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 .
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Information Disclosure Statement
The information disclosure statements (IDS) submitted on September 25, 2024 and March 6, 2025 comply with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements are being considered by the examiner.
Specification
The lengthy specification has not been checked to the extent necessary to determine the presence of all possible minor errors. Applicant’s cooperation is requested in correcting any errors of which applicant may become aware in the specification.
Claim Interpretation
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 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) 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):
(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). The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) 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). The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) 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) 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) except as otherwise indicated in an Office action.
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) because the claim limitations uses 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 visual-target presenting portion that is configured to present visual targets to left and right subject eyes, respectively”, “an objective measurement optical system that is configured to objectively measure eye characteristics of the left and right subject eyes, respectively”, “the visual-target presenting portion is configured to present the visual targets while changing a convergence position” and “the objective measurement optical system is configured to obtain the objective refractive values of the left and right subject eyes, respectively” in claim 1;
“the visual-target presenting portion is configured to change the convergence position where the visual targets are presented by rotating the left and right measuring head portions by equal angles in opposite directions” in claim 3
“the left-side and right-side objective measurement optical systems are configured to obtain the objective refractive values of the left and right subject eyes, respectively” in claim 4; and
“the controller is further configured to determine a convergence accommodation based on a change in the objective refractive values relative to a change in the convergence position” in claim 5.
Because these claim limitations are being interpreted under 35 U.S.C. 112(f) they 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 these limitations interpreted under 35 U.S.C. 112(f) applicant may: (1) amend the claim limitations to avoid them being interpreted under 35 U.S.C. 112(f) (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitations recite sufficient structure to perform the claimed function so as to avoid them being interpreted under 35 U.S.C. 112(f).
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
Claims 1-5 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
Regarding claims 1-5 applicant has several instances of an element “that is configured to” preform a function, raising clarity issues. It is unclear if applicant is requiring a particular use of the device (see MPEP 2173.05(p)) or if applicant is claiming the elements are capable of the various functions (assumed). As an example of language which applicant could use to obviate this rejection the examiner respectfully suggests “wherein the visual-target presenting portion is capable of presenting the visual targets while changing a convergence position”. For purposes of examination the examiner the examiner will interpret “that is configured to” to be synonymous with “that is capable of”.
Claim Rejections - 35 USC § 102
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 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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-5 are rejected under 35 U.S.C. 102(a)(1 & 2) as being anticipated by Sakurada et al. US Patent Application Publication 2022/0369921.
Regarding claim 1 Sakurada discloses an ophthalmologic apparatus (title e.g. figure 1 ophthalmologic apparatus 10) comprising: a visual-target presenting portion that is configured to present visual targets to left and right subject eyes, respectively (inter alia paragraph [0031] “visual targets (fixation images) or the like are presented to the left and right subject eyes EL, ER by a visual target projection system 32” e.g. see figures 3A-3B visual target projection system 32); and an objective measurement optical system that is configured to objectively measure eye characteristics of the left and right subject eyes, respectively (inter alia paragraph [0013] “10 … is configured to perform … an objective examination” e.g. figure 5 eye refractive power measurement system 33), wherein the visual-target presenting portion (e.g. 32) is configured to present the visual targets while changing a convergence position, where two lines of sight from positions of the left and right subject eyes intersect (inter alia paragraph [0030] discusses rotating left and right heads including 32 so that “10 can conduct the examinations of the divergence movement and the convergence movement, and conduct examinations at various examination distances from a far-point examination at a far-point distance to a near-point examination at a near-point distance with the binocular vision to measure various characteristics of both subject eyes E” e.g. see figures 3A & 3B), with pinhole plates (e.g. pinhole plate 32a) respectively disposed at positions conjugate with pupils of the left and right subject eyes (paragraph [0058] “32p at a position … substantially conjugate with the pupil of the subject eye E on the optical path”), and wherein the objective measurement optical system (e.g. 33) is configured to obtain the objective refractive values of the left and right subject eyes, respectively (axiomatic for eponymously named eye refractive power measurement system 33), under a condition where the pinhole plates are respectively disposed by the visual-target presenting portion (inter alia paragraph [0058] “32p is inserted into the optical path of the visual target projection system 32”) and the visual targets presented at the convergence position are binocularly fused (inter alia paragraph [0085] “objective examination is performed with binocular vision”).
Regarding claim 2 Sakurada discloses the ophthalmologic apparatus according to claim 1, as set forth above. Sakurada further discloses wherein the visual-target presenting portion (e.g. 32) is provided in a visual-target projection system (e.g. visual target projection system 32) that is configured to project the visual targets onto the left and right subject eyes, respectively (inter alia paragraph [0031] “a visual target projection system 32 of each of the left-eye and right-eye measurement heads 16L, 16R” e.g. see figures 3A-3B).
