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 .
Information Disclosure Statement
As required by M.P.E.P. 609, the applicant’s submissions of the Information Disclosure Statement dated 3/12/2024 is acknowledged by the examiner and the cited references have been considered in the examination of the claims now pending.
Examiner Notes
The Examiner points out that while features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function. Limitations following "configured to," "adapted for," "designed to," "can be," and "capable of," or are statements of intended use are not positive limitations and thus are not given patentable weight. See MPEP 2111.04 and 2114.
Specification
The Abstract of the disclosure is objected to because of the terms “green-confusion absorbance region” and “yellow orange-confusion absorbance region”. A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-16 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
With respect to claims 1-16, the terms “green-confusion absorbance region” and “yellow orange-confusion absorbance region” are relative terms which render the claims indefinite. The terms “green-confusion” and “yellow orange-confusion” are not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. The term “green-confusion” and “yellow orange-confusion” is a subjective term (MPEP 2173.05(b). Specifically, what constitutes “confusion” is entirely subjective to a practitioner of the invention and/or the subject themselves. What is confused or disordered? The metes and bounds are unclear since those of ordinary skill in the art would fail to understand what qualifies as being confused, and thus infringement becomes unclear (MPEP 2173.05; 2173).
With respect to Claims 6, 14 and 15, the terms “predetermined ratio” in Claim 6, “predetermined ratio” in Claim 14, and “predetermined higher ratio” in Claim 15 are relative terms which render the claims indefinite. The term “predetermined ratio” and “predetermined higher ratio” are not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. Thus, the adjustment of ratio absorbance relating to deficiency of vision in the claims have been rendered indefinite by the use of these terms.
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 §§ 706.02(l)(1) - 706.02(l)(3) 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 1-16 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-16 of copending Application No. 18/601,938. The device of the copending application 18/601,938 discloses the same invention except for disclosing an “orange-confusion absorbance region”. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to choose a similar chroma enhancement optical lens device as taught by the current copending application because it is a well-established proposition that the selection of a known material based on its suitability for its intended use is within the skill of one of ordinary skill in the art Sinclair & Carroll Co. v.Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) See also In reLeshin, 277 F.2d 197, 125 USPQ 416 (CCPA 1960). MPEP §2144.07.
Furthermore, although the claims at issue are not identical, they are not patentably distinct from each other.
Claims 1-16 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-16 of copending Application No. 18/600,575. The device of the copending application 18/600,575 discloses the same invention except for disclosing a “yellow-green confusion absorbance region”. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to choose a similar chroma enhancement optical lens device as taught by the current copending application because it is a well-established proposition that the selection of a known material based on its suitability for its intended use is within the skill of one of ordinary skill in the art Sinclair & Carroll Co. v.Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) See also In reLeshin, 277 F.2d 197, 125 USPQ 416 (CCPA 1960). MPEP §2144.07.
Furthermore, although the claims at issue are not identical, they are not patentably distinct from each other.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
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.
Claim(s) 1-16 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by McCabe (20230176402).
Regarding claim 1, McCabe discloses a chroma enhancement optical lens (Fig 1B, [0126], lens 102) device for compensating red and green color deficient vision ([0126], visible light spectral profiles can cooperate to achieve any desired lens chromaticity, a chroma-enhancing effect, another goal, or any combination of goals) comprising: a lens body having a first lens surface and a second lens surface (Fig 1B, [0126], one or more of the lens body elements 204, 208), with the first lens surface provided at a first side of the lens body (Fig 1B, [0126], lens coating 202, one or more of the lens body elements 204, 208, or can be incorporated into additional lens elements), with the second lens surface provided at a second side of the lens body; an optical filter provided between the first side and the second side of the lens body (Fig 1B, [0126], lens coating 202, one or more of the lens body elements 204, 208, or can be incorporated into additional lens elements); and an interference light absorbance portion provided to form the optical filter (Fig 1B, [0126], polarizing layer, the photochromic layer, and/or other functional layers can be incorporated into the film layer 206), with transmitting a light beam through the interference absorbance portion ([0126], visible light spectral profiles can cooperate to achieve any desired lens chromaticity, a chroma-enhancing effect, another goal, or any combination of goals), with the interference light absorbance portion having a first green-confusion absorbance region and a second yellow orange-confusion absorbance region ([0130], light that is attenuated can be tailored to achieve a specific chroma-enhancing profile or another goal), with the first green-confusion absorbance region having a first blue-green absorbance peak portion ([0147], optical filter is configured to increase or maximize chroma in the blue to blue-green region of the visible spectrum), with the second yellow orange-confusion absorbance region having a second yellow-orange absorbance peak portion ([0214], an optical filter includes one or more chroma enhancement dyes that provide absorptance peaks; an optical filter for chroma enhancing eyewear includes yellow chroma enhancement dye); wherein the first blue-green absorbance peak portion is capable of absorbing at least one blue-green light of the light beam ([0214], an optical filter includes one or more chroma enhancement dyes that provide absorptance peaks; an optical filter for chroma enhancing eyewear includes blue chroma enhancement dye), with the first green-confusion absorbance region having a first wavelength range between 490 and 510 nm ([0216], dyes that have a relatively sharp absorptance peak with a wavelength between about 440 nm and about 490 nm and within the claimed range), and the second yellow-orange absorbance peak portion is capable of absorbing at least one yellow-orange light of the light beam ([0215], relatively sharp absorptance peaks include dyes that can be used to create one or more spectral features of at least some of the chroma enhancing filters), with the second green-confusion absorbance region having a second wavelength range between 585 nm and 605 nm ([0218], dyes that have a relatively sharp absorptance peak with a wavelength between about 580 nm and about 600 nm and within the claimed range), to provide red ([0219], red chroma enhancement dye) and green chroma enhancement ([0217], a green chroma enhancement dye) in vision.
