Aleksandra Popovic et al.

Patent Trials and Appeals Board

Oct 2, 2019

14402138 - (D) (P.T.A.B. Oct. 2, 2019)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/402,138 11/19/2014 Aleksandra Popovic 2012P00852WOUS 8005
24737 7590 10/02/2019
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
465 Columbus Avenue
Suite 340
Valhalla, NY 10595
EXAMINER
WU, PAMELA F
ART UNIT PAPER NUMBER
3795
NOTIFICATION DATE DELIVERY MODE
10/02/2019 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
katelyn.mulroy@philips.com
marianne.fox@philips.com
patti.demichele@Philips.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ALEKSANDRA POPOVIC and HAYTHAM ELHAWARY
____________

Appeal 2018-006986
Application 14/402,138
Technology Center 3700
____________

Before MICHAEL J. FITZPATRICK, ANNETTE R. REIMERS, and
ARTHUR M. PESLAK, Administrative Patent Judges.

REIMERS, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision to reject under 35 U.S.C. § 103(a): (1) claims 1–4, 8, and 9 as
unpatentable over Prisco (US 2010/0249507 A1, published Sept. 30, 2010)
and Zhao (US 2013/0046137 A1, published Feb. 21, 2013) and (2) claims 5–
7 as unpatentable over Prisco, Zhao, and Van Der Brug (US 6,006,127,
issued Dec. 21, 1999). Claims 10–20 have been withdrawn from

1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Koninklijke Philips
N.V. Appeal Brief (“Appeal Br.”) 3, filed Jan. 22, 2018.

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consideration. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

CLAIMED SUBJECT MATTER
The claimed subject matter relates to medical instruments and, more
particularly, to a system for improved visualization of internal anatomy in
medical applications. See Spec. 12, Fig. 1.
Claim 1, the sole independent claim on appeal, is representative of the
claimed subject matter and recites:
1. A system for visualizing an anatomical target,
comprising:
a scope for internal imaging having a field of
view less than a region to be imaged;
a planning module configured to receive video
from the scope such that field of view images of the
scope are stitched together to generate a composite
image of the region to be imaged; and
an image guidance module configured to move
the scope along the anatomical target during a
procedure such that an image generated in the field of
view of the scope is displayed as live video overlaid on
a field of the composite image.

ANALYSIS
Obviousness over Prisco and Zhao
Claims 1, 2, 3, 8, and 9
Appellant does not offer arguments in favor of dependent claims 2, 3,
8, and 9 separate from those presented for independent claim 1. See Appeal

2 As the Specification does not include line numbers, we reference the page
number only.
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Br. 13–14; see also Reply Br. 29.3 We select claim 1 as the representative
claim, and claims 2, 3, 8, and 9 stand or fall with claim 1. 37 C.F.R.
§ 41.37(c)(1)(iv).
Appellant contends that Prisco “fails to describe, teach or suggest
position processor 130, image processor 140 and/or display processor 150a
stitching scope images of the region to be imaged to thereby generate a
composite image of the region to be imaged.” Appeal Br. 10.
In response to Appellant’s contention, the Examiner states “Prisco
discloses a first synthetic 2-D view can be computed by assembling
(stitching together) multiple endoscopic images taken from neighboring 3-D
locations into a single larger panoramic image ([0050]).” Ans. 6. Appellant
does not apprise us of Examiner error.
Appellant contends that Prisco “fails to describe, teach or suggest a
scope being moved along the anatomical target during a procedure such that
an image generated in the field of view of the scope is displayed as live
video overlaid on a field of the composite image.” Appeal Br. 10.
Appellant’s argument is not directed to the rejection as set forth by the
Examiner because it is against Prisco individually, whereas the rejection is
based on the combined teachings of Prisco and Zhao. See Final Act. 4–5;
see also Ans. 11.4 Further, in response to Appellant’s contention, the
Examiner states:
It is Prisco in view of Zhao that discloses a scope being moved
along the anatomical target during a procedure ([0032] Prisco)
such that an image generated in the field of view ([0050] Prisco

