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
Acknowledgement is made to Applicant’s claim to priority to U.S. Provisional App. No. 63/595,881 filed 11/03/2023.
Terminal Disclaimer
The terminal disclaimer filed 12/17/2025 does not comply with 37 CFR 1.321 because:
PNG
media_image1.png
282
721
media_image1.png
Greyscale
As such, the terminal disclaimer filed 12/17/2025 is insufficient for overcoming the nonstatutory double patenting rejections.
Status of Claims
This Office Action is responsive to the claims filed on 11/04/2024. Claims 8 and 18 have been cancelled. Claims 1, 7, 13, 16, and 19 have been amended. Claims 1-7, 9-17, 19, and 20 are presently pending in this application.
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.
Claims 1-7, 9-17, 19, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Nikou (WO 2020180917 A1) in view of Kaeseberg (US 20210212768), and Shah (US 20240050129).
Regarding claim 1, Nikou teaches a surgical system (Paragraph [0028]; computer-assisted surgical system (CASS) using computers, robotics, and imaging technology to aid surgeons in performing orthopedic surgery procedures, Fig. 1) comprising:
a tracking device (Paragraph [0151]; tracking device 1100, Figs. 5 and 6) comprising a first tracking marker (Paragraph [0153]; have multiple tracking elements 1101, Fig. 5) configured for use with a surgical navigation tracking system (Paragraph [0034]; The Tracking System 115 uses one or more sensors to collect real-time position data that locates the patient’s anatomy and surgical instruments, Figs. 2A and 2B), the tracking device configured to be mounted to a patient (Paragraph [0045]; Tracker arrays can be mounted on the iliac crest using clamps and/or bone pins and such trackers can be mounted externally through the skin or internally);
an augmented reality marker assembly (Paragraph [0156]; augmented reality marker assembly 1200, Figs. 6 and 7) comprising a second tracking marker (Paragraph [0156]; augmented reality fiducial marker or symbol 1202, Fig. 6 and 7) configured for use with an augmented reality system (Paragraph [0151]; Using these markers, an augmented reality system can track objects within the purview of the video tracking system), the augmented reality marker assembly configured to be attached to the tracking device (Paragraph [0156]; The augmented reality marker assembly 1200 may in turn be attached to a tracking device 1100 for co-registering the surgical navigational and augmented reality tracking modalities, Fig. 6) at a fixed orientation (Paragraph [0159]; reality marker assembly 1200 can be affixed to the tracking device 1100 in a particular known or fixed orientation.), wherein the second tracking marker comprises a contrasting surface (Paragraph [0157]; the augmented reality marker assembly 1200 may be made of injection-molded plastic and have a laser marking, which allows for the proper high-contrast needed in most augmented reality tracking systems);
a sensor assembly (Paragraph [0153]; the elements 1101 are detected by one or more sensor devices (e.g., NAVIO® optical tracking device(s)); Paragraph [0163]; In some embodiments, the sensor(s) may also include an image capture device which can detect and identify one or more augmented reality symbols 1202 associated with an augmented reality marker assembly 1200) configured to identify locations of each of the first tracking marker (Paragraph [0163]; which captures the three dimensional location of the tracking device 1100; detected by a sensor or group of sensors capable of identifying the location of the one or more tracking points) and the second tracking marker (Paragraph [0163]; can detect and identify one or more augmented reality symbols 1202 associated with an augmented reality marker assembly 1200); and
a control system (Paragraph [0167]; control system 501) communicably connected to the sensor assembly (Paragraph [0167]; one or more computing devices configured to coordinate information received from the tracking systems 502 and 503, Fig. 2A, 2B, and 9; Claim 1), the control system configured to:
determine a first three-dimensional orientation of the patient (Paragraph [0169]; navigation module 50 IB receives input from the tracking systems 502… regarding the physical location and orientation of the patient) in a first reference frame by locating the first tracking marker (Paragraph [0153]; determine the exact location and orientation of the tracking device 1100 based on the known tracking reference frame 1102… plurality of tracking elements 1101 as well as the use of one or more sensors (not shown) to detect a patient or patient bone location) via the sensor assembly (Paragraph [0169]; from the tracking systems 502), and
determine a second three-dimensional orientation (Paragraph [0169]; navigation module 50 IB receives input from the… tracking system 503… regarding the physical location and orientation of the patient) of the augmented reality marker assembly (paragraph [0166]; an augmented reality tracking system 503) in a second reference frame by locating the second tracking marker (Paragraph [0164]; determined relationship between the three-dimensional tracking reference frame 1102 of the tracking device 1100 and the three-dimensional orientation 1201 of the augmented reality marker assembly 1200) via the sensor assembly ([0169]; from the tracking systems 503).
Nikou does not explicitly teach second tracking marker comprises a contrasting three-dimensional surface,
and detecting, in images and depth data captured by a near-eye head-mounted device, at least one through-opening that extends into a hollow interior of the second tracking marker and at least two non-parallel exterior surfaces of the second tracking marker.
