DETAILED ACTION
Notice of Pre-AIA or AIA Status
1. 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
2. Claim 3 is objected to because of the following informalities:
Regarding Claim 3, line 2, delete “the”.
Appropriate correction is required.
Claim Interpretation
3. The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
4. Use of the word “means” (or “step for”) in a claim with functional language creates a rebuttable presumption that the claim element is to be treated in accordance with 35 U.S.C. 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph). The presumption that 35 U.S.C. 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph) is invoked is rebutted when the function is recited with sufficient structure, material, or acts within the claim itself to entirely perform the recited function.
Absence of the word “means” (or “step for”) in a claim creates a rebuttable presumption that the claim element is not to be treated in accordance with 35 U.S.C. 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph). The presumption that 35 U.S.C. 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph) is not invoked is rebutted when the claim element recites function but fails to recite sufficiently definite structure, material or acts to perform that function.
Claim elements in this application that use the word “means” (or “step for”) are presumed to invoke 35 U.S.C. 112(f) except as otherwise indicated in an Office action. Similarly, claim elements that do not use the word “means” (or “step for”) are presumed not to invoke 35 U.S.C. 112(f) except as otherwise indicated in an Office action.
5. The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
6. This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitations use a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier.
Such claim limitations are:
“a virtual particle generation step of generating”, “a label generation step of generating”, ”an association step of associating”, “a machine learning step of performing”, “a model particle acquisition step of acquiring”, “a virtual particle generation unit that generates”, “a label generation unit that generates”, “an association unit that associates”, and a machine learning unit that performs” in claims 1-2, 6, and 9-10.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
For more information, see MPEP § 2173 et seq. and Supplementary Examination Guidelines for Determining Compliance With 35 U.S.C. 112 and for Treatment of Related Issues in Patent Applications, 76 FR 7162, 7167 (Feb. 9, 2011).
Double Patenting
7. 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 USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The 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/process/file/efs/guidance/eTD-info-I.jsp.
Claims 1-4, 6-7 and 9-10 are non-provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over Claims 1-8 and 15 respectively of U.S. Patent No. 12105009 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because the instant application is broader than the patent, therefore, the patented claims anticipate the instant claims.
Claims 1-4, 6-7 and 9-10 of the instant application correspond to the patented claims as follows:
Instant application
USPAT 12105009 B2
1
1+3+6
2, 3, 4, 6, 7, 9, 10
2, 4, 5, 7, 1, 8, 15, respectively.
Claim Rejections - 35 USC § 102
8. 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.
9. Claims 1-10 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US Patent Pub. No. 2017/0357844 A1 by Comaniciu et al (hereinafter Comaniciu).
Regarding Claim 1, Comaniciu teaches a method for generating data for particle analysis, which is a method that generates data for particle analysis to be used in image analysis of a particle (Abstract: tumor, i.e. the particle), the method comprising (Fig. 1-4):
a virtual particle generation step (Fig. 1 @ Synthetic Imaging Engine. Also see Par. [0018-0019]) of generating virtual particle image data (Fig. 1 @ Outcome/Image. Also see Par. [0018-0019]), which is image data of a virtual particle (Fig. 1 @ Tumor Model. Also see Par. [0018-0019]), on a basis of a predetermined condition (Fig. 1 @ Parameters. Also see Par. [0018-0019] and Fig. 3);
a label generation step of generating label data corresponding to the virtual particle (Par. [0004, 0006], [0018]: labeled ground truth, [0021]: labeled data); and
an association step of associating the virtual particle image data with the label data (Par. [0018, 0020-0021]) and forming a pair of the virtual particle image data and the label data associated with the virtual particle image data that is usable as training data (Title, Abstract, Par. [0004, 0006, 0018]); and
a particle analysis step of using a result of machine learning based on the training data to analyze data of an actual image captured in an imaging particle analyzer (Abstract, Par. [0004, 0006, 0018, 0021]), wherein
the predetermined condition includes at least one condition selected from a group consisting of a particle parameter representing an exterior of a particle (Par. [0020]) and an optical parameter based on an image capturing condition for an image of a particle (Par. [0003, 0026-0027, 0079, 0101]) (Also see Fig. 1), and
the virtual particle image data includes a plurality of particles for which one or both of: values of the particle parameter are different from each other and values of the optical parameter are different from each other (Par. [0049, 0054]).
Regarding Claim 2, Comaniciu teaches a machine learning step of performing machine learning using a plurality of pairs of the virtual particle image data and the label data associated with the virtual particle image data (Title, Abstract, Par. [0004, 0006, 0018]).
Regarding Claim 3, Comaniciu teaches the predetermined condition includes a range of the values of the particle parameter or the the optical parameter (Par. [0069, 0077, 0079]), and
in the virtual particle generation step, a plurality of pieces of the virtual particle image data are generated on a basis of a plurality of values included in the range (Par. [0006, 0018-0020, 0049-0050, 0054, 0066, 0069]).