3 Reply Brief (“Reply Br.”), filed June 27, 2018.
4 Final Office Action (“Final Act.”), dated Aug. 23, 2017; Examiner’s Answer
(“Ans.”), dated Apr. 27, 2018.
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[] [0080] Zhao) of the scope is displayed as a live video (452,
figure 4b; Zhao) overlaid on a field of the composite image
(combined image 455, figure 4b; Zhao).
Ans. 6 (emphasis added); see also Final Act. 4–5. Appellant does not
provide persuasive evidence or argument apprising us of Examiner error.
Appellant contends that Zhao fails to disclose “a single panoramic
image that is stitched together entirely from scope images. It teaches using
one or more imaging sensors in addition to an endoscope and using those
sensors to provide a real-time panoramic view of the target anatomy to
which the multiple camera images are combined.” Appeal Br. 11–12.
Again, Appellant’s argument appears to be directed to a reference
individually (here, Zhao), whereas the rejection is based on the combined
teachings of Prisco and Zhao. As pointed out by the Examiner in the
Answer, “[p]rimary reference Prisco, not Zhao, discloses a first synthetic 2-
D view can be computed by assembling (stitching together) multiple
endoscopic images taken from neighboring 3-D locations into a single larger
panoramic image ([0050]).” Ans. 8 (emphasis added); see also Final Act. 4–
5. Appellant does not provide persuasive evidence or argument apprising us
of Examiner error.
Appellant contends that Zhao “fails to describe, teach or suggest a
modification of [Prisco] to stitch scope images of the region to be imaged
from to thereby generate a composite image of the region to be imaged.”
Appeal Br. 12.
In response to Appellant’s contention, the Examiner explains that
“Zhao teaches modifying the planning module (display processor 150, figure
1) of Prisco with the display module (330, figure 3) as taught by Zhao) in
order to combine an image (452, figure 4b; Zhao) captured by the endoscope
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with the panoramic image (451, figure 4b; Zhao [] [0050] Prisco)” and that
“[d]oing so would provide the surgeon with information on the anatomy of
the patient that is not in the field of view of the endoscope ([0080]; Zhao).”
Ans. 8. The Examiner’s findings are sound and the Examiner’s conclusions
therefrom are based on rational underpinnings. Appellant does not apprise
us of Examiner error.
Appellant contends that Zhao “fails to describe, teach or suggest a
modification of [Prisco] to move a scope along the anatomical target during
a procedure such that an image generated in the field of view of the scope is
displayed as live video overlaid on a field of the composite image.” Appeal
Br. 12; see also Reply Br. 18–19.
In response to Appellant’s contention, the Examiner explains:
Prisco, in view of Zhao, discloses a scope being moved along the
anatomical target during a procedure ([0032] Prisco) such that an
image generated in the field of view ([0050] Prisco [] [0080]
Zhao) of the scope is displayed as a live video (452, figure 4b;
Zhao) overlaid on a field of the composite image (combined
image 455, figure 4b; Zhao).
Ans. 9.
The Examiner’s findings are sound and the Examiner’s conclusions
therefrom are based on rational underpinnings. Appellant does not provide
persuasive evidence or argument apprising us of Examiner error.
Appellant contends that the combined teachings of Prisco and Zhao
“fail[] to render obvious” the planning module and image module limitations
of claim 1. Appeal Br. 13; see also Reply Br. 18–19.
In response to Appellant’s contention, the Examiner cites to specific
sections of Prisco and Zhao and finds that Prisco in view of Zhao discloses
“‘a planning module (150, figure 1; Prisco [0050]) configured to receive
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video from the scope such that field of view images of the scope are stitched
together to generate a composite image of the region to be imaged’ ([0050
Prisco)”; and “an image guidance module (controller 302 in computer 200,
figures 2-3; using processors 130, 140, and 150 [0032]; Prisco) configured to
move the scope along the anatomical target during a procedure ([0032];
Prisco)” “such that an image generated in the field of view of the scope is
displayed as live video overlaid (452, figure 4b; Zhao) on a field of the
composite image (figure 4b; Zhao; [0050] Prisco).” Ans. 10–11
(underlining omitted). The Examiner’s findings are sound and supported by
a preponderance of the evidence. Appellant does not provide persuasive
evidence or argument apprising us of Examiner error.
Appellant contends that Prisco “fails to describe, teach or suggest the
controller 302 including an ‘image guidance module’ of any type for
steering the tip 111 of the endoscope 110 towards one or more landmarks in
a patient,” that Prisco is “silent as to an imaging of the anatomical target
upon reaching a particular landmark associated with an anatomical target,”
and that Zhao “fails to describe, teach or suggest the controller 302 of
[Prisco] including an ‘image guidance module’ of any type for moving the
tip 111 of the endoscope 110 of [Prisco] relative to the anatomical target.”
Reply Br. 13, 15.
As an initial matter, claim 1 recites nothing about “steering the tip” of
the endoscope “towards one or more landmarks in a patient” or imaging of
the anatomical target upon reaching a particular landmark associated with