Regarding claim 3 Sakurada discloses the ophthalmologic apparatus according to claim 2, as set forth above. Sakurada further discloses it is further comprising a left measuring head portion (e.g. left-eye measurement head 16L) comprising a left-side visual-target projection system (e.g. 32, see figures 3A-3B) and a left-side objective measurement optical system (e.g. observation system 31 including 33), both aligned on a common optical axis to correspond to the left subject eye (e.g. see figures 3A-3B), and a right measuring head portion (e.g. right-eye measurement head 16R) comprising a right-side visual-target projection system (e.g. 32, see figures 3A-3B) and a right-side objective measurement optical system (e.g. 31 including 33), both aligned on a common optical axis to correspond to the right subject eye (e.g. see figures 3A-3B), wherein the visual-target presenting portion is configured to change the convergence position where the visual targets are presented by rotating the left and right measuring head portions by equal angles in opposite directions, with the pinhole plates respectively disposed in the left-side and right-side visual-target projection systems (inter alia paragraph [0029-31] discuss the heads can be rotated individually or conjunction, i.e. is capable of the function1, further figures 3A & 3B illustrates the heads rotated inwardly equal amounts).
Regarding claim 4 Sakurada discloses the ophthalmologic apparatus according to claim 2, as set forth above. Sakurada further discloses wherein the left-side and right-side objective measurement optical systems are configured to obtain the objective refractive values of the left and right subject eyes, respectively, each time the left and right measuring head portions are rotated (inter alia abstract & paragraph [0030] “10 can conduct the examinations of the divergence movement and the convergence movement, and conduct examinations at various examination distances from a far-point examination at a far-point distance to a near-point examination at a near-point distance with the binocular vision to measure various characteristics of both subject eyes E”).
Regarding claim 5 Sakurada discloses the ophthalmologic apparatus according to claim 2, as set forth above. Sakurada further discloses it is further comprising a controller that is configured to control the visual-target projection system (inter alia abstract “a controller that is configured to control the visual target projection system” e.g. controller 26) and the objective measurement optical system (inherent, further inter alia paragraph [0070] “26 functions as a measurement condition setting portion, and controls the measurement optical systems 21 according to the type of examination to measure the eye characteristics. The measurement condition includes, for example, the type of examination in the objective examination”), wherein the controller is further configured to determine a convergence accommodation based on a change in the objective refractive values relative to a change in the convergence position (inter alia paragraph [0030] discusses rotating left and right heads including 32 so that “10 can conduct the examinations of the divergence movement and the convergence movement, and conduct examinations at various examination distances from a far-point examination at a far-point distance to a near-point examination at a near-point distance with the binocular vision to measure various characteristics of both subject eyes E”).
Claims 1-2 and 5 are rejected under 35 U.S.C. 102(a)(1 & 2) as being anticipated by Leube et al. US Patent Application Publication 2022/0151484.
Regarding claim 1 Leube discloses an ophthalmologic apparatus (title e.g. figure 2 apparatus 110) comprising: a visual-target presenting portion that is configured to present visual targets to left and right subject eyes, respectively (inter alia paragraph [0197] “the two eyes 112, 112′ of the user initially each fixate a target” e.g. figure 3 target 164); and an objective measurement optical system that is configured to objectively measure eye characteristics of the left and right subject eyes, respectively (e.g. refraction measuring device 144), wherein the visual-target presenting portion is configured to present the visual targets while changing a convergence position, where two lines of sight from positions of the left and right subject eyes intersect (inter alia paragraph [0197-98] discusses target at different distances 160 & 164, see figure 3), with pinhole plates (e.g. stop 148) respectively disposed at positions conjugate with pupils of the left and right subject eyes (positioning necessary for proper function of 144), and wherein the objective measurement optical system is configured to obtain the objective refractive values of the left and right subject eyes, respectively (axiomatic), under a condition where the pinhole plates are respectively disposed by the visual-target presenting portion (see figure 2) and the visual targets presented at the convergence position are binocularly fused (see figure 3).
Regarding claim 2 Leube discloses the ophthalmologic apparatus according to claim 1, as set forth above. Leube further discloses wherein the visual-target presenting portion is provided in a visual-target projection system that is configured to project the visual targets onto the left and right subject eyes, respectively (implicit given paragraph [0042] can be presented by means of a projection device and visual display unit 130).
Regarding claim 5 Leube discloses the ophthalmologic apparatus according to claim 2, as set forth above. Leube further discloses it is further comprising a controller that is configured to control the visual-target projection system and the objective measurement optical system (inherent for proper operation e.g. paragraph [0193] “136 can also be used to control the eye movement measuring device 132 and the device 124 for presenting”), wherein the controller is further configured to determine a convergence accommodation based on a change in the objective refractive values relative to a change in the convergence position (e.g. evaluation unit 136).
