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 .
Status of Claims
Claims 18-34 are currently pending. Claims 26-34 are withdrawn as being drawn to non-elected inventions. Claims 1-17 are canceled. Claims 18-25 are under examination. As per the amendments filed on 07/09/2026, claims 18-19 and 23-24 are amended.
Priority
The instant application (filed on 04/05/2024) is a national stage of PCT/EP2022/077569 (filed on 10/04/2022), filed under 35 USC 371. Acknowledgment is made of Applicant's claim for foreign priority based on application DE 10 2021 125 782.4 filed on 10/05/2021. Amended instant claims 18-25 are adequately supported within foreign application DE 10 2021 125 782.4 based on the previously attached translation from Espacenet (https://worldwide.espacenet.com). Therefore, the effective filing date of instant claims 18-25 is 10/05/2021.
Response to Arguments
Applicant’s arguments, see Remarks page 12 (Claims Objections), filed 07/09/2026, with respect to the objection to claim 18 have been fully considered and but are not found persuasive because the suggested change was not implemented (as stated in the arguments). Therefore, the objection to claim 18 is maintained.
Applicant’s arguments, see Remarks pages 12-16 (35 U.S.C. § 112), filed 07/09/2026, with respect to the rejections of claims 18-25 under 35 U.S.C. § 112(b) have been fully considered.
Claim 18: The Examiner finds the arguments regarding the “product and process” indefiniteness persuasive. Therefore, this rejection is withdrawn.
Claim 18: The Examiner notes Applicant has amended to establish an antecedent basis for “the pretreatment” and “the cornea.” Therefore, the rejections are withdrawn.
Claim 22: The Examiner finds the argument persuasive and the rejection is withdrawn.
Claim 24: The Examiner finds the argument partially persuasive. The patterns are now described as “pattern of target points,” which clarifies the indefiniteness issue in the rejection so that the specific rejection is now withdrawn. However, the inclusion of “second” pattern makes it unclear if the pattern of target points in claim 18 is supposed to exist with a separate “second” pattern of target points in claims 23-24 or the pattern of target points in claims 23-24 are supposed to be a more specific feature of the pattern of target points in claim 18 (see new rejection).
Claim 18: The Examiner notes amendments to rewrite the limitation as “wherein the computerized planning device is operably coupled to or incorporated into a laser device,” which is interpreted as requiring the computerized planning device to be coupled to or incorporated into the laser device. However, this does not address the issue with the claim being nominally directed to a “computerized planning device” but repeatedly reciting limitations directed to a treatment apparatus, laser device, control device, a pretreatment of the cornea, and a laser treatment of the cornea. It is unclear whether the identified limitations (below) are supposed to be limitations of the claimed planning device or merely describing the environment in which the planning device is intended to operate.
(1) a laser device of a treatment apparatus that facilitates refractive correction of an eye after a refractive pretreatment, or after refractive correction of an eye that includes the refractive pretreatment (defines the intended use of the laser device)
(2) wherein the pretreatment includes removal of parts of the cornea of the eye by way of producing at least one interface between parts of the cornea (nothing expressly performed by the planning device, defines result of pretreatment)
(3) and the laser device is configured to modify the cornea of the eye by radiating in a pulsed laser beam and the treatment apparatus comprises a control device that controls the laser device (nothing expressly performed by the planning device)
(4) wherein the control device is configured to control the laser device to focus the laser beam on target points of the cornea and to modify the cornea by application of photodisruption (nothing expressly performed by the planning device)
The structure of claim 26 and the accompanying description in the specification suggests the computerized planning device is a component of the control device, which is a component of the treatment apparatus. Therefore, the above limitations are given little patentable weight without a direct connection to the planning device. These limitations can be amended to include the relation to the planning device (e.g. the computerized planning device is configured to transmit target points to a control device which is configured to […]). Consider the subsequent limitation:
(5) the planning device is configured to determine at least one three-dimensional pattern of target points of the cornea for a refractive correction of the eye treated by the pretreatment by the radiating of the pulsed laser beam to cause intrastromal photodisruption of a region of the cornea predefined by the pattern of target points thereby causing a change in volume of the cornea
This defines the actual configuration of the planning device in the context of the treatment environment with the pretreatment and photodistruption for a laser. Applicant has not amended the identified limitations (1)-(4) to positively recite a feature of the planning device and the identified limitations (1)-(4) do not provide patentable weight in describing the planning device. Duplicating the planning device prior art mapping from limitation (5) into limitations (1)-(4) runs the risk of obfuscating what is actually being claimed in claim 18. If the intention was for the treatment apparatus to be examined rather than the computerized planning device, it is unclear why the invention in claim 26 was not elected instead during the restriction process. Therefore, Applicant’s arguments are not found persuasive and the rejection is maintained.
