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 .
Response to Amendment
Applicant’s amendment filed 4/13/2026 is acknowledged.
In light of the applicant’s amendments and remarks, the rejection set forth under 112b in the prior office action has been withdrawn.
Claims 1, 10-13, and 20 remain pending in the current application.
Claim Objections
Claims 1, 13, and 20 recite the operator “and/or” which may be interpreted many different ways. In order to prevent any possible ambiguity, it is suggested to amend the claim to use either “and” or “or” rather than and/or. For the purpose of this office action the and/or operator is interpreted as meaning “or”.
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.
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.
Claim(s) 1, 10-13, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Tang (CN105433980A) in view of Ponomarev (US 20040114800 A1) and Manzke (US 20140155737 A1).
Regarding claim 1, Tang teaches an ultrasonic imaging method ([0006] an ultrasound imaging method)
transmitting an ultrasonic wave to a uterine region of an object to be detected for volume scanning ([0037] transmits ultrasound waves to the uterus of the person to be examined through the probe; [0047] 3D volume data model)
receiving an ultrasonic echo reflected from the uterine region of the object to be detected, and acquiring an ultrasonic echo signal based on the ultrasonic echo ([0037] receives the ultrasound beams returned from the uterus, and sends them to the image processor after beam synthesis to form an ultrasound image)
processing the ultrasonic echo signal to obtain three-dimensional volume data of the uterine region of the object to be detected ([0037] receives the ultrasound beams returned from the uterus, and sends them to the image processor after beam synthesis to form an ultrasound image; [0006] The present invention provides an ultrasound imaging method for 3D imaging; [0047] 3D volume data model)
so as to obtain position information of the identified endometrium ([0038] As shown in Figure 7, the 3D ultrasound image includes: A section, B section, C section, and 3D image. The A, B, and C sections are section images along the X-axis, Y-axis, and Z-axis respectively, and the A and B planes are commonly used as endometrial observation planes)
wherein the position information represents a position of the identified endometrium in the three-dimensional volume data ([0038] As shown in Figure 7, the 3D ultrasound image includes: A section, B section, C section, and 3D image. The A, B, and C sections are section images along the X-axis, Y-axis, and Z-axis respectively, and the A and B planes are commonly used as endometrial observation planes; a sagittal view of the uterus is visible in the third quadrant of fig. 7)
performing imaging on the identified endometrium based on the three-dimensional volume data according to the position information of the identified endometrium ([0039] a 3D image of the endometrium is usually required; [0040] extract partial images of the endometrium)
so as to obtain an image of the identified endometrium ([0041] the endometrium needs to be extracted from the entire uterine ultrasound image)
displaying the image of the identified endometrium (Fig. 7 is displayed image)
PNG
media_image1.png
449
493
media_image1.png
Greyscale
and performing identification according to a periodically changing morphological characteristic of an endometrium in a uterine region, to obtain the position information ([0020] After the doctor obtains the 3D ultrasound image of the uterus including the endometrium, he extracts the partial image of the endometrium, rotates the ultrasound image so that the endometrial image is horizontal, and then adjusts the shear line so that the axial direction corresponds to the endometrium)
Tang fails to teach identifying an endometrium from the three-dimensional volume data and the imaging on the identified endometrium comprises a Computed Multiplanar Reformation (CMPR) imaging of the identified endometrium, the CMPR imaging of the identified endometrium involves taking a trajectory curve of the endometrium in a section image of the three-dimensional volume data of the uterine region, and the trajectory curve of the endometrium sections the three-dimensional volume data of the uterine region to obtain a profile image of the trajectory curve of the endometrium.
However, Ponomarev teaches identifying an endometrium from the three-dimensional volume data ([0017] a computer-implemented method for object identification through segmentation. The computer-implemented method allows for segmenting homogenous or inhomogeneous objects of rather uniform dimensions and geometry in 2-dimensional or 3-dimensional images; [0142] Any tissue sample from a subject may be used. Examples of tissue samples that may be used include, but are not limited to… endometrium; [0069] The matrix of centroids is the resulting three-dimensional map of the objects in the image that can be studied further).
