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 .
Specification
The abstract of the disclosure is objected to because there is additional text at the bottom that includes “Fig. 1” and a document number. 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.
Claim 4 recites the limitation "the range" in line 3. There is insufficient antecedent basis for this limitation in the claim.
Claim 10 recites the limitation "the separation of a corneal volume" in line 2. There is insufficient antecedent basis for this limitation in the claim.
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.
Claim 12 is rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim does not fall within at least one of the four categories of patent eligible subject matter because the broadest reasonable interpretation of the “computer-readable medium” of claim 12 encompasses signals per se. The specification states that, “the computer-readable medium is for example formed as a data memory, in particular at least partially as a volatile data memory.” It would be well understood by a person of ordinary skill in the art that volatile data memory is transitory. The further recitation of “commands” in claim 12 only serves to limit the content carried by the computer-readable medium. As understood in light of the specification, the broadest reasonable interpretation of claim 12 encompasses signals, which are not one of the four statutory categories of invention. See MPEP 2106.03(I). It is suggested that claim 12 be amended to recite a “non-transitory” computer readable medium to overcome this rejection.
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.
Claims 1, 8-10, and 12 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Arba Mosquera (DE 102021101119 A1).
Regarding claim 1, Arba Mosquera teaches a method (Paragraph 0006, line 1) for
providing control data (Paragraph 0006, lines 1-2 and Paragraph 0035, lines 1-3) for an ophthalmological laser (Fig. 1, Paragraph 0032, lines 1-2) of a treatment apparatus (Fig. 1, Paragraph 0032, line 1) for treating a cornea (Fig. 3, Paragraph 0032, line 4) of an eye (Fig. 3, Paragraph 0032, line 4), wherein the method comprises the following steps performed by a control device (Paragraph 0006, line 4): ascertaining eye parameters from predetermined examination data (Paragraph 0035, lines 4-5); ascertaining a respective diameters for respective optical zones (Paragraph 0018, lines 2-3) depending on the ascertained eye parameters by the control device (Paragraph 0019, lines 1-2), wherein a treatment diameter for treating the cornea is selected from the ascertained diameters of the optical zones (Paragraph 0015, lines 1-3 and 9-11); and providing control data, which includes the selected diameter of the optical zone (OZ) (Paragraph 0015, lines 1-2).
Regarding claim 8, Arba Mosquera teaches the method (Paragraph 0006, line 1)
according to claim 1, further including the following steps: transferring the provided
control data (Paragraph 0015, lines 1-3) to a respective ophthalmological laser (Fig. 1, Paragraph 0032, lines 1-2) of the treatment apparatus (Fig. 1, Paragraph 0032, line 1); and controlling the laser with the control data (Paragraph 0015, lines 1-3).
Regarding claim 9, Arba Mosquera teaches a control device (Paragraph 0006,
line 4), which is configured to perform (Paragraph 0023, lines 3-5) the method (Paragraph 0006, line 1) according to claim 1.
Regarding claim 10, Arba Mosquera teaches a treatment apparatus (Paragraph
0023, line 1) with at least one ophthalmological laser (Paragraph 0023, lines 1-2) for the separation of a corneal volume (Paragraph 0023, line 2) of a human or animal eye (Paragraph 0023, line 3) by optical breakdown (Paragraph 0023, line 3) and at least one control device (Paragraph 0023, lines 3-4) according to claim 9.
Regarding claim 12, Arba Mosquera teaches a computer-readable medium
(Paragraph 0028, line 4) for storing (Paragraph 0028, lines 4-5) a computer program (Paragraph 0028, line 1) thereon, the computer program comprising commands (Paragraph 0028, line 1) which cause a treatment apparatus (Paragraph 0028, line 2) to execute (Paragraph 0028, lines 2-3) the method (Paragraph 0006, line 1) according to claim 1.
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:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Arba Mosquera (DE 102021101119 A1) in view of Schroeder et al. (U.S. PGPub No. 2008/0195086) and Dai (WIPO Pub. No. 2018/156769).
