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 .
Claim Rejections - 35 USC § 102
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 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.
Claims 1, 3-5, 9, 10, 18 and 20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Refai et al. (2019/0231220; cited by Applicant).
Regarding claim 1, Refai et al. disclose a medical imaging system (see, e.g., paras. 0041, 0042, 0044, 0050, 0060, 0061, 0100, 0101, 0113, 0119, 0120, 0122) comprising:
an imaging device (i.e., endoscope; para. 0041) that includes:
an image sensor configured to capture a two-dimensional visible light image of a scene (e.g., paras. 0060-0061), and
a depth sensor separate from the image sensor and configured to generate a depth map of the scene (paras. 0050, 0100, 0101, 0113; the point cloud is essentially a depth map from an infrared camera, which functions as a depth sensor for measurement purposes, together with color and detail added from a visible light camera); and
an image processing system (e.g., para. 0122) communicatively coupled to the imaging device and configured to generate, based on the two-dimensional visible light image of the scene captured by the image sensor and the depth map of the scene generated by the depth sensor (supra), two perspective images of the scene that, when presented concurrently by a stereo viewer (i.e., augmented displays providing three-dimensional stereoscopic viewing; e.g., paras. 0060 and 0129), form a stereoscopic view of the scene (id.).
Regarding claim 3, the imaging system further comprises:
an illumination source configured to emit visible light (para. 0046);
wherein the depth sensor is configured to generate the depth map by:
detecting the visible light after the visible light reflects off a surface within the scene (paras. 0046, 0050, 0061, 0100 and 0101); and
generating, based on the detected visible light, depth data representative of the depth map (id.).
Regarding claim 4, the imaging system further comprises:
an illumination source configured to emit non-visible light (para. 0113);
wherein the depth sensor is configured to generate the depth map by:
detecting the non-visible light after the non-visible light reflects off a surface within the scene (id.); and
generating, based on the detected non-visible light, depth data representative of the depth map (paras. 0061, 0113, 0119, 0120).
Regarding claim 5, as the desired cameras (including an IR camera functioning as a depth sensor, supra) are placed side-by-side along an axis of the endoscope (cf. para. 0139), a bottom surface of the shaft can be defined orthogonal to the axis of the cameras, such that the depth sensor (IR camera functioning as a depth sensor) is positioned above the visible light camera.
Regarding claim 9, the imaging device is an endoscope configured to be inserted into a patient (para. 0047); and
the scene includes an internal space within the patient (para. 0048).
Regarding claim 10, the imaging device comprises a camera head and a shaft (the endoscope tubular sleeve) extending from the camera head (paras. 0058 and 0065); and
the image sensor and the depth sensor are disposed within the camera head or the shaft (id.).
Regarding claim 18, Refai et al. disclose a method comprising:
capturing, using an image sensor (paras. 0060-0061), a two-dimensional visible light image of a scene (id.);
generating, using a depth sensor separate from the image sensor, a depth map of the scene (paras. 0050, 0100, 0101, 0113; the point cloud is essentially a depth map from an infrared camera, which functions as a depth sensor for measurement purposes, together with color and detail added from a visible light camera);
generating, based on the two-dimensional visible light image of the scene captured using the image sensor and the depth map of the scene generated using the depth sensor, two perspective images of the scene (para. 0122); and
concurrently presenting, by way of a stereo viewer (i.e., augmented displays providing three-dimensional stereoscopic viewing; e.g., paras. 0060 and 0129), the two perspective images of the scene to form a stereoscopic view of the scene (id.).
Regarding claim 20, generating the depth map comprises:
detecting visible light emitted by an illumination source after the visible light reflects off a surface within the scene (paras. 0046, 0050, 0061, 0100 and 0101); and
generating, based on the detected visible light, depth data representative of the depth map (id.).
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.
Claims 6-8, 11 and 13-17 are rejected under 35 U.S.C. 103 as being unpatentable over Refai et al. (2019/0231220; cited by Applicant) in view of Tesar et al. (2017/0020627).
Regarding claim 6, Refai et al. disclose the claimed invention except for explicitly reciting wherein the image processing system is further configured to instruct a first display device to display one of the two perspective images of the scene and a second display device to display another one of the two perspective images of the scene.
Tesar et al. disclose a medical imaging system (para. 0007) and teach that an image processing system can be configured to instruct a first display device to display one of two perspective images of a scene and a second display device to display another of two perspective images of a scene (paras. 0596, 1253 and 1285), to allow the first display device and the second display device to be integrated into a stereoscopic viewer of a user control system and provide a stereoscopic image for improved visualization during surgery (id. and para. 0006).
