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 .
Response to Amendment
Claims 1, 8, 19 and 20 have been amended.
Claims 1-20 are still pending for consideration.
Response to Arguments
On page 2 of the “Remarks”, applicant asserts “Independent claim 1 and 8 recite features "detect a presence of a treatment tool, water, a marker and a pigment in the endoscopic image; recognize [...] whether or not a specific action of the endoscope operator is performed on the portion to be observed according to a detection result of the presence of the treatment tool, the water, the marker and the pigment in the endoscopic image." Applicant respectfully submits that such features in claims 1 and 8 are patentably distinct from the claims 1-3, 6, 11-15 of the application US 16813709 B2. As such, withdrawal of the non-statutory double patenting in the Office Action is respectfully requested”
Response:
Applicant’s amendment and arguments regarding the nonstatutory double patenting rejection have been considered but are not persuasive. The mere recitation of an additional limitation does not establish patentable distinctness for purpose of nonstatutory double patenting. The relevant inquiry is whether the presently claimed subject matter would have been obvious over the reference claim. Therefore, claim 1 remains rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of Application US 16813709 B2. Although amended claim 1 is narrower than claim 1 of App 16813,709 B2, the additional detection limitations do not render the claims patentably distinct, because they amount to obvious implementation of the same image-based operator-action recognition functionality already claimed in the reference patent. The rejection for nonstatutory double patenting is still maintained.
Notwithstanding the foregoing nonstatutory double-patenting rejection, claim 1 is otherwise allowable over the prior art of record.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1, 3-8 are rejected on the ground of nonstatutory double patenting as being unpatentable over allowed claims 1-3, 6, 11-15 of co-pending application 16813709 wherein these claims have been allowed. Although the claims at issue are not identical, they are not patentably distinct from each other because the scopes of allowed claims anticipate the scopes of current application claims as outlined in the chart below.
Both the allowed application 16/813709 and the present application claim a processor-based endoscopic image processing device that recognizes operator actions (such as use of a treatment tool, washing measurement, or pigment application) from the endoscopic images and conditionally controls display of region-of interest information accordingly. The overlapping claim scope and identical inventive concept render the two claim sets sufficiently similar that one would make the other obvious to person of ordinary skill in the art "Anticipation is the epitome of obviousness", Realtime Data, LLC v. lancu; MPEP 1207.03(a)(ll)(2).
Current application 18/164536
1. (currently amended) An endoscopic image processing device comprising a processor configured to: cause a display to display region-of-interest information about a region of interest included in a plurality of endoscopic images of a portion to be observed sequentially picked up by an endoscope operator and to be sequentially displayed on the display; cause a frame-shaped figure indicating a position of the region of interest to be displayed on the endoscopic image based on the region-of-interest information; detect a presence of a treatment tool, water, a marker and a pigment in the endoscopic image; recognize, from at least one of the plurality of endoscopic images, whether or not a specific action of the endoscope operator is performed on the portion to be observed according to a detection result of the presence of the treatment tool, the water, the marker and the pigment in the endoscopic image, wherein the specific action is at least one action of the use of a treatment tool to the portion to be observed, washing of the portion to be observed, length measurement of the portion to be observed, or application of the pigment on the portion to be observed; in a case where the specific action is not recognized, perform first emphasis display where the region-of-interest information is displayed at a position in the endoscopic image at a first emphasis level, and in a case where the specific action is not recognized, cause the display not to display the region-of-interest information
3. (original) The endoscopic image processing device according to claim 1, wherein the processor is further configured to: acquire the plurality of endoscopic images; detect the region of interest from the acquired endoscopic images; and acquire the region-of-interest information about the detected region of interest.
4. (original) The endoscopic image processing device according to claim 3, wherein the processor is further configured to cause the display to sequentially display the plurality of acquired endoscopic images.
5. (original) The endoscopic image processing device according to claim 1, wherein the processor is further configured to cause a figure to be displayed on the endoscopic image based on the region-of-interest information.
6. (original) The endoscopic image processing device according to claim 1, further comprising an emphasis method storage configured to store an emphasis method for the region-of-interest information, wherein the processor is further configured to cause the region-of-interest information to be displayed by the emphasis method stored in the emphasis method storage.
7. (original) An endoscope system comprising: the endoscopic image processing device according to claim 1; the display; an endoscope configured to be inserted into an object to be examined; and a camera configured to sequentially pick up the plurality of endoscopic images of the portion to be observed included in the object to be examined.
