Ex Parte Azar et al

Patent Trial and Appeal Board

Aug 29, 2016

11107640 (P.T.A.B. Aug. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
111107,640 04/15/2005
28524 7590 08/31/2016
SIEMENS CORPORATION
INTELLECTUAL PROPERTY DEPARTMENT
3501 Quadrangle Blvd Ste 230
Orlando, FL 32817
FIRST NAMED INVENTOR
Fred S. Azar
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
2004P06569 USOl 5935
EXAMINER
SANTOS RODRIGUEZ, JOSEPH M
ART UNIT PAPER NUMBER
3737
NOTIFICATION DATE DELIVERY MODE
08/31/2016 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):
ipdadmin.us@siemens.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte FRED S. AZAR, ALI KHAMENE, FRANK SAUER,
and SEBASTIAN VOGT
Appeal2014-007390
Application 11/107,640
Technology Center 3700
Before LYNNE H. BROWNE, ERIC C. JESCHKE, and
GORDON D. KINDER, Administrative Patent Judges.
KINDER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1-
7, 9-19, and 21-24. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.
Appeal2014-007390
Application 11/107,640
CLAIMED SUBJECT MATTER
The claims are directed to a method for augmented reality instrument
placement using an image based navigation system. Claim 1 is reproduced
below with paragraph lettering added and illustrates the claimed subject
matter:
1. A method for instrument placement using an image based
navigation system comprising the steps of:
[a] displaying, in a three dimensional image, an image plane
that goes through a center of a target of interest, the image
plane having a configurable orientation;
[b] receiving user input configuring an orientation of an
instrument;
[ c] displaying, in the three dimensional image, a trajectory
plane from the tip of the instrument to the center of the target,
the trajectory plane reflecting a current orientation of the
instrument and intersecting the image plane at the center of the
target of interest;
[ d] displaying in the trajectory plane, the target of interest
and potential obstacles in a path for the instrument from a
position on a patient's skin to the center of the target;
[ e] displaying in the trajectory plane a virtual extended path
of the instrument from a point that a tip of the instrument is in
contact with the patient's skin to the center of the target, the
virtual extended path based on the current orientation of the
instrument;
[ fJ receiving input selecting a particular trajectory plane
representative of a desired orientation of the instrument; and
[g] freezing an image of the particular trajectory plane.
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Appeal2014-007390
Application 11/107,640
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Hardy
Yanof
Sauer
Simon
Scouten
Quaid
us 5,512,827
US 6,366,796 Bl
US 2002/0140709 Al
US 6,535,756 Bl
US 2003/0120282 Al
US 2004/0106916 Al
REJECTIONS
The Examiner made the following rejections:
Apr. 30, 1996
Apr. 2, 2002
Oct. 3, 2002
Mar. 18,2003
June 26, 2003
June 3, 2004
Claims 1-3, 6, 7, 9, 10, 12-15, 18, 19, 21, 22, and 24 stand rejected
under 35 U.S.C. § 103(a) as being unpatentable over Sauer, Hardy, Quaid,
and Simon.
Claims 4, 5, 16, and 17 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Sauer, Hardy, Quaid, Simon, and Scouten.
Claims 11 and 23 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Sauer, Hardy, Quaid, Simon, and Yanof.
ANALYSIS
Appellants argue claims 1 and 13 as a group, and we select claim 1 as
representative. 37 CPR§ 41.37(c)(l)(iv). Claim 13 stands or falls with
claim 1.
Appellants argue that the cited references, separately or in
combination, do not teach or suggest the limitations recited in paragraphs a,
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Appeal2014-007390
Application 11/107,640
c, and d of claim 1, and so cannot render the claim unpatentable. Appeal Br.
7-8.
Appellants first argue that Sauer does not disclose displaying an
image plane that goes through a center of a target of interest. Appeal Br. 8.
Sauer, like the present invention, is directed generally to an augmented
reality graphics system for facilitating medical procedures. In paragraph 63,
Sauer describes a target 602 and a graphics guide 600 that is centered on the
target or at least surrounds the target, as shown in Figure 6. Similarly,
Figure 15 of Sauer shows guides 1510, 1520, and 1530 that indicate a path
1550 for an instrument to follow to a target 1560. Sauer i-f 111. We agree
with the Examiner that Sauer discloses an image plane that goes through the
center of a target. Ans. 3. A display of a graphics guide that is "centered on
the target" (Sauer i-f 63) and which also displays the target necessarily
displays an image plane through a center of the target, as required by
paragraph a of claim 1.
Next Appellants argue that Sauer does not disclose a trajectory plane
reflecting a current orientation of an instrument, as required by paragraph c
of claim 1. Specifically, Appellants argue that the "graphics guide of Sauer
does not move to reflect an orientation of an instrument." Appeal Br. 9.
This argument is not persuasive because the requirement alleged to be absent
