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 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 12,285,298. Although the claims at issue are not identical, they are not patentably distinct from each other because they encompass the same essential invention.
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 1-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The claims 1-20 recite an abstract idea. This judicial exception is not integrated into a practical application because the abstract idea can be carried out by the human mind, a pen/pencil, and a piece of paper. The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because any claimed additional element is well known and/or conventional.
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.
Claims 1, 12, and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Sayani et al. (U.S. Patent Application Publication 2018/0204323) in view of Gerstner (WO 2017 /173465 Al).
Regarding claims 1, 12, and 19, Sayani et al. disclose 1) a computer-implemented method comprising: {, 2) a system comprising: one or more processors: and a 3) memory storing instructions that, when executed by at least one processor among the one or more processors, cause the system to perform operations comprising (a non-transitory computer program product is described such that can store instructions that, when executed by at least one programmable processor, cause the at least one programmable processor to perform the following operations, para 0007) [claim 8] and tangible machine-readable storage medium comprising instructions that, when executed by one or more processors of a machine, cause the machine to perform operations comprising (para 0007) [claim 10]}:
accessing, by one or more processors of a machine, a first image capturing a reference set of instruments on a conveyance (The at least one computing server 108 can retrieve, at 308 and from the database 308, a preset list of all instruments 102 configured to be stored in the detected tray 104, para 0030);
identifying, from the first image and by the one or more processors of the machine, first instrument data corresponding to the reference set of instruments (The at least one computing server 108 can retrieve, at 308 and from the database 308, a preset list of all instruments 102 configured to be stored in the detected tray 104, para 0030; from a camera device, a matrix code end a bitmap of an image or a tray having a first plurality of instruments. The at least one computing server can detect the tray based on the matrix code, The at least one computing server can receive, from a data base associated with the at least one computing server, a preset list of a second plurality of instruments configured to be stored in the detected tray. The al least one computing server can detect the first plurality of instruments stored in the tray by using the bitmap. The at least one computing server can compare the preset list of the second plurality of instruments with the detected first plurality of instruments to generate an output characterizing whether one or more instruments are missing from the tray and an identification of the one or more instruments when the one or more instruments are missing from the tray, para 0004 );
accessing, by the one or more processors of the machine, a second image capturing instruments on the conveyance (The at least one computing server 108 can receive, at 310, bitmap of the tray 104 and instruments 102 thereon as captured by the camera device 106. The at least one computing server 108 can receive the bitmap independent of the receiving of !he matrix code at 302. The bitmap can be received at the same time as the matrix code to reduce the time consumed by the scanning process. In an alternate implementation, however, the at least one computing server 108 can receive the bitmap and the matrix code at different corresponding times so as to reduce the computing pressure on the camera device 106 and/or the at least one computing server 108. The at least one computing server 108 can store, at 312, the received bitmap in a framebuffer. The frame buffer can also be referred to as a frame buffer, a frame store, or a frame store. The framebuffer can be a portion of random access memory within the at least one computing server 108. The frame buffer can store color values for every pixel of the image captured by the camera device 106. The at least one computing server 108 can detect, at 314, the instruments 102 in the tray 104 using the bitmap stored in the framebuffer, para 0031 );
identifying, from the second image and by the one or more processors of the machine, second instrument data corresponding to the instruments on the conveyance (The at least one computing server 108 can receive, at 310, bitmap of the tray 104 and instruments 102 thereon as captured by the camera device 106. The at least one computing server 108 can receive the bitmap independent of the receiving the matrix code at 302. The bitmap can be received at the same time as the matrix code to reduce the time consumed by the scanning process. In an alternate implementation, however, the at least one computing server 108 can receive the bitmap and the matrix code at different corresponding times so as to reduce the computing pressure on the camera device 106 and/or the at least one computing server 108. The at least one computing server 108 can store, at 312, the received bitmap in a framebuffer. The framebuffer can also be referred to as a frame buffer, a