DETAILED ACTION
1. The Office Action is in response to Application 192880913 filed on 07/25/2025. Claims 1-20 are pending.
Notice of Pre-AIA or AIA Status
2. The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Information Disclosure Statement
3. The information disclosure statements (IDS) submitted on 09/19/2025 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements are being considered by the examiner.
Double Patenting
5. 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 obviousness-type 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); and 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 a nonstatutory double patenting ground provided the conflicting application or patent either is shown to be commonly owned with this application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement.
Effective January 1, 1994, a registered attorney or agent of record may sign a terminal disclaimer. A terminal disclaimer signed by the assignee must fully comply with 37 CFR 3.73(b).
6. Claim 1 is rejected on the ground of non-statutory obviousness-type double patenting as being unpatentable over claim 1-2 of US Patent US 8897523 and in view of US 12373976 indicated below.
For Claim 1, although the conflicting claims are not identical, they both are dealing with method of estimating an extracorporeal blood volume. As clearly indicated in the table below, each claimed limitations of claim 1 of the current application are anticipated by the corresponding limitations of claim 1-2 of the reference patent except for capturing a live video feed with an optical sensor having a field of view.
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Current Application
US 8897523
Claim 1:
A method of estimating an extracorporeal blood volume from a patient, the method comprising:
capturing a live video feed with an optical sensor having a field of view;
identifying a presence of a surgical textile in the field of view of the optical sensor substantially in real time; automatically capturing an image including the surgical textile with the optical sensor in response to identifying the presence of the surgical textile;
extracting a feature from a portion of the image;
and estimating the extracorporeal blood volume in a portion of the surgical textile based upon the extracted feature
.
.
Claim 1
A method for counting surgical samples comprising:
identifying a surgical textile in a field of view of an optical sensor;
claim 2’s limitation:
capturing an image of the field of view of the optical sensor, wherein identifying the surgical textile comprises identifying the surgical textile in the image, and wherein extracting the feature from the portion of the field of the view of the optical sensor comprises extracting the feature from the portion of the image
indexing a sample counter for the identified surgical textile;
extracting a feature from a portion of the field of the view of the optical sensor;
and estimating the extracorporeal blood volume in a portion of the surgical textile based upon the extracted feature
Claim 1-2 of US Patent US 8897523 does not disclose explicitly capturing a live video feed with an optical sensor having a field of view.
US 12373976 discloses capturing a live video feed with an optical sensor having a field of view (claim 2, … wherein the image is a color frame of a video feed; optical sensor having a filed of view is inherently there).
It would have been obvious before the effective filing date of the claimed invention to one of ordinary skill in the art to incorporate the technology capturing a live video feed with an optical sensor having a field of view as a modification to the claim 1-2 of US Patent US 8897523 for the benefit of that achieves high efficiency to estimate blood volume by using video (see claim 2).
7. Claim 8 is rejected on the ground of non-statutory obviousness-type double patenting as being unpatentable over claim 1-2 of US Patent US 8897523 indicated below.
For Claim 8, although the conflicting claims are not identical, they both are dealing with method of estimating an extracorporeal blood volume. As clearly indicated in the table below, each claimed limitations of claim 8 of the current application are anticipated by the corresponding limitations of claim 1-2 of the reference patent.
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Current Application
US 8897523
Claim 8:
A method of estimating an extracorporeal blood volume from a patient, the method comprising:
capturing an image with an optical sensor having a field of view;
identifying a presence of a surgical textile in the field of view of the optical sensor;
determining an identity of the surgical textile in the field of view of the optical sensor;
extracting a feature from a portion of the field of the view of the optical sensor;
and estimating the extracorporeal blood volume in a portion of the surgical textile based upon the identity of the surgical textile and the extracted feature.
.
Claim 1
A method for counting surgical samples comprising:
identifying a surgical textile in a field of view of an optical sensor;
claim 2’s limitation:
capturing an image of the field of view of the optical sensor, wherein identifying the surgical textile comprises identifying the surgical textile in the image, and wherein extracting the feature from the portion of the field of the view of the optical sensor comprises extracting the feature from the portion of the image
indexing a sample counter for the identified surgical textile;
extracting a feature from a portion of the field of the view of the optical sensor;
and estimating the extracorporeal blood volume in a portion of the surgical textile based upon the extracted feature
claim 2’s limitation:
wherein identifying the surgical textile comprises identifying the surgical textile in the image, and wherein extracting the feature from the portion of the field of the view of the optical sensor comprises extracting the feature from the portion of the image
8. Claim 15 is rejected on the ground of non-statutory obviousness-type double patenting as being unpatentable over claim 1-2, 16 of US Patent US 8897523 indicated below.