Kaeseberg, however, teaches a surgical system (Paragraph [0010]; a computer-implemented method of determining a pose of a surgical registration device is provided; Paragraph [0056]; system 100, Fig. 1) comprising a tracking device (Paragraph [0057]; first tracking marker 8), and
an augmented reality marker assembly (Paragraph [0066]; surgical registration device 2, Fig. 2) comprising a second tracking marker (Paragraph [0066]; plurality of small cubes 32… one optical pattern 30 is disposed on each visible planar side of each large cube 36; Fig. 2 and 4) configured for use with an augmented reality system (Paragraph [0122]; formed such that a plurality of surface features such as edges, planar parts, spherical parts and more can be detected by the depth sensor 20 of the sensor device 6 which is for example an augmented reality device, augmented reality glasses or else.), the augmented reality marker assembly configured to be attached to the tracking device (Paragraph [0060]; In a further variant, the surgical registration device 2 is arranged in a fixed spatial relationship to a third tracking marker (not shown) tracked by the tracking system 4), wherein the second tracking marker comprises a contrasting three-dimensional surface (Paragraph [0063] and [0064]; The at least one optical pattern 30 is for example a two-dimensional black and white QR code. The at least one optical pattern 30 is arranged on the surface in a predetermined location; Paragraph [0092]; three-dimensional coordinates of the surface of at least the second part of the surgical registration device 2 in the first pose is obtained; surgical registration device 2 comprises at least one colored area arranged on the surface (not shown); Figs. 2, 4, 7, 8) and
detecting, in images and depth data captured by a near-eye head-mounted device (Paragraph [0061]; sensor device 6 comprises a camera 18 as an image sensor, and a depth sensor 20 as a sensor configured to acquire at least one of depth information and depth pixels; Paragraph [0067]; using the depth sensor 20, which describe the distance of the surface of the surgical registration device 2 to the depth sensor 20; Paragraph [0038]; sensor device may be an augmented reality device, for example a head-mounted display (HMD)), at least two non-parallel exterior surfaces of the second tracking marker (Paragraph [0122]; such that a plurality of surface features such as edges, planar parts, spherical parts and more can be detected by the depth sensor 20 of the sensor device 6 which is for example an augmented reality device, augmented reality glasses or else; Paragraph [0067]; For example, the surfaces of the small cubes 32 which form the base plate 34 lie in different planes; The surfaces of each cube are non-parallel exterior surfaces).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have modified the second tracking marker of Nikou such to comprise a contrasting three-dimensional surface as taught by Kaeseberg because irrespective of an orientation of the surgical registration device with respect to a viewing direction, at least two parts of the surface of the surgical registration device can be seen in the viewing direction, wherein the at least two parts lie in different planes. Furthermore, this results in different distances between the surface of the surgical registration device and the depth sensor, independent of the relative pose of the surgical registration device with respect to the depth sensor. This would allow the depth sensor to determine the distance of the surface of the surgical registration device to the depth sensor regardless of orientation between the sensor and marker (Kaeseberg, Paragraph [0067]). It further would have been obvious to have detected, in images and depth data captured by a near-eye head-mounted device at least two non-parallel exterior surfaces of the second tracking marker because it would have allowed the surface model of the tracking marker to have been matched to depth information to further improve the determination of the pose and thus improve tracking of the marker (Paragraph [0104]).
Together Nikou and Kaeseberg do not explicitly teach detecting at least one through-opening that extends into a hollow interior of the second tracking marker.
Shah, however, teaches detecting at least one through-opening that extends into a hollow interior of the second tracking marker (Paragraph [0076]; A slot 509 extending through the attachment extension provides additional imaging or visual cues for reference body 500 alignment and external fixation frame alignment, Fig. 5; Paragraph [0097]-[0098]; multiple through holes that function as markers to provide distinct projections, Fig. 28-29; the interior slot extending through the reference body is considered to be a hollow interior as understood in its broadest reasonable interpretation).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have modified the determining of the three-dimensional orientation to include detecting at least one through-opening that extends into a hollow interior of the second tracking marker as taught by Shah because it would have provided additional imaging or visual cues for reference body which would have improved the ability to determine the registration and further allow provide distinct shapes and regions which can be detected in images, thereby improving determining the orientation of the marker (Paragraphs [0097]-[0098]).
Regarding claim 2, together Nikou, Kaeseberg, and Shah teach all of the limitations of claim 1 as noted above.
Nikou further teaches the control system is further configured to determine a transformation between the first reference frame and the second reference frame (Paragraph [0164]; a control system can identify a relationship between the first three-dimensional orientation and the second three-dimensional orientation; Paragraph [0161]; The augmented reality system, which could identify/determine the co-registration between the existing tracking system 100 and the augmented reality marker assembly 1200).
Regarding claim 3, together Nikou, Kaeseberg, and Shah teach all of the limitations of claim 2 as noted above.
Nikou further teaches the control system comprises a display screen (Paragraph [0166]; system 500 may also include a display device), wherein the control system is further configured to cause the display screen to display surgical data based on the transformation (Paragraph [0164]; cause an augmented reality device to display a surgical data (e.g., information associated with a surgical plan) in a video-see-through view according to the determined relationship between the three-dimensional tracking reference frame 1102 of the tracking device 1100 and the three-dimensional orientation 1201 of the augmented reality marker assembly 1200).
Regarding claim 4, together Nikou, Kaeseberg, and Shah teach all of the limitations of claim 3 as noted above.
Nikou further teaches the display screen comprises at least one of a near-eye display or a head-mounted display (Paragraph [0166]; include a display device (e.g., a near-eye display device 504, a head-mounted display, or the display 125)).
Regarding claim 5, together Nikou, Kaeseberg, and Shah teach all of the limitations of claim 3 as noted above.
Nikou further teaches the control system is further configured to generate a surgical plan (Paragraph [0049]; the CASS 100 can develop a proposed surgical plan based on a three dimensional model of the hip joint and other information specific to the patient); and
at least a portion of the surgical data displayed via the display screen comprises the surgical plan (Paragraph [0164]; cause an augmented reality device to display a surgical data (e.g., information associated with a surgical plan); Paragraph [0050]; The CASS-developed surgical plan can display the planned resection to the hip joint and superimpose the planned implants onto the hip joint based on the planned resections.).
Regarding claim 6, together Nikou, Kaeseberg, and Shah teach all of the limitations of claim 1 as noted above.
Nikou does not explicitly teach the contrasting three-dimensional surface comprises a plurality of contrasting colors.
Kaeseberg, however, further teaches the contrasting three-dimensional surface comprises a plurality of contrasting colors (Paragraph [0073]; As can be seen in FIG. 8, the at least one colored area comprises a plurality of colored areas arranged on the surface of the surgical registration device 2. The at least one colored area is different from the at least one optical pattern 30. First colored areas 43 having a first color are arranged on top sides of the small cubes 32. Second colored areas 44 having a second color are arranged on right sides of the small cubes 32. Third colored areas 46 having a third color are arranged on left sides of the small cubes 32.).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have further modified the second tracking marker of Nikou in view of Kaeseberg and Shah such that the contrasting three-dimensional surface comprises a plurality of contrasting colors as further taught by Kaeseberg because it would have been a well-known and understood method of configuring an optical registration device that further would have determining a position and orientation of the detected at least one colored area in the sensor device coordinate system by a searching for pixels in the image that have a color value that lies in a predetermined range, thereby improving the ability to determine the position and orientation of the marker device (Kaeseberg, Paragraph [0068]).
