DETAILED ACTION
Non-Final Rejection
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 .
Claims Status
Claims 1-24 were amended in a preliminary amendment dated 10/6/2023. Claims 1-2 remain pending.
Claim Objections
Claim 4 is objected to because of the following informalities: insert “one or more” before “spacers” in line 2 to be consistent with parent claim 1.
Claim 8 is objected to because of the following informalities: insert “further” before “comprising” in line 2 and “viewing” before “cone” in line 2.
Claim 9 is objected to because of the following informalities: insert “further” before “comprising” in line 2.
Appropriate correction is required.
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 1-20 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 5 references one or more through-orifices. Claim 6, which depends on claim 5, recites “the through-orifices.” It is unclear how to interpret this as the parent claim gave the possibility of one through orifice while claim 6 cite more than one. It is also unclear if the orifices in claim 6 refer to all of the ones in claim 5 or a subset. For purposes of examination, the limitation was interpreted as one or more through-orifices.
Claim 15 references “it” in line 2. It is unclear what “it” is referring to in the claim. The Office interpreted it as the viewing cone.
Claim 1 does not positively recite the spacer as part of the structure of the viewing cone. It is unclear if the spacer is part of the structure. For purposes of examination, the Office interpreted the spacer as part of the structure.
Claim Rejections - 35 USC § 102
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.
Claims 1, 2, 7-9, 11, 12, 15-17, and 19-21 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Walsh et al. (US 2014/0275935).
Regarding claim 1, Walsh et al. disclose a viewing cone for detecting movement of eyes of a patient ([0069] discloses uses for the device which include measuring changes in position of the eye), the viewing cone comprising;
a chamber with a first end (open end of cavities 160a and/or 160b) and a second end (transparent sections 124 at the other end of each cavity 160a and/or 160b),
a lateral wall delimiting the chamber between the first end and the second end (walls formed by 122),
a periphery of an opening intended to be in contact with a forehead of the patient at the first end (portions of 122 are intended to contact person’s forehead as shown in Fig. 5),
an attachment interface (Fig. 1, #118 and [0031] – “distal sheet 118 interfaces with the medical device, 112”) for attaching a processing unit at the second end (Fig. 7 shows 112 attached to the second end; [0029] notes that 112 can be a medical device; [0056] states that medical device 112 can include processors)
a distance between the periphery of the opening and the attachment interface is adjustable to a fixed length by one or more spacers forming the lateral wall (compare Fig. 7A to Fig. 7B where 100 can change the spacing between the interface and periphery of the opening, see [0052], wall associated with mask 100 can be inflated or deflated to change the spacing, wall interpreted as a spacer because it can change spacing).
Regarding claim 2, Walsh et al. disclose the viewing cone comprising a single spacer supporting the periphery of the opening at the first end and the attachment interface for attaching the processing unit at the second end (the structure identified in the claim 1 rejection was interpreted as a single space).
Regarding claim 7, Walsh et al. disclose wherein the viewing cone is wearable on a face of the patient (See Fig. 3 or Fig. 7A).
Regarding claim 8, Walsh et al. disclose the viewing cone comprising attachment members for attaching the cone to the head of the patient and/or handles (see Fig. 3 which shows a band that holds the viewing cone to the head).
Regarding claim 9, Walsh et al. disclose the viewing cone comprising a partition for a vision of each eye and/or a shutter for the vision of one of the eyes (Fig. 1 shows a partition between the eye spaces formed by 122; alternatively, see [0140 which notes that mechanical shutters can be implemented).
Regarding claim 11, Walsh et al. disclose the viewing cone comprising a filter in front of each eye to select a different portion on each eye of a visual stimulus presented by the processing unit (see at least [0174] reference to the use of filters with the device).
Regarding claim 12, Walsh et al. disclose wherein the periphery of the opening is adaptable to a contour of a face of the patient and/or to the contour of the eyes and/or to a presence of glasses on the face of the patient (see Fig. 1 where 122 is contoured for placement on the face).