the anatomical target. See id.; see also Appeal Br. 20, Claims App. In fact,
there is no recitation of a “steering tip” or any type of a “landmark” in claim
1. See Appeal Br. 20, Claims App.; In re Self, 671 F.2d 1344, 1348 (CCPA
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1982) (limitations not appearing in the claims cannot be relied upon for
patentability).
Further, in the Answer, the Examiner explains:
Prisco discloses the endoscope is electrically and mechanically
coupled to a robot arm (301, figure 3), whose movement is
controlled by a controller (302, figure 3; [0032]). The controller
is implemented as hardware, firmware, or software (or
combination thereof) in the one or more computers (200, figure
2) along with the processors (130, 140, and 150, figure 2;
[0032]). The robot arm may be configured to insert/retract the
endoscope into and out of an aperture, rotate the endoscope about
its central axis, and/or rotate the electromechanical interface
about a pivot point at the aperture ([0032]). Additionally, the
electromechanical interface and/or the robot include motors that
drive the cables used to the steer the tip of the endoscope
([0032]). Therefore, the [E]xaminer interpreted Prisco to read on
the limitation of “the scope being moved along the anatomical
target during a procedure” due to the robot arm and controller.
Ans. 7.
The Examiner’s findings are sound and supported by a preponderance
of the evidence. Appellant does not provide persuasive evidence or
argument apprising us of Examiner error.
Appellant contends that Prisco fails to disclose “images from
endoscope 110 being stitched to generate a composite image of the region to
be imaged as encompassed by the Planning Limitation of claim 1,” in
particular, “a composite image of a total length of an artery during CABG
after the endoscope 110 reached a landmark associated with a heart.” Reply
Br. 18; see also id. at 17–18 (Prisco “teaches an endoscope 110 for internal
imaging having a field of view less than a region to be imaged, particularly a
field of view less than a total length of an artery during CABG after the
endoscope 110 reached a landmark associated with a heart.”).
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Claim 1 is broadly recited merely requiring a system “for visualizing
an anatomical target” including a scope, planning module, and image
guidance module. See Appeal Br. 20, Claims App. There is no recitation in
claim 1 of a system for coronary artery bypass grafting (CABG) including “a
field of view less than a total length of an artery during CABG after the
endoscope [has] reached a landmark associated with a heart.” See id.; see
also Reply Br. 17–18; In re Self, 671 F.2d at 1348.
In summary, and based on the record presented, we are not persuaded
the Examiner erred in rejecting independent claim 1 as unpatentable over
Prisco and Zhao. Accordingly, we sustain the Examiner’s rejection of claim
1. We further sustain the rejection of claims 2, 3, 8, and 9, which fall with
claim 1.
Claim 4
Appellant contends that Prisco “fails to describe, teach or suggest a
registration and an overlay of operative images over the composite image to
provide an enhanced map of the anatomical target.” Appeal Br. 10; Reply
Br. 14 (Prisco “fails to describe, teach or suggest overlaying an operative
image on endoscope image 650 to provide an enhanced map of the
anatomical target.”). Appellant further contends that Zhao “fails to describe,
teach or suggest a modification of Prisco to register and overlay operative
images over the composite image to provide an enhanced map of the
anatomical target.” Appeal Br. 12; see also id. at 13–15; Reply Br. 19, 30.
In response to Appellant’s contentions, the Examiner finds that Prisco
in view of Zhao discloses “register and overlay operative images over the
composite image to provide an enhanced map of the anatomical target
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(figure 4b; Zhao),” as recited in claim 4. Ans. 11 (underlining omitted).
The Examiner further explains:
Prisco, in view of Zhao, disclose[s] a registration and an overlay
of operative images over the composite image to provide an
enhanced map of the anatomical target ([0081], see figure 4b;
Zhao). The [E]xaminer interpreted the darkened area
representing the operative image (452, figure 4b) that is overlaid
the composite image (455, figure 4b) in figure 4b of Zhao to be
an enhanced map of the anatomical target.
Ans. 9; see also id. at 7–8.
The Examiner’s findings are sound and the Examiner’s conclusions
therefrom are based on rational underpinnings. Appellant does not apprise
us of error.
Accordingly, for these reasons, we sustain the Examiner’s rejection of
claim 4 as unpatentable over Prisco and Zhao.
Obviousness over Prisco, Zhao, and Van Der Brug
As an initial matter, at pages 20 through 28 of the Reply Brief,
Appellant presents for the first time “an illustration of” Appellant’s assertion
as to how the subject invention5 would be conceived by those skilled in the
art based on a reading of Prisco in view of Zhao and in further view of Van
Der Brug. We note, however, that these arguments do not appear to be
responsive to any argument raised in the Examiner’s Answer. Regarding
this situation, 37 C.F.R. § 41.41(b)(2) states:
Any argument raised in the reply brief which was not
raised in the appeal brief, or is not responsive to an argument
raised in the examiner’s answer, including any designated new