It would have been obvious to a person having ordinary skill in the art before the effective filing date to configure the medical imaging system of Refai et al. with the image processing system being configured to instruct a first display device to display one of the two perspective images of the scene and a second display device to display another one of the two perspective images of the scene, in view of Tesar et al., to allow the first display device and the second display device to be integrated into a stereoscopic viewer of a user control system and provide a stereoscopic image for improved visualization during surgery.
Regarding claim 7, the medical imaging system of the combination includes the first display device and the second display device being integrated into a stereoscopic viewer of a user control system (supra at claim 6). In addition, it is noted that the medical imaging system of Refai et al. is capable of fully autonomous operation (paras. 0060, 0129, 0136, 0148 and 0156), which would allow for a procedure to be remotely performed with respect to a patient, if desired.
Regarding claim 8, the image processing system of Refai et al. is configured to register, based on the depth map, the stereoscopic view of the scene with a three-dimensional model of anatomy within the scene (paras. 0100 and 0101). Therefore, the imaging processing system of the combination, including the first display device displaying one perspective image of a scene and the second display device displaying another perspective image of a scene, as taught by Tesar et al. (supra), would direct the first display device and the second display device to display, based on the registration, the three-dimensional model together with the two perspective images of the scene in the stereoscopic viewer.
Regarding claim 11, Refai et al. disclose a system comprising:
an imaging device (i.e., endoscope; para. 0041) comprising:
an image sensor configured to capture a two-dimensional visible light image of a scene (e.g., paras. 0060-0061), and
a depth sensor separate from the image sensor and configured to generate a depth map of the scene (paras. 0050, 0100, 0101, 0113; the point cloud is essentially a depth map from an infrared camera, which functions as a depth sensor for measurement purposes, together with color and detail added from a visible light camera); and
an image processing system (para. 0122) communicatively coupled to the imaging device and configured to generate, based on the two-dimensional visible light image of the scene captured by the image sensor and the depth map of the scene generated by the depth sensor (supra), two perspective images of the scene that together form a stereoscopic view of the scene (paras. 0060 and 0129).
Refai et al. do not explicitly recite providing a first display device configured to display one of two perspective images of a scene; and
a second display device configured to display another of two perspective images of a scene.
Tesar et al. disclose a medical imaging system (para. 0007) and teach that an image processing system can be configured to instruct a first display device to display one of two perspective images of a scene and a second display device to display another of two perspective images of a scene (paras. 0596, 1253 and 1285), to allow a first display device and a second display device to be integrated into a stereoscopic viewer of a user control system and provide a stereoscopic image for improved visualization during surgery (id. and para. 0006).
It would have been obvious to a person having ordinary skill in the art before the effective filing date to configure the medical imaging system of Refai et al. with an image processing system configured to instruct a first included display device to display one of the two perspective images of a scene and a second included display device to display another one of the two perspective images of the scene, in view of Tesar et al., to allow the first display device and the second display device to be integrated into a stereoscopic viewer of a user control system and provide a stereoscopic image for improved visualization during surgery.
Regarding claim 13, the imaging system of Refai et al. comprises:
an illumination source configured to emit visible light (para. 0046);
wherein the depth sensor is configured to generate the depth map by:
detecting the visible light after the visible light reflects off a surface within the scene (paras. 0046, 0050, 0061, 0100 and 0101); and
generating, based on the detected visible light, depth data representative of the depth map (id.).
Regarding claim 14, the imaging system of Refai et al. comprises:
an illumination source configured to emit non-visible light (para. 0113);
wherein the depth sensor is configured to generate the depth map by:
detecting the non-visible light after the non-visible light reflects off a surface within the scene (id.); and
generating, based on the detected non-visible light, depth data representative of the depth map (paras. 0061, 0113, 0119, 0120).
Regarding claim 15, as the desired cameras (including an IR camera functioning as a depth sensor, supra) of the imaging system of Refai et al. are placed side-by-side along an axis of the endoscope (cf. para. 0139), a bottom surface of the shaft can be defined orthogonal to the axis of the cameras, such that the depth sensor (IR camera functioning as a depth sensor) is positioned above the visible light camera.
