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 .
Claims 1-21 are pending regarding this application.
Response to Arguments
Applicant's arguments, filed 05/14/2026, regarding the Nonstatutory Double Patenting rejection, have been fully considered but they are not persuasive. Please see the section titled “Terminal Disclaimer” below regarding the reason(s) for which the terminal disclaimer filed on 05/14/2026 was not accepted. As such, the nonstatutory double patenting rejections as recited in the Non-Final Rejection, mailed 02/18/2026, are maintained. See the “Double Patenting – Nonstatutory” section below regarding this matter.
Applicant's arguments, filed 05/14/2026, regarding the Statutory Double Patenting rejection, have been fully considered but they are not persuasive. Applicant argues the following: “Claim 13 positively recites an affirmative step of "processing the treatment image data." In contrast, claim 8 of the '533 application recites that the data is "generated using an artificial intelligence (AI) engine based on treatment image data," but does not recite "processing the treatment image data." Therefore, it is respectfully submitted that claim 13 of the present application and claim 8 of the '533 application do not cover identical subject matter.”. However, examiner respectfully disagrees with this assertion. It is inherent that the process of generating data using an AI engine based on treatment image data involves processing the treatment image data. Therefore, the process of “generating the material property data by processing the treatment image data using an artificial intelligence (AI) engine” as recited in claim 13 of the current application can be interpreted as identical subject matter to “wherein the material property data is generated using an artificial intelligence (AI) engine based on treatment image data” as recited in claim 8 of app. no. 18586533. As such, the statutory double patenting rejections as recited in the Non-Final Rejection, mailed 02/18/2026, are maintained. See the “Double Patenting – Statutory” section below regarding this matter.
Applicant’s arguments, see Remarks, filed 05/14/2026, with respect to the 102(a)(1) rejection of claims 1 and 15 have been fully considered and are persuasive. Examiner agrees specifically that the Fu reference does not teach “generating first material property data that represents a particular material property associated with the target structure”. The 102(a)(1) rejection of claims 1, and 13-15 has been withdrawn. See the Allowable Subject Matter section below regarding this matter.
Applicant’s arguments, see Remarks, filed 05/14/2026, with respect to the 102(a)(1) rejection of claim 8 has been fully considered and are persuasive. Examiner agrees specifically that the Fu reference does not teach obtaining material property data. The 102(a)(1) rejection of claim 8 has been withdrawn. See the Allowable Subject Matter section below regarding this matter.
Terminal Disclaimer
The terminal disclaimer filed on 05/14/2026 disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of Application Number 18/586,533, filed February 25, 2024 has been reviewed and is NOT accepted.
As recited in the Terminal Disclaimer review decision, mailed 05/20/2026, the POA is missing. The person who signed the terminal disclaimer is not the applicant, patentee, and/or an attorney of record. 37 CFR 1.321(a) and (b). (See FP 14.26.08). Please file a POA that gives power to the attorney and/or agent of record who is signing the TD, along with another copy of the TD form. Or file a TD form that is signed by the applicant. No additional fee is required with the resubmission.
Double Patenting - Nonstatutory
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 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.
Claims 8, 9, and 11 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 8-10 of U.S. Patent Application No. 18/586,533, herein after referred to as the ‘533 application. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims 8, 9, and 11 of the current application are anticipated by claims 8-10 in application ‘533, as indicated below.
Regarding claim 8, claim 8 compares to claim 8 of the ‘533 application as indicated below:
Current Application
‘533 Application
Notes
A method for a computer system to perform target structure tracking for radiation therapy, wherein the method comprises:
Claim 8: A method for a computer system to perform target structure tracking for radiation therapy, wherein the method comprises:
Verbatim the same
obtaining material property data that represents a particular material property associated with a target structure of a patient requiring radiation therapy, wherein the material property data is generated based on treatment image data acquired during a treatment phase of the radiation therapy; and
Claim 8: obtaining material property data that represents a particular material property associated with a target structure of a patient requiring radiation therapy, wherein the material property data is generated using an artificial intelligence (AI) engine based on treatment image data acquired during a treatment phase of the radiation therapy;
The underlined portion of the ‘852 application is additional to the subject matter of the current application, however this does not change that the section of claim 8 in ‘852 teaches the entirety of the corresponding section in the current application.
obtaining a template that also represents the particular material property associated with the target structure, wherein the template is generated based on (a) planning image data that is acquired prior to the treatment phase or (b) transformed image data that is generated based on the planning image data; and
Claim 8: obtaining a template that also represents the particular material property associated with the target structure, wherein the template is generated based on (a) planning image data that is acquired prior to the treatment phase or (b) transformed image data that is generated based on the planning image data; and
Verbatim the same
based on the material property data and the template, performing template matching during the treatment phase to track the target structure based on the particular material property.
