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 .
Specification
The lengthy specification has not been checked to the extent necessary to determine the presence of all possible minor errors. Applicant’s cooperation is requested in correcting any errors of which applicant may become aware in the specification.
Claim Objections
Claims 4 - 9 are objected to under 37 CFR 1.75(c) as being in improper form because a multiple dependent claim should refer to other claims in the alternative only, whereas claim 4 refers to claim 1 as well as claim 3 in a non-alternative manner. See MPEP § 608.01(n). Accordingly, claims 4 - 9 have not been further treated on the merits.
Claim 13 is objected to because of the following informalities:
Claim 13 is objected to because “CT” should be enclosed within parentheses rather than commas.
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.
Claims 2, 11- 12, and 18 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 applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 2 is indefinite because it is unclear how the marker is outside the imaging volume, as claim 1 sets forth that the marker is located in the radiation beam path, thus requiring that the marker is inside the imaging volume.
Claim 11 is indefinite because it is unclear what method step or material modification thereof is intended by “the respective position in the first coordinate system has been determined for at least three of the multiple markers”. The limitation appears to require a method step of ‘determining the positions of three markers’ in the past tense. It is unclear how this determination relates to the previously recited step of “determining a respective position in the first coordinate system (201) for each of the multiple markers”.
Claim 12 is indefinite because there is insufficient antecedent basis for “the … or second coordinate system” in the claim’s dependency chain. It is unclear what is being referred to.
Claim 18 is indefinite because it is unclear what method step or material modification thereof is intended by “wherein processing the medical image data comprises …” , as no step of processing the medical image has been set forth in the claim’s dependency chain. It is unclear what is being referred to.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 2 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 2 fails to include all the limitations of the claim upon which it depends because claim 2 requires that the marker is outside the imaging volume, whereas claim 1 sets forth that the marker is located in the radiation beam path (i.e., that marker is inside the imaging volume). Claims 1 and 2 are thus mutually exclusive.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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 19 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 reads on software per se. Examiner suggests amending the claim to recite a non-transitory computer-readable medium.
Claims 1 - 3 and 10 - 20 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.
With regard to Step 2A: Prong 1, the claim recites limitations directed towards:
identifying the streak lines in the medical image data; and
determining, based on the identified streak lines, a position of the marker in the first coordinate system.
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 additional elements involving:
the method being computer-implemented, which amounts to no more than an instruction to implement the judicial exception on a computer; and
the method being “for determining a position of a marker in a first coordinate system defined by medical image data generated using a radiation-based medical imaging technique and indicative of streak lines due to the marker being located in a radiation beam path”, 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 an instruction to implement the judicial exception on a computer and limiting the judicial exception to a particular technological environment or field of use. 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 19: The claim is directed to a judicial exception without significantly more for reasons explained above in regards to claim 1. The use of a computer to perform the mental step is merely an instruction to implement the judicial exception on a computer.
Independent claim 20:
With regard to Step 1, the claim is directed to one of the four statutory categories of invention, i.e., an apparatus.
With regard to Step 2A: Prong 1, the claim recites limitations directed towards:
identifying the streak lines in the medical image data; and
determining, based on the identified streak lines, a position of the marker in the first coordinate system.
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 additional elements involving:
the mental step being computer-implemented, which amounts to no more than an instruction to implement the judicial exception on a computer; and
the apparatus being “for determining a position of a marker in a first coordinate system defined by medical image data generated using a radiation-based medical imaging technique and indicative of streak lines due to the marker being located in a radiation beam path and between an emitter”, 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 an instruction to implement the judicial exception on a computer and limiting the judicial exception to a particular technological environment or field of use. 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.
Dependent claims:
claims 2 - 3 recite characterizations of the medical image data, which merely limit the judicial exceptions to a particular technological environment or field of use. Claim 3 further recites optional data generation, which is extra-solution activity.
claim 10 recites that multiple markers are located in the radiation beam path, which merely limits the judicial exceptions to a particular technological environment or field of use. The claim also recites further determinations, and ‘associating’ and ‘defining’ steps that read on a mental step.
claim 11 recites “the respective position in the first coordinate system has been determined for at least three of the multiple markers”, which merely limits the judicial exceptions to a particular technological environment or field of use. The claim also recites receiving tracking data, which is extra-solution activity. The claim also recites characterizations of the tracking data and markers, which merely limit the judicial exceptions to a particular technological environment or field of use. The claim also recites limitations directed towards determining a registration, which read on a mental step and/or mathematical process.
claim 12 recites a ‘defining’ step that reads on a mental step.
claim 13 recites characterization of the medical image data, which merely limits the judicial exceptions to a particular technological environment or field of use.
claims 14 - 18 recite limitations directed towards processing the medical image data, which read on a mental step and/or mathematical process.
