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 .
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.
Priority
Applicant’s claim for the benefit of a prior-filed application under 35 U.S.C. 119(e) or under 35 U.S.C. 120, 121, 365(c), or 386(c) is acknowledged.
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.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-19 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
The term “high” in claims 1, 18, and 19 is a relative and/or subjective term which renders the claim indefinite. The term “high” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. Regions considered to have “high” intensity may vary and no longer considered to be “high” depending on illumination, application, location, time, etc.
A claim that requires the exercise of subjective judgment without restriction renders the claim indefinite. In re Musgrave, 431 F.2d 882, 893, 167 USPQ 280, 289 (CCPA 1970). Claim scope cannot depend solely on the unrestrained, subjective opinion of a particular individual purported to be practicing the invention. Datamize LLC v. Plumtree Software, Inc., 417 F.3d 1342, 1350, 75 USPQ2d 1801, 1807 (Fed. Cir. 2005)); see also Interval Licensing LLC v. AOL, Inc., 766 F.3d 1364, 1373, 112 USPQ2d 1188 (Fed. Cir. 2014).
For the purpose of further examination, the limitation has been interpreted as “higher”.
Claims 2-17 depend from claim 1 and therefore inherit all of the deficiencies of claim 1 discussed above.
Claim 16 further recites the “the region”. The limitation renders the claim indefinite because it is unclear which region is being referred to among many “regions” recited earlier in the claims, e.g., “one or more saturated regions” “one or more high-intensity regions”, “one or more specular reflection regions”, “a region of wet tissue”, and “a region extracted”.
For the purpose of further examination, claim 16 has been interpreted as extracting a subregion or a region of interest from the image of a surgical environment.
Claim Rejections - 35 USC § 102
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.
Claim(s) 1-3, 5, 16, 18, and 19 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Yao et al. (“Specular Reflection Detection on Gastroscopic Images,” 4th International Conference on Bioinformatics and Biomedical Engineering, 23 July 2010), hereinafter referred to as Yao.
Regarding claim 1, Yao teaches a surgical system, the system comprising:
one or more processors configured and memory storing computer-readable instructions, wherein the one or more processors are configured to execute the instructions to cause the system to (Yao pg. 1 left column, Keywords: “Gastric cancer computer aided diagnosis” – computer aided diagnosis requires a computer, a computer comprises at least one processor and memory):
receive image data representing an image of a surgical environment (Yao Fig. 1; Yao pg. 3: “We selected 64 gastroscopic images from 2007 to 2008 in Ruijin Hospital, Shanghai, China, including regions of antrum, gastric angulus, gastric body, fundus and duodenal cap as well as abnormal regions of ulcer, polyp, hyperplasia and others. The gastroscopic images with 768 x 576 pixels and 24 bits per pixel color depth were recorded in JPEG format”);
detect, based on the received image data, one or more saturated regions in the image (Yao Fig. 2; Yao pg. 1-2: “Here saturation component was stretches from 0-1 to 0-255, in order to form a square map. Then a threshold is set to reduce the noise and remove some low-density area”);
detect, based on the received image data, one or more high-intensity regions in the image data (Yao pg. 1 right column: “The specularities in the color image usually have high intensity”; Yao pg. 2 right column: “reflection pixels are with high intensity”);
generate, based on the one or more saturated regions and on the one or more high-intensity regions, data representing one or more specular reflection regions in the image (Yao Figs. 1-2 & pg. 1-2 discussed above).
Regarding claim 2, Yao teaches the system of claim 1, wherein generating the data representing one or more specular reflection regions comprises generating a combined mask based on the one or more saturated regions and on the one or more high-intensity regions (Yao Fig. 2 discussed above; Yao Abstract: “the Intensity-Saturation joint distribution of region of interest (ROI) is obtained in HIS color space”; Yao pg. 1 right column: “we obtained an intensity-saturation joint histogram of reflection and normal region”).
Regarding claim 3, Yao teaches the system of claim 1, wherein the instructions cause the system to generate modified image data by compensating the one or more specular reflection regions (Yao pg. 2 left column discussed above teaches reducing the noise and removing low density area ; also see Yao pg. 3 right column: “The images are preprocessed to extract the valid regions”; Yao Fig. 7).
Regarding claim 5, Yao teaches the system of claim 1, wherein the instructions cause the system to identify, based at least in part on the data representing the one or more specular reflection regions in the image, a region of wet tissue in the image (Yao Abstract: “we develop a method for detecting specular reflection in gastroscopic images”; Yao pg. 1 left column: “specular reflections are common existed in gastroscopic images, which are produced in a high-illumination and wet environment as shown in Fig. 1(a)”).
