Ex Parte Gleich et alDownload PDFPatent Trial and Appeal BoardMay 4, 201813133742 (P.T.A.B. May. 4, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/133,742 06/09/2011 Bernhard Gleich 24737 7590 05/08/2018 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. 2008P01652WOUS 5387 EXAMINER SAKAMOTO, COLIN T ART UNIT PAPER NUMBER 3768 NOTIFICATION DATE DELIVERY MODE 05/08/2018 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 BERNHARD GLEICH and JUERGEN WEIZENECKER 1 Appeal2017-005828 Application 13/133,742 Technology Center 3700 Before ERIC B. GRIMES, JOHN G. NEW, 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 relating to measuring velocity of a liquid (e.g., blood) in a vessel (e.g., a blood vessel), which have been rejected as obvious. We have jurisdiction under 35 U.S.C. § 6(b ). We affirm. STATEMENT OF THE CASE The Specification states that magnetic particle imaging (MPI) "can be used to examine arbitrary examination objects - e.g. human bodies - in a 1 Appellants identify the Real Party in Interest as Koninklijke Philips N.V. Appeal Br. 3. Appeal2017-005828 Application 13/133,742 non-destructive manner and without causing any damage and with a high spatial resolution." Spec. 1. "The present invention is based on the idea to measure the local velocities of a liquid in a vessel, e.g. of blood in the coronary arteries, by following fluctuations of the liquid ( containing magnetic particles) in a bolus." Id. at 3. "MPI images are recorded using a drive field with the main components ideally along the coronary. Images are reconstructed in real time." Id. "In a further embodiment the local blood velocity is determined by picking two voxels and maximizing the correlation between the signal in the first voxel and the time shifted signal in the second voxel. The determined time shift together with the distance of the voxels gives the velocity." Id. Claims 1, 2, 10-13, 16, 17, and 20 are on appeal. Claim 11 is illustrative and reads as follows (disputed limitations emphasized): 11. A method for measuring a local velocity of a liquid containing a magnetic material in a vessel within a region of action, which method comprises the steps of: generating a magnetic selection field having a pattern in space of a magnetic field strength such that a first sub-zone having a low magnetic field strength and a second sub-zone having a higher magnetic field strength are formed in the region of action; changing the position in space of the two sub-zones in the region of action by a magnetic drive field so that a magnetization of the magnetic material changes locally; acquiring detection signals, which detection signals depend on the magnetization in the region of action, which magnetization is influenced by the change in the position in space of the first and second sub-zones; controlling the changing of the position in space of the first sub-zone so that it follows the vessel; 2 Appeal2017-005828 Application 13/133,742 acquiring at least two detection signals at different positions of the first sub-zone along the vessel; correlating two of the at least two detections signals; and determining from the correlated detection signal and a known distance between the positions of the first sub-zone, at which said detections signals were acquired, the local velocity of the liquid. Claims 1 and 12 are also independent. Claim 1 is directed to an "arrangement" comprising means configured to carry out the steps of claim 11. Claim 12 is directed to a computer readable medium comprising program code means for causing a computer to control an arrangement to carry out the steps of claim 11. DISCUSSION The Examiner has rejected claims 1, 2, 10-13, 16, 1 7, and 2 0 under 35 U.S.C. § I03(a) as obvious based on either of Gleich-1 2 or Gleich-2, 3 combined with Gleich-3,4 Roy, 5 Arfors, 6 Amdt,7 and Raptis. 8 Ans. 2. Appellants present the same arguments with respect to claim 1, 11, and 12. 2 Gleich, DE 10151778 Al, May 8, 2003. In the Final Action (May 7, 2016) and in the Answer, the Examiner cites DE 10151772. Al, but in both cases points to the Information Disclosure Statement filed Feb. 14, 2012, which lists the '778 document rather than the '779 document. We therefore understand the Examiner to rely on the '778 document. 3 Bernhard Gleich et al., Tomographic Imaging Using the Nonlinear Response of Magnetic Particles, 435 Nature 1214--1217 (2005). 4 US 2006/0248945 Al, published Nov. 9, 2006. 5 US 4,542,748, issued Sept. 24, 1985. 6 K. E. Arfors et al., Measurements of Blood Flow Velocity in the Microcirculation, 80 Upsala J. Med. Sci. 27-33 (1975). 7 US 5,741,979, issued Apr. 21, 1998. 8 US 4,402,230 issued Sept. 6, 1983. 3 Appeal2017-005828 Application 13/133,742 Since these claims were argued as a group, we select claim 11 as representative. 3 7 C.F .R. § 41.3 7 ( c )( 1 )(iv). The Examiner finds that Appellants' Specification acknowledges that "Gleich- I and Gleich-2 disclose a known magnetic particle imaging (MPI) method," which includes the steps of "generating a magnetic selection field," "changing the position in space of the two sub-zones," and "acquiring detection signals," as recited in claim 11. Id. at 2-3. 