DETAILED ACTION
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.
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 .
Information Disclosure Statement
The information disclosure statements (IDS) submitted on 02/29/24 comply with provisions of 37 CFR 1.97. Accordingly, the examiner considered the information disclosure statements.
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 16 is rejected under 35 U.S.C. 103 as being unpatentable over Yamada et al. (US 20210307442) in view of Bojarski et al. (US 11,857,378).
Regarding claim 16, Yamada teaches a helmet assembly (helmet 101, fig. 1, ¶96) securable to a reality device (head-up display device; ¶2, virtual image, ¶17, ¶37, ¶49, ¶95, ¶130, ¶142), the assembly comprising, an inner frame (liner 111, mouse cover 115, fig. 3-5, ¶97) securable to the reality device (HUD device 3, fig. 1-3); a visor (shield 107, fig. 3-5, ¶98) releasably securable to the inner frame (111/115, ¶99), the visor (107) to optically expose the reality device (HUD 3); and a hood (helmet body 105) connected to the visor (107) and configured to cover at least a portion of a head of a user (shown in fig. 11 and 12). Yamada does not specifically teach a surgical helmet assembly, mixed reality device, surgical hood and used in a surgical field. (Yamada only teaches a head-up display HUD and helmet). However, in a similar field of endeavor, Bojarski teaches a surgical helmet assembly (col. 1, lines 15-25, surgical helmet) securable to a mixed reality device(col. 19, lines 55-60, mixed reality environment), the assembly used in a surgical field and comprising a surgical hood (col. 1, lines 15-25, Aspects of the present disclosure relate to systems, devices and methods for performing a surgical step or surgical procedure with visual guidance using a head mounted display. Aspects of the present disclosure relate a protective cover for the surgical helmet or hood, a protective face shield, and/or a helmet for use during a surgical step or surgical procedure.). It would have been obvious to one of ordinary skill in the art before the effective filing date to provide the assembly of Yamada with a surgical helmet assembly, mixed reality device, surgical hood and used in a surgical field of Bojarski, for the purpose of being configured to be worn on a head of a user under a cover of a surgical helmet that the display of the head mounted display is adjacent to a transparent portion of the cover (col. 1, 39-50).
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.
Claim 16 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 11 and 17 of copending Application No. 18/100,252 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of the reference ASN: 18/100,252 teaches all the elements of claim 16 of the current application.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Current application
ASN: 18/100,252
16. A surgical helmet assembly securable to a mixed reality device, the assembly comprising:
an inner frame securable to the mixed reality device;
a visor releasably securable to the inner frame, the visor to optically expose the mixed reality device to a surgical field; and
a surgical hood connected to the visor and configured to cover at least a portion of a head of a user.
11. A surgical helmet assembly securable to a mixed reality device, the assembly comprising:
an inner frame securable to the mixed reality device;
an outer frame releasably securable to the inner frame;
a visor releasably securable to the inner frame, at least a portion of a lens of the mixed reality device exposed through the visor and the outer frame; and
a surgical hood connected to the visor and configured to cover at least a portion of a head of a user and to enclose at least a portion of the mixed reality device.
17. A surgical helmet assembly securable to a mixed reality device, the assembly comprising:
an inner frame securable to the mixed reality device;
a visor releasably securable to the inner frame, at least a portion of a lens of the mixed reality device exposed through the visor and the inner frame; and
a surgical hood connected to the visor and configured to cover at least a portion of a head of a user and to enclose at least a portion of the mixed reality device.
Allowable Subject Matter
Claims 17-20 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.
The following is a statement of reasons for the indication of allowable subject matter: the prior art does not disclose the claimed combination of limitations to warrant a rejection under 35 USC 102 or 103.
Regarding claim 17, the prior art does not disclose the claimed surgical helmet assembly specifically including as the distinguishing features in combination with the other limitations the claimed “wherein the inner frame includes an upper portion and a lower portion, the upper portion including a projection extending downward therefrom and insertable into a slot of the mixed reality device, the lower portion including a tab extending laterally inward and engageable with the mixed reality device to, together with the projection, secure the inner frame to the mixed reality device.”
Regarding claim 18, the prior art does not disclose the claimed surgical helmet assembly specifically including as the distinguishing features in combination with the other limitations the claimed
“wherein the inner frame includes a fixed portion securable to the mixed reality device and includes a movable portion rotatably coupled to the fixed portion.”
Regarding claim 19, the prior art does not disclose the claimed surgical helmet assembly specifically including as the distinguishing features in combination with the other limitations the claimed
“wherein the surgical hood defines a posterior opening to receive a rear portion of the mixed reality device at least partially therethrough to position the rear portion at least partially outside of the surgical helmet assembly.”
Specifically, with respect to claim 20, is objected to for the same reason as claim 19.
The following is an examiner’s statement of reasons for allowance:
The prior art taken either singly or in combination fails to anticipate or fairly suggest the limitations of the independent claims, in such a manner that a rejection under 35 USC 102 or 103 would be improper.
Regarding claim 1, the closest prior art Yamada et al. (US 20210307442) teaches a helmet assembly (helmet 101, fig. 1, ¶96) securable to a reality device (head-up display device; ¶2, virtual image, ¶17, ¶37, ¶49, ¶95, ¶130, ¶142), the assembly comprising, an inner frame (liner 111, mouse cover 115, fig. 3-5, ¶97) securable to the reality device (HUD device 3, fig. 1-3); a visor (shield 107, fig. 3-5, ¶98) releasably securable to the inner frame (111/115, ¶99), the visor (107) to optically expose the reality device (HUD 3); and a hood (helmet body 105) connected to the visor (107) and configured to cover at least a portion of a head of a user (shown in fig. 11 and 12).
However, regarding claim 1, the prior art Yamada et al. taken either singly or in combination fails to anticipate or fairly suggest a helmet assembly securable to a mixed reality device, the assembly comprising: an inner frame securable to the mixed reality device; an outer frame releasably securable to the inner frame, the outer frame including a visor to optically expose the mixed reality device to a surgical field; and a surgical hood connected to the outer frame and configured to cover at least a portion of a head of a user, the surgical hood defining a posterior opening to receive a rear portion of the mixed reality device at least partially therethrough to position the rear portion at least partially outside of the surgical helmet assembly, in combination with all other claimed limitation of claim 1.
With respect to claims 2-15, these claims depend on claim 1 and are allowable at least for the reason stated supra.
Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to HENRY DUONG whose telephone number is (571)270-0534. The examiner can normally be reached Monday-Friday from 9:00 AM to 5:00 PM.
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/HENRY DUONG/Primary Patent Examiner, Art Unit 2872 01/24/26