5 As far as we understand, Appellant is referring to the subject invention as
“Popovic.” See Reply Br. 17–28. We note that Aleksandra Popovic is one
of the named inventors.
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ground of rejection, will not be considered by the Board for
purposes of the present appeal, unless good cause is shown.
(emphasis added). As Appellant has not shown good cause as to why the
arguments should be considered, we will not consider these untimely
arguments in this appeal.6
Claim 5
Appellant contends that the combined teachings of Prisco, Zhao, and
Van Der Brug “fail[] to render obvious” the limitation(s) of claim 5. Appeal
Br. 16–17; see also Reply Br. 20, 30. In particular, Appellant contends that
Van Der Brug “fails describe, teach or suggest a modification of [Prisco] to
indicate progress of the surgical instrument relative to a total length of an
anatomical target.” Appeal Br. 15; see also Reply Br. 16–17.
In response to Appellant’s contention, the Examiner finds that Prisco
and Zhao in view of the teachings of Van Der Brug disclose “a progress
indicator (scale graduation 27 and pointer 28, figure 1; Van Der Brug)
displayed with the composite image ([0050] Prisco) to indicate progress of
the scope relative to a total length of the anatomical target,” as recited in
claim 5. Ans. 15. The Examiner further explains:
The image guidance module (200, figures 2-3; Prisco) of Prisco
and Zhao is modified with the computer (12, figure 1), scale
graduation (27, figure 1), and pointer (28, figure 1) of Van Der
Brug in order to allow the user to see on the monitor how far the
end (25, figure 1) of the surgical instrument must be moved to

