Ex Parte Budzelaar et alDownload PDFPatent Trials and Appeals BoardMay 30, 201913884696 - (D) (P.T.A.B. May. 30, 2019) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/884,696 05/10/2013 Franciscus Paulus Maria Budzelaar 24737 7590 06/03/2019 PHILIPS INTELLECTUAL PROPERTY & STANDARDS 465 Columbus A venue Suite 340 Valhalla, NY 10595 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. 2010P01321WOUS 8880 EXAMINER FOWLER, DANIEL WAYNE ART UNIT PAPER NUMBER 3794 NOTIFICATION DATE DELIVERY MODE 06/03/2019 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): patti. demichele@Philips.com marianne.fox@philips.com katelyn.mulroy@philips.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte FRANCISCUS PAUL US MARIA BUDZELAAR, NENAD MIHAJLOVIC, and STEVEN ANTONIE WILLEM FOKKENROOD 1 Appeal2018-008906 Application 13/884,696 Technology Center 3700 Before MICHELLE R. OSINSKI, JILL D. HILL, and MICHAEL L. WOODS, Administrative Patent Judges. WOODS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Franciscus Paulus Maria Budzelaar et al. ("Appellants") appeal under 35 U.S.C. § 134 from the Examiner's decision rejecting claims 1-3, 6-13, and 15. Appeal Br. 1. We have jurisdiction over this appeal under 35 U.S.C. § 6(b ). 1 According to Appellants, the real party in interest is Koninklijke Philips Electronics N.V. Appeal Br. 1. Appeal2018-008906 Application 13/884,696 We AFFIRM. SUMMARY OF THE DECISION CLAIMED SUBJECT MATTER Appellants' invention relates to "interference reduction in ultrasound cardiac ablation applications." Spec. 1 (Field of the Invention). Claims 1 and 6 are independent. Appeal Br. (Claims Appendix). Claim 1 is illustrative and reproduced below, with emphases added to limitations discussed in this Decision. An apparatus for interference reduction in radiofrequency (RF) ablation applications using real-time ultrasound based monitoring, said apparatus comprising: - an ablation device adapted (i) to be coupled to an ablation electrode and (ii) to generate RF ablation signals to be supplied to the ablation electrode in real-time during an RF ablation treatment; and - an ultrasound device adapted to be coupled to an ultrasound transducer that is embedded and physically connected in direct proximity to the ablation electrode, wherein said ultrasound device includes a pulse generating unit adapted to generate at least two ultrasound excitation pulses in order to excite said ultrasound transducer to monitor real-time progress of the RF ablation treatment of one or more of a lesion boundary, lesion development, and lesion depth as the RF ablation signals are supplied to the ablation electrode, wherein responsive to the at least two ultrasound excitation pulses, said ultrasound transducer (i) performs an ultrasound scan for each ultrasound excitation pulse, each ultrasound scan producing ultrasound echo signals, and (ii) receives at least two combined ultrasound echo signals, wherein the received at least two combined ultrasound signals each include (i) an ultrasound echo signal in response to an ultrasound excitation pulse, and (ii) an interference signal that comprises high frequency harmonics of said RF ablation 2 Appeal2018-008906 Application 13/884,696 signals in a MHz range which interfere with a respective ultrasound echo signal, and wherein said ultrasound device further includes a signal processing unit adapted to process at least one received combined ultrasound signal with at least another one received combined ultrasound signal to reduce a negative effect on ultrasound based monitoring caused by each respective interference signal. Id. (emphases added). THE REJECTI0NS 2 The Examiner rejected: (a) Claims 1, 2, and 6 under 35 U.S.C. § I03(a) as unpatentable over Suorsa (US 6,206,831 B 1, issued Mar. 2 7, 2001 ), Kleen (US 2005/0148836 Al, published July 7, 2005), and Daigle (US 2009/0112095 Al, published Apr. 30, 2009). Final Act. 4. (b) Claims 3, 7, 10-13, and 15 under 35 U.S.C. § I03(a) as unpatentable over Suorsa, Kleen, Daigle, and Dabney (US 6,633,658 Bl, issued Oct. 14, 2003). Final Act. 5. (c) Claims 8 and 9 under 35 U.S.C. § I03(a) as unpatentable over Suorsa, Kleen, Daigle, Dabney, and N aka ya (US 2006/0241451 Al, published Oct. 26, 2006). Final Act. 8. 2 In the Final Office Action, the Examiner rejected claim 15 under 35 U.S.C. § 101. Final Act 2. The Examiner subsequently withdrew the rejection, however, and that rejection is no longer pending in this appeal. Ans. 2. 