DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Applicant's amendments filed on 04/21/2026 has been received and entered. Currently Claims 49- 68 are pending.
Response to Arguments
Applicant’s arguments have been considered but are moot in view of the new ground(s) of rejection.
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.
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Claims 49-68 are rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1, 10 and 14 of USPN 10,944,728 (Appl. No: 15/940641). Claim 57 is rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1, 10 and 14 of USPN 10,944,728 (Appl. No: 15/940641), in view of Hwang et al. US 2015/0127375 (hereinafter Hwang). Although the claims at issue are not identical, they are not patentably distinct from each other. (see Claim-Comparison Table below for independent claim 49 of the instant application against Claim 1 of 10,944,728).
Claim
Application#18/799643
Claim
USPN # 10,944,728
49
receiving, at the surgical hub, data associated with a surgical procedure from a surgical system coupled with the surgical hub;
encrypting, at the surgical hub, the received data;
generating, at the surgical hub, a datagram comprising the encrypted data and message authentication information configured for a cloud-based system to authenticate the surgical hub as a source of the datagram; and
transmitting, from the surgical hub, the datagram to the cloud-based system communicatively coupled with the surgical hub.
1
transmit generator data associated with a surgical procedure from a generator of the surgical hub to a cloud-based system communicatively coupled to a plurality of surgical hubs, the surgical hub, comprising:
a processor; and a memory coupled to the processor, the memory storing instructions executable by the processor to:
receive generator data from the generator, wherein the generator data is structured into a data packet comprising at least two of the following fields: a field that indicates a source of the generator data; a unique time stamp; a field indicating an energy mode of the generator; a field indicating a power output of the generator; and a field indicating a duration of the power output of the generator;
encrypt the generator data;
generate a message authentication code based on the generator data; generate a datagram comprising: the encrypted generator data, the generated message authentication code, a source identifier, and a destination identifier; and
transmit the datagram to the cloud-based system, wherein the datagram allows for the cloud-based system to: decrypt the encrypted generator data of the transmitted datagram;
verify integrity of the generator data based on the message authentication code; authenticate the surgical hub as a source of the datagram; and
validate a transmission path followed by the datagram between the surgical hub and the cloud-based system.
Although the claims of 10,944,728 does not explicitly disclose “removing personal information from the data”, Hwang teaches removing personal information from data (Hwang paragraph [0053], removing personal information). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the claims of 10,944,728 with the teachings of Hwang to include removing personal information in order to preserve and protect the patient’s privacy.
Claims 50-68 of the instant application is equivalent in scope with claims 1, 10 and 14 of USPN 10,944,728, in view of Hwang.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 49-52, 54, 56, 58-64, 66 and 68 are rejected under 35 U.S.C. 103 as being unpatentable over Gruemer et al. US 2019/0362836 (hereinafter Gruemer), in view of Pedersen et al. US 2016/02534752 (hereinafter Pedersen), and Ury et al. US 2015/0248525 (hereinafter Ury).
As per claim 49, Gruemer teaches a method for data management at a hub, comprising: receiving, at the hub, data (Gruemer paragraph [0094]-[0095], receiving data);
encrypting, at the hub, the received data (Gruemer paragraph [0094]-[0095], encrypting data);
generating, at the hub, a datagram comprising the encrypted data configured for a cloud-based system (Gruemer paragraph [0095]-[0096], [0126]-[0127], transmitting the encrypted data in a data package to cloud server); and
transmitting, from the hub, the datagram to the cloud-based system communicatively coupled with the hub (Gruemer paragraph [0095]-[0096], [0126]-[0127], transmitting the encrypted data in a data package to cloud server).
Gruemer does not explicitly disclose surgical data management at a surgical hub;
receiving, at the surgical hub, data associated with a surgical procedure from a surgical system coupled with the surgical hub.
Pedersen teaches surgical data management at a surgical hub (Pedersen paragraph [0013]-[0014], surgical data management);
receiving, at the surgical hub, data associated with a surgical procedure from a surgical system coupled with the surgical hub (Pedersen paragraph [0013]-[0018], receiving surgical data).
Thus it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the invention of Gruemer of encrypting and transmitting medical data to a cloud server with the teachings of Pedersen to include obtaining and transmitting surgical data to a server in order to receive, encrypt and securely transmit surgical data to the cloud server.
Gruemer in view of Pedersen does not explicitly disclose generating a datagram comprising a message authentication information configured for a system to authenticate a source of the datagram.
