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 .
Response to Amendment
This office action is in response to the communication filed 5/22/2026.
The reply filed on 5/22/2026 is not fully responsive to the prior Office action because of the following omission(s) or matter(s):
Applicant has apparently amended the wrong version of the abstract. This recently amended abstract, submitted 5/22/2026, apparently amends an outdated version of the abstract released with the WIPO publication (WO 2023052473 A1) published 4/6/2023 – not the subsequently amended abstract that was submitted on 3/28/2024.
None of the marked amendments (claims, abstract, specification) are written plainly and legibly, nor are they presented in a form having sufficient clarity and contrast between the paper and the writing thereon. See MPEP § 608.01.
Changes made to the specification have gone unmarked – “for example” on pg. 4’s line 17 of the clean/marked specification submitted 5/22/2026 has apparently replaced “in particular” on pg. 3’s line 19 of the specification submitted 3/28/2024.
In addition to those of the abstract, other deficiencies noted in the previous office action also remain either unaddressed or were not fully remediated by the amendments; these are reflected/reiterated in the specification objections and 112(b) rejections below.
Since the above-mentioned reply appears to be bona fide, the amendment is accepted as an adequate reply to the last Office action and is acted upon below. Applicant is also reminded that amendments should be checked for compliance with 37 CFR 1.121 to maintain a clear record and to avoid non-entry of amendments and unnecessary prosecution delays.
Amendments to the abstract, to the specification, and to claims 15, 17-20, 22-24, 26-27, filed 5/22/2026, are acknowledged and accepted.
Cancellation of claims 1-14, filed 3/28/2024, remains in effect.
Due to the amendments, all previous claim objections are now withdrawn.
Response to Arguments
Applicant's arguments filed 5/22/2026 have been fully considered but they are not persuasive.
On pg. 14 of the Remarks, Applicant argues
“Nauche does not disclose that the sensor module is configured to use the plurality of images to ascertain at least one reference image for the refraction treatment, as required by claim 15 […] The estimation of a direction (i.e. a calculated vector) cannot be equated to an actual image used for a treatment”
Examiner disagrees and finds Applicant using a prohibitively/unjustifiably narrow interpretation of the claim language. As explained in the previous action (¶ 40), Nauche’s processing unit is incorporated into an optometry device (which is fundamentally directed to the treatment of refractive issues), and it analyzes images from which it can determine parameters such as gaze direction. Naturally, the processing unit must reference at least a subset of these images to make such a determination. The assertion that Nauche’s disclosure does not read on the argued limitation thus remains fully unsubstantiated.
On pg. 14 of the Remarks, Applicant also argues
“neither Nauche nor Brownell discloses a device or a method capable of performing both eye registration and determination of subjective refraction”
without any supporting evidence or rationale. Examiner disagrees; see rejection of claims 15 and 24 relying on Nauche in the previous action (¶ 40) or included below.
Specification
The abstract of the disclosure is objected to because, as noted above, Applicant has apparently revised and submitted an incorrect version of the abstract without addressing the objection raised in the previous action (¶ 7 of the 2/23/2026 Non-Final Rejection). A corrected abstract of the disclosure (based on the amended abstract submitted 3/28/2024) is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
The disclosure is further objected to because the specification remains replete with informalities and terms which are not clear, concise and exact. The specification should be revised carefully in order to comply with 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112. Examples of some informalities and unclear, inexact, or verbose terms used in the specification are listed as follows:
On pg. 1, line 16, “default” should be followed by a closing comma to offset the parenthetical phrase “if not default”
On pg. 3, lines 8-9, “the exact positioning of the wavefront data” is unclear as data is an abstract concept and it is not clear how it has an “exact positioning”
On pg. 4, lines 16-17, it is not clear what it means when “The pose of the eye contains the position of the eye and/or the orientation”; though replacing “contains” with “represents”, “corresponds to”, or some suitable alternative may remedy the issue
On pg. 4, lines 22-23, it is not clear what it means for the “one reference image” to be “in a pose of the eye”; further unclear and apparently self-referencing/redundant is “a pose of the eye” that “corresponds to a pose”
On pg. 4, line 17, there is an anomalous underscore following “for example”
Appropriate correction is required. Examiner notes that this list is not exhaustive, and reiterates that the specification should be revised carefully in order to comply with 35 U.S.C. 112(a). Applicant’s specification should be provided in clear and proper idiomatic English and contain no new matter.
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 20 and 22-28 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.