3 Appeal2018-008906 Application 13/884,696 ANALYSIS I. Claims l, 2, and 6 Re;ected as Unpatentable Over Suorsa, Kleen, and Daigle A. Examiner's Rejection The Examiner relies on Suorsa for disclosing an apparatus with several of the claimed limitations. See Final Act. 4. To illustrate Suorsa's apparatus, we reproduce its Figure 1, below: FIG.1 According to the Examiner, and as shown above in Figure 1, Suorsa discloses "an apparatus with an ablation device/ultrasound device (23)." Id. (citing Suorsa, col. 2, 11. 54--56). The Examiner further cites to Suorsa's Figure 5A, which we also reproduce, below: 4 Appeal2018-008906 Application 13/884,696 46 FIG. 5A 24 28 48 30 T According to the Examiner, and as shown in the above Figure 5A, Suorsa's ablation device/ultrasound device is connected to electrodes 24 that generate an RF signal and generate pulses for exciting transducers 28. Id. ( citing Suorsa, col. 5, 11. 36-53; col. 8, 11. 47-54). The Examiner finds that transducers 28 are embedded and physically connected in direct proximity to ablation electrodes 24, as required by the claims. See id. The Examiner explains that "[a]ll ultrasound imaging systems operate by sending and receiving pulses, and where RF energy is being used, the received pulse will include RF noise." Id. The Examiner acknowledges, however, that "Suorsa does not specifically disclose ultrasonic imaging simultaneously [ or in real-time] with RF ablation to monitor the procedure or any particular mechanism [for] reducing interference." Id. To satisfy the missing "real-time" limitation, the Examiner relies on Kleen. See id. at 4--5. In particular, the Examiner finds that Kleen "discloses a medical device ... with an ablation electrode (13) and ultrasound transducer ... and teaches that the imaging and ablation are done simultaneously to monitor the depth and boundaries of created lesions." 5 Appeal2018-008906 Application 13/884,696 Id. at 4 (citing Kleen ,r,r 15, 17) (emphasis added). The Examiner reasons that it would have been obvious to modify Suorsa "to further include simultaneous sensing so that the resulting combination can both sense tissue before and during an ablation procedure." Ans. 3; see also Final Act. 4--5. Regarding the claimed "reduce a negative effect on ultrasound based monitoring caused by each respective interference signal," the Examiner acknowledges that "Kleen does not disclose any particular mechanism for reducing interference." See Final Act. 4--5. To satisfy the claimed limitation, the Examiner relies on Daigle for disclosing "an ultrasound imaging system that collects a plurality of echoes ... and teaches that averaging some number of the echoes reduces noise." Id. at 5 (citing Daigle ,r,r 55, 79) ( emphasis added). The Examiner further reasons that it would have been obvious to "include signal averaging as taught by Daigle to improve the image quality produced while treating tissue with RF energy by reducing the effects of RF interference." Id. B. Analysis In contesting this rejection, Appellants present multiple arguments, which we address separately, below. First, Appellants argue that "the combination of Suorsa, Kleen and Daigle fails to teach or suggest" the claim limitations. Appeal Br. 11-12 ( emphasis omitted). Appellants contend that "Suorsa teaches and suggests an ablation device/ultrasound device that does not utilize concurrent or simultaneous imaging and ablation, as i[s] required in independent claim 1." Id. at 15 ( emphasis omitted). 6 Appeal2018-008906 Application 13/884,696 Appellants' first argument is not persuasive because "one cannot show non-obviousness by attacking references individually where, as here, the rejections are based on combinations of references." See In re Keller, 642 F.2d 413,426 (CCPA 1981). In the present case, the Examiner proposes to modify Suorsa to utilize simultaneous ultrasonic imaging "to allow the operator to benefit by monitoring tissue as it is being treated." Ans. 3. Indeed, Kleen teaches such a modification in its disclosure that "[i]t is particular[ly] expedient for ablation and imaging to be performed simultaneously, so that the doctor can see in situ where and how the ablation is being performed, i.e., he can continuously monitor the result of the treatment." Kleen ,r 17 ( emphasis added). Second, Appellants contend that "Suorsa expressly suggests that simultaneous imaging and ablation should be excluded" and that "the ultrasound imaging of Suorsa is not subject to ablation energy interference." Appeal Br. 16 ( emphasis omitted). In support of this argument, Appellants cite to Suorsa' s disclosure that "delivery of ablating energy must be closely governed to avoid incidence of tissue damage and coagulum formation [and] the ablation catheters must be precisely positioned adjacent to and preferably in contact with the tissue to be treated." Id. at 12 (quoting Suorsa, col. 1, 11. 