The positively recited features of amended claim 18 are:
A computerized planning device including a processor and a memory that generates control data for a laser device of a treatment apparatus:
• wherein the computerized planning device is operably coupled to or incorporated into a laser device
• wherein: the planning device is configured to determine at least one three-dimensional pattern of target points of the cornea for a refractive correction of the eye treated by the pretreatment by the radiating of the pulsed laser beam to cause intrastromal photodisruption of a region of the cornea predefined by the pattern of target points thereby causing a change in volume of the cornea
• wherein the planning device is configured to determine, for the refractive correction of the eye after the pretreatment, the pattern of target points in such a way that, during the refractive correction, the pattern of target points causes a gas volume that arises as a result of photodisruption to be absorbed in at least one interface produced in the pretreatment.
Applicant’s arguments, see Remarks page 16-18 (35 U.S.C. § 101), filed 07/09/2026, with respect to the rejections of claims 15-23 under 35 U.S.C. § 101 have been fully considered. Applicant’s arguments for the eligibility of the device as being more than a signal per se are persuasive. Therefore, the portions of the rejections pertaining to this argument are withdrawn. However, the planning device’s determination of target points or a pattern of target points could be a mental process because the laser device is not required in the claim language. The planning device makes a determination of the target points where any movement of data would be the insignificant extra-solution activity of data transmission. Therefore, the “mental processes” portion of the 101 rejection is maintained.
Applicant’s arguments, see Remarks pages 19-22 (35 U.S.C. § 102), filed 07/09/2026, with respect to the rejections of claims 18-19 and 21-22 under 35 U.S.C. § 102 have been fully considered. Regarding independent claim 18, Applicant argues:
Nothing in the cited prior art makes clear that the missing descriptive matter is necessarily present in Sedky or Bissmann as required by law. Referring to claim 19, in which these limitations were previously recited, the Office Action rejected claim 19 as being anticipated by Sedky and asserts that the formation and stromal deposition of the gas produced by the laser application is an inherent result of the laser incision process, citing "Sedky" as evidenced by "Bissmann," paragraph [0011]. However, in paragraph [0011] of Bissmann cited in the Office Action does not disclose or suggest the absorption of the gas into a pre-existing interface created by a pre-treatment, nor does it disclose the determination of target points for a post-treatment to achieve absorption of the gas into the interface. Paragraph [0011] is reproduced below. While this passage discloses the formation of an optically opaque bubble layer (OBL) in some circumstances, as a disadvantageous occurrence, it makes no suggestion of absorption of the gases in the bubbles that form the OBL.
The Office Action does not present evidence that the missing descriptive matter is necessarily present in Sedky or Bissmann let alone that the missing descriptive matter would be recognized by those of ordinary skill in the art. Therefore, amended claim 18 is not rendered unpatentable as anticipated or obvious by Sedky as evidenced by Bissmann. The Office Action also does not present evidence that these limitations are disclosed or suggested in view of the other documents cited in the Office Action. Applicant respectfully requests that the Examiner withdraw the rejection.
This argument is not persuasive. The limitation in question is:
wherein the planning device is configured to determine, for the refractive correction of the eye after the pretreatment, the pattern of target points in such a way that, during the refractive correction, the pattern of target points causes a gas volume that arises as a result of photodisruption to be absorbed in at least one interface produced in the pretreatment.