Regarding claim 2, McCabe discloses wherein the first blue-green absorbance peak portion of the first green-confusion absorbance region has a spectral range with a first absorbance above 50%, 60%, 70%, 80% ([0149], bandwidth of an absorbance peak can include the full width of a peak at 80% of the maximum), 90% or 95% .
Regarding claim 3, McCabe discloses wherein the first blue-green absorbance peak portion of the first green-confusion absorbance region has a first maximum absorbance with a wavelength about 498 nm ([0207], filter for such an application has a wavelength-conversion window at between about 460 nm to about 540nm and within the claimed range).
Regarding claim 4, McCabe discloses wherein the second yellow-orange absorbance peak portion of the second yellow orange-confusion absorbance region has a spectral range with a second absorbance above 50%, 60%, 70%, 80% ([0149], bandwidth of an absorbance peak can include the full width of a peak at 80% of the maximum), 90% or 95%.
Regarding claim 5, McCabe discloses wherein the second yellow-orange absorbance peak portion of the second yellow orange-confusion absorbance region has a second maximum absorbance with a wavelength about 595 nm ([0218], dyes that have a relatively sharp absorptance peak with a wavelength between about 570 nm and about 590 nm, between about 580 nm and about 600 nm and within the claimed range).
Regarding claim 6, McCabe discloses wherein the first blue-green absorbance peak portion of the first green-confusion absorbance region has a first absorbance and the second yellow-orange absorbance peak portion of the second yellow orange-confusion absorbance region has a second absorbance ([0212], coatings typically include one or more layers of coating materials configured to achieve a desired spectral transmittance and chroma enhancement), with adjusting a predetermined ratio of first absorbance to second absorbance to provide a degree of compensating red and green color deficient vision ([0212], two or more of the above methods can be combined to produce the desired spectral and chroma characteristics).
Regarding claim 7, McCabe discloses wherein the first blue-green absorbance peak portion of the first green-confusion absorbance region has a first absorbance and the second yellow-orange absorbance peak portion of the second yellow orange-confusion absorbance region has a second absorbance ([0212], coatings typically include one or more layers of coating materials configured to achieve a desired spectral transmittance and chroma enhancement), with adjusting a relatively higher ratio of first absorbance to second absorbance to provide a degree of compensating blue green color deficient vision ([0212], two or more of the above methods can be combined to produce the desired spectral and chroma characteristics).
Regarding claim 8, McCabe discloses wherein the first blue-green absorbance peak portion of the first green-confusion absorbance region has a first absorbance and the second yellow-orange absorbance peak portion of the second yellow orange-confusion absorbance region has a second absorbance ([0212], coatings typically include one or more layers of coating materials configured to achieve a desired spectral transmittance and chroma enhancement), with adjusting a relatively lower ratio of first absorbance to second absorbance to provide a degree of compensating yellow orange color deficient vision ([0212], two or more of the above methods can be combined to produce the desired spectral and chroma characteristics).
