Ex Parte Florent et al

Patent Trial and Appeal Board

Jun 24, 2016

13133693 (P.T.A.B. Jun. 24, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/133,693 06/09/2011 Raoul Florent
24737 7590 06/28/2016
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.
2008P01634WOUS 5129
EXAMINER
GILLMAN, AMELIE R
ART UNIT PAPER NUMBER
3737
NOTIFICATION DATE DELIVERY MODE
06/28/2016 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):
marianne.fox@philips.com
debbie.henn@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 ROUL FLORENT
and
NICOLAAS HYLKE BAKKER
Appeal2014-003614
Application 13/133,693 1
Technology Center 3700
Before MICHAEL C. ASTORINO, KENNETH G. SCHOPPER, and
ROBERT J. SILVERMAN, Administrative Patent Judges.
SILVERMAN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 1-13 and 15-24. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 According to the Appellants, the real party in interest is Koninklijke Philips
Electronics N.V. Appeal Br. 3.
Appeal2014-003614
Application 13/133,693
ILLUSTRATIVE CLAIM
1. An examination apparatus for providing visual
guidance for heart valve replacement, the examination
apparatus comprising:
an X-ray image acquisition device; and a display device,
said examination apparatus being configured for, via use
of said image acquisition device and injected contrast agent,
acquiring an X-ray image of a vessel root region of a heart and,
via said image acquisition device, acquiring a current
fluoroscopy image of said vessel root region with a replacement
valve inserted into the vessel,
said examination apparatus being further configured for
identifying vessel information data within the acquired X-ray
image, producing a model by using the identified vessel
information data to model a vessel root representation,
generating a composite image by a combination of said model
with said current fluoroscopy image, and displaying, via said
display device, said composite image.
CITED REFERENCES
The Examiner relies upon the following references:
Stein us 4,444, 196
Subramanyan et al. US 6,782,284 Bl
(hereinafter "Subramanyan")
V aillant et al.
(hereinafter "V aillant")
Kimura
Rahn et al.
(hereinafter "Rahn")
US 2006/0079759 Al
US 2008/0273799 Al
US 2009/0306500 Al
2
Apr. 24, 1984
Aug. 24, 2004
Apr. 13, 2006
Nov. 6, 2008
Dec. 10, 2009
Appeal2014-003614
Application 13/133,693
REJECTIONS2
I. Claim 22 is rejected under 35 U.S.C. § 112, second paragraph,3
as failing to comply with the definiteness requirement.
II. Claims 1, 2, 6-10, and 15-18 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Vaillant and Rahn.
III. Claims 3, 4, 11, and 12 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Vaillant, Rahn, and Stein.
IV. Claims 5, 13, 19-21, and 23 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Vaillant, Rahn, and Subramanyan.
V. Claim 22 is rejected under 35 U.S.C. § 103(a) as unpatentable
over V aillant, Rahn, Subramanyan, and Kimura.
VI. Claim 24 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Vaillant, Rahn, Stein, and Subramanyan.
FINDINGS OF FACT
We rely upon and adopt the Examiner; s findings stated in the Final
Action (at pages 3-12) and the Answer (at pages 3-8), except where stated
otherwise, in the Analysis below. Additional findings of fact may appear in
the Analysis below.
2 The Final Action included a rejection of claim 17 under either
35 U.S.C. § 112(d) or 35 U.S.C. § 112 (pre-AIA), fourth paragraph, as
failing to further limit the claim from which it depends. Final Action 3.
This rejection is withdrawn. Answer 2.
3 The Examiner rejected claim 22 under either 35 U.S.C. § 112(b) or
35 U.S.C. § 112 (pre-AIA), second paragraph. Final Action 2. Because the
Appellants' application was filed before September 16, 2012, the pre-AIA
version of the statute is applied herein.
3
Appeal2014-003614
Application 13/133,693
ANALYSIS
Rejection I
Claim 22 recites: "The examination apparatus of claim 19, said
producing creating, for said displaying, said outline as a one pixel line."
