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 .
Claim Objections
Claim 29 objected to because of the following informalities: In claim 29, it appears the word “position” in line 2 should be “positioned”. 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 21-26 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 27-32 of U.S. Patent No. 12,078,724. Although the claims at issue are not identical, they are not patentably distinct from each other because the differences between the claims of the instant application and the patented claims are not patentably distinct as shown by the prior art rejections below.
18/774,314 (Differences highlighted in BOLD)
17/746,530 (Differences highlighted in BOLD)
21. A surgical visualization system, comprising:
an image sensor;
a display; and
a control circuit communicatively coupled to the image sensor and the display, wherein the control circuit is to:
receive imaging data indicative of a visible structure and a concealed structure, wherein the concealed structure is concealed below the visible structure;
receive intraoperative video data indicative of the visible structure;
provide a video signal of the visible structure to the display based on the intraoperative video data indicative of the visible structure;
determine, intraoperatively, a distance with respect to the concealed structure; and
provide, intraoperatively, an indicator indicative of the distance to the display, wherein the video signal of the visible structure and the indicator indicative of the distance are concurrently depicted on the display.
22. (New) The surgical visualization system of Claim 21, wherein the distance with respect to the concealed structure comprises a distance between the concealed structure and a surgical end effector of a surgical instrument.
23. (New) The surgical visualization system of Claim 22, wherein the distance between the concealed structure and the surgical end effector comprises a minimum distance between the concealed structure and the surgical end effector.
24. (New) The surgical visualization system of Claim 22, wherein the distance between the concealed structure and the surgical end effector comprises a distance between a particular portion of the concealed structure and the surgical end effector.
25. (New) The surgical visualization system of Claim 21, wherein the indicator comprises an icon and a proximity scale, wherein providing the indicator on the display comprises positioning the icon along the proximity scale, and wherein the position of the indicator along the proximity scale corresponds to the distance with respect to the concealed structure.
26. (New) The surgical visualization system of Claim 21, wherein the control circuit is further to: provide a zoomed-in field of view of the video signal on the display, wherein the concealed structure is positioned outside the zoomed-in field of view; and provide an indication of the position of the concealed structure outside the zoomed-in field of view.
29. (Previously Presented) A surgical visualization system, comprising:
an image sensor;
a display;
a control circuit communicatively coupled to the image sensor and the display, wherein the control circuit is to:
receive an input corresponding to a concealed structure selected for tracking, wherein the concealed structure is concealed below a surface of a visible structure;
receive information from the image sensor related to a position of the concealed structure;
provide a live-feed video signal of the visible structure to the display;
overlay a live-feed video signal of the concealed structure on top of the live-feed video signal of the visible structure on the display; and
determine a distance with respect to the concealed structure; and
provide an indicator on the display indicative of the determined distance.
30. (Previously Presented) The surgical visualization system of Claim 29, wherein the distance with respect to the concealed structure comprises a distance between the concealed structure and a surgical end effector of a surgical instrument, wherein the surgical end effector comprises a first jaw and a second jaw.
31. (Previously Presented) The surgical visualization system of Claim 30, wherein the distance between the concealed structure and the surgical end effector comprises a minimum distance between the concealed structure and the surgical end effector.
32. (Previously Presented) The surgical visualization system of Claim 30, wherein the received input corresponds to a particular portion of the concealed structure selected for tracking, and wherein the distance between the concealed structure and the surgical end effector comprises a distance between the particular portion of the concealed structure and the surgical end effector.
27. (Previously Presented) The surgical visualization system of Claim 21, wherein the control circuit is further to: provide a proximity scale on a portion of the display; and provide an indicator along the proximity scale, wherein the position of the indicator along the proximity scale corresponds to the determined distance with respect to the hidden structure.
28. (Previously Presented) The surgical visualization system of Claim 21, wherein the control circuit is further to: provide a zoomed-in portion of the live-feed video signal of the visible structure on the display; and provide an indication of the position of the hidden structure outside of the zoomed-in portion.