Regarding claim 15, Walsh et al. disclose wherein it is a passive assembly (passive assembly was interpreted in view of the specification as meaning the device can operate without electricity; the mask disclosed in Walsh, may in some instances, be an ideal fit for a patient not require adjustment of the spacer; in that instance, no power is required as the mask just interfaces with the device 112).
Regarding claim 16, Walsh et al. disclose a device for detecting the movement of the eyes of a patient ([0069] discloses uses for the device which include measuring changes in position of the eye), comprising;
the viewing cone according to claim 1 (see claim 1 rejection);
a processing unit attached to the attachment interface of the viewing cone (Fig. 7 shows 112 attached to the second end; [0029] notes that 112 can be a medical device; [0056] states that medical device 112 can include processors), the processing unit comprising cameras (the OCT/optical coherence tomography device noted in [0026] that resides in 112 is an imaging device) for tracking the movement of the eyes ([0069] discloses uses for the device which include measuring changes in position of the eye) and a screen for displaying visual stimuli ([0172] discloses the use of light stimuli by the system).
Regarding claim 17, Walsh et al. disclose wherein the distance between the periphery of the opening and the attachment interface for attaching the processing unit is adjustable to a fixed length by one or more spacers forming the lateral wall (See claim 1 rejection above for how Walsh teaches this).
Regarding claim 19, Walsh et al. disclose wherein the processing unit comprises infrared emitters illuminating the chamber (see [0154) reference to infrared diodes as light source groups in the device].
Regarding claim 20, Walsh et al. disclose the device further comprising a support supporting the processing unit (the housing of 112), the viewing cone being attached to the processing unit by the attachment interface (118 in Fig. 1 connects to 112 in Fig. 2A).
Regarding claim 21, Walsh et al. disclose a method for detecting the movement of eyes in a patient, comprising the steps of:
supplying the device according claim 16 ([0029] notes that the device can be used with another 112 for diagnostic or therapeutic purposes related to the eye), and
setting a distance between the periphery of the opening and the attachment interface to a fixed length (compare Fig. 7A to Fig. 7B where 100 can change the spacing between the interface and periphery of the opening, see [0052], wall associated with mask 100 can be inflated or deflated to change the spacing, wall interpreted as a spacer because it can change spacing), one or more spacers are used to form the lateral wall (wall on mask 100 is associated with the lateral wall and can change length as noted previously).
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Walsh et al. (US 2014/0275935) in view of Kyu (KR20200107395, cited in the IDS).
Regarding claim 3, Walsh et al. do not disclose the viewing cone comprising a first spacer supporting the periphery of the opening at the first end and one or more additional spacers joined together, the last spacer supporting the attachment interface for attaching the processing unit at the second end. The spacer in Walsh appears to be one continuous piece capable of extending in length. However, using separate pieces capable of spacing out a distance between the periphery and the interface in viewing cone devices were known in the arts. Kyu teaches a viewing cone device where, in one embodiment, a bellows type design is used to vary the distance (see at least Fig. 52B which shows the bellows 3540 comprised of various spacers fitted together). It would have been obvious to a person having ordinary skill in the art at the time of the filing of the invention to modify Walsh et al. to use an alternative spacer design such as that taught by Kyu for changing the distance between the periphery and interface because it amounts to combining prior art elements according to known methods to yield predictable results. All the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination would have yielded predictable results to one of ordinary skill in the art at the time of the invention.
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Walsh et al. (US 2014/0275935). Walsh et al. do not disclose wherein the spacers form between 5 and 15 cm of lateral wall. However, the system described in Walsh includes sensing devices for determining optical distance (See at least [0052]-[0054] which describes how the spacing can be determined). MPEP 2144.05(II)(A) states, “where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).” In this case the general conditions for spacing the periphery of the opening from the attachment interface is taught by Walsh et al. Determining what distance is optimal amounts to routine optimization in view of the is section of the MPEP. Walsh et al. notes that the proper distance can be set based on whatever desired factor(s) come into play (i.e. distance is a results effective variable.
Claims 5, 6, and 24 are rejected under 35 U.S.C. 103 as being unpatentable over Walsh et al. (US 2014/0275935) in view of Labat (US2010/0228144).
