Ex Parte Chan et al

Patent Trial and Appeal Board

Jun 21, 2018

13577268 (P.T.A.B. Jun. 21, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/577,268 12/07/2012 Raymond Chan
24737 7590 06/25/2018
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.
2010P00153WOUS 8948
EXAMINER
TURCHEN, ROCHELLE DEANNA
ART UNIT PAPER NUMBER
3737
NOTIFICATION DATE DELIVERY MODE
06/25/2018 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 RAYMOND CHAN, GUY SHECHTER, ADRIEN EMMANUEL
DESJARDINS, GERT 'T HOOFT, and CHRISTOPHER STEPHEN HALL 1
Appeal2017-006805
Application 13/577 ,268
Technology Center 3700
Before ERIC B. GRIMES, CHRISTOPHER G. P AULRAJ, and
JOHN E. SCHNEIDER, Administrative Patent Judges.
GRIMES, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to an
apparatus, system, and method for tracking the position of an instrument,
which have been rejected as obvious. We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm-in-part.
1 Appellants identify the Real Party in Interest as KONINKLIJKE PHILIPS
ELECTRONICS N.V. Appeal Br. 3.
Appeal2017-006805
Application 13/577 ,268
STATEMENT OF THE CASE
"In ultrasound applications, spatial tracking of transducers has been
performed with mechanical sweeping ... , image-based registration ... ,
infra-red (IR) camera-based stereo-vision, or electromagnetic (EM)
sensing." Spec. 1:9--12. However, each of these methods has limitations.
Id. at 1: 12-28.
"Optical position and orientation sensing of a transducer ...
overcomes the limitations of conventional tracking methods ... [and] will
allow for real-time knowledge of transducer geometry that can be used to
improve image acquisition and reconstruction." Id. at 2: 15-23. "The optical
sensors may include Fiber Bragg Gratings (FBGs ). In one embodiment, an
FBG-functionalized ultrasound imaging system employs shape sensing
capabilities." Id. at 5:6-8. "Optical shape sensing using a multitude of FBG
gratings and optical interrogation permits high spatiotemporal resolution
tracking oftransducer(s) and corresponding cabling/catheter shapes." Id. at
5:13-15.
Claims 1-21 are on appeal. Claim 1 is illustrative and reads as
follows:
1. An apparatus for determining a position, orientation, and/ or
shape, comprising:
a transducer device, said transducer device being configured to
receive signals from a console and generate images based upon reflected or
transmitted energy;
a flexible cable coupled to the transducer device to provide excitation
energy to the transducer device from the console, said flexible cable having
a first portion that extends between the transducer device and the console;
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Application 13/577 ,268
at least one optical fiber extending along the first portion of the
flexible cable having a shape and position corresponding to a shape and
position of the first portion of the cable during operation; and
a plurality of sensors in optical communication with the at least one
optical fiber, the sensors being configured to measure deflections and
bending in the optical fiber such that the deflections and bending in the
optical fiber are employed to determine at least one of a shape and positional
information about the transducer device.
The claims stand rejected as follows:
Claims 1-3, 13, 14, 18, and 19 under 35 U.S.C. § 103(a) as obvious
based on Udd2 and Hascoet3 (Ans. 3);
Claims 9-12 under 35 U.S.C. § 103(a) as obvious based on Udd and
Leo4 (Ans. 6); and
Claims 4--8, 15-17, 20, and 21under35 U.S.C. § 103(a) as obvious
based on Udd, Hascoet, and Rambow5 (Ans. 7).
I
The Examiner has rejected claims 1-3, 13, 14, 18, and 19 as obvious
based on U dd and Hascoet. The Examiner finds that U dd discloses an
apparatus meeting most of the limitations of claim 1, including a flexible
cable, an optical fiber, and sensors, but "fails to explicitly disclose wherein
said flexible cable has a first portion that extends between the transducer
device and the console." Ans. 3. The Examiner finds that Hascoet teaches a
medical device that includes a "flexible cable ha[ ving] a first portion that
2 Udd, US2009/0123 l l l Al, published May 14, 2009.
3 Hascoet et al., US 6,287,260 Bl, issued Sept. 11, 2001.
4 Leo, US 8,622,935 Bl, issued Jan. 7, 2014.
5 Rambow et al., US 7,245,791 B2, issued July 17, 2007.
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Application 13/577 ,268
extends between the transducer device and the console." Id. The Examiner
concludes that it would have been obvious "to modify the flexible cable of
U dd with a portion that extends between the transducer device and the
console as it would provide a configuration to provide power to the
transducer." Id. at 3--4.
