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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Claims 1-20 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-19 of U.S. Patent No. 12217442. Although the claims at issue are not identical, they are not patentably distinct from each other because claims of instant application are anticipated by claims of U.S. Patent No. 12217442 as shown below.
INSTANT claim 1 <= U.S. PATENT NO. 12217442 claims 1, 6, 9, 12
INSTANT claim 2 <= U.S. PATENT NO. 12217442 claim 1
INSTANT claim 3 <= U.S. PATENT NO. 12217442 claim 2
INSTANT claim 4 <= U.S. PATENT NO. 12217442 claim 3
INSTANT claim 5 <= U.S. PATENT NO. 12217442 claim 7
INSTANT claim 6 <= U.S. PATENT NO. 12217442 claim 8
INSTANT claim 7 <= U.S. PATENT NO. 12217442 claim 10
INSTANT claim 8 <= U.S. PATENT NO. 12217442 claims 11, 10
INSTANT claim 9 <= U.S. PATENT NO. 12217442 claim 4
INSTANT claim 10 <= U.S. PATENT NO. 12217442 claim 6
INSTANT claim 11 <= U.S. PATENT NO. 12217442 claim 9
INSTANT claim 12 <= U.S. PATENT NO. 12217442 claim 12
INSTANT claim 13 <= U.S. PATENT NO. 12217442 claim 13
INSTANT claim 14 <= U.S. PATENT NO. 12217442 claim 14
INSTANT claim 15 <= U.S. PATENT NO. 12217442 claim 15
INSTANT claim 16 <= U.S. PATENT NO. 12217442 claim 16
INSTANT claim 17 <= U.S. PATENT NO. 12217442 claim 17
INSTANT claim 18 <= U.S. PATENT NO. 12217442 claim 5
INSTANT claim 19 <= U.S. PATENT NO. 12217442 claim 18
INSTANT claim 20 <= U.S. PATENT NO. 12217442 claim 19
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.
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.
Claim(s) 1, 5-9 and 18-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over D1 (U.S. PG-PUB NO. 2005/0049486) in view of D2 (U.S. PG-PUB NO. 2017/0065351) and further in view of D3 (U.S. PATENT NO. 4341220).
-Regarding claim 1, D1 discloses a method of performing registration between a patient space and an image space using a registration frame having a plurality of apertures (auto registration technique involves the use of the distinct or unique hole patterns or fiducial marks positioned in the stereotactic frame 48, [0071]; Each unique pattern is designed to fit in only one unique hole pattern on the stereotactic frame 48, [0061]), comprising: identifying a plurality of registration frame aperture locations within image data, each of the plurality of aperture locations within the image data respectively corresponding to one of the plurality of apertures of the registration frame (the unique hole patterns at each site 76, 78, and 80 may be identified by the work station 34 using known pattern recognition algorithms, [0071]; the work station 34 will identify the unique hole positions on the stereotactic frame 48 from the preacquired scan using known pattern recognition software, [0088]); identifying a pose of the registration frame within the patient space using a tracking system for the patient space (Since the transmitter coil arrays 64 are attached to the stereotactic frame 48, at these fiducial points or locations, which is directly and rigidly fixed to the patient 14, any movement of the patient is tracked, via the transmitter coil array 64, [0092]); and computing a transform between the patient space and the image space based on the pose of the registration frame within the patient space and the pose of the registration frame within the image space (by identifying the location of the unique hole patterns and by knowing where each transmitter coil array 64 is located after scanning enables the work station 34 to calculate a translation between the three-dimensional image data and patient space, as is known in the art to enable auto registration, [0071]).
D1 is silent to teaching that determining a pose of the registration frame within the image space using the plurality of registration frame aperture locations within the image data. However, the claimed limitation is well known in the art as evidenced by D2.
In the same field of endeavor, D2 teaches determining a pose of the registration frame within the image space using the plurality of registration frame aperture locations within the image data (The camera pose estimation involves calculating a 3D transform between the camera and the selected model by iteratively transforming the model fiducials onto the fiducial image plane and minimizing the residual error in pixels, [0147]).
Therefore, it would have been obvious to one of ordinary skills in the art before the effective filing date of the claimed invention to combine the teaching of D1 with the teaching of D2 in order to provide automatically and accurately locate the registration frame’s features in the image data and compute its image-space pose, yielding a more accurate, repeatable patent-to-image transform.
-Regarding claim 5, the combination further discloses the pose of the registration frame within the patient space comprises a position of the registration frame within the patient space and an orientation of the registration frame within the patient space (D1, any movement of the patient is tracked, via the transmitter coil array 64, [0092]).
-Regarding claim 6, the combination further discloses imaging the patient space including taking a computed tomography (CT) scan of the patient space (D1, CT scans, [0039]).
-Regarding claim 7, the combination further discloses identifying a pose of a registration frame within the patient space using a tracking system for the patient space comprises tracking a tracking device of the registration frame with the tracking system (D1, transmitter coil arrays 64 are removably attached to the stereotactic frame 48, via a removable attachment mechanism 72, [0061]).
-Regarding claim 8, the combination further discloses the tracking device is an infrared (IR) reflector (D2, infrared tracking system, [0151]).
-Regarding claim 9, the combination further discloses an aperture of the plurality of apertures is cylindrical (D1, three dowels or rods extending from each transmitter coil array 64 with each set of dowels 74 having an unique pattern, [0061]).