Tang and Ponomarev are considered analogous because both are drawn to medical image analysis. Therefore, it would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to use a segmentation-based approach to identify an endometrium from the three-dimensional data in order to be applied in areas where objects need to be quickly identified based on geometrical properties (Ponomarev [0016])
Tang in view of Pomonarev fails to teach the imaging the identified endometrium comprises a Computed Multiplanar Reformation (CMPR) imaging of the identified endometrium, the CMPR imaging of the identified endometrium involves taking a trajectory curve of the endometrium in a section image of the three-dimensional volume data of the uterine region, and the trajectory curve of the endometrium sections the three-dimensional volume data of the uterine region to obtain a profile image of the trajectory curve of the endometrium.
However, Manzke teaches the obtained image comprises a Computed Multiplanar Reformation (CMPR) imaging ([0006] registering the three-dimensional structure having the shape sensing device therein with an image volume; and generating a curved multi-planar reconstruction (CMPR) image from the shape sensing data)
the CMPR imaging involves taking a trajectory curve of the endometrium in a section image of the three-dimensional volume data and the trajectory curve sections the three-dimensional volume data to obtain a profile image of the trajectory curve ([0016] acquisition of k-space trajectories following the orthogonal Cartesian coordinate system (e.g., rectilinear imaging)… processing method that captures micrometer-resolution, three-dimensional images from within optical scattering media (e.g., biological tissue))
Tang and Manzke are considered analogous because both disclose three-dimensional medical imaging methods. Therefore, it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the pending application to image an endometrium as disclosed in Tang with a CMPR imaging method as disclosed in Manzke in order to reduce tedium when generating path data (e.g., the curved line) (Manzke [0003])
Regarding claim 10, Tang teaches extracting a sagittal section image comprising the identified endometrium from the three-dimensional volume data according to the position information of the identified endometrium ([0038] As shown in Figure 7, the 3D ultrasound image includes: A section, B section, C section, and 3D image. The A, B, and C sections are section images along the X-axis, Y-axis, and Z-axis respectively, and the A and B planes are commonly used as endometrial observation planes; a sagittal view of the uterus is visible in the third quadrant of fig. 7)
and automatically generating a line of trajectory of the identified endometrium in the sagittal section image; and performing curved planar imaging of the identified endometrium for the three-dimensional volume data according to the line of trajectory, so as to obtain the image of the identified endometrium ([0053] The ROI shear line is spliced by two curves. The two curves are located in the A and B planes respectively. When the intima is curved, the inflection point of the intima can be found by moving the ROI shear in the A plane and the B plane. From the middle control point of the tangent line to the inflection point, the adjustment of the ROI shear line can be realized; [0055] Obtain a 3D image of the endometrium extracted according to the adjusted ROI shear line)
Regarding claim 11, Tang teaches a position of the identified endometrium in a sagittal plane and a position of the identified endometrium in a transverse plane ([0053] The two curves are located in the A and B planes respectively)
and automatically generating a line of trajectory of the identified endometrium in the sagittal section image comprises: adjusting an orientation of the three-dimensional volume data of the uterine region until the position of the identified endometrium in the transverse plane conforms to a preset position of the identified endometrium in the transverse plane ([0053] the inflection point of the intima can be found by moving the ROI shear in the A plane and the B plane. From the middle control point of the tangent line to the inflection point, the adjustment of the ROI shear line can be realized)
and determining the position of the identified endometrium in the sagittal plane based on the three-dimensional volume data with the adjusted orientation of the uterine region, and automatically fitting the line of trajectory of the identified endometrium in the sagittal section image according to the position of the identified endometrium in the sagittal plane ([0057] through the above method, after the doctor obtains the 3D ultrasound image of the uterus including the endometrium, he extracts the partial image of the endometrium, rotates the ultrasound image so that the endometrial image is horizontal, and then adjusts the shear line axially. Corresponds to the endometrium, thereby automatically obtaining a 3D image of the endometrium)
Regarding claim 12, Tang teaches acquiring edge information of the identified endometrium in the sagittal section image according to the position information of the identified endometrium ([0043] the Canny operator is used to obtain the edge of the endometrial image and the endometrial line that approximates the uterus is obtained)
determining an image drawing region according to the edge information and the line of trajectory ([0043] the endometrial line that approximates the uterus is obtained)
and performing curved planar imaging of the identified endometrium for target three-dimensional volume data corresponding to the image drawing region ([0053] The ROI shear line is spliced by two curves. The two curves are located in the A and B planes respectively. When the intima is curved, the inflection point of the intima can be found by moving the ROI shear in the A plane and the B plane. From the middle control point of the tangent line to the inflection point, the adjustment of the ROI shear line can be realized)
so as to obtain an image of the identified endometrium that reflects a thickness of the identified endometrium ([0043] the large and thick uterine capsule border can be removed, leaving only the internal endometrium area).