Regarding claim 7, together Nikou, Kaeseberg, and Shah teach all of the limitations of claim 6 as noted above.
Nikou does not explicitly teach the contrasting three-dimensional surface further comprises a plurality of polygonal surfaces, wherein a color of each polygonal surface is selected from the plurality of contrasting colors.
Kaeseberg, however, further teaches the contrasting three-dimensional surface further comprises a plurality of polygonal surfaces (Paragraph [0074]; the body 28 of the surgical registration device 2 is formed by one large cube 36 and one small cube 32., Fig. 9), wherein a color of each polygonal surface is selected from the plurality of contrasting colors (Paragraph [0074]; A second colored area 44 having the second color is arranged on a right side of the small cube 32; having the third color is arranged on a left side of the large cube 36.).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have further modified the second tracking marker of Nikou in view of Kaeseberg and Shah such that the contrasting three-dimensional surface further comprises a plurality of polygonal surfaces, wherein a color of each polygonal surface is selected from the plurality of contrasting colors because it would allow determining location information based on the one colored area is arranged on a planar part of the surface, on a rectangular plane of the surface, on a spherical portion of the surface, on a plane adjacent to a large cube forming the surface, thereby improving the ability to detect and identify the location and orientation of the marker (Paragraph [0087]).
Regarding claim 9, together Nikou, Kaeseberg, and Shah teach all of the limitations of claim 1 as noted above.
Nikou further teaches the augmented reality marker assembly comprises a plurality of fastening mechanisms (Paragraph [0159]; incorporate fastening mechanisms 1203, Fig. 7); and
the plurality of fastening mechanisms are configured to be attached to a frame of the tracking device in a particular manner that causes the augmented reality marker assembly to assume the fixed orientation (Paragraph [0159]; the fastening mechanisms 1203 can be designed such that the augmented reality marker assembly 1200 can be affixed to the tracking device 1100 in a particular known or fixed orientation, Fig. 6).
Regarding claim 10, together Nikou, Kaeseberg, and Shah teach all of the limitations of claim 1 as noted above.
Nikou further teaches a plurality of tracking devices (Paragraph [0144]; tracking “frames”; Paragraph [0151]; As should be understood by those skilled in the art, various shapes and orientations of tracking devices may be used in computer-assisted surgical procedures; Paragraph [0158] and [0160]; tracking systems (e.g., optical tracking devices 1100); tracking device(s) 1100); and
a plurality of augmented reality marker assemblies each comprising an augmented reality tracking marker (claim 9; comprises a plurality of augmented reality marker assemblies, which comprise the augmented reality marker assembly; the plurality of augmented reality marker assemblies each comprise an augmented reality fiducial marker);
wherein each augmented reality tracking marker is distinguishable by the sensor assembly (Paragraph [0165]; Thus, the system may not only determine which augmented reality marker assembly 1200 is attached, but also whether the marker is the correct type of marker for the type of surgery being performed (e.g., according to the surgical plan data).).
Regarding claim 11, together Nikou, Kaeseberg, and Shah teach all of the limitations of claim 1 as noted above.
Nikou further teaches the sensor assembly comprises:
a first sensor configured to identify a first location of the first tracking marker (Paragraph [0153]; the elements 1101 are detected by one or more sensor devices (e.g., NAVIO® optical tracking device(s))… Thus, a computer-aided surgical navigation system is able to determine the exact location and orientation of the tracking device 1100); and
a second sensor configured to identify a second location of the second tracking marker (Paragraph [0163]; In additional or alternative embodiments, an additional image capture device (e.g., cameras located on a near-eye augmented reality device or body cameras) may be used to capture the augmented reality symbols 1202; detected by a sensor or group of sensors capable of identifying the location of the one or more tracking points).
Regarding claim 12, together Nikou, Kaeseberg, and Shah teach all of the limitations of claim 1 as noted above.
Nikou further teaches the sensor assembly comprises a plurality of tracking cameras (Paragraph [0162]; of the one or more sensor devices (e.g., navigation system cameras)).
Regarding claim 13, Nikou teaches a tracking device (Paragraph [0156]; augmented reality marker assembly 1200, Figs. 6 and 7) attachment for correlating a tracking system coordinate frame with an augmented reality system coordinate frame (Paragraph [0151]; Using these markers, an augmented reality system can track objects within the purview of the video tracking system; Paragraph [0164]; determined relationship between the three-dimensional tracking reference frame 1102 of the tracking device 1100 and the three-dimensional orientation 1201 of the augmented reality marker assembly 1200), the tracking device attachment comprising:
a tracking marker (Paragraph [0156]; augmented reality fiducial marker or symbol 1202, Fig. 6 and 7) comprising a contrasting surface (Paragraph [0157]; the augmented reality marker assembly 1200 may be made of injection-molded plastic and have a laser marking, which allows for the proper high-contrast needed in most augmented reality tracking systems) configured to be identified by an augmented reality system (Paragraph [0163]; In some embodiments, the sensor(s) may also include an image capture device which can detect and identify one or more augmented reality symbols 1202 associated with an augmented reality marker assembly 1200); and
a plurality of fastening mechanisms (Paragraph [0159]; incorporate fastening mechanisms 1203, Fig. 7) configured to attach the tracking device attachment to a tracking device at a fixed orientation (Paragraph [0159]; the fastening mechanisms 1203 can be designed such that the augmented reality marker assembly 1200 can be affixed to the tracking device 1100 in a particular known or fixed orientation), wherein the tracking device (Paragraph [0063]; tracking devices 44, 46, 48, Fig. 1; Paragraph [0104]; registration device 220, Fig. 4) comprises a marker (Paragraph [0104]; comprises a plurality of tracking markers 224, Fig. 4) configured to be identified by a surgical navigation system (Paragraph [0063]; Navigation system 20 is operable with a plurality of tracking devices 44, 46, 48; Fig. 1) and configured to be mounted to a patient (Paragraph [0063]; one tracker 44 is firmly affixed to the femur F of the patient and another tracker 46 is firmly affixed to the tibia T of the patient, Fig. 1).
