DETAILED ACTION
Summary
Claims 1-12 are pending in the application. Claims 5-7 are pending in the application. Claims 1-9, 11-12 are rejected under 35 USC 101. Claims 1-2, and 11-12 are rejected under 35 USC 102(a)(1). Claims 3-4, 8-10 are rejected under 35 USC 103.
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 .
Specification
The disclosure is objected to because of the following informalities:
Pg. 28, lines 5-9 recites “On the other hand, when it is confirmed that the trajectory of the marker is a trajectory of the marker that periodically changes in all directions in step S210, the selector determines the marker is not trackable”. However, Fig. 7, S210 shows that the selector determines the marker is not trackable when the trajectory of the marker does not periodically change in all directions.
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 5-7 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 5 recites the limitation "the fluoroscopic image" in line 4. There is insufficient antecedent basis for this limitation in the claim. For the purposes of examination, the claim with be interpreted as reciting a fluoroscopic image.
Claim 5 recites “a plurality of directions different from each other” in lines 7-8. It is not clear if this is referring to the plurality of directions set forth in clam 2, or if this is setting forth new directions. Clarification is required. For the purposes of examination, the former definition will be used.
All claims dependent from the above claims rejected under 35 USC 112(b) are also rejected, as the limitations of the dependent claims fail to cure the deficiencies identified above.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-9, 11-12 rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The claim(s) recite(s) a mental process. This judicial exception is not integrated into a practical application because the additional components are generic computer components and insignificant pre-solution activities. The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the additional components are generic computer components and insignificant pre-solution activities.
Claim 1 recites an abstract idea without significantly more. The steps of “recognize a position of a part of interest shown in each of the plurality of fluoroscopic images and generate a trajectory of a state in which the part of interest has moved based on the recognized position of the part of interest” and “select a tracking method for tracking the part of interest based on the trajectory of the part of interest” are an abstract idea of a mental process. A user, looking at fluoroscopic images, can recognize a position of a part of interest shown in each of the plurality of fluoroscopic images and generate (i.e. think about) a trajectory of a state in which the part of interest has moved based on the recognized position of the part of interest using only their mind. Further, the user can select a tracking method by thinking about which tracking method would be the best for tracking the part of interest. The claim recites an abstract idea.
The judicial exception is not integrated into a practical application. The components of “an image acquirer”, “a trajectory generator” and “a selector” are generic computer components recited at a high level of generality such that they amount to no more than mere instructions to implement the abstract idea on a generic computer system. The step of “acquire a plurality of fluoroscopic images by imaging a patient” is an insignificant pre-solution activity of gathering data, which does not integrated the abstract idea into a practical application. The claim is directed to an abstract idea.
The claim does not include any additional limitations amount to significantly more than the judicial exception. As detailed above, the use of generic computer components to perform the abstract idea is not more than mere instructions to implement the abstract idea using a generic computer system, and the step of acquiring the images is an insignificant pre-solution activity of gathering data. The claim is not patent eligible.
Claim 2 recites an abstract idea without significantly more. The additional limitations of “acquiring the fluoroscopic images” is directed to an insignificant pre solution activity of gathering data, which does not integrate the abstract idea into a practical application. The limitation is not significantly more than the judicial exception. The step of acquiring fluoroscopic images is directed to an insignificant pre-solution activity of gathering data, which does not amount to significantly more than the judicial exception. Furthermore, the step of acquiring images from a patient from a plurality of directions different from each other is well-understood, routine, and conventional, as evidenced by Kunieda et al (U.S Patent 6,307,914) (Fig. 1) (Col 7, lines 1-26) and Mori et al. (JP 2019107392 A) [0013]-[0014]. The claim is not patent eligible.
Claim 3 recites an abstract idea without significantly more. The additional limitations of “acquiring the fluoroscopic images” is directed to an insignificant pre solution activity of gathering data, which does not integrate the abstract idea into a practical application. The limitation is not significantly more than the judicial exception. The step of acquiring fluoroscopic images is directed to an insignificant pre-solution activity of gathering data, which does not amount to significantly more than the judicial exception. Furthermore, the step of acquiring images continuously for a period of length equivalent to at least one respiratory cycle is well-understood, routine, and conventional, as evidenced by Taguchi et al. (U.S PGPub 2016/0175614 A1) [0044]. The claim is not patent eligible.
Claim 4 recites an abstract idea without significantly more. The step of recognizing the position of the part of interest using template matching is directed to a mental process. A user, looking at the fluoroscopic images, can recognizes the position of a part of interest by thinking that the part looks like a template. The claim recites a mental process. The claim is not integrated into a practical application. The additional limitation of a trajectory generator is generic computer components recited at a high level of generality such that they amount to no more than mere instructions the implement the abstract idea on a generic computer system. The claim does not include any limitations which amount to significantly more than the judicial exception. As detailed above, the use of generic computer components to perform the abstract idea is no more than mere instructions to implement the abstract idea using a generic computer system. The claim is not patent eligible.