Regarding claim 13, Tang teaches an ultrasound imaging device ([0002] ultrasonic imaging method, device and ultrasonic equipment)
comprising a probe ([0037] The operator holds a probe in his hand)
a transmitting circuit configured to excite the probe to transmit an ultrasonic wave to an object to be detected for volume scanning a transmitting or receiving selection switch, a receiving circuit configured to receive, by the probe, an ultrasonic echo reflected from the object to be detected, so as to obtain an ultrasonic echo signal or data ([0037] transmits ultrasound waves to the uterus of the person to be examined through the probe, receives the ultrasound beams returned from the uterus).
a beam synthesis circuit configured to perform beam synthesis processing on the ultrasonic echo signal or data to obtain an ultrasonic echo signal or data which has been subjected to beam synthesis ([0037] and sends them to the image processor after beam synthesis to form an ultrasound image)
a processor configured to: process the ultrasonic echo signal which have been subjected to beam synthesis, so as to obtain three-dimensional volume data of an uterine region of the object to be detected ([0037] receives the ultrasound beams returned from the uterus, and sends them to the image processor after beam synthesis to form an ultrasound image; [0006] The present invention provides an ultrasound imaging method for 3D imaging; [0047] 3D volume data model)
so as to obtain position information of the identified endometrium ([0038] As shown in Figure 7, the 3D ultrasound image includes: A section, B section, C section, and 3D image. The A, B, and C sections are section images along the X-axis, Y-axis, and Z-axis respectively, and the A and B planes are commonly used as endometrial observation planes)
wherein the position information represents a position of the identified endometrium in the three-dimensional volume data ([0038] As shown in Figure 7, the 3D ultrasound image includes: A section, B section, C section, and 3D image. The A, B, and C sections are section images along the X-axis, Y-axis, and Z-axis respectively, and the A and B planes are commonly used as endometrial observation planes; a sagittal view of the uterus is visible in the third quadrant of fig. 7)
performing imaging on the identified endometrium based on the three-dimensional volume data according to the position information of the identified endometrium ([0039] a 3D image of the endometrium is usually required; [0040] extract partial images of the endometrium)
so as to obtain an image of the identified endometrium ([0041] the endometrium needs to be extracted from the entire uterine ultrasound image)
and displaying the image of the identified endometrium (Fig. 7 is displayed image)
PNG
media_image1.png
449
493
media_image1.png
Greyscale
and performing identification according to a periodically changing morphological characteristic of an endometrium in a uterine region, to obtain the position information ([0020] After the doctor obtains the 3D ultrasound image of the uterus including the endometrium, he extracts the partial image of the endometrium, rotates the ultrasound image so that the endometrial image is horizontal, and then adjusts the shear line so that the axial direction corresponds to the endometrium)
Tang fails to teach identifying an endometrium from the three-dimensional volume data and the imaging on the identified endometrium comprises a Computed Multiplanar Reformation (CMPR) imaging of the identified endometrium, the CMPR imaging of the identified endometrium involves taking a trajectory curve of the endometrium in a section image of the three-dimensional volume data of the uterine region, and the trajectory curve of the endometrium sections the three-dimensional volume data of the uterine region to obtain a profile image of the trajectory curve of the endometrium.
However, Ponomarev teaches identifying an endometrium from the three-dimensional volume data ([0017] a computer-implemented method for object identification through segmentation. The computer-implemented method allows for segmenting homogenous or inhomogeneous objects of rather uniform dimensions and geometry in 2-dimensional or 3-dimensional images; [0142] Any tissue sample from a subject may be used. Examples of tissue samples that may be used include, but are not limited to… endometrium; [0069] The matrix of centroids is the resulting three-dimensional map of the objects in the image that can be studied further).
Tang and Ponomarev are considered analogous because both are drawn to medical image analysis. Therefore, it would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to use a segmentation-based approach to identify an endometrium from the three-dimensional data in order to be applied in areas where objects need to be quickly identified based on geometrical properties (Ponomarev [0016])
Tang in view of Pomonarev fails to teach the obtained image of the identified endometrium comprises a Computed Multiplanar Reformation (CMPR) imaging of the identified endometrium, the CMPR imaging of the identified endometrium involves taking a trajectory curve of the endometrium in a section image of the three-dimensional volume data of the uterine region, and the trajectory curve of the endometrium sections the three-dimensional volume data of the uterine region to obtain a profile image of the trajectory curve of the endometrium.
