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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted by applicant dated 04/03/2025 has been considered by the examiner.
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 29-48 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). Claims 39 and 45-48 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), 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 29 of the instant application against Claim 1 of 10,944,728).
Claim
Application#18/799643
Claim
USPN # 10,944,728
29
receiving data associated with a surgical procedure from a surgical hub;
encrypting the received data;
transmitting the encrypted data to a cloud-based system;
decrypting the transmitted encrypted data; and
verifying an integrity of the data in response to decrypting the transmitted encrypted data.
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 30-48 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 29-38 and 40-44 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 29, Gruemer teaches a method for data management comprising: receiving data (Gruemer paragraph [0094]-[0095], receiving data);
encrypting the received data (Gruemer paragraph [0094]-[0095], encrypting data);
transmitting the encrypted data to a cloud-based system (Gruemer paragraph [0095]-[0096], transmitting encrypted data to cloud server);
decrypting the transmitted encrypted data (Gruemer paragraph [0097], decrypt data).
Gruemer does not explicitly disclose surgical data management;
receiving data associated with a surgical procedure from a surgical hub.
Pedersen teaches surgical data management (Pedersen paragraph [0013]-[0014], surgical data management);
receiving data associated with a surgical procedure from a 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 encrypt and securely transmit surgical data to the cloud server.
Gruemer in view of Pedersen does not explicitly disclose verifying an integrity of the data in response to decrypting transmitted encrypted data.
Ury teaches verifying an integrity of the data in response to decrypting transmitted encrypted data (Ury paragraph [0105]-[0107], [0112], [0122]-[0123], [0125], [0128], [0130], encrypting and decrypting messages between two parties. Verify integrity of message using HMAC).
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 integrity verification of the transmitted surgical data.
As per claim 30, Gruemer in view of Pedersen and Ury teaches the method of claim 29 further comprising: generating a message authentication code based on the received data; transmitting the message authentication code to the cloud-based system; and verifying the integrity of the data based on the message authentication code (Gruemer paragraph [0095]-[0096], transmitting encrypted data 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. Generating and transmitting HMAC and verify integrity of message using HMAC).
As per claim 31, Gruemer in view of Pedersen and Ury teaches the method of claim 29 further comprising: generating a datagram comprising the encrypted data; and transmitting the datagram to the cloud-based system (Gruemer paragraph [0095]-[0096], transmitting encrypted data to cloud server; Pedersen paragraph [0013]-[0018], [0033], [0052], receiving surgical data and sending surgical data to a server).
As per claim 32, Gruemer in view of Pedersen and Ury teaches the method of claim 31 further comprising: authenticating the surgical hub as a source of the datagram in response to verifying the integrity of the data (Gruemer paragraph [0095]-[0096], transmitting encrypted data 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. Generating and transmitting HMAC and verify integrity of message using HMAC) (It is obvious to one of ordinary skill in the art that since the integrity of the data is verified, the source of the data is verified).
As per claim 33, Gruemer in view of Pedersen and Ury teaches the method of claim 31 further comprising: validating a transmission path followed by the datagram between the surgical hub and the cloud-based system in response to verifying the integrity of the data (Gruemer paragraph [0095]-[0096], transmitting encrypted data 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. Generating and transmitting HMAC and verify integrity of message using HMAC) (It is obvious to one of ordinary skill in the art that since the integrity of the data is verified, the transmission path is validated).
As per claim 34, Gruemer in view of Pedersen and Ury teaches the method of claim 29 further comprising: structuring 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], transmitting encrypted data to cloud server; Pedersen paragraph [0013]-[0018], [0026], [0033], [0052], receiving surgical data and sending surgical data to a server).
As per claim 35, Gruemer in view of Pedersen and Ury teaches the method of claim 29 further comprising: communicatively coupling the surgical hub and the cloud-based system (Gruemer paragraph [0095]-[0096], transmitting encrypted data to cloud server; Pedersen paragraph [0013]-[0018], [0026], [0033], [0052], receiving surgical data and sending surgical data to a server).
As per claim 36, Gruemer in view of Pedersen and Ury teaches the method of claim 29 further comprising: receiving the data from a surgical system coupled with the surgical hub during the surgical procedure; and transmitting the data from the surgical system to the surgical hub (Pedersen paragraph [0013]-[0018], receiving surgical data).
