DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Amendment
Applicant's submissions filed on 08/29/2025 have been entered. Accordingly, claims 1-6 and 8 remain pending, claims 1, 3-6 and 8 have been amended.
Response to Arguments
Rejections under 35 USC 112(b)
Applicant's arguments filed 08/29/2025 have been fully considered but they are not persuasive.
Applicant indicates on page 6 that they have amended the rejected claims to overcome the rejection.
However, none of the newly presented claim amendments address the outstanding rejections and have added additional issues regarding new matter and clarity to the claims. See the rejections below which have been updated to include the newly amended claim language and the newly added 112(a) rejection(s).
Rejections under 35 USC 103
Applicant’s arguments with respect to claim(s) 1 have been considered but are moot because the new grounds of rejection have been presented. Consequently, the arguments do not apply to new references or the new combination of the references being used in the current rejection.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-6 and 8 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 1 has been amended to recite “determining, based on the final geometry, a movement or a second location of the first vertebra and the second vertebra”, in lines 10-11, support could be found for a selected corrected geometry may include a geometry of the spine in the preoperative configuration or with substantially no alteration (see [0121]); however, if the subject may be diagnosed with a spinal deformity, such as scoliosis may include a non-selected or non-optimal curve of the spine, here, then the final or corrected geometry may be calculated based on the current geometry, such as determined by the determined and registered location of the implanted screws, the user may determine or pre-define a selected or determined final geometry and the predetermined, (e.g. user defined or determined) geometry may be recalled or accessed in block 720, so that an analysis of global spinal alignment (GSA) may be made and may be pertinent to assessment of spinal curvature and related metric, specifically, GSA measures may include sagittal alignment (SA), thoracic kyphosis (TK) (see [0122], FIG. 7), once the computed and/or accessed selected corrected geometry is made in block 720, a final implant placement and/or geometry determination may be made in block 730, so that the final geometry will include a final relative screw location in block 732 and rod geometry (e.g. bends) that may need to be made (according to the curvature of the spinal deformity of the patient and the degree of correction needed) in block 740, the computation may be made to determine a selected amount of movement relative to a superior to inferior axis of the subject 28 to achieve the selected corrected geometry from block 720 (see [0123], FIG. 7), the registered positions of the screws may be used as a surrogate or for determining the position of each of the vertebrae in the spine (see [0123), so that if a most superior and most inferior screw are substantially aligned and intermediate screws are out of alignment, a computation may be to include the intermediate screws more in alignment with the superior and inferior screws (see [0423]), the processor system 56 may determine the amount of medial movement of an intermediate screw to correctly align with the computed corrected geometry of the spine (see [0123]).
However, this does not provide support for what is claimed, and no basis has been pointed to for these new limitations in applicant' s remarks. In the absence of support for the newly recited limitations, these claims and claims dependent thereon are deemed to constitute new matter. This is a NEW MATTER rejection.
All dependent claims are also rejected by the nature of their dependency.
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-6 and 8 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 has been amended to recite “determining, based on the current geometry, a first location of a first vertebra of the spine and a second vertebra of the spine”, “determining and selecting a final geometry of the spine of the subject”, “determining, based on the final geometry, a movement or a second location of the first vertebra and the second vertebra”, “determining, based on the movement or the second location, at least one bend of a rod to connect the first vertebra and the second vertebra in accordance with the final geometry”, in lines 5-14, which renders the claim indefinite because it is unclear how a two separate vertebrae, i.e., the first vertebra and the second vertebra, can physically be located at the same singular location. Similarly, it is unclear how any movements of two separate vertebrae, may be considered only singular movement and how the respective movements of each of the two respective (separate) vertebrae or that the first vertebra and the second vertebra are located at the same physical singular second location. Further, it is unclear how any of the above discussed information can be obtained from the final geometry. It is unclear who or what device, and by what mechanism, performs each step of determining, selecting, and outputting. No processing device that is specifically configured to perform these functions has been recited in the claim and it is not clear if these steps are being carried out by a physical processing device, display device, etc., or if these steps are performed by a signal per se or by a human user. If either of the later, e.g., a signal per se or by a human user, it should be noted that the claim would not be patent eligible under 35 USC 101. Applicant is advised to amend the claim to clarify the recited language to subject matter that is clearly and structurally patent-eligible. And to amend the claim to recite each physical device that is specifically configured to perform each step it is configured to perform. Without this subject matter clearly recited in the claim(s), the claimed subject matter will not be patent eligble under 35 USC 101.
