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 .
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.
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are:
a) a control device configured to drive…in claim 1
b) eye tracking device configured to ascertain…in claim 9
c) diagnostic device, determining a visual disorder…in claim 10
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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.
Claim 10 is 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.
As to claim 10, the claim limitation “diagnostic device determining a visual disorder” invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. However, the written description fails to disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function.
Applicant’s specification contains no details on such a device.
Therefore, the claim is indefinite and is rejected under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph.
Applicant may:
(a) Amend the claim so that the claim limitation will no longer be interpreted as a limitation under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph;
(b) Amend the written description of the specification such that it expressly recites what structure, material, or acts perform the entire claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(c) Amend the written description of the specification such that it clearly links the structure, material, or acts disclosed therein to the function recited in the claim, without introducing any new matter (35 U.S.C. 132(a)).
If applicant is of the opinion that the written description of the specification already implicitly or inherently discloses the corresponding structure, material, or acts and clearly links them to the function so that one of ordinary skill in the art would recognize what structure, material, or acts perform the claimed function, applicant should clarify the record by either:
(a) Amending the written description of the specification such that it expressly recites the corresponding structure, material, or acts for performing the claimed function and clearly links or associates the structure, material, or acts to the claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(b) Stating on the record what the corresponding structure, material, or acts, which are implicitly or inherently set forth in the written description of the specification, perform the claimed function. For more information, see 37 CFR 1.75(d) and MPEP §§ 608.01(o) and 2181.
As to claim 10, the claim recites “a method for operating a visual simulation device according to claim 1”, which is directed to the method of use/operation of the apparatus of claim 1 (MPEP 2173.05(p).II). The metes and bounds are unclear since whether the claim is infringed by the device of claim 1 that is capable of being operated/used as per the method of claim 10, or if a practitioner of the invention is required to operate the device in the particular manner. For purposes of compact prosecution, Examiner will understand art teaching claim 1 to necessarily be operable as per claim 10.
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-8, 10-12 are rejected under 35 U.S.C. 102(a1) as being anticipated by Campbell (US 2006/0106426).
As to claim 1, Campbell teaches a vision simulation device for providing correction of visual defects (Campbell Figs. 1-7B), comprising
an eye interface (Campbell Fig. 1 - E, 12, 16);
at least one spatially controllable light wave modulator configured to modulate light waves for generating aberrations and to provide the modulated light waves at the eye interface of the visual simulation device (Campbell Fig. 1 - 22, 20; para. [0008], [0030], [0040]; Figs. 4A-4C; para. [0062]);
a control device configured to drive the at least one spatially controllable light wave modulator for at least partially compensating for at least one predetermined visual defect by generating at least one preset aberration (Campbell Fig. 1 - 30, 22; para. [0008], [0040]).
As to claim 2, Campbell teaches all the limitations of the instant invention as detailed above with respect to claim 1, and Campbell further teaches the at least one spatially controllable light wave modulator comprises a wavefront modulator (Campbell Fig. 1 - 20; Figs. 4A-C - 68).
As to claim 3, Campbell teaches all the limitations of the instant invention as detailed above with respect to claim 1, and Campbell further teaches the at least one spatially controllable light wave modulator comprises a deformable phase plate (Campbell Figs. 4A-C - 66; para. [0047]).
As to claim 4, Campbell teaches all the limitations of the instant invention as detailed above with respect to claim 1, and Campbell further teaches the eye interface is binocularly formed and respective light wave modulators spatially controllable separately from each other are provided for the respective binoculars (Campbell Fig. 1; para. [0030] - devices include binoculars and eyeglasses).
As to claim 5, Campbell teaches all the limitations of the instant invention as detailed above with respect to claim 1, and Campbell further teaches multiple respectively spatially controllable light wave modulators are arranged one behind the other (Campbell Fig. 3 - 42, 42a, 42b).
As to claim 6, Campbell teaches all the limitations of the instant invention as detailed above with respect to claim 1, and Campbell further teaches the control device is configured to generate modulation data for the at least one spatially controllable light wave modulator from predetermined visual disorder data (Campbell Fig. 1 - 30, 22; para. [0008], [0040]; Figs. 5-7B), wherein the predetermined visual disorder data includes information about visual defects of a patient (Campbell para. [0008], [0040]);
drive the at least one spatially controllable light modulator based on the modulation data to generate an aberration in the light waves to at least partially compensate for the visual defect (Campbell Fig. 1 - 30, 22; para. [0008], [0040]; Figs. 5-7B).
As to claim 7, Campbell teaches all the limitations of the instant invention as detailed above with respect to claim 1, and Campbell further teaches the control device is configured to induce aberrations for the at least one spatially controllable light wave modulator (Campbell Figs. 4A-C; para. [0008], [0040]), and
provide an adjustment of the at least one spatially controllable light wave modulator for providing a subjective visual defect correction depending on a subjective patient feedback (Campbell Fig. 1 - 10, E; para. [0002], [0005]).
As to claim 8, Campbell teaches all the limitations of the instant invention as detailed above with respect to claim 1, and Campbell further teaches the vision simulation device is configured to be introduced into a beam path of the light waves (Campbell Fig. 1 - 12).
As to claim 10, Campbell teaches all the limitations of the instant invention as detailed above with respect to claim 1, and as discussed above in the USC 112(b) section, so long as the prior teaches the device, such device is necessarily capable of being operated in the manner of claim 10 (Campbell Figs. 1-7B).
As to claim 11, Campbell teaches all the limitations of the instant invention as detailed above with respect to claim 6, and Campbell further teaches the generated aberration is a higher order aberration (Campbell para. [0008], [0040]).
As to claim 12, Campbell teaches all the limitations of the instant invention as detailed above with respect to claim 1, and Campbell further teaches a second eye interface (Campbell Fig. 1; para. [0030] - binoculars, eyeglasses) wherein the spatially controllable light wave modulator includes a first light wave modulator aligned with the eye interface and a second light wave modulator aligned with the second eye interface (Campbell Fig. 1; para. [0030] - binoculars, eyeglasses), wherein the first light wave modulator and the second light wave modulator are spatially controllable separately from each other (Campbell Fig. 1; para. [0030] - binoculars, eyeglasses).
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Campbell as applied to claim 1 above, and further in view of Caldeira et al. (US 2013/0169925 - Caldeira).
As to claim 9, Campbell teaches all the limitations of the instant invention as detailed above with respect to claim 1, but doesn’t specify an eye tracking device configured to ascertain a position and/or viewing direction of an eye located at the eye interface, wherein the control device is further configured to drive the at least one spatially controllable light wave modulator based on the ascertained position and/or viewing direction.
In the same field of endeavor Caldeira teaches a vision simulation device having an eye tracking device (Caldeira Fig. 30 - 940; para. [0119]) configured to ascertain a position and/or viewing direction of an eye located at an eye interface (Caldeira Fig. 30 - 935, 940; para. [0119], [0006]), and a control device (Caldeira Fig. 30 - 950) configured to drive at least one spatially controllable light wave modulator (Caldeira Fig. 30 - 930; para. [0119]-[0121]; Fig. 1 - 115; para. [0035], [0036]) based on the ascertained position and/or viewing direction (Caldeira Fig. 30 - 930, 931, 932; para. [0119]-[0121]; Fig. 31 - 1014, 1016).
It would have been obvious to one of ordinary skill in the art before the effective filing date to provide such eye tracking and control since, as taught by Caldeira, such features allow for adjusting the modulator to compensate for the shift in viewing and associated aberration/acuity changes (Caldeira Fig. 31 - 1013, 1014, 1015, 1026).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure: Baker et al. (US 9,895,058; 2012/0287398); Caldeira et al. (US 9,052,502); Lindacher (US 7,559,652; 2007/0139614); Campbell et al. (US 7,475,989; 2007/0216867); Campbell (US 7,413,306); Fukuma et al. (US 7,159,984; 2004/0032567) are cited as additional examples of vision simulation devices with wavefront modulators and associated control for correcting the users vision.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ZACHARY W WILKES whose telephone number is (571)270-7540. The examiner can normally be reached M-F 8-4 (Pacific).
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Ricky Mack can be reached at 571-272-2333. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ZACHARY W WILKES/Primary Examiner, Art Unit 2872 December 11, 2025