8 (currently amended) An endoscopic image processing device comprising a processor configured to: cause a display to display region-of-interest information about a region of interest included in a plurality of endoscopic images of a portion to be observed sequentially picked up by an endoscope operator and to be sequentially displayed on the display; cause a frame-shaped figure indicating a position of the region of interest to be displayed on the endoscopic image based on the region-of-interest information; detect a presence of a treatment tool, water, a marker and a pigment in the endoscopic image; recognize, from at least one of the plurality of endoscopic images, whether or not a specific action of the endoscope operator is performed on the portion to be observed according to a detection result of the presence of the treatment tool, the water, the marker and the pigment in the endoscopic image, wherein the specific action is at least one action of the use of a treatment tool to the portion to be observed, washing of the portion to be observed, length measurement of the portion to be observed, or application of the pigment on the portion to be observed; in a case where the specific action is not recognized, perform first emphasis display where the region-of-interest information is displayed at a position in the endoscopic image at a first emphasis level, and in a case where the specific action is not recognized, cause the display not to display the region-of-interest information
Allowed claims (11/23/2022) of application 16/813709
1. (currently amended) An endoscopic image processing device comprising: a processor configured to: cause a display to display region-of-interest information about a region of interest included in a plurality of endoscopic images of a portion to be observed sequentially picked up by an endoscope operator and to be sequentially displayed on the display; recognize an endoscope operator's action on the portion to be observed from at least some endoscopic images of the plurality of endoscopic images, and recognize whether or not a specific action is performed, wherein the specific action is at least one action of a use of a treatment tool, washing, length measurement, or pigment observation; switch between first emphasis display where the region-of-interest information is displayed at a position in the endoscopic image at a first emphasis level and second emphasis display where the region-of-interest information is displayed at a second emphasis level relatively lower than the first emphasis level, according to a recognition result of the processor; and perform the first emphasis display in a case where the specific action is not recognized, and perform the second emphasis display in a case where the specific action is recognized.
2. (previously presented) The endoscopic image processing device according to claim 1, wherein the processor is further configured to: acquire the plurality of endoscopic images; detect the region of interest from the acquired endoscopic images; and acquire the region-of-interest information about the detected region of interest.
3. The endoscopic image processing device according to claim 2, wherein the processor is further configured to cause the display to sequentially display the plurality of acquired endoscopic images.
6. (previously presented) The endoscopic image processing device according to claim 1, wherein the processor displays a figure based on the region-of-interest information.
11. (previously presented) The endoscopic image processing device according to claim 1, further comprising: an emphasis method storage section that stores an emphasis method for the region-of-interest information, wherein the processor displays the region-of-interest information by the emphasis method stored in the emphasis method storage section.
14. (previously presented) An endoscope system comprising: a display; an endoscope that is to be inserted into an object to be examined; a camera that sequentially picks up a plurality of endoscopic images of a portion to be observed included in the object to be examined; and the endoscopic image processing device according to claim 1.
15. (currently amended) An endoscopic image processing method comprising: a display control step of causing a display to display region-of-interest information about a region of interest included in a plurality of endoscopic images of a portion to be observed sequentially picked up by an endoscope operator and to be sequentially displayed on the display; and an action recognition step of recognizing an endoscope operator's action on the portion to be observed from at least some endoscopic images of the plurality of endoscopic images, and recognizing whether or not a specific action is performed, wherein the specific action is at least one action of a use of a treatment tool, washing, length measurement, or pigment observation, wherein first emphasis display where the region-of-interest information is displayed at a position in the endoscopic image at a first emphasis level and second emphasis display where the region-of-interest information is displayed at a second emphasis level relatively lower than the first emphasis level are switched in the display control step according to a recognition result of the action recognition step, wherein the display control step further comprises performing the first emphasis display in a case where the specific action is not recognized in the action recognition step, and performing the second emphasis display in a case where the specific action is recognized in the action recognition step.
Allowable Subject Matter
Claims 1-20 are allowed.
The following is an examiner’s statement of reasons for allowance:
The prior art taken either singly or in combination fails to anticipate or fairly suggest the
limitation of the independent claim, in such a manner that a rejection under 35 USC or 103would be improper.
Regarding claim 1, the closest prior arts are Iwaki (US 20180098690 A1), Morita et al. (US 20120220840A1) and Mivai et al. (US 20170042407 A1). The combination of Iwaki, Morita et al. and Mivai et al. as a whole teach endoscopic image processing, treatment instruments, washing related structures, image based recognition of treatment-related regions, and detection of particular objects in endoscopic images individually, the prior art of record does not teach or suggest the claimed combination in which the processor detects each of the recited specific components in the endoscopic image and uses the resulting detections to recognize the corresponding operator actions for controlling display of region of interest information.. However, the combination of Iwaki, Morita et al. and Mivai et al. or any other references does not teach “detect a presence of a treatment tool, water, a marker and a pigment in the endoscopic image; recognize, from at least one of the plurality of endoscopic images, whether or not a specific action of the endoscope operator is performed on the portion to be observed according to a detection result of the presence of the treatment tool, the water, the marker and the pigment in the endoscopic image”.
Regarding claims 2-7 these claims depend directly or indirectly on an
allowable base claim 1 and are therefore allowable for the reasons stated supra.
Re Claim 8 is allowable for the same reason as independent claim 1 discussed above.
Regarding claims 9-18 these claims depend directly or indirectly on an
allowable base claim 1 and are therefore allowable for the reasons stated supra.
Re Claim 19 is allowable for the same reason as independent claim 1 discussed above.
Re Claim 20, is allowable for the same reason as independent claim 1 discussed above.
Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
Conclusion
THIS ACTION IS MADE FINAL. 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.
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/WINTA GEBRESLASSIE/Examiner, Art Unit 2677
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