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 .
Priority
Acknowledgement is made of Applicant’s claim of priority under 35 U.S.C. 119 to European Patent Application No. 22204679.9, filed on October 31, 2022.
Information Disclosure Statement
The information disclosure statements (“IDS”) filed on 10/27/2023 and 06/11/2025 were reviewed and the listed references were considered.
Drawings
The 5-page drawings have been considered and placed on record in the file.
Status of Claims
Claims 1-20 are pending.
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.
Use of the word “means” (or “step for”) in a claim with functional language creates a rebuttable presumption that the claim element is to be treated in accordance with 35 U.S.C. 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph). The presumption that 35 U.S.C. 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph) is invoked is rebutted when the function is recited with sufficient structure, material, or acts within the claim itself to entirely perform the recited function.
Absence of the word “means” (or “step for”) in a claim creates a rebuttable presumption that the claim element is not to be treated in accordance with 35 U.S.C. 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph). The presumption that 35 U.S.C. 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph) is not invoked is rebutted when the claim element recites function but fails to recite sufficiently definite structure, material or acts to perform that function.
Claim elements in this application that use the word “means” (or “step for”) are presumed to invoke 35 U.S.C. 112(f) except as otherwise indicated in an Office action. Similarly, claim elements that do not use the word “means” (or “step for”) are presumed not to invoke 35 U.S.C. 112(f) except as otherwise indicated in an Office action.
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 limitations are: “a first interface configured to provide …” , “a computing unit configured to form …”, and “a second interface configured to output …” in Claim 12.
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 § 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.
Claim 14 is rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter as follows.
Although Claim 14 recites “A non-transitory computer program product having a computer program …” (emphasis added), Applicant’s specification indicates “A computer program product can be a computer program or can comprise a computer program” (Applicant’s specification, Paragraph [0062]). Therefore, the claim in light of the specification is interpreted to be directed to a computer program, i.e., software per se. Computer programs, per se, are not in one of the statutory categories of invention because a computer program is merely a set of instructions capable of being executed by a computer - the computer program itself is not a process. MPEP § 2106.
A computer program, at best, is a functional descriptive material per se. Descriptive material can be characterized as either "functional descriptive material" or "nonfunctional descriptive material." Both types of "descriptive material" are nonstatutory when claimed as descriptive material per se, 33 F.3d at 1360, 31 USPQ2d at 1759. When functional descriptive material is recorded on some computer-readable medium, it becomes structurally and functionally interrelated to the medium and will be statutory in most cases since use of technology permits the function of the descriptive material to be realized. Compare In re Lowry, 32 F.3d 1579, 1583-84, 32 USPQ2d 1031, 1035 (Fed. Cir. 1994) )(discussing patentable weight of data structure limitations in the context of a statutory claim to a data structure stored on a computer readable medium that increases computer efficiency) and >In re Warmerdam, 33 F.3d *>1354, 1360- 61,31 USPQ2d *>1754, 1759 (claim to computer having a specific data structure stored in memory held statutory product-by-process claim) with Warmerdam, 33 F.3d at 1361,31 USPQ2d at 1760 (claim to a data structure per se held nonstatutory). See MPEP 2106.01.
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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
a. Determining the scope and contents of the prior art.
b. Ascertaining the differences between the prior art and the claims at issue.
c. Resolving the level of ordinary skill in the pertinent art.
d. 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.
Claims 1-20 are rejected under 35 U.S.C. 103 as being unpatentable over Adam et al. (US2017/0265829 – IDS).
Consider Claim 1, Adam discloses “A method for providing a virtual, noncontrast image dataset of a patient, the method comprising: providing a multiphase CT angiography image dataset of the patient, the multiphase CT angiography image dataset comprising at least three CT image datasets that map an imaging area of the patient at three different points in time relative to an administration of a contrast agent” (Adam, Fig. 9:990, 992, and 994 and Paragraph [0081] disclose “The contrast phases (first contrast phase 982, second contrast phase 984, and third contrast phase 986) correspond to flow of a contrast agent and are acquired after introduction of a contrast agent. The contrast phases of CT imaging information are acquired at different times. For example, the first contrast phase 982 of CT imaging information may be acquired at a first time 990, the second contrast phase 984 at a second time 992 (in the illustrated embodiment, ten seconds after the first time 990), and the third phase 986 at a third time 994 (in the illustrated embodiment, eighteen seconds after the first time 990).” Paragraph [0081] further discloses: “the phases of CT imaging information acquisition may generally correspond to phases of blood flow through the brain”, interpreted as mapping an imaging area of a patient); “forming a minimum intensity image dataset of the imaging area based on the at least three CT image datasets, an image value of an image point of the minimum intensity image dataset is in each case based on a minimum value from among image values of the image point, locally corresponding in the imaging area, in the at least three CT image datasets” (Adam, Figures 12 and 13 and Paragraphs [0088] and [0089] disclose plotting the intensity curve at different times after introduction of a contrast agent; Hounsfield unit vs Time, from which the minimum intensity image dataset is formed to determine the minimum flow during an arterial phase); “and outputting of the virtual, noncontrast image dataset based on the minimum intensity image dataset” (Adam, Fig. 14 and Paragraph [0091] disclose: The view 1400 may be used to determine the location and effect of a blockage. For example, in the illustrated portion, the first portion 1412 is colorized (e.g., red) to indicate normal arterial flow. However, the second portion 1414 is not colorized, showing little or no enhancement due to the contrast agent, and may be identified as representing a blockage”])(emphasis added). As seen above, although Adam does not explicitly disclose forming the minimum intensity image dataset, it provides a plot of intensity values over time, which will yield the minimum intensity image dataset, which is used to identify the blockage in the vein, as shown in Fig. 14 of Adam.
Accordingly, before the effective date of the instant application, it would have been obvious to one of ordinary skill in the art to use Adam’s plot of intensity values of the image to determine the minimum intensity values of the contrast agent. One of ordinary skill in the art could have combined these elements in order to create an accurate image of the veins in the brain of a patient to show the flow blockage (Adam, Fig. 14 and Paragraph [0091]). Therefore, it would have been obvious to use the intensity plot of Adam to obtain the above-described limitation in Claim 1.
Consider Claim 2, Adam discloses “The method of claim 1, wherein a relative time interval between a first CT image dataset and a second CT image dataset of the at least three CT image datasets or a relative time interval between the second CT image dataset and a third CT image dataset of the at least three CT image datasets is at least 5 s” (Adam, Paragraph [0099] disclose
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Consider Claim 3, Adam discloses “The method of claim 1, wherein the imaging area comprises a brain of the patient” (Adam, Paragraph [0098] discloses
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Consider Claims 4 and 5, Adam discloses “The method of claim 1, wherein an acquisition area of a first CT image dataset of the at least three CT image datasets differs from at least one of an acquisition area of a second CT image dataset of the at least three CT image datasets or an acquisition area of a third CT image dataset of the at least three CT image datasets” and “The method of claim 4, wherein the acquisition area of the first CT image dataset at least comprises the patient from an aortic arch to a crown, and wherein at least one of the acquisition area of the second CT image dataset or the acquisition area of the third CT image dataset at least maps the patient from a base of a skull to the crown” (Adam, Figs. 5 and 10 and Paragraph [0082] disclose
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Consider Claim 6, Adam discloses “The method of claim 1, further comprising: performing a motion correction of the at least three CT image datasets, wherein the forming forms the minimum intensity image dataset based on the motion-corrected CT image datasets” (Adam, Paragraph [0093] discloses: “the processing unit 120 may perform motion correction before determine the timing information. Motion correction may be used to help insure accurate registration between corresponding voxels of image acquisition phases acquired at different times”]).
Consider Claim 7, Adam discloses “The method of claim 1, further comprising: providing a native, noncontrast CT image dataset that maps an imaging area of the patient prior to the administration of the contrast agent; and correcting the minimum intensity image dataset using the native, noncontrast CT image dataset, wherein the outputting outputs the virtual, noncontrast image dataset based on the corrected minimum intensity image dataset” (Adam, Fig. 9:980 and Paragraph [0071]).
Consider Claim 8, Adam discloses “The method of claim 7, wherein the correcting comprises: ascertaining image areas in the minimum intensity image dataset or in at least one of the at least three CT image datasets, that exceed a particular noise level value or that fall below a particular intensity value, and ascertaining a correction value based on a comparison between image areas in each case locally corresponding in the minimum intensity image dataset and in the native, noncontrast CT image dataset” (Adam, Fig. 12 and Paragraph [0088], wherein a baseline is obtained before introduction of the contrast agent).
Consider Claim 9, Adam discloses “The method of claim 7, wherein the correcting comprises: creating a perfusion image dataset based on the at least three CT image datasets of the multiphase CT angiography image dataset of the patient, identifying image areas of the perfusion image dataset with locally increased contrast agent absorption, and ascertaining a correction value based on a comparison between image areas locally corresponding in the minimum intensity image dataset and in the native, noncontrast CT image dataset” (Adam, Fig. 13 and Paragraph [0089], where the area under the curve correlates to the blood volume, i.e., perfusion).
Consider Claim 10, Adam discloses “The method of claim 8, wherein the correction value is based on a ratio of the image values in the ascertained image areas of the minimum intensity image dataset or of the native, noncontrast CT image dataset to image values in a surrounding area of the ascertained image areas of the minimum intensity image dataset or of the native, noncontrast CT image dataset” (Adam, Fig. 13 and Paragraph [0090]).
Consider Claim 11, Adam discloses “A method for providing a perfusion image dataset, wherein providing the multiphase CT angiography image dataset of the patient comprising at least three CT image datasets that map the imaging area of the patient at three different points in time relative to the administration of the contrast agent; providing the virtual, noncontrast CT image dataset in accordance with the method of claim 1” (Adam, Paragraph [0081], the phases of blood flow through the brain); “and generating and providing the perfusion image dataset based on the at least three CT image datasets and the virtual, noncontrast CT image dataset” (Adam, Fig. 14 and Paragraph [0091], the generation of colored images to show the flow during each phase).
Claim 12 recites an apparatus with elements corresponding to the steps of the method recited in Claim 1. Therefore, the recited elements of this claim are mapped to the proposed Adam reference in the same manner as the corresponding steps in its corresponding method claim. Additionally, the rationale and motivation to combine the teachings of Adam reference, presented in rejection of Claim 1, apply to this claim. Finally, Adam discloses a computed tomography imaging system, and therefore, recites an apparatus (See Adam, Abstract).
Consider Claim 13, Adam discloses “A computed tomography device comprising the apparatus of claim 12” (Adam, Abstract).
Claim 14 recites a non-transitory computer program product with programming instructions corresponding to the steps of the method recited in Claim 1. Therefore, the recited instructions of this claim are mapped to the proposed Adam reference in the same manner as the corresponding steps in its corresponding method claim. Additionally, the rationale and motivation to combine the teachings of Adam reference, presented in rejection of Claim 1, apply to this claim. Finally, Adam discloses a computer-readable medium for its invention (See Adam, Paragraph [0075]).
Claim 15 recites a non-transitory computer-readable storage medium storing a program with programming instructions corresponding to the steps of the method recited in Claim 1. Therefore, the recited instructions of this claim are mapped to the proposed Adam reference in the same manner as the corresponding steps in its corresponding method claim. Additionally, the rationale and motivation to combine the teachings of Adam reference, presented in rejection of Claim 1, apply to this claim. Finally, Adam discloses a computer-readable medium for its invention (See Adam, Paragraph [0075]).
Consider Claim 16, Adam discloses “The method of claim 2, wherein the imaging area comprises a brain of the patient” (Adam, Paragraph [0098] discloses
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Consider Claims 17 and 18, Adam discloses “The method of claim 16, wherein an acquisition area of a first CT image dataset of the at least three CT image datasets differs from at least one of an acquisition area of a second CT image dataset of the at least three CT image datasets or an acquisition area of a third CT image dataset of the at least three CT image datasets” and “The method of claim 17, wherein the acquisition area of the first CT image dataset at least comprises the patient from an aortic arch to a crown, and wherein at least one of the acquisition area of the second CT image dataset or the acquisition area of the third CT image dataset at least maps the patient from a base of a skull to the crown” (Adam, Figs. 5 and 10 and Paragraph [0082] disclose
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Consider Claim 19, Adam discloses “The method of claim 18, further comprising: performing a motion correction of the at least three CT image datasets, wherein the forming forms the minimum intensity image dataset based on the motion-corrected CT image datasets” (Adam, Paragraph [0093] discloses: “the processing unit 120 may perform motion correction before determine the timing information. Motion correction may be used to help insure accurate registration between corresponding voxels of image acquisition phases acquired at different times”]).
Consider Claim 20, Adam discloses “The method of claim 19, further comprising: providing a native, noncontrast CT image dataset that maps an imaging area of the patient prior to the administration of the contrast agent; and correcting the minimum intensity image dataset using the native, noncontrast CT image dataset, wherein the outputting outputs the virtual, noncontrast image dataset based on the corrected minimum intensity image dataset” (Adam, Fig. 9:980 and Paragraph [0071]).
Conclusion and Contact Information
The prior art made of record and not relied upon are considered pertinent to Applicant’s disclosure: Herrmann et al. (US 2021/0236080).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Siamak HARANDI whose telephone number is (571)270-1832. The examiner can normally be reached Monday - Friday 9:30 - 6:00 ET.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Amandeep Saini can be reached on (571)272-3382. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Siamak Harandi/Primary Examiner, Art Unit 2662