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 .
Double Patenting
The non-statutory 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 non-statutory obviousness-type 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 LongL 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); and 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 a non-statutory double patenting ground provided the conflicting application or patent either is shown to be commonly owned with this application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. A terminal disclaimer signed by the assignee must fully comply with 37 CFR 1.32(b).
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http://www.uspto.gov/patents/process/file/efs/guidance/eTD-info-l.jsp. Claims 20, 29, are rejected on the ground of non-statutory obviousness-type double patenting as being unpatentable over claim 10 of U.S. Patent No. 12,076,196 in view of Lang (U.S. 2022/0087746 A1). Although the conflicting claims are not identical, they are not patentably distinct from each other because the cited claims teach identical or close to identical limitation where it would have been obvious to one of ordinary skill in the art to modify and be able to perform similar functions taught by the limitation in the cited claims on the two applications.
The following table illustrates the conflicting claim pairs:
Current Application
(18/780,095)
20
29
Patent (12,076,196)
10
10
The following table illustrates a comparison of independent claim 20, 29 of the present application 18/820,198 against independent claim 10 of Patent 12,076,196:
Current Application (18/780,095)
Patent (12,076,196)
20. An imaging system, comprising:
a head-mounted display configured to be worn by an operator while performing a procedure on a human subject;
a camera attached to the head-mounted display and configured to acquire images that include a patient marker attached to the human subject and at least a portion of a tool being used by the operator in performing the procedure on the human subject, wherein the patient marker defines a plane of asymmetry;
a memory configured to store a graphical representation of the tool and an image of anatomy of the human subject; and
one or more processors configured to:
determine a first plane and a second plane that each have a preset acute angle to the plane of asymmetry, with the first plane defining a first acute-angled wedge region on a first side of the plane of asymmetry and the second plane defining a second acute-angled wedge region on a second side of the plane of asymmetry;
analyze one or more images of the acquired images so as to identify that the camera is located on the first side of the plane of asymmetry;
render to the head-mounted display the image of the anatomy of the human subject with the graphical representation of the tool superimposed thereon, from a point of view of the first side of the plane of asymmetry;
analyze one or more additional images of the acquired images so as to identify that the camera has moved from the first side of the plane of asymmetry to the second side of the plane of asymmetry, and so as to identify whether the camera has crossed the second acute-angled wedge region; and
responsive to identifying whether the camera has crossed the second acute- angled wedge region:
render to the head-mounted display the image of the anatomy of the human subject with the graphical representation of the tool superimposed thereon, from a point of view of the second side of the plane of asymmetry, if the camera has crossed the second acute-angled wedge region, and
render to the head-mounted display the image of the anatomy of the human subject with the graphical representation of the tool superimposed thereon, from a point of view of the first side of the plane of asymmetry, if the camera has not crossed the second acute-angled wedge region.
10. An imaging system comprising:
a head-mounted display configured to be worn by an operator while performing a procedure on a human subject;
a camera attached to the head-mounted display and configured to acquire an image, the image including a patient marker that defines a plane of asymmetry, the plane of asymmetry having a first side and a second side, the patient marker being attached to the human subject such that the plane of asymmetry makes an angle between +20° and −20° with one of a sagittal plane or an axial plane of the human subject,
the image further including at least a portion of a tool being used by the operator in performing the procedure on the human subject;
a memory configured to store a graphical representation of the tool and an image of anatomy of the human subject; and
one or more processors configured to:
analyze the image so as to identify:
whether the camera resides on the first side of the plane of asymmetry or on the second side of the plane of asymmetry; and
a position and orientation of the tool;
render to the head-mounted display the image of the anatomy of the human subject with the graphical representation of the tool superimposed thereon based on the identified position and orientation of the tool, the rendered image being depicted from a point of view based on the identified side on which the camera resides;
analyze an additional image acquired by the camera, the additional image including the patient marker and at least a portion of the tool, so as to identify that the camera has moved from the identified side of the plane of asymmetry and now resides on the other side of the plane of asymmetry; and
render to the head-mounted display the image of the anatomy of the human subject with the graphical representation of the tool superimposed thereon, from a point of view based on the identified other side on which the camera resides.
Regarding Claim 20 is rejected under non-statutory double patenting.
Regarding Claim 29 is substantially similar to claim 20 is rejected based on similar analyses.
