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
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.
Double Patenting
A rejection based on double patenting of the “same invention” type finds its support in the language of 35 U.S.C. 101 which states that “whoever invents or discovers any new and useful process... may obtain a patent therefor...” (Emphasis added). Thus, the term “same invention,” in this context, means an invention drawn to identical subject matter. See Miller v. Eagle Mfg. Co., 151 U.S. 186 (1894); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Ockert, 245 F.2d 467, 114 USPQ 330 (CCPA 1957).
A statutory type (35 U.S.C. 101) double patenting rejection can be overcome by canceling or amending the claims that are directed to the same invention so they are no longer coextensive in scope. The filing of a terminal disclaimer cannot overcome a double patenting rejection based upon 35 U.S.C. 101.
Claims 1-20 is/are rejected under 35 U.S.C. 101 as claiming the same invention as that of claims 1-20 of prior U.S. Patent No. US 12,133,712 B2 (S/N: 18/123,760). This is a statutory double patenting rejection.
Allowable Subject Matter
Claims 1-20 would be allowable if rewritten or amended to overcome the Double Patenting (DP) rejections. Note that a terminal disclaimer will not overcome the DP rejections if the claims remain un-amended due to the statutory type DP rejection.
The following is a statement of reasons for the indication of allowable subject matter:
The claims contain the same allowable subject matter as the parent case S/N: 18/123,760 (no U.S. Patent No. US 12,133,712 B2). The examiner’s statement of reasons for allowance can also be found in the Office action mailed on December 11, 2023 (see page 4) for S/N: 18/123,760.
In summary, the prior art of record teaches that it was known at the time the application was filed to use a confocal laser endomicroscopy (CLE) device to obtain images during brain surgery and classify tumors based on the extracted features using CNN.
However, the prior art, alone or in combination, does not appear to explicitly teach or suggest that the CNN is used to label the images as either diagnostic or non-diagnostic, wherein the diagnostic images contain at least a threshold level of identifiable histological features whereas the non-diagnostic images do not provide the threshold level of identifiable histological features, i.e., the non-diagnostic images cannot be used for the future classification steps.
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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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Matthew Bella can be reached at (571)272-7778. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Soo Shin/Primary Examiner, Art Unit 2667 571-272-9753
soo.shin@uspto.gov
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