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 .
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-8 and 10-12 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. Claims 1,8, 10 and 11 recite a method, a device to perform the method, a computer readable medium for storing a program comprising commands to cause a control device to perform the method and a treatment apparatus for providing control data for an ophthalmological laser of a treatment apparatus for the laser-induced refractive index change comprising
determining treatment positions in a cornea of an eye, which are intended for correction by the laser-induced refractive index change;
determining an orientation of collagen fibers to be expected in the cornea in the respective treatment positions based on collagen fiber data of the cornea;
setting a polarization property of a laser beam of the laser based on the orientation of the collagen fibers to be expected for the respective treatment positions
providing the control data, which includes the set polarization property for the respective treatment positions.
To determine whether a claim satisfies the criteria for subject matter eligibility, the claim is evaluated according to a stepwise process as described in MPEP 2106(III) and 2106.03-2106.05. The instant claims are evaluated according to such analysis.
Step 1: Is the claim to a process, machine, manufacture or composition of matter?
Claim 1 is directed to a method, claim 8 is directed to a device to perfrom the method, claim 10 is directed to a computer readable storage medium storing instructions to perform the steps of the method and claim 11 is directed towards a treatment apparatus, and thus meet the requirements for step 1.
Step 2A (Prong 1): Does the claim recite an abstract idea, law of nature, or natural phenomenon?
Claims 1, 8, 10 and 11 recite a method, a device to perform the method, a computer readable medium for storing a program comprising commands to cause a control device to perform the method and a treatment apparatus for providing control data for an ophthalmological laser of a treatment apparatus for the laser-induced refractive index change comprising
determining treatment positions in a cornea of an eye, which are intended for correction by the laser-induced refractive index change;
determining an orientation of collagen fibers to be expected in the cornea in the respective treatment positions based on collagen fiber data of the cornea;
setting a polarization property of a laser beam of the laser based on the orientation of the collagen fibers to be expected for the respective treatment positions
providing the control data, which includes the set polarization property for the respective treatment positions.
If a claim limitation, under its broadest reasonable interpretation, covers performance of the limitation in the mind but for the recitation of generic computer components, then it falls within the “Mental Processes” grouping of abstract ideas. Therefore, claims 1, 8, 10 and 11 recite an abstract idea of a mental process.
The limitations as drafted in the claims, under its broadest reasonable interpretation, covers performance of the claimed steps in the mind, but for the recitation of a generic processor. Other than reciting a laser and a control device (which is interpreted as a processer, nothing in the elements of the claims precludes the step from practically being performed in the mind or manually by a clinician. For example, a clinician can
determine treatment positions in a cornea of an eye and determine an orientation of collagen fibers to be expected in the cornea in the respective treatment positions based on collagen fiber data of the cornea by reviewing histological data and imaging data and
determine (i.e. set) a polarization property of a laser beam of the laser based on the orientation of the collagen fibers to be expected for the respective treatment positions and
provide the control data, which includes the set polarization property for the respective treatment positions by noting down what controls need to be set for the treatment.
The claims as recited do not positively recite that the laser treatment is being provided based on the provided control data.
Further, dependent Claims 2-7 and 12 merely include limitations that either further define the abstract idea (and thus don’t make the abstract idea any less abstract) or amount to no more than generally linking the use of the abstract idea to a particular technological environment or field of use because they’re merely incidental or token additions to the claims that do not alter or affect how the process steps are performed.
Step 2A (Prong 2): Does the claim recite additional elements that integrate the judicial exception into a practical application?
Claims 1, 8, 10 and 11 recite the additional elements of an “ophthalmologic laser” and “control device” which is being interpreted as a processor. However, these elements are recited at a high level of generality performing the function of generic data processing such that they amount to no more than mere instructions to simply implement the abstract idea using generic computer components. See MPEP 2106.05(b) and (f). Note: While the claims recite a laser to be used for laser-induced refractive index change, claim 1 does not positively recite any laser treatment is being provided based on the provided control data and similarly claim 11 does not positively recite that the laser is providing any treatment based on the setting of the polarization property.
Accordingly, the additional elements do not integrate the abstract idea into a practical application.
Step 2B: Does the claim recite additional elements that amount to significantly more than the judicial exception?