Regarding claim 20, lines 7-8 recite “the eye registration data-connected to the eye registration device”. This is not clear and appears to be a mistake, as it is in direct conflict with the earlier claim 15 – where it was established that the computer analyzing apparatus was data-connected to the eye registration device. For examination purposes, the relationship set forth in claim 15 is assumed.
Regarding claim 22, line 1 introduces “a laser eye treatment”. However, lines 1-2 of claim 15 already introduced “a laser eye treatment”. The phrase is thus overloaded with multiple introductions, causing ambiguity as to whether each instance refers to distinct or common objects. For examination purposes, the two instances shall be read to correspond to the same object.
Regarding claim 23, lines 1-2 recite “a treatment apparatus that performs the laser eye treatment, including the refractive eye treatment” while the previous claim 22’s lines 1-2 already introduced “a treatment apparatus that performs a laser eye treatment, including a refractive eye treatment”, thus overloading the “treatment apparatus” with multiple introductions and causing ambiguity as to whether each instance refers to distinct or common objects.
Furthermore, while there is currently implied antecedence for “the laser eye treatment” and “the refractive eye treatment”, the only apparent antecedence is through claim 22 (and claim 15 for “the laser eye treatment”, though this is also unclear; see above), which is not invoked until line 5 of claim 23. The claim therefore fails to clearly organize and present limiting details appropriately, as it delays the antecedent connection in a structurally indirect manner and causes further ambiguity when the reader encounters these terms before their apparent antecedent basis is even established.
For examination purposes, each instance of “the treatment apparatus”, “the laser eye treatment”, and “the refractive eye treatment” in claim 23 shall be read to correspond to those of claim 22.
Further regarding claim 23, line 5 recites “a computerized planning device”. However, line 1 of the previous claim 22 already introduced “a computerized planning device”. It is thus unclear whether claim 23 is introducing a new “computerized planning device” or referring back to claim 22’s. For examination purpose, claim 23’s “a computerized planning device” shall be read as “the computerized planning device”
Regarding claim 24, line 1 introduces “a laser eye treatment”. However, lines 1-2 of claim 15 already introduced “a laser eye treatment”. The phrase is thus overloaded with multiple introductions, causing ambiguity as to whether each instance refers to distinct or common objects. For examination purposes, the two instances shall be read to correspond to the same object.
Further regarding claim 24, line 3 recites “the eye registration of the eye together”. Thus, while there is currently implied antecedence for “the eye registration” and “the eye”, the only apparent antecedence is through claim 15, which is not invoked until lines 5-6 of claim 24. The claim therefore fails to clearly organize and present limiting details appropriately, as it delays the antecedent connection in a structurally indirect manner and causes further ambiguity when the reader encounters these terms before their apparent antecedent basis is even established. For examination purposes, each instance of “the eye registration” and “the eye” in claim 24 shall be read to correspond to those of claim 15.
Further regarding claim 24, lines 3-4 recite “the provision of different optical elements” which lacks a proper antecedent basis, though Examiner notes that there may be intended antecedence through claim 15, which is not invoked until lines 5-6 of claim 24. The claim, therefore, further fails to clearly organize and present limiting details appropriately, as it delays the antecedent connection in a structurally indirect manner and causes further ambiguity when the reader encounters these terms before their apparent antecedent basis is even established. For examination purposes, “the provision of different optical element” shall be read to correspond to that provided by claim 15’s “device that provides different optical elements”.
Claims not specifically addressed in the rejections above inherit the indefiniteness of the claim from which they depend.
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.
Claims 15-28 are rejected under 35 U.S.C. 103 as being unpatentable over Nauche and Boutinon (US 20190274539 A1, hereinafter “Nauche”) in view of Brownell (US 20150290032 A1, hereinafter “Brownell”).
Regarding claims 15 and 24, Nauche discloses (see FIGs. 1-3, ¶s 2-5, 27-29, 60-68, 77-79) a measuring apparatus that facilitates preparing a refraction treatment, comprising:
a device (“optometry device”) that facilitates determining a subjective refraction of an eye (E) (per ¶s 2-5; see also ¶ 87);
the device (“optometry device”) that facilitates determining the subjective refraction comprising a housing (casing 2) which is positionable in front of the eye (E) and which contains an opening (window 8) (per FIG. 2);
the housing (casing 2) comprising a device (refraction module 30) that provides different optical elements (lenses 32, 34, 36) in the opening (window 8) for subjective visual compensation of refractive errors (per FIGs. 2-3, ¶s 60-68);
wherein
the housing includes an eye registration device (sensor module 40) that registers the eye through the opening (window 8);
the eye registration device (sensor module 40) comprising a recording apparatus (sensor 42) that records a plurality of images of the eye (E), wherein the recording apparatus (sensor 42) is positioned in front of the opening (window 8) and captures the images of the eye (E) through the opening (window 8); and
a computer analyzing apparatus (processing unit) that analyzes an eye registration, is data-connected to the eye registration device (sensor module 40), and is provided and configured to use the plurality of images to ascertain at least one reference image for the refraction treatment.