Sedky discloses the new incision following the pattern of target points is connected to the pretreatment interface ([0056], [0057]). The plasma bubble generated by the pulse radiation is discussed with its relevance to a tissue separating function ([0031]). Bissman is merely cited as a connection establishing that a gas bubble is routinely formed in the stromal tissue ([0005]) and in tissue near the laser incision site ([0011]) during the process. The above limitation merely states the pattern of the laser incision causes gas to be generated, which is absorbed in the existing interface. Based on the prior art, gas bubbles would routinely be present in tissue in proximity to the new incision, where the new incision pattern is connected to the existing interface. The Applicant appears to suggest a positive role for the gas in the existing interface (perhaps gas is being used to create tissue separation along and reusing the old interface or target points must overlap points on the old interface?) and that the gas is being guided via an undisclosed mechanism, but nothing further is described beyond gas being absorbed by the interface boundary between tissue. This makes it difficult to ascribe a more specific interpretation to the claim beyond gas generated from adjacent laser treatment is present in the interface.
Applicant’s arguments, see Remarks page 22 (35 U.S.C. § 103), filed 07/09/2026, with respect to the rejections of claims 20 and 23-25 under 35 U.S.C. § 103 have been fully considered. Regarding dependent claims 20 and 23-25, Applicant argues:
Amended claim 18 should be patentable for the reasons discussed above. Claim 20 is dependent from claim 18. The Office Action does not present evidence that the limitations lacking in Sedky and Bissmann are disclosed or suggested by Sluyterman Van Langeweyde. Accordingly, claim 20 should be patentable at least by virtue of its dependency on patentable base claim 18. The Office Action rejected claims 23-25 as being unpatentable over Sedky in view of Wiechmann (US 2008/0319428). Applicant respectfully traverses the rejection. Claims 23-25 depend on claim 18 which as discussed above should be patentable. The Office Action does not present evidence that Wiechmann discloses or suggests the limitations lacking in Sedky. Accordingly claims 23-25 should be patentable at least by virtue of their dependency upon a patentable base claim. Applicant respectfully requests that the Examiner withdraw the rejections.
This argument is not persuasive. The rejection of claim 18 was maintained, so the rejections of claims 20 and 23-25 would similarly be maintained based on the arguments presented above.
Summary: The prior art rejections for claims 18-25 are maintained. The 112(b) rejection of claim 18 (and dependent claims) is maintained while new 112(b) rejections of claims 23-24 are added based on amendments.
Claim Objections
The following claims are objected to because of the following informalities:
• Claims 18: Adding a comma to “pattern of target points thereby causing a change in volume of the cornea” makes the limitation more understandable, thereby making it “pattern of target points, thereby causing a change in volume of the cornea”.
Appropriate correction is required.
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 18-25 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.
Claim 18: In the preamble, claim 18 is directed to a computerized planning device. However, the claim also contains descriptions of elements which are not part of the planning device such as the pretreatment (previous surgery), laser device, and control device for the laser. Because the pretreatment, laser device, and control device are not claimed as structural components of the planning system, the following limitations do not have patentable weight as part of claim 18’s planning device.
(1) a laser device of a treatment apparatus that facilitates refractive correction of an eye after a refractive pretreatment, or after refractive correction of an eye that includes the refractive pretreatment (defines the intended use of the laser device)
(2) wherein the pretreatment includes removal of parts of the cornea of the eye by way of producing at least one interface between parts of the cornea (nothing expressly performed by the planning device, defines result of pretreatment)
(3) and the laser device is configured to modify the cornea of the eye by radiating in a pulsed laser beam and the treatment apparatus comprises a control device that controls the laser device (nothing expressly performed by the planning device)
(4) wherein the control device is configured to control the laser device to focus the laser beam on target points of the cornea and to modify the cornea by application of photodisruption (nothing expressly performed by the planning device and is unclear how the control device relates to the planning device based on the claim language)
The claim remains indefinite because the structural scope of the computerized planning device is unclear. Claim 18 is currently interpreted as being directed to the planning device which generates target points for a laser device which interacts with a pretreatment and does not contain the pretreatment, laser device, or control device.
Claims 23-24: The inclusion of “second” pattern makes it unclear if the pattern of target points in claim 18 is supposed to exist concurrently with the separate “second” set of target points in claims 23-24 (i.e. are the first set of coordinates related to identifying the pretreatment and the second set of coordinates related to the current treatment?) or if the pattern of target points in claims 23-24 are supposed to be a more specific feature of the pattern of target points in claim 18.
