DETAILED ACTION
Summary
Claims 1-20 are pending in the application. Claim 6 is rejected under 35 USC 112(b). Claims 1, 3-4, 7-11 are rejected under 35 USC 103. Claims 1, 3-4, and 7-11 are rejected under non-statutory double patenting.
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. Applicant has not complied with one or more conditions for receiving the benefit of an earlier filing date under 35 U.S.C. 120, 121, 365(c), or 386(c) as follows:
The later-filed application must be an application for a patent for an invention which is also disclosed in the prior application (the parent or original nonprovisional application or provisional application). The disclosure of the invention in the parent application and in the later-filed application must be sufficient to comply with the requirements of 35 U.S.C. 112(a) or the first paragraph of pre-AIA 35 U.S.C. 112, except for the best mode requirement. See Transco Products, Inc. v. Performance Contracting, Inc., 38 F.3d 551, 32 USPQ2d 1077 (Fed. Cir. 1994).
The disclosure of the prior-filed application, Application No. 16517831 and 17661784, fails to provide adequate support or enablement in the manner provided by 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph for one or more claims of this application. Claims 1-11, 14-16, and 18-20 lack adequate support.
Claim 1 recites “determine contact between the volume and the optoacoustic probe based on the signals generated from the auxiliary light reflecting from the volume and color of a surface of the volume”. This is not supported by 16517831 or 17661784. 16517831 describes how skins of different pigmentation can reflect light at different rates ([000116]+[000124]). However, the application describes how the user can look at the increase in reflectance, regardless of pigment, to determine contact. Fig. 9 shows how the auxiliary light sensors can be used to determine the skin color [000120]. However, this determination of skin color is not used for determining the contact between the probe and the volume; the skin color is used to vary the intensity of the first or second primary light source [000120]+[000125]. 16517831 further states “The microcontroller may then selectively actuate the different auxiliary light sources as required to ensure regarding of the angle of the probe, or the color of the volume, sufficient light is presented to determine the location of the probe in relation of the volume” [000107]. However, this does not provide support as the system is not determining contact based on signals generated by the auxiliary light reflecting from the volume and color of the surface of the volume; the system is adjusting the auxiliary light using color so that the resulting signals can be detected. The contact is still being determined only based on the signals generated from the auxiliary light. Application 17661784 fails to provide adequate support for similar reasons.
Claims 14-16 lack support in either 16517831 or 17661784. While 16517831 discusses that the auxiliary light source can be a specific wavelength, it does not disclose “wherein selecting the auxiliary light source from the plural auxiliary light sources includes identifying a first auxiliary light source configured to emit a first wavelength of light; identifying a second auxiliary light source configured to emit a second wavelength of light; and selecting the first auxiliary light source as the auxiliary light source based on the color of the surface of the volume” or “wherein the auxiliary light source is a first auxiliary light source, and the method further comprises mixing a first wavelength of light emitted by the first auxiliary light source with a second wavelength of light emitted by a second auxiliary light source based on the color of the surface of the volume”. Furthermore, while 16517831 teaches that the auxiliary light can be selectively actuated based on the color [000107], the application does not disclose varying an intensity of the auxiliary light source based on the color of the surface of the volume. 17661784 fails to provide adequate support for similar reasons.
Claim 18 recites “a first auxiliary light source positioned adjacent to the optical window at the distal end of the optoacoustic probe and configured to emit a first wavelength of light; a second auxiliary light source posited adjacent to the optical window at the distal end of the optoacoustic probe and configured to emit a second wavelength of light”. This is not supported by 16517831 or 17661784. While 16517831 discusses that the auxiliary light source can be a specific wavelength, 16517831 does not disclose a first auxiliary source of a first wavelength and a second auxiliary source of the second wavelength. Application 176611784 fails to provide adequate support for similar reasons.
Dependent claims 2-11, and 19-20 lack adequate support in the parent applications for similar reasons. For the purposes of examination, the effective filing date of claims 1-11, 14-16, and 19-20 will be 1/6/2025, the actual filing date of the application.
Information Disclosure Statement
The listing of references in the specification is not a proper information disclosure statement. 37 CFR 1.98(b) requires a list of all patents, publications, or other information submitted for consideration by the Office, and MPEP § 609.04(a) states, "the list may not be incorporated into the specification but must be submitted in a separate paper." Therefore, unless the references have been cited by the examiner on form PTO-892, they have not been considered.
Specification
The disclosure is objected to because of the following informalities:
[000123] refers to an attached “Appendix A”, but the appendix does not appear to be in the file wrapper.