The additional elements when considered individually and in combination are not enough to qualify as significantly more than the abstract idea. As discussed above with respect to integration of the abstract idea into a practical application, the “control device” which is being interpreted as a processor as recited to perform the claimed steps of determining treatment positions in a cornea of an eye, which are intended for correction by the laser-induced refractive index change; determining an orientation of collagen fibers to be expected in the cornea in the respective treatment positions based on collagen fiber data of the cornea; setting a polarization property of a laser beam of the laser based on the orientation of the collagen fibers to be expected for the respective treatment positions, providing the control data, which includes the set polarization property for the respective treatment positions, amount to no more than mere instructions to apply the exception using generic computer components. Mere instructions to apply an exception using generic components cannot provide an inventive concept. While the claims recite a laser to be used for laser-induced refractive index change, claim 1 does not positively recite any laser treatment is being provided based on the provided control data and similarly claim 11 does not positively recite that the laser is providing any treatment based on the setting of the polarization property.
Further these additional elements are well‐understood, routine (For example Knox et al (U.S. Patent Application Publication Number: US 2012/0310223 A1, hereinafter “Knox”) teaches an ophthalmological laser of a treatment apparatus for treating corneal tissue and a control device for controlling the laser (e.g. Abstract, Fig.3. Fig.13C), Vukelic (U.S. Patent Application Publication Number: US 2022/0110789 A1, hereinafter “Vukelic”) teaches an ophthalmological laser of a treatment apparatus for treating corneal tissue and a control device for controlling the laser (e.g. Fig., 3A, [0096])-[0099]), and conventional limitations that amount to mere instructions or elements to implement the abstract idea. In addition, the end result of the system/method, the essence of the whole, is a patent-ineligible concept. Therefore, the claims are not patent eligible.
Claim 10 recites a 'computer readable medium'. None of the claims, specification or record disclose that the claimed 'computer readable medium' is a non-transitory medium. The Examiner asserts that the claimed 'computer readable medium' can be a transitory signal, which is non-statutory. The Examiner suggests that Applicant replace 'computer readable medium' with 'non-transitory computer readable medium' or clarify that the 'computer readable medium' is non-transitory either in the specification or on the record.
While no prior art rejection has been provided, the claims cannot be indicated as allowable due to the rejections under 35 U.S.C. 101 discussed above.
Huang et al (U.S. Patent Number: US 6033396, hereinafter “Huang”) teaches a method and apparatus for treating corneal tissue (e.g. Abstract) and includes laser sources, a projection optical system, observation system, and control system. The projection system uses two steering mirrors to control laser beam position on the cornea for correction of hyperopia, astigmatism, and irregular optical aberrations by changing the shape of the cornea. Specifically, it relates to laser thermal keratoplasty (LTK), where a laser beam is used to heat selected areas of the cornea and cause local shrinkage (e.g. Col. 1 lines 15-19). The treatment laser might preferably output a treatment beam having a wavelength such that collagen shrinkage in a majority of the thickness of the cornea occurs (e.g. Col. 3 lines 47-49).
Haghighi (U.S. Patent Application Publication Number: US 2002/0143322, hereinafter “Haghighi”) teaches a method and apparatus for treating corneal tissue useful in the radiation treatment of bodily tissue containing collagen, such as collagenous tissue of the cornea. The device is a topical device that is placed over the tissue undergoing treatment, defining a space between an inner surface of the device and the underlying tissue. The topical device is transparent to the treatment radiation, allowing the treatment radiation to pass through the device to interact with the tissue (e.g. Abstract, [0012]).
Knox et al (U.S. Patent Application Publication Number: US 2012/0310223 A1, hereinafter “Knox”) teaches an ophthalmological laser of a treatment apparatus to modify the refractive index of ocular tissues, e.g., the corneal stroma or lens cortex, for vision correction and a control device for controlling the laser (e.g. Abstract, Fig.3. Fig.13C) and determining the orientation of the collagen fiber bundles (e.g. [0021], [0044]).
Holland et al (U.S. Patent Application Publication Number: US 2024/0058169 A1, hereinafter “Holland”) teaches a laser treatment apparatus (e.g. Fig.4) for accessing a plurality of target volumes of ocular tissue in an eye (e.g. Abstract).
No prior art was found teaching individually, or suggesting in combination, all of the features of the applicants' invention, specifically "determining an orientation of collagen fibers to be expected in the cornea in the respective treatment positions based on collagen fiber data of the cornea; setting a polarization property of a laser beam of the laser based on the orientation of the collagen fibers to be expected for the respective treatment positions; providing the control data, which includes the set polarization property for the respective treatment positions” in combination with the recited structural/ steps limitations of the claimed invention.
Conclusion
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/MALLIKA D FAIRCHILD/Primary Examiner, Art Unit 3792
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