The Final Action states that claim 22 is indefinite because "it is
unclear how a line may be comprised of only a single pixel." Final Action 2.
Further, the Examiner finds that"[ o ]ne of ordinary skill in the art recognizes
that a single pixel is the smallest display unit available on a screen, or in
other words, a 'point' or 'dot."' Answer 2-3.
The Appellant's position is that a person of ordinary skill in the art
understands the term "one pixel line" in light of the Specification. Appeal
Br. 6. We agree. The Examiner explains correctly that a line cannot be
comprised of one pixel. Final Action 2. This is so because a line suggests a
length, as seen, for example, in "root outlines 242" of Figures 4 and 5a of
the Specification. Spec. 13, 1. 22, 14, 1. 1, Figs. 4, 5a. Accordingly, it is
logical that a person of ordinary skill in the art would not understand the
term "one pixel line" to be a single pixel. Rather, the phrase "one pixel" is
understood to modify the term "line." As such, in light of the Specification,
we determine that one of ordinary skill in the art would understand that the
term "one pixel line" refers to a "line" having a width of one pixel. See
Answer 3.
Accordingly, the limitation "one pixel line" does not render the claim
indefinite. The rejection of claim 22 under 35 U.S.C. § 112, second
paragraph, is not sustained.
4
Appeal2014-003614
Application 13/133,693
Rejection II
The rejection of claim 1, under 35 U.S.C. § 103(a), combines
Vaillant's teaching of both a model image and a fluoroscopy image together
with Rahn' s teaching of creating a composite image by digitally
superimposing two images. Final Action 4--5 (citing Vaillant i-fi-1 46, 4 7, 50,
Fig. 1, Rahn i-fi-f 10, 36, 38).
The Appellants' arguments that Rahn does not employ a model and
does not employ an image produced by "identifying vessel information" and
"using the identified vessel information data" (Appeal Br. 8) do not address
the combination of reference teachings set forth in the rejection.
The Appellants also argue that combining the teachings of V aillant
and Rahn, as in the Final Action, uses impermissible hindsight. Id.
On the contrary, and as the Examiner states, the rejection of claim 1
relies only upon knowledge that was within the level of ordinary skill in the
art at the time of the invention, as evidenced by the teachings of the cited
references, rather than knowledge drawn from the Appellants' Specification.
See Answer 4. Indeed, it would have been obvious to a person of ordinary
skill in the art to use of Rahn's composite technique together with the
imaging modalities of Vaillant - as a substitute for the combination display
in Vaillant - in order to increase patient safety during interventional
procedures, as explained by the Examiner. Id. at 3--4; see also Final
Action 5. The rejection of claim 1 under 35 U.S.C. § 103(a) is sustained.
In regard to claims 2, 6-10, and 15-18, the Appellants rely upon the
arguments presented for claim 1. Appeal Br. 9. Because the rejection of
claim 1 is sustained, the rejection of claims 2, 6-10, and 15-18 is also
sustained.
5
Appeal2014-003614
Application 13/133,693
Rejection III
In regard to the rejection of claims 3, 4, 11, and 12 under 35 U.S.C.
§ 103(a), the Appellants rely upon the arguments presented for claim 1.
Appeal Br. 9. Because the rejection of claim 1 is sustained, the rejection of
claims 3, 4, 11, and 12 is also sustained.
Rejection IV
In regard to the rejection of claims 5, 13, 19, 21, and 23 under
35 U.S.C. § 103(a), the Appellants rely upon the arguments presented for
claim 1. Appeal Br. 10. Thus, the rejection of claims 5, 13, 19, 21, and 23
is also sustained.
The Appellants present a separate argument for claim 20, which
recites:
The examination apparatus of claim 19, said model
further specifically comprising a representation of an annulus
plane, said generating comprising merging, overlappingly with
said current tluoroscopy image, said representation of said
annulus plane, so that said displaying displays an image
resulting from said merging of said outline and said merging of
said representation of said annulus plane.
