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).
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.
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Claim 1 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 12, 357, 398. Although the claims at issue are not identical, they are not patentably distinct from each other because the patented claim discloses the claimed features:
a microscopy system, comprising:
a microscope having a microscope body with a housing [Claim 1; see column 30 lines 1-20]
a stand configured to mount the microscope and including a drive device configured to move the microscope [Claim 1; see column 30 lines 1-20]
a position detection device including a target and an image capture device configured to optically capture the target [Claim 1; see column 30 lines 1-20]
the position detection device being configured to detect a spatial position of the target [Claim 1; see column 30 lines 1-20]
wherein the image capture device (18) is arranged in the housing of the microscope [Claim 1; see column 30 lines 1-20]
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Austin et al (Pub. No.: US 2018/0369656).
Regarding claim 1, Austin et al disclose a microscopy system, comprising:
a microscope having a microscope body with a housing (viewing platform 9) [see 1253-1254, fig 2];
a stand (1253, 1258, 1670) configured to mount the microscope and including a drive device (motor driven controlled) configured to move the microscope [see 1258, 1422, 1442, 1786];
a position detection device (sensors or cameras which are different for the system viewing camera, 1786) including a target (fiducials) and an image capture device (system viewing camera 18, see 1795) configured to optically capture the target [see 1258, 1787, 1795] by disclosing a camera system may be used to determine the orientation of the object 17. For example, fiducials can be included on the object 17. Images of the object 17 and the fiducials using the camera system may be used to determine the position and/or orientation of the object 17 [see 1787];
the position detection device being configured to detect a spatial position of the target [see 1258, 1787, 1795];
wherein the image capture device (18) is arranged in the housing (viewing platform 9) of the microscope [see 1258, 1787, 1795, fig 2].
Regarding claim 2, Austin et al disclose a control device configured to: control an operation of the microscopy system according to the spatial position of the target detected by the position detection device [see 0066, 1303].
Regarding claim 3, Austin et al disclose spatial position of the target is detected by evaluating a two-dimensional image captured by the image capture [see 1523, 1797, 1370] by disclosing the images can be displayed on 2D displays that represent 2D images from the input cameras [see 1370].
Regarding claim 4, Austin et al disclose wherein optical elements for beam guidance and/or beam shaping and/or beam deflection are arranged in the housing of the microscope body [see 1505];
wherein the image capture device of the position detection device is arranged in the housing of the microscope body such that beams detected by the image capture device do not run through at least one:
optical element (beamsplitter) of the microscope for beam guidance and/or beam shaping and/or beam deflection [see 1371, 1405, 1409, 1505, 1555-1556]
or
run through at least one optical element of the microscope for beam guidance and/or beam shaping and/or beam deflection.
Regarding claim 5, Austin et al disclose wherein the target comprises a marker element,
wherein an identity (RFID) is assigned to the marker element and is identifiable on an image basis [see 1796];
wherein the control device is configured to control an operation of the microscopy system according to the identity control device [see 1796].
Regarding claim 6, Austin et al disclose wherein the image device is configured to at least one of:
(a) control the drive device according to the spatial position of the target [see 0066, 1303];
(b) adjust at least one of an operating parameter, a movement parameter [see 1310], and an operating mode of the microscope [see 1310].
Regarding claim 7, Austin et al disclose wherein the microscope includes a transparent element (lens or transparent window, fig 2) arranged between the image capture device of the position detection device and a detection region to be imaged [see 1373, 1388, 1817].
Regarding claim 8, Austin et al disclose wherein position detection is carried out according to a sequence of at least two images [see 1370] by disclosing the images can be displayed on 2D displays that represent 2D images from the input cameras [see 1370].
Regarding claim 9, Austin et al disclose wherein the sequence of the at least two images is captured by high dynamic range (HDR) imaging [see 1360, 1613].
Regarding claim 11, Austin et al disclose wherein a position-based control is performed in real time [see 0066, 1303] by disclosing electrically driven actuators configured to control movement of said movable mount with electronic signals [see 0066]
Regarding claim 12, Austin et al disclose an illumination device (light source) configured to illuminate the target [see 1821] by disclosing an illumination source may be used to illuminate the surgical site such that the one or more cameras can image the surgical site [see 1821].
