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 Amendments
The amendments to claims 1, 12, 13, 14, 18, and 20 are accepted and entered.
Claims 9 and 17 are cancelled.
Claims 1-8, 10-16, and 18-20 are pending regarding this application.
Response to Arguments
Applicant’s arguments, see Remarks, filed 01/21/2026, with respect to the 112(b) Rejection applied to claim 12 have been fully considered and are persuasive. The 112(b) Rejection of claim 12 has been withdrawn.
Applicant’s amendment, see Claims, filed 01/21/2026, with respect to the 112(d) Rejection applied to claim 17 have been fully considered and are persuasive, as claim 17 is now cancelled. The 112(d) Rejection of claim 17 has been withdrawn.
Applicant’s amendment, see Claims, filed 01/21/2026, with respect to the 101 Abstract Idea Rejection applied to claims 1-7, 10, 12-17, and 20 have been fully considered and are persuasive. The 101 Abstract Idea Rejection of claims 1-7, 10, 12-17, and 20 has been withdrawn.
Applicant’s arguments, see Remarks, filed 01/21/2026 with respect to the 101 patent-ineligible subject matter Rejection applied to claim 13 have been fully considered and are persuasive. The 101 patent-ineligible subject matter Rejection of claim 13 has been withdrawn.
Applicant's arguments filed 01/21/2026 have been fully considered but they are not persuasive. In the Remarks, applicant argues “it would not be reasonable to modify the markers of Vasey, which are in a fixed position, with markers supported in a substrate of the tracker, wherein the substrate is at least one of bendable, stretchable and compressible so that relative positions between the markers are variable”. However, while examiner agrees that Vasey teaches using fixed marks in para. [0007], Robertson teaches that “it may be desirable to have a portion of the substrate 106 that is positioned between two or more side markers, such as side markers 102B shown in FIG. 1B, be more flexible, stretchable, and/or the like than another portion of the substrate 106, such as to enable the side markers to more easily move relative to one another after being attached to the patient” in para. [0095]-[0096]. Since the side markers can easily move independently of each other (see para. [0095]), it is inferred that the positions between the markers are variable. Here, Robertson clearly teaches the aforementioned subject matter now included in amended claim 1, and includes a proper motivation regarding the reasoning behind why one of ordinary skill in the art would be motivated to include trackers made of a flexible material. Vasey’s teaching of hybrid markers in a fixed position does not mean that Vasey cannot be combined with another reference that teaches flexible marker positions when there exists a proper motivation for such combination. As such, it would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified the teachings of Vasey (as modified by Feilkas) to incorporate the teachings of Robertson and include “wherein the tracker comprises a substrate supporting the markers, wherein the substrate is at least one of bendable, stretchable and compressible so that relative positions between the markers are variable”. The motivation for doing so would have been “to enable the side markers to more easily move relative to one another after being attached to the patient”, as suggested by Robertson in para. [0096]. Therefore, it would have been obvious to one of ordinary skill at the time the invention was filed to combine Vasey and Feilkas with Robertson to obtain the invention specified in claim 1.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1-5 and 10-16 are rejected under 35 U.S.C. 103 as being unpatentable over Vasey et al. (U.S. Publication No. 2016/0267659 A1), hereinafter Vasey in view of Feilkas et al. (U.S. Publication No. 2008/0135733 A1), hereinafter Feilkas and Robertson et al. (U.S. Publication No. 2017/0303859 A1), hereinafter Robertson.
Regarding claim 1, Vasey teaches a method for assigning marker identities to markers (Vasey, hybrid markers (11); see FIGs. 2a #11 and 2b #11 and para. [0073]-[0074]) of a tracker (Vasey teaches a method (see FIG. 6a-6c) wherein markers are identified and information regarding the markers is stored (see para. [0091-0092]) and tracked)
and a reference (Vasey teaches a reference star (27), see FIG. 4 and para. [0070-0071].)
wherein the markers (Vasey, hybrid markers (11); see FIGs. 2a #11 and 2b #11 and para. [0073]-[0074]) are detectable at least in an infrared light spectrum (Vasey teaches “the outer surface of the marker is at least partly light-reflective in the infrared (IR) spectrum” in para. [0023]), wherein the markers are arranged in a pre-determined relationship relative to the reference (Vasey teaches a reference star (27), see FIG. 4 and para. [0070-0071]. Vasey further teaches that the reference star contains markers “wherein the markers are (in particular detachably) attached to the reference star such that they are stationary, thus providing a known (and advantageously fixed) position of the markers relative to each other” in para. [0042]; “The positions of the spherical markers of the reference star 27 correspond to the centres of the respective spherical markers” as shown in para. [0071]; here, the spherical markers of the reference star are the reference, and the respective spherical markers are the markers as claimed in the claim language; additionally, the pre-determined relationship here is the positional relationship between the hybrid markers (#11) and the reference (#27) as described in para. [0089-0090], see also FIG. 6B) and wherein the pre-determined relationship is indicative of the marker identities (Regarding the reference star (27) as shown in FIG. 4 and discussed in para. [0070-0071], Vasey teaches that “the position of the markers relative to each other can be individually different for each reference star used within the framework of a surgical navigation method, in order to enable a surgical navigation system to identify the corresponding reference star on the basis of the position of its markers relative to each other. It is therefore also then possible for the objects (for example, instruments and/or parts of a body) to which the reference star is attached to be identified and/or differentiated accordingly” in para. [0042]; here, the relative position between the hybrid markers (11) and the reference (27) (pre-determined relationship) allows for the marker identities in the 3D image dataset to be co-registered with the spatial reference, therefore identifying the position (identity) of the markers as shown in para. [0089-0091] and FIGS. 6C, 7),
wherein the method comprises:
receiving first image data of the markers captured in the infrared light spectrum (Vasey teaches “the number of hybrid markers 11 in the marker matrix 22 is determined in the 3D image dataset” in para. [0082]; wherein the 3D dataset is the first image data; “The stereoscopic camera 26 captures a stereoscopic optical infrared image of the marker matrix 22” in para. [0071], wherein the marker can emit or reflect electromagnetic radiation in the infrared, visible and/or ultraviolet spectral range, as shown in para. [0040]);
receiving second image data of the reference (Vasey teaches “the computer 24 identifies the reference star 27, and therefore the spatial reference, in the stereoscopic image of the stereoscopic camera 26” in para. [0087]; this image data is received in para. [0086]);
determining the markers in the first image data (Vasey teaches the process of searching for the hybrid markers in the data set in para. [0077] through [0083]; the 3d data set is the first image data);
determining the reference in the second image data (Vasey teaches “the computer 24 identifies the reference star 27, and therefore the spatial reference, in the stereoscopic image of the stereoscopic camera 26” in para. [0087]; the stereoscopic image here is interpreted as the second image data); and
assigning the marker identities to the markers determined in the first image data based on the reference determined in the second image data and the pre-determined relationship (Vasey teaches “the scan matrix which best matches the image matrix after transformation is selected from the plurality of scan matrices” in para. [0093] wherein “the precision information is in particular the sum of the distances between corresponding pairs of markers in the transformed scan matrix and the image matrix” in para. [0091] is used to determine the best match; here, the transformed scan matrix best match is the first image data which is assigned the marker identities as shown in para. [0042] in regards to the reference star which makes up the image matrix that the scan matrix is being transformed into; here, it is inferred that the best match scan matrix takes on the properties (identity) of the reference star within the image matrix in order for the object to be identified as highlighted in para. [0098]. To summarize the above process, the process of co-registration as described in para. [0091] is being interpreted as equivalent to the process of assigning marker identities based on reference data. The co-registration process involves aligning the image matrix (which are the hybrid markers which have a position relative to the spatial reference) with the scan matrix (which are the markers of the 3D image dataset). This co-registration aligns the markers in the 3D dataset with the reference information, allowing the markers to be identified as shown in para. [0042]; the marker identity established here for the markers of the 3D image dataset is its corresponding reference marker, which has a known identity).
While Vasey teaches markers which are detectable in the visible light spectrum in para. [0040], Vasey fails to specifically teach wherein the tracker comprises a substrate supporting the markers, wherein the substrate is at least one of bendable, stretchable and compressible so that relative positions between the markers are variable, and a reference detectable in a visible light spectrum and receiving second image data of the reference captured in the visible light spectrum.
However, Feilkas teaches wherein the tracker comprises a reference detectable in a visible light spectrum (Feilkas teaches a tracking system for “correlating the images recorded by the cameras 4a and 4b in the infrared range for detecting the markers and in the visible range for detecting the shape or geometry of the instrument 5” in para. [0056]; here, the instrument and the markers are the tracker, and the shape or geometry of the instrument is interpreted as the reference, as the shape and geometry aid in identifying the instrument as further suggested in para. [0056]) and receiving second image data of the reference captured in the visible light spectrum (Feilkas teaches “evaluation of the image data detected by the camera 4c such that dimensions or the geometry of the instrument 5 can be ascertained from the data” in para. [0057], wherein the image data is recorded in the visible range as shown in para. [0056]; see also the first image data in para. [0056] which is captured in the infrared range, wherein the visible light image data can be interpreted as the second image data).
Vasey and Feilkas are both considered to be analogous to the claimed invention because they are in the same field of co-registering medical images using markers. Therefore, it would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified the teachings of Vasey to incorporate the teachings of Feilkas and include “wherein the tracker comprises a reference detectable in a visible light spectrum and receiving second image data of the reference captured in the visible light spectrum” The motivation for doing so would have been to “enable[s] calibration, verification and/or validation of an instrument. By integrating at least two detection devices for detecting light, such as visible light, into the cameras for detecting other types of light (e.g., infrared light) of a known stereoscopic camera system, it is possible (without significantly increasing the weight of the camera system as a whole and without set-up or synchronization problems) to easily provide a device that can not only be used to track markers that reflect, for example, infrared light, but also enables the evaluation of optical information, for example in the visible wavelength range”, as suggested by Feilkas in para. [0011]. Therefore, it would have been obvious to one of ordinary skill at the time the invention was filed to combine Vasey with Feilkas to obtain the invention specified in the above claim limitations.
Vasey and Feilkas fail to teach wherein the tracker comprises a substrate supporting the markers, wherein the substrate is at least one of bendable, stretchable and compressible so that relative positions between the markers are variable.
However, Robertson teaches wherein the tracker comprises a substrate supporting the markers, wherein the substrate is at least one of bendable, stretchable and compressible so that relative positions between the markers are variable (Robertson teaches “it may be desirable to have a portion of the substrate 106 that is positioned between two or more side markers, such as side markers 102B shown in FIG. 1B, be more flexible, stretchable, and/or the like than another portion of the substrate 106, such as to enable the side markers to more easily move relative to one another after being attached to the patient” in para. [0096] and [0095]; here, because the side markers can easily move independently of each other (see para. [0095]), it is inferred that the positions between the markers are variable).