15-24, 42--44) (emphasis omitted); see also Reply Br. 6-7 (repeating the same). Appellants' second argument also fails to apprise us of Examiner error. Appellants' argument appears to be premised on a contention that Suorsa teaches away from the proposed combination. As explained correctly by the Examiner, however, to establish teaching away, the prior art reference must criticize, discredit, or otherwise discourage the solution 7 Appeal2018-008906 Application 13/884,696 claimed. See Ans. 5---6 (citing In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004)). Here, Appellants do not cite to anything within Suorsa that criticizes, discredits, or discourages using simultaneous ultrasonic imaging. Suorsa's disclosure that "delivery of ablating energy must be closely governed to avoid incidence of tissue damage and coagulum formation ... [and] the ablation catheters must be precisely positioned adjacent to and preferably in contact with the tissue to be treated" (Suorsa, col. 1, 11. 19-24) says nothing about simultaneous ultrasonic monitoring and RF ablation, and Appellants' reliance on this disclosure does not support its teaching away argument. At best, Suorsa merely discloses an alternative-ultrasonic imaging prior to ablation-which is not, by itself, sufficient to demonstrate a teaching away. See Fulton, 391 F.3d at 1201 ("The prior art's mere disclosure of more than one alternative does not constitute a teaching away from any of the[] [ disclosed] alternatives"); see also Appeal Br. 15 ( emphasis omitted) ("Suorsa teaches ... that it is only after tissue contact is detected, via ultrasound imaging, that ablation ... can occur"). Third, Appellants assert that "the ultrasound imaging of Suorsa is not subject to ablation energy interference," because "Suorsa does not teach or suggest concurrent or simultaneous imaging and ablation." Reply Br. 6 ( emphasis omitted). Appellants' third argument is also unpersuasive, as it ignores the Examiner's proposed modification to Suorsa in which simultaneous ultrasonic imaging is performed. Final Act. 4--5. Because the apparatus as modified by the Examiner would perform ultrasonic imaging during an RF ablation procedure, a skilled artisan would understand that ablation energy interference would exist, and a skilled artisan would have further modified 8 Appeal2018-008906 Application 13/884,696 the device to reduce such interference, as taught by Daigle. See id.; see also Daigle ,r 79 ("the use of signal averaging with the new system architecture can improve signal-to-noise and thus dynamic range significantly"). For the foregoing reasons, Appellants' arguments do not apprise us of Examiner error. We adopt as our own the Examiner's findings and reasoning and affirm the rejection of claims 1, 2, and 6 as unpatentable over Suorsa, Kleen, and Daigle. II. Claims 3. 7. 1 ~13. and 15 Reiected as Unpatentable Over Suorsa. Kleen. Daigle. and Dabney Appellants rely on the same arguments that we found unpersuasive in connection with the independent claims as the basis for reversal of this ground of rejection. Appeal Br. 18. As such, Appellants do not apprise us of Examiner error and we affirm the rejection of claims 3, 7, 10-13, and 15 as unpatentable over Suorsa, Kleen, Daigle, and Dabney. III. Claims 8 and 9 Reiected as Unpatentable Over Suorsa, Kleen, Daigle, Dabney, and Nakaya Appellants rely on the same arguments that we found unpersuasive in connection with the independent claims as the basis for reversal of this ground of rejection. Appeal Br. 18. As such, Appellants do not apprise us of Examiner error and we affirm the rejection of claims 8 and 9 as unpatentable over Suorsa, Kleen, Daigle, Dabney, and Nakaya. SUMMARY We affirm the rejection of claims 1, 2, and 6 under 35 U.S.C. § 103(a) as unpatentable over Suorsa, Kleen, and Daigle. 9 Appeal2018-008906 Application 13/884,696 We affirm the rejection of claims 3, 7, 10-13, and 15 under 35 U.S.C. § 103(a) as unpatentable over Suorsa, Kleen, Daigle, and Dabney. We affirm the rejection of claims 8 and 9 under 35 U.S.C. § 103(a) as unpatentable over Suorsa, Kleen, Daigle, Dabney, and Nakaya. No time period for taking any subsequent action in connection with this appeal may be extended. See 37 C.F.R. § 1.136(a)(l )(iv). AFFIRMED 10 Copy with citationCopy as parenthetical citation