Regarding claim 13, Austin et al disclose wherein the illumination device generates light with a wavelength outside a visible range in an infrared wavelength range [see 1655, 1715, 1725] by disclosing one or more light sources 5128 can emit non-visible spectrums of light (e.g., infrared) which can be used with a camera 5126 that can provide false-color images of infrared light views of the surgical site [see 1725].
Regarding claim 14, Austin et al disclose wherein at least one of:
an intensity of an illumination,
a working distance [see 1254, 1262] by disclosing the cameras on the viewing platform 9 can be configured to provide a working distance, or a distance from the viewing platform 9 to the patient, that can vary using zooming [see 1254];
an exposure time of the image capture device are adjustable according to a distance of the target from the image capture device.
Regarding claim 15, Austin et al disclose wherein at least one of:
the microscopy system includes a filter configured to filter beams detected by the image capture device,
the image capture device only detects beams of a defined wavelength or of an infrared wavelength range,
or
the image capture device is a monochrome image capture device [see 1445, 1447, 1586].
Regarding claim 16, Austin et al disclose a means for activating a position-based control of the microscopy system [see 0066, 1303] by disclosing electrically driven actuators configured to control movement of said movable mount with electronic signals [see 0066].
Regarding claim 17, Austin et al disclose wherein the image capture device is a wide-angle camera [see 1710].
Regarding claim 18, Austin et al disclose A microscopy system, comprising:
a microscope having a microscope body (viewing platform 9) [see 1253-1254, fig 2];
wherein optical elements (lens, splitter, mirror, etc.) for beam guidance and/or beam shaping and/or beam deflection are arranged in a housing of the microscope body [see 0260, 0562];
a stand configured to mount the microscope and including a drive device configured to move the microscope [see 1258, 1422, 1442, 1786];
a position detection device including a target with a marker element and an image capture device configured to optically capture the target [see 1258, 1787, 1795] by disclosing a camera system may be used to determine the orientation of the object 17. For example, fiducials can be included on the object 17. Images of the object 17 and the fiducials using the camera system may be used to determine the position and/or orientation of the object 17 [see 1787];
the position detection device being configured to detect a spatial position of the target,
wherein the image capture device is arranged in the housing (viewing platform 9) of the microscope body such that beams detected by the image capture device do not run through (by using blocking filters, splitter, etc. see 1589) of the microscope [see 1258, 1787, 1795, fig 2];
at least one:
optical element of the microscope for beam guidance and/or beam shaping and/or beam deflection
or
run through at least one optical element (transparent widow) of the microscope for beam guidance and/or beam shaping and/or beam deflection [see 1373, 1388, 1817];
a control device configured to control an operation of the microscopy system according to the spatial position of the target detected by the position detection device [see 1258, 1787, 1795];
Regarding claim 19, Austin et al disclose wherein the spatial position of the target is detected by evaluating a two-dimensional image captured by the image capture device [see 1370] by disclosing the images can be displayed on 2D displays that represent 2D images from the input cameras [see 1370].
Regarding claim 20, Austin et al disclose wherein an identity (RFID) is assigned to the marker element and is identifiable on an image basis and wherein the control device is configured to control an operation of the microscopy system according to the identity [see 1796].
Allowable Subject Matter
Claim 10 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.
The following is a statement of reasons for the indication of allowable subject matter: No prior arts of record alone or in combination discloses the following:
Claim 10,
“the marker element has an elliptical marker body or an elliptical marker surface and a geometric center of the elliptical marker body or of the elliptical marker surface,
the marker body or the marker surface is filled with color spectrum points distributed radially with respect to the geometric center, and
a color value of each color spectrum point of the marker/marker surface is determined according to an angle between a horizontal line through the geometric center, and a further line through the geometric center and the corresponding color spectrum point”
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOEL F BRUTUS whose telephone number is (571)270-3847. The examiner can normally be reached Mon-Sat, 11:00 AM to 7:00 PM.
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/JOEL F BRUTUS/ Primary Examiner, Art Unit 3797