Nikou does not explicitly teach marker comprises a contrasting three-dimensional surface, the contrasting three-dimensional surface including at least one through-opening extending into a hollow interior and at least two non-parallel surfaces;
wherein the tracking marker is configured such that, when imaged by a near-eye head-mounted device, a three-dimensional orientation of the tracking attachment is determinable from images and depth data by detecting the through-opening and the at least two non-parallel exterior surfaces.
Kaeseberg, however, teaches a surgical system (Paragraph [0010]; a computer-implemented method of determining a pose of a surgical registration device is provided; Paragraph [0056]; system 100, Fig. 1) comprising a tracking device (Paragraph [0057]; first tracking marker 8), and
an augmented reality marker assembly (Paragraph [0066]; surgical registration device 2, Fig. 2) comprising a second tracking marker (Paragraph [0066]; plurality of small cubes 32… one optical pattern 30 is disposed on each visible planar side of each large cube 36; Fig. 2 and 4) configured for use with an augmented reality system (Paragraph [0122]; formed such that a plurality of surface features such as edges, planar parts, spherical parts and more can be detected by the depth sensor 20 of the sensor device 6 which is for example an augmented reality device, augmented reality glasses or else.), the augmented reality marker assembly configured to be attached to the tracking device (Paragraph [0060]; In a further variant, the surgical registration device 2 is arranged in a fixed spatial relationship to a third tracking marker (not shown) tracked by the tracking system 4), wherein the second tracking marker comprises a contrasting three-dimensional surface (Paragraph [0063] and [0064]; The at least one optical pattern 30 is for example a two-dimensional black and white QR code. The at least one optical pattern 30 is arranged on the surface in a predetermined location; Paragraph [0092]; three-dimensional coordinates of the surface of at least the second part of the surgical registration device 2 in the first pose is obtained; surgical registration device 2 comprises at least one colored area arranged on the surface (not shown); Figs. 2, 4, 7, 8),
the contrasting three-dimensional surface including at least two non-parallel surfaces (Paragraph [0122]; such that a plurality of surface features such as edges, planar parts, spherical parts; Paragraph [0067]; For example, the surfaces of the small cubes 32 which form the base plate 34 lie in different planes);
wherein the tracking marker is configured such that, when imaged by a near-eye head-mounted device (Paragraph [0061]; sensor device 6 comprises a camera 18 as an image sensor, and a depth sensor 20 as a sensor configured to acquire at least one of depth information and depth pixels; Paragraph [0067]; using the depth sensor 20, which describe the distance of the surface of the surgical registration device 2 to the depth sensor 20; Paragraph [0038]; sensor device may be an augmented reality device, for example a head-mounted display (HMD)), a three-dimensional orientation of the tracking attachment is determinable from images and depth data by detecting the at least two non-parallel exterior surfaces (Paragraph [0122]; such that a plurality of surface features such as edges, planar parts, spherical parts and more can be detected by the depth sensor 20 of the sensor device 6 which is for example an augmented reality device, augmented reality glasses or else; The position and orientation of the surgical registration device 2 can be determined precisely as the third pose by using an optical detection of the at least one optical pattern 30 and further using a spatial detection of the surface of the surgical registration device 2 by the depth sensor 20.).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have modified the second tracking marker of Nikou such to comprise a contrasting three-dimensional surface as taught by Kaeseberg because irrespective of an orientation of the surgical registration device with respect to a viewing direction, at least two parts of the surface of the surgical registration device can be seen in the viewing direction, wherein the at least two parts lie in different planes. Furthermore, this results in different distances between the surface of the surgical registration device and the depth sensor, independent of the relative pose of the surgical registration device with respect to the depth sensor. This would allow the depth sensor to determine the distance of the surface of the surgical registration device to the depth sensor regardless of orientation between the sensor and marker (Kaeseberg, Paragraph [0067]). It further would have been obvious to have detected, in images and depth data captured by a near-eye head-mounted device at least two non-parallel exterior surfaces of the second tracking marker because it would have allowed the surface model of the tracking marker to have been matched to depth information to further improve the determination of the pose and thus improve tracking of the marker (Paragraph [0104]).
Together Nikou and Kaeseberg do not explicitly teach the contrasting three-dimensional surface including at least one through-opening extending into a hollow interior and detecting at least one through-opening that extends into a hollow interior of the second tracking marker.
Shah, however, teaches detecting at least one through-opening that extends into a hollow interior of the second tracking marker (Paragraph [0076]; A slot 509 extending through the attachment extension provides additional imaging or visual cues for reference body 500 alignment and external fixation frame alignment, Fig. 5; Paragraph [0097]-[0098]; multiple through holes that function as markers to provide distinct projections, Fig. 28-29; the interior slot extending through the reference body is considered to be a hollow interior as understood in its broadest reasonable interpretation).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have modified the determining of the three-dimensional orientation to include detecting at least one through-opening that extends into a hollow interior of the second tracking marker as taught by Shah because it would have provided additional imaging or visual cues for reference body which would have improved the ability to determine the registration and further allow provide distinct shapes and regions which can be detected in images, thereby improving determining the orientation of the marker (Paragraphs [0097]-[0098]).
Regarding claim 14, together Nikou, Kaeseberg, and Shah teach all of the limitations of claim 13 as noted above.
Nikou further teaches the plurality of fastening mechanisms are configured to be attached to a frame of the tracking device in a particular manner that causes the tracking device attachment to assume the fixed orientation (Paragraph [0159]; the fastening mechanisms 1203 can be designed such that the augmented reality marker assembly 1200 can be affixed to the tracking device 1100 in a particular known or fixed orientation, Fig. 6).