6 We note that the presented Figures (see Reply Br. 21–28) do not appear to
be proposed modifications to any of the Figures from Prisco, Zhao, and/or
Van Der Brug. As such, it is not clear on the record before us from where the
presented Figures originate. It also is not clear on the record before us whether
any of this information was previously presented to the Examiner during
prosecution.
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reach the target position T (Col. 6, lines 26-28), or target end of
the anatomical target. Van Der Brug teaches displaying a
progress indicator (scale graduation 27 and pointer 28, figure 1)
which would [have] indicated a progress of the surgical
instrument relative to a total length of an anatomical target,
depending on the location of the end of the surgical instrument
at a given point in time.
Id.; see also id. at 13–14.
The Examiner’s findings are sound and the Examiner’s conclusions
therefrom are based on rational underpinnings. Appellant does not apprise
us of Examiner error.
Appellant contends that Van Der Brug “fails to describe, teach or
suggest the controller 302 of [Prisco] including an ‘image guidance module’
of any type for moving the tip 111 of the endoscope 110 of Prisco relative to
the anatomical target.” Reply Br. 16. However, the Examiner relies of the
teachings of Prisco and Zhao for this disclosure. See Final Act. 4–5; see
also Ans. 6–7, 9.
Accordingly, for these reasons, we sustain the Examiner’s rejection of
claim 5 as unpatentable over Prisco, Zhao, and Van Der Brug.
Claim 6
Appellant contends that the combined teachings of Prisco, Zhao, and
Van Der Brug “fail[] to render obvious” the limitation(s) of claim 6. Appeal
Br. 16–18; see also Reply Br. 20, 31. In particular, Appellant contends that
Van Der Brug “fails describe, teach or suggest a modification of [Prisco] to
provide a progress indicator including at least one of a percentage of
progress and a progress graphic to indicate a portion of an anatomical target
isolated relative to a total length of the anatomical target.” Appeal Br. 15.
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In response to Appellant’s contention, the Examiner finds that Prisco
and Zhao in view of the teachings of Van Der Brug disclose “wherein the
progress indicator includes at least one of a percentage of progress and a
progress graphic (scale graduation 27 and pointer 28, figure 1; Van Der
Brug) to indicate a portion isolated relative to a total length of the blood
vessel,” as recited in claim 6. Ans. 15. The Examiner further explains:
[T]he image guidance module (200, figures 2-3; Prisco) of Prisco
and Zhao is modified with the computer (12, figure 1), scale
graduation (27, figure 1), and pointer (28, figure 1) of Van Der
Brug in order to allow the user to see on the monitor how far the
end (25, figure 1) of the surgical instrument must be moved to
reach the target position T (Col. 6, lines 26-28), or target end of
the anatomical target. Van Der Brug teaches displaying a
progress indicator (scale graduation 27 and pointer 28, figure 1)
including at least one of a percentage of progress and a progress
graphic (scale graduation 27 and pointer 28, figure 1) to indicate
a portion of an anatomical target isolated relative to a total length
of the anatomical target, depending on the location of the end of
the surgical instrument (already isolated portion of the
anatomical target) at a given point in time.
Id. at 13. The Examiner’s findings are sound and the Examiner’s
conclusions therefrom are based on rational underpinnings. Appellant does
not apprise us of Examiner error.
Accordingly, for these reasons, we sustain the Examiner’s rejection of
claim 6 as unpatentable over Prisco, Zhao, and Van Der Brug.
Claim 7
Appellant contends that the combined teachings of Prisco, Zhao, and
Van Der Brug “fail[] to render obvious” the limitation(s) of claim 7. Appeal
Br. 16–18; see also Reply Br. 20, 31. In particular, Appellant contends that
Van Der Brug “fails [to] describe, teach or suggest a modification of [Prisco]
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to employ a pre-operative image of an anatomical target to estimate the total
length.” Appeal Br. 16.
In response to Appellant’s contention, the Examiner finds that the
combined teachings of Prisco, Zhao, and Van Der Brug disclose “wherein
the planning module employs a pre-operative image ([0045] and [0050]
Prisco) of the blood vessel to estimate the total length,” as recited in claim 7.
Ans. 15. In addition, the Examiner explains that “[t]he modified invention
of Prisco, Zhao, and Van Der Brug would employ a pre-operative image of
an anatomical target ([0050] Prisco) to estimate the total length (Col. 6, lines
26-28; Van Der Brug).” Id. at 14. The Examiner’s findings are sound and
the Examiner’s conclusions therefrom are based on rational underpinnings.
Appellant does not apprise us of Examiner error.
Accordingly, for these reasons, we sustain the Examiner’s rejection of
claim 7 as unpatentable over Prisco, Zhao, and Van Der Brug.

DECISION
We AFFIRM the decision of the Examiner to reject claims 1–4, 8, and
9 as unpatentable over Prisco and Zhao.
We AFFIRM the decision of the Examiner to reject claims 5–7 as
unpatentable over Prisco, Zhao, and Van Der Brug.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED