enhances the capabilities of data management systems by integrating multiple functions into a single method. As discussed above, recitation of a software/ programming is seen as generic computer/ computer components being applied to the abstract idea, and therefore cannot integrate the judicial exception into a practical application.
The Examiner notes that the Herrick Declaration provided by the Appellant states that no prior art system is capable of performing the instant application steps. The Examiner notes that such a declaration does not appear to specifically address specific claims under 101 but appears to be drawn to the perceived novelty of the instant application.
Conclusion
All claims are identical to or patentably indistinct from, or have unity of invention with claims in the application prior to the entry of the submission under 37 CFR 1.114 (that is, restriction (including a lack of unity of invention) would not be proper) and all claims could have been finally rejected on the grounds and art of record in the next Office action if they had been entered in the application prior to entry under 37 CFR 1.114. Accordingly, THIS ACTION IS MADE FINAL even though it is a first action after the filing of a request for continued examination and the submission under 37 CFR 1.114. See MPEP § 706.07(b). 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.
/DANIEL I WALSH/ Primary Examiner, Art Unit 2876
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