(Regarding items D-F above, note ¶s 77-79 describe sensor module 40 capturing images of the individual’s eyes E – these then analyzed by a processing unit which “deduce[s] therefrom physiological or behavioural parameters… such as the gaze direction of the concerned individual’s eye E [and this occurring at a moment that may be taken to correspond to the reference image]”.)
Nauche does not explicitly disclose a refraction treatment that is a laser eye treatment.
Nauche and Brownell are commonly related to treatment of refractive errors of the eye.
Brownell explicitly discloses a refraction treatment that is a laser eye treatment. (Brownell discusses how various treatments can be based on objective refraction measures – similar to those of Nauche (“physiological or behavioural parameters”, “gaze”, etc.) cited above. Among these methods are laser ablation surgeries. See ¶s 2-5, 25-30, FIG. 1)
It would have therefore been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to combine the teachings of Nauche and Brownell in order to provide laser eye treatments (i.e. for more permanent vision corrections and reduced dependency on corrective eyewear).
Regarding claims 16 and 25, modified Nauche discloses the measuring apparatus as claimed in claim 15 and the measuring method as claimed in claim 24.
Nauche further discloses (see ¶ 77) wherein the eye registration device (sensor module 40) is configured to trigger a recording of the plurality of images (“capture images”) over at least one time period (inevitably so).
Regarding claims 17 and 26, modified Nauche discloses the measuring apparatus as claimed in claim 16 and the measuring method as claimed in claim 25.
Nauche further discloses:
wherein the computer analyzing apparatus (processing unit) that analyzes the eye registration is configured to ascertain the at least one reference image from the plurality of images or from a selection of the plurality of images by taking a time average of the plurality of images; or
wherein the computer analyzing apparatus (processing unit) that analyzes the eye registration is configured to ascertain the at least one reference image from the plurality of images or the selection of the plurality of images, wherein a selection time period includes, is before, or is after a time which represents an optimal subjective visual compensation of refractive errors (i.e. by refraction module 30) when determining the subjective refraction of the eye (E); or
wherein the computer analyzing apparatus (processing unit) that analyzes the eye registration is configured to ascertain the reference image by including a tolerance range from a variation in the plurality of images; or
a combination of the foregoing.
(Regarding items A-C above,
refer again to ¶s 77-79, describing sensor module 40 capturing images of the individual’s eyes E – these then analyzed by a processing unit which “deduce[s] therefrom physiological or behavioural parameters… such as the gaze direction of the concerned individual’s eye E”.
naturally, analyzing time-varying images and extracting visual information must involve some tolerance/threshold pertaining to the evolving image features (e.g., evaluating gaze direction must involve some tolerance/error associated with measured eye displacements, or some analogous/alternative feature).
refer again also to ¶s 60-68, as well as to ¶s 87-91, discussing refraction module 30 performing subjective refraction tests and visual compensation)
Regarding claim 18, modified Nauche discloses the measuring apparatus as claimed in claim 17.
Nauche further discloses (see ¶ 77) wherein the selection of the images is from at least one time period (inevitably so).
Regarding claims 19 and 27, modified Nauche discloses the measuring apparatus as claimed in claim 15 and the measuring method as claimed in claim 24.
Nauche further discloses (see FIG. 2, ¶s 27-29, 77-79):
wherein the eye registration device (sensor module 40) comprises a mirror (beam splitter 50), at least a portion of which is arranged in the opening (window 8), and a camera (sensor 42) which is arranged in or on the housing (casing 2) and whose optical path is oriented at or orientable at the mirror (beam splitter 50); or
wherein the eye registration device comprises a camera which is provided in or on the device that provides different optical elements and which is positionable in the opening by operation of the device that provides different optical elements; or
wherein the eye registration device comprises a camera arranged on the housing in the opening; or
a combination of the foregoing.
