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 .
Drawings
The drawings are objected to because Figure 29 contains a spelling error. The word “openigs” in step 1408 should be “openings”. Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Specification
The disclosure is objected to because of the following informalities: paragraph [0001] must be amended to update the status of the parent applications, i.e. patent numbers.
Appropriate correction is required.
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.
A) Claims 1-8 is rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim does not fall within at least one of the four categories of patent eligible subject matter because claim 1 recites “at least one computer-readable memory having stored thereon executable instructions” without reciting that the computer-readable memory is non-transitory (MPEP 2106.03). Dependent claims inherit this defect.
B) Claims 9-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. Subject matter eligibility pursuant to 35 U.S.C. § 101 requires first (“Eligibility Step 1”) that the claimed invention fall within one of the four statutorily authorized categories, and second (“Eligibility Step 2”) that the claim not be improperly directed to a judicial exception. MPEP 2106(III).
Determination as to whether a claim is improperly directed to a judicial exception is a two-part inquiry. Part one (“Eligibility Step 2A”) depends first (“Eligibility Step 2A, Prong One”) on whether the claim recites a judicial exception, and second (“Eligibility Step 2A, Prong Two”) whether the claim contains additional elements sufficient to integrate the judicial exception into a practical application. MPEP 2106(III). If the claim at issue does recite a judicial exception but does contain said such sufficient additional elements, then the claim is not improperly directed to a judicial exception and is not directed to patent ineligible subject matter. See MPEP 2106.04(d).
If the claim at issue does recite a judicial exception and does not contain sufficient additional elements to integrate the judicial exception into a practical application, then assessment must be made as to whether the claim sufficiently furnishes an inventive concept. MPEP 2106.04(d). Part two of the two-part inquiry (“Eligibility Step 2B”) thus looks at any additional claim elements to determine whether “the claim as a whole amounts to significantly more than the judicial exception itself.” MPEP 2106.05(d), (citing Alice Corp. Pty. Ltd. v. CLS Bank Int'l, 573 U.S. 208, 227-218 (2014) (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, at 71-72 (1966))). Claims that do amount to “significantly more” are not directed to patent ineligible subject matter under 35 U.S.C. 101; claims that do not amount to “significantly more” are directed to patent ineligible subject matter. MPEP 2106(III).
Independent claims 9 and 15:
With regard to Step 1:
Claim 9 is directed to a non-transitory computer-readable medium and claim 15 is directed towards a method, both of which are one of the four statutory categories of invention.
With regard to Step 2A: Prong 1, claims 9 and 15 recite limitations directed towards:
a) determining an estimated position within a preoperative model of a luminal network that corresponds to a current position of an instrument within the luminal network, the estimated position being associated with a current branch;
b) determining first and second expected subsequent branches associated with the current branch;
c) identifying first and second branch openings in an image associated with the image data;
d) determining a first vector between the first branch opening and the second branch opening;
e) determining a second vector between the first and second expected subsequent branches with respect to an image of the preoperative model; and
f) mapping the first branch opening and the second branch opening to the first and second expected subsequent branches, respectively, based on the first vector and the second vector.
The above limitations appear to be directed towards steps that can practically be performed in the human mind and/or with the aid of pen/paper which are abstract ideas. For example:
a) determining an estimated position within a preoperative model is a mental process where one can look at the preoperative model and estimate a position where an instrument is thought to be.
b) determining first and second expected subsequent branches associated with the current branch is a mental process where one can look at the preoperative model image and determine which branches subsequently follow from the current branch;
c) identifying first and second branch openings in an image associated with the image data is a mental process where one can look at the image and select regions that look like branch openings;
d) determining a first vector between the first branch opening and the second branch opening is a mental process where one can estimate the relative direction and distance of one branch to the other within the image;
e) determining a second vector between the first and second expected subsequent branches with respect to an image of the preoperative model is a mental process where one can estimate the relative direction and distance of one branch to another in the preoperative model image
f) mapping the first branch opening and the second branch opening to the first and second expected subsequent branches, respectively, based on the first vector and the second vector is a mental process where one can decide, upon comparison of the relative direction and distance of the expected branches in the preoperative model image to the relative direction and distance of the branch openings in the image, that the similarity is indicative of the expected branches being the same as the branch openings.
Therefore, the limitations recite mental-process type abstract ideas. See MPEP 2106.04(a)(2).
With regard to Step 2A: Prong 2, claim 9 and 15 recite an additional element directed to:
a) receiving image data representing an interior of the luminal network from the instrument.