Claims 19-22 and 25 are rejected for being dependent on rejected claims.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Section 33(a) of the America Invents Act reads as follows:
Notwithstanding any other provision of law, no patent may issue on a claim directed to or encompassing a human organism.
Claims 18-25 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea (a mental process) without significantly more.
Step 1
The invention in claims 18-25 is to a statutory subject matter as the claims recite a planning device for generating control data for a laser treatment device.
Step 2A, Prong One
Claim 18 recites abstract ideas in the form of mental processes that "can be performed in the human mind, or by a human using a pen and paper" (see MPEP 2106.04(a)(2) subsection (III)).
Regarding Claim 18, the limitations “configured to determine at least one three-dimensional pattern of target points of the cornea for a refractive correction of the eye treated by the pretreatment” and “wherein the planning device is configured to determine, for the refractive correction of the eye after the pretreatment, the pattern of target points in such a way that, during the refractive correction, the pattern of target points causes a gas volume that arises as a result of photodisruption to be absorbed in at least one interface produced in the pretreatment” could be performed by the human mind.
Step 2A, Prong Two
For the claim 18 limitations from Step 2A Prong One, the claims do not recite additional elements that integrate the judicial exceptions into a practical application. The mental processes (determination of target points and patterns of target points) are not integrated into a practical application as the determination result is merely used to produce target coordinates which could be used for a laser treatment. The laser treatment element (“by the radiating of the pulsed laser beam to cause intrastromal photodisruption of a region of the cornea predefined by the pattern of target points thereby causing a change in volume of the cornea”) is not claimed as part of the planning device.
Dependent claims 19-25 further define the abstract idea of mentally making determinations of the pattern of target coordinates.
Step 2B
For the claim 18 limitations from Step 2A Prong One, the claims do not recite additional elements that are sufficient to amount to significantly more than the judicial exception. The mental processes (determination of target points and patterns of target points) are merely used to produce target coordinates which could be used for a laser treatment where the laser treatment element is not claimed as part of the planning device.
Dependent claims 19-25 further define the abstract idea of mentally making determinations of the pattern of target coordinates.
Therefore, claims 18-25 are directed to a judicial exception, as abstract ideas (mathematical concepts), without significantly more.
Claim Rejections - 35 USC § 102
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 18-19 and 21-22 are rejected under U.S.C 102(a)(1) as being anticipated by Sedky (DE 102017207529 A1), as evidenced by Bissmann (US 2011/0251601 A1). Note a machine translation via Espacenet (https://worldwide.espacenet.com) is used to interpret the disclosure in Sedky - see previously attached for copy of translation.
Regarding Claim 18, Sedky discloses a computerized planning device ([0001]) including a processor and a memory ([0071] – the computer program implemented on a corresponding computer) that generates control data for a laser device of a treatment apparatus ([0001], [0042] – a new lenticule to remove must be calculated after a previous SMILE treatment) that facilitates refractive correction of an eye after a refractive pretreatment, or after refractive correction of an eye that includes the refractive pretreatment (defines the intended use of the laser device - note the pretreatment is discussed with respect to the planning device later in the claim)
• wherein the pretreatment includes removal of parts of the cornea of the eye by way of producing at least one interface between parts of the cornea (nothing expressly performed by the planning device, defines the result of the pretreatment - note the pretreatment is discussed with respect to the planning device later in the claim);
• wherein the computerized planning device is operably coupled to or incorporated into a laser device (Fig. 1, [0027], [0038] - the planning device 16, contained in control unit 11, is operably coupled to laser device 4 via connecting line 12) and the laser device is configured to modify the cornea of the eye by radiating in a pulsed laser beam and the treatment apparatus comprises a control device that controls the laser device (nothing expressly performed by the planning device – note the planning device is said to provide target points to the device radiating the pulsed laser beam later in the claim); and
• wherein the control device is configured to control the laser device to focus the laser beam on target points of the cornea and to modify the cornea by application of photodisruption (nothing expressly performed by the planning device - how does the control device relate to the planning device in the claim language?);
• wherein:
- the planning device is configured to determine at least one three-dimensional pattern of target points of the cornea for a refractive correction of the eye ([0035] – planning device creates target points) treated by the pretreatment ([0010] – correcting a previous treatment) by the radiating of the pulsed laser beam to cause intrastromal photodisruption of a region of the cornea predefined by the pattern of target points ([0033] – “As already mentioned, the laser beam 6 is focused in a focus 19 in the cornea 19, and the position of the focus 19 in the cornea is adjusted so that energy from laser radiation pulses focusing at different points is introduced into the tissue of the cornea 17 to create the cutting surface”; photodisruption would be understood as the cutting mechanism of the laser beam) thereby causing a change in volume of the cornea ([0042] – volume changes occur as a volume is removed from the corneal tissue).