Regarding claim 15, together Nikou, Kaeseberg, and Shah teach all of the limitations of claim 13 as noted above.
Nikou does not explicitly teach the contrasting three-dimensional surface comprises a plurality of contrasting colors.
Kaeseberg, however, further teaches the contrasting three-dimensional surface comprises a plurality of contrasting colors (Paragraph [0073]; As can be seen in FIG. 8, the at least one colored area comprises a plurality of colored areas arranged on the surface of the surgical registration device 2. The at least one colored area is different from the at least one optical pattern 30. First colored areas 43 having a first color are arranged on top sides of the small cubes 32. Second colored areas 44 having a second color are arranged on right sides of the small cubes 32. Third colored areas 46 having a third color are arranged on left sides of the small cubes 32.).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have further modified the second tracking marker of Nikou in view of Kaeseberg such that the contrasting three-dimensional surface comprises a plurality of contrasting colors as further taught by Kaeseberg because it would have been a well-known and understood method of configuring an optical registration device that further would have determining a position and orientation of the detected at least one colored area in the sensor device coordinate system by a searching for pixels in the image that have a color value that lies in a predetermined range, thereby improving the ability to determine the position and orientation of the marker device (Kaeseberg, Paragraph [0068]).
Regarding claim 16, together Nikou, Kaeseberg, and Shah teach all of the limitations of claim 15 as noted above.
Nikou does not explicitly teach the at least two non-parallel exterior surfaces comprise a plurality of polygonal surfaces, wherein a color of each polygonal surface is selected from the plurality of contrasting colors.
Kaeseberg, however, further teaches the at least two non-parallel exterior surfaces comprise a plurality of polygonal surfaces (Paragraph [0074]; the body 28 of the surgical registration device 2 is formed by one large cube 36 and one small cube 32., Fig. 9), wherein a color of each polygonal surface is selected from the plurality of contrasting colors (Paragraph [0074]; A second colored area 44 having the second color is arranged on a right side of the small cube 32; having the third color is arranged on a left side of the large cube 36.).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have further modified the second tracking marker of Nikou in view of Kaeseberg and Shah such that the at least two non-parallel exterior surfaces comprise a plurality of polygonal surfaces, wherein a color of each polygonal surface is selected from the plurality of contrasting colors because it would allow determining location information based on the one colored area is arranged on a planar part of the surface, on a rectangular plane of the surface, on a spherical portion of the surface, on a plane adjacent to a large cube forming the surface, thereby improving the ability to detect and identify the location and orientation of the marker (Paragraph [0087]).
Regarding claim 17, together Nikou, Kaeseberg, and Shah teach all of the limitations of claim 15 as noted above.
Nikou does not explicitly teach the plurality of contrasting colors form a pattern on the contrasting three-dimensional surface.
Kaeseberg, however, further teaches the plurality of contrasting colors form a pattern on the contrasting three-dimensional surface (Paragraph [0073]; at least one colored area comprises a plurality of colored areas arranged on the surface of the surgical registration device 2. The at least one colored area is different from the at least one optical pattern 30. First colored areas 43 having a first color are arranged on top sides of the small cubes 32. Second colored areas 44 having a second color are arranged on right sides of the small cubes 32. Third colored areas 46 having a third color are arranged on left sides of the small cubes 32; The arrangement of the colors on the different optical cubes are considered to be a pattern as understood in its broadest reasonable interpretation).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have modified the second tracking marker of Nikou in view of Kaeseberg and Shah such that the plurality of contrasting colors form a pattern on the contrasting three-dimensional surface because it would allow determining location information based on the one colored area is arranged on a planar part of the surface, on a rectangular plane of the surface, on a spherical portion of the surface, on a plane adjacent to a large cube forming the surface, thereby improving the ability to detect and identify the location and orientation of the marker (Paragraph [0087]).
Regarding claim 19, Nikou teaches a surgical system (Paragraph [0028]; computer-assisted surgical system (CASS) using computers, robotics, and imaging technology to aid surgeons in performing orthopedic surgery procedures, Fig. 1) comprising:
a sensor assembly (Paragraph [0153]; the elements 1101 are detected by one or more sensor devices (e.g., NAVIO® optical tracking device(s)); Paragraph [0163]; In some embodiments, the sensor(s) may also include an image capture device which can detect and identify one or more augmented reality symbols 1202 associated with an augmented reality marker assembly 1200) configured to:
identify a first location of a first tracking marker (Paragraph [0163]; which captures the three dimensional location of the tracking device 1100; detected by a sensor or group of sensors capable of identifying the location of the one or more tracking points) associated with a tracking device (Paragraph [0151]; tracking device 1100, Figs. 5 and 6), the tracking device configured to be mounted to a patient (Paragraph [0045]; Tracker arrays can be mounted on the iliac crest using clamps and/or bone pins and such trackers can be mounted externally through the skin or internally), wherein the first tracking marker is configured for use with a surgical navigation system (Paragraph [0034]; The Tracking System 115 uses one or more sensors to collect real-time position data that locates the patient’s anatomy and surgical instruments, Figs. 2A and 2B), and
identify a second location of a second tracking marker (Paragraph [0163]; can detect and identify one or more augmented reality symbols 1202 associated with an augmented reality marker assembly 1200) associated with an augmented reality marker assembly (Paragraph [0156]; augmented reality marker assembly 1200, Figs. 6 and 7), the augmented reality marker assembly configured to be attached to the tracking device (Paragraph [0156]; The augmented reality marker assembly 1200 may in turn be attached to a tracking device 1100 for co-registering the surgical navigational and augmented reality tracking modalities, Fig. 6) at a fixed orientation (Paragraph [0159]; reality marker assembly 1200 can be affixed to the tracking device 1100 in a particular known or fixed orientation.), wherein the second tracking marker comprises a contrasting surface configured for use with an augmented reality system (Paragraph [0157]; the augmented reality marker assembly 1200 may be made of injection-molded plastic and have a laser marking, which allows for the proper high-contrast needed in most augmented reality tracking systems); and
a control system (Paragraph [0167]; control system 501) communicably connected to the sensor assembly (Paragraph [0167]; one or more computing devices configured to coordinate information received from the tracking systems 502 and 503, Fig. 2A, 2B, and 9; Claim 1), the control system configured to:
determine a first three-dimensional orientation (Paragraph [0169]; navigation module 50 IB receives input from the tracking systems 502… regarding the physical location and orientation of the patient), in a first reference frame of the patient by locating the first tracking marker (Paragraph [0153]; determine the exact location and orientation of the tracking device 1100 based on the known tracking reference frame 1102… plurality of tracking elements 1101 as well as the use of one or more sensors (not shown) to detect a patient or patient bone location) via the sensor assembly (Paragraph [0169]; from the tracking systems 502), and
determine a second three-dimensional orientation (Paragraph [0169]; navigation module 50 IB receives input from the… tracking system 503… regarding the physical location and orientation of the patient), in a second reference frame, of the augmented reality marker assembly by locating the second tracking marker (Paragraph [0164]; determined relationship between the three-dimensional tracking reference frame 1102 of the tracking device 1100 and the three-dimensional orientation 1201 of the augmented reality marker assembly 1200) via the sensor assembly ([0169]; from the tracking systems 503).