The Appellants argue that the Examiner erred in rejecting claim 20
under 35 U.S.C. § 103(a) because the cited references fail to disclose or
suggest the "representation of an annulus plane" and the resulting displayed
image, as claimed. Appeal Br. 9-10. The Appellants further contend that
the rejection employs impermissible hindsight. Id. at 10.
As to the limitations added by claim 20, the Final Action states that
Vaillant discloses a representation of an annulus plane. Final Action 10
(citing Vaillant i-f 59, Figs. 4A--4C). According to the Answer, the Examiner
"interprets an 'annulus plane' as a plane having an annulus in it" and finds
6
Appeal2014-003614
Application 13/133,693
that the portions of Vaillant identified in the Final Action disclose planes
containing a mitral valve annulus, labeled MV. Answer 5.
The Examiner's interpretation of the claim language fails to consider
all of the claim language pertinent to the limitation. In particular, the
Examiner does not address the claimed recitation that the claimed "model"
must include "a representation of an annulus plane." Appeal Br. 17 (Claims
App.) (emphasis added). As set forth in the claim, as it would be understood
by a person of ordinary skill in the art in view of the Specification, the
"representation of an annulus plane" must identify the location of the
"annulus plane" in some fashion. For example, as the Appellants point out,
Figure 5a of the Specification shows an example of the claimed
"representation of an annulus plane," wherein the annulus plane is depicted
as a dashed line (element 246). Appeal Br. 10 (citing Spec. Fig. 5a).
In view of the foregoing, the rejection of claim 20 is not sustained.
Rejection V
Claim 22 recites: "The examination apparatus of claim 19, said
producing creating, for said displaying, said outline as a one pixel line."
In rejecting the claim under 35 U.S.C. § 103(a), the Examiner relies
upon Kimura for teaching an outline as a one-pixel line - i.e., "the width of
the outline is one dot." Final Action 11 (citing Kimura i-f 7). The Final
Action states that it would have been obvious to modify the other references
cited, to include an outline of the thickness taught by Kimura, "in order to
avoid obscuring the underlying data upon which the outline is
superimposed." Id.
The Appellants argue that the Examiner erred in rejecting claim 20
because the portion of Kimura identified by the Examiner "has nothing to do
7
Appeal2014-003614
Application 13/133,693
with use of a one pixel line in the context of claim 22" and because the Final
Action does not state "where such motivation [to combine or modify
references] is to be found in the prior art," such that the rejection employs
"impermissible hindsight." Appeal Br. 11, 12.
The Appellants' argument is not persuasive, such that the rejection of
claim 22 is sustained.
As to the Appellants' remark (Appeal Br. 11) that Kimura "has
nothing to do with" claim 22, Kimura's image-processing techniques are
relevant to the claimed subject matter, at least because Kimura's identified
teachings are reasonably pertinent to the problem of making information
contained in superimposed images readily perceptible. See In re Bigio, 381
F.3d 1320, 1325 (Fed. Cir. 2004).
As to the Appellants' contention that the rejection does not "say
where such motivation is to be found in the prior art" (Appeal Br. 11 ), the
Examiner correctly states that reliance upon a motivation set forth in a prior
art reference "is not the sole manner by which to establish obviousness"
(Answer 7 (citing MPEP §§ 2141, 2143)). Here, the Examiner properly sets
forth a rationale - namely, the avoidance of obscuring image information -
that amounts to the simple substitution of the outline shown in Subramanyan
for Kimura' s outline (having a width of one pixel) so as to obtain predictable
results. See Answer 7.
Rejection VI
In regard to the rejection of claim 24 under 35 U.S.C. § 103(a), the
Appellants rely upon the arguments presented for claim 1. Appeal Br. 12.
Because the rejection of claim 1 is sustained, the rejection of claim 24 is also
sustained.
8
Appeal2014-003614
Application 13/133,693
DECISION
We AFFIRM the Examiner's decision rejecting claims 1-13, 15-19,
and 21-24 under 35 U.S.C. § 103(a).
We REVERSE the Examiner's decision rejecting claim 20 under
35 U.S.C. § 103(a).
We REVERSE the Examiner's decision rejection claim 22 under
35 U.S.C. § 112, second paragraph.
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
9