Ury teaches generating a datagram comprising a message authentication information configured for a system to authenticate a source of the datagram (Ury paragraph [0105]-[0107], [0112], [0122]-[0123], [0125], [0128], [0130], encrypting and decrypting messages between two parties. Generate HMAC for the messages).
Thus it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the invention of Gruemer in view of Pedersen of encrypting and transmitting surgical data to a cloud server with the teachings of Ury to include secure communications between parties and integrity verification using HMAC in order to provide secure communications between the hub and the cloud server and to provide integrity verification of the transmitted surgical data.
As per claim 50, Gruemer in view of Pedersen and Ury teaches the method of claim 49, further comprising: generating the message authentication information based on the received data; and including the message authentication information in the datagram (Gruemer paragraph [0094]-[0095], receiving data; Gruemer paragraph [0095]-[0096], [0126]-[0127], transmitting the encrypted data in a data package to cloud server; Pedersen paragraph [0013]-[0018], [0033], [0052], receiving surgical data and sending surgical data to a server; Ury paragraph [0105]-[0107], [0112], [0122]-[0123], [0125], [0128], [0130], encrypting and decrypting messages between two parties. Generate and include HMAC for the messages).
As per claim 51, Gruemer in view of Pedersen and Ury teaches the method of claim 49, further comprising: generating a header identifying a source associated with the surgical hub and a destination associated with the cloud-based system and a payload comprising the encrypted data; and including the header and the payload in the datagram (Gruemer paragraph [0095]-[0096], [0126]-[0127], transmitting the encrypted data in a data package to cloud server using network/internet protocols; Pedersen paragraph [0013]-[0018], [0033], [0052], receiving surgical data and sending surgical data to a server; Ury paragraph [0105]-[0107], [0112], [0122]-[0123], [0125], [0128], [0130], hmac included in message).
As per claim 52, Gruemer in view of Pedersen and Ury teaches the method of claim 49, further comprising: generating a header and a payload configured for the cloud-based system to authenticate the surgical hub as a source of the datagram based on message authentication information contained in the datagram; and including the header and the payload in the datagram (Gruemer paragraph [0095]-[0096], [0126]-[0127], transmitting the encrypted data in a data package to cloud server using network/internet protocols; Pedersen paragraph [0013]-[0018], [0033], [0052], receiving surgical data and sending surgical data to a server; Ury paragraph [0105]-[0107], [0112], [0122]-[0123], [0125], [0128], [0130], hmac included in message).
As per claim 54, Gruemer in view of Pedersen and Ury teaches the method of claim 49, further comprising: structuring, at the surgical hub, the encrypted data into a data packet comprising at least two of: a field indicating a source of the data;a field indicating an energy mode of a generator supplying an energy utilized for the surgical procedure; a field indicating a power output of the generator; and a field indicating a duration of the power output of the generator (Gruemer paragraph [0095]-[0096], [0126]-[0127], transmitting the encrypted data in a data package to cloud server using network/internet protocols; Pedersen paragraph [0013]-[0018], [0026], [0033], [0052], receiving surgical data and sending surgical data to a server; Ury paragraph [0105]-[0107], [0112], [0122]-[0123], [0125], [0128], [0130], hmac included in message).
As per claim 56, Gruemer in view of Pedersen and Ury teaches the method of claim 49, further comprising: identifying a failure event associated with the surgical procedure; associating the data with the failure event; and tagging or flagging the data as corresponding to the failure event (Pedersen paragraph [0014], [0030], [0057]-[0059], [0061]-[0063], identifying a failure event and flagging data).
As per claim 58, Gruemer in view of Pedersen and Ury teaches the method of claim 49, further comprising: encrypting the received data utilizing a symmetric encryption algorithm to encrypt the received data via a shared secret; and decrypting communications received from the cloud-based system by utilizing the symmetric encryption algorithm to decrypt the communications via the shared secret (Gruemer paragraph [0094]-[0097], [0122], encrypting and decrypting data using symmetric key; Pedersen paragraph [0013]-[0018], receiving surgical data; Ury paragraph [0105]-[0107], [0112], [0122]-[0123], [0125], [0128], [0130], encrypting and decrypting messages between two parties using symmetric key).
As per claim 59, Gruemer in view of Pedersen and Ury teaches the method of claim 49, further comprising: encrypting the received data at the surgical hub by utilizing an asymmetric encryption algorithm to encrypt the received data via a public key associated with the cloud-based system; and decrypting, at the surgical hub, communications received from the cloud-based system by utilizing the asymmetric encryption algorithm and a private key paired to the public key (Gruemer paragraph [0094]-[0097], [0122], encrypting and decrypting data using asymmetric keys; Pedersen paragraph [0013]-[0018], surgical hub with surgical data; Ury paragraph [0105]-[0107], [0112], [0122]-[0123], [0125], [0128], [0130], encrypting and decrypting messages between two parties using asymmetric keys).