Claim 8: based on the material property data and the template, performing template matching during the treatment phase to track the target structure based on the particular material property.
Verbatim the same
Thus, as can be seen above, claim 8 of the current application is anticipated by claim 8 of the ‘533 application. Therefore, any patent granted on the current application would result in the unjustifiable timewise extension of the monopoly granted on claim 8 of U.S. Application No. 18/586,533.
As for claim 9, the limitations of claim 9 can be found in claim 9 in the ‘852 publication.
With regard to claim 11, claim 11 is substantively equivalent to claim 10 of the ‘852 publication.
Double Patenting - Statutory
A rejection based on double patenting of the “same invention” type finds its support in the language of 35 U.S.C. 101 which states that “whoever invents or discovers any new and useful process... may obtain a patent therefor...” (Emphasis added). Thus, the term “same invention,” in this context, means an invention drawn to identical subject matter. See Miller v. Eagle Mfg. Co., 151 U.S. 186 (1894); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Ockert, 245 F.2d 467, 114 USPQ 330 (CCPA 1957).
A statutory type (35 U.S.C. 101) double patenting rejection can be overcome by canceling or amending the claims that are directed to the same invention so they are no longer coextensive in scope. The filing of a terminal disclaimer cannot overcome a double patenting rejection based upon 35 U.S.C. 101.
Claim 13 is provisionally rejected under 35 U.S.C. 101 as claiming the same invention as that of claim 8 of copending Application No. 18/586,533 (reference application). This is a provisional statutory double patenting rejection since the claims directed to the same invention have not in fact been patented.
Regarding claim 13, claim 13 (and claim 8, since claim 13 depends upon claim 8 and therefore includes the entirety of the limitations claimed in claim 8) compares to claim 8 of the ‘533 application as indicated below:
Claim 13 of Current Application
Claim 8 of ‘533 Application
Notes
In claim 8 upon which claim 13 depends: A method for a computer system to perform target structure tracking for radiation therapy, wherein the method comprises:
Claim 8: A method for a computer system to perform target structure tracking for radiation therapy, wherein the method comprises:
Verbatim the same
In claim 8 upon which claim 13 depends: obtaining material property data that represents a particular material property associated with a target structure of a patient requiring radiation therapy, wherein the material property data is generated based on treatment image data acquired during a treatment phase of the radiation therapy; and
Claim 13: The method of claim 8, wherein obtaining the material property data comprises: generating the material property data by processing the treatment image data using an artificial intelligence (AI) engine.
Claim 8: obtaining material property data that represents a particular material property associated with a target structure of a patient requiring radiation therapy, wherein the material property data is generated using an artificial intelligence (AI) engine based on treatment image data acquired during a treatment phase of the radiation therapy;
The combination of claim 8 of the current application and claim 13, which depends upon claim 8, teaches the entirety of claim 8 in the ‘533 application.
In claim 8 upon which claim 13 depends: obtaining a template that also represents the particular material property associated with the target structure, wherein the template is generated based on (a) planning image data that is acquired prior to the treatment phase or (b) transformed image data that is generated based on the planning image data; and
Claim 8: obtaining a template that also represents the particular material property associated with the target structure, wherein the template is generated based on (a) planning image data that is acquired prior to the treatment phase or (b) transformed image data that is generated based on the planning image data; and
Verbatim the same
In claim 8 upon which claim 13 depends: based on the material property data and the template, performing template matching during the treatment phase to track the target structure based on the particular material property.
Claim 8: based on the material property data and the template, performing template matching during the treatment phase to track the target structure based on the particular material property.
