Ex Parte Gotte et al

Patent Trial and Appeal Board

Jun 16, 2014

11621674 (P.T.A.B. Jun. 16, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte HUBERT GOTTE and MARTIN IMMERZ
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Appeal 2012-001838
Application 11/621,674
Technology Center 2100
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Before CARLA M. KRIVAK, HUNG H. BUI, and CATHERINE SHIANG,
Administrative Patent Judges.

BUI, Administrative Patent Judge.

DECISION ON APPEAL
Appellants1 seek our review under 35 U.S.C. § 134(a) of the
Examiner’s final rejection of claims 1-16. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.2

1 The real party in interest is Brainlab AG.
2 Our decision refers to Appellants’ Appeal Brief filed April 22, 2011
(“App. Br.”); Examiner’s Answer mailed July 6, 2011 (“Ans.”); Final Office
Action mailed July 15, 2010 (“Final Rej.”); and the original Specification
filed January 10, 2007 (“Spec.”).
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Application 11/621,674