Regarding claim 16, Yao teaches the system of claim 1, wherein the image data representing the image of a surgical environment is a region extracted from an image larger than the region (Yao pg. 3 right column: “The gastroscopic images with 768 x 576 pixels and 24 bits per pixel color depth were recorded in JPEG format. The images are preprocessed to extract the valid region”).
Regarding claim 18, Yao teaches a method, performed at a surgical system, the method comprising the processes described in claim 1 (Yao Abstract: “we develop a method for detecting specular reflection in gastroscopic images”). Therefore, claim 18 is rejected using the same rationale as applied to claim 1 discussed above.
Regarding claim 19, Yao teaches a non-transitory computer-readable storage medium storing instructions configured to be executed by one or more processors of a surgical system to cause the surgical system to perform the processes described in claim 1 (Yao Abstract & pg. 1 left column, Keywords discussed above). Therefore, claim 19 is rejected using the same rationale as applied to claim 1 discussed above.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 4, 6, 7, 8, and 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Yao et al. (“Specular Reflection Detection on Gastroscopic Images,” 4th International Conference on Bioinformatics and Biomedical Engineering, 23 July 2010), in view of Jiang et al. (US 2004/0208390 A1), hereinafter referred to as Yao and Jiang, respectively.
Regarding claim 4, Yao teaches the system of claim 3, but does not appear to explicitly teach that compensating the one or more specular reflection regions comprises applying one or more inpainting techniques to compensate the one or more specular reflection regions based on neighborhood information.
Pertaining to the same field of endeavor, Jiang teaches that compensating the one or more specular reflection regions comprises applying one or more inpainting techniques to compensate the one or more specular reflection regions based on neighborhood information (Jiang ¶¶0773: “a seed mask, seedMsk, is made by eroding mskOrig twice. Then, to connect neighboring pixels, dilate mskOrig once, then erode the result once to obtain clMskOrig. Finally, to eliminate spurious pixels and regions that are not connected to larger features, compute mask, msk, by performing a flood fill of "on" valued regions of clMskOrig with seeds in seedMsk”).
Yao and Jiang are considered to be analogous art because they are directed to medical image processing. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the specular reflection detection technique (as taught by Yao) to use inpainting techniques (as taught by Jiang) because the combination can connect disjointed neighboring pixels belonging to the same object (Jiang ¶¶0773).
Regarding claim 6, Yao teaches the system of claim 1, but does not appear to explicitly teach that detecting the one or more saturated regions in the image data is based on red channel data of the image data.
Pertaining to the same field of endeavor, Jiang teaches that detecting the one or more saturated regions in the image data is based on red channel data of the image data (Jiang ¶¶0404: “the R value of saturated spots is ‘red clipped’ such that if R is greater than 180 at any pixel, the R value is reduced by 50”).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the specular reflection detection technique (as taught by Yao) to use red channel data for saturation (as taught by Jiang) because the red channel can visualize laser spots in contrast to the surrounding tissue (Jiang ¶¶0404).
Regarding claim 7, Yao teaches the system of claim 1, wherein detecting the one or more saturated regions in the image data comprises applying an adaptive threshold to the image data (Yao pg. 2 left column discussed above teaches using a threshold).
However, Yao does not appear to explicitly teach applying an adaptive threshold.
Pertaining to the same field of endeavor, Jiang teaches using an adaptive threshold (Jiang ¶¶0652: “The white specks of glare in the tissue image 1794 in FIG. 94A are identified by the image mask 1796. The image mask is determined using an adaptive thresholding image processing procedure”).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the specular reflection detection technique (as taught by Yao) to use an adaptive threshold (as taught by Jiang) because the combination accounts for varying illumination amount over the image (Jiang ¶¶0652).
Regarding claim 8, Yao teaches the system of claim 1, but does not appear to explicitly teach detecting the one or more high-intensity regions in the image data is based on green channel data of the image data.
Pertaining to the same field of endeavor, Jiang teaches detecting the one or more high-intensity regions in the image data is based on green channel data of the image data (Jiang ¶¶0406: “The green-channel luminance (brightness)”; also see Jiang ¶¶0691: “the smoke tube tissue in these images (without visible prongs) is generally either a blue or blue-green color with almost no red component; and the smoke tube in these images is identified (and removed from consideration) by the general region-of-interest image mask”; Jiang Fig. 99A-99B: the smoke tube tissue region has high intensity).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the specular reflection detection technique (as taught by Yao) to use an adaptive threshold (as taught by Jiang) because the combination can remove irrelevant regions from consideration (Jiang ¶¶0691).