Vasey, Feilkas, and Robertson are all considered to be analogous to the claimed invention because they are in the same field of using markers in medical imaging. Therefore, it would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified the teachings of Vasey (as modified by Feilkas) to incorporate the teachings of Robertson and include “wherein the tracker comprises a substrate supporting the markers, wherein the substrate is at least one of bendable, stretchable and compressible so that relative positions between the markers are variable”. The motivation for doing so would have been “to enable the side markers to more easily move relative to one another after being attached to the patient”, as suggested by Robertson in para. [0096]. Therefore, it would have been obvious to one of ordinary skill at the time the invention was filed to combine Vasey and Feilkas with Robertson to obtain the invention specified in claim 1.
Regarding claim 2, Vasey, Feilkas, and Robertson teach the method according to claim 1,
wherein the pre-determined relationship defines positions associated with the marker identities relative to the reference (Vasey teaches a reference star, which contains markers “wherein the markers are (in particular detachably) attached to the reference star such that they are stationary, thus providing a known (and advantageously fixed) position of the markers relative to each other” in para. [0042]).
Regarding claim 3, Vasey, Feilkas, and Robertson teach the method according to claim 2, wherein assigning the marker identities comprises:
determining the positions associated with the marker identities in the second image data based on the reference determined in the second image data and the pre-determined relationship (Vasey teaches “the computer 24 calculates the image matrix 22a from the positions of the hybrid markers 11 in physical space. The computer 24 also calculates the position of the image matrix 22a relative to the reference star 27 as the spatial reference” in para. [0089]; here, the positions of the hybrid markers in the image matrix are identified based on the predetermined relationship of the reference which is identified in the second image data as shown in claim 1); and
transferring the determined positions associated with the marker identities into the first image data (Vasey teaches “the scan matrix and also the 3D image dataset are deformed in order to match the image matrix” in para. [0095] in which the scan matrix and 3D image dataset represent the markers in the first image data, and the image matrix represents the reference data and the hybrid markers as defined in para. [0089], which have identities as shown in the citation above).
Regarding claim 4, Vasey, Feilkas, and Robertson teach the method according to claim 3,
wherein at least one marker identity is assigned to a closest located available marker determined in the first image data (Vasey teaches the reference star identities as shown in the image matrix (see para. [0089]) being transformed to the closest available marker in through a transformation as shown in para. [0091]).
Regarding claim 5, Vasey, Feilkas, and Robertson teach the method according to claim 3,
wherein the marker identities are assigned in an order that prioritizes shortness of distances between the determined markers and transferred positions of the marker identities available for assignment (Vasey teaches “the scan matrix [determined markers] which best matches the image matrix [transferred positions of the marker identities] after transformation is selected from the plurality of scan matrices” in para. [0093] wherein “the precision information is in particular the sum of the distances between corresponding pairs of markers in the transformed scan matrix and the image matrix” in para. [0091] and “if the precision information concerning the best match is above a predetermined threshold… the scan matrix and also the 3D image dataset are deformed in order to match the image matrix” in para. [0095]; here, the transformation is accomplished due to the lowest precision information value).
Regarding claim 10, Vasey, Feilkas, and Robertson teach the method according to claim 1,
further comprising tracking the tracker based on third image data captured in the infrared spectrum and using the assigned marker identities (Vasey teaches using the markers (trackers) and the reference star (which allows for the markers to be identified) in FIG. 7, and tracking the markers (and by extension the medical instrument) based on the “the position of the tip of the medical instrument 28 relative to the marker spheres 29” in para. [0097]; the references in this image allow for the markers to be identified, as shown through the process described in claim 1. While Vasey further teaches the image data specifically captured in IR in para. [0040] and [0071]; Since this process is an ongoing display as shown in FIG. 4 and 7, it is inferred that this process involves at least third image data). Similar motivations as applied to claim 1 can be applied here.
Regarding claim 11, Vasey, Feilkas, and Robertson teach the method according to claim 1, wherein the reference comprises at least one of:
one or more of the markers (Vasey teaches the reference star being comprised of markers in para. [0042]; Note only one element needs to be mapped to here due to the “at least one of” language in the claim),
at least a portion of a tracker contour,
one or more electrical connections of the markers,
a reference printing, and
a dedicated reference element.
Regarding claim 13, Vasey teaches a non-volatile data storage having a computer program product stored thereon, the computer program product (Vasey teaches a “memory unit 30 [which] stores a computer program which instructs the central processing unit 29 to perform the method” in para. [0100]. See para. [0037] which teaches non-transitory storage which stores a computer program), comprising instructions that, when executed by at least one processor, cause the at least one processor to carry out methods for assigning marker identities to markers (Vasey, hybrid markers (11); see FIGs. 2a #11 and 2b #11 and para. [0073]-[0074]) of a tracker (Vasey teaches “a digital processor (central processing unit or CPU) which executes the computer program elements” in para. [0039]),
and a reference (Vasey teaches a reference star (27), see FIG. 4 and para. [0070-0071].)
