Ex Parte Chan et al

Patent Trial and Appeal Board

Jan 31, 2019

13881179 (P.T.A.B. Jan. 31, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/881,179 05/08/2013 Raymond Chan
24737 7590 02/04/2019
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.
201 OP00644WOUS 1038
EXAMINER
SMITH, RUTHS
ART UNIT PAPER NUMBER
3793
NOTIFICATION DATE DELIVERY MODE
02/04/2019 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 RAYMOND CHAN, JINNAN WANG,
ADRIEN EMMANUEL DESJARDINS, LUIS FELIPE GUTIERREZ,
MAYA ELLA BARLEY, and GERT WIM 'T HOOFT
Appeal2018-001795
Application 13/881, 179
Technology Center 3700
Before LISA M. GUIJT, LEE L. STEPINA, and
BRENT M. DOUGAL, Administrative Patent Judges.
GUIJT, Administrative Patent Judge.
DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner's
rejection2 of claims 1-24 under 35 U.S.C. § 103(a) as unpatentable over
Jensen (US 2002/0085681 Al; published July 4, 2002) and Lee (US
2010/0030063 Al; published Feb. 4, 2010). 3 We have jurisdiction under 35
U.S.C. § 6(b ).
We AFFIRM.
1 Appellants identify the real party in interest as Koninklijke Philips N.V.
Appeal Br. 3.
2 Appeal is taken from the Final Office Action dated February 15, 2017, as
supplemented by the Advisory Action dated April 17, 2017.
3 The Examiner's rejection of claims 1-24 under 35 U.S.C. § 112, second
paragraph as being indefinite is withdrawn. Ans. 4; Final Act. 3--4.
Appeal2018-001795
Application 13/881, 179
STATEMENT OF THE CASE
Claims 1, 9, and 1 7 are the independent claims on appeal. Claim 1,
reproduced below, is exemplary of the subject matter on appeal.
1. A system comprising:
a processor;
a shape sensing system coupled to an interventional device
and configured to measure a shape of the interventional device
in a subject;
a memory coupled to the processor that is configured to
store an image module that is executed by the processor, said
image module being configured to receive shape information
from the shape sensing system and generate one or more control
signals in accordance with the shape information; and
at least one imaging device configured to image the
subject in accordance with the one or more control signals.
ANALYSIS
Appellants argue claims 1-8 as a group. Appeal Br. 10-15. We
select claim 1 as representative, with claims 2-8 standing or falling with
claim 1. See 37 C.F.R. § 4I.37(c)(l)(iv).
Regarding independent claim 1, the Examiner finds, inter alia, that
Jensen discloses (i) an interventional device (i.e., instrument or tool 24) that
measures spatial characteristics (i.e., position and/or orientation) of the
device; (ii) an image module (i.e., tracking data processor 20) configured to
receive the spatial characteristics and generate control signals (i.e., control or
trigger commands 28) in accordance with the spatial characteristics; and (iii)
an imaging device (i.e., x-ray generator 14, x-ray receptor 34, x-ray source
36) configured to image the subject in according to the control signals; as
claimed. Final Act. 4 (citing Jensen ,r,r 36-65); see e.g., Jensen ,r,r 28-30.
The Examiner determines that although Jensen discloses that "the
means for measuring spatial characteristics of the device can include
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Application 13/881, 179
[electromagnetic (EM)] or optical means," Jensen fails to disclose, "a shape
sensing system configured to determine the shape of the interventional
device." Final Act. 4--5 ( emphasis added). The Examiner relies on Lee for
disclosing means for sensing the position and/or orientation and shape of an
interventional device, as the device is moved in the body, by employing EM
or optical means, "to determine [and display in real-time on a corresponding
image] a configuration of the device within the body." Final Act. 5 (citing
Lee ,r,r 24--73). The Examiner reasons that it would have been obvious "to
have modified Jensen such that the means for determining a configuration of
the interventional device in real-time in the subject comprises the
position/orientation and shape sensing device of [Lee]," because "[s]uch a
modification involves the substitution of one known means for providing
configuration parameters of an instrument for another providing a more
robust system and yielding predictable results." Final Act. 5.
First, Appellants argue that
[the portions of Jensen relied on by the Examiner] are completely
silent with respect to the use of tracking information of an
interventional device to generate control signals for an imaging
device in accordance with the tracking information. Jensen does
disclose that a tracking module generates tracking data for the
instrument and this data is sent to the tracking data processor
(see, e.g., Jensen, i-fi-f36, 41 and 42). However, there is absolutely
no teaching or suggestion in the cited portions of Jensen that the
system is configured to generate one or more control signals for
the imaging device in accordance with the tracking data for the
instrument. Instead the control signals are generated by the
Jensen system solely based on the tracked coordinates of the
receptor [(i.e., x-ray receptor 34)], not the instrument [(i.e.,
instrument 24)].
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Application 13/881, 179
Appeal Br. 12-134; see also Reply Br. 6 ("Jensen does not teach or suggest
that the tracking data processor is specifically configured to generate control
signals to the imaging device in accordance with the instrument coordinate
information received by the tracking subsystem."). Appellants submit, for
example, with reference to the embodiment depicted in Figure 7 that "Jensen
specifically discloses that the position of the instrument is used to construct
an overlay of the instrument or tool on a display." Appeal Br. 13 ( citing
Jensen ,r 50, Fig. 7); Reply Br. 7.
The Examiner responds that although Jensen may provide examples
of generating control signals based on the receptor's tracking components,
Jenson discloses, for example, in paragraphs 30, 36, 38, 40-42, 48, and 63 of
Jensen that "the control signals are generated based on tracking of the
receptor and the patient and tracking of the instrument," and that "these
controls signals are used to control the imaging process." Ans. 4 ( emphasis