The limitation directed to receiving image data appears to be an instruction to implement the mental process on a computer. Receiving an image is considered insignificant pre-solution activity. See MPEP 2106.04(f) and 2106.05(g). Consequently, the additional element does not appear, either individually or as a whole, to integrate the judicial exception into a practical application.
With regard to Step 2B, as explained above, the additional limitation of the claims comprises no more than additional instruction to implement the judicial exceptions on a computer, or merely use a computer as a tool to perform the judicial exceptions, and extra-solution steps needed to obtain the elements needed to perform the judicial exceptions. Therefore, when considered separately and in combination, the additional limitations do not result in the claims, as a whole, amounting to significantly more than the judicial exceptions.
Therefore, independent claims 9 and 15 are rejected under 35 U.S.C. 101 as being directed to non-statutory subject matter.
Dependent claim 10-14 and 16-20 provide additional identifying, determining and mapping limitations that amount to abstract ideas that fall within the mental process group of concepts practically performed in the human mind and/or with the aid of pen/paper, including observation, evaluation, judgement, and opinion, and, based on similar analysis applied above with respect to claims 9 and 15, are not patent eligible for the same reasons.
Viewed as a whole, these additional claim element(s) do not provide meaningful limitation(s) to transform the abstract idea into a patent eligible application of the abstract idea such that the claim(s) amounts to significantly more than the abstract idea itself. Therefore, claims 9-20 are rejected under 35 U.S.C. 101 as being directed to non-statutory subject matter.
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.
Claim(s) 1-7, 9-13, and 15-19 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Zhao et al. (US 2014/0180063, hereinafter “Zhao”).
As to claim 1, Zhao discloses a robotic system, comprising:
an instrument (medical device 110, Fig.2) comprising an elongate body (body 114, Fig.2) and an imaging device (image capture element 141, Fig.2, [0032]);
a robotic manipulator (electromechanical interface 170, Fig.2) configured to manipulate the instrument (configured to move medical device 110 via input device 190, [0035]);
at least one computer-readable memory (memory 161) having stored thereon executable instructions ([0032]); and
one or more processors (e.g. main processor 160, Fig.2, [0032]) in communication with the at least one computer-readable memory (Fig.2) and configured to execute the instructions to cause the robotic system to:
determine an estimated position within a preoperative model of a luminal network that corresponds to a current position of the instrument, the estimated position being associated with a current branch (recognition of current tracklet 510, Fig.5, indicative of current position, [0061]);
determine first and second expected subsequent branches associated with the current branch (recognition of adjacent tracklets to current tracklet, 508, Fig.5, [0080]);
receive image data representing an interior of the luminal network from the imaging device (images received, 501, Fig.5, [0048]);
identify first and second branch openings in an image associated with the image data (blobs (lumen openings) are extracted from images, 502, Fig.5, [0048]);
determine a first vector between the first branch opening and the second branch opening (line between centroids of lumen openings indicative of vector as a feature attribute, 2013,2023, Fig.20, [0073],[0074]);
determine a second vector between the first and second expected subsequent branches with respect to an image of the preoperative model (comparison of line vector (feature attribute) between branch openings and that of a computer model image of the branched lumens, [0070],[0077]) ; and
map the first branch opening and the second branch opening to the first and second expected subsequent branches respectively, based on the first vector and the second vector (match between feature attributes (line vector) confirms lumen openings in image are lumen openings in computer model images and tracklet sequence is updated, [0061]).
As to claim 2, wherein the one or more processors are further configured to execute the instructions to cause the system to: identify, within the image, a first centroid associated with the first branch opening; and identify, within the image, a second centroid associated with the second branch opening (the processor is configured to determine centroids of branch openings in the image, e.g. 1704,1705, Fig.17, [0073]).
As to claim 3, wherein the first vector connects the first centroid and the second centroid (line vector connects centroids, Fig.17,18, [0073],[0076]).
As to claim 4, wherein the one or more processors are further configured to execute the instructions to cause the system to: determine a third vector connecting the first expected subsequent branch to the second expected subsequent branch, the third vector being a roll-corrected version of the second vector; wherein the mapping of the first branch opening and the second branch opening to the first and second expected subsequent branches is based on the third vector (the matching of feature attributes (vector lines, [0070]-[0077], takes into consideration sensor information, [0064], including roll sensor information, [0068]-[0069], claim 24, which will affect the roll angle at which the vector lines are compared).
As to claim 5, wherein the one or more processors are further configured to execute the instructions to cause the system to: determine a fourth vector connecting the second expected subsequent branch to the first expected subsequent branch (a line between two centroids creates two vectors, one from the first centroid to the second (second vector above) and the other from the second centroid to the first (fourth vector)); wherein the mapping of the first branch opening and the second branch opening to the first and second expected subsequent branches is based on the fourth vector (since the second and fourth vectors are the same except for direction, matching of the feature attributes (vector lines) will be done simultaneously with both the second and fourth vector lines).