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 25 and 37 recite the limitation "the position of the indicator" in line 3. There is insufficient antecedent basis for this limitation in the claim. The examiner notes the examiner is interpreting this limitation to mean the position of the “icon” along the proximity scale corresponds to the distance with respect to the concealed structure, as opposed to the position of the indicator.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(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.
Claim(s) 21-25, 29, and 32-37 is/are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Tanaka (US 2016/0038004).
Regarding claims 21, 32, and 33, Tanaka discloses a surgical visualization system (FIG. 2), comprising:
an image sensor ([0047], imaging section 200 comprises an image sensor);
a display (FIG. 2, 400); and
a control circuit (300) communicatively coupled to the image sensor and the display (see FIG. 2), wherein the control circuit is to:
receive imaging data (FIG. 7, image 10) indicative of a visible structure (FIG. 7, blood vessel 11 is visible while blocking deep blood vessel 14; [0067], [0075], the distance to the deep blood vessels 14 which is blocked by surface blood vessel 11 and layers of tissue is determined; [0118], the distance to the blood vessel 11 which is blocked by layers of tissue is determined) and a concealed structure ([0039], [0043], a blood vessel 11, 13, 14, hidden within a layer of tissue and other blood vessels at a certain depth; [0065], a blood vessel situated in a deep area of tissue is imaged, FIG. 7, deep area G2 (14) is concealed by surface tissue 11; [0070], fluorescence imaging is used for imaging hidden deep tissue areas), wherein the concealed structure is concealed below the visible structure ([0065], [0071], a blood vessel situated in a deep area of tissue, FIG. 7, deep area G2 (14) is concealed by surface tissue 11; [0070], fluorescence imaging is used for imaging hidden deep tissue areas);
receive intraoperative video data (FIG. 7, image 10; FIG. 8, the output from processor 300) indicative of the visible structure (Figs. 4 and 7, an image 10 of tissue which blocks blood vessels 11, 13, and 14 is presented; FIG. 7, surface blood vessel 11 is displayed);
provide a video signal of the visible structure to the display based on the intraoperative video data indicative of the visible structure (Figs. 4 and 7, an image 10 of tissue which blocks blood vessels 11, 13, and 14 is presented, FIG. 7, surface blood vessel 11 which partially blocks a deeper blood vessel 14 is displayed);
determine, intraoperatively, a distance with respect to the concealed structure ([0067], [0075], the distance to the deep blood vessel 14 which is blocked by surface blood vessel 11 and layers of tissue is determined; [0118], the distance to the blood vessel 11 which is blocked by layers of tissue is determined); and
provide, intraoperatively, an indicator (FIG. 11, [0118], bars (30 and 40) indicate a distance to a blood vessel) indicative of the distance to the display ([0121], distance information for the blood vessel is displayed), wherein the video signal of the visible structure and the indicator indicative of the distance are concurrently depicted on the display ([0076] a user is notified about a degree of closeness of a tool and a blood vessel, which is derived from the distance information; FIG. 11, [0119], The depth of the blood vessel acquired using the special light (i.e. the deep tissue area 13, 14. See [0076]) may be displayed in addition to the position of the blood vessel (see FIG. 11), the examiner notes in FIG. 11, the visible surface blood vessel 11 is displayed as well as the surround layer of tissue)).
Regarding claims 22 and 34, Tanaka discloses wherein the distance with respect to the concealed structure comprises a distance between the concealed structure and a surgical end effector of a surgical instrument ([0083], [0090], the distance from the tip of a knife to the blood vessel is determined).
Regarding claims 23 and 35, Tanaka discloses wherein the distance between the concealed structure and the surgical end effector comprises a minimum distance between the concealed structure and the surgical end effector ([0082], [0124], [0127], notification of the degree of relation is stopped when the distance between tool and the blood vessel is equal to or shorter than a given distance).
Regarding claims 24 and 36, Tanaka discloses wherein the distance between the concealed structure and the surgical end effector comprises a distance between a particular portion of the concealed structure and the surgical end effector ([0037], [0038], [0127], the distance between a specific part of a blood vessel, such as the closest portion of the blood vessel, and a knife is determined).
