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 .
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).
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Claims 16-19 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 31-34 of U.S. Patent No. 10,675,146 and claims 16-19 of U.S. Patent No 12,161,550. Although the claims at issue are not identical, they are not patentably distinct from each other because they each claim an intraocular lens comprising a base structure providing a first focus and first spherical aberration, a diffractive structure providing a second focus, a second spherical aberration, a third focus and a third spherical aberration wherein the magnitude of the third spherical aberration is less than a magnitude of the second spherical aberration; wherein the first focus corresponds to a distance vision and a second focus corresponds to a near vision; and wherein the first, second and third spherical powers have the same power sign.
Allowable Subject Matter
But for the double patenting rejection above claims 16-19 would be allowable.
With respect to claim 16, the closest prior art Bradley et al. (AU2015201867, of record) and Kaji et al. (USPAT 6088543, of record) fail to disclose a third spherical aberration having a magnitude less than a magnitude of the second spherical aberration. Bradley teaches a method of correcting spherical aberration that uses a first and second spherical aberration associated with a first and second focus. The inclusion of a third focus, which defines a third spherical aberration, would require modification of the spherical aberration of the first and second focus to accommodate image correction at three different focal lengths. It would require one of ordinary skill a significant amount of time and experimentation to discover the optimum first, second and third focuses as well as the first, second and third spherical aberration magnitudes with no guarantee of success.
Claims 6 and 13 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Examiner’s Note
Applicant’s claims 1-19 are identical to those of the original claim set from application 17/664,531 and 18/479,314. After a search no new art was found that the office considers more appropriate than what was found previously. Therefore, the rejection below relies on the same art for rejecting these claims.
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, 4, 5, 7, 8, 10-12 and 14 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Bradley et al. (AU2015201867 of record).
Regarding claim 1, as best understood, Bradley discloses an ophthalmic lens comprising:
an anterior surface having an anterior surface base curvature ([0015] base optic);
a posterior surface having a posterior surface base curvature ([0015] base optic),
wherein the anterior surface base curvature and the posterior surface base curvature are adapted to provide a base power defining a first focus corresponding to a first focal length and a first spherical aberration corresponding to the first focus ([0017] where the base optic provides a distance power and [0015] having a negative spherical aberration for the distance power); and
a diffractive structure disposed on one of the anterior surface and the posterior surface ([0015]), the diffractive structure adapted to:
split light between the first focus corresponding to the first focal length and a second focus corresponding to a second focal length ([0015]-[0017]); and
provide a second spherical aberration corresponding to the second focus, the second spherical aberration having an opposite sign relative to the first spherical aberration ([0015] a positive spherical aberration for the near power);
wherein:
the first focus is associated with a first intensity peak of an energy profile of the ophthalmic lens ([0015]-[0017]);
the second focus is associated with a second intensity peak of the energy profile of the ophthalmic lens ([0015]-[0017]); and
the first spherical aberration extends the first intensity peak asymmetrically toward the second intensity peak ([0015]-[0017]).
Regarding claim 4, Bradley discloses wherein the first spherical aberration is aPage 16 of 20DOCKET NO. PAT056455-US-CNTPATENT APPLICATION negative spherical aberration and the second spherical aberration is a positive spherical aberration ([0015]).
Regarding claim 5, Bradley discloses wherein the first spherical aberration is a Page 16 of 20DOCKET NO. PAT056455-US-CNTPATENT APPLICATION negative spherical aberration and the second spherical aberration is a positive spherical aberration ([0015]).
Regarding claim 7, as best understood, Bradley discloses wherein the second spherical aberration extends the second intensity peak asymmetrically toward the first intensity peak ([0015]-[0017]).
Regarding claim 8, Bradley discloses wherein the diffractive structure is adapted to split light between the first focus corresponding to the first focal length, the second focus corresponding to the second focal length, and a third focus corresponding to an intermediate focal length that is between the first focal length and the second focal length ([0012] and [0024] where the lens may be a trifocal).
Regarding claim 10, as best understood, Bradley discloses wherein the second spherical aberration extends the second intensity peak asymmetrically toward the first intensity peak ([0015]-[0017]).
Regarding claim 11, Bradley discloses wherein the ophthalmic lens is one of an intraocular lens and a contact lens ([0024]).