However, Manzke teaches the obtained image comprises a Computed Multiplanar Reformation (CMPR) imaging ([0006] registering the three-dimensional structure having the shape sensing device therein with an image volume; and generating a curved multi-planar reconstruction (CMPR) image from the shape sensing data)
the CMPR imaging involves taking a trajectory curve of the endometrium in a section image of the three-dimensional volume data and the trajectory curve sections the three-dimensional volume data to obtain a profile image of the trajectory curve ([0016] acquisition of k-space trajectories following the orthogonal Cartesian coordinate system (e.g., rectilinear imaging)… processing method that captures micrometer-resolution, three-dimensional images from within optical scattering media (e.g., biological tissue))
Tang and Manzke are considered analogous because both disclose three-dimensional medical imaging methods. Therefore, it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the pending application to image an endometrium as disclosed in Tang with a CMPR imaging method as disclosed in Manzke in order to reduce tedium when generating path data (e.g., the curved line) (Manzke [0003])
Regarding claim 14, Tang teaches a difference between the endometrium image characteristic and a basal tissue image characteristic of an uterus or according to a periodically changing morphological characteristic of an endometrium in an uterine region, to obtain the position information ([0020] After the doctor obtains the 3D ultrasound image of the uterus including the endometrium, he extracts the partial image of the endometrium, rotates the ultrasound image so that the endometrial image is horizontal, and then adjusts the shear line so that the axial direction corresponds to the endometrium)
Tang fails to teach identifying the endometrium from the three-dimensional volume data.
However, Ponomarev teaches identifying an endometrium from the three-dimensional volume data ([0017] a computer-implemented method for object identification through segmentation. The computer-implemented method allows for segmenting homogenous or inhomogeneous objects of rather uniform dimensions and geometry in 2-dimensional or 3-dimensional images; [0142] Any tissue sample from a subject may be used. Examples of tissue samples that may be used include, but are not limited to… endometrium; [0069] The matrix of centroids is the resulting three-dimensional map of the objects in the image that can be studied further).
Tang and Ponomarev are considered analogous because both are drawn to medical image analysis. Therefore, it would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to use a segmentation-based approach to identify an endometrium from the three-dimensional data in order to be applied in areas where objects need to be quickly identified based on geometrical properties (Ponomarev [0016])
Regarding claim 20, Tang teaches a non-transitory computer-readable storage medium storing instructions which, when executed by one or more processors, cause the one or more processors to perform operation ([0006] an ultrasound imaging method; [0096] it should be noted that those skilled in the art can understand that all or part of the steps in the various methods of the above embodiments can be completed by instructing relevant hardware through a program, and the program can be stored in a computer-readable storage)
transmitting an ultrasonic wave to a uterine region of an object to be detected for volume scanning ([0037] transmits ultrasound waves to the uterus of the person to be examined through the probe; [0047] 3D volume data model)
receiving an ultrasonic echo reflected from the uterine region of the object to be detected, and acquiring an ultrasonic echo signal based on the ultrasonic echo ([0037] receives the ultrasound beams returned from the uterus, and sends them to the image processor after beam synthesis to form an ultrasound image)
processing the ultrasonic echo signal to obtain three-dimensional volume data of the uterine region of the object to be detected ([0037] receives the ultrasound beams returned from the uterus, and sends them to the image processor after beam synthesis to form an ultrasound image; [0006] The present invention provides an ultrasound imaging method for 3D imaging; [0047] 3D volume data model)
so as to obtain position information of the identified endometrium ([0038] As shown in Figure 7, the 3D ultrasound image includes: A section, B section, C section, and 3D image. The A, B, and C sections are section images along the X-axis, Y-axis, and Z-axis respectively, and the A and B planes are commonly used as endometrial observation planes)
wherein the position information represents a position of the identified endometrium in the three-dimensional volume data ([0038] As shown in Figure 7, the 3D ultrasound image includes: A section, B section, C section, and 3D image. The A, B, and C sections are section images along the X-axis, Y-axis, and Z-axis respectively, and the A and B planes are commonly used as endometrial observation planes; a sagittal view of the uterus is visible in the third quadrant of fig. 7)
performing imaging on the identified endometrium based on the three-dimensional volume data according to the position information of the identified endometrium ([0039] a 3D image of the endometrium is usually required; [0040] extract partial images of the endometrium)
so as to obtain an image of the identified endometrium ([0041] the endometrium needs to be extracted from the entire uterine ultrasound image)
and displaying the image of the identified endometrium (Fig. 7 is displayed image)
PNG
media_image1.png
449
493
media_image1.png
Greyscale
and performing identification according to a periodically changing morphological characteristic of an endometrium in a uterine region, to obtain the position information ([0020] After the doctor obtains the 3D ultrasound image of the uterus including the endometrium, he extracts the partial image of the endometrium, rotates the ultrasound image so that the endometrial image is horizontal, and then adjusts the shear line so that the axial direction corresponds to the endometrium)
Tang fails to teach identifying an endometrium from the three-dimensional volume data and the imaging on the identified endometrium comprises a Computed Multiplanar Reformation (CMPR) imaging of the identified endometrium, the CMPR imaging of the identified endometrium involves taking a trajectory curve of the endometrium in a section image of the three-dimensional volume data of the uterine region, and the trajectory curve of the endometrium sections the three-dimensional volume data of the uterine region to obtain a profile image of the trajectory curve of the endometrium.