Regarding claim 17, Yao teaches the system of claim 1, but does not appear to explicitly teach performing a scaling operation on the image data.
Pertaining to the same field of endeavor, Jiang teaches that the instructions cause the system to perform a scaling operation on the image data (Jiang ¶¶0252: “In order to provide the scaling factor, the instrument 102 directs a portion of a light beam onto the CCD array, for example, at pixel indices 401 to 521, and integrates intensity readings over this portion of the array”).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the specular reflection detection technique (as taught by Yao) to perform scaling (as taught by Jiang) because the combination corrects the images for appropriate processing methods (Jiang ¶¶0252).
Claim(s) 9-10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Yao et al. (“Specular Reflection Detection on Gastroscopic Images,” 4th International Conference on Bioinformatics and Biomedical Engineering, 23 July 2010), in view of Lazebnik et al. (US 2011/0125016 A1), hereinafter referred to as Yao and Lazebnik, respectively.
Regarding claim 9, Yao teaches the system of claim 1, but does not appear to explicitly teach that the one or more high-intensity regions in the image data comprises applying open top-hat with reconstruction filters to the image data.
Pertaining to the same field of endeavor, Lazebnik teaches that the one or more high-intensity regions in the image data comprises applying open top-hat with reconstruction filters to the image data (Lazebnik ¶¶0036: “The filtering is a function of the morphological shape. A top hat or other filter identifies bright (higher intensity) regions with bone like shapes (e.g., long and thin bright region). The white top hat filter takes the difference of the original image and a version of the image on which an open transform has been performed. The open transform is a filter that dilates an erosion of the original image. Other filters or combinations of filters may be used”).
Yao and Lazebnik are considered to be analogous art because they are directed to medical image processing. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the specular reflection detection technique (as taught by Yao) to use an open top-hat filter (as taught by Lazebnik) because the combination identifies and corrects higher intensity regions based on shapes (Lazebnik ¶¶0036).
.
Regarding claim 10, Yao, in view of Lazebnik, teaches the system of claim 9, wherein the reconstruction filters comprise different sizes of structuring elements and different corresponding thresholds (Yao Fig. 3: the templates have different sizes; Yao pg. 2 right column & eq. (1)-(4) teach that the different templates corresponding to different shapes have different thresholds, e.g., IS coordinate being different and threshold in Eq. (2); Lazebnik ¶¶0036 discussed above teaches that the filter is a function of morphological shapes).
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.
Claims 1-19 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-49 of U.S. Patent No. 11,715,199 and claims 1-28 of U.S. Patent No. 12,131,470. Although the claims at issue are not identical, they are not patentably distinct from each other because they are directed to detecting saturated and high-intensity regions corresponding to specular reflectance and/or surgical cauterization sparks using red and green channels, automating the activation state from the smoke evacuation mode vs. image processing mode, and performing scaling.
Allowable Subject Matter
Claims 11-15 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter:
Regarding claim 11, the prior art of record teaches that it was known at the time the application was filed to use the system of claim 1, wherein the instructions cause the system to determine cauterization light sparks (Keller Abstract: “A device for detecting metal with sparking electrosurgical instruments contains a metal detector, which decides, on the basis of the current (and the voltage) delivered to the instrument, whether a spark originating from the instrument contacts biological tissue or a metal part” – the detection is based on electric current and/or voltage).
However, the prior art, alone or in combination, does not appear to teach or suggest that the detected cauterization light sparks in the image are based at least in part on the data representing the one or more specular reflection regions in the image.
Regarding claim 12, the prior art of record teaches that it was known at the time the application was filed to use the system of claim 1, further comprising a surgical device configured to automatically change between activation states based on detected surgical smoke (Mahadik ¶¶0042: “goal of the aspect as discussed herein is to detect the presence of such smoke, the intensity of the smoke and the degree of spread of the smoke in the surgical video in order to be able to automatically turn on/off an image processing algorithm (e.g., in the video enhancer 38) for de-hazing as well as turn on/off or reduce power of surgical devices associated with the smoke (e.g., ventilation)”).
However, the prior art, alone or in combination, does not appear to teach or suggest automatically determining whether to change an activation state of the surgical device based on the determination as to whether the received image data represents cauterization light sparks in the image.
Claims 13-15 are objected to for the same reason as claim 12 discussed above due to dependency.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SOO J SHIN whose telephone number is (571)272-9753. The examiner can normally be reached M-F; 10-6.
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/Soo Shin/Primary Examiner, Art Unit 2667 571-272-9753
soo.shin@uspto.gov
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