Regarding claims 25 and 37, Tanaka discloses wherein the indicator (FIG. 11, [0118], bars (30 and 40) indicate a distance to a blood vessel) comprises an icon (FIG. 11, 33, 43) and a proximity scale (FIG. 11, [0118], bars (30 and 40) indicate a distance to a blood vessel), wherein providing the indicator on the display comprises positioning the icon (33, 43) along the proximity scale (30, 40), and wherein the position of the indicator along the proximity scale corresponds to the distance with respect to the concealed structure (FIG. 11, [0118], bars (30 and 40) indicate a distance to a blood vessel; please see the 35 USC 112(b) rejection regarding this limitation above).
Regarding claim 29, Tanaka discloses wherein the image sensor is position on a first side of a surface of the visible structure, wherein the concealed structure is positioned on a second side of the surface of the visible structure, and wherein the second side is opposite the first side ([0071], special light projected to a fist side of a tissue or membrane is used to penetrate layers to image blood vessels are different depths).
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.
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(s) 27, 30, 31, 38, and 39 is/are rejected under 35 U.S.C. 103 as being unpatentable over Tanaka (US 2016/0038004) in view of Gildenberg (US 2008/0243142).
Regarding claim 27, Tanaka discloses the surgical visualization system of claim 21 (see claim 21 above). Tanaka further discloses performing three-dimensional imaging ([0039], stereo imaging is performed).
Tanaka is silent about wherein the image sensor comprises a three-dimensional camera.
Gildenberg from the same or similar field of endeavor discloses wherein the image sensor comprises a three-dimensional camera ([0015], [0024], a stereo image camera is used during a surgical procedure).
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 Gildenberg into the teachings of Tanaka for performing depth imaging and analysis during a surgical procedure.
Regarding claims 30, 31, 38, and 39, Tanaka discloses the surgical visualization system of claim 21 (see claim 21 above).
Tanaka is silent about wherein the imaging data comprises pre-operative imaging data; and wherein the control circuit further comprises: an integration circuit to integrate the pre-operative imaging data with the intraoperative video data; and an image overlay circuit to overlay the pre-operative imaging data on top of the intraoperative video data.
Gildenberg from the same or similar field of endeavor discloses wherein the imaging data comprises pre-operative imaging data ([0049], a pre operative scan is overlayed with a 3D view of a surgical site); and wherein the control circuit further comprises: an integration circuit to integrate the pre-operative imaging data with the intraoperative video data ([0049], a pre operative scan is overlayed with a 3D view of a surgical site); and an image overlay circuit to overlay the pre-operative imaging data on top of the intraoperative video data ([0049], a pre operative scan is overlayed with a 3D view of a surgical site).
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 Gildenberg into the teachings of Tanaka for better guiding of a surgeon during a surgical procedure.
Claim(s) 28 is/are rejected under 35 U.S.C. 103 as being unpatentable over Tanaka (US 2016/0038004) in view of Dacosta et al. (Dacosta) (US 2011/0117025).
Regarding claim 28, Tanaka discloses the surgical visualization system of Claim 21 (See claim 21 above). Tanaka further discloses wherein the control circuit is further to determine the distance with respect to the concealed structure (see claim 21 above).
Tanaka is silent about triangulating the distance with respect to the concealed structure.
Dacosta from the same or similar field of endeavor discloses triangulating the distance with respect to a structure ([0073], [0101], triangulation is used to determine the distance between an imager and an object during a surgical procedure).
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 process of performing triangulation for determining a distance to an object as taught by Dacosta into the process of determining a distance to a hidden object as taught by Tanaka for a more accurate distance determination.
Allowable Subject Matter
Claim 26 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.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Kimchy et al. (Kimchy) (US 2011/0077505) ([0043], An operator (not shown) can easily thus locate a specific location in a bony structure, such as an aperture, hidden under obscuring soft tissue layer).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JEFFERY A WILLIAMS whose telephone number is (571)270-7579. The examiner can normally be reached M-F 8:00-5:00.
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, Sath Perungavoor can be reached at 571-272-7455. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JEFFERY A WILLIAMS/ Primary Examiner, Art Unit 2488
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