Therefore, when considered separately and in combination, the additional limitations do not integrate the judicial exception into a practical application, or result in the dependent claims amounting to significantly more than the judicial exception.
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.
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.
Claims 1, 3, 13 - 15, and 19 - 20 are rejected under 35 U.S.C. 103 as being unpatentable over Thienphrapa et al. (US 2021/0085421) in view of Cunningham (US 2017/0336483).
Regarding claims 1, 19, and 20, Thienphrapa shows a method and apparatus for determining a position of a marker (radiopaque markers, [0178]) in a first coordinate system (implicit) defined by medical image data generated using a radiation-based medical imaging technique (X-ray modality, [0146] X-Ray Imaging, [0161]) and indicative of a streak lines (streaking artifact, [0178]) due to the marker being located in a radiation beam path and between an emitter, the apparatus comprising a processor (processors, [0150] - [0151]) configured by instructions to identify the streak lines in the medical image data (“…radiopaque … displayed in a number of ways, such as an overlay of … streaking artifact, …”, [0178]).
Thienphrapa is not specific to determining, based on the identified artifacts, a position of the marker in the first coordinate system.
Cunningham discloses tracking an interventional device. Cunningham teaches determining, based on identified artifacts, a position of a marker in a first coordinate system (images are processed to identify ghost artifacts in the images and to relate the location of the ghost artifacts to the location of the tracking device, [0057]).
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 Thienphrapa to include determining, based on the identified artifacts, a position of the marker in the first coordinate system, as taught by Cunningham, in order to facilitate tracking the marker relative to the artifacts, for example, so that Thienphrapa’s overlay (Thienphrapa: [0178]) will accurately represent the relationship between the marker and artifacts.
Examiner notes that in the combined invention of Thienphrapa and Cunningham, the artifacts are Thienphrapa’s streak lines.
Regarding claim 3, the combined invention of Thienphrapa and Cunningham discloses the claimed invention substantially as noted above. Thienphrapa further shows the medical image data comprise one or more 2-dimensional image data slices (fluoroscopy, [0004] - [0006]; [0078]).
Regarding claim 13, the combined invention of Thienphrapa and Cunningham discloses the claimed invention substantially as noted above. Thienphrapa further shows the medical image data include Computer Tomography image data ([0077]).
Regarding claim 14, the combined invention of Thienphrapa and Cunningham discloses the claimed invention substantially as noted above. Thienphrapa further shows processing the medical image data to facilitate at least one of the determination of the marker position and the identification of the streak lines, as the data are necessarily processed in some way prior to analysis.
Regarding claim 15, the combined invention of Thienphrapa and Cunningham discloses the claimed invention substantially as noted above.
Thienphrapa fails to show filtering the image data to reduce noise therein.
Cunningham teaches filtering image data to reduce noise therein ([0022]).
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 Thienphrapa to include filtering the image data to reduce noise therein, as taught by Cunningham, in order to denoise the data, as is well-understood in the art.
Claim 16 is rejected under 35 U.S.C. 103 as being unpatentable over Thienphrapa and Cunningham as applied to claim 14 above, and further in view of Wang et al. (US 11,756,164).
Regarding claim 16, the combined invention of Thienphrapa and Cunningham discloses the claimed invention substantially as noted above.
Thienphrapa fails to show determining pixel intensity gradients and identifying the streak lines based on the pixel intensity gradients.
Wang discloses image correction in computed tomography. Wang teaches determining pixel intensity gradients and identifying the streak lines based on the pixel intensity gradients (claims 6 - 7).
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 combined invention of Thienphrapa and Cunningham to include determining pixel intensity gradients and identifying the streak lines based on the pixel intensity gradients, as taught by Wang, in order to employ a robust technique for the streak detection.
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.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
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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