-Regarding claim 18, the combination further discloses the determining a pose of the registration frame within the image space using the plurality of registration frame aperture locations within the image data comprises matching aperture representations of a model of the registration frame to the plurality of registration frame aperture locations within the image data (with knowing the size and shape of the stereotactic frame 48 and where each transmitter coil array 64 is located on the stereotactic frame 48, the work station 34 can correlate and create a translation map between all points in the preacquired images and the corresponding points in the patient's anatomy, [0088]).
-Regarding claim 19, D1 discloses a computing apparatus comprising: configure the apparatus to: identify a pose of a registration frame within a patient space (Since the transmitter coil arrays 64 are attached to the stereotactic frame 48, at these fiducial points or locations, which is directly and rigidly fixed to the patient 14, any movement of the patient is tracked, via the transmitter coil array 64, [0092]); receive image data corresponding to an image space, the image data comprising an image of the registration frame (the unique hole patterns at each site 76, 78, and 80 may be identified by the work station 34 using known pattern recognition algorithms, [0071]; the work station 34 will identify the unique hole positions on the stereotactic frame 48 from the preacquired scan using known pattern recognition software, [0088]); identify a plurality of registration frame aperture locations within the image data, each of the plurality of aperture locations within the image data respectively corresponding to one of a plurality of apertures of the registration frame (the unique hole patterns at each site 76, 78, and 80 may be identified by the work station 34 using known pattern recognition algorithms, [0071]; the work station 34 will identify the unique hole positions on the stereotactic frame 48 from the preacquired scan using known pattern recognition software, [0088]); and compute a transform between the patient space and the image space based on the pose of the registration frame within the patient space and the pose of the registration frame within the image space (by identifying the location of the unique hole patterns and by knowing where each transmitter coil array 64 is located after scanning enables the work station 34 to calculate a translation between the three-dimensional image data and patient space, as is known in the art to enable auto registration, [0071]).
D1 is silent to teaching that a processor; and a memory storing instructions that, when executed by the processor; and determine a pose of the registration frame within the image space using the plurality of registration frame aperture locations within the image data. However, the claimed limitation is well known in the art as evidenced by D2.
In the same field of endeavor, D2 discloses a processor (processor, [0020]); and a memory storing instructions that (memory, [0020]), when executed by the processor; and determine a pose of the registration frame within the image space using the plurality of registration frame aperture locations within the image data (the homography matrix is used to transform the fiducial models to image coordinates using the four corresponding fiducial models shown in FIG. 22 to find the closest matching image fiducials (steps 254 and 255), [0146]).
Therefore, it would have been obvious to one of ordinary skills in the art before the effective filing date of the claimed invention to combine the teaching of D1 with the teaching of D2 in order to provide automatically and accurately locate the registration frame’s features in the image data and compute its image-space pose, yielding a more accurate, repeatable patent-to-image transform.
-Regarding claim 20, D1 discloses identify a pose of a registration frame within a patient space (Since the transmitter coil arrays 64 are attached to the stereotactic frame 48, at these fiducial points or locations, which is directly and rigidly fixed to the patient 14, any movement of the patient is tracked, via the transmitter coil array 64, [0092]); receive image data corresponding to an image space, the image data comprising an image of the registration frame (the unique hole patterns at each site 76, 78, and 80 may be identified by the work station 34 using known pattern recognition algorithms, [0071]; the work station 34 will identify the unique hole positions on the stereotactic frame 48 from the preacquired scan using known pattern recognition software, [0088]); identify a plurality of registration frame aperture locations within the image data using the image of the registration frame, each of the plurality of aperture locations within the image data respectively corresponding to one of a plurality of apertures of the registration frame (the unique hole patterns at each site 76, 78, and 80 may be identified by the work station 34 using known pattern recognition algorithms, [0071]; the work station 34 will identify the unique hole positions on the stereotactic frame 48 from the preacquired scan using known pattern recognition software, [0088]); and compute a transform between the patient space and the image space based on the pose of the registration frame within the patient space and the pose of the registration frame within the image space (by identifying the location of the unique hole patterns and by knowing where each transmitter coil array 64 is located after scanning enables the work station 34 to calculate a translation between the three-dimensional image data and patient space, as is known in the art to enable auto registration, [0071]).
D1 is silent to teaching that a non-transitory computer-readable storage medium, the computer-readable storage medium including instructions that when executed by a computer, cause the computer to: determine a pose of the registration frame within the image space using the plurality of registration frame aperture locations within the image data. However, the claimed limitation is well known in the art as evidenced by D2.
In the same field of endeavor, D2 discloses a non-transitory computer-readable storage medium (memory, [0020]), the computer-readable storage medium including instructions that when executed by a computer (processor, [0020]), cause the computer to: determine a pose of the registration frame within the image space using the plurality of registration frame aperture locations within the image data (the homography matrix is used to transform the fiducial models to image coordinates using the four corresponding fiducial models shown in FIG. 22 to find the closest matching image fiducials (steps 254 and 255), [0146]).
Therefore, it would have been obvious to one of ordinary skills in the art before the effective filing date of the claimed invention to combine the teaching of D1 with the teaching of D2 in order to provide automatically and accurately locate the registration frame’s features in the image data and compute its image-space pose, yielding a more accurate, repeatable patent-to-image transform.
Conclusion
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/PING Y HSIEH/ Primary Examiner, Art Unit 2664
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