As per claim 37, Gruemer in view of Pedersen and Ury teaches the method of claim 36 further comprising: time-stamping the data before or after being received at the surgical hub (Pedersen paragraph [0005], [0044], time stamp surgical data).
As per claim 38, Gruemer in view of Pedersen and Ury teaches the method of claim 29 further comprising: identifying a failure event associated with the surgical procedure; associating the data with the failure event; and tagging or flagging the data (Pedersen paragraph [0014], [0030], [0057]-[0059], [0061]-[0063], identifying a failure event and flagging data).
As per claim 40, Gruemer in view of Pedersen and Ury teaches the method of claim 29 further comprising: encrypting the received data comprising utilizing an encryption algorithm to convert the received data from a readable version to an encoded version (Gruemer paragraph [0094]-[0095], encrypting data; Pedersen paragraph [0013]-[0018], receiving surgical data; Ury paragraph [0105]-[0107], [0112], [0122]-[0123], [0125], [0128], [0130], encrypting and decrypting messages between two parties.).
As per claim 41, Gruemer in view of Pedersen and Ury teaches the method of claim 40 further comprising: encrypting the received data comprising utilizing a symmetric encryption algorithm to encrypt the received data via a shared secret; and decrypting the transmitted encrypted data comprising utilizing the symmetric encryption algorithm to decrypt the transmitted encrypted data 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 42, Gruemer in view of Pedersen and Ury teaches the method of claim 40 further comprising: encrypting the received data comprising utilizing an asymmetric encryption algorithm to encrypt the received data via a public key; and decrypting the transmitted encrypted data comprising utilizing the asymmetric encryption algorithm to decrypt the transmitted encrypted data via a private key paired to the public key (Gruemer paragraph [0094]-[0097], [0122], encrypting and decrypting data using asymmetric keys; 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 asymmetric keys).
As per claim 43, Gruemer teaches a method for data management comprising: receiving data (Gruemer paragraph [0094]-[0095], receiving data);
encrypting the received data (Gruemer paragraph [0094]-[0095], encrypting data);
generating a datagram comprising the encrypted data (Gruemer paragraph [0095]-[0096], transmitting encrypted data to cloud server);
transmitting the datagram to a cloud-based system (Gruemer paragraph [0095]-[0096], transmitting encrypted data to cloud server );
decrypting the encrypted data of the transmitted datagram (Gruemer paragraph [0097], decrypt data).
Gruemer does not explicitly disclose surgical data management;
receiving data associated with a surgical procedure from a surgical hub;
server communicatively coupling with the surgical hub.
Pedersen teaches surgical data management (Pedersen paragraph [0013]-[0014], surgical data management);
receiving data associated with a surgical procedure from a surgical hub (Pedersen paragraph [0013]-[0018], receiving surgical data);
server communicatively coupling with the surgical hub (Pedersen paragraph [0013]-[0018], [0026], [0033], [0052], receiving surgical data and sending surgical data to a server).
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 encrypt and securely transmit surgical data to the cloud server.
Gruemer in view of Pedersen does not explicitly disclose generating a message authentication code based on data;
generating a datagram comprising the message authentication code;
verifying an integrity of the data based on the message authentication code in response to decrypting encrypted data of transmitted datagram.
Ury teaches generating a message authentication code based on data (Ury paragraph [0105]-[0107], [0112], [0122]-[0123], [0125], [0128], [0130], encrypting and decrypting messages between two parties. Generating and transmitting HMAC and verify integrity of message using HMAC);
generating a datagram comprising the message authentication code (Ury paragraph [0105]-[0107], [0112], [0122]-[0123], [0125], [0128], [0130], encrypting and decrypting messages between two parties. Generating and transmitting HMAC and verify integrity of message using HMAC);
verifying an integrity of the data based on the message authentication code in response to decrypting encrypted data of transmitted datagram (Ury paragraph [0105]-[0107], [0112], [0122]-[0123], [0125], [0128], [0130], encrypting and decrypting messages between two parties. Verify integrity of message using HMAC).
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 integrity verification of the transmitted surgical data.
