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 .
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP §§ 706.02(l)(1) - 706.02(l)(3) for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp.
US Application 18/415640
US 10,517,689
US 10,517,688
A method for annotating images of patient tissue through the use of medical software tools, comprising:
1. A method for generating and annotating images of patient tissue through the use of medical software tools, comprising:
1. A method for generating and annotating images of patient tissue through the use of medical software tools, comprising:
generating an image stream by way of an interface module configured to receive an image stream from a surgical camera wherein said image stream interface module includes a CPU for processing said image stream;
generating an image stream by way of an interface module configured to receive an image stream from a surgical camera wherein said image stream interface module includes a CPU and a GPU for processing said image stream;
generating an image stream by way of an interface module configured to receive an image stream from a surgical camera wherein said image stream interface module includes a CPU and a GPU for processing said image stream;
providing a user interface overlay module configured to provide a user interface overlay adapted for presentation over the image stream by use of a video router providing a video stream to overlay an original video image;
providing a user interface overlay module configured to provide a user interface overlay adapted for presentation over the image stream by use of a video router providing a video stream to overlay an original video image;
providing a user interface overlay module configured to provide a user interface overlay adapted for presentation over the image stream by use of a video router providing a video stream to overlay an original video image;
accessing an optical sensor corresponding with said surgical camera for registering changes in spectral characteristics reflected from a tissue surface under inspection wherein said optical sensor provides a signal indicative of light energy detected;
locating an optical sensor corresponding with said surgical camera for registering changes in spectral characteristics reflected from a tissue surface under inspection wherein said optical sensor provides a signal indicative of light energy detected;
locating an optical sensor corresponding with said surgical camera for registering changes in spectral characteristics reflected from a tissue surface under inspection wherein said optical sensor provides a signal indicative of light energy detected;
utilizing medical software tools module through said user interface, said medical software tool configured to perform an operation with respect to said image stream and provide an output adapted to be presented over said image stream,
utilizing medical software tools module configured to provide a medical software tool through the user interface, the medical software tool being configured to perform an operation with respect to the image stream and provide an output adapted to be presented over the image stream;
utilizing medical software tools module configured to provide a medical software tool through the user interface, the medical software tool being configured to perform an operation with respect to the image stream and provide an output adapted to be presented over the image stream,
responsive to said light energy detected by said optical sensor; and utilizing a medical image processing system for processing patient medical data and corresponding said patient medical data with momentary changes in spectral characteristics,
responsive to said light energy detected by said optical sensor; and utilizing a medical image processing system for processing patient medical data and corresponding said patient medical data with momentary changes in spectral characteristics for generating optical signature data indicative of various patient conditions,
responsive to said light energy detected by said optical sensor; and utilizing a medical image processing system for processing patient medical data and corresponding said patient medical data with momentary changes in spectral characteristics for generating optical signature data indicative of various patient condition
wherein the medical software tool measures: a. changes in color intensity and b. rates at which said color intensities change in response to heartbeat pushed blood.
wherein the medical software tool measures: a. changes in color intensity and b. rates at which said color intensities change in response to: heartbeat pushed blood, breathing pushed oxygen or light intensity or modulation from a light source; utilizing image markers to delineate tissue surfaces of interest; and utilizing user input annotation data in connection with said image markers for providing user observed patient data.
wherein the medical software tool measures: a. changes in color intensity and b. rates at which said color intensities change in response to: heartbeat pushed blood, breathing pushed oxygen or light intensity or modulation from a light source.
Claim 2 is rejected under the judicially created doctrine of obviousness-type double patenting as being unpatentable over claim 1 of U.S. Patent No. 10,517,689 ,US 10507065,US 10507075, US 11751815 and U.S. Patent No. 10,517,688. The conflicting claims are not identical because for example patent claim 1 requires the additional elements of “utilizing image markers to delineate tissue surfaces of interest; and utilizing user input annotation data in connection with said image markers for providing user observed patient data”, not required by claim 1 of the instant application. However, the conflicting claims are not patentably distinct from each other because:
• Claims 2 of application '640 and claim 1 of patent '689 , patent ‘065, patent ‘075, patent ‘815 and patent ‘688 recite common subject matter;
• Whereby claim 2, which recites the open ended transitional phrase “comprising”, does not preclude the additional elements recited by claim 1 of the patent, and
• Whereby the elements of claim 2 are fully anticipated by patents claim 1, and anticipation is “the ultimate or epitome of obviousness” (In re Kalm, 154 USPQ 10 (CCPA 1967), also In re Dailey, 178 USPQ 293 (CCPA 1973) and In re Pearson, 181 USPQ 641 (CCPA 1974)).
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 2-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. When reviewing independent claim 2, and based upon consideration of all of the relevant factors with respect to the claim as a whole, claim(s) 2-20 are held to claim an abstract idea without reciting elements that amount to significantly more than the abstract idea and is/are therefore rejected as ineligible subject matter under 35 U.S.C. 101. The Examiner will analyze Claim 2, and similar rationale applies to independent Claim/s 21. The rationale, under MPEP § 2106, for this finding is explained below:
The claimed invention (1) must be directed to one of the four statutory categories, and (2) must not be wholly directed to subject matter encompassing a judicially recognized exception, as defined below. The following two step analysis is used to evaluate these criteria.
Step 1: Is the claim directed to one of the four patent-eligible subject matter categories: process, machine, manufacture, or composition of matter?
When examining the claim under 35 U.S.C. 101, the Examiner interprets that the claims is related to a process since the claim is directed to a method for annotating images of patient tissue through the use of medical software tools
Step 2a, Prong 1: Does the claim wholly embrace a judicially recognized exception, which includes laws of nature, physical phenomena, and abstract ideas, or is it a particular practical application of a judicial exception?
The Examiner interprets that the judicial exception applies since Claim 2 limitation of “generating.. providing…..accessing…utilizing” is/are directed to an abstract idea. The claim is related to the element of the claims such as generating an image stream and utilizing a medical software tool are conventional activities in the field of medical imaging . If the claim recites a judicial exception (i.e., an abstract idea enumerated in MPEP § 2106.04(a), a law of nature, or a natural phenomenon), the claim requires further analysis in Prong Two.
Step 2a, Prong 2: Does the claim recite additional elements that integrate the judicial exception into a practical application?
The Examiner interprets that Claim 2 limitation does not provide additional elements or combination of additional elements to a practical application since the claim/s is/are [adding the words of “applying it” with more instructions to implement an abstract idea on a computer. See MPEP 2106.05(f). or insignificant extra-solution activity to the judicial exception - see MPEP 2106.05(g). or Generally linking the use of the judicial exception to a particular technological environment or field of use – see MPEP 2106.05(h).] See, MPEP §2106.04(a), Because a judicial exception is not eligible subject matter, Bilski, 561 U.S. at 601, 95 USPQ2d at 1005-06 (quoting Chakrabarty, 447 U.S. at 309, 206 USPQ at 197 (1980)), if there are no additional claim elements besides the judicial exception, or if the additional claim elements merely recite another judicial exception, that is insufficient to integrate the judicial exception into a practical application. See, e.g., RecogniCorp, LLC v. Nintendo Co., 855 F.3d 1322, 1327, 122 USPQ2d 1377 (Fed. Cir. 2017) ("Adding one abstract idea (math) to another abstract idea (encoding and decoding) does not render the claim non-abstract"). OR Genetic Techs. v. Merial LLC, 818 F.3d 1369, 1376, 118 USPQ2d 1541, 1546 (Fed. Cir. 2016) (eligibility "cannot be furnished by the unpatentable law of nature (or natural phenomenon or abstract idea) itself."). For a claim reciting a judicial exception to be eligible, the additional elements (if any) in the claim must "transform the nature of the claim" into a patent-eligible application of the judicial exception, Alice Corp., 573 U.S. at 217, 110 USPQ2d at 1981, either at Prong Two or in Step 2B. If there are no additional elements in the claim, then it cannot be eligible. In such a case, after making the appropriate rejection (see MPEP § 2106.07 for more information on formulating a rejection for lack of eligibility), it is a best practice for the examiner to recommend an amendment, if possible, that would resolve eligibility of the claim.
Step 2b: If a judicial exception into a practical application is not recited in the claim, the Examiner must interpret if the claim recites additional elements that amount to significantly more than the judicial exception.
The Examiner interprets that the Claims do not amount to significantly more.Furthermore, the generic computer components of the process recited as performing generic computer functions that are well-understood, routine and conventional activities amount to no more than implementing the abstract idea with a computerized system.
Claims 2-20 depending on the independent claim/s include all the limitation of the independent claim.
Therefore, the Examiner interprets that the claims are rejected under 35 U.S.C. 101.
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.
Claims 2 and 21 include claim limitation “an interface module; overlay module, software tool ” have been interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because it uses/they use a linking word “ configured to” coupled with functional language respectively recited after each of the aforementioned claim limitations, without reciting sufficient structure to achieve the function. Furthermore, the generic placeholder is not preceded by a structural modifier.
Since the claim limitation(s) invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, 1-4; 6-8;11-12 have been interpreted to cover the corresponding structure described in the specification that achieves the claimed function, and equivalents thereof.
A review of the specification shows that the following appears to be the corresponding structure described in the specification for the 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph limitation: see figure 3 and corresponding text. If applicant wishes to provide further explanation or dispute the examiner’s interpretation of the corresponding structure, applicant must identify the corresponding structure with reference to the specification by page and line number, and to the drawing, if any, by reference characters in response to this Office action.
If applicant does not intend to have the claim limitation(s) treated under 35 U.S.C. 112(f) applicant may amend the claim(s) so that it/they will clearly not invoke 35 U.S.C. 112(f) or present a sufficient showing that the claim recites/recite sufficient structure, material, or acts for performing the claimed function to preclude application of 35 U.S.C. 112(f).
For more information, see MPEP § 2173 et seq. and Supplementary Examination Guidelines for Determining Compliance With 35 U.S.C. 112 and for Treatment of Related Issues in Patent Applications, 76 FR 7162, 7167 (Feb. 9, 2011).
Allowable Subject Matter
Claims 2-39 are allowed ( Note that the 35 USC 101 rejection needs to be overcome before the claims are allowable).
The following is an examiner’s statement of reasons for allowance: The prior art of record does not teach certain distinguishing features as described below in reference to independent claim 2: Regarding claim 2, the prior art Zacharias et al teaches a system for medical software tools, comprising: an image stream interface module configured to receive an image stream from a surgical camera wherein said image stream interface module includes a CPU and a GPU for processing said image stream (paragraph [0004] a video camera located in the surgical microscope receiving an image through a beam splitter that is similar to the surgeons view of the surgical area providing a user interface overlay module configured to provide a user interface overlay adapted for presentation over the image stream; ( 22, figure 2;paragraph [0002];superposing computer generated graphic information over portions of another video image); locating an optical sensor corresponding with said surgical camera for registering changes in spectral characteristics reflected from a tissue surface under inspection(paragraph [0087 -0088)); utilizing medical software tools module configured to provide a medical software tool through the user interface, ( paragraph [0086] display screen that allows a user to select among different operating modes and graphic display overlay templates used while processing surgical apparatus 18 serial data stream to provide a digital RGB video image for video overlay console), the medical software tool being configured to perform an operation with respect to the image stream and provide an output adapted to be presented over the image stream (Paragraph[0062] devices used for superposing computer generated graphic information over portions of another video image and more particularly is related to a device for producing an output video signal of a surgical procedure where portions of the video image are replaced by computer generated graphic information in digital video format derived from a data signal containing meaningful operational parameters from a surgical apparatus; see also figure 4 display data overlay). White et al teaches optical sensor (the illumination subsystem 100 generates the near-infrared (NIR) light used to interrogate the tissue of a human, paragraph [0114]) by using a software tool (.e. computing subsystem 500, paragraph [0175]) to measure changes in color intensity (paragraph [0222]) and rates at which said color intensities change in response to modulation from a light source (paragraph [0156], [0158], [0163]). None teaches:
perform an operation with respect to said image stream and provide an output adapted to be presented over said image stream, responsive to said light energy detected by said optical sensor; and utilizing a medical image processing system for processing patient medical data and corresponding said patient medical data with momentary changes in spectral characteristics, wherein the medical software tool measures: a. changes in color intensity and b. rates at which said color intensities change in response to heartbeat pushed blood.
However, none of the reference teaches or fairly suggests the combination of claimed elements. The Examiner finds no reason or motivation to combine the above references in an obviousness rejection thus placing the application in condition for allowance.
Claim 21 is allowed by analogy.
Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NANCY BITAR whose telephone number is (571)270-1041. The examiner can normally be reached on Mon-Friday from 8:00 am to 5:00 p.m.
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NANCY . BITAR
Examiner
Art Unit 2664
/NANCY BITAR/
Primary Examiner, Art Unit 2664