Regarding claim 5, Walsh et al. do not disclose the viewing cone further comprising one or more through-orifices in the lateral wall, the through orifices being adapted to send visual stimuli to different positions in the chamber. However, Labat teaches a viewing cone/viewing mask (see Fig. 1). In Fig. 1, structure 12 was interpreted as a lateral wall. Fig. 4 shows an enhanced cut-away view of 12’s interior. A slot (through-orifice) in the bottom part of the lateral wall allows an electronic signal to reach LCD 130 for displaying a visual to the user as well as allowing 130 to be moved forward or backwards to provide different positions of visual stimuli electronically sent to the screen 130 (see at least [0051] - [0052]). It would have been obvious to a person having ordinary skill in the art at the time of the filing of the invention to modify Walsh et al. to include a through-orifice such as that taught by Labat for allowing visual stimuli to be displayed at different locations within the viewing cone because it can provide additional visual stimuli to the user.
Regarding claim 6, Labat teaches wherein the through-orifices are aligned between the first end and the second end (Walsh modified to include the through-orifice/slot in Labat would yield one slot that is aligned between the first and second end). The rationale for modifying remains the same.
Claim 24 is rejected using the same argument for claim 5.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Walsh et al. (US 2014/0275935) in view of Clemons et al. (US 2006/0244915). Walsh et al. do not disclose wherein the shutter comprises a removable screen selectively obturating the vision of one eye or the other. However, the use of shutters in vision testing machines to block the vision of an eye was known in the arts. Clemons et al. teach a vision testing apparatus with shutters for each eye that can be manually closed to block the optical path (see [0053]). Any part can be removed. It would have been obvious to a person having ordinary skill in the art at the time of the filing of the invention to modify Walsh et al. to include shutters as taught by Clemons et al. for vision testing because it allows for the evaluation of each eye separately.
Claims 13, 14, 18, 22, and 23 are rejected under 35 U.S.C. 103 as being unpatentable over Walsh et al. (US 2014/0275935) in view of Sztuk et al. (US 2020/0209628, cited in the IDS).
Regarding claim 13, Walsh et al. do not disclose the viewing cone further comprising a removable cover adapted to obturate the opening , the removable cover comprising a camera calibration pattern on its side turned towards an inside of the chamber. However, Sztuk et al. teach a head mounted display (Fig. 2, @203 interpreted as a viewing cone) that includes a removable cover adapted to obturate the opening (220, which includes 222A is a removable cover that can obturate the opening of the mask/viewing cone shown). The cover includes a camera calibration pattern (222A). It would have been obvious to a person having ordinary skill in the art at the time of the filing of the invention to modify Walsh et al. to include the claimed cover with camera calibration pattern as taught by Sztuk et al. for the viewing cone because it can be used to perform calibration of an image capture portion of the viewing cone.
Regarding claim 14, Sztuk et al. do not teach wherein the camera calibration pattern is concave (the pattern is shown in a pouch in Fig. 2). However, Sztuk et al. note that the calibration pattern may take on any shape or form-factor (i.e. Sztuk et al. recognizes the shape as a variable that can be optimized for whatever need). MPEP 2144.05(II)(A) states, "where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). Thus, further modifying Walsh et al. to use a concave shape would have been obvious in view of Sztuk’s own teachings and this section of the MPEP.
Claim 18 is rejected using the same argument for claim 13.
Regarding claim 22, Walsh disclose the method further comprising a step of calibrating the cameras during which the opening is obturated by a removable cover comprising a camera calibration target (see [0153] where a calibration can be performed on targets). Walsh et al do not disclose the calibration target is a pattern on its side turned towards an inside of the chamber. This calibration patten is rejected using the same arguments for modifying in view of Sztuk in the claim 13 rejection above.
Claim 23 is rejected using the same argument for claim 14.
Conclusion
Claims 1-24 are rejected.
The following references are provided for Applicant’s benefit:
Jackson et al. (US 2020/0093362) – see Fig. 1FB
Esmonde (US 2019/0380875) – see Figs. 5 and 9
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/THO Q TRAN/Examiner, Art Unit 3791
/JACQUELINE CHENG/Supervisory Patent Examiner, Art Unit 3791