9 The Examiner finds that Gleich-I and Gleich-2 do not teach "controlling the changing of the position in space of the first sub-zone so that it follows the vessel," as required by claim 11. Id. at 3. The Examiner finds, however, that "Gleich-3 teaches using MPI to investigate how magnetic particles in blood move[] within a blood vessel/blood stream." Id. The Examiner concludes that, therefore, it would have been obvious to use the MPI method of Gleich-I or Gleich-2 "to investigate how blood moves within a blood vessel, as taught by Gleich-3, since MPI would have been recognized by the ordinarily skilled artisan as an appropriate modality for such blood movement investigation." Id. The Examiner finds that Roy teaches measuring the temperature of blood at different positions in the vasculature, determining the time delay in the signals, and dividing the known distance between the measurement positions by the time difference "to obtain local velocity of blood." Id. at 4. (The Examiner cites Arfors, Arndt, and Raptis for essentially the same 9 The Examiner focuses on the "means" recited in claim 1, but those means carry out functions that correspond to the steps of claim 11. We will focus on the method defined by claim 11. 4 Appeal2017-005828 Application 13/133,742 method of determining the velocity of a liquid, using different liquids. Id. at 4--5.) The Examiner concludes that it would have been obvious "to acquire detection signals at different positions along the vessel and ... to correlate the signals to determine a local velocity of blood within the vessel based on the correlated detection signal and a known distance between the different positions," as taught by Roy, in order "to determine local blood velocity." Id. at 5. The Examiner concludes that, therefore, it would have been obvious to control the position in space of the first sub-zone so that it follows the vessel and to acquire two detection signals at different positions "since the location from which signal is acquired is governed by the position of the first sub-zone." Id. at 5---6. Appellants argue that "Gleich-I and Gleich-2 . .. fail to describe, teach or suggest the aforementioned limitations of claims 1, 11 and 12;" specifically, the steps of "controlling the changing of the position in space of the first sub-zone so that it follows the vessel" and "acquiring at least two detection signals at different positions of the first sub-zone along the vessel." Appeal Br. 14. Appellants argue that "Gleich-3 describes a local superimposition of the variable magnetic field on the imaging magnetic field as an imaging magnetic field is statically imaging the vessel within the region of action whereby the variable magnetic field facilitates a static local viewing" but "fails to describe, teach or suggest a control of a changing of a position in space of the first sub-zone of the imaging magnetic field so that the first sub- zone follows the vessel." Id. at 15. Appellants conclude that the cited 5 Appeal2017-005828 Application 13/133,742 references do not render obvious all of the limitations of claims 1, 11, and 12. Id. at 16. We agree with the Examiner, however, that the limitations of claim 11 would have been obvious to a person of ordinary skill in the art based on the cited references considered collectively. Appellants' Specification acknowledges that Gleich-I and Gleich-2 disclose a method of magnetic particle imaging that includes the first three steps of claim 11; specifically, "generating a magnetic selection field having a pattern in space of a magnetic field strength such that a first sub-zone having a low magnetic field strength and a second sub-zone having a higher magnetic field strength are formed in the region of action," "changing the position in space of the two sub-zones in the region of action by a magnetic drive field so that a magnetization of the magnetic material changes locally," and "acquiring detection signals, which detection signals depend on the magnetization in the region of action, which magnetization is influenced by the change in the position in space of the first and second sub-zones." See Spec. 1. Gleich-2 provides a helpful overview of magnetic particle imaging (MPI) technology. "MPI relies on ... the fact that the particle magnetization saturates at some magnetic field strength." Gleich-2 1214, left col. "If an oscillating magnetic field, called the 'modulation field', is applied, ... the magnetic material will exhibit a magnetization." Id. "If the magnetic particles are also exposed to a time constant magnetic field with a sufficiently large magnitude, they saturate. . . . In addition to the modulation field, a time-independent field is superimposed ... that vanishes in the centre of the imaging device (the field-free point, FFP) and increases 6 Appeal2017-005828 Application 13/133,742 in magnitude towards the edges. This field is called the 'selection field."' Id. "If there is any magnetic material at the position of the FFP it will produce a signal. . . . All other magnetic material remains in the state of saturation." Id. Gleich-2 states that, "[b ]y steering the FFP through the volume of interest, a tomographic image can be generated." Id. Gleich-2 summarizes the technique as follows: [T]o form an image, magnetic tracer material has to be applied to, or introduced into, the object. The object is placed in the selection field, and a weak magnetic modulation field is superimposed. Finally the object is moved (spatial encoding) to discrete positions and the magnitudes of the harmonics are recorded. An image of the magnetic tracer in the object is directly obtained by mapping the magnitude of the harmonics. Id. at 1214--1215. Thus, Gleich-2 provides evidence that generating an image using MPI requires moving the FFP through the volume of interest for imaging. As relevant to claim 11, Gleich-2 also states that "[ t ]he mechanical movement is dispensable if three additional orthogonal homogenous magnetic fields, called drive fields, are provided .... By driving each coil pair with a predefined current waveform, the FFP can be moved on a continuous trajectory over the object." Id. at 1215, left col. In summary, therefore, Gleich-2 states that MPI produces an image based on a signal that is produced by magnetic material at the field-free point (FFP) that is created when a selection field is superimposed on a modulation field, and that by moving the FFP through the volume of interest for imaging ( either by moving the object being imaged or by using drive fields to shift the position of the FFP), an image of the entire volume of interest can be generated. 