As to claim 6, wherein the fourth vector and the third vector are: equal in magnitude; and opposite in direction (a line between two centroids creates two vectors, one from the first centroid to the second (second vector above) and the other from the second centroid to the first (fourth vector), both having the same distance, but opposite directions).
As to claim 7, wherein the mapping of the first branch opening and the second branch opening to the first and second expected subsequent branches involves comparing the third and fourth vectors to the first vector (since the third and fourth vectors are the same except for direction, matching of the feature attributes (vector lines) to the first vector will be done simultaneously with both the third and fourth vector lines).
As to claim 9, Zhao discloses a non-transitory computer-readable medium (memory 161) having stored thereon instructions that, when executed, cause one or more processors to at least (main processor 160, Fig.2, [0032]):
determine an estimated position within a preoperative model of a luminal network that corresponds to a current position of the instrument, the estimated position being associated with a current branch (recognition of current tracklet 510, Fig.5, indicative of current position, [0061]);
determine first and second expected subsequent branches associated with the current branch (recognition of adjacent tracklets to current tracklet, 508, Fig.5, [0080]);
receive image data representing an interior of the luminal network from the imaging device (images received, 501, Fig.5, [0048]);
identify first and second branch openings in an image associated with the image data (blobs (lumen openings) are extracted from images, 502, Fig.5, [0048]);
determine a first vector between the first branch opening and the second branch opening (line between centroids of lumen openings indicative of vector as a feature attribute, 2013,2023, Fig.20, [0073],[0074]);
determine a second vector between the first and second expected subsequent branches with respect to an image of the preoperative model (comparison of line vector (feature attribute) between branch openings and that of a computer model image of the branched lumens, [0070],[0077]) ; and
map the first branch opening and the second branch opening to the first and second expected subsequent branches respectively, based on the first vector and the second vector (match between feature attributes (line vector) confirms lumen openings in image are lumen openings in computer model images and tracklet sequence is updated, [0061]).
As to claim 10, wherein the instructions, when executed, cause the one or more processors to: identify, within the image, a first centroid associated with the first branch opening; and identify, within the image, a second centroid associated with the second branch opening (the processor is configured to determine centroids of branch openings in the image, e.g. 1704,1705, Fig.17, [0073]); wherein the first vector connects the first centroid and the second centroid ((line connecting centroids of lumen openings indicative of vector as a feature attribute, 2013,2023, Fig.20, [0073],[0074]).
As to claim 11 wherein the instructions, when executed, cause the one or more processors to determine a third vector connecting the first expected subsequent branch to the second expected subsequent branch, the third vector being a roll-corrected version of the second vector, wherein the mapping of the first branch opening and the second branch opening to the first and second expected subsequent branches is based on the third vector (vector lines, [0070]-[0077], takes into consideration sensor information, [0064], including roll sensor information, [0068]-[0069], claim 24, which will affect the roll angle at which the vector lines are compared).
As to claim 12, wherein the instructions, when executed, cause the one or more processors to: determine a fourth vector connecting the second expected subsequent branch to the first expected subsequent branch, the fourth vector being equal in magnitude but opposite in direction relative to the third vector (a line between two centroids creates two vectors, one from the first centroid to the second (second vector above) and the other from the second centroid to the first (fourth vector), both equal magnitude but opposite direction); wherein the mapping of the first branch opening and the second branch opening to the first and second expected subsequent branches is based on the fourth vector (since the second and fourth vectors are the same except for direction, matching of the feature attributes (vector lines) will be done simultaneously with both the second and fourth vector lines).
As to claim 13, wherein the mapping of the first branch opening and the second branch opening to the first and second expected subsequent branches involves comparing the third and fourth vectors to the first vector (since the third and fourth vectors are the same except for direction, matching of the feature attributes (vector lines) to the first vector will be done simultaneously with both the third and fourth vector lines).
As to claim 15, Zhao discloses a method for mapping branches of a luminal network, the method comprising:
determining an estimated position within a preoperative model of a luminal network that corresponds to a current position of the instrument, the estimated position being associated with a current branch (recognition of current tracklet 510, Fig.5, indicative of current position, [0061]);
determining first and second expected subsequent branches associated with the current branch (recognition of adjacent tracklets to current tracklet, 508, Fig.5, [0080]);
receiving image data representing an interior of the luminal network from the imaging device (images received, 501, Fig.5, [0048]);
identifying first and second branch openings in an image associated with the image data (blobs (lumen openings) are extracted from images, 502, Fig.5, [0048]);
determining a first vector between the first branch opening and the second branch opening (line between centroids of lumen openings indicative of vector as a feature attribute, 2013,2023, Fig.20, [0073],[0074]);
determining a second vector between the first and second expected subsequent branches with respect to an image of the preoperative model (comparison of line vector (feature attribute) between branch openings and that of a computer model image of the branched lumens, [0070],[0077]) ; and
mapping the first branch opening and the second branch opening to the first and second expected subsequent branches respectively, based on the first vector and the second vector (match between feature attributes (line vector) confirms lumen openings in image are lumen openings in computer model images and tracklet sequence is updated, [0061]).
As to claim 16, further comprising: identifying, within the image, a first centroid associated with the first branch opening; and identifying, within the image, a second centroid associated with the second branch opening (the processor is configured to determine centroids of branch openings in the image, e.g. 1704,1705, Fig.17, [0073]); wherein the first vector connects the first centroid and the second centroid ((line connecting centroids of lumen openings indicative of vector as a feature attribute, 2013,2023, Fig.20, [0073],[0074]).
As to claim 17, further comprising determining a third vector connecting the first expected subsequent branch to the second expected subsequent branch, the third vector being a roll-corrected version of the second vector, wherein the mapping of the first branch opening and the second branch opening to the first and second expected subsequent branches is based on the third vector (vector lines, [0070]-[0077], takes into consideration sensor information, [0064], including roll sensor information, [0068]-[0069], claim 24, which will affect the roll angle at which the vector lines are compared)
As to claim 18, further comprising: determining a fourth vector connecting the second expected subsequent branch to the first expected subsequent branch, the fourth vector being equal in magnitude but opposite in direction relative to the third vector (a line between two centroids creates two vectors, one from the first centroid to the second (second vector above) and the other from the second centroid to the first (fourth vector), both equal magnitude but opposite direction); wherein the mapping of the first branch opening and the second branch opening to the first and second expected subsequent branches is based on the fourth vector (since the second and fourth vectors are the same except for direction, matching of the feature attributes (vector lines) will be done simultaneously with both the second and fourth vector lines)
As to claim 19, wherein the mapping of the first branch opening and the second branch opening to the first and second expected subsequent branches involves comparing the third and fourth vectors to the first vector (since the third and fourth vectors are the same except for direction, matching of the feature attributes (vector lines) to the first vector will be done simultaneously with both the third and fourth vector lines).
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.
Claim(s) 8, 14 and 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Zhao et al. (US 2014/0180063, hereinafter “Zhao”).
As to claims 8, 14 and 20, Zhao compares vectors (lines between centroids) as feature attributes to determine a potential match (e.g. [0070]-[0073]) but fails to disclose exactly how such a comparison is made, and thus fails to disclose that the comparison involves determining a dot product between the first vector and at least one of the third vector or the fourth vector and determining that the dot product is a closest match among a plurality of vector comparison dot products. Since it is known in the geometrical art that the dot product compares vectors by measuring their directional similarity and magnitude, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have programed the processor of Zhao to use any known geometrical or algebraic formulas or relationships to determine the degree of similarity when comparing the image branch vector feature attribute (first vector) with the vector feature attribute of the computer model image (third or fourth vector).
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 § 2146 et seq. 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 filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual 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/apply/applying-online/eterminal-disclaimer.
Claims 1-4, 9-11, and 15-17 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 6-7, 9, 11, 14-15, 17, and 22 of U.S. Patent No. 10,555,778. Although the claims at issue are not identical, they are not patentably distinct from each other because, except for a minor difference in terminology, it is clear that all elements of claims 1-4, 9-11, and 15-17 are to be found in claims 1, 6-7, 9, 11, 14-15, 17, and 22 of the patent. The difference between claims 1-4, 9-11, and 15-17 of the application and claims 1, 6-7, 9, 11, 14-15, 17, and 22 of the patent lies in the fact that the patent claims includes many more elements and is thus more specific. Thus, the invention of the claim of the patent is in effect a "species" of the "generic" invention of the claims of the application. It has been held that the generic invention is "anticipated" by the “species”. See In re Goodman, 29 USPQ2d 2010 (Fed. Cir. 1993). Since claims 1-4, 9-11, and 15-17 of the application are anticipated by claims 1, 6-7, 9, 11, 14-15, 17, and 22 of the patent, they are not patentably distinct from the patent claims.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See references cited on the PTO-892.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOHN P LEUBECKER whose telephone number is (571)272-4769. The examiner can normally be reached Generally, M-F, 5:30-2:00.
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/JOHN P LEUBECKER/ Primary Examiner, Art Unit 3795