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 .
Notice to Applicants
This communication is in response to the Application filed on 9/25/2024.
Claims 12-13 are pending and newly added. Claims 1-11 are canceled.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 9/25/2024 has been considered by the examiner.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 12-13 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. Claim 12 lines 3-4 recites “…based on a level of concentration of the choroidal blood vessels,”. In the specification, there seems to be no support for this part of the limitation, especially what ‘a level of concentration’ is. First, it is not clear what ‘a level’ is from the description of the invention, let alone ‘a level of concentration’. Further, even if one of ordinary skill in the art can understand what ‘a level’ is, it is unclear what ‘a level of concentration’ is in terms of ‘choroidal blood vessels’. Therefore, it is unclear if there is a written description for this limitation as recited in claim 12. Claim 13 is rejected for the same reasons.
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.
Claim 12 is rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 13 of U.S. Patent No. 11,526,987. Pending claim recites a level of concentration that is not necessary mapped to the patent 11,526,987, however, It would have been obvious to a person of ordinary skill in the art that in determining the position, the patent claim 13 recites running direction which could lead of an area where blood vessels are more noticeable.
Pending Application 18/896,329
U.S. Patent No., 11,526,987
12. (New) An image processing method, comprising:
1. An image processing method comprising:
analyzing running directions of choroidal blood vessels on a choroidal blood vessel image, and estimating a vortex vein position based on a level of concentration of the choroidal blood vessels, and
analyzing a choroidal vascular image and detecting a vortex vein position; and
calculating a feature value indicating a positional relationship between the vortex vein position and a position of a particular site on a fundus on the choroidal blood vessel image.
computing a feature value based on the vortex vein position and a particular position on a fundus.
13. The image processing method of claim 1, wherein detecting the vortex vein position includes estimating the vortex vein position based on a blood vessel running direction of a choroidal blood vessel.
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 12-13 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., abstract idea – mental process) without significantly more. Claim 12 is used as an example. The two-part test to identify claims that are directed to a judicial exception (Step 2A) and to then evaluate if additional elements of the claim provide an inventive concept (Step 2B) are:
(1) Are the claims directed to a process, machine, manufacture or composition of matter;
(2A) Prong One: Are the claims directed to a judicially recognized exception, i.e., a law of nature, a natural phenomenon, or an abstract idea;
Prong Two: If the claims are directed to a judicial exception under Prong One, then is the judicial exception integrated into a practical application;
(2B) If the claims are directed to a judicial exception and do not integrate the judicial exception, do the claims provide an inventive concept.
Claim 12 (New). An image processing method, comprising: (a) analyzing running directions of choroidal blood vessels on a choroidal blood vessel image, and estimating a vortex vein position based on a level of concentration of the choroidal blood vessels, and (b) calculating a feature value indicating a positional relationship between the vortex vein position and a position of a particular site on a fundus on the choroidal blood vessel image. [emphasis added].
With regard to (1), the instant claims recite an apparatus and a method, therefore the answer is "yes".
With regard to (2A), Prong One: Yes. When viewed under the broadest most reasonable interpretation, the instant claims are directed to a Judicial Exception – an abstract idea belonging to the group of mental process with mathematical concept – concepts that are practicably performed in the human mind (including an observation, evaluation, judgement, opinion). The steps of (a) and (b) (above in emphasized claim 1) are generically recited and nothing in these steps precludes the steps from practically being performed by a human equipped with an appropriate apparatus. It can be interpreted as merely looking at the data and determining a value by calculation of a section in the image that represents position of a vortex vein. There is nothing in the claim that requires more than an operation that a human, armed with the appropriate apparatus, pen and a paper, can not perform. The analyzing and calculating, under its broadest reasonable interpretation, covers performance of the limitation in the mind. The claim encompasses the user thinking (i.e., analyzing) that the once the image is received, attribute such as a direction/orientation of a section of the image can be determined. This way, essentially one can present/output information about the section of an image that represents that shape/orientation by calculating a value of that position. Thus, these limitations are a mental process.
With regard to (2A), Prong Two: No. The instant claims do not apply, rely on, or use the judicial exception in a manner that imposes a meaningful limit on the judicial exception of (b) “calculating”, and therefore does not integrate the judicial exception into a practical application. There is nothing in the claim that requires more than an operation that a human, armed with the appropriate apparatus executing a mathematical algorithm can perform. The step of “calculating” is interpreted as a mental step of math formulation because it is using inherently ‘received' data that is further analyzed to have a position determined, to eventually calculate a value indicating said position. There is no specific structure to perform the steps recited in the claims, one can do these steps using a generic computer. There is nothing in the claim that is recited that is integrally requires a specific processor to perform such steps.
Supplying “data” does not provide for “integration” of the abstract idea into a practical application, as said data do not change the way in which said system operates. There are no specifics on how the data/image is received. This can be interpreted as “visualization”. Even if this step is by a “physical processor” that may be, for example, a camera. A camera/sensor is well known in the field, and receiving data from a camera/sensor is also well known. Accordingly, this element does not integrate the abstract idea into a practical application because it does not impose any meaningful limits on practicing the abstract idea. In conclusion, the claim as a whole does not provide for “integration” of the abstract idea into a practical application.
The claim is directed to the abstract idea.
With regard to (2B), as discussed with respect to Step 2A Prong Two, there are no specific additional element in the claim that amounts to mere instructions to apply the exception using a generic computer component. The same analysis applies here, i.e., mere instructions to apply an exception cannot integrate a judicial exception into a practical application at Step 2A or provide an inventive concept in Step 2B. The pending claims do not show what is more than a routine in the art presented in the claims, i.e., the additional elements are nothing more than routine and well-known steps. There is no improvement to technology here. There is only steps of (a) and (b), and it has not been shown that the mental process allows the “technology” to do something that it previously was not able to do.
Therefore, the claim 12 is ineligible.
With regard to dependent claim 13, similar analysis is applied and therefore does not integrate the judicial exception into a practical application – does not provide significant more than the judicial exception. This claim is similarly rejected for the same reasons discussed in view of steps recited in claim 12 and not repeated herewith.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
US 2017/0112372 discloses a computer-implemented method obtaining an image of a retinal fundus. A plurality of features is extracted from the image of the retinal fundus. The plurality of features includes at least one feature based on anatomical domain knowledge of the retinal fundus and at least one response of a pre-trained deep convolutional neural network to at least a portion of the image of the retinal fundus. The retinal fundus is determined to belong to a left eye or a right eye, based on an analysis of the plurality of features.
US 2016/0135683 discloses optical coherence tomography apparatus that has an optical coherence tomography device, and a computer that processes the three-dimensional OCT tomographic images obtained based on the OCT-measured data acquired by the optical coherence tomography device. The computer functions as a means for selectively separating out only the images of the choroidal vessels from the three-dimensional OCT tomographic images to acquire image data of the choroidal vessels, and also as a means for obtaining the data to be used in the quantitative evaluation of the shape of the choroidal vessels based on the image data of the choroidal vessels.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SHEFALI D. GORADIA whose telephone number is (571)272-8958. The examiner can normally be reached Monday-Thursday 8AM-6PM, Friday 8AM-12PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Henok Shiferaw can be reached at 571-272-4637. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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SHEFALI D. GORADIA
Primary Patent Examiner
Art Unit 2676
/SHEFALI D GORADIA/Primary Patent Examiner, Art Unit 2676
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