Claim Rejections - 35 USC § 103
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 3-4 are rejected under 35 U.S.C. 103 as being unpatentable over Leube et al. US Patent Application Publication 2022/0151484 in view of Sakurada et al. foreign patent JP2018042760A.
Regarding claims 3-4 Leube discloses the ophthalmologic apparatus according to claim 2, as set forth above. Leube further discloses it is further comprising a left measuring head portion comprising a left-side visual-target projection system and a left-side objective measurement optical system, both aligned on a common optical axis to correspond to the left subject eye, and a right measuring head portion comprising a right-side visual-target projection system and a right-side objective measurement optical system, both aligned on a common optical axis to correspond to the right subject eye (e.g. 110 in figure 2 in front of eye 112 or 112’ see paragraph [0186] “110 according to the disclosure for jointly determining accommodation and vergence of one or both eyes 112, 112′ of a user”), wherein the visual-target presenting portion is configured to change the convergence position where the visual targets are presented (e.g. 164 at 160 & 166) with the pinhole plates respectively disposed in the left-side and right-side visual-target projection systems (e.g. 148), as required by claim 3; and wherein the left-side and right-side objective measurement optical systems are configured to obtain the objective refractive values of the left and right subject eyes, respectively, at the different vergence caused by the target being at different positions (inter alia paragraph [0202-08] e.g. figure 4 & paragraph [0207] “step d) there is the joint determination 220 of the accommodation and the vergence of the eye 112 of the user by determining 222 a change in the refraction of the eye 112 with the accommodation of the eye 112 at the at least one first distance in relation to the accommodation of the eye 112 at a second distance” ), as required by claim 4.
Leube does not disclose the vergence is changed by rotating the left and right measuring head portions by equal angles in opposite directions, as recited in claim 3 and rotation being required during the different measurements required by 4.
Sakurada teaches a similar ophthalmologic apparatus (title, abstract figures 1 & 3 ophthalmic examination device 1) comprising: a visual-target presenting portion that is configured to present visual targets to left and right subject eyes, respectively (paragraph [0011] “a visual target is presented” e.g. target presentation units 122L & 122R); and an objective measurement optical system that is configured to objectively measure eye characteristics of the left and right subject eyes, respectively (paragraph [0011] “Objective measurement is a method of obtaining information about the eye being examined” e.g. objective measurement units 123L & 123R in inspection units 120L & 120R), wherein the visual-target presenting portion is configured to present the visual targets while changing a convergence position, where two lines of sight from positions of the left and right subject eyes intersect (e.g. figure 7 shows 120L & 120R being rotated for the various measurements), and further teaches the vergence is changed by rotating (e.g. via rotation mechanisms 112L & 112R) the left and right measuring head portions (e.g. 120L & 120R) by equal angles in opposite directions (inter alia paragraph [0026] “left eye examination unit 120L and the right eye examination unit 120R are rotated in opposite directions”) and rotating while measurements are taken (inter alia paragraph [0166] “generates first relationship information … representing the relationship between the presentation distance and refractive power”) for the purpose of allowing the eyes under examination to be diverged and converged (inter alia paragraph [0026]) and for the confirmation of the relationship between the rotational state of the eye being examined and the fusion state, and confirming information representing the relationship between the presentation distance of the visual target and accommodative power (inter alia paragraphs [0166-67]). Therefore, it would be obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention for the ophthalmologic apparatus as disclosed by Leube to have the vergence is changed by rotating the left and right measuring head portions by equal angles in opposite directions and rotation being required during the different measurements as taught by Sakurada for the purpose of allowing the eyes under examination to be diverged and converged and for the confirmation of the relationship between the rotational state of the eye being examined and the fusion state, and confirming information representing the relationship between the presentation distance of the visual target and accommodative power.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Horwitz US Patent 5,963,300; in regards to an invention with some similarities, see figures 1-3, 5 and 9-11.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to George G King whose telephone number is (303)297-4273. The examiner can normally be reached 9-5.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Ricky Mack can be reached at (571) 272-2333. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/George G. King/Primary Examiner, Art Unit 2872 May 30, 2026
1 As set forth in the 112 section above “that is configured to” is interpret to be synonymous with “that is capable of”. It has been held that the recitation that an element is "capable of" performing a function is not a positive limitation but only requires the ability to so perform. It does not constitute a limitation in any patentable sense; In re Hutchison, 69 USPQ 138. Also see Intel Corp. v. U.S. Int'l Trade Comm’n, 946 F.2d 821, 832, 20 USPQ2d 1161, 1171 (Fed. Cir. 1991), MPEP 2114. IV and MPEP 2173.05(g).
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