Appellants argue that the Examiner cited Udd's paragraph 153 and
Figure 22a as disclosing a flexible cable, but those parts ofUdd state that the
cables are for data communication between components of Udd's system.
Appeal Br. 12. "Udd does not specifically disclose that the cable 2230 for
data communications may be configured to extend between a transducer
device and console." Id.
Appellants also argue that "U dd fails to teach or suggest that at least
one optical fiber extends along the flexible cable .... Udd solely discloses
that an optical fiber sensor may be configured 'for insertion into, attachment
to, or to be an integral part of, an elongate instrument or catheter 110. "' Id.
at 12-13. For basically the same reason, Appellants argue that "Udd is also
completely silent with respect to sensors that are configured to measure at
least one optical fiber extending along a portion of the cable between the
system components to determine a shape or position of a transducer device."
Id. at 13.
The Examiner responded to Appellants' argument on this point by
noting that Udd discloses an intra-cardiac echo (ICE) transducer and an ICE
sonography catheter. Ans. 9. The Examiner finds that
[a] transducer inherently requires connection to electrical
components in order to transmit acoustic waves and receive
corresponding data. Udd further discloses components may be
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coupled using cables as necessary for communication of data
([0153]) and that control cables may be run through the lumens
of surgical systems (catheters) ([0221 ]). Examiner's position is
an optical fiber and a control cable both being run through the
flexible catheter would have corresponding shapes and
positions ... as they are located within the catheter.
Id. at 9-10. The Examiner notes that Hascoet discloses a flexible cable
connecting a transducer device to a console. Id. at 10.
We conclude that the Examiner's reasoning is supported by a
preponderance of the cited evidence. Udd discloses "a robotic system [that]
includes optical fibers with Bragg gratings that are configured to provide
real-time feedback related to its own dynamic shape, which corresponds to,
or is related to, a shape of a steerable elongate instrument." Udd i-f 15. For
example, "a system comprises an elongate catheter instrument and a Bragg
grating sensor optical fiber. . . . The Bragg grating sensor optical fiber is
coupled to the catheter instrument and comprises at least one optical fiber
core having a distribution of Bragg gratings." Id. i-f 23.
"One application of such a system is to assess, treat or ablate
endocardial tissue." Id. i-f 81. Udd states that
utilizing a standard atrial approach ... the robotically controlled
catheter 110 and sheath 120 pass through the inferior vena cava
and into the right atrium. An image capture device ... such as
an endoscope or intracardiac echo ("ICE") sonography catheter,
may be advanced into the right atrium to provide a field of view
upon the interatrial septum.
Id. i-f 82. "[T]he optical fiber sensor 115 may serve as a localization sensor,
which may be used to 'localize' or monitor the position and/or orientation of
various objects or system components involved in a surgical procedure." Id.
As the Examiner pointed out, Udd states that "certain surgical system
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Application 13/577 ,268
components are described as having lumens that are configured for carrying
or passage of control elements, control cables, wires, and other catheter
instruments." Id. i1221.
Hascoet discloses "a method of improving the accuracy with which
the speed of a fluid, such as a liquid, in particular blood flowing in a duct,
such as a blood vessel, in particular the aorta, is measured by means of a
signal emitted by a Doppler transducer." Hascoet 2:6-10. Hascoet's
method uses a "catheter-shaped probe." Id. at 5:25-26.
The catheter-forming probe 1 has an internal flexible cable 2
connected at one of its ends to the support block 3 on which the
ultrasound transducers 4 and 5 are mounted. The transducers 4
and 5 are connected to an electric cable 7 placed in the probe 1
at its distal end and leaving the probe 1 on the outside for
connection to a computer center or unit for controlling the
transducers and for processing the signals they deliver.