Regarding the portion of claim 20 in the current application (18/780,095): “determine a first plane and a second plane that each have a preset acute angle to the plane of asymmetry, with the first plane defining a first acute-angled wedge region on a first side of the plane of asymmetry and the second plane defining a second acute-angled wedge region on a second side of the plane of asymmetry”, the features are disclosed with the reference of Lang (U.S. 2022/0087746 A1), Lang, [0494] “FIG. 4A shows an illustrative example of a virtual plane 70 that a primary surgeon has moved and aligned to be tangent with the most superior of the greater trochanter 71…of the lesser trochanter 72” and [0492] “FIG. 4C is a second virtual plane 73, the virtual femoral neck cut plane 73, can then be projected or displayed by the OHMD, also perpendicular to the OR table like the arbitrary virtual plane 70” and [0522] “Any 3D shape can be used including irregular shapes and/or asymetric shapes, e.g., two opposing surfaces or two adjacent surfaces oriented” and [0935] “FIG. 10F “The difference in position, location, orientation, coronal, sagittal, axial angle/angulation between the originally planned or predetermined virtual femoral bone cut 131” and [0936] “FIG. 10G, “modify the proximal tibial cut as shown in the two examples, one with a straight broken dotted line 139 and the other with a straight dotted line 138” Lang teaches determine a first plane (virtual plane 70) and a second plane (virtual plane 73) (Fig. 4A, 4C) that each have a preset acute angle to the plane of asymmetry, with the first plane defining a first acute-angled wedge region (angle of virtual femoral bone cut 131, Fig. 10F) on a first side of the plane of asymmetry and the second plane defining a second acute-angled wedge region (angle of dotted line 138, 139, Fig. 10G) on a second side of the plane of asymmetry. It is obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to combine the teaching of Lang into the teaching of claim 10 of the Patent so that as the viewpoint and view direction change, for example due to head movement, the view projections are updated so that the computer-generated display follows the new view during the surgical procedures (Lang, [0117]).
Furthermore, the differences of claim 20 in the current application and the patent: “if the camera has crossed the second acute-angled wedge region” or “if the camera has not crossed the second acute-angled wedge region”, in paragraph [0030], Lang discloses “cameras or image capture or video capture systems included in the optical head mounted display detect one or more optical markers including their coordinates (x, y, z) and at least one or more of a position, orientation, alignment, direction of movement or speed of movement of the one or more optical markers”. It is obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to combine the teaching of Lang into the teaching of claim 20 of the Patent so that camera can capture region of markers on the first plane or second plane into the teaching “if the camera has crossed…region” or “if the camera has not crossed…region”.
Allowable Subject Matter
All current claims 20-39 could be in a condition for allowance. However, the application is rejected under a non-statutory double patenting.
Claims 20-39 can be allowed if Applicant files a terminal disclaimer overcome the Double Patenting rejection above.
The following is an examiner’s statement of reasons of a condition for allowance:
Regarding independent claims 20 and 29, the closest prior art references the examiner found are Lang (U.S. 2022/0087746 A1) in view of Kazanzides et al. (U.S. 2020/0388075 A1) have been made of record as teaching: a head-mounted display configured to be worn by an operator while performing a procedure on a human subject (Lang, [1748]); a camera attached to the head-mounted display and configured to acquire images that include a patient marker attached to the human subject, wherein the patient marker defines a plane of asymmetry (Lang, [0522], [0623]); a memory configured to store a graphical representation of the tool and an image of anatomy of the human subject (Lang, [1060]); one or more processors configured to determine a first plane and second plane with the first plane defining on the first side of the plane of asymmetry and the second plane defining on a second side of the plane of asymmetry (Lang, [1507], [1638], ); analyze one or more images of the acquired images so as to identify that the camera is located on the first side of the plane of asymmetry (Kazanzides, Fig. 1, [0025]); render to the head-mounted display the image of the anatomy of the human subject with the graphical representation of the tool superimposed thereon, from a point of view of the first side of the plane of asymmetry (Kazanzides, Fig.1, [0024], Fig. 2A, [0035]), recited in independent claims 20 and 29.
However, the closest prior art made of record fails to teach or fairly suggest alone
or in reasonable combination (in consideration of the claim as a whole) the limitations.
"analyze one or more additional images of the acquired images so as to identify that the camera has moved from the first side of the plane of asymmetry to the second side of the plane of asymmetry, and so as to identify whether the camera has crossed the second acute-angled wedge region; and
responsive to identifying whether the camera has crossed the second acute- angled wedge region:
render to the head-mounted display the image of the anatomy of the human subject with the graphical representation of the tool superimposed thereon, from a point of view of the second side of the plane of asymmetry, if the camera has crossed the second acute-angled wedge region, and
render to the head-mounted display the image of the anatomy of the human subject with the graphical representation of the tool superimposed thereon, from a point of view of the first side of the plane of asymmetry, if the camera has not crossed the second acute-angled wedge region” recited in independent claims 20 and 29.
The dependent claims 21-28 and 30-39 are allowanced because they are depended on the independent/parent claims 20 and 29.
Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
Conclusion
The prior arts made of record and not relied upon are considered pertinent to applicant's disclosure Vojan et al. (U.S. 2022/0208365 A1) and Becker et al. (U.S. 2020/0188025 A1).
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/KHOA VU/Examiner, Art Unit 2611
/KEE M TUNG/Supervisory Patent Examiner, Art Unit 2611