added). In particular, the Examiner relies on the embodiment discussed at
Paragraph 48 and depicted in Figure 7 for disclosing that "the tracking
subsystem receives instrument coordinate information which it processes
and passes along to an image processing unit [that] ... collects exposure
frames from the detector at points in time dictated by the position data from
the tracking subsystem." Id.
Appellants reply by arguing that paragraph 30 of Jensen states that
"the trigger commands are generated by the tracking data process 'as
explained in more detail below ... , based on the tracking component
coordinates as the C-arm is moved along an image acquisition path,"
4 Appellants also submit that the Examiner's general reliance on paragraphs
36-65 of Jensen and response in the Advisory Action are insufficient to
support the Examiner's findings. Appeal Br. 13.
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Application 13/881, 179
wherein "the specific portions of Jensen which describe the generation of
control signals solely disclose that the control or trigger commands for an x-
ray generator are generated based on the tracking component coordinates for
the receptor." Reply Br. 6 ( citing ,r,r 43--45). Appellants also argue that
paragraph 50 of Jensen, which further describes the embodiment, disclosed
in paragraph 48 and depicted in Figure 7, is evidence that the sole use of
instrument coordinate information 235 is to overlay the instrument graphic
with the image slices on display 250.
Paragraph 48 of Jensen discloses, with respect to fluoroscopy imaging
system 200 ( as depicted in Figure 7) ( emphasis added) that
tracking subsystem 220 receives patient coordinate information
225, detector coordinate information 230 and instrument
coordinate information 235. The tracking subsystem 220
processes the coordinate information 225-235 and passes it to an
image processing unit 240 which receives exposure frames from
the [fluoroscopy imaging system] detector 210 and outputs
image frames to the display 250. The image processing unit 240
includes a frame grabber 260 which collects exposure frames
from the detector 210 at points in time dictated by the position
data 245 provided from the tracking subsystem 220.
Thus, a preponderance of the evidence from Jensen's paragraph 48 supports
the Examiner's finding that instrument coordinate information 235, which is
information included in coordinate information 225-235 (i.e., position data
245), is received by image processing unit 240, and that image processing
unit 240 generates control signals according to ( or dictated by) the position
data to image the subject (i.e., collect exposure frames).
Appellants do not specifically address paragraph 48 of Jensen, and
therefore, do not apprise us of error in the Examiner's findings based on
paragraph 48. In addition, contrary to Appellants' argument supra,
paragraph 50 of Jensen does not expressly discuss instrument coordinate
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information 235, and to the extent paragraph 50 of Jensen does disclose that
instrument coordinate information is used to overlay the instrument graphic
with the image slices on the display, Jensen does not disclose doing so to the
exclusion of using instrument coordinate information 235 as contributing to
position data 245, which dictates ( or triggers) points in time at which to
collect an image, as disclosed in paragraph 48 and discussed supra.
Second, Appellants argue that
Lee fails to teach or suggest at least a system which includes
"[an] image module being configured to receive shape
information from the shape sensing system and generate one or
more control signals in accordance with the shape information;
and at least one imaging device configured to image the subject
in accordance with the one or more control signals" as recited in
independent claim 1.
Appeal Br. 14.
However, Appellants' argument fails to address the rejection as articulated
by the Examiner, which only relies on Lee for disclosing a shape sensing
system configured to determine the shape of the interventional device, as set
forth supra.
Finally, Appellants argue that "Jensen and Lee, taken both singly and
in combination, fail to teach or suggest the generation of control signals for
an imaging device in accordance with the shape information," and that "a
person of ordinary skill in the art would have no teaching or suggestion to
utilize shape information of the instrument in order to generate control
signals for the imaging device when viewing the combined teachings of
Jensen and Lee." Appeal Br. 14.
Again, however, Appellants' argument fails to address the rejection as
articulated by the Examiner, and further, does not apprise us of error in the
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Examiner's reasoning that modifying Jensen's fluoroscopy imaging system
200, which receives instrument coordinate information 235, to include
within such instrument coordinate information shape information from a
shape sensing system, in view of Lee, "involves the substitution of one
known means for providing configuration parameters of an instrument for
another providing a more robust system," as set forth supra. See, e.g.,
Jensen, Abstract ("[a] position tracking system is included to track the
position of ... a surgical instrument") ( emphasis added); Lee, Abstract
("[t]he system can further include a navigation system that can determine a
position and shape of the instrument relative to the anatomical structure
based on the position of the at least one tracking device determined by the
tracking system and the shape of the instrument as sensed by the shape
sensor") ( emphasis added).
Accordingly, we affirm the Examiner's rejection of independent claim
1, and claims 2-7 fall therewith.
Claims 9-24
Appellants chose not to present arguments in addition to the
arguments presented for independent claim 1 supra, and therefore, for
essentially the same reasons as stated supra, we sustain the Examiner's
rejection of claims 9-24. See Appeal Br. 15-17; Reply Br. 5-8.
DECISION
The Examiner's decision rejecting claims 1-24 is AFFIRMED.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
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