- wherein the planning device is configured to determine, for the refractive correction of the eye after the pretreatment, the pattern of target points ([0035] – target points used to determine laser application) in such a way that, during the refractive correction, the pattern of target points causes plasma bubbles to ([0031]) be produced in the pretreatment ([0056-0057] – by either variant presented, the existing interface from the pretreatment is defined in relation and connected to the new/planned incision). The existing interface being connected to (intersecting with) the new incision allows bubbles generated by the laser energy to interact with the existing interface.
Sedky discloses the formation of plasma bubbles due to application of pulsed laser energy at a focus area with its relevance to a tissue separating function ([0031]). Sedky does not explicitly disclose a gas volume being absorbed in an interface. Bissmann discusses how the application of a femtosecond laser during refractive correction produces gas bubble formation in the stromal tissue ([0005]) and that a gas layer forms near the site of the laser incision ([0011]). This suggests the gas formation and deposition in the stroma is an inherent result of the laser incision process.
Regarding Claim 19, the computerized planning device according to Claim 18 is anticipated by Sedky, as indicated hereinabove. Sedky discloses: the planning device is further configured to determine, for the refractive correction of the eye that includes the pretreatment, at least one interface pattern ([0056] – the pretreatment creates an interface) of target points of the cornea ([0035] – target points are used to determine laser application) which, in the pretreatment of the cornea, brings about the production of at least one interface between parts of the cornea ([0056-0057] – the pretreatment creates an interface which is included in the planning of the new incision) where plasma bubbles are produced as a result of photodisruption ([0031]). The existing interface being connected to the new incision allows bubbles generated by the laser energy to interact with the existing interface.
Sedky discloses the formation of plasma bubbles due to application of pulsed laser energy at a focus area with its relevance to a tissue separating function ([0031]). Sedky does not explicitly disclose a gas volume being absorbed in an interface. Bissmann discusses how the application of a femtosecond laser during refractive correction produces gas bubble formation in the stromal tissue ([0005]) and that a gas layer forms near the site of the laser incision ([0011]). This suggests the gas formation and deposition in the stroma is an inherent result of the laser incision process.
Regarding Claim 21, the computerized planning device according to Claim 18 is anticipated by Sedky, as indicated hereinabove. Sedky discloses:
the planning device is configured to determine the pattern of target points ([0035] – target points used to determine the laser application) in a position adjacent to or adjoining the interface between parts of the cornea which is produced by the pretreatment ([0056-0057] – by either variant presented, the existing interface from the pretreatment is defined in relation and connected to the new/planned incision); or
wherein the planning device is configured to determine a three-dimensional shape of the pattern of target points ([0035] – planning device creates target points, [0033] – target points serve as three-dimensional laser coordinates) which causes plasma bubbles to be generated ([0031]); or
wherein the planning device comprises an interface for receiving data about the interface between parts of the cornea which is produced by the pretreatment ([0039] – data sent to the interface of the planning device for receiving data, where interface information is calculated in [0060-0061]).
Note the claim structure is interpreted as only requiring one of the numbered limitations because of the use of “or” between limitations. Sedky discloses the formation of plasma bubbles due to application of pulsed laser energy at a focus area with its relevance to a tissue separating function ([0031]). Sedky does not explicitly disclose at least one part of a gas volume that arises as a result of the photodisruption to be guided away into the interface. Bissmann discusses how the application of a femtosecond laser during refractive correction produces gas bubble formation in the stromal tissue ([0005]) and that a gas layer forms near the site of the laser incision ([0011]). This suggests the gas formation and deposition in the stroma is an inherent result of the laser incision process.
Regarding Claim 22, the computerized planning device according to Claim 18 is anticipated by Sedky, as indicated hereinabove. Sedky further discloses:
1) the interface is produced by a pretreatment by application of photodisruption, a refractive pretreatment, by a lenticule extraction pretreatment, a LASIK pretreatment or a SMILE pretreatment (nothing expressly performed by the planning device and this defines the result of the pretreatment; part of an “or” statement where the alternative is describing the planning device); or
2) wherein the planning device is configured to determine the pattern of target points ([0035] - target points) in a position anterior to the interface ([0057] – “second variant of the incision technique involves creating a secondary lenticule incision above (anterior to) the existing interface and connecting it to the existing interface by means of a lenticule margin incision”).
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C.
103 are summarized as follows:
Determining the scope and contents of the prior art.
Ascertaining the differences between the prior art and the claims at issue
Resolving the level of ordinary skill in the pertinent art.
Considering objective evidence present in the application indicating obviousness or non-obviousness.
Claim 20 is rejected under U.S.C 103 as being unpatentable over Sedky (DE 102017207529 A1) in view of Sluyterman Van Langeweyde (US 2014/0288538 A1), as evidenced by Bissmann (US PG Pub 2011/0251601 A1). Note a machine translation via Espacenet (https://worldwide.espacenet.com) is used to interpret the disclosure in Sedky - see previously attached for copy of translation.
Regarding Claim 20, the computerized planning device according to Claim 18 is anticipated by Sedky, as indicated hereinabove. Sedky discloses corrective refractive treatment of the eye ([0001]) with target points ([0035]). Sedky does not disclose:
(1) the planning device is configured to determine the pattern of target points in such a way that brings about a refractive correction of the eye treated by the pretreatment of more than 0 and less than 1.5 diopters; or
(2) wherein the planning device is configured to determine a three-dimensional shape of the pattern of target points which causes at least a portion of a gas volume that arises as a result of the photodisruption to be guided away through micro-perforations in the cornea.
Note the claim structure is interpreted as only requiring one of the numbered limitations because of the use of “or” between limitations. Addressing limitation (1):
Sluyterman van Langeweyde, in the same field of endeavor of corrective eye treatment using a laser device ([0002]), teaches the amount of correction (in diopters) needed is related to the available thickness of the cornea (Figure 13, [0086]) where 1-1.5 diopters is explicitly plotted on the graph.
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to alter Sedky’s planning device for a refractive correction by incorporating the mathematical relationship between diopter correction and corneal thickness in Sluyterman van Langeweyde. This would have been obvious because both Sedky and Sluyterman van Langeweyde discuss corrective eye treatments using lasers and Sluyterman van Langeweyde provides a deterministic relationship between corneal thickness, which is altered by the treatment, and the desired correction. Therefore, a person of ordinary skill in the art would be motivated to improve the device of Sedky by incorporating the mathematical relationship between diopter correction and corneal thickness in Sluyterman van Langeweyde to determine the necessary correction during surgery in Sedky. MPEP 2144.05 states “In the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” There is no evidence of an “unexpected result or criticality” on the analysis from the discussed range interpretations.
Claims 23-25 are rejected under U.S.C 103 as being unpatentable over Sedky (DE 102017207529 A1) in view of Wiechmann (US 2008/0319428 A1), as evidenced by Bissmann (US 2011/0251601 A1). Note a machine translation via Espacenet (https://worldwide.espacenet.com) is used to interpret the disclosure in Sedky - see previously attached for copy of translation.
Regarding Claim 23, the computerized planning device according to Claim 18 is anticipated by Sedky, as indicated hereinabove. Sedky discloses the planning device creates target points for the laser beam ([0033-0035]). However, Sedky does not disclose the planning device is configured to determine the pattern of target points with a plurality of circular planes of target points arranged one over another or with a plurality of ring-shaped series of target points.
Wiechmann, in the same field of endeavor of corrective eye treatment using a laser device ([0002]), teaches target points which are arranged along a curved spiral path ([0035]) where each turn of the spiral defines a circular plane with circular coordinates ([0175]). This spiral arrangement is described as being advantageous because it facilitates continuous focus shifting in the laser ([0103]). Wiechmann teaches this technique of using three-dimensional target points arranged in a spiral is known in the literature ([0173]).
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to alter Sedky’s planning device for refractive correction by incorporating the target points arranged on a spiral coordinate system in Wiechmann. This would have been obvious because both Sedky and Wiechmann discuss corrective eye treatments using lasers with coordinates defined by target points and Wiechmann provides target point geometry in a spiral shape which facilitates continuous focus shifting during the laser procedure. Therefore, a person of ordinary skill in the art would be motivated to improve the device of Sedky by incorporating the target points arranged on a spiral coordinate system in Wiechmann.
Regarding Claim 24, the computerized planning device according to Claim 23 is obvious over Sedky in view of Wiechmann, as indicated hereinabove. Sedky discloses the planning device creates target points for the laser beam ([0033-0035]). Additionally, the planning module takes into account making a connection with a previous interface created during the pretreatment ([0056]). However, Sedky does not disclose:
(1) the planning device is configured to determine the circular planes of target points arranged one over another with a position in the cornea, a shape or a number of which bring about the refractive correction of the eye treated by the pretreatment; or
(2) wherein the planning device is configured to determine the pattern with a plurality of ring- shaped series of target points arranged next to one another which form a first connection structure to the interface; or
(3) wherein the planning device is configured to determine the pattern with a plurality of ring- shaped series of target points arranged next to one another which form a second connection structure between the circular planes of target points or to the first connection structure to the interface.
Note the claim structure is interpreted as only requiring one of the numbered limitations because of the use of “or” between limitations. All of these limitations describe ring-shaped series of target points which are used to target the laser to perform a particular task.
As stated in claim 23, the proposed combination with Wiechmann further yields target points which are arranged along a curved spiral path ([0035]) where each turn of the spiral defines a circular plane with circular coordinates ([0175]). This spiral arrangement is described as being advantageous because it facilitates the continuous focus shifting in the laser ([0103]). Wiechmann teaches this technique of using three-dimensional target points arranged in a spiral is known in the literature ([0173]).
Regarding Claim 25, the computerized planning device according to Claim 23 is obvious over Sedky in view of Wiechmann, as indicated hereinabove. Sedky further discloses:
1) the planning device is configured to determine the control data for the laser device in such a way that, in order to form the first connection structure, the target points are produced ([0033-0035] – target points for where the incisions are made) in an order from posterior to the interface to anterior to the interface ([0056] – “first variant of the incision technique provides that a secondary lenticule incision 23 is made below (posterior) the existing interface (cap incision 22 of the first treatment) and is connected to the existing interface by the lenticule margin incision 25”; [0057] – “A second variant of the incision technique involves creating a secondary lenticule incision above (anterior to) the existing interface and connecting it to the existing interface by means of a lenticule margin incision”).
However, Sedky does not disclose: 1) a ring-shaped series of target points;
2) wherein the planning device is configured to determine the control data for the laser device in such a way that the plurality of circular planes of target points arranged one over another are produced in an order proceeding from the plane closest to the interface; or
3) wherein the planning device is configured to determine the control data for the laser device in such a way that the position, the shape or the number of circular planes of target points arranged one over another are produced by blocking out laser pulses.
Note the claim structure is interpreted as only requiring one of the numbered limitations because of the use of “or” between limitations. When examining limitation 1:
As stated in claim 23, the proposed combination with Wiechmann further yields target points which are arranged along a curved spiral path ([0035]) where each turn of the spiral defines a circular plane with circular coordinates ([0175]). This spiral arrangement is described as being advantageous because it facilitates the continuous focus shifting in the laser ([0103]). Wiechmann teaches this technique of using three-dimensional target points arranged in a spiral is known in the literature ([0173]).
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.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Examiner Benjamin Schmitt, whose telephone number is 703-756-1345. The examiner can normally be reached on Monday-Friday from 9:00 am to 5:00 pm.
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/Benjamin A. Schmitt/
Examiner
Art Unit 3796
/LYNSEY C Eiseman/Primary Examiner, Art Unit 3796