For Claim 15, although the conflicting claims are not identical, they both are dealing with method of estimating an extracorporeal blood volume. As clearly indicated in the table below, each claimed limitations of claim 1 of the current application are anticipated by the corresponding limitations of claim 1-2, 16 of the reference patent.
.
Current Application
US 8897523
Claim 15:
A method of estimating an extracorporeal blood volume from a patient, the method comprising:
capturing an image with an optical sensor having a field of view;
identifying a presence of a surgical textile in the field of view of the optical sensor;
extracting a feature from a portion of the field of the view of the optical sensor;
and estimating the extracorporeal blood volume in a portion of the surgical textile based upon a physical dimension of the surgical textile and the extracted feature
.
Claim 1
A method for counting surgical samples comprising:
identifying a surgical textile in a field of view of an optical sensor;
claim 2’s limitation:
capturing an image of the field of view of the optical sensor, wherein identifying the surgical textile comprises identifying the surgical textile in the image, and wherein extracting the feature from the portion of the field of the view of the optical sensor comprises extracting the feature from the portion of the image
indexing a sample counter for the identified surgical textile;
extracting a feature from a portion of the field of the view of the optical sensor;
and estimating the extracorporeal blood volume in a portion of the surgical textile based upon the extracted feature
claim 16’s limitation:
extracting a feature from a portion of the field of the view of the optical sensor comprises extrapolating a dimension of the surgical textile by estimating a distance between the optical sensor and the surgical textile
Claim Rejections - 35 USC § 112
11. 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.
12. Claim 1 and its dependent claims 2-7, 11 are 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 pre-AIA the applicant regards as the invention.
For claim 1, it recites limitations of “a portion of the surgical textile” in “extracting a feature from a portion of the image; and estimating the extracorporeal blood volume in a portion of the surgical textile based upon the extracted feature”; However, it is not clear the portion of the surgical textile corresponding to which portion of the surgical textile and the relationship between “feature from a portion of image” and “extracorporeal blood volume in a portion of the surgical textile”, since the image including, but not limited to the surgical textile; how can a feature from a portion of the image (for example, a feature from a portion unrelated to the surgical textile) can be used to estimate extracorporeal blood volume in any portion of the surgical textile?
Thus the scope of the claim and its dependent claim 2-7, 11 are unclear.
13. Claim 8 and its dependent claims 9-14 are 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 pre-AIA the applicant regards as the invention.
For claim 8, it recites limitations of “a portion of the surgical textile” in “and estimating the extracorporeal blood volume in a portion of the surgical textile based upon the identity of the surgical textile and the extracted feature”; However, it is not clear the portion of the surgical textile corresponding to which portion of the surgical textile and the relationship between “feature from a portion of the field of the view of the optical sensor” and “extracorporeal blood volume in a portion of the surgical textile”, since the field of the view of the optical sensor including, but not limited to the surgical textile; how can a feature from a portion of the field of the view of the optical sensor (for example, a feature from a portion unrelated to the surgical textile) can be used to estimate extracorporeal blood volume in any portion of the surgical textile?
it recites limitations of “an image” in “capturing an image with an optical sensor having a field of view”; However, it is not clear what is the purpose since the image is not used at all ; and it is not clear what is the relationship between “an image” and “field of view of the optical sensor”; if the surgical textile can be identified in the filed of view of the optical sensor, why should capture an image?
Thus the scope of the claim and its dependent claim 9-14 are unclear.
14. Claim 15 and its dependent claims 16-20 are 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 pre-AIA the applicant regards as the invention.
For claim 15, it recites limitations of “a portion of the surgical textile” in “and estimating the extracorporeal blood volume in a portion of the surgical textile based upon a physical dimension of the surgical textile and the extracted feature”; However, it is not clear the portion of the surgical textile corresponding to which portion of the surgical textile and the relationship between “feature from a portion of the field of the view of the optical sensor” and “extracorporeal blood volume in a portion of the surgical textile”, since the field of the view of the optical sensor including, but not limited to the surgical textile; how can a feature from a portion of the field of the view of the optical sensor (for example, a feature from a portion unrelated to the surgical textile) can be used to estimate extracorporeal blood volume in any portion of the surgical textile?
it recites limitations of “an image” in “capturing an image with an optical sensor having a field of view”; However, it is not clear what is the purpose since the image is not used at all; and it is not clear what is the relationship between “an image” and “field of view of the optical sensor”; if the surgical textile can be identified in the filed of view of the optical sensor, why should capture an image?
Thus the scope of the claim and its dependent claim 16-20 are unclear.
15. Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See form 892.
16. Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ZAIHAN JIANG whose telephone number is (571)272-1399. The examiner can normally be reached on flexible.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sath Perungavoor can be reached on (571)272-7455. The fax phone number for the organization where this application or proceeding is assigned is 571-270-0655.
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/ZAIHAN JIANG/Primary Examiner, Art Unit 2488
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