As per claim 44, Gruemer in view of Pedersen and Ury teaches the method of claim 43 further comprising: authenticating the surgical hub as a source of the datagram and validating a transmission path followed by the datagram between the surgical hub and the cloud-based system in response to verifying the integrity of the data (Gruemer paragraph [0095]-[0096], transmitting encrypted data 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. Generating and transmitting HMAC and verify integrity of message using HMAC) (It is obvious to one of ordinary skill in the art that since the integrity of the data is verified, the source of the data and the transmission path are verified).
Claims 39 and 45-48 are 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 39, Gruemer in view of Pedersen and Ury teaches the method of claim 29.
Gruemer in view of Pedersen and Ury does not explicitly disclose further comprising: removing personal information from data.
Hwang teaches further comprising: removing 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.
As per claim 45, Gruemer in view of Pedersen and Ury teaches the method of claim 43.
Gruemer in view of Pedersen and Ury does not explicitly disclose further comprising: removing personal information from data.
Hwang teaches further comprising: removing 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.
As per claim 46, Gruemer teaches a method for data management comprising: encrypting the received data (Gruemer paragraph [0094]-[0095], encrypting data);
generating a datagram comprising the encrypted data (Gruemer paragraph [0095]-[0096], transmitting encrypted data to cloud server);
transmitting the datagram to a cloud-based system (Gruemer paragraph [0095]-[0096], transmitting encrypted data to cloud server);
decrypting the encrypted data of the transmitted datagram (Gruemer paragraph [0097], decrypt data).
Gruemer does not explicitly disclose surgical data management;
receiving data through a surgical hub from a surgical system coupled with the surgical hub during a surgical procedure;
server communicatively coupling with the surgical hub.
Pedersen teaches surgical data management (Pedersen paragraph [0013]-[0014], surgical data management);
receiving data through a surgical hub from a surgical system coupled with the surgical hub during a surgical procedure (Pedersen paragraph [0013]-[0018], receiving surgical data);
server communicatively coupling with the surgical hub (Pedersen paragraph [0013]-[0018], [0026], [0033], [0052], receiving surgical data and sending surgical data to a server).
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 encrypt and securely transmit surgical data to the cloud server.
Gruemer in view of Pedersen does not explicitly disclose generating a message authentication code based on data;
generating a datagram comprising the message authentication code;
verifying an integrity of the data based on the message authentication code in response to decrypting encrypted data of transmitted datagram.
Ury teaches generating a message authentication code based on data (Ury paragraph [0105]-[0107], [0112], [0122]-[0123], [0125], [0128], [0130], encrypting and decrypting messages between two parties. Generating and transmitting HMAC and verify integrity of message using HMAC);
generating a datagram comprising the message authentication code (Ury paragraph [0105]-[0107], [0112], [0122]-[0123], [0125], [0128], [0130], encrypting and decrypting messages between two parties. Generating and transmitting HMAC and verify integrity of message using HMAC);
verifying an integrity of the data based on the message authentication code in response to decrypting encrypted data of transmitted datagram (Ury paragraph [0105]-[0107], [0112], [0122]-[0123], [0125], [0128], [0130], encrypting and decrypting messages between two parties. Verify integrity of message using HMAC).
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 integrity verification of the transmitted surgical data.
Gruemer in view of Pedersen and Ury does not explicitly disclose wherein personal information is removed from data.
Hwang teaches wherein personal information is removed 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.
As per claim 47, Gruemer in view of Pedersen, Ury and Hwang teaches the method of claim 46 further comprising: encrypting the received data comprising utilizing a symmetric encryption algorithm to encrypt the received data via a shared secret; and decrypting the encrypted data comprising utilizing the symmetric encryption algorithm to decrypt the encrypted data 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 48, Gruemer in view of Pedersen, Ury and Hwang teaches the method of claim 46 further comprising: encrypting the received data comprising utilizing an asymmetric encryption algorithm to encrypt the received data via a public key; and decrypting the encrypted data comprising utilizing the asymmetric encryption algorithm to decrypt the encrypted data via a private key paired to the public key (Gruemer paragraph [0094]-[0097], [0122], encrypting and decrypting data using asymmetric keys; 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 asymmetric keys).
Conclusion
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