Claim 5 recites an abstract idea without significantly more. The step of generating a trajectory by tracking the part in a two dimensional coordinate system and tracking the part of interest in a three-dimensional coordinate system is directed to a mental process. A user, looking at the fluoroscopic images, can track the part of interest in both two dimensions by thinking about the position of the part in the image over time, and track the position of the part in three dimensions by thinking about the geometry of the imaging device and thinking about the location of the part over time. The claim recites a mental process. The claim is not integrated into a practical application. The additional limitation of a trajectory generator is generic computer components recited at a high level of generality such that they amount to no more than mere instructions the implement the abstract idea on a generic computer system. The claim does not include any limitations which amount to significantly more than the judicial exception. As detailed above, the use of generic computer components to perform the abstract idea is no more than mere instructions to implement the abstract idea using a generic computer system. The claim is not patent eligible.
Claim 6 recites an abstract idea without significantly more. The step of inputting the trajectory into a classifier and selecting the tracking method based on the trajectory determined to be trackable is directed to a mental process. A user, thinking about the trajectory, can classify the trajectory as trackable or not, then select (i.e. think about) the appropriate tracking method using only their mind. The claim recites an abstract idea. The claim is not integrated into a practical application. The additional limitation of a selector is generic computer components recited at a high level of generality such that they amount to no more than mere instructions the implement the abstract idea on a generic computer system. The claim does not include any limitations which amount to significantly more than the judicial exception. As detailed above, the use of generic computer components to perform the abstract idea is no more than mere instructions to implement the abstract idea using a generic computer system. The claim is not patent eligible.
Claim 7 recites an abstract idea without significantly more. The system of tracking a part of interest is directed to an abstract idea of a mental process. A user, looking at fluoroscopic images, can track the position of a part of interest using only their mind. The claim recites an abstract idea. The claim is not integrated into a practical application. The additional limitation of a tracker is generic computer components recited at a high level of generality such that it amounts to no more than mere instructions the implement the abstract idea on a generic computer system. The claim does not include any limitations which amount to significantly more than the judicial exception. As detailed above, the use of generic computer components to perform the abstract idea is no more than mere instructions to implement the abstract idea using a generic computer system. The claim is not patent eligible.
Claim 8 recites an abstract idea without significantly more. The system of calculating a likelihood of the part of interest shown in the fluoroscopic interest is directed to an abstract idea of a mathematical concept. Furthermore, the step of selecting the tracking method based on the trajectory and the likelihood is directed to a mental process. A user, looking at the trajectory and likelihood, can select (i.e. think about) the tracking method based on the data. The claim recites an abstract idea. The claim is not integrated into a practical application. The additional limitations of a likelihood calculator and a selector are generic computer components recited at a high level of generality such that they amount to no more than mere instructions the implement the abstract idea on a generic computer system. The claim does not include any limitations which amount to significantly more than the judicial exception. As detailed above, the use of generic computer components to perform the abstract idea is no more than mere instructions to implement the abstract idea using a generic computer system. The claim is not patent eligible.
Claim 9 does not integrate the abstract idea into a practical application or amount to significantly more than the claimed abstract idea. The tracking of a marker, rather than other features in an image, amounts to no more than narrowing the abstract idea of a mental process, and therefore the claims recite a mental process. Furthermore, obtaining images of a marker is directed to an insignificant pre-solution activity of gathering data, and does not integrate the abstract idea into a practical application. The claim does not include any limitations that amount to significantly more than the judicial exception. the step of acquiring images of a marker is well-understood, routine, and conventional, as evidenced by Mori et al. (JP 2019107392 A) [0024]+[0028]. The claim is not patent eligible.
Claim 11 recites an abstract idea without significantly more. The steps of “recognizing a position of a part of interest shown in each of the plurality of fluoroscopic images and generate a trajectory of a state in which the part of interest has moved based on the recognized position of the part of interest” and “selecting a tracking method for tracking the part of interest based on the trajectory of the part of interest” are an abstract idea of a mental process. A user, looking at fluoroscopic images, can recognize a position of a part of interest shown in each of the plurality of fluoroscopic images and generate (i.e. think about) a trajectory of a state in which the part of interest has moved based on the recognized position of the part of interest using only their mind. Further, the user can select a tracking method by thinking about which tracking method would be the best for tracking the part of interest. The claim recites an abstract idea.