Appropriate correction is required.
Claim Objections
Claims 6, and 18-20 objected to because of the following informalities:
Claim 6 recites “wherein the one or more processors include program instructions operate the first auxiliary light source” in lines 1-2. Claim 6 should recite “wherein the one or more processors include program instructions to operate the first auxiliary light source”.
Claim 18 recites “a second auxiliary source posited adjacent” in line 9. It should recite “a second auxiliary source positioned adjacent”.
Claim 18 recites “operate auxiliary light source selected” in line 15. It should recite “operate the selected auxiliary light source”.
Claim 18 recites “operate the auxiliary light source selected” in line 17. It should recite “operate the selected auxiliary light source”.
Claim 19 recites “the auxiliary light source selected” in line 2. It should recite “the selected auxiliary light source”.
Claim 20 recites “the auxiliary light source selected” in line 2. It should recite “the selected auxiliary light source”.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 6 rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 6 recites “and second auxiliary light source” in line 2. It is not clear if this is referring to the second auxiliary light source previously set forth, or if this is referring to a new second auxiliary light source. Clarification is required. For the purposes of examination, the former definition will be used.
Claim Rejections - 35 USC § 103
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 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1, 7, and 9-10 are rejected under 35 U.S.C. 103 as being unpatentable over Sato (U.S PGPub 2015/0182123 A1) in view of Herzog et al. (U.S PGPub 2013/0116538 A1) and Luzon et al. (U.S PGPub 2014/0074193 A1).
Regarding Claim 1, Sato teaches an optoacoustic probe for optoacoustic imaging of a volume (Abstract) (Fig. 1, 7), the optoacoustic probe having a distal end operable to contact the volume and a proximal end (Fig. 4B, area that contacts object is distal end, area with the cables is the proximal end) [0065], the optoacoustic probe comprising:
a light source (Fig. 1, 1) outside a probe housing [0022] configured to generate light that is transmitted along a light path [0032] to generate optoacoustic return signals when the light reacts with the volume [0039];
an auxiliary light source (Fig. 1, LED light source 10) coupled to the probe housing [0052] and configured to generate auxiliary light carried through the optical window to the volume during operation of the optoacoustic probe [0044]+[0050]-[0051];
a secondary light sensor (Fig. 1, 8) configured to detect signals generated from the auxiliary light source reflecting from the volume [0054]+[0060]; and
a microcontroller (Fig. 1, 9) with program instructions [0056] to:
receive the signals generated from the auxiliary light reflecting from the volume (Fig. 3, S2) [0060];
determine contact between the volume and the optoacoustic probe based on the signals generated from the auxiliary light reflecting from the volume (Fig. 3, S3) [0061]+[0064]-[0066]; and
prevent the light from the light source emitting from the probe housing until the optoacoustic probe is contacting the volume (Fig. 3, S5) [0078]-[0079]+[0082].
Sato is silent regarding an optical window configured to carry light along the light path to the volume and the control device including one or more processors and a memory coupled to the one or more processors.
Herzog teaches a safety system for an optoacoustic probe (Abstract). This system contains an optical window (Fig. 17, 1603) configured to carry light along the light path to the volume [0409]. The process are controlled by a processor [0039] connected to a memory [0506].
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the system of Sato to include and optical window because an optical window is important to better control the fluence of the laser, as recognized by Herzog [0409]. It would have been obvious to one of ordinary skill in the art before the effective filing date to substitute the control unit to be processors coupled to memory, as taught by Herzog, as the substitution for one known control system with another yields predictable results to one of ordinary skill in the art. One of ordinary skill would have been able to carry out such a substitution, and the results of using a processor and memory as a control unit are reasonably predictable.
The combination fails to explicitly teach determining contact using color of a surface of the volume.
Luzon teaches a safety method for a dermatological device (Abstract). This system uses light to determine the proximity to the surface of the skin [0102]. This system determines if this device is close (i.e. in contact) with the skin based on a threshold calculated based in part, on the pigmentation (color) of the skin [0102].
It would have been obvious to one of ordinary skill in the art before the effective date to modify the combined system to use the color of the volume in determining contact, as taught by Luzon, because this increases the safety of the device for the user and the patient [0061]-[0062].
Regarding Claim 7, the combination of references teaches the invention substantially as claimed. Sato further teaches wherein the light source is a laser light source (Fig. 1, 1) [0026] and the auxiliary light source is a light emitting diode (Fig. 1, 10) [0044].