wherein the markers are detectable at least in an infrared light spectrum, wherein the markers are arranged in a pre-determined relationship relative to the reference (Vasey teaches a reference star (27), see FIG. 4 and para. [0070-0071]. Vasey further teaches that the reference star contains markers “wherein the markers are (in particular detachably) attached to the reference star such that they are stationary, thus providing a known (and advantageously fixed) position of the markers relative to each other” in para. [0042]; “The positions of the spherical markers of the reference star 27 correspond to the centres of the respective spherical markers” as shown in para. [0071]; here, the spherical markers of the reference star are the reference, and the respective spherical markers are the markers as claimed in the claim language; additionally, the pre-determined relationship here is the positional relationship between the hybrid markers (#11) and the reference (#27) as described in para. [0089-0090], see also FIG. 6B) and wherein the pre-determined relationship is indicative of the marker identities (Regarding the reference star (27) as shown in FIG. 4 and discussed in para. [0070-0071], Vasey teaches that “the position of the markers relative to each other can be individually different for each reference star used within the framework of a surgical navigation method, in order to enable a surgical navigation system to identify the corresponding reference star on the basis of the position of its markers relative to each other. It is therefore also then possible for the objects (for example, instruments and/or parts of a body) to which the reference star is attached to be identified and/or differentiated accordingly” in para. [0042]; here, the relative position between the hybrid markers (11) and the reference (27) (pre-determined relationship) allows for the marker identities in the 3D image dataset to be co-registered with the spatial reference, therefore identifying the position (identity) of the markers as shown in para. [0089-0091] and FIGS. 6C, 7),
wherein the method comprises:
receiving first image data of the markers captured in the infrared light spectrum (Vasey teaches “the number of hybrid markers 11 in the marker matrix 22 is determined in the 3D image dataset” in para. [0082]; wherein the 3D dataset is the first image data; “The stereoscopic camera 26 captures a stereoscopic optical infrared image of the marker matrix 22” in para. [0071], wherein the marker can emit or reflect electromagnetic radiation in the infrared, visible and/or ultraviolet spectral range, as shown in para. [0040]);
receiving second image data of the reference (Vasey teaches “the computer 24 identifies the reference star 27, and therefore the spatial reference, in the stereoscopic image of the stereoscopic camera 26” in para. [0087]; this image data is received in para. [0086]);
determining the markers in the first image data (Vasey teaches the process of searching for the hybrid markers in the data set in para. [0077] through [0083]; the 3d data set is the first image data);
determining the reference in the second image data (Vasey teaches “the computer 24 identifies the reference star 27, and therefore the spatial reference, in the stereoscopic image of the stereoscopic camera 26” in para. [0087]; the stereoscopic image here is interpreted as the second image data); and
assigning the marker identities to the markers determined in the first image data based on the reference determined in the second image data and the pre-determined relationship (Vasey teaches “the scan matrix which best matches the image matrix after transformation is selected from the plurality of scan matrices” in para. [0093] wherein “the precision information is in particular the sum of the distances between corresponding pairs of markers in the transformed scan matrix and the image matrix” in para. [0091] is used to determine the best match; here, the transformed scan matrix best match is the first image data which is assigned the marker identities as shown in para. [0042] in regards to the reference star which makes up the image matrix that the scan matrix is being transformed into; here, it is inferred that the best match scan matrix takes on the properties (identity) of the reference star within the image matrix in order for the object to be identified as highlighted in para. [0098]. To summarize the above process, the process of co-registration as described in para. [0091] is being interpreted as equivalent to the process of assigning marker identities based on reference data. The co-registration process involves aligning the image matrix (which are the hybrid markers which have a position relative to the spatial reference) with the scan matrix (which are the markers of the 3D image dataset). This co-registration aligns the markers in the 3D dataset with the reference information, allowing the markers to be identified as shown in para. [0042]; the marker identity established here for the markers of the 3D image dataset is its corresponding reference marker, which has a known identity).
While Vasey teaches markers which are detectable in the visible light spectrum in para. [0040], Vasey fails to specifically teach wherein the tracker comprises a substrate supporting the markers, wherein the substrate is at least one of bendable, stretchable and compressible so that relative positions between the markers are variable, and a reference detectable in a visible light spectrum and receiving second image data of the reference captured in the visible light spectrum.
However, Feilkas teaches wherein the tracker comprises a reference detectable in a visible light spectrum (Feilkas teaches a tracking system for “correlating the images recorded by the cameras 4a and 4b in the infrared range for detecting the markers and in the visible range for detecting the shape or geometry of the instrument 5” in para. [0056]; here, the instrument and the markers are the tracker, and the shape or geometry of the instrument is interpreted as the reference, as the shape and geometry aid in identifying the instrument as further suggested in para. [0056]) and receiving second image data of the reference captured in the visible light spectrum (Feilkas teaches “evaluation of the image data detected by the camera 4c such that dimensions or the geometry of the instrument 5 can be ascertained from the data” in para. [0057], wherein the image data is recorded in the visible range as shown in para. [0056]; see also the first image data in para. [0056] which is captured in the infrared range, wherein the visible light image data can be interpreted as the second image data).
Vasey and Feilkas are both considered to be analogous to the claimed invention because they are in the same field of co-registering medical images using markers. Therefore, it would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified the teachings of Vasey to incorporate the teachings of Feilkas and include “wherein the tracker comprises a reference detectable in a visible light spectrum and receiving second image data of the reference captured in the visible light spectrum” The motivation for doing so would have been to “enable[s] calibration, verification and/or validation of an instrument. By integrating at least two detection devices for detecting light, such as visible light, into the cameras for detecting other types of light (e.g., infrared light) of a known stereoscopic camera system, it is possible (without significantly increasing the weight of the camera system as a whole and without set-up or synchronization problems) to easily provide a device that can not only be used to track markers that reflect, for example, infrared light, but also enables the evaluation of optical information, for example in the visible wavelength range”, as suggested by Feilkas in para. [0011]. Therefore, it would have been obvious to one of ordinary skill at the time the invention was filed to combine Vasey with Feilkas to obtain the invention specified in the above claim limitations.
Vasey and Feilkas fail to teach wherein the tracker comprises a substrate supporting the markers, wherein the substrate is at least one of bendable, stretchable and compressible so that relative positions between the markers are variable.
However, Robertson teaches wherein the tracker comprises a substrate supporting the markers, wherein the substrate is at least one of bendable, stretchable and compressible so that relative positions between the markers are variable (Robertson teaches “it may be desirable to have a portion of the substrate 106 that is positioned between two or more side markers, such as side markers 102B shown in FIG. 1B, be more flexible, stretchable, and/or the like than another portion of the substrate 106, such as to enable the side markers to more easily move relative to one another after being attached to the patient” in para. [0096] and [0095]; here, because the side markers can easily move independently of each other (see para. [0095]), it is inferred that the positions between the markers are variable).