Regarding claim 16, the first display device and the second display device of the combination of Refai et al. and Tesar et al. are integrated into a stereoscopic viewer of a user control system (supra at claim 11). In addition, it is noted that the medical imaging system of the combination is capable of fully autonomous operation (Refai et al., paras. 0060, 0129, 0136, 0148 and 0156), which would allow for a procedure to be remotely performed with respect to a patient, if desired.
Regarding claim 17, the imaging device of Refai et al. is an endoscope configured to be inserted into a patient (para. 0047); and
the scene includes an internal space within the patient (para. 0048).
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, 3-11 and 13-17 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3-10 and 12-17 of U.S. Patent No. 11,944,265.
Although the claims at issue are not identical, they are not patentably distinct from each other because the differences amount to minor changes in the arrangement and phraseology of the claim limitations (e.g., a depth map is merely a different way of expressing depth data; and, an image sensor configured to capture a two-dimensional visible light image of a scene is a different way of expressing a visible light camera configured to obtain image data representative of a two-dimensional visible light image of a scene. Where substantive differences exist, the claims of the issued patent include more elements and are more specific (e.g., further reciting left and right perspective images instead of merely two perspective images; instructing first and second display devices to display the left and right perspective images in independent claims 1 and 10; registering with a three-dimensional image in the independent claims 1 and 10; and providing a user control system to facilitate a remote procedure as set forth in independent claim 10). Thus, the invention of the patent claims is in effect a “species” of the “generic” invention of the application claims. It has been held that the generic invention is “anticipated” by the “species”. See In re Goodman, 29 USPQ2d 2010 (Fed. Cir. 1993). Since the application claims are anticipated by the patent claims, they are not patentably distinct from the patent claims.
Regarding independent application claim 1, issued patent claim 1 set forth a medical imaging system, comprising:
an imaging device that includes:
an image sensor configured to capture a two-dimensional visible light image of a scene (i.e., a visible light camera configured to obtain image data representative of a two-dimensional visible light image of a scene), and a depth sensor separate from the image sensor and configured to generate a depth map of the scene (i.e., configured to obtain depth data representative of a depth map of the scene); and
an image processing system communicatively coupled to the imaging device and configured to generate, based on the two-dimensional visible light image of the scene captured by the image sensor (i.e., the image data; supra) and the depth map of the scene generated by the depth sensor, two perspective images of the scene (i.e., a right-side perspective image and a left-side perspective image) that, when presented concurrently by a stereo viewer (i.e., a first display device to display the right-side perspective image of the scene and a second display device to display the left-side perspective image of the scene), form a stereoscopic view of the scene.
Regarding independent application claim 11, issued patent claim 10 set forth a system comprising:
an imaging device comprising:
an image sensor configured to capture a two-dimensional visible light image of a scene (i.e., a visible light camera configured to obtain image data representative of a two-dimensional visible light image of a scene), and
a depth sensor separate from (i.e., claimed as a separate element) the image sensor and configured to generate a depth map of the scene (i.e., configured to obtain depth data representative of a depth map of the scene);
an image processing system communicatively coupled to the imaging device and configured to generate, based on the two-dimensional visible light image of the scene captured by the image sensor (i.e., the image data; supra) and the depth map of the scene generated by the depth sensor, two perspective images of the scene (i.e., a right-side perspective image and a left-side perspective image) that together form a stereoscopic view of the scene;
a first display device configured to display one of the two perspective images (i.e., the right-side perspective image) of the scene; and
a second display device configured to display another one of the two perspective images (i.e., the left-side perspective image) of the scene.
The application claims and the issued patent claims, including the dependent claims, are mapped as follows:
Appl. 18/588,452
Pat. 11,944,265
1
1
2
N/A
3
4 (4/3/1)
4
5 (5/3/1)
5
6
6
1
7
7
8
1
9
8
10
9
11
10
12
N/A
13
13 (13/12/10)
14
14 (14/12/10)
15
15
16
16
17
17
18
N/A
19
N/A
20
N/A
Allowable Subject Matter
Claims 2, 12 and 19 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure (see attached PTO-892).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DAVID C COMSTOCK whose telephone number is (571)272-4710. The examiner can normally be reached M-F 9:00-5:00 PST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Eduardo Robert can be reached at 571-272-4719. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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DAVID C. COMSTOCK
Examiner
Art Unit 3773
/DAVID C COMSTOCK/Examiner, Art Unit 3773
/EDUARDO C ROBERT/Supervisory Patent Examiner, Art Unit 3773
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