Regarding claim 2, Arba Mosquera teaches the method (Paragraph 0006, line 1) according to claim 1 that includes a step of ascertaining eye parameters (Paragraph 0035, lines 4-5). Arba Mosquera does not teach that the eye parameters include at least one pupil diameter, wherein diameters are provided for the optical zone, which are larger than the at least one pupil diameter.
Schroeder, however, teaches a method for increasing an optical system focal depth using a device (Paragraph 0044, line 1) comprising a refractive laser (Paragraph 0045, lines 1-2). Schroeder teaches that the method includes measuring eye parameters such as the photopic pupil diameter and the mesopic pupil diameter (Fig. 1, Paragraph 0034, lines 3-5). Dai, however, teaches a method of re-profiling a cornea of an eye using a laser eye surgery system (Fig. 1, Paragraph 0048, lines 1-2). Furthermore, Dai teaches that the diameter of the optical zone corresponds to the diameter defined by a maximum pupil size of the eye, such as when the pupil is fully dilated (Paragraph 0075, lines 8-10).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Arba Mosquera to incorporate the teachings of Schroeder and Dai to include that the eye parameters include at least one pupil diameter, wherein diameters are provided for the optical zone, which are larger than the at least one pupil diameter. Doing so would ensure that the diameter of the optic zone would be large enough to accommodate pupil changes in both daylight and dusk conditions, as recognized by Schroeder (Paragraph 0034) and Dai (Paragraph 0075).
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Arba Mosquera (DE 102021101119 A1) in view of and Dai (WIPO Pub. No. 2018/156769) and Shimmick et al. (U.S. Patent No. 6,203,539).
Regarding claim 3, Arba Mosquera teaches the method (Paragraph 0006, line 1) according to claim 1 that includes a step of ascertaining eye parameters (Paragraph 0035, lines 4-5). Arba Mosquera does not teach that a correction type is determined from the eye parameters, wherein for correction types in which a main portion of an ablation is effected in a peripheral position of the cornea, larger diameters for the respective optical zones are ascertained than for correction types in which the main portion of the ablation is effected in a central position of the cornea.
Dai, however, teaches a method of re-profiling a cornea of an eye using a laser eye surgery system (Fig. 1, Paragraph 0048, lines 1-2). Dai teaches that the ablation zone for myopia treatment approaches or exceeds a diameter of 7.5 mm to 8 mm (Paragraph 0098, lines 5-7). Shimmick, however, teaches a method for laser treatment of refractive errors using offset imaging that involves treating hyperopia (Fig. 1-2, Col. 7, lines 6-11). Shimmick further teaches that hyperopia treatment involves positioning the transition zone as far from the optically used portion of the cornea as possible (Col. 11, lines 46-48). It would also be well known by a person of ordinary skill in the art that myopia correction is performed with central ablation, and hyperopia correction is performed with peripheral ablation.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Arba Mosquera to incorporate the teachings of Dai and Shimmick to include that larger diameters for the respective optical zones are ascertained for correction types in which the ablation occurs in a peripheral position of the cornea compared to correction types in a central position of the cornea. Doing so would ensure that ablation is performed in the right location for an identified correction type, as recognized by Dai (Paragraph 0098) and Shimmick (Col. 11).
Claims 4-5 are rejected under 35 U.S.C. 103 as being unpatentable over Arba Mosquera (DE 102021101119 A1) in view of Ruiz et al. (WIPO Pub. No. 00/27324).
Regarding claim 4, Arba Mosquera teaches the method (Paragraph 0006, line 1) according to claim 1 that includes a step of ascertaining eye parameters (Paragraph 0035, lines 4-5). Arba Mosquera does not teach that three diameter ranges are preset, wherein a first diameter range with diameters larger than a first diameter value, a second diameter range with diameters in the range from the first diameter value down to a second diameter value, wherein the first diameter value is larger than the second diameter value, and a third diameter range with diameters smaller than the second diameter value are provided, wherein, depending on the eye parameters, one of the three diameter ranges is set by the control device.