Regarding claim 20, and further regarding claim 27, modified Nauche discloses the measuring apparatus as claimed in claim 15 and the measuring method as claimed in claim 24.
wherein the eye registration device (sensor module 40) comprises an apparatus that illuminates the eye (E) positioned in front of the opening (window 8), including illuminating the iris of the eye (E) (Per ¶ 77, sensor module 40 records images of eye E, which clearly requires source of illumination. See, e.g., regarding illuminator 60 described in ¶s 57-58, which may be freely grouped together with sensor module 40 and must certainly shed light on the iris among eye E’s many features); or
wherein the eye registration device (sensor module 40) comprises an apparatus that triggers the eye registration, in particular triggering the recording of the plurality of images (“capture images”; see again ¶ 77), manually, automatically, one time, or multiple times (inevitably so, as this exhausts all possible options); or
wherein the computer analyzing apparatus that analyzes the eye registration data-connected to the eye registration device is configured to analyze the image quality of the recorded images of the eye, to select at least one reference image for the laser treatment, or to register anatomical reference points for the laser treatment; or
a combination of the foregoing.
Regarding claim 21, modified Nauche discloses the measuring apparatus as claimed in claim 15.
Nauche further discloses wherein the measuring apparatus comprises at least one element selected from a group consisting of a memory unit that stores data obtained by the measuring apparatus, a control device (control unit 38 of refraction module 30, see ¶ 67; consider also that some other control structures are implicitly required, e.g. to instruct and harmonize ¶s 77-78’s sensor module 40, processing module, etc) and an interface that transmits data obtained by the measuring apparatus.
Regarding claim 22, modified Nauche discloses the measuring apparatus as claimed in claim 15.
Brownell further discloses (see FIG. 4 and ¶ 58 providing a broadly relevant method 400 dealing with the planning/treatment aspect of the current claim. See also FIGs. {1, 2, 3} and associated ¶s {27-30, 34, 41-49} for physical details on laser, computer, and measurement apparatus structures. Those details of FIG. 4’s method 400 and FIG. 1’s laser system 10 are mapped below as being the most relevant):
a computerized planning device (treatment planner 440) that creates control data (“prescription”) for a treatment apparatus (i.e. laser system 10) that performs a laser eye treatment, including a refractive laser eye treatment,
the computerized planning device (treatment planner 440) being configured to determine the control data (“prescription”) for the treatment apparatus (laser system 10);
wherein
the computerized planning device (treatment planner 440) comprises an interface for receiving data (“objective optical manifest refraction measurement data”) obtained by the measuring apparatus (manifest refraction instrument 420) for preparing the laser eye treatment, and
the computerized planning device (treatment planner 440) is configured to use the data (“objective optical manifest refraction measurement data”) from the measuring apparatus (manifest refraction instrument 420) received via the interface to create the control data (“prescription”) for the treatment apparatus (laser system 10).
Regarding claim 23, modified Nauche discloses a computerized planning device as claimed in claim 22.
Brownell further discloses (see again FIGs. 1-4; ¶s 27-30, 34, 41-49, 58) a treatment apparatus (laser system 10) that performs the laser eye treatment, including the refractive laser eye treatment, comprising:
a laser device (laser 12) that modifies the cornea of the eye (E) by laser irradiation;
wherein the treatment apparatus (laser system 10) comprises a computerized planning device (treatment planner 440).
Regarding claim 28, modified Nauche discloses the measuring method as claimed in claim 24.
Brownell also discloses the further comprising:
analyzing the image quality of the recorded images of the eye (E); or
selecting at least one reference image for the laser treatment; or
registering anatomical reference points for the laser treatment; or
a combination of the foregoing.
(Regarding items A-C above, see again ¶s 41-49, detailing wavefront measurements for mapping out eye features, including spot analysis of Hartmann-Shack images (i.e. spot qualities/features). Note ¶s 48-49 discloses varying fixation targets and dynamic determination of optical characteristics – including eye orientation – which will correspond to information extracted from reference image, as well as support determination of “wavefront sensor data relative to the optical issue [i.e. eye anatomy/reference points]”)
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 nonprovisional extension fee (37 CFR 1.17(a)) 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 mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to WAI-GA D. HO whose telephone number is (571)270-1624. The examiner can normally be reached Monday through Friday, 10AM - 6PM E.T..
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Stephone Allen can be reached at (571) 272-2434. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/W.D.H./Examiner, Art Unit 2872
/STEPHONE B ALLEN/Supervisory Patent Examiner, Art Unit 2872
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