Nikou does not explicitly teach second tracking marker comprises a contrasting three-dimensional surface,
and detecting, in images and depth data captured by a near-eye head-mounted device, at least one through-opening that extends into a hollow interior of the second tracking marker and at least two non-parallel exterior surfaces of the second tracking marker.
Kaeseberg, however, teaches a surgical system (Paragraph [0010]; a computer-implemented method of determining a pose of a surgical registration device is provided; Paragraph [0056]; system 100, Fig. 1) comprising a tracking device (Paragraph [0057]; first tracking marker 8), and
an augmented reality marker assembly (Paragraph [0066]; surgical registration device 2, Fig. 2) comprising a second tracking marker (Paragraph [0066]; plurality of small cubes 32… one optical pattern 30 is disposed on each visible planar side of each large cube 36; Fig. 2 and 4) configured for use with an augmented reality system (Paragraph [0122]; formed such that a plurality of surface features such as edges, planar parts, spherical parts and more can be detected by the depth sensor 20 of the sensor device 6 which is for example an augmented reality device, augmented reality glasses or else.), the augmented reality marker assembly configured to be attached to the tracking device (Paragraph [0060]; In a further variant, the surgical registration device 2 is arranged in a fixed spatial relationship to a third tracking marker (not shown) tracked by the tracking system 4), wherein the second tracking marker comprises a contrasting three-dimensional surface (Paragraph [0063] and [0064]; The at least one optical pattern 30 is for example a two-dimensional black and white QR code. The at least one optical pattern 30 is arranged on the surface in a predetermined location; Paragraph [0092]; three-dimensional coordinates of the surface of at least the second part of the surgical registration device 2 in the first pose is obtained; surgical registration device 2 comprises at least one colored area arranged on the surface (not shown); Figs. 2, 4, 7, 8); and
detecting, in images and depth data captured by a near-eye head-mounted device (Paragraph [0061]; sensor device 6 comprises a camera 18 as an image sensor, and a depth sensor 20 as a sensor configured to acquire at least one of depth information and depth pixels; Paragraph [0067]; using the depth sensor 20, which describe the distance of the surface of the surgical registration device 2 to the depth sensor 20; Paragraph [0038]; sensor device may be an augmented reality device, for example a head-mounted display (HMD)), at least two non-parallel exterior surfaces of the second tracking marker (Paragraph [0122]; such that a plurality of surface features such as edges, planar parts, spherical parts and more can be detected by the depth sensor 20 of the sensor device 6 which is for example an augmented reality device, augmented reality glasses or else; Paragraph [0067]; For example, the surfaces of the small cubes 32 which form the base plate 34 lie in different planes; The surfaces of each cube are non-parallel exterior surfaces).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have modified the second tracking marker of Nikou such to comprise a contrasting three-dimensional surface as taught by Kaeseberg because irrespective of an orientation of the surgical registration device with respect to a viewing direction, at least two parts of the surface of the surgical registration device can be seen in the viewing direction, wherein the at least two parts lie in different planes. Furthermore, this results in different distances between the surface of the surgical registration device and the depth sensor, independent of the relative pose of the surgical registration device with respect to the depth sensor. This would allow the depth sensor to determine the distance of the surface of the surgical registration device to the depth sensor regardless of orientation between the sensor and marker (Kaeseberg, Paragraph [0067]). It further would have been obvious to have detected, in images and depth data captured by a near-eye head-mounted device at least two non-parallel exterior surfaces of the second tracking marker because it would have allowed the surface model of the tracking marker to have been matched to depth information to further improve the determination of the pose and thus improve tracking of the marker (Paragraph [0104]).
Together Nikou and Kaeseberg do not explicitly teach detecting at least one through-opening that extends into a hollow interior of the second tracking marker.
Shah, however, teaches detecting at least one through-opening that extends into a hollow interior of the second tracking marker (Paragraph [0076]; A slot 509 extending through the attachment extension provides additional imaging or visual cues for reference body 500 alignment and external fixation frame alignment, Fig. 5; Paragraph [0097]-[0098]; multiple through holes that function as markers to provide distinct projections, Fig. 28-29; the interior slot extending through the reference body is considered to be a hollow interior as understood in its broadest reasonable interpretation).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have modified the determining of the three-dimensional orientation to include detecting at least one through-opening that extends into a hollow interior of the second tracking marker as taught by Shah because it would have provided additional imaging or visual cues for reference body which would have improved the ability to determine the registration and further allow provide distinct shapes and regions which can be detected in images, thereby improving determining the orientation of the marker (Paragraphs [0097]-[0098]).
Regarding claim 20, together Nikou, Kaeseberg, and Shah teach all of the limitations of claim 19 as noted above.
