DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Claim Objections
Claim 10 and 19 are objected to because of the following informalities: “magnetic resource imaging” should be “magnetic resonance imaging”.
Appropriate correction is required.
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 1-10 and 11-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1-10 of U.S. Patent No. 9,773,311. Although the claims at issue are not identical, they are not patentably distinct from each other because substantially the same limitations with slightly different scope.
Claims 1-10 and 11-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1-19 of U.S. Patent No. 12,020,432. Although the claims at issue are not identical, they are not patentably distinct from each other because substantially the same limitations with slightly different scope.
Claim Rejections - 35 USC § 103
The following is a quotation of pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1-20 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Matsuoka (“Quantitative Assessment of Air Trapping in Chronic Obstructive Pulmonary Disease Using Inspiratory and Expiratory Volumetric MDCT”) in view of Rai (PGPub 2012/0288173)
Matsuoka discloses 1. A method of assessing lung function using a first image data set obtained at lung inspiration and a second image data set obtained at lung expiration, each image data set comprising a plurality of voxels characterized by a signal value(Matsuoka, pg. 763, “
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”, where the MDCT is in Housfeld), the method comprising:
Matsuoka does not expressly disclose “co-registering the first and second image data sets to produce a co-registered image data set that comprises a plurality of co-registered voxels,
wherein each of the co- registered voxels includes the signal value of the co-registered voxels of the first image data set and the second image data set, each co-registered voxel corresponding to a location;”
Rai discloses “co-registering the first and second image data sets to produce a co-registered image data set that comprises a plurality of co-registered voxels,
wherein each of the co- registered voxels includes the signal value of the co-registered voxels of the first image data set and the second image data set, each co-registered voxel corresponding to a location;” (Rai, “[0008] One embodiment of the present invention is a method for assisting a surgeon to analyze the motion of a lung. Two 3D CT images are obtained as input. One 3D CT image represents the lung during a first state such as inspiration and a second 3D CT image represents the lung during a second state such as expiration. A rigid registration is performed between the two 3D CT images to align the images. The rigid registration is followed by a deformation until the two 3D CT images match. A motion vector field corresponding to the local motion of the lung to move from the first state to the second state is generated and output of the method.”)
At the time of the invention, it would have been obvious to a person of ordinary skill in the art to deformably register the first and second images of Matsuoka shown by Rai.
The suggestion/motivation for doing so would have been to easily see corresponding locations between the two images
Further, one skilled in the art could have combined the elements as described above by known methods with no change in their respective functions, and the combination would have yielded nothing more than predictable results.
Matsuoka in view of Rai discloses
“analyzing the co-registered image data set to assess lung function by:
determining the signal values for each of the plurality of co-registered voxels; and
for each location, analyzing the signal value of the first image data set and the signal value of the second image data set to assess a tissue state for each location; and “ (Matsuoka, pg. 763-764,
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displaying a result of the analysis, the result comprising the tissue state for each location.” (Matsuoka, Fig. 1)
Matsuoka in view of Rai discloses 2. The method of claim 1, wherein assessing a tissue state for each location comprises comparing information obtained from the first image data set to information obtained from the second image data set.(Matsuoka, pg. 764,
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Matsuoka in view of Rai discloses 3. The method of claim 1, wherein assessing a tissue state comprises, for each location, identifying a probable disease state.(Matusoka, pg. 764
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Matsuoka in view of Rai discloses 4. The method of claim 3, wherein the probable disease state for each location is one of normal tissue, emphysematous tissue, and non-emphysematous tissue with air trappings. (Matusoka, pg. 764
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Matsuoka in view of Rai discloses 5. The method of claim 3, wherein the probable disease state for each location is a COPD phenotype.(Matsuoka, pg. 766,
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Matsuoka in view of Rai discloses 6. The method of claim 1, wherein co-registering the first and second image data sets comprises applying an image segmentation, or cropping, rotation, translation and warping registration of the first image and the second image.(Matsuoka, Abstract,
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Matsuoka in view of Rai discloses 7. The method of claim 1, wherein displaying a result comprises forming a classification map of the lung mapping the tissue state for each location.(Matsuoka, See Fig. 1)
Matsuoka in view of Rai discloses 8. The method of claim 7, wherein the classification map is color-coded. (Matsuoka, See Fig. 1)
Matsuoka in view of Rai discloses 9. The method of claim 1, wherein the first image data set is obtained at approximately full lung inspiration and the second image data set is obtained at end lung expiration.(see claim 1)
Matsuoka in view of Rai discloses 10. The method of claim 1, where the image data sets are produced by an imaging device selected from the group consisting of a magnetic resource imaging (MRI) device, a computed tomography (CT) device, a two-dimensional planar X-Ray device, a positron emission tomography (PET) device, an ultrasound (US) device, and a single- photon emission computed tomography (SPECT) device.(Matsuoka, pg. 763, MDCT)
Claims 11-19 are rejected under similar grounds as claims 1-10
Claim 20 recites similar limitations as claim 1 and is rejected under similar reasoning as claims 1, 4, 7 and 8 shown above.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to GANDHI THIRUGNANAM whose telephone number is (571)270-3261. The examiner can normally be reached M-F 8:30-5PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sumati Lefkowitz can be reached at 571-272-3638. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/GANDHI THIRUGNANAM/Primary Examiner, Art Unit 2672