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 .
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.
Claim 7 is rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim(s) does/do not fall within at least one of the four categories of patent eligible subject matter because the claim recites a “computer readable medium” which reads on a transitory signal. To overcome this rejection, examiner suggests amending the claim to recite a “non-transitory computer readable medium”.
Claims 1 - 7 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a mental-process type abstract idea) without significantly more.
Independent claim 1:
With regard to Step 1, the claim is directed to one of the four statutory categories of invention, i.e., a method of determining a position of a fiducial marker set.
With regard to Step 2A: Prong 1, the claim recites limitations directed towards:
processing the image slices to identify positions of center points of the respective fiducial markers; and
based on the identified positions of the center points, identifying a virtual Cartesian geometry associated with the fiducial marker set, wherein the virtual Cartesian geometry is represented by a plurality of virtual Cartesian coordinate axes that meet at a virtual origin
As drafted, these limitations amount to nothing more than steps that can practically be performed in the human mind and/or with the aid of pen/paper. Therefore, the limitations recite a mental-process type abstract idea. See MPEP 2106.04(a)(2).
With regard to Step 2A: Prong 2, the claim recites an additional element of “receiving image slices”, which is pre-solution activity. The claim also recites that the image slices were “captured by a 3-dimensional (3D) imaging device”, which merely limits the judicial exception to a particular technological environment or field of use. Therefore, the recited additional elements do not, either individually or as a whole, integrate the judicial exception into a practical application.
With regard to Step 2B, as explained above, the additional limitations are directed towards pre-solution activity and limiting the judicial exception to a particular technological environment. Therefore, when considered separately and in combination, the additional limitations do not result in the claim, as a whole, amounting to significantly more than the judicial exception.
Independent claim 7:
The claim is non-statutory for reasons discussed above. However, assuming that the claim is amended to be directed to a “non-transitory computer readable medium”, the claim would still not be eligible under 101 of reasons similar to those of claim 1, discussed above, as the additional elements of claim 7 merely amount to an instruction to implement the mental step on a computer, which neither integrates the judicial exception into a practical application, nor results in the claim amounting to significantly more than the judicial exception.
Dependent claims:
Claim 2 recites additional limitations involving calculating the centers of circles, which read on further mental steps.
Claim 3 recites combining the image slices from the 3D imaging device to form a 3D image, which is extra-solution activity. The claim also recites limitations involving calculating the centers of spheres, which read on further mental steps.
Claim 4 recites additional limitations involving measuring distances between the center points of the fiducial markers, and identifying the virtual origin and Cartesian coordinate axes of the virtual Cartesian geometry, which read on further mental steps.
Claim 5 recites additional limitations involving distance comparisons and validating the identified positions of the center points, which read on further mental steps.
Claim 6 recites additional limitations involving size calculation and comparison, and validating the identified positions of the center points, which read on further mental steps.
Therefore, when considered separately and in combination, the additional limitations of the dependent claims do not integrate the judicial exception into a practical application, or result in the claims amounting to significantly more than the judicial exception.
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 - 5 and 7 are rejected under 35 U.S.C. 102 (a)(1) as being anticipated by West et al. (US 2014/0276002).
Regarding claim 1, West shows a method of determining a position of a fiducial marker set including a plurality of fiducial markers (“… radio opaque fiduciary structures 108 …spheres …”, [0046] and fig. 6), the method comprising:
receiving image slices captured by a 3-dimensional (3D) imaging device (“… radiograph (e.g., obtained intraprocedurally via a CT scan, bi-plane x-ray or the like) …”, [0046]);
processing the image slices to identify positions of center points of the respective fiducial markers (“…each of the radio opaque objects 108 can be identified in a corresponding radiograph …”, [0046]; “…marker evaluator … evaluate whether a particular location in a voxel data set is the center of a sphere …”, [0054]); and
based on the identified positions of the center points, identifying a virtual Cartesian geometry associated with the fiducial marker set (“compute a coordinate system 142 for each combination marker … origin 114 of the coordinate system can reside at a centroid of a triangle formed between markers 108a, 108b and 108c …”, [0056] and fig. 6), wherein the virtual Cartesian geometry is represented by a plurality of virtual Cartesian coordinate axes that meet at a virtual origin (see axes and origin of coordinate system 142 in fig. 6).