Regarding claim 12, as best understood, Bradley discloses an intraocular lens comprising ([0024]):
an anterior surface having an anterior surface base curvature and a posterior surface having a posterior surface base curvature ([0015]), the anterior surface base curvature and the posterior surface base curvature collectively disposed to provide:
a base power defining a far focus corresponding to a first focal length ([0015]); and
a negative spherical aberration corresponding to the far focus and having a first magnitude ([0017] where the base optic provides a distance power and [0015] having a negative spherical aberration for the distance power); and
a diffractive structure disposed on one of the anterior surface and the posterior surface ([0015]), the diffractive structure disposed to:
distribute light between the far focus corresponding to the first focal length and a near focus corresponding to a second focal length ([0015]-[0017]); and
provide a positive spherical aberration corresponding to the near focus and having a second magnitude ([0015] a positive spherical aberration for the near power);
wherein:
the far focus is associated with a first intensity peak of an energy profile of the ophthalmic lens ([0015]-[0017]);
the near focus is associated with a second intensity peak of the energy profile of the ophthalmic lens ([0015]-[0017]);
the negative spherical aberration extends the first intensity peak asymmetrically toward the second intensity peak ([0015]-[0017]); and
the positive spherical aberration extends the second intensity peak asymmetrically toward the first intensity peak ([0015]-[0017]).
Regarding claim 14, Bradley discloses wherein the diffractive structure is further adapted to distribute light to an intermediate focus between the far focus and the near focus ([0012] and [0024] where the lens may be a trifocal).
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.
Claims 2 and 3 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bradley in view of Kobayashi et al. (PGPUB 20110270390, of record).
Regarding claim 2, Bradley does not disclose wherein the diffractive structure includes a first diffractive order for the first focus and a second diffractive order for the second focus.
However, Kobayashi teaches a lens having a diffractive grating ([0013]) comprising a first zeroth order focus and a first order focus ([0013]).
It would have been obvious to one having ordinary skill in the art as of the effective filing date of the invention to combine Bradley and Kobayashi such that the diffractive structure included a first and second focus motivated by ensuring multi-focusing effect more securely while reducing impact on pupil structure ([0009]).
Regarding claim 3, modified Bradley discloses wherein the first diffractive order is the 0th order and the second diffractive order is the 1st order ([0013] of Kobayashi).
Claims 9 and 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bradley in view of Bakaraju et al. (PGPUB 20170115508, of record).
Regarding claim 9, Bradley does not disclose wherein: the diffractive structure provides a third spherical aberration corresponding to the third focus; and a magnitude of the third spherical aberration is less than a magnitude of the second spherical aberration.
However, Bakaraju teaches an ophthalmic lens comprising at least 3 spherical aberration components wherein a third spherical aberration is less than a magnitude of the second spherical aberration (the first and second aberrations are Zernike polynomials C(4,0) and C(6,0) and the third polynomial is C(8,0) or C(20,0) and also see [0173] where it is stated that spherical aberration coefficients progressively decrease in absolute magnitude with an increase in order.
It would have been obvious to one having ordinary skill in the art as of the effective filing date of the invention to combine Bradley and Bakaraju such that the diffractive structure included a third spherical aberration and focus such that a magnitude of a third spherical aberration was less than the second motivated by improved performance on the through-focus curve ([0051]).
Regarding claim 15, Bradley does not disclose wherein: Page 18 of 20DOCKET NO. PAT056455-US-CNTPATENT APPLICATION
the diffractive structure provides a third spherical aberration corresponding to the intermediate focus; the sign of the third spherical aberration is positive; and the third spherical aberration has a third magnitude, the third magnitude being less than the second magnitude.
However, Bakaraju teaches an ophthalmic lens comprising at least 3 spherical aberration components wherein a third spherical aberration is less than a magnitude of the second spherical aberration (the first and second aberrations are Zernike polynomials C(4,0) and C(6,0) and the third polynomial is C(8,0) or C(20,0) and also see [0173] where it is stated that spherical aberration coefficients progressively decrease in absolute magnitude with an increase in order.
It would have been obvious to one having ordinary skill in the art as of the effective filing date of the invention to combine Bradley and Bakaraju such that the diffractive structure included a third spherical aberration and focus such that a magnitude of a third spherical aberration was less than the second motivated by improved performance on the through-focus curve ([0051]).
Conclusion
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/TRAVIS S FISSEL/ Primary Examiner, Art Unit 2872
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