However, Ponomarev teaches identifying an endometrium from the three-dimensional volume data ([0017] a computer-implemented method for object identification through segmentation. The computer-implemented method allows for segmenting homogenous or inhomogeneous objects of rather uniform dimensions and geometry in 2-dimensional or 3-dimensional images; [0142] Any tissue sample from a subject may be used. Examples of tissue samples that may be used include, but are not limited to… endometrium; [0069] The matrix of centroids is the resulting three-dimensional map of the objects in the image that can be studied further).
Tang and Ponomarev are considered analogous because both are drawn to medical image analysis. Therefore, it would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to use a segmentation-based approach to identify an endometrium from the three-dimensional data in order to be applied in areas where objects need to be quickly identified based on geometrical properties (Ponomarev [0016])
Tang in view of Pomonarev fails to teach the imaging on the identified endometrium comprises a Computed Multiplanar Reformation (CMPR) imaging of the identified endometrium, the CMPR imaging of the identified endometrium involves taking a trajectory curve of the endometrium in a section image of the three-dimensional volume data of the uterine region, and the trajectory curve of the endometrium sections the three-dimensional volume data of the uterine region to obtain a profile image of the trajectory curve of the endometrium.
However, Manzke teaches the obtained image comprises a Computed Multiplanar Reformation (CMPR) imaging ([0006] registering the three-dimensional structure having the shape sensing device therein with an image volume; and generating a curved multi-planar reconstruction (CMPR) image from the shape sensing data)
the CMPR imaging involves taking a trajectory curve of the endometrium in a section image of the three-dimensional volume data and the trajectory curve sections the three-dimensional volume data to obtain a profile image of the trajectory curve ([0016] acquisition of k-space trajectories following the orthogonal Cartesian coordinate system (e.g., rectilinear imaging)… processing method that captures micrometer-resolution, three-dimensional images from within optical scattering media (e.g., biological tissue))
Tang and Manzke are considered analogous because both disclose three-dimensional medical imaging methods. Therefore, it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the pending application to image an endometrium as disclosed in Tang with a CMPR imaging method as disclosed in Manzke in order to reduce tedium when generating path data (e.g., the curved line) (Manzke [0003])
Response to Arguments
Applicant's arguments filed 4/13/2026 have been fully considered but they are not persuasive. First and foremost, applicant makes the assertion that Tang is not analogous art due to the requirement for manual intervention including image rotation and ROI shear line adjustment. The office fails to see the relevance of such an assertion, at least in regards to the independent claim, as there is no limitation to preclude such a process from being applied to the independent claim. Tang is relied upon to teach ultrasonic imaging of a uterus, generating three-dimensional volume data as well as performing analysis on processed volume data. These claimed features are indeed present in the Tang reference and applicant makes no attempt to argue otherwise. If the applicant’s inventive process differs from that in the Tang reference as is argued, for instance if there is an automatic component that Tang teaches away from, applicant is advised to amend the independent claim to reflect such a difference. Next, applicant claims that Tang does not disclose or suggest CMPR imaging of the endometrium, while acknowledging that the prior rejection relies on the secondary Manzke reference to teach this feature.