Verbatim the same
Thus, as can be seen above, claim 13 of the current application is identical to claim 8 of the ‘533 application. Therefore, any patent granted on the current application would result in the unjustifiable timewise extension of the monopoly granted on claim 8 of U.S. Application No. 18/586,533.
Allowable Subject Matter
Claims 1-7, and 15-21 are allowed.
Claims 8, 9, and 11 would be allowable if the non-statutory double patenting rejection(s), set forth in this Office action were overcome.
Claim 13 would be allowable if the statutory and statutory double patenting rejection(s) set forth in this Office action were overcome.
Claims 10, 12, and 14 are objected to as being dependent upon a rejected base claim, but would be allowable if the double patenting rejection(s) applied to the rejected base claim(s) were appropriately addressed.
The following is a statement of reasons for the indication of allowable subject matter.
The best prior art of record is Fu et al. (“Enhancing the target visibility with synthetic target specific digitally reconstructed radiograph for intrafraction motion monitoring: A proof-of-concept study”), hereinafter Fu, Ding et al. (U.S. Publication No. 2012/0041685 A1), hereinafter Ding, Torii et al. (U.S. Publication No. 20220076397 A1), hereinafter Torii, Raupach (U.S. Publication No. 2017/0352166 A1), Sun et al. (CN116407779A, see attached English translation), hereinafter Sun, and Hong et al. (KR 20170065118 A, see attached English translation), hereinafter Hong. Prior art applied alone or in combination with fails to anticipate or render obvious claims 1-21.
Claim 1
Regarding claim 1, Fu teaches a method for a computer system to perform template generation for target structure tracking, wherein the method comprises: obtaining (a) planning image data that is associated with a target structure of a patient requiring radiation therapy and acquired prior to a treatment phase of the radiation therapy, or (b) transformed image data that is generated based on the planning image data; based on the planning image data or the transformed image data, or both, generating first
Sun further teaches obtaining (a) planning image data that is associated with a target structure of a patient requiring radiation therapy and acquired prior to a treatment phase of the radiation therapy, or (b) transformed image data that is generated based on the planning image data; based on the planning image data or the transformed image data, or both, generating first
Hong teaches a method for a computer system to perform template generation for target structure tracking, wherein the method comprises: obtaining (a) planning image data that is associated with a target structure of a patient requiring radiation therapy and acquired prior to a treatment phase of the radiation therapy, or (b) transformed image data that is generated based on the planning image data; based on the planning image data or the transformed image data, or both, generating first
Ding additionally teaches generating first material property data that represents a particular material property associated with the target structure.
Torii also teaches generating first material property data that represents a particular material property associated with the target structure.
However, neither Fu, nor Sun, nor Ding, nor Torii, nor Hong, nor the combination, teaches wherein the template is matchable against second material property data that also represents the particular material property for tracking the target structure during the treatment phase, in combination with the other elements of the claim.
Similar analysis is applicable to claim 15.
Claims 2-7 and 16-21 include allowable subject matter by virtue of being dependent upon claims 1 and 15, respectively.
Claim 8
Regarding claim 8, Fu teaches a method for a computer system to perform target structure tracking for radiation therapy, wherein the method comprises: obtaining material property data that represents a particular
Sun also teaches obtaining material property data that represents a particular
Hong further teaches obtaining (a) planning image data that is associated with a target structure of a patient requiring radiation therapy and acquired prior to a treatment phase of the radiation therapy, or (b) transformed image data that is generated based on the planning image data; based on the planning image data or the transformed image data, or both, generating first
Ding additionally teaches obtaining material property data that represents a particular material property.
Torii also teaches obtaining material property data that represents a particular material property associated with a target structure of a patient requiring radiation therapy, wherein the material property data is generated based on treatment image data acquired during a treatment phase of the radiation therapy.
However, neither Fu, nor Sun, nor Ding, nor Hong, nor Torii, nor the combination, teaches based on the material property data and the template, performing template matching during the treatment phase to track the target structure based on the particular material property, in combination with the other elements of the claim (emphasis added).
Claims 9-14 include allowable subject matter by virtue of being dependent upon claim 8.
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 extension fee 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 date of this final action.
Contact
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/Kyla Guan-Ping Tiao Allen/
Examiner, Art Unit 2661
/JOHN VILLECCO/Supervisory Patent Examiner, Art Unit 2661
Prosecution Insights