Vasey, Feilkas, and Robertson are all considered to be analogous to the claimed invention because they are in the same field of using markers in medical imaging. Therefore, it would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified the teachings of Vasey (as modified by Feilkas) to incorporate the teachings of Robertson and include “wherein the tracker comprises a substrate supporting the markers, wherein the substrate is at least one of bendable, stretchable and compressible so that relative positions between the markers are variable”. The motivation for doing so would have been “to enable the side markers to more easily move relative to one another after being attached to the patient”, as suggested by Robertson in para. [0096]. Therefore, it would have been obvious to one of ordinary skill at the time the invention was filed to combine Vasey and Feilkas with Robertson to obtain the invention specified in claim 13.
Regarding claim 14, Vasey teaches a device system comprising a tracker and a device for assigning marker identities to markers (Vasey, hybrid markers (11); see FIGs. 2a #11 and 2b #11 and para. [0073]-[0074])of the tracker (Vasey teaches a device used to carry out the methods of the invention in para. [0044] wherein the method (see FIG. 6a-6c) involves identifying markers and information regarding the markers is stored (see para. [0091-0092]) and tracked),
and a reference (Vasey teaches a reference star (27), see FIG. 4 and para. [0070-0071].)
wherein the markers are detectable at least in an infrared light spectrum, wherein the markers are arranged in a pre-determined relationship relative to the reference (Vasey teaches a reference star (27), see FIG. 4 and para. [0070-0071]. Vasey further teaches that the reference star contains markers “wherein the markers are (in particular detachably) attached to the reference star such that they are stationary, thus providing a known (and advantageously fixed) position of the markers relative to each other” in para. [0042]; “The positions of the spherical markers of the reference star 27 correspond to the centres of the respective spherical markers” as shown in para. [0071]; here, the spherical markers of the reference star are the reference, and the respective spherical markers are the markers as claimed in the claim language; additionally, the pre-determined relationship here is the positional relationship between the hybrid markers (#11) and the reference (#27) as described in para. [0089-0090], see also FIG. 6B) and wherein the pre-determined relationship is indicative of the marker identities (Regarding the reference star (27) as shown in FIG. 4 and discussed in para. [0070-0071], Vasey teaches that “the position of the markers relative to each other can be individually different for each reference star used within the framework of a surgical navigation method, in order to enable a surgical navigation system to identify the corresponding reference star on the basis of the position of its markers relative to each other. It is therefore also then possible for the objects (for example, instruments and/or parts of a body) to which the reference star is attached to be identified and/or differentiated accordingly” in para. [0042]; here, the relative position between the hybrid markers (11) and the reference (27) (pre-determined relationship) allows for the marker identities in the 3D image dataset to be co-registered with the spatial reference, therefore identifying the position (identity) of the markers as shown in para. [0089-0091] and FIGS. 6C, 7),
wherein the method comprises:
receiving first image data of the markers captured in the infrared light spectrum (Vasey teaches “the number of hybrid markers 11 in the marker matrix 22 is determined in the 3D image dataset” in para. [0082]; wherein the 3D dataset is the first image data; “The stereoscopic camera 26 captures a stereoscopic optical infrared image of the marker matrix 22” in para. [0071], wherein the marker can emit or reflect electromagnetic radiation in the infrared, visible and/or ultraviolet spectral range, as shown in para. [0040]);
receiving second image data of the reference (Vasey teaches “the computer 24 identifies the reference star 27, and therefore the spatial reference, in the stereoscopic image of the stereoscopic camera 26” in para. [0087]; this image data is received in para. [0086]);
determining the markers in the first image data (Vasey teaches the process of searching for the hybrid markers in the data set in para. [0077] through [0083]; the 3d data set is the first image data);
determining the reference in the second image data (Vasey teaches “the computer 24 identifies the reference star 27, and therefore the spatial reference, in the stereoscopic image of the stereoscopic camera 26” in para. [0087]; the stereoscopic image here is interpreted as the second image data); and
assigning the marker identities to the markers determined in the first image data based on the reference determined in the second image data and the pre-determined relationship (Vasey teaches “the scan matrix which best matches the image matrix after transformation is selected from the plurality of scan matrices” in para. [0093] wherein “the precision information is in particular the sum of the distances between corresponding pairs of markers in the transformed scan matrix and the image matrix” in para. [0091] is used to determine the best match; here, the transformed scan matrix best match is the first image data which is assigned the marker identities as shown in para. [0042] in regards to the reference star which makes up the image matrix that the scan matrix is being transformed into; here, it is inferred that the best match scan matrix takes on the properties (identity) of the reference star within the image matrix in order for the object to be identified as highlighted in para. [0098]. To summarize the above process, the process of co-registration as described in para. [0091] is being interpreted as equivalent to the process of assigning marker identities based on reference data. The co-registration process involves aligning the image matrix (which are the hybrid markers which have a position relative to the spatial reference) with the scan matrix (which are the markers of the 3D image dataset). This co-registration aligns the markers in the 3D dataset with the reference information, allowing the markers to be identified as shown in para. [0042]; the marker identity established here for the markers of the 3D image dataset is its corresponding reference marker, which has a known identity).
While Vasey teaches markers which are detectable in the visible light spectrum in para. [0040], Vasey fails to specifically teach wherein the tracker comprises a substrate supporting the markers, wherein the substrate is at least one of bendable, stretchable and compressible so that relative positions between the markers are variable, and a reference detectable in a visible light spectrum and receiving second image data of the reference captured in the visible light spectrum.