As per claim 60, Gruemer in view of Pedersen and Ury teaches the method of claim 49, further comprising: receiving response data associated with the transmitted datagram; decrypting any encrypted portion of the response data; and verifying, in response to decrypting the response data, an integrity of the received data based on message authentication information contained in the datagram (Gruemer paragraph [0141]-[0144], 0158]-[0159], receive response data; Pedersen paragraph [0013]-[0018], surgical hub with surgical data; Ury paragraph [0105]-[0107], [0112], [0122]-[0123], [0125], [0128], [0130], encrypting and decrypting messages between two parties. Verify integrity of message using HMAC).
As per claims 61-64, 66 and 68, the claims claim a hub essentially corresponding to the method claims 49-50, 52, 54, 56 and 60 above, and they are rejected, at least for the same reasons.
Claims 53 and 65 are rejected under 35 U.S.C. 103 as being unpatentable over Gruemer in view of Pedersen and Ury, and further in view of Lim US 2014/0198791.
As per claim 53, Gruemer in view of Pedersen and Ury teaches the method of claim 49, further comprising: generating a header that comprises information; and including the header in the datagram (Gruemer paragraph [0095]-[0096], [0126]-[0127], transmitting the encrypted data in a data package to cloud server using network/internet protocols; Pedersen paragraph [0013]-[0018], [0033], [0052], receiving surgical data and sending surgical data to a server; Ury paragraph [0105]-[0107], [0112], [0122]-[0123], [0125], [0128], [0130], hmac included in message).
Gruemer in view of Pedersen and Ury does not explicitly disclose a header that comprises information designating a transmission path configured for a system to validate a transmission path followed by a datagram between a source and a destination
Lim teaches a header that comprises information designating a transmission path configured for a system to validate a transmission path followed by a datagram between a source and a destination (Lim paragraph [0039], [0041], header includes path information for a system to verify the path of the transmitted data).
Thus it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the invention of Gruemer in view of Pedersen and Ury of obtaining and transmitting surgical data of patients with the teachings of Lim to include path information and verifying the path information in order to indicate a specific path for the transmitted surgical data and to verify the path taken by the transmitted data.
As per claim 65, the claim claims a hub essentially corresponding to the method claim 53 above, and is rejected, at least for the same reasons.
Claims 55 and 67 are rejected under 35 U.S.C. 103 as being unpatentable over Gruemer in view of Pedersen and Ury, and further in view of Haswell US 2019/0159031.
As per claim 55, Gruemer in view of Pedersen and Ury teaches the method of claim 49, further comprising: receiving during the surgical procedure, the data from the surgical system (Pedersen paragraph [0013]-[0018], receiving surgical data).
Gruemer in view of Pedersen and Ury does not explicitly disclose time-stamping the data received at hub.
Haswell teaches time-stamping the data received at hub (Haswell paragraph [0108], hub timestamps data).
Thus it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the invention of Gruemer in view of Pedersen and Ury of obtaining surgical data of patients with the teachings of Haswell to include timestamping received data in order to timestamp the surgical data with the time it was received.
As per claim 67, the claim claims a hub essentially corresponding to the method claim 55 above, and is rejected, at least for the same reasons.
Claim 57 is rejected under 35 U.S.C. 103 as being unpatentable over Gruemer in view of Pedersen and Ury, and further in view of Hwang et al. US 2015/0127375 (hereinafter Hwang).
As per claim 57, Gruemer in view of Pedersen and Ury teaches the method of claim 49.
Gruemer in view of Pedersen and Ury does not explicitly disclose further comprising: removing, at a device, personal information from data.
Hwang teaches further comprising: removing, at a device, personal information from data (Hwang paragraph [0053], removing personal information)
Thus it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the invention of Gruemer in view of Pedersen and Ury of obtaining and transmitting surgical data of patients with the teachings of Hwang to include removing personal information in order to preserve and protect the patient’s privacy by removing the patient’s personal information from the surgical data.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to HENRY TSANG whose telephone number is (571)270-7959. The examiner can normally be reached M-F 9am - 5pm EST.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Farid Homayounmehr can be reached at (571) 272-3739. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/HENRY TSANG/ Primary Examiner, Art Unit 2495
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