Nikou further teaches the control system is further configured to determine a transformation between the first reference frame and the second reference frame (Paragraph [0164]; a control system can identify a relationship between the first three-dimensional orientation and the second three-dimensional orientation; Paragraph [0161]; The augmented reality system, which could identify/determine the co-registration between the existing tracking system 100 and the augmented reality marker assembly 1200).
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 1-7, 9-17, 19, and 20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-19 of U.S. Patent No. 11937885 in view of Kaeseberg (US 20210212768) and Shah (US 20240050129).
Claims 1, 13, and 19 of the present application and claims 1, 12, and 17 of the issued patent recite identical wording except for additional limitations drawn to:
“wherein the second tracking marker comprises a contrasting three-dimensional surface”
“a first three-dimensional orientation of the patient in a first reference frame”
“a second three-dimensional orientation of the augmented reality marker assembly in a second reference frame”
“detecting, in images and depth data captured by a near-eye head-mounted device, at least one through-opening that extends into a hollow interior of the second tracking marker and at least two non-parallel exterior surfaces of the second tracking marker”.
The reference of Kaeseberg teaches the limitations of “wherein the second tracking marker comprises a contrasting three-dimensional surface” (Paragraph [0063] and [0064]; The at least one optical pattern 30 is for example a two-dimensional black and white QR code. The at least one optical pattern 30 is arranged on the surface in a predetermined location; Paragraph [0092]; three-dimensional coordinates of the surface of at least the second part of the surgical registration device 2 in the first pose is obtained; surgical registration device 2 comprises at least one colored area arranged on the surface (not shown); Figs. 2, 4, 7, 8);
“a first three-dimensional orientation of the patient in a first reference frame” (Paragraph [0057]; the positioning unit 14 determines a position and orientation of the first tracking marker 8 in a tracking coordinate system 16. This enables tracking of the body 10 by the tracking system 4.);
and “a second three-dimensional orientation of the augmented reality marker assembly in a second reference frame” (Paragraph [0062]; as the pose of the surgical registration device 2 can be determined in the sensor device coordinate system 26, as will be laid out below in detail, wherein the pose of the surgical registration device 2 in the tracking coordinate system 16 is known. In other words, a registration between the sensor device coordinate system 26 and the tracking device coordinate system 16 can be derived such that a tracked pose of the patient in the tracking coordinate system 16 can be transformed into a pose in the sensor device coordinate system 26);
and detecting, in images and depth data captured by a near-eye head-mounted device (Paragraph [0061]; sensor device 6 comprises a camera 18 as an image sensor, and a depth sensor 20 as a sensor configured to acquire at least one of depth information and depth pixels; Paragraph [0067]; using the depth sensor 20, which describe the distance of the surface of the surgical registration device 2 to the depth sensor 20; Paragraph [0038]; sensor device may be an augmented reality device, for example a head-mounted display (HMD)), at least two non-parallel exterior surfaces of the second tracking marker (Paragraph [0122]; such that a plurality of surface features such as edges, planar parts, spherical parts and more can be detected by the depth sensor 20 of the sensor device 6 which is for example an augmented reality device, augmented reality glasses or else; Paragraph [0067]; For example, the surfaces of the small cubes 32 which form the base plate 34 lie in different planes; The surfaces of each cube are non-parallel exterior surfaces).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have modified the systems and markers of the issued patent to have included a contrasting three-dimensional surface as taught by Kaeseberg because irrespective of an orientation of the surgical registration device with respect to a viewing direction, at least two parts of the surface of the surgical registration device can be seen in the viewing direction, wherein the at least two parts lie in different planes. Furthermore, this results in different distances between the surface of the surgical registration device and the depth sensor, independent of the relative pose of the surgical registration device with respect to the depth sensor. This would allow the depth sensor to determine the distance of the surface of the surgical registration device to the depth sensor regardless of orientation between the sensor and marker (Kaeseberg, Paragraph [0067]). It further would have been obvious to have included a first three-dimensional orientation of the patient in a first reference frame and a second three-dimensional orientation of the augmented reality marker assembly in a second reference frame because it would have allowed the pose of the surgical registration device to be then known in both the tracking coordinate system and the sensor device coordinate system. And thus allow determine navigation information to be displayed to a surgeon, based on data received from the sensor device and the tracking system thereby improving tracking during the operation. It further would have been obvious to have detected, in images and depth data captured by a near-eye head-mounted device at least two non-parallel exterior surfaces of the second tracking marker because it would have allowed the surface model of the tracking marker to have been matched to depth information to further improve the determination of the pose and thus improve tracking of the marker (Paragraph [0104]).
The reference of Shah further teaches detecting at least one through-opening that extends into a hollow interior of the second tracking marker (Paragraph [0076]; A slot 509 extending through the attachment extension provides additional imaging or visual cues for reference body 500 alignment and external fixation frame alignment, Fig. 5; Paragraph [0097]-[0098]; multiple through holes that function as markers to provide distinct projections, Fig. 28-29; the interior slot extending through the reference body is considered to be a hollow interior as understood in its broadest reasonable interpretation).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have modified the determining of the three-dimensional orientation to include detecting at least one through-opening that extends into a hollow interior of the second tracking marker as taught by Shah because it would have provided additional imaging or visual cues for reference body which would have improved the ability to determine the registration and further allow provide distinct shapes and regions which can be detected in images, thereby improving determining the orientation of the marker (Paragraphs [0097]-[0098]).
Thus, the additional limitations in the present application consists of no more than an obvious modification to the issued patent.
Claims 2-5, 9-12, 14, and 20 of the present application have wording identical or similar to claims 2-6, 9-11, 15, and 19 of the issued patent.
Claims 6-7 and 15-17 include additional limitations drawn to:
the contrasting three-dimensional surface comprises a plurality of contrasting colors.
the contrasting three-dimensional surface further comprises a plurality of polygonal surfaces, wherein a color of each polygonal surface is selected from the plurality of contrasting colors.
the plurality of contrasting colors form a pattern on the contrasting three-dimensional surface.