However, Feilkas teaches wherein the tracker comprises a reference detectable in a visible light spectrum (Feilkas teaches a tracking system for “correlating the images recorded by the cameras 4a and 4b in the infrared range for detecting the markers and in the visible range for detecting the shape or geometry of the instrument 5” in para. [0056]; here, the instrument and the markers are the tracker, and the shape or geometry of the instrument is interpreted as the reference, as the shape and geometry aid in identifying the instrument as further suggested in para. [0056]) and receiving second image data of the reference captured in the visible light spectrum (Feilkas teaches “evaluation of the image data detected by the camera 4c such that dimensions or the geometry of the instrument 5 can be ascertained from the data” in para. [0057], wherein the image data is recorded in the visible range as shown in para. [0056]; see also the first image data in para. [0056] which is captured in the infrared range, wherein the visible light image data can be interpreted as the second image data).
Vasey and Feilkas are both considered to be analogous to the claimed invention because they are in the same field of co-registering medical images using markers. Therefore, it would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified the teachings of Vasey to incorporate the teachings of Feilkas and include “wherein the tracker comprises a reference detectable in a visible light spectrum and receiving second image data of the reference captured in the visible light spectrum” The motivation for doing so would have been to “enable[s] calibration, verification and/or validation of an instrument. By integrating at least two detection devices for detecting light, such as visible light, into the cameras for detecting other types of light (e.g., infrared light) of a known stereoscopic camera system, it is possible (without significantly increasing the weight of the camera system as a whole and without set-up or synchronization problems) to easily provide a device that can not only be used to track markers that reflect, for example, infrared light, but also enables the evaluation of optical information, for example in the visible wavelength range”, as suggested by Feilkas in para. [0011]. Therefore, it would have been obvious to one of ordinary skill at the time the invention was filed to combine Vasey with Feilkas to obtain the invention specified in the above claim limitations.
Vasey and Feilkas fail to teach wherein the tracker comprises a substrate supporting the markers, wherein the substrate is at least one of bendable, stretchable and compressible so that relative positions between the markers are variable.
However, Robertson teaches wherein the tracker comprises a substrate supporting the markers, wherein the substrate is at least one of bendable, stretchable and compressible so that relative positions between the markers are variable (Robertson teaches “it may be desirable to have a portion of the substrate 106 that is positioned between two or more side markers, such as side markers 102B shown in FIG. 1B, be more flexible, stretchable, and/or the like than another portion of the substrate 106, such as to enable the side markers to more easily move relative to one another after being attached to the patient” in para. [0096] and [0095]; here, because the side markers can easily move independently of each other (see para. [0095]), it is inferred that the positions between the markers are variable).
Vasey, Feilkas, and Robertson are all considered to be analogous to the claimed invention because they are in the same field of using markers in medical imaging. Therefore, it would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified the teachings of Vasey (as modified by Feilkas) to incorporate the teachings of Robertson and include “wherein the tracker comprises a substrate supporting the markers, wherein the substrate is at least one of bendable, stretchable and compressible so that relative positions between the markers are variable”. The motivation for doing so would have been “to enable the side markers to more easily move relative to one another after being attached to the patient”, as suggested by Robertson in para. [0096]. Therefore, it would have been obvious to one of ordinary skill at the time the invention was filed to combine Vasey and Feilkas with Robertson to obtain the invention specified in claim 14.
Regarding claim 15, Vasey, Feilkas, and Robertson teach the device according to claim 14,
wherein the pre-determined relationship defines positions associated with the marker identities relative to the reference (Vasey teaches a reference star, which contains markers “wherein the markers are (in particular detachably) attached to the reference star such that they are stationary, thus providing a known (and advantageously fixed) position of the markers relative to each other” in para. [0042]).
Regarding claim 16, Vasey, Feilkas, and Robertson teach the device according to claim 15, wherein assigning the marker identities comprises:
determining the positions associated with the marker identities in the second image data based on the reference determined in the second image data and the pre-determined relationship (Vasey teaches “the computer 24 calculates the image matrix 22a from the positions of the hybrid markers 11 in physical space. The computer 24 also calculates the position of the image matrix 22a relative to the reference star 27 as the spatial reference” in para. [0089]); and
transferring the determined positions associated with the marker identities into the first image data (Vasey teaches “the scan matrix and also the 3D image dataset are deformed in order to match the image matrix” in para. [0095] in which the scan matrix and 3D image dataset represent the markers in the first image data, and the image matrix represents the reference markers as defined in para. [0089], which have identities as shown in the citation above).
Claims 6 and 7 are rejected under 35 U.S.C. 103 as being unpatentable over Vasey et al. (U.S. Publication No. 2016/0267659 A1), hereinafter Vasey in view of Feilkas et al. (U.S. Publication No. 2008/0135733 A1), hereinafter Feilkas, Robertson et al. (U.S. Publication No. 2017/0303859 A1), hereinafter Robertson, and Glossop (U.S. Publication No. 2016/0008074 A1).
Regarding claim 6, Vasey, Feilkas, and Robertson teach the method according to claim 1, further comprising:
providing a virtual marker template that defines a combination of a pre-determined unmodified version of the reference and the pre-determined relationship (Vasey teaches the calculation of the spatial reference (27) in para. [0089] (the virtual marker template) which defines a combination of the pre-determined unmodified reference (the markers of reference star 27), wherein the reference star is a device that defines the pre-determined unmodified version of the spatial reference, as shown in para. [0042] and in FIG. 4 (#27), and the pre-determined relationship, wherein the pre-determined relationship here is the positional relationship between the hybrid markers (#11) and the reference (#27) as described in para. [0089-0090], see also FIG. 6B).