Regarding Claim 9, the combination of references teaches the invention substantially as claimed. Sato further teaches further comprising a triggering system configured to actuate the light source and the auxiliary light source (Fig. 6) [0082] and configured to prevent actuation of the light source before actuation of the auxiliary light source [0082].
Regarding Claim 10, the combination of references teaches the invention substantially as claimed. Sato fails to explicitly teach wherein the auxiliary light source is disposed adjacent the optical window at the distal end of the optoacoustic probe.
Herzog teaches that the proximity second is disposed adjacent the optical window (Fig. 18, 1603) [0454] at the distal end of the optoacoustic probe (Fig. 18, 1805) [0464].
It would have been obvious to one of ordinary skill in the art before the effective filing date to substitute the location of the auxiliary light source so it is adjacent the optical window, as taught by Herzog, as the substitution for one known location of the auxiliary light source with another yields predictable results to one of ordinary skill in the art. One of ordinary skill would have been able to carry out such a substitution, and the results of the auxiliary light source being adjacent the optical window are reasonably predictable.
Claims 3-4 and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Sato in view of Herzog and Luzon as applied to claim 1 above, and further in view of Hashimoto et al. (U.S PGPub 2017/0360304 A1).
Regarding Claim 3, the combination of references teaches the invention substantially as claimed. Sato further teaches the auxiliary light source is a first auxiliary light source configured to emit a first wavelength of light [0049].
Sato fails to explicitly teach the optoacoustic probe further comprises a second auxiliary light source configured to emit a second wavelength of light.
Hashimoto teaches a photoacoustic system which includes correction light sources (Abstract). These correction lights sources are two different auxiliary light sources (Fig. 2, 13a+13b) which emit light of different wavelengths [0040].
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the combined system so the auxiliary light source has two different auxiliary lights sources that emit light of different wavelengths, as taught by Hashimoto, because this allows for the reduction in artifacts in the photoacoustic image, thereby increasing the quality of the image, as recognized by Hashimoto [0008].
Regarding Claim 4, the combination of references teaches the invention substantially as claimed. Sato fails to explicitly teach wherein the first wavelength of light and the second wavelength of light are different wavelengths.
Hashimoto further teaches the correction lights sources are two different auxiliary light sources (Fig. 2, 13a+13b) which emit light of different wavelengths [0040].
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the combined system so the auxiliary light source has two different auxiliary lights sources that emit light of different wavelengths, as taught by Hashimoto, because this allows for the reduction in artifacts in the photoacoustic image, thereby increasing the quality of the image, as recognized by Hashimoto [0008].
Regarding Claim 8, the combination of references teaches the invention substantially as claimed. Sato fails to explicitly teach wherein the secondary light sensor is a photodiode.
Hashimoto further teaches wherein the secondary light sensor is a photodiode [0036].
It would have been obvious to one of ordinary skill in the art before the effective filing date to substitute the detector of the combination to be a photodiode, as taught by Hashimoto, as the substitution for one known light detector with another yields predictable results to one of ordinary skill in the art. One of ordinary skill would have been able to carry out such a substitution, and the results of using a photodiode to detect light are reasonably predictable.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Sato in view of Herzog and Luzon as applied to claim 1 above, and further in view of Tokita (U.S PGPub 2014/0046166 A1).
Regarding Claim 11, the combination of references teaches the invention substantially as claimed. The combination is fails to explicitly teach wherein the one or more processors are configured to receive the signals generated from the auxiliary light reflecting from the volume while the light source generates the light.
Tokita teaches a photoacoustic probe (Abstract). This system contains a contact sensor, where the reflected signal indicative of the contact state of the sensor probe is received at the same time as the photoacoustic signal is irradiated (Fig. 4B, US reception is clearly at the same time as light irradiation) [0057]. While the reference discusses the contact sensor being an ultrasound signal, the application acknowledges that the contact sensor could be any appropriate contact sensor [0072].
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the combination of references to have the auxiliary signal detected while the primary source generates light, as taught by Tokita, as the substitution for one known contact sensor/light emission timing with another yields predictable results to one of ordinary skill in the art. One of ordinary skill would have been able to carry out such a substitution, and the results of the contact sensor signal being received while the primary light source generates light are reasonably predictable.
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 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 2, and 4 of U.S. Patent No. 11,382,565 B2 in view of Sato and Luzon.
Regarding Claim 1, the Patent teaches an optoacoustic probe for optoacoustic imaging of a volume, the optoacoustic probe having a distal end operable to contact the volume and a proximal end (Claim 1, Col 20, lines 20-23), the optoacoustic probe comprising:
a light source configured to generate light that is transmitted along a light path to generate optoacoustic return signals when the light reacts with the volume (Claim 1, Col 20, lines 24-27);
an optical window configured to carry the light along the light path to the volume (Claim 1, Col 20, lines 31-32);
an auxiliary light source configured to generate auxiliary light carried through the optical window to the volume during operation of the optoacoustic probe (Claim 1, Col 20, lines 33-35);
a secondary light sensor configured to detect signals generated from the auxiliary light source reflecting from the volume (Claim 1, Col 20, lines 36-39); and
a microcontroller including one or more processors, and a memory coupled to the one or more processors, wherein the memory stores program instructions, wherein the program instructions are executable by the one or more processors to: (Claim 1, Col 20, lines 40-44)
receive the signals generated from the auxiliary light reflecting from the volume; (Claim 1, Col 20, lines 45-47)
determine contact between the volume and the optoacoustic probe based on the signals generated from the auxiliary light reflecting from the volume; and (Claim 1, Col 20, lines 48-50)
prevent the light from the light source emitting from the probe housing until the optoacoustic probe is contacting the volume (Claim 1, Col 20, lines 51-52).
The Patent is silent regarding the light source outside the probe housing or the auxiliary light source coupled to the probe housing.
Sato teaches an optoacoustic system (Abstract). This system has a light source (Fig. 1, 1) outside a probe housing [0022] and an auxiliary light source (Fig. 1, LED light source 10) coupled to the probe housing [0052].
It would have been obvious to one of ordinary skill in the art before the effective filing date substitute the locations of the light source and auxiliary light source to be outside and coupled to, respectively, a probe housing, as taught by Sato, as the substitution for one known location of a light source with another yields predictable results to one of ordinary skill in the art. One of ordinary skill would have been able to carry out such a substitution, and the results of the light source being outside the housing and the auxiliary light being coupled to the housing are reasonably predictable.
The combination fails to explicitly teach determining contact base on color of a surface of the volume.
Luzon teaches a safety method for a dermatological device (Abstract). This system uses light to determine the proximity to the surface of the skin [0102]. This system determines if this device is close (i.e. in contact) with the skin based on a threshold calculated based in part, on the pigmentation (color) of the skin [0102].
It would have been obvious to one of ordinary skill in the art before the effective date to modify the combined system to use the color of the volume in determining contact, as taught by Luzon, because this increases the safety of the device for the user and the patient [0061]-[0062].
Regarding Claim 7, the combination of references teaches the invention substantially as claimed. The Patent further teaches wherein the light source is a laser light source and the auxiliary light source is a light emitting diode (Claim 4).
Regarding Claim 9, the combination of references teaches the invention substantially as claimed. The Patent further teaches a triggering system configured to actuate the light source and the auxiliary light source and configured to prevent actuation of the light source before actuation of the auxiliary light source (Claim 2).
Claims 3-4, and 8 rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11,382,565 B2 in view of Sato and Luzon and further in view of Hashimoto.
Regarding Claim 3, the combination of references teaches the invention substantially as claimed. The Patent fails to explicitly teach wherein the auxiliary light source is a first auxiliary light source configured to emit a first wavelength of light, and the optoacoustic probe further comprises a second auxiliary light source configured to emit a second wavelength of light.
Hashimoto teaches a photoacoustic system which includes correction light sources (Abstract). These correction lights sources are two different auxiliary light sources (Fig. 2, 13a+13b) which emit light of different wavelengths [0040].
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the combined system so the auxiliary light source has two different auxiliary lights sources that emit light of different wavelengths, as taught by Hashimoto, because this allows for the reduction in artifacts in the photoacoustic image, thereby increasing the quality of the image, as recognized by Hashimoto [0008].
Regarding Claim 4, the combination of references teaches the invention substantially as claimed. The Patent fails to explicitly teach wherein the first wavelength of light and the second wavelength of light are different wavelengths.
Hashimoto further teaches the correction lights sources are two different auxiliary light sources (Fig. 2, 13a+13b) which emit light of different wavelengths [0040].
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the combined system so the auxiliary light source has two different auxiliary lights sources that emit light of different wavelengths, as taught by Hashimoto, because this allows for the reduction in artifacts in the photoacoustic image, thereby increasing the quality of the image, as recognized by Hashimoto [0008].
Regarding Claim 8, the combination of references teaches the invention substantially as claimed. The Patent fails to explicitly teach wherein the secondary light sensor is a photodiode.
Hashimoto further teaches wherein the secondary light sensor is a photodiode [0036].
It would have been obvious to one of ordinary skill in the art before the effective filing date to substitute the detector of the combination to be a photodiode, as taught by Hashimoto, as the substitution for one known light detector with another yields predictable results to one of ordinary skill in the art. One of ordinary skill would have been able to carry out such a substitution, and the results of using a photodiode to detect light are reasonably predictable.
.
Claim 10 rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11,382,565 B2 in view of Sato and Luzon and further in view of Herzog.
Regarding Claim 10, the combination of references teaches the invention substantially as claimed. The Patent fails to explicitly teach wherein the auxiliary light source is disposed adjacent the optical window at the distal end of the optoacoustic probe.
Herzog teaches that the proximity second is disposed adjacent the optical window (Fig. 18, 1603) [0454] at the distal end of the optoacoustic probe (Fig. 18, 1805) [0464].
It would have been obvious to one of ordinary skill in the art before the effective filing date to substitute the location of the auxiliary light source so it is adjacent the optical window, as taught by Herzog, as the substitution for one known location of the auxiliary light source with another yields predictable results to one of ordinary skill in the art. One of ordinary skill would have been able to carry out such a substitution, and the results of the auxiliary light source being adjacent the optical window are reasonably predictable.
Claim 11 rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11,382,565 B2 in view of Sato and Luzon and further in view of Tokita.
Regarding Claim 11, the combination of references teaches the invention substantially as claimed. The Patent fails to explicitly teach wherein the one or more processors are configured to receive the signals generated from the auxiliary light reflecting from the volume while the light source generates the light.
Tokita teaches a photoacoustic probe (Abstract). This system contains a contact sensor, where the reflected signal indicative of the contact state of the sensor probe is received at the same time as the photoacoustic signal is irradiated (Fig. 4B, US reception is clearly at the same time as light irradiation) [0057]. While the reference discusses the contact sensor being an ultrasound signal, the application acknowledges that the contact sensor could be any appropriate contact sensor [0072].
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the combination of references to have the auxiliary signal detected while the primary source generates light, as taught by Tokita, as the substitution for one known contact sensor/light emission timing with another yields predictable results to one of ordinary skill in the art. One of ordinary skill would have been able to carry out such a substitution, and the results of the contact sensor signal being received while the primary light source generates light are reasonably predictable.
Claims 1, 7, 9-11 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 2, and 7 of U.S. Patent No. 12,186,099 in view of Luzon.
Regarding Claim 1, the Patent teaches an optoacoustic probe for optoacoustic imaging of a volume, the optoacoustic probe having a distal end operable to contact the volume and a proximal end (Col 20, Claim 1, lines 26-29), the optoacoustic probe comprising:
a light source outside a probe housing configured to generate light that is transmitted along a light path to generate optoacoustic return signals when the light reacts with the volume (Claim 1, Col 20, lines 30-33);
an optical window configured to carry the light along the light path to the volume (Claim 1, Col 20, lines 34-35);
an auxiliary light source coupled to the probe housing and configured to generate auxiliary light carried through the optical window to the volume during operation of the optoacoustic probe (Claim 1, Col 20, lines 36-39);
a secondary light sensor configured to detect signals generated from the auxiliary light source reflecting from the volume (Claim 1, Col 20, lines 40-43); and
a microcontroller including one or more processors, and a memory coupled to the one or more processors, wherein the memory stores program instructions, wherein the program instructions are executable by the one or more processors to: (Claim 1, Col 20, lines 44-48)
receive the signals generated from the auxiliary light reflecting from the volume; (Claim 1, Col 20, lines 49-50)
determine contact between the volume and the optoacoustic probe based on the signals generated from the auxiliary light reflecting from the volume; and (Claim 1, Col 20, lines 51-53)
prevent the light from the light source emitting from the probe housing until the optoacoustic probe is contacting the volume (Claim 1, Col 20, lines 54-56).
The Patent fail to explicitly teach determining contact using color of a surface of the volume.
Luzon teaches a safety method for a dermatological device (Abstract). This system uses light to determine the proximity to the surface of the skin [0102]. This system determines if this device is close (i.e. in contact) with the skin based on a threshold calculated based in part, on the pigmentation (color) of the skin [0102].
It would have been obvious to one of ordinary skill in the art before the effective date to modify the combined system to use the color of the volume in determining contact, as taught by Luzon, because this increases the safety of the device for the user and the patient [0061]-[0062].
Regarding Claim 7, the Patent teaches the invention substantially as claimed. The Patent further teaches wherein the light source is a laser light source (Claim 1, Col 20, line 30) and the auxiliary light source is a light emitting diode (Claim 1, Col 20, line 26).
Regarding Claim 9, the Patent teaches the invention substantially as claimed. The Patent further teaches a triggering system configured to actuate the light source and the auxiliary light source and configured to prevent actuation of the light source before actuation of the auxiliary light source (Claim 2).
Regarding Claim 10, the Patent teaches the invention as claimed. The Patent further teaches wherein the auxiliary light source is disposed adjacent the optical window at the distal end of the optoacoustic probe (Claim 1, Col 20, lines 57-58).
Regarding Claim 11, the Patent teaches the invention as claimed. The Patent further teaches wherein the one or more processors are configured to receive the signals generated from the auxiliary light reflecting from the volume while the light source generates the light (Claim 7).
Claims 3-4 and 8 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 12,186,099 in view of Luzon and further in view of Hashimoto.
Regarding Claim 3, the combination of references teaches the invention substantially as claimed. The Patent fails to explicitly teach wherein the auxiliary light source is a first auxiliary light source configured to emit a first wavelength of light, and the optoacoustic probe further comprises a second auxiliary light source configured to emit a second wavelength of light.
Hashimoto teaches a photoacoustic system which includes correction light sources (Abstract). These correction lights sources are two different auxiliary light sources (Fig. 2, 13a+13b) which emit light of different wavelengths [0040].
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the combined system so the auxiliary light source has two different auxiliary lights sources that emit light of different wavelengths, as taught by Hashimoto, because this allows for the reduction in artifacts in the photoacoustic image, thereby increasing the quality of the image, as recognized by Hashimoto [0008].
Regarding Claim 4, the combination of references teaches the invention substantially as claimed. The Patent fails to explicitly teach wherein the first wavelength of light and the second wavelength of light are different wavelengths.
Hashimoto further teaches the correction lights sources are two different auxiliary light sources (Fig. 2, 13a+13b) which emit light of different wavelengths [0040].
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the combined system so the auxiliary light source has two different auxiliary lights sources that emit light of different wavelengths, as taught by Hashimoto, because this allows for the reduction in artifacts in the photoacoustic image, thereby increasing the quality of the image, as recognized by Hashimoto [0008].
Regarding Claim 8, the combination of references teaches the invention substantially as claimed. The Patent fails to explicitly teach wherein the secondary light sensor is a photodiode.
Hashimoto further teaches wherein the secondary light sensor is a photodiode [0036].
It would have been obvious to one of ordinary skill in the art before the effective filing date to substitute the detector of the combination to be a photodiode, as taught by Hashimoto, as the substitution for one known light detector with another yields predictable results to one of ordinary skill in the art. One of ordinary skill would have been able to carry out such a substitution, and the results of using a photodiode to detect light are reasonably predictable.
Allowable Subject Matter
Claims 2, 5-6 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.
Claims 12-20 allowed.
The following is a statement of reasons for the indication of allowable subject matter:
Claim 2 recites “wherein the one or more processors include program instructions to vary an output of the auxiliary light source based on the color of the surface of the volume”. This limitation, in combination with the limitations of the independent claim, is not taught by the prior art without the benefit of improper hindsight. The “auxiliary light source” of claim 1 is used to “determine contact between the volume and the optoacoustic prove based on the signals generated from the auxiliary light reflecting from the volume and color of a surface of a volume”.
Sato teaches using optical signals to determine contact with the skin [0077]-[0079]. However, the system of Sato does not use the color of the surface to influence the output of the auxiliary light, and therefore cannot teach the claim. While Herzog teaches an optical proximity detector [0464], Herzog does not teach varying an output of the auxiliary light source based on the color of the surface of the volume. Luzon teaches a system which determines the skin tone (Abstract). However, this system uses the skin tonal range for determination in activating the “active” components of the skincare device, not varying the auxiliary light source [0062]. Hashimoto teaches a system which determines the melanin content of a volume (Abstract). This system does not “vary an output of the auxiliary light source based on the color of the surface of the volume”. While the system varies which of the auxiliary light sources emit light (Fig. 4), the order/amount of light emitted by the auxiliary light sources are predetermined, and not chosen based on the color of the surface of the volume [0056]. Tokita does not teach auxiliary light sources, and therefore does not teach the invention as claimed. Harris (U.S PGPub 2019/0150749 A1) teaches an optoacoustic probe (Abstract). This system contains a light detector for real-time calibration of the probe [0249]. The system also contains a proximity system that can be an optical switch. However, the system does not teach varying an auxiliary light source based on the color of the surface.
Claim 2 is not taught by the prior art, and therefore would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Claim 5 recites “wherein the one or more processors include program instructions to select between the first auxiliary light source and the second auxiliary light source based on the color of the surface of the volume”. This limitation, in combination with the limitations of the independent claim, is not taught by the prior art without the benefit of improper hindsight. The “auxiliary light source” of claim 1 is used to “determine contact between the volume and the optoacoustic prove based on the signals generated from the auxiliary light reflecting from the volume and color of a surface of a volume”.
Sato teaches using optical signals to determine contact with the skin [0077]-[0079]. However, the system of Sato does not use the color of the surface to select between the first auxiliary light source and the second auxiliary light source, and therefore does not teach the claim. While Herzog teaches an optical proximity detector [0464], Herzog does not teach selecting between the first auxiliary light source and the second auxiliary light source based on the color of the surface of the volume. Luzon teaches a system which determines the skin tone (Abstract). However, this system uses the skin tonal range for determination in activating the “active” components of the skincare device, not selecting between the first auxiliary light source and the second auxiliary light source [0062]. Hashimoto teaches a system which determines the melanin content of a volume (Abstract). This system does not “select between the first auxiliary light source and the second auxiliary light source based on the color of the surface of the volume”. While the system selects a first or a second auxiliary light source to emit light (Fig. 4), the selection of the auxiliary light sources are predetermined, and not chosen based on the color of the surface of the volume [0056]. Tokita does not teach auxiliary light sources, and therefore does not teach the invention as claimed. Harris (U.S PGPub 2019/0150749 A1) teaches an optoacoustic probe (Abstract). This system contains a light detector for real-time calibration of the probe [0249]. The system also contains a proximity system that can be an optical switch. However, the system does not teach select between the first auxiliary light source and the second auxiliary light source based on the color of the surface of the volume.
Claim 5 is not taught by the prior art, and therefore would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Claim 6 recites “wherein the one or more processors include program instructions operate the first auxiliary light source and second auxiliary light source to mix the first wavelength of light with the second wavelength of light based on the color of the surface of volume”. This limitation, in combination with the limitations of the independent claim, is not taught by the prior art without the benefit of improper hindsight. The “auxiliary light source” of claim 1 is used to “determine contact between the volume and the optoacoustic prove based on the signals generated from the auxiliary light reflecting from the volume and color of a surface of a volume”.
Sato teaches using optical signals to determine contact with the skin [0077]-[0079]. However, the system of Sato does not use the color of the surface to mix the first wavelength of light with the second wavelength of light based on the color of the surface of volume, and therefore does not teach the claim. While Herzog teaches an optical proximity detector [0464], Herzog does not teach mixing the first wavelength of light with the second wavelength of light based on the color of the surface of volume. Luzon teaches a system which determines the skin tone (Abstract). However, this system uses the skin tonal range for determination in activating the “active” components of the skincare device, not mix the first wavelength of light with the second wavelength of light based on the color of the surface of volume [0062]. Hashimoto teaches a system which determines the melanin content of a volume (Abstract). This system does not “mix the first wavelength of light with the second wavelength of light based on the color of the surface of volume”. While the system selects a first or a second auxiliary light source to emit light (Fig. 4), the selection of the auxiliary light sources are predetermined, and not the wavelengths are not mixed based on the color of the surface of the volume [0056]. Tokita does not teach auxiliary light sources, and therefore does not teach the invention as claimed. Harris (U.S PGPub 2019/0150749 A1) teaches an optoacoustic probe (Abstract). This system contains a light detector for real-time calibration of the probe [0249]. The system also contains a proximity system that can be an optical switch. However, the system does not teach mix the first wavelength of light with the second wavelength of light based on the color of the surface of volume.
Claim 6 is not taught by the prior art, and therefore would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Claim 12 recites “A method of triggering a light source of an optoacoustic probe comprising: selecting an auxiliary light source from plural auxiliary light sources based on a color of a surface of a volume; operating the auxiliary light source selected to generate an auxiliary light carried through an optical window to the volume during operation of the optoacoustic probe; detecting the auxiliary light after the auxiliary light has reflected from the surface of the volume; determining when the optoacoustic probe contacts the volume based on the auxiliary light after the auxiliary light has reflected from the volume; triggering the light source in response to determining the optoacoustic probe contacts the volume; and preventing the light source from actuating in response to determining the optoacoustic probe is not contacting the volume”. This is not taught by the prior art without the benefit of improper hindsight.