The judicial exception is not integrated into a practical application. The component a computer is a generic computer component recited at a high level of generality such that they amount to no more than mere instructions the implement the abstract idea on a generic computer system. The step of “acquiring a plurality of fluoroscopic images by imaging a patient” is an insignificant pre-solution activity of gathering data, which does not integrated the abstract idea into a practical application. The claim is directed to an abstract idea.
The claim does not include any additional limitations amount to significantly more than the judicial exception. As detailed above, the use of generic computer components to perform the abstract idea is no more than mere instructions to implement the abstract idea using a generic computer system, and the step of acquiring the images is an insignificant pre-solution activity of gathering data. The claim is not patent eligible.
Claim 12 recites an abstract idea without significantly more. The steps of “recognize a position of a part of interest shown in each of the plurality of fluoroscopic images and generate a trajectory of a state in which the part of interest has moved based on the recognized position of the part of interest” and “select a tracking method for tracking the part of interest based on the trajectory of the part of interest” are an abstract idea of a mental process. A user, looking at fluoroscopic images, can recognize a position of a part of interest shown in each of the plurality of fluoroscopic images and generate (i.e. think about) a trajectory of a state in which the part of interest has moved based on the recognized position of the part of interest using only their mind. Further, the user can select a tracking method by thinking about which tracking method would be the best for tracking the part of interest. The claim recites an abstract idea.
The judicial exception is not integrated into a practical application. The components of “a non-transitory computer-readable storage medium” is a generic computer components recited at a high level of generality such that they amount to no more than mere instructions the implement the abstract idea on a generic computer system. The step of “acquire a plurality of fluoroscopic images by imaging a patient” is an insignificant pre-solution activity of gathering data, which does not integrated the abstract idea into a practical application. The claim is directed to an abstract idea.
The claim does not include any additional limitations amount to significantly more than the judicial exception. As detailed above, the use of generic computer components to perform the abstract idea is not more than mere instructions to implement the abstract idea using a generic computer system, and the step of acquiring the images is an insignificant pre-solution activity of gathering data. The claim is not patent eligible.
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.
Claims 1-2, and 11-12 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Mori et al. (JP 2019107392 A).
Regarding Claim 1, Mori discloses a medical image processing device [0006] comprising:
an image acquirer (Fig. 1, 10) configured to acquire a plurality of fluoroscopic images by imaging a patient [0012]-[0013];
a trajectory generator configured to recognize a position of a part of interest shown in each of the plurality of fluoroscopic images [0028]+[0101] and generate a trajectory of a state in which the part of interest has moved based on the recognized position of the part of interest [0093]+[0100]-[0101]; and
a selector [0019]+[0073] configured to select a tracking method for tracking the part of interest based on the trajectory of the part of interest [0142].
Regarding Claim 2, Mori discloses the invention substantially as claimed. Mori further discloses wherein the image acquirer acquires the fluoroscopic images by imaging the patient in a plurality of directions different from each other (Fig. 1, 12-1+12-2) [0013]-[0014].
Regarding Claim 11, Mori discloses a medical image processing method [0006] comprising:
acquiring, by a computer (Fig. 1, 110) [0018], a plurality of fluoroscopic images by imaging a patient [0012]-[0013];
recognizing, by the computer (Fig. 1, 110) [0019]+[0073], a position of a part of interest shown in each of the plurality of fluoroscopic images [0028]+[0101] and generating a trajectory of a state in which the part of interest has moved based on the recognized position of the part of interest [0093]+[0100]-[0101]; and
selecting, by the computer (Fig. 1, 110) [0019]+[0073], a tracking method for tracking the part of interest based on the trajectory of the part of interest [0142].
Regarding Claim 12, Mori discloses a non-transitory computer-readable storage medium storing a program for causing a computer [0018] to:
acquire a plurality of fluoroscopic images by imaging a patient [0012]-[0013],
recognize a position of a part of interest shown in each of the plurality of fluoroscopic images [0028]+[0101] and generate a trajectory of a state in which the part of interest has moved based on the recognized position of the part of interest [0093]+[0100]-[0101], and
select a tracking method for tracking the part of interest based on the trajectory of the part of interest [0142].
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Mori in view of Taguchi et al. (U.S PGPub 2018/0140260 A1).
Regarding Claim 3, Mori discloses the invention as claimed. Mori further discloses wherein the image acquirer acquires the plurality of fluoroscopic images that are captured for a period of a length equivalent to at least one respiratory cycle of the patient [0039].
Mori is silent that the images are continuously captured.
Taguchi teaches a method for fluoroscopic imaging (Abstract). This system continuously obtains the fluoroscopic images [0040].