The reference of Kaeseberg further teaches the contrasting three-dimensional surface comprises a plurality of contrasting colors (Paragraph [0073]; As can be seen in FIG. 8, the at least one colored area comprises a plurality of colored areas arranged on the surface of the surgical registration device 2. The at least one colored area is different from the at least one optical pattern 30. First colored areas 43 having a first color are arranged on top sides of the small cubes 32. Second colored areas 44 having a second color are arranged on right sides of the small cubes 32. Third colored areas 46 having a third color are arranged on left sides of the small cubes 32.).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have further modified the second tracking marker of Nikou in view of Kaeseberg such that the contrasting three-dimensional surface comprises a plurality of contrasting colors as further taught by Kaeseberg because it would have been a well-known and understood method of configuring an optical registration device that further would have determining a position and orientation of the detected at least one colored area in the sensor device coordinate system by a searching for pixels in the image that have a color value that lies in a predetermined range, thereby improving the ability to determine the position and orientation of the marker device (Kaeseberg, Paragraph [0068]).
The reference of Kaeseberg further teaches the contrasting three-dimensional surface further comprises a plurality of polygonal surfaces (Paragraph [0074]; the body 28 of the surgical registration device 2 is formed by one large cube 36 and one small cube 32., Fig. 9), wherein a color of each polygonal surface is selected from the plurality of contrasting colors (Paragraph [0074]; A second colored area 44 having the second color is arranged on a right side of the small cube 32; having the third color is arranged on a left side of the large cube 36.).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have further modified the second tracking marker of Nikou in view of Kaeseberg such that the contrasting three-dimensional surface further comprises a plurality of polygonal surfaces, wherein a color of each polygonal surface is selected from the plurality of contrasting colors because it would allow determining location information based on the one colored area is arranged on a planar part of the surface, on a rectangular plane of the surface, on a spherical portion of the surface, on a plane adjacent to a large cube forming the surface, thereby improving the ability to detect and identify the location and orientation of the marker (Paragraph [0087]).
The reference of Kaeseberg further teaches the plurality of contrasting colors form a pattern on the contrasting three-dimensional surface (Paragraph [0073]; at least one colored area comprises a plurality of colored areas arranged on the surface of the surgical registration device 2. The at least one colored area is different from the at least one optical pattern 30. First colored areas 43 having a first color are arranged on top sides of the small cubes 32. Second colored areas 44 having a second color are arranged on right sides of the small cubes 32. Third colored areas 46 having a third color are arranged on left sides of the small cubes 32; The arrangement of the colors on the different optical cubes are considered to be a pattern as understood in its broadest reasonable interpretation).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have modified the second tracking marker of Nikou in view of Kaeseberg such that the plurality of contrasting colors form a pattern on the contrasting three-dimensional surface because it would allow determining location information based on the one colored area is arranged on a planar part of the surface, on a rectangular plane of the surface, on a spherical portion of the surface, on a plane adjacent to a large cube forming the surface, thereby improving the ability to detect and identify the location and orientation of the marker (Paragraph [0087]).
Thus, the additional limitations in the present application consists of no more than an obvious modification to the issued patent.
Response to Arguments
Claim Rejections under – 35 U.S.C. § 103
Applicant's arguments filed 12/17/2025 have been fully considered but they are not persuasive. Applicant argues the prior art of Nikou and Kaeseberg fail to teach or render obvious a second three-dimensional orientation of the augmented reality marker in a second reference frame by detecting, in images and depth data captured by a near-eye head mounted device… at least two non-parallel exterior surfaces of the second tracking marker. Examiner respectfully disagrees. Examiner would like to point out the prior art of Nikou teaches the use of two separate tracking systems, for example in paragraph [0158], and further teaches the second tracking system as an augmented reality tracking system. Nikou, however, does not teach explicitly teach the augmented reality marker is detected by a near-eye head-mounted system, and further the details of the second tracking marker having a through-opening and at least two non-parallel exterior surfaces. Examiner would like to further point out the prior art of Kaeseberg teaches using a head mounted display such as a hololens, as described in paragraph [0038], to track markers in an augmented reality system. Furthermore, Kaeseberg teaches the tracking system images markers with at least two non-parallel exterior surfaces, for example described in paragraphs [0122] and [0067]. One or ordinary skill in the art would have been motivated to modify the augmented reality tracking system of Nikou to incorporate the near-eye head mounted device and tracker with at least two non-parallel exterior surfaces of Kaeseberg because the system of Kaeseberg is a well-known and understood augmented system that further would have allowed the surface model of the tracking marker to have been matched to depth information to further improve the determination of the pose and thus improve tracking of the marker, as described in Kaeseberg Paragraphs [0067] and [0104]. The new reference of Shah is presented to teach the tracking markers with through-openings that extends into a hollow interior of the second tracking marker.
For these reasons, rejections of claims 1-7, 9-17, 19, and 20 under 35 USC 103 are maintained.
Claim Rejections – Double Patenting
Rejections 1-7, 9-17, 19, and 20 on the grounds of nonstatutory double patenting are maintained due to disapproval of the terminal disclaimer filed 12/17/2025.
The terminal disclaimer filed 12/17/2025 does not comply with 37 CFR 1.321 and thus fails to overcome the previous nonstatutory double patenting rejections. TD Reviewer did not approve the TD because: “The applicant cited on the TD must be cited exactly as it is cited on the ADS and or filing receipt and also in its entirety. If more space for applicant section is required, please use smaller fonts or submit an attachment page to the TD. Please correct and resubmit the TD. (No new fee required).”
Furthermore, the amendments to the claims presented are considered to consist of no more than an obvious modification to the issued patent for reasons noted in the rejection above, and thus further fail to overcome rejections on the grounds of nonstatutory double patenting.
For these reason, rejections of claims 1-7, 9-17, 19, and 20 on the ground of nonstatutory double patenting are maintained.
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 Dean N Edun whose telephone number is (571)270-3745. The examiner can normally be reached M-F 8am-5:30pm.
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, Anh Tuan Nguyen can be reached at (571)272-4963. 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.
/DEAN N EDUN/Examiner, Art Unit 3797
/ANH TUAN T NGUYEN/Supervisory Patent Examiner, Art Unit 3795 04/06/2026