While Vasey teaches modifying the positions of the reference by adjusting the camera position in para. [0088-0089], Vasey, Feilkas, and Robertson fail to teach modifying the virtual marker template in such a way that the reference of the virtual marker template aligns with the reference determined in the second image data, wherein the marker identities are assigned based on the modified relationship of the modified virtual marker template.
However, Glossop teaches modifying the virtual marker template in such a way that the reference of the virtual marker template aligns with the reference determined in the second image data, wherein the marker identities are assigned based on the modified relationship of the modified virtual marker template (Glossop teaches a “template 400 [which] may further comprise one or more fiducial features (or registration features or fiducial markers) 405 for use as a point of reference or a measure” in para. [0125], and wherein the “template 500 may be aligned to prostate 501 through one or more rotations or translated as indicated in 508 . Template 500 may, for example, be moved up/down, left/right, forward/back and rotated as a roll, pitch or yaw motion, or any combination thereof” para. [0130]; here, the reference marker template is interpreted as the virtual marker template in the claim language).
Vasey, Feilkas, Robertson, and Glossop are all considered to be analogous to the claimed invention because they are in the same field of using markers in medical imaging. Therefore, it would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified the teachings of Vasey (as modified by Feilkas and Robertson) to incorporate the teachings of Glossop and include “modifying the virtual marker template in such a way that the reference of the virtual marker template aligns with the reference determined in the second image data, wherein the marker identities are assigned based on the modified relationship of the modified virtual marker template”. The motivation for doing so would have been “to enable the highly accurate position and orientation of a tool equipped with position indicating elements to be calculated”, as suggested by Glossop in para. [0028]. Additionally, Glossop further suggests that using custom templates is specifically useful within medical templates due to the lack of amenability in traditional medical templates in para. [0055]. Therefore, it would have been obvious to one of ordinary skill at the time the invention was filed to combine Vasey, Feilkas, and Robertson with Glossop to obtain the invention specified in claim 6.
Regarding claim 7, Vasey, Glossop, Robertson, and Feilkas teach the method according to claim 6,
wherein the step of modifying the virtual marker template comprises at least one of rotating, translating, scaling, bending, stretching, and compressing the virtual marker template (Glossop teaches a “template 400 [which] may further comprise one or more fiducial features (or registration features or fiducial markers) 405 for use as a point of reference or a measure” in para. [0125], and wherein the “template 500 may be aligned to prostate 501 through one or more rotations or translated as indicated in 508 . Template 500 may, for example, be moved up/down, left/right, forward/back and rotated as a roll, pitch or yaw motion, or any combination thereof” para. [0130]; here, the reference marker template is interpreted as the virtual marker template in the claim language. Note only one element need be mapped to here due to the “at least one of” language in the claim). Similar motivations as applied to claim 6 can be applied here to claim 7.
Claims 8 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Vasey et al. (U.S. Publication No. 2016/0267659 A1), hereinafter Vasey in view of Feilkas et al. (U.S. Publication No. 2008/0135733 A1), hereinafter Feilkas, Robertson et al. (U.S. Publication No. 2017/0303859 A1), hereinafter Robertson, and Ishikawa (U.S. Publication No. 2019/0175301 A1).
Regarding claim 8, Vasey, Feilkas, and Robertson teach the method according to claim 1.
Vasey, Feilkas, and Robertson fail to teach wherein one or more of the markers comprise an infrared light emitting diode, IR-LED .
However, Ishikawa teaches wherein one or more of the markers comprise an infrared light emitting diode, IR-LED (Ishikawa teaches a marker in which “the marker light source unit irradiating the near infrared light IR1 includes the light emitting diode” in para. [0098]).
Vasey, Feilkas, Robertson, and Ishikawa are all considered to be analogous to the claimed invention because they are in the same field of using markers in medical imaging. Therefore, it would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified the teachings of Vasey (as modified by Feilkas and Robertson) to incorporate the teachings of Ishikawa and include “wherein one or more of the markers comprise an infrared light emitting diode, IR-LED”. The motivation for doing so would have been “improve convenience during use of the marker member 40”, as suggested by Ishikawa in para. [0071]. Therefore, it would have been obvious to one of ordinary skill at the time the invention was filed to combine Vasey, Feilkas, and Robertson with Ishikawa to obtain the invention specified in claim 8.
Regarding claim 18, Vasey, Feilkas, and Robertson teach the device according to claim 14.
Vasey, Feilkas, and Robertson fail to teach wherein one or more of the markers comprise an infrared light emitting diode, IR-LED .
However, Ishikawa teaches wherein one or more of the markers comprise an infrared light emitting diode, IR-LED (Ishikawa teaches a marker in which “the marker light source unit irradiating the near infrared light IR1 includes the light emitting diode” in para. [0098]).
Vasey, Feilkas, Robertson, and Ishikawa are all considered to be analogous to the claimed invention because they are in the same field of using markers in medical imaging. Therefore, it would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified the teachings of Vasey (as modified by Feilkas and Robertson) to incorporate the teachings of Ishikawa and include “wherein one or more of the markers comprise an infrared light emitting diode, IR-LED”. The motivation for doing so would have been “improve convenience during use of the marker member 40”, as suggested by Ishikawa in para. [0071]. Therefore, it would have been obvious to one of ordinary skill at the time the invention was filed to combine Vasey, Feilkas, and Robertson with Ishikawa to obtain the invention specified in claim 18.
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Vasey et al. (U.S. Publication No. 2016/0267659 A1), hereinafter Vasey in view of Feilkas et al. (U.S. Publication No. 2008/0135733 A1), hereinafter Feilkas, Robertson et al. (U.S. Publication No. 2017/0303859 A1), hereinafter Robertson, and Mostafavi (U.S. Publication No. 2018/0276846 A1).