It would have been obvious to one of ordinary skill in the art before the effective filing date to substitute the method of obtaining the fluoroscopic images to continuously obtain the fluoroscopic images, as taught by Taguchi, as the substitution for one known method for obtaining fluoroscopic images 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 images being continuously obtained are reasonably predictable.
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Mori in view of Taguchi as applied to claim 3 above, and further in view of Hirai et al. (U.S PGPub 2019/0026584 A1).
Regarding Claim 4, the combination of references teaches the invention substantially as claimed. Mori further teaches wherein the trajectory generator recognizes the position of the part of interest according to template matching [0045].
Mori fails to explicitly teach using a plurality of templates for recognizing the state of the part of interest.
Hirai teaches a tracking system that uses templates (Abstract). This system uses a plurality of templates (Fig. 6, 220) to recognize the state of a part of interest [0060]-[0061]+[0088].
It would have been obvious to one of ordinary skill in the art to modify the combined system to use a plurality of templates to recognize the state of the part of interest, as taught by Hirai, because this increases the accuracy of tracking the marker, as recognized by Hirai [0098].
Claims 8-9 are rejected under 35 U.S.C. 103 as being unpatentable over Mori in view of Hirai et al. (U.S PGPub 2021/0042917 A1) (Hirai’917).
Regarding Claim 8, Mori teaches the invention substantially as claimed. Mori further teaches wherein the selector selects the tracking method based on the trajectory of the part of interest [0142].
Mori fails to explicitly teach a likelihood calculator configured to calculate a likelihood of the part of interest shown in the fluoroscopic image, wherein the selector selects the tracking method based on the likelihood of the part of interest.
Hirai’917 teaches a method of tracking an object in fluoroscopic images (Abstract). This system has a likelihood calculator configured to calculate a likelihood of the part of interest shown in the fluoroscopic image [0086]-[008]. This system selects a tracking method based on the likelihood of the part of interest [0088]-[0089].
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the system of Mori to calculate a likelihood, and further select the tracking method based on the likelihood, as taught by Hirai’917, because this increases the computational efficiency of the system, thereby allowing for effective, real-time tracking, as recognized by Hirai’917 [0097]. One of ordinary skill would recognize that, in the combination, if the system of Hirai’917 states the likelihood of the marker being present in the image as 0 ([0086]-[0087]), the marker would be considered untrackable (as there is no marker in the image).
Regarding Claim 9, the combination of references teaches the invention substantially as claimed. Mori further teaches wherein the part of interest is a marker placed inside the patient's body [0024]+[0028].
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Mori in view of Miyamoto et al. (U.S PGPub 2015/0087881 A1)
Regarding Claim 10, Mori teaches a medical image processing device [0006] including
an image acquirer (Fig. 1, 10) configured to acquire a plurality of fluoroscopic images by imaging a patient [0012]-[0013];
a trajectory generator configured to recognize a position of a part of interest shown in each of the plurality of fluoroscopic images [0028]+[0101] and generate a trajectory of a state in which the part of interest has moved based on the recognized position of the part of interest [0093]+[0100]-[0101]; and
a selector [0019]+[0073] configured to select a tracking method for tracking the part of interest based on the trajectory of the part of interest [0142];
a display controller (Fig. 1, 124) [0018]+[0021] configured to cause a display device to display a display image indicating the trajectory of the part of interest [0100];
an irradiator (Fig. 1, 14) [0015] configured to irradiate a treatment target site of the patient indicated by the tracked part of interest with a treatment beam [0024] (marker is the tracked part of interest);
an irradiation controller [0017]-[0018] configured to control the irradiation with the treatment beam [0024]; and
move a position of a patient table on which the patient is fixed [0037]-[0038].
Mori is silent regarding a patient table controller.
Miyamoto teaches a radiography control apparatus (Abstract). This system uses a patient table controller (Fig. 1, 14) [0023] to control the positioning of the patient table [0031].
It would have been obvious to one of ordinary skill in the art before the effective filing date to substitute the method of controlling the patient table of Mori with a patient table controller, as taught by Miyamoto, as the substitution for one known method of controlling a table position 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 table controller to position the table are reasonably predictable.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Kunieda et al. (U.S Patent 6,307,914 B1), which teaches a method for tracking a moving body using template matching.
Maurer Jr. et al. (U.S PGPub 2012/0106704 A1), which teaches a method for tracking a full motion range of a target.
Taguchi (U.S PGPub 2016/0175614 A1), which teaches a method for detecting a landmark.
Takahashi et al. (U.S PGPub 2019/0060672 A1), which teaches a method for tracking a region.
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/SEAN D MATTSON/Primary Examiner, Art Unit 3798