Id. at 5:31-39. See also id., Figure 1.
We conclude that, based on the above teachings, the apparatus of
claim 1 on appeal would have been obvious to a person of ordinary skill in
the art. Specifically, Udd discloses inserting an ICE transducer, via an ICE
sonography catheter, into a patient's heart through a blood vessel during
surgery, and discloses that its elongated catheter instrument can include an
optical fiber having a plurality of sensors (Bragg gratings), and that the
optical fiber sensors can be used to monitor the position and/or orientation of
system components during surgery.
Hascoet discloses a catheter comprising Doppler ultrasound
transducers connected to an electric cable for attachment to a computer
center (i.e., console; Spec. 10:2-3) for controlling the transducers and
processing their signals. Thus, even ifUdd's ICE sonography catheter does
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not inherently require a cable for providing excitation energy to its ICE
transducer, it would have been obvious, based on Hascoet, to include an
electric cable in Udd's sonography catheter for the purpose of controlling the
transducers and delivering their signals to a computer center (console) for
processing. The apparatus of claim 1 therefore would have been obvious
based on U dd and Hascoet.
Appellants argue that, "[ e ]ven assuming arguendo that the electric
cable taught by Hascoet is coupled to a transducer device and provides
excitation energy to the transducer from a console, Hascoet fails to teach or
suggest at least that the flexible cable includes an optical fiber that extends
along the flexible cable." Appeal Br. 14. Appellants also argue that
"Hascoet does not disclose or suggest at least 'a plurality of sensors in
optical communication with the at least one optical fiber ... '." Id. at 15.
These arguments are unpersuasive because the rejection relies on Udd,
not Hascoet, for the disclosure of an optical fiber and a plurality of sensors
in optical communication with it. "The test for obviousness is what the
combined teachings of the references would have suggested to one of
ordinary skill in the art." In re Young, 927 F.2d 588, 591 (Fed. Cir. 1991).
"Non-obviousness cannot be established by attacking references individually
where the rejection is based upon the teachings of a combination of
references. . . . [The reference] must be read, not in isolation, but for what it
fairly teaches in combination with the prior art as a whole." In re Merck &
Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
Appellants also argue that "[t]he cited portions of Udd solely disclose
that the optical fiber sensor may be inserted, attached or integrated with the
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elongated instrument or catheter (Udd, i-fi-123, 79). Additionally, Udd does
not teach or suggest that the data communications cable 2230 may be used to
provide power to the system components." Appeal Br. 16. Appellants argue
that "a person with ordinary skill in the art would have no motivation to
modify the data communications cable taught by Udd to include an optical
fiber." Id.
This argument is also unpersuasive, because as the Examiner has
explained (Ans. 9--10), an ultrasound transducer inherently requires
connection to an electrical source for power, and connection to a computer
for transmission of the acoustic signal. In any event, as the Examiner also
pointed out (id. at 10), Hascoet expressly discloses an ultrasound transducer
connected to a computer via an electric cable, and it would have been
obvious to include such a cable in Udd's device.
Appellants address claims 13 and 14, and 18 and 19, under their own
headings. Appeal Br. 16-19. However, Appellants rely on the same
arguments that were presented with respect to claim 1, which are
unpersuasive for the reasons discussed above. Claims 2, 3, 13, 14, 18, and
19 therefore fall with claim 1. 37 C.F.R. § 41.37(c)(l)(iv).
II
The Examiner has rejected claims 9-12 as obvious based on Udd and
Leo. The Examiner finds that Udd "fail[ s] to explicitly disclose at least one
other position sensing device, said at least one other position sensing device
includes one of another optical fiber with optical sensors and an
electromagnetic sensor," as encompassed by claim 9 and required by claim
12. Ans. 7. The Examiner finds that this limitation is disclosed by Leo, and
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concludes that it would have been obvious to modify Udd's device "with the
combination of optical sensors and electromagnetic sensors of Leo as it
would provide enhanced data acquisition." Id.
