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 .
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) 1-20 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by VanDyken (US 2019/0142520).
Claim 1, VanDyken discloses a computer-implemented method (abstract) comprising: obtaining intraoperative patient data (paragraphs [0052]-[0054]); performing one or more simulations based on a surgical plan to generate at least one robotic surgical action for an intraoperative surgical plan (paragraphs [0052]-[0054] and [0080]-[0085]); and causing a robotic surgical apparatus to perform the at least one robotic surgical action according to the intraoperative surgical plan (paragraphs [0032], [0064], and [0125]).
Claim 2, VanDyken discloses the computer-implemented method of claim 1, wherein the at least one robotic surgical action is generated using a trained machine model, wherein the trained machine model includes at least one of a neural network model, a machine learning model, or both (paragraph [0086]).
Claim 3, VanDyken discloses the computer-implemented method of claim 1, further comprising: obtaining additional intraoperative patient data; performing one or more additional simulations based on the additional intraoperative patient data; and in response to a failure to identify a robotic surgical step based on the additional intraoperative patient data, receiving user input for causing the robotic surgical apparatus to perform a subsequent surgical action (paragraph [0120]).
Claim 4, VanDyken discloses the computer-implemented method of claim 1, wherein the one or more simulations are performed using a virtual model generated based on the intraoperative patient data and the surgical plan (paragraphs [0019]-[0026]).
Claim 5, VanDyken discloses the computer-implemented method of claim 1, further comprising: determining a score for each of the one or more simulations based on one or more predicted events for a respective one of the one or more simulations; and selecting one of the one or more simulations based on the score to generate the at least one robotic surgical action (paragraph [0086]).
Claim 6, VanDyken discloses the computer-implemented method of claim 1, further comprising designing at least one of the one or more simulations based on the surgical plan to be completed within a time period, wherein designing the at least one simulation includes (i) generating a three-dimensional model of an anatomy of a patient, (ii) generating a three-dimensional model of an implant, and/or (iii) moving the three-dimensional models of the anatomy and the implant according to the surgical plan (paragraphs [0024], [0029], and [0052]).
Claim 7, VanDyken discloses the computer-implemented method of claim 1, wherein the one or more simulations are performed while one or more instruments of the robotic surgical apparatus are at least partially positioned within a patient (paragraphs [0029] and [00123]).
Claim 8, VanDyken discloses a surgical system (abstract) comprising: one or more computer processors (abstract); and a non-transitory computer-readable storage medium storing computer instructions (abstract), which when executed by the one or more computer processors, cause the surgical system to: obtain intraoperative patient data (paragraphs [0052]-[0054]); perform one or more simulations based on a surgical plan to generate at least one robotic surgical action for an intraoperative surgical plan (paragraphs [0052]-[0054] and [0080]-[0085]); and cause a robotic surgical apparatus to perform the at least one robotic surgical action according to the intraoperative surgical plan (paragraphs [0032], [0064], and [0125]).
Claim 9, VanDyken discloses the surgical system of claim 8, wherein the at least one robotic surgical action is generated using a trained machine model, wherein the trained machine model includes at least one of a neural network model, a machine learning model, or both (paragraph [0086]).
Claim 10, VanDyken discloses the surgical system of claim 8, wherein the computer instructions further cause the surgical system to: obtain additional intraoperative patient data; perform one or more additional simulations based on the additional intraoperative patient data; and in response to a failure to identify a robotic surgical step based on the additional intraoperative patient data, receive user input for causing the robotic surgical apparatus to perform a subsequent surgical action (paragraph [0120]).
Claim 11, VanDyken discloses the surgical system of claim 10, wherein the one or more simulations are performed using a virtual model generated based on the intraoperative patient data and the surgical plan (paragraphs [0019]-[0026]).
Claim 12, VanDyken discloses the surgical system of claim 8, wherein the computer instructions further cause the surgical system to: determine a score for each of the one or more simulations based on one or more predicted events for a respective one of the one or more simulations; and select one of the one or more simulations based on the score to generate the at least one robotic surgical action (paragraph [0086]).
Claim 13, VanDyken the surgical system of claim 8, wherein the computer instructions further cause the surgical system to design at least one of the one or more simulations based on the surgical plan to be completed within a time period, wherein designing the at least one simulation includes (i) generating a three-dimensional model of an anatomy of a patient, (ii) generating a three-dimensional model of an implant, and/or (iii) moving the three-dimensional models of the anatomy and the implant according to the surgical plan (paragraphs [0024], [0029], and [0052]).
Claim 14, VanDyken discloses the surgical system of claim 8, wherein the one or more simulations are performed while one or more instruments of the robotic surgical apparatus are at least partially positioned within a patient (paragraphs [0029] and [00123]).
Claim 15, VanDyken a surgical system (abstract) comprising: a computer system (abstract) configured to: discloses obtain intraoperative patient data (paragraphs [0052]-[0054]); perform one or more simulations based on a surgical plan to generate at least one robotic surgical action for an intraoperative surgical plan (paragraphs [0052]-[0054] and [0080]-[0085]); and cause a robotic surgical apparatus to perform the at least one robotic surgical action according to the intraoperative surgical plan (paragraphs [0032], [0064], and [0125]).
Claim 16, VanDyken discloses the surgical system of claim 15, wherein the at least one robotic surgical action is generated using a trained machine model, wherein the trained machine model includes at least one of a neural network model, a machine learning model, or both (paragraph [0086]).
Claim 17, VanDyken discloses the surgical system of claim 15, wherein the computer system is further configured to: obtain additional intraoperative patient data; perform one or more additional simulations based on the additional intraoperative patient data; and in response to a failure to identify a robotic surgical step based on the additional intraoperative patient data, receive user input for causing the robotic surgical apparatus to perform a subsequent surgical action (paragraph [0120]).
Claim 18, VanDyken discloses the surgical system of claim 15, wherein the one or more simulations are performed using a virtual model generated based on the intraoperative patient data and the surgical plan (paragraphs [0019]-[0026]).
Claim 19, VanDyken discloses the surgical system of claim 15, wherein the computer system is further configured to: determine a score for each of the one or more simulations based on one or more predicted events for a respective one of the one or more simulations; and select one of the one or more simulations based on the score to generate the at least one robotic surgical action (paragraph [0086]).
Claim 20, VanDyken the surgical system of claim 15, wherein the computer system is further configured to design at least one of the one or more simulations based on the surgical plan to be completed within a time period, wherein designing the at least one simulation includes (i) generating a three-dimensional model of an anatomy of a patient, (ii) generating a three-dimensional model of an implant, and/or (iii) moving the three-dimensional models of the anatomy and the implant according to the surgical plan (paragraphs [0024], [0029], and [0052]).
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, 8, and 15 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 8, and 15 of U.S. Patent No. 12193752.
Although the claims at issue are not identical, they are not patentably distinct from each other because the patent claims include all the limitations of the current claim, though slightly reworded.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Zade Coley whose telephone number is (571)270-1931. The examiner can normally be reached M-F (9-5) PT.
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/Zade Coley/Primary Examiner, Art Unit 3775