frames tore, and a frame store. The frame buffer can be a portion of random access memory within the at least one computing server 108. The framebuffer can store color values for every pixel of the image captured by the camera device 106. The at least one computing server 106 can detect, at 314, the instruments 102 in the tray 104 using the bitmap stored in the frame buffer, para 0031; from a camera device, a matrix code and a bitmap of an image of a tray having a first plurality of instruments. The at least one computing server can detect the tray based on the matrix code. The at least one computing server can receive, from a database associated with the at least one computing server, a preset list of a second plurality of instruments configured to be stored in the detected tray. The at least one computing server can detect the first plurality of instruments stored in the tray by using the bitmap. The at least one computing server can compare the preset list of the second plurality of instruments with the detected first plurality of instruments to generate an output characterizing whether one or more instruments are missing from the tray and an identification of the one or more instruments when the one or more instruments are missing from the tray, para 0004);
comparing, by the one or more processors of the machine, the first instrument data with the second instrument data (The at least one computing server 108 can compare, at 316, a preset list of ail instruments 102 with detected instruments 102 to determine: (1) whether any instruments are missing, and (2) which instruments are missing, if any. The at least one computing server 108 can output, at 318, this determined result to the computing device 112, which can then display that result on the graphical user interface 114, para 0032 ); and
based on the comparing and by the one or more processors of the machine, causing presentation of a notification that indicates an instrument on the conveyance is absent on the conveyance (The at !east one computing server 108 can compare, at 316, a preset list of all instruments 102 with detected instruments 102 to determine: (1) whether any instruments are missing, and (2) which instruments are missing, if any. The at least one computing server 108 can output, at 318, this determined result to the computing device 112, which can then display that result on the graphical user interface 114, para 0032).
Sayani et al. fail to explicitly disclose capturing first image of set of instruments prior to initiation of a procedure; capturing a second image capturing instruments on the conveyance after initiation of the procedure; identifying instrument data that indicates an instrument prior to the initiation of the procedure and after the initiation of the procedure.
Gerstner is in the field of surgical tray efficiency (abstract) and teaches capturing first image of set of instruments prior to initiation of a procedure: capturing a second image capturing instruments on the conveyance after initiation of the procedure; identifying instrument data that indicates an instrument prior to the initiation of the procedure and after the initiation of the procedure (A surgical tray efficiency system comprising a vertical rack assembly for holding and displaying a plurality of surgical instrument trays [i.e., conveyance], arrange the instrument trays on the vertical rack assembly according to a predetermined customizable location ID, and create/load/access information related to the surgical procedure/trays/instruments before, during. and after the surgery, abstract, an identification/tracking assembly 640 that may be used to create/capture data regarding certain surgical instruments (or other items) that may be imported into and displayed on the instrument view screen of the app 16 discussed above, and later analyzed for instrument tracking purposes [i.e. accessing a first image capturing a reference set of instruments on a conveyance prior to initiation of a procedure], para 00182: A surgical tray efficiency system comprising a vertical rack assembly for holding and displaying a plurality of surgical instrument trays [i.e. conveyance], arrange the instrument trays on the vertical rack assembly according to a predetermined customizable location ID, and create/load/access information related to the surgical procedure/trays/instruments before, during, and after the surgery, abstract, analyzing one or more images that are captured by a camera attached to the robotic device, the vertical reek assembly 12, or one that is mounted elsewhere in the surgical room. A computing system can compare such images to pre-stored images of the surgical instrument, to identify which item located on a tram is the surgical instrument [i.e. accessing a second image capturing instruments on the conveyance after initiation of the procedure] para 00192).
Therefore, at the time of the of invention it would have been obvious to one of ordinary skill in the art to modify the invention of Sayani et al., as taught by Gerstner, to include for the purpose of providing access information related to the surgical procedure/trays/instruments before, during, and after the surgery.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to AARON F ROANE whose telephone number is (571)272-4771. The examiner can normally be reached generally Mon-Fri 8am-9pm.
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/AARON F ROANE/Primary Examiner, Art Unit 3792
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