The secondary Pomonorev reference is cited specifically to strengthen the reasoning for rejecting the limitation regarding identifying the endometrium from three-dimensional volume data. One of ordinary skill in the art could deduce that the primary Tang reference must be identifying an endometrium given the analysis that is then performed in the Tang reference. However, the Pomonarev reference states this fact more explicitly, emphasizing to the applicant that identification of an endometrium from such data is a known practice in the art. Applicant then states that Pomonarev is performing this action through image data point similarity sorting, contour identification, and geometrical properties and asserts that Pomonarev only broadly references tissue samples and that this cannot teach the automatic identification of an endometrium as claimed. Applicant is reminded once again that there is nothing in the independent claims to suggest that the process is performed automatically. In response to applicant's arguments broadly that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., automation of the steps) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
Even further, applicant asserts that the tertiary Manzke reference is not analogous due to using data from a physical shape of an external device as opposed to from anatomical data. Firstly, the citation from paragraphs [0015-0016] in Manzke which applicant cites discloses fiber optic shape sensing technology which is used to diagnose blood vessels. Thus, the shape of the external device is used to derive information from an anatomical structure rather than teaching away from it as applicant suggests. Furthermore, the claim limitation simply states that CMPR imaging is used and that a trajectory curve sections the image. Paragraph [0016] of Manzke teaches analogous image processing, regardless of how the image data is obtained, and furthermore there is no limitation in the claim that would preclude fiber optic shape sensing technology to be applied to the method as claimed.
Finally, applicant claims that none of the prior art addresses the limitation of periodically changing morphological characteristics of an endometrium in a uterine region, a feature previously presented in now cancelled claim 2 that has been incorporated into the independent claim, yet provides no evidence to explain to back up the assertion that this is not taught. Applicant is pointed to MPEP section 2145 I which reads as follows:
I. ARGUMENT DOES NOT REPLACE EVIDENCE WHERE EVIDENCE IS NECESSARY
An argument by the applicant is not evidence unless it is an admission, in which case, an examiner may use the admission in making a rejection. See MPEP § 2129 and § 2144.03 for a discussion of admissions as prior art.
Arguments presented by applicant cannot take the place of evidence in the record. See In re De Blauwe, 736 F.2d 699, 705, 222 USPQ 191, 196 (Fed. Cir. 1984); In re Schulze, 346 F.2d 600, 602, 145 USPQ 716, 718 (CCPA 1965); In re Geisler, 116 F.3d 1465, 43 USPQ2d 1362 (Fed. Cir. 1997) ("An assertion of what seems to follow from common experience is just attorney argument and not the kind of factual evidence that is required to rebut a prima facie case of obviousness."). See MPEP § 716.01(c) for examples of applicant statements which are not evidence and which must be supported by an appropriate affidavit or declaration.
While it is not clear what the applicant’s reasoning in making this assertion is, it is the interpretation of the office that the doctor’s rotation of the image is considered to be analogous to the changing of a morphological characteristic.
As a final note, it appears that applicant is broadly attacking the references on their individual merits as opposed to as a holistic combination. Accordingly, the applicant is pointed to MPEP section 2145, IV which reads:
One cannot show non-obviousness by attacking references individually where the rejections are based on combinations of references. In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., Inc., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Where a rejection of a claim is based on two or more references, a reply that is limited to what a subset of the applied references teaches or fails to teach, or that fails to address the combined teaching of the applied references may be considered to be an argument that attacks the reference(s) individually. Where an applicant’s reply establishes that each of the applied references fails to teach a limitation and addresses the combined teachings and/or suggestions of the applied prior art, the reply as a whole does not attack the references individually as the phrase is used in Keller and reliance on Keller would not be appropriate. This is because "[T]he test for obviousness is what the combined teachings of the references would have suggested to [a PHOSITA]." In re Mouttet, 686 F.3d 1322, 1333, 103 USPQ2d 1219, 1226 (Fed. Cir. 2012).
For at least the aforementioned reasons, the claims remain rejected under 35 USC 103.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to GABRIEL VICTOR POPESCU whose telephone number is (571)272-7065. The examiner can normally be reached M-F 8AM-5PM.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Anne Kozak can be reached at (571) 270-0552. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/GABRIEL VICTOR POPESCU/Examiner, Art Unit 3797
/SERKAN AKAR/Primary Examiner, Art Unit 3797
Prosecution Insights