Next, it is unclear if the determining and selecting are performed as a single step or simultaneously performed separate steps, as it is unclear how a selection step is performed on a selected final geometry, which, by virtue of the current phrasing of term, has already been “selected” by an unknown process or step. Therefore, it is unclear at what prior step and by what basis and/or mechanism the initial step of selecting of a final geometry of the spine is performed.
It is also unclear if the two (first and second) vertebrae corresponding to each of the “first vertebra” and the “second vertebra” are located in the same spinal segment, e.g. both within the cervical, thoracic, lumbar, or sacral spinal regions.
Further, it is unclear if determining a singular location of both the first vertebra and the second vertebra are both required to achieve the selected final geometry, or only determining the singular location of both the first vertebra or the second vertebra is required. It is also unclear if and how the respective locations the first vertebrae and the second vertebrae are used to determine the current geometry, as there is no corresponding recitation in the claim.
Additionally, it is also unclear how the “selected final geometry” is determined to be “selected” when the claim does not recite a step for “selection”, as it is unclear if applicant meant to recite a step of forming a “selection” of the final geometry of the portion of the subject, as applicant has not positively recited a step for actively performing the selection of the final geometry, that the associated limitation is intended use and not actually functionally required by the claim.
Applicant’s recited functional steps of “analyzing…”, “determining…”, and “outputting…”, And it is unclear what structural device(s) performs these steps and if they are performed by the same device. It is unclear in what manner applicant intends for the term “outputting” to be interpreted as, for example, is the determined at least one bend of the rod outputted as an auditory tone, color, numerical display, graphical display, auditory verbal output, textual output on a display, and so on. Please see the above remarks regarding eligible subject matter under 35 USC 101.
Therefore, these limitations have been interpreted under the broadest reasonable interpretation to read on any device capable of performing any of these functions in any capacity known in the art of medical imaging, and as outlined above, limitations where it is not clear if a functional step as being performed, have been interpreted under the broadest reasonable interpretation to not be limited to the interpretation of these limitations as actively being performed. As applicant is not recited any structure for performing the rejected limitations, it is been interpreted under the broadest reasonable interpretation that any one or more means, devices, being hardware or software, or any combination thereof, and of any number, have been interpreted as being capable of performing any one or more of the above rejected limitations as known in the art of medical imaging.
Claims 3-6 and 8 are also rejected for reciting the same and/or similar limitations outlined the rejection above, i.e., reciting steps of the method without any associated structure for performing said steps, passively reciting other subject matter without any of active step for these limitations being actively recited as steps being performed.
All dependent claims are also rejected due to their dependency from rejected parent claim(s).
Claim 2 has been amended to recite “determining a geometry between the first member location and the second member location” in lines 4-5, which renders the claim indefinite because it is unclear if the geometry between the first member location and the second member location is meant to refer to or be inclusive of either the current geometry or the final geometry, recited in parent claim 1, if applicant meant to recite a geometry different from that recited in parent claim 1.
Applicant discloses in [0056] the specification of the PG Pub that the implant(s) is a pedicle screw(s). Therefore, it is unclear if the first and second member are each or together meant to refer to the implant recited in the preamble of parent claim 1, or if applicant meant to refer to a different implant other than as recited in parent claim 1.
Claim 8 is also rejected for reciting the same and/or similar limitations outlined the rejection above.
All dependent claims are also rejected by the nature of their dependency.
Claim 3 has been amended to recite “registering the first member location and the second member location to the 3D image to create a registered 3D image, wherein the current geometry is determined based on the registered 3D image” in lines 7-9, which renders the claim indefinite because it is unclear if the 3D image of the subject and/or the registered 3D image of the subject are meant to refer to the image of a subject that is analyzed to determine a current geometry of a spine of the subject as recited in claim 1, on which parent claim 2 depends, or if applicant meant to refer to images other than the image recited in claim 1.
All dependent claims are also rejected.
Claim 4 has been amended to recite “wherein the movement or the second location is determined based on the analyzing the registered 3D image” in lines 2-3, which renders the claim indefinite because it is unclear if the second location is meant to refer to the earlier recited second member location, and if the movement is meant to refer to the movement of the first vertebra, as recited in parent claim 1, on which claim 4 depends via claim 3.
All dependent claims are also rejected by the nature of their dependency.
Claim 5 has been amended to recite “determining a similarity metric based on the generated projection to the 2D image” 6-8, which renders the claim indefinite because it is unclear it is unclear what basis of measurement or comparison between the generated projection and/with/to the 2D image is being performed in the step recited in the limitation outlined in the above rejection.
Claim 6 has been amended to recite “determining a similarity metric of the member projection based on comparing the member projection” in lines 5-7, which renders the claim indefinite because it is unclear if the member projection for which a similarity metric is determined, is the same as the member projection compared to the2D image, as recited earlier and later in the claim. A suggested amendment to overcome this rejection would be to amend the claim to recite:
“determining a similarity metric of the member projection based on the comparing of the member projection to the 2D image”.
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.
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(s) 1-3 and 8 are rejected under 35 U.S.C. 103 as being obvious in view of Isaacs (US20090254326), in view of Finley (US20180092699).
Regarding claim 1, Isaacs discloses method of determining an implant deviceꝉ configuration between a plurality of points (see FIGS. 2-3), comprising:
determining, based on an image of a subject, a current geometry of a spine of the subject ([0089]-[0091] using the output of image guidance, identifying bony features or structures such as the shape/geometry of the spine of the patient);
determining, based on the current geometry, a first location* of a first vertebra** of the spine and a second vertebra** of the spine ([0084]-[0085], [0101] the image data may be used to determine how the anatomy moves or has moved or changed at two or more points [corresponding to the two or more individual vertebra], to then determine the amount of implant manipulation needed to gain the anatomical change desired/selected final geometry in order to achieve the selected result);
determining and selecting a final geometry of the spine of the subject ([0093]-[0101] identifying boney features or structures in the image data to help form, obtain and/or hold the correction required in performing a spinal osteotomy by comparing the images taken during surgery to images taken prior to surgery it is possible to figure out how much to alter the shape of the linkage device in order to achieve the straightness the patient can physically achieve by bending);
determining, based on a movement***, at least one bend of a rod to connect the first vertebra of the spine and the second vertebra in accordance with final geometry ([0085], [0101], [0110], FIG. 3 depicts bend angle A between a first vertebra and a second vertebra, also depicted is the rotation angle R a second vertebra and a third vertebra at which the rod has been bent between the vertebrae which determines how the anatomy moves or has moved or changed); and
in another embodiment, Issacs discloses and outputting, to a bending device, the determined at least one bend of the rod ([0101] output to a linkage device, the amount of implant manipulation needed to gain the anatomical change desired in the rod).
It would have been obvious to one ordinarily skilled in the art before the effective filing date of the claimed invention to modify the method disclosed by Issacs with the step of and outputting, to a bending device, the determined at least one bend of the rod for use is achieving the selected final geometry of the spine disclosed by Isaacs in order to have the determined bend data displayed for the surgeon to input data and make selections to produce bend data to address, straighten, or alter abnormalities in alignment of the body part(s) of the patient; create, lessen or eliminate deformities; reduce or impose changes in alignment; or the addition or elimination of stresses ([0158]-[0159] of Isaacs).
Issacs discloses
determining, based on the movement*** or the second location, a movement of at least the first vertebra and the second vertebra to the selected final geometry ([0084]-[0085], [0089], [0100]-[0101] the linkage device is implanted with a predefined load which can aid in adjusting deformities or set the location of a flexible system to determine the amount of implant manipulation needed to gain the anatomical change desired by first determining how the anatomy moves or changes at two or more points [corresponding to the two or more individual vertebra] by using images obtained intraoperatively and comparing them to images taken prior to surgery to figure out how much to alter the shape of the linkage device in order to achieve the selected final geometry in order to achieve the selected result); but does not explicitly disclose that the determining of a movement of the first vertebra and the second vertebra as being based on the final geometry.
However, in the same field of endeavor, Finley teaches determining, based on the final geometry ([0107]-[0108] after the geometric shape of the entire spine pin 52 positioned within the spinous processes of three adjacent vertebrae is determined by image recognition techniques performed by the processor), a movement*** of the first vertebra and the second vertebra([0108] computer executable instructions is configured to compare the determined, by the system 10, the relative positions of the radiographic orientation of the pins 52 to confirm that they align within an acceptable error tolerance to confirm the correlation, any relative movement of the spine [inclusive of the first and second vertebrae] that is detected from the tracking system 32 will be used to update the segmented vertebra locations in the radiographic data [inclusive of the final geometry]).
It would have been obvious to one ordinarily skilled in the art before the effective filing date of the claimed invention to modify the method disclosed by Issacs with the step of determining, based on the final geometry, a movement or a second location of the first vertebra and the second vertebra as taught by Finley so that by s automatically identify and extract the spine curve, each individual vertebra may be detected and identified ([0109] of Finley).
*The limitation has been interpreted under the broadest reasonable interpretation to encompass mean that, from the image data, shape/geometry of the spine depicting a first and a second vertebrae which may be in the same physical location along any known axial dimension or having the same and/or overlapping coordinates, as known in the art how a singular “location” may be, without limitation, as defined in the imaging arts.
**The term has been interpreted, henceforth, under the broadest reasonable interpretation to refer to any individual vertebra, but not limited to, any being located near or at a distance within or from another vertebra of any other segment of the vertebral column as known in the arts of medical imaging and surgical navigation, that is able to aid and or contribute to the determination of the final shape of the subject that is not limited to being geographically the same physical area/position/or position of the subject as the current geometry/shape of the portion of the subject.
***The limitations have been interpreted in the alternative, requiring determining, based on the final geometry, a movement of the first vertebra and the second vertebra; or requiring determining, based on the final geometry, a second location of the first vertebra and the second vertebra.
***The limitations have been interpreted in the alternative, requiring determining, based on the movement, at least one bend of a rod requiring; or requiring determining, based on the second location, at least one bend of a rod.
Regarding claim 2, Isaacs substantially discloses all the limitations of the claimed invention, specifically, Isaacs discloses wherein analyzing, in the image of the subject a first member location of a first member* and a second member location of a second member*([0018]-[0029], [0087] analyzing the image data of the linking device comprising a rod and a plurality of surgical screws); and
determining a geometry between the first member location and the second member location ([0018]-[0029], [0087] analyzing the image data includes at two points corresponding to a first and a second screw of the plurality of screws at each respective first and second location).
*The term has been interpreted, henceforth, under the broadest reasonable interpretation to refer to any member being any component of any object, device, anatomy, but not limited to, any one of the implant, plurality of points, the subject, or any other structural or functional means known in the arts of medical imaging and surgical navigation, that is able to aid and or contribute to the determination the shape of any portions of the patient anatomy that are geographically located between two points corresponding to the first and second locations of the portion of the subject. As Oxford Languages Dictionary defines the term “member” to mean “a constituent piece of a complex structure”.
Regarding claim 3, Isaacs, in view of Finley, substantially discloses all the limitations of the claimed invention, specifically, Isaacs discloses further comprising:
accessing image data from a three-dimensional (3D) imager (see [0010] the three dimensional imager is used as the image guiding system), the bending of the rod is determined in a 3D space ([0082] the linking device from a first position at a particular point to a second angular or curved position at that point in a three dimensional space); and specifically, Finley discloses accessing a three-dimensional (3D) image of the subject including the spine of the subject ([0077] the navigation system 10 receives data and inputs from various other parts of the system 10, including the 3D imaging data);
accessing a two-dimensional (2D) image of the subject including the spine of the subject ([0111] receiving a 2D image (fluoro) of the subject’s spine);
determining the first member location and the second member location in the 2D image ([0114] determining the first member location and the second member location in the 2D image which correspond to spine pins 52); and
registering the first member location and the second member location to the 3D image to create a registered 3D image ([0114] 3D-3D image registration, where the geometry of the glyphs elements 78, 126 of the spine pins 52 [corresponding to the first member location and the second member location, respectively] provide the computer executable instructions with the scaling parameters necessary to register the patient space, image space, and navigation space),
wherein the current geometry is determined based on the registered 3D image ([0114] as the pins 52 are imaged in the intraoperative 3D image, the pins 52 serve as seed points to optimize the segmentation algorithm so that once segmentation is performed, the computer executable instructions cause the intraoperative 3D imager to capture image(s) of the vertebral levels of interest to determine the current geometry).
*The term has been interpreted, henceforth, under the broadest reasonable interpretation to refer to any means, technical feature, and/or processes and or combinations thereof that are known in the art of medical imaging that is capable of performing a function of making a 3D image in a 2D image of the subject obtainable and or retrievable, as Oxford Languages Dictionary defines the term “access” to mean “obtain, examine, or retrieve (data or a file)”.
**The term has been interpreted, henceforth, under the broadest reasonable interpretation to refer to any means, technical feature, and/or processes and or combinations thereof that are known in the art of medical imaging that is capable of performing a function of discerning the approximate locations the first and second locations in/on the accessed 2D image, as Oxford Languages Dictionary defines the terms “determining” and “determine” to respectfully mean “causing something to occur or be done in a particular way; serving to decide something” and “ascertain or establish exactly, typically as a result of researcher calculation”.
Regarding claim 8, Isaacs substantially discloses all the limitations of the claimed invention, specifically, Isaacs discloses wherein the first member is a first pedicle screw and the second member is a second pedicle screw ([0004], [0087] pedicle screws 21 vin FIGS. 2-3); and
wherein analyzing the first member location of the first member and the second member location of the second member further includes analyzing the first member location of the first pedicle screw and analyzing the second member location of the second pedicle screw ([0094], [0139] the computer determines mathematically from the spatial location of the attachment means and the bony structure/each vertebra of the body, the heads of each corresponding screw for each of the first and second pedicle screws 21 relative to the vertebra).
Claim(s) 4-6 are rejected under 35 U.S.C. 103 as being obvious in view of Isaacs, in view of Finley, as applied to claims 1-3 above, further in view of Helm et al. (US20170316561, hereafter “Helm”).
Regarding claim 4, Issacs, substantially discloses all the limitations of the claimed invention, but does not explicitly disclose analyzing the registered 3D image with the first member location and the second member location, wherein the movement or the second location is determined based on analyzing the registered 3D image.
However, in the same field of endeavor, Helm teaches further comprising: analyzing the registered 3D image with the first member location ([0045] the positions in the first imaging data are for later recall, such as being saved in the navigation memory 62) and the second member location ([0060], [0077] during acquisition of the second image data, the positioning of the imaging device relative to the patient changes from when the first image data was acquired, the second image data is registered to the first image data based on the recalled position of the imaging device. Accordingly, the position of the second image data may be known relative to the position of the first image data and registration may occur
It would have been obvious to one ordinarily skilled in the art before the effective filing date of the claimed invention to modify the method disclosed by Issacs with the analyzing of the registered 3D image with the first member location and the second member location, wherein the movement or the second location is determined based on analyzing the registered 3D image as taught by Helm in order to provide appropriate image data for confirmation of a selected plan or assisting in completing a surgical procedure on the patient ([0093] of Helm).
Regarding claim 5, Issacs, in view of Helm, substantially discloses all the limitations of the claimed invention, specifically, Helm further wherein determining the first member location and the second member location in the 2D image comprises:
accessing parameters of the first member and the second member ([0051] priori precise dimension information of the pedicle screws is obtained);
generating a projection based on the accessed parameters ([0046], [0050]-[0051] information about the screw is used to create an icon of the screws, the icons are superimposed on the 3D model and/or 2D projections);
comparing the generated projection to the 2D image ([0088] the first test image/2D projection data may be evaluated to determine the positions of the implants/screws and relative to the patient); and
determining a similarity metric based on comparing the generated projection to the 2D image ([0062], [0064], [0067], two projections through the patient are used with to acquire views in the second image data to determine the tracked [moving] position of the implanted member/pedicle screw. The second image data is optimized to view angles to register or verify the position of the implanted hardware relative to a prior/first image data by moving/adjusting the imaging device position).
Regarding claim 6, Issacs, substantially discloses all the limitations of the claimed invention, does not explicitly disclose wherein registering the first member location and the second member location to the 3D image comprises: accessing parameters of the first member and the second member; generating a member projection based on the accessed parameters; comparing the member projection to the 2D image; and determining a similarity metric of the member projection based on comparing the member projection to the 2D image
However, in the same field of endeavor, Helm teaches wherein registering the first member location and the second member location to the 3D image comprises:
accessing parameters of the first member and the second member ([0051] priori precise dimension information of the pedicle screws is obtained);
generating a member projection based on the accessed parameters ([0046], [0050]-[0051] information about the screw is used to create an icon of the screws, the icons are superimposed on the 3D model and/or 2D projections);
comparing the member projection to the 2D image ([0088] the second test image/forward projection data may be evaluated/compared with the historical accessed 2D data obtained by CT imaging to determine the positions of the implants/screws and relative to the patient); and
determining a similarity metric of the member projection ([0062], [0064], [0067], two projections through the patient are used with to acquire views in the second image data to determine the tracked [moving] position of the implanted member/pedicle screw. The second image data is optimized to view angles to register or verify the position of the implanted hardware relative to a prior/first image data by moving/adjusting the imaging device position) based on comparing the member projection to the 2D image ([0071] movements of the detector and/or source may include more than rotational movement and may also include linear movements along or transverse to a long axis of the subject when generating images).
It would have been obvious to one ordinarily skilled in the art before the effective filing date of the claimed invention to modify the method disclosed by Issacs with the registeration the first member location and the second member location to the 3D image comprises: accessing parameters of the first member and the second member; generating a member projection based on the accessed parameters; comparing the member projection to the 2D image; and determining a similarity metric of the member projection based on comparing the member projection to the 2D image as taught by Helm in order to provide appropriate image data for confirmation of a selected plan or assisting in completing a surgical procedure on the patient ([0093] of Helm).
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, 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 nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/A.S./Examiner, Art Unit 3798
/KEITH M RAYMOND/Supervisory Patent Examiner, Art Unit 3798
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