from Sauer is not a limitation of claim 1. As the Examiner explained
Sauer discloses placing the tip of the instrument against the
object's surface (i.e. which would be the patient's skin) (see for
example Fig. 17 A, B, see para. 0113). In addition, once the
user place [sic] the tip of the instrument against the skin, a
viewpoint is established, from which a line of sight to a point
on a target defines a path for an instrument to follow during a
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Application 11/107,640
positioning of the instrument to the point on the target (step
1802).
Ans. 4; see also Ans. 10-11. We agree with the Examiner that Sauer' s
disclosure meets the requirements of paragraph c of claim 1.
Appellants argue that although Quaid identifies features which are to
be avoided while inserting an instrument, Quaid does not disclose displaying
those features in a trajectory plane. Appeal Br. 9--10. Specifically
Appellants argue that Quaid does not provide the limitation of "displaying in
the trajectory plane, the target of interest and potential obstacles in a path for
the instrument from a position on a patient's skin to the center of the target"
as recited in claim 1.
The Final Action found that "Quaid discloses objects that need to be
avoided such as organs, blood vessels, areas in the brain, anatomical targets,
etc[.] (see para[s.] 0006, 0048, 0049, 0063, 0071)." Final Act. 5. The
Examiner concluded that it would have been obvious to one skilled in the art
to have modified Sauer with the teachings of Quaid by displaying within the
trajectory plane display both the target of interest and structures that need to
be avoided in order to avoid puncturing critical features within the patient.
Ans. 12. In neither the Appeal Brief nor the Reply do Appellants address
the Examiner's conclusion that it would have been obvious to display the
features that Quaid identified. "[O]ne cannot show non-obviousness by
attacking references individually where, as here, the rejections are based on
combinations of references." In re Keller, 642 F.2d 413, 426 (CCPA 1981).
In the Reply, page 4, Appellants make the conclusory statement that "Quaid
does not ... suggest the limitation of 'displaying in the trajectory plane, the
target of interest and potential obstacles ... "', (Reply Br. 4) but provide no
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Application 11/107,640
reasoning to support that position. Accordingly Appellants do not persuade
us that the Examiner's conclusion was in error.
Appellants argue that because claims 2-7, 9, 10, 12, 14--19, 21, 22,
and 24 depend from either claims 1 or 13, they are allowable for the same
reasons that claims 1 and 13 are allowable. Since we find the independent
claims were properly rejected, we sustain the rejection of claims 2-7, 9, 10,
12, 14--19, 21, 22, and 24.
Appellants argue claims 11 and 23 1 together; each adds the same
limitation to its respective parent claim.
Claim 11 depends from claim 1 and adds that the image plane is
orthogonal to a direction of instrument insertion. The Examiner relies on
Y anof, claim 7, for its disclosure of "displaying a first planar portion of said
volumetric image data set orthogonal with a major plane of said guide lattice
device .... " Answer 13 (emphasis omitted). Yanof discloses a guide lattice
device formed from a rectangular solid with the series of parallel bores
through each of which a surgical instrument may be passed. See Y anof,
Figs. 1, 2, 3 (item 36). Yanof also discloses displaying a grid representing
the guide lattice device superimposed on a three-dimensional data set in
three orthogonal planes. Yanof, Figs. 5A-5D, 7:6-36. Figures 5A and 5C
disclose a grid superimposed on the data set taken in a plane coplanar with a
major plane of the guide lattice. Yanof 7: 14--17. This view is orthogonal to
the direction of instrument insertion.
1 The heading in the Appeal Brief, page 11, refers to claim 13. This is
apparently in error, as the argument is directed to the subject matter of claim
23.
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Application 11/107,640
The Examiner has not given any consideration to the phrase from
Yanof, claim 7, which immediately follows the quoted portion on which the
Examiner relied. After the phrase the Examiner relied on, Y anof goes on to
define the "first planar portion" as "collinear with a first set of said virtual
needle linear planning trajectories." Yanof 9:42-53 (claim 7). Accordingly,
we agree with Appellants that "the image set displayed in Y anof is actually
parallel to the needle trajectories." Appeal Br. 12. For this reason, the
rejection of claims 11 and 23 is not sustained. 2
DECISION
For the above reasons, the Examiner's rejection of claims 1-7, 9, 10,
12-19, 21, 22, and 24 is affirmed, and the rejection of claims 11 and 23 is
reversed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv) (2014).
AFFIRMED-IN-PART
2 In the event of further prosecution of this application, the Examiner should
consider the full disclosure of Y anof as described above.
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