Ruiz, however, teaches a method for performing presbyopia corrective surgery by using a laser system (Page 25, line 10) and control device (Page 19, lines 7-8). Ruiz also teaches that three diameter ranges are preset, wherein a first diameter range with diameters larger than a first diameter value (Page 19, lines 13-14, Subgroup A), a second diameter range with diameters in the range from the first diameter value down to a second diameter value (Page 19, lines 16-22 and Page 23, lines 4-6, Subgroups B and C), wherein the first diameter value is larger than the second diameter value (Page 19, lines 13-14), and a third diameter range with diameters smaller than the second diameter value (Page 19, lines 13-14, Subgroup A) are provided, wherein, depending on the eye parameters, one of the three diameter ranges is set by the control device (Page 20, lines 29-32).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the teachings of Arba Mosquera in view of Ruiz to include three preset diameter ranges, wherein one of three preset diameter ranges is set by the control device. Doing so would ensure that a proper diameter range is selected to treat an astigmatism, for myopia correction, or for hyperopia correction (Page 12, lines 13-14), as recognized by Ruiz.
Regarding claim 5, Arba Mosquera in view of Ruiz discloses the claimed invention of claim 4. Arba Mosquera further discloses the method (Paragraph 0006, line 1) according to claim 4, wherein the first diameter value is 7 mm and the second diameter value is 6.5 mm (Paragraph 0051, lines 5-6). In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (The prior art taught carbon monoxide concentrations of “about 1-5%” while the claim was limited to “more than 5%.” The court held that “about 1-5%” allowed for concentrations slightly above 5% thus the ranges overlapped.) See MPEP § 2144.05(I).
Claims 6-7 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Claim 6 would be allowable for disclosing the method according to claim 4,
wherein the first diameter range is provided if one or more of the following conditions apply:
an astigmatism above a preset astigmatism value;
a second treatment for a myopia correction, after a myopia correction has been performed as a first treatment;
a second treatment for a hyperopia correction, after a hyperopia correction has been performed as a first treatment;
a myopia with a spherical aberration above 0.25 diopters; and
a hyperopia with a spherical aberration below 0 diopters;
wherein the second diameter range is provided if one or more of the following conditions apply:
a first treatment for a myopia correction;
a first treatment for a hyperopia correction;
a second treatment for a myopia correction, after a hyperopia correction has been performed as a first treatment; and
a myopia with a spherical aberration below 0.25 diopters;
a hyperopia with a spherical aberration in a range from 0 diopters to 0.25 diopters;
wherein the third diameter range is provided if one or more of the following conditions apply:
a second treatment for a hyperopia correction, after a myopia correction has been performed as a first treatment; and
a hyperopia with a spherical aberration above 0.25 diopters.
Arba Mosquera, Schroeder, Dai, Shimmick, and Ruiz do not disclose the above conditions for using either the first, second, or third diameter ranges.
Claim 7 would be allowable for disclosing the method according to claim 1,
wherein the following calculations are performed for ascertaining the respective diameters of the optical zone (OZ):
OZ1= 7.6 + 0.15 * min(Sph; Sph + Cyl; 0);
OZ2 = 7.8 - 0.3 * max(Sph; Sph + Cyl; 0); and
OZ3 = 7.5 - 0.25 * abs(Cyl);
wherein OZ1,OZ2, and OZ3 are respective diameter values for the optical zone, Sph is a spherical refraction value and Cyl is a cylindrical refraction value, wherein
a minimum value from OZ1, OZ2 and OZ3 or
a maximum value from OZ1, OZ2 and OZ3 or
an average value from OZ1, OZ2 and OZ3 is selected as the treatment diameter.
Arba Mosquera, Schroeder, Dai, Shimmick, and Ruiz do not disclose the above calculations for the respective optical zones (OZ1, OZ2 and OZ3).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure: WIPO Pub. No. 2024/206234, U.S. PGPub No. 2022/0040001, and U.S. PGPub No. 2024/0307228.
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/H.A.H./Patent Examiner , Art Unit 3796
/CARL H LAYNO/Supervisory Patent Examiner, Art Unit 3796
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