Regarding claim 9, McCabe discloses a compensating red ([0165], selectively increase chroma in the red wavelengths) and green ([0166], an optical filter that provides increased chroma for middle of green spectral range) color deficient vision method ([0124], optical filter to enhance chroma profile of a scene the scene is viewed through a lens that incorporates optical filter) for a chroma enhancement optical lens device (Fig 1B, [0126], lens 102) comprising: providing a lens body with an optical filter (Fig 1B, [0126], one or more of the lens body elements 204, 208), with the lens body having an interference absorbance portion (Fig 1B, [0126], polarizing layer, the photochromic layer, and/or other functional layers can be incorporated into the film layer 206), with transmitting a light beam through the interference absorbance portion ([0126], visible light spectral profiles can cooperate to achieve any desired lens chromaticity, a chroma-enhancing effect, another goal, or any combination of goals); providing a first green-confusion absorbance region on the interference light absorbance portion ([0130], light that is attenuated can be tailored to achieve a specific chroma-enhancing profile or another goal), with the first green-confusion absorbance region having a first blue-green absorbance peak portion ([0147], optical filter is configured to increase or maximize chroma in the blue to blue-green region of the visible spectrum); providing a second yellow orange-confusion absorbance region on the interference light absorbance portion ([0214], an optical filter includes one or more chroma enhancement dyes that provide absorptance peaks; an optical filter for chroma enhancing eyewear includes yellow chroma enhancement dye), with the second yellow orange-confusion absorbance region having a second yellow-orange absorbance peak portion ([0214], an optical filter includes one or more chroma enhancement dyes that provide absorptance peaks; an optical filter for chroma enhancing eyewear includes yellow chroma enhancement dye); and the first blue-green absorbance peak portion absorbing at least one blue-green light of the light beam ([0214]) and the second yellow-orange absorbance peak portion absorbing at least one yellow-orange light of the light beam ([0214]) to provide red ([0219], green chroma enhancement) and green chroma enhancement ([0217], green chroma enhancement) in vision.
Regarding claim 10, McCabe discloses wherein the first blue-green absorbance peak portion of the first green-confusion absorbance region has a spectral range with a first absorbance above 50%, 60%, 70%, 80% ([0149], bandwidth of an absorbance peak can include the full width of a peak at 80% of the maximum), 90% or 95% .
Regarding claim 11, McCabe discloses wherein the first blue-green absorbance peak portion of the first green-confusion absorbance region has a first maximum absorbance with a wavelength about 498 nm ([0207], filter for such an application has a wavelength-conversion window at between about 460 nm to about 540nm and within the claimed range).
Regarding claim 12, McCabe discloses wherein the second yellow-orange absorbance peak portion of the second yellow orange-confusion absorbance region has a spectral range with a second absorbance above 50%, 60%, 70%, 80% ([0149], bandwidth of an absorbance peak can include the full width of a peak at 80% of the maximum), 90% or 95%.
Regarding claim 13, McCabe discloses wherein the second yellow-orange absorbance peak portion of the second yellow orange-confusion absorbance region has a second maximum absorbance with a wavelength about 595 nm ([0218], dyes that have a relatively sharp absorptance peak with a wavelength between about 570 nm and about 590 nm, between about 580 nm and about 600 nm and within the claimed range).
Regarding claim 14, McCabe discloses wherein the first blue-green absorbance peak portion of the first green-confusion absorbance region has a first absorbance and the second yellow-orange absorbance peak portion of the second yellow orange-confusion absorbance region has a second absorbance ([0212], coatings typically include one or more layers of coating materials configured to achieve a desired spectral transmittance and chroma enhancement), with adjusting a predetermined ratio of first absorbance to second absorbance to provide a degree of compensating red and green color deficient vision ([0212], two or more of the above methods can be combined to produce the desired spectral and chroma characteristics).
Regarding claim 15, McCabe discloses wherein the first blue-green absorbance peak portion of the first green-confusion absorbance region has a first absorbance and the second yellow-orange absorbance peak portion of the second yellow orange-confusion absorbance region has a second absorbance ([0212], coatings typically include one or more layers of coating materials configured to achieve a desired spectral transmittance and chroma enhancement), with adjusting a predetermined higher ratio of first absorbance to second absorbance to provide a degree of compensating blue green color deficient vision ([0212], two or more of the above methods can be combined to produce the desired spectral and chroma characteristics).
Regarding claim 16, McCabe discloses wherein the first blue-green absorbance peak portion of the first green-confusion absorbance region has a first absorbance and the second yellow-orange absorbance peak portion of the second yellow orange-confusion absorbance region has a second absorbance ([0212], coatings typically include one or more layers of coating materials configured to achieve a desired spectral transmittance and chroma enhancement), with adjusting a relatively lower ratio of first absorbance to second absorbance to provide a degree of compensating yellow orange color deficient vision ([0212], two or more of the above methods can be combined to produce the desired spectral and chroma characteristics).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Schmeder (20220075211), Schmeder (20210141132), and Martins (20200285078) are examples of an ophthalmological lens having wavelength-selective transmission that affects color vision in a desired manner.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Sharrief I Broome whose telephone number is (571)272-3454. The examiner can normally be reached Monday-Friday 8am-5pm, EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Ricky Mack can be reached at 571-272-2333. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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Sharrief I. Broome
Primary Examiner
Art Unit 2872
/SHARRIEF I BROOME/Primary Examiner, Art Unit 2872