Appellants argue that "the cited portions of Udd are completely silent
with respect to a second position sensing device which is configured for
sensing the shape and position of a medical device relative to at least one
optical fiber of a first shape sensing system." Appeal Br. 21. Appellants
also argue that "Leo does not teach or suggest at least one other position
sensing device that is configured for sensing the shape and position of the
medical device relative to the at least one optical fiber." Id. at 22.
We agree with Appellants that the Examiner has not established a
prima facie case of obviousness with respect to claim 9 or dependent claims
10-12. Claim 9 requires, among other things, an optical fiber and sensors,
as well as "at least one other position sensing device, said at least one other
position sensing device being configured for sensing the shape and position
of the medical device relative to the at least one optical fiber."
The Examiner finds that Udd discloses "at least one other position
sensing device for sensing the shape and position of the medical device
([0016])." Ans. 6. However, that passage describes Udd's basic optical
fiber grating system, which is also discussed in Udd's paragraphs 15 and 17;
the Examiner cites paragraphs 15 and 1 7 as disclosing the sensors that are
also required by claim 9. Ans. 6. We do not agree with the Examiner's
interpretation of U dd, because that interpretation requires the same structure
to meet two different structural limitations of claim 9.
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The Examiner also finds that Leo discloses a position sensing device
that "includes one of another optical fiber with optical sensors and an
electromagnetic sensor (col.9, ll.55-58)." Ans. 7. That passage reads as
follows: "In the WDM [wavelength division multiplexing] configuration,
the electromagnetic source 178 is configured to sweep a range of
wavelengths, with each of the fiber Bragg gratings 48, 50 tuned to reflect
light waves at a unique central wavelength within the swept wavelength
range." Leo 9:55-59.
The Examiner has not adequately explained how the use of fiber
Bragg gratings in the WDM configuration meets the limitation of claim 9
that requires "at least one other position sensing device" that is employed
along with a "plurality of sensors," such as fiber Bragg gratings, "to
determine at least one of a shape and positional information about [a]
medical device during a procedure."
"In rejecting claims under 35 U.S.C. § 103, the examiner bears the
initial burden of presenting a prima facie case of obviousness." In re
Rijckaert, 9 F.3d 1531, 1532 (Fed. Cir. 1993). With respect to the rejection
of claims 9-12, that burden has not been met, and we therefore reverse the
rejection of those claims as obvious based on Udd and Leo.
III
The Examiner has rejected claims 4--8, 15-1 7, 20, and 21 as obvious
based on Udd, Hascoet, and Rambow. Appellants argue only that Rambow
does not make up for the deficiencies in Udd and Hascoet that Appellants
argued with respect to claims 1, 13, and 18. Appeal Br. 23-25.
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Because we do not agree with Appellants' position that Udd and
Hascoet would not have made obvious the inventions of claims 1, 13, and
18, and Appellants have waived arguments directed to Rambow, we affirm
the rejection of claims 4--8, 15-17, 20, and 21 as obvious based on Udd,
Hascoet, and Rambow. See 37 C.F.R. § 41.37(c)(l)(iv) (Appeal Brief shall
contain "[ t ]he arguments of appellant with respect to each ground of
rejection"); Hyattv. Dudas, 551F.3d1307, 1314 (Fed. Cir. 2008) ("When
the appellant fails to contest a ground of rejection to the Board, ... the
Board may treat any argument with respect to that ground of rejection as
waived. In the event of such a waiver, the PTO may affirm the rejection of
the group of claims that the examiner rejected on that ground without
considering the merits of those rejections.").
SUMMARY
We affirm the rejection of claims 1-3, 13, 14, 18, and 19 under 35
U.S.C. § 103(a) based on Udd and Hascoet.
We reverse the rejection of claims 9-12 under 35 U.S.C. § 103(a)
based on U dd and Leo.
We affirm the rejection of claims 4--8, 15-17, 20, and 21under35
U.S.C. § 103(a) based on Udd, Hascoet, and Rambow.
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED-IN-PART
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