Regarding Claim 4, Comaniciu teaches content of the label data is one or more parameter values selected from the predetermined condition (Par. [0018, 0021]) or a result obtained by comparing the selected one or more parameter values with a reference value.
Regarding Claim 5, Comaniciu teaches the label data is information indicating a result of analysis regarding a group of virtual particles constituted by a plurality of the virtual particles (Abstract, Par. [0004, 0006], Par. [0018]: labeled ground truth, [0021]: labeled data).
Regarding Claim 6, Comaniciu teaches a model particle acquisition step of acquiring information on a model particle (Fig. 1 @ Parameters. Also see Par. [0018-0019] and Fig. 3), which is a model for the virtual particle (Fig. 1 @ Tumor Model. Also see Par. [0018-0019]),
wherein, in the virtual particle generation step (Fig. 1 @ Synthetic Imaging Engine. Also see Par. [0018-0019]), the virtual particle image data (Fig. 1 @ Outcome/Image. Also see Par. [0018-0019]) is generated using the information on the model particle (Fig. 1 @ Parameters. Also see Par. [0018-0019] and Fig. 3).
Regarding Claim 7, Comaniciu teaches the particle parameter is a parameter indicating a type of shape of the particle, a parameter indicating a size or a degree of deformation that does not change the type of shape of the particle, a parameter regarding optical properties due to a surface state of the particle, a parameter of a probability of another particle adhering to one particle or a maximum number of other particles that can be adhered to one particle, or a parameter representing the spatial distribution state of the particle (Par. [0003, 0030, 0039]: size, shape).
Regarding Claim 8, Comaniciu teaches the optical parameter includes a degree of blur of the particle image, deformation or discoloration of the particle, or contrast or brightness of the particle image (Par. [0003]: measured as linear dimensions or volume) or intensity parameters thus teaches the optical parameter includes a degree of blur of the particle image, deformation or discoloration of the particle, or contrast or brightness of the particle image).
Regarding Claim 9, Comaniciu teaches a non-transitory computer program for generating data for particle analysis, which is a program (Fig. 4 @ 13, Par. [0098, 0100]. Also see Par. [0039]: image processing thus teaches the limitation. Par. [0041], [0042, 0064, 0082]: processor) that generates data for particle analysis to be used in image analysis of a particle (See Claim 1 rejection. Note: a method claim can be used to implement an apparatus claim), the program causing a computer to execute functions as:
a virtual particle generation unit that generates virtual particle image data, which is image data of a virtual particle, on a basis of a predetermined condition (See Claim 1 rejection);
a label generation unit that generates label data corresponding to the virtual particle (See Claim 1 rejection);
an association unit that associates the virtual particle image data with the label data and forms a pair of the virtual particle image data and the label data associated with the virtual particle image data that is usable as training data (See Claim 1 rejection); and
a machine learning unit that performs machine learning using the training data and generates a result that is usable by an imaging particle analyzer to analyze data of an actual image captured in an imaging particle analyzer (See Claim 1 rejection), wherein
the predetermined condition includes at least one condition selected from a group consisting of a particle parameter representing an exterior of a particle and an optical parameter based on an image capturing condition for an image of a particle (See Claim 1 rejection), and
the virtual particle image data includes a plurality of particles for which one or both of: values of the particle parameter are different from each other and values of the optical parameter are different from each other (See Claim 1 rejection).
Regarding Claim 10, Comaniciu teaches a device for generating data for particle analysis, which is a device that generates data for particle analysis to be used in image analysis of a particle (See Claim 1 rejection), the device comprising:
a virtual particle generation unit that generates virtual particle image data, which is image data of a virtual particle, on a basis of a predetermined condition (See Claim 1 rejection);
a label generation unit that generates label data corresponding to the virtual particle (See Claim 1 rejection);
an association unit that associates the virtual particle image data with the label data and forms a pair of the virtual particle image data and the label data associated with the virtual particle image data that is usable as training data (See Claim 1 rejection); and
a machine learning unit that performs machine learning using the training data and generates a result that is usable by an imaging particle analyzer to analyze data of an actual image captured in an imaging particle analyzer(See Claim 1 rejection), wherein
the predetermined condition includes at least one condition selected from a group consisting of a particle parameter representing an exterior of a particle and an optical parameter based on an image capturing condition for an image of a particle (See Claim 1 rejection), and
the virtual particle image data includes a plurality of particles for which one or both of: values of the particle parameter are different from each other and values of the optical parameter are different from each other (See Claim 1 rejection).
Additional Prior Art
The prior art made of record and not relied upon is considered pertinent to applicant’s disclosure. The reference listed teaches of other prior art method/system of particle analysis.
WO2018/078613 A1 by Pinsky et al.
US Patent Pub. 2017/0242234 A1 Ashcroft et al.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JAMIL AHMED whose telephone number is (571)272-1950. The examiner can normally be reached M-F: 9:00 AM - 5:00 PM.
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/JAMIL AHMED/Primary Examiner, Art Unit 2877