Regarding claim 12, Vasey, Feilkas, and Robertson teach the method according to claim 1.
Vasey, Feilkas, and Robertson fail to teach wherein the first and second image data were captured under the same viewing angle.
However, Mostafavi teaches wherein the first and second image data were captured under at least essentially the same viewing angle (Mostafavi teaches “the camera used to generate real-time input images should be setup such that the viewing direction and distance are the same as the setup used to generate the reference image” in para. [0075]; here the real-time input images are the first images and the reference image is the second image).
Vasey, Feilkas, Robertson, and Mostafavi are all considered to be analogous to the claimed invention because they are in the same field of using markers in medical imaging. Therefore, it would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified the teachings of Vasey (as modified by Feilkas and Robertson) to incorporate the teachings of Mostafavi and include “wherein the first and second image data were captured under the same viewing angle”. The motivation for doing so would have been “maximize detection and localization accuracy”, as suggested by Mostafavi in para. [0095]. Therefore, it would have been obvious to one of ordinary skill at the time the invention was filed to combine Vasey, Feilkas, and Robertson with Mostafavi to obtain the invention specified in claim 12.
Claim 19 is rejected under 35 U.S.C. 103 as being unpatentable over Vasey et al. (U.S. Publication No. 2016/0267659 A1), hereinafter Vasey in view of Feilkas et al. (U.S. Publication No. 2008/0135733 A1), hereinafter Feilkas, Robertson et al. (U.S. Publication No. 2017/0303859 A1), hereinafter Robertson, Ishikawa (U.S. Publication No. 2019/0175301 A1), and Luciano (U.S. Publication No. 2020/0037929 A1).
Regarding claim 19, Vasey, Feilkas, Robertson, and Ishikawa teach the device according to claim 18.
Vasey, Feilkas, Robertson, and Ishikawa fail to teach wherein the IR-LED is configured to emit light continuously.
However, Luciano teaches wherein the IR-LED is configured to emit light continuously (Luciano teaches that “the optical markers may be active, such that they have their own light sources. For instance, the active optical marker may include a… continuous-LED… infrared light emitting device” in para. [0025]).
Vasey, Feilkas, Robertson, Ishikawa, and Luciano are all considered to be analogous to the claimed invention because they are in the same field of using markers in medical imaging. Therefore, it would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified the teachings of Vasey (as modified by Feilkas, Robertson, and Ishikawa) to incorporate the teachings of Luciano and include “wherein the IR-LED is configured to emit light continuously”. The motivation for doing so would have been to track movement in medical imaging and determine relevant characteristics, as suggested by Luciano in para. [0024]. Therefore, it would have been obvious to one of ordinary skill at the time the invention was filed to combine Vasey, Feilkas, Robertson, and Ishikawa with Luciano to obtain the invention specified in claim 19.
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Vasey et al. (U.S. Publication No. 2016/0267659 A1), hereinafter Vasey in view of Feilkas et al. (U.S. Publication No. 2008/0135733 A1), hereinafter Feilkas, Robertson et al. (U.S. Publication No. 2017/0303859 A1), hereinafter Robertson, and Mogi. (U.S. Publication No. 2018/0020169 A1).
Regarding claim 20, Vasey, Feilkas, and Robertson teach the device system according to claim 14,
further comprising a camera system with an IR camera module configured to capture the first image data (Vasey teaches the first image data which can be a 3D image set and a “stereoscopic camera [which] operates in the infrared spectrum” in para. [0023]; while it isn’t explicitly stated that the 3D image set was captured with an IR camera module, it is inferred here that Vasey teaches this aspect as it clearly teaches capturing similar images to those in the 3D image dataset (i.e. 3D images with markers) with an IR camera module) and
an optical camera module configured to capture the second image data (Feilkas teaches “the navigation system 1 is coupled to an optical camera comprising two individual cameras”, wherein “Each of the cameras 4a and 4b also can be used as a video camera, wherein visible light is detected” in para. [0055]),
Vasey, Feilkas, and Robertson fail to teach wherein the IR camera module and the optical camera module are configured or configurable to assume a substantially same viewing angle.
However, Mogi teaches wherein the IR camera module and the optical camera module are configured or configurable to assume a substantially same viewing angle (Mogi teaches “an infrared light detection unit which outputs a moving object image on the basis of infrared light out of incident light, and a visible light detection unit which outputs a subject image on the basis of visible light out of the incident light” wherein “the infrared light detection unit and the visible light detection unit are stacked and simultaneously output the moving object image and the subject image with the same frame and the same angle of view.” in para. [0116-0118]).
Vasey, Feilkas, Robertson, and Mogi are all considered to be analogous to the claimed invention because they are in the same field of image analysis. Therefore, it would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified the teachings of Vasey (as modified by Feilkas and Robertson) to incorporate the teachings of Mogi and include “wherein the IR camera module and the optical camera module are configured or configurable to assume a substantially same viewing angle”. The motivation for doing so would have been that “imaging of a subject image and detection of a moving object may be performed at the same time”, as suggested by Mogi in para. [0018]. Therefore, it would have been obvious to one of ordinary skill at the time the invention was filed to combine Vasey, Feilkas, and Robertson with Mogi to obtain the invention specified in claim 20.
Conclusion
Applicant’s amendment(s) necessitated a new ground of rejection. Therefore, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 extension fee 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 date of this final action.
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/Kyla Guan-Ping Tiao Allen/
Examiner, Art Unit 2661
/JOHN VILLECCO/Supervisory Patent Examiner, Art Unit 2661