7 Appeal2017-005828 Application 13/133,742 Gleich-3 discloses a method that includes "[g]eneration of an imaging magnetic field with a spatial distribution of the magnetic field strength such that the area of examination consists of a first sub-area with lower magnetic field strength and a second sub-area with a higher magnetic field strength," changing the spatial location of the two sub-areas, acquiring signals that depend on the magnetization influenced by this change, and evaluating the signals to get information about their spatial distribution. Gleich-3 ,r,r 6-9. Gleich-3 states that, in one embodiment, "the magnetic particles are administered to the examination area in an agglomerated state and the varying magnetic field is applied locally to only a part of the examination area." Id. ,r 45. In this way, "it is possible to introduce responsive magnetic particles in only a selective part of the examination area and to subsequently follow the development in time and space of the magnetic particles from that selected area." Id. Gleich-3 states that "it is possible to locally switch on in an active responsive state a part of the administered magnetic particles for example in a blood vessel and see how these particles move with the blood stream in the organism." Id. Thus, Gleich-3 suggests using MPI to track how magnetic particles move with the blood stream in a blood vessel. Based on this suggestion, it would have been obvious to use the MPI technique disclosed by Gleich- I or Gleich-2 to track the movement of magnetic particles in a blood vessel. Because Gleich-2 states that MPI generates an image based on signals generated by magnetic material at the FFP, and the FFP must be moved through the volume of interest in order to image that volume, it would have been obvious to move the FFP (first sub-zone having a low magnetic 8 Appeal2017-005828 Application 13/133,742 strength) along the length of the blood vessel (the volume of interest) in order to track the movement of magnetic particles in the blood vessel as they move with the blood stream, based on the suggestion of Gleich-3. Roy discloses that "[ t ]he measurement of cardiac output ... provides important information about the effectiveness of the heart as a pump and of blood circulation." Roy 1: 6-9. "Thermodilution is ... used to obtain cardiac output. With this technique, a ... bolus of cold saline is injected into the right atrium ... and produces a temperature change which is detected by the thermistor. From this, a thermodilution curve can be plotted, and the shape of the curve depends on the flow rate." Id. at 1: 13-24. Roy discloses a method for measuring cardiac output "using the natural change in phase of variations in blood temperature." Id. at 1:61---64. "To update the cardiac output measurement, the temperature of the blood is sensed at two spaced locations within the circulatory system." Id. at 2:23- 25. "This temperature information is processed in a known manner to provide a signal which is related to the velocity of the blood traveling between the two locations. This signal may be related to, for example, the length of time required for the blood to travel between these locations." Id. at 2:37--42. Thus, Roy teaches that blood velocity can be determined by taking measurements at two spaced locations in the circulatory system and determining blood velocity based on the length of time required for blood to travel between those locations. Roy also teaches that blood velocity can be used to assess cardiac output. 9 Appeal2017-005828 Application 13/133,742 Therefore, it would have been obvious to use the method taught by Gleich- I or Gleich-2 to track movement of magnetic particles with the blood stream, as suggested by Gleich-3, and acquire detection signals at two different positions, in order to measure blood velocity based on the time the particles take to move between the two positions, as taught by Roy. Roy provides a reason to use the method of Gleich- I or Gleich-2 in this way, because Roy discloses that blood velocity can be used as a measure of cardiac output, which provides important information about the heart's effectiveness as a pump. In summary, we conclude that the method of claim 11 would have been obvious based on the disclosures of Gleich-I or Gleich-2, Gleich-3, and Roy. Claims 1 and 12 fall with claim 11. 37 C.F.R. § 4I.37(c)(l)(iv). With respect to claims 2, 10, 13, 16, 17, and 20, Appellants reproduce the additional limitations of the dependent claims, Appeal Br. 17-18, and argue that the cited references "fail[] to render obvious the aforementioned limitations of [the] dependent claims." Id. at 19-20. However, "[t]he Board [has] reasonably interpreted Rule 41.3 7 to require more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art." In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011). Thus, claims 2, 10, 13, 16, 17, and 20 fall with claim 11. 37 C.F.R. § 4I.37(c)(l)(iv). SUMMARY We affirm the rejection on appeal. 10 Appeal2017-005828 Application 13/133,742 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 11 Copy with citationCopy as parenthetical citation