Regarding claim 2, West discloses the claimed invention substantially as noted above. West further shows detecting 2-dimensional (2D) circles on the image slices; and calculating center positions of the 2D circles on the image slices to identify positions of the center points of the respective fiducial markers (“identifying the radio opaque fiduciary markers … image segmentation to produce an edge detected data set of pixels … representing boundaries of each radio opaque fiduciary marker 108”, [0052]. Note that the pixels represent two-dimensional image data, see [0040], and that the segmentation would detect circles on the image slices, as the fiducials are spherical).
Regarding claim 3, West discloses the claimed invention substantially as noted above. West further shows combining the image slices from the 3D imaging device to form a 3D image; detecting 3D spheres on the 3D image; and calculating center positions of the 3D spheres on the 3D image to identify positions of the center points of the respective fiducial markers (“identifying the radio opaque fiduciary markers … image segmentation to produce an edge detected data set of … voxels representing boundaries of each radio opaque fiduciary marker 108”, [0052]; spheres, [0053] - [0054]. Note that the voxels represent three-dimensional image data, [0040], which is understood in CT imaging, [0046], to be formed by combining image slices).
Regarding claim 4, West discloses the claimed invention substantially as noted above. West further shows based on the identified positions of the center points, measuring distances between the center points of the plurality of fiducial markers; and based on the measured distances, identifying the virtual origin and virtual Cartesian coordinate axes of the virtual Cartesian geometry (“after all such spheres have been identified … the distances between each of the respective markers 108 (distance between centroids thereof) can be tested to determine if the distances match the predetermined lengths of legs for the triangle formed by the radio opaque markers in the physical design of the combination marker …”, [0055]).
Regarding claim 5, West discloses the claimed invention substantially as noted above. West further shows comparing the measured distances between the identified positions of the center points with stored actual distances between the center points of the plurality of fiducial markers; and based on the comparison, validating the identified positions of the center points (“after all such spheres have been identified … the distances between each of the respective markers 108 (distance between centroids thereof) can be tested to determine if the distances match the predetermined lengths of legs for the triangle formed by the radio opaque markers in the physical design of the combination marker …”, [0055]).
Regarding claim 7, West discloses the claimed invention substantially as noted above. West further shows computer readable medium having stored thereon instructions for execution by a processor, wherein the instructions are executable to perform the method as claimed in claim 1 (computer, [0112] - [0114]).
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.
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 6 is rejected under 35 U.S.C. 103 as being unpatentable over West in view of Kim (US 2009/0310832).
Regarding claim 6, West discloses the claimed invention substantially as noted above. West further shows measuring properties of the plurality of fiducial markers; comparing the measured properties of the plurality of fiducial markers with stored actual properties of the plurality of fiducial markers; and based on the comparison, validating the identified positions of the center points (“after all such spheres have been identified … the distances between each of the respective markers 108 (distance between centroids thereof) can be tested to determine if the distances match the predetermined lengths of legs for the triangle formed by the radio opaque markers in the physical design of the combination marker …”, [0055]).
West fails to show that the properties comprise sizes of the fiducial markers.
Kim discloses medical image processing. Kim teaches properties that comprise sizes of fiducial markers (“marker patterns 1a, 2a, 3a or the actual marker plan diagram 4 obtained based on the actual shapes and sizes of the markers 1, 2, 3 and the actual positional relationship between the markers 1, 2, 3 are superposed on the mapped marker images 1b, 2b, 3b, whereby the accuracies of the marker specific points can be checked”, [0063]).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified the invention of West to have the properties comprise sizes of the fiducial markers, as taught by Kim, in order to facilitate checking the accuracy of marker-specific points, as suggested by Kim ([0063]).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to AMELIE R DAVIS whose telephone number is (571)270-7240. The examiner can normally be reached Monday-Friday, 9:30 - 6:00 PST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Pascal Bui-Pho can be reached at (571)272-2714. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/AMELIE R DAVIS/Primary Examiner, Art Unit 3798
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