Sato teaches using optical signals to determine contact with the skin [0077]-[0079]. However, the system of Sato does not use the color of the surface to select an auxiliary light source from plural auxiliary light sources, and therefore does not teach the claim. While Herzog teaches an optical proximity detector [0464], Herzog does not teach selecting an auxiliary light source from plural auxiliary light sources. Luzon teaches a system which determines the skin tone (Abstract). However, this system uses the skin tonal range for determination in activating the “active” components of the skincare device, not selecting an auxiliary light source from plural auxiliary light sources [0062]. Hashimoto teaches a system which determines the melanin content of a volume (Abstract). This system does not “selecting an auxiliary light source from plural auxiliary light sources based on a color of a surface of a volume”. While the system selects a first or a second auxiliary light source to emit light (Fig. 4), the selection of the auxiliary light sources are predetermined, and not chosen based on the color of the surface of the volume [0056]. Tokita does not teach auxiliary light sources, and therefore does not teach the invention as claimed. Harris (U.S PGPub 2019/0150749 A1) teaches an optoacoustic probe (Abstract). This system contains a light detector for real-time calibration of the probe [0249]. The system also contains a proximity system that can be an optical switch. However, the system does not teach selecting an auxiliary light source from plural auxiliary light sources based on a color of a surface of a volume.
Claim 12 is not taught by the prior art, and therefore would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Claim 18 recites “An optoacoustic system for optoacoustic imaging of a volume, comprising: an optoacoustic probe having a distal end operable to contact a surface of the volume; a laser light source in a chassis coupled to the optoacoustic probe via an optoacoustic cable, the laser light source configured to generate light that is transmitted along a light path within the optoacoustic cable to generate optoacoustic return signals when the light reacts with the volume; an optical window configured to carry the light along the light path to the volume; a first auxiliary light source positioned adjacent to the optical window at the distal end of the optoacoustic probe and configured to emit a first wavelength of light; a second auxiliary light source posited adjacent to the optical window at the distal end of the optoacoustic probe and configured to emit a second wavelength of light; a microcontroller including one or more processors, and a memory coupled to the one or more processors, wherein the memory stores program instructions, wherein the program instructions are executable by the one or more processors to: select at least one of the first auxiliary light source and the second auxiliary light source based on a color of the surface of the volume; operate auxiliary light source selected; and prevent the light from the laser light source from emitting based on signals generated from the auxiliary light source selected”. This claim is not taught by the prior art without the benefit of improper hindsight.
Sato teaches using optical signals to determine contact with the skin [0077]-[0079]. However, the system of Sato does not use the color of the surface to select an auxiliary light source, and therefore does not teach the claim. While Herzog teaches an optical proximity detector [0464], Herzog does not teach selecting an auxiliary light source. Luzon teaches a system which determines the skin tone (Abstract). However, this system uses the skin tonal range for determination in activating the “active” components of the skincare device, not selecting at least one of the first auxiliary light source and the second auxiliary light source based on a color of the surface of the volume [0062]. Hashimoto teaches a system which determines the melanin content of a volume (Abstract). This system does not “select at least one of the first auxiliary light source and the second auxiliary light source based on a color of the surface of the volume”. While the system selects a first or a second auxiliary light source to emit light (Fig. 4), the selection of the auxiliary light sources are predetermined, and not chosen based on the color of the surface of the volume [0056]. Tokita does not teach auxiliary light sources, and therefore does not teach the invention as claimed. Harris (U.S PGPub 2019/0150749 A1) teaches an optoacoustic probe (Abstract). This system contains a light detector for real-time calibration of the probe [0249]. The system also contains a proximity system that can be an optical switch. However, the system does not teach select at least one of the first auxiliary light source and the second auxiliary light source based on a color of the surface of the volume. Furthermore, none of the references teach either the first or second auxiliary light sources adjacent to an optical window. Therefore, claim 18 is not taught by the prior art, and therefore would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Dependent claims 13-17 and 19-20 necessarily contain all the limitations of the allowable independent claims, and are allowable by virtue of their dependency.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Altshuler (U.S PGPub 2007/0060819 A1), which teaches a method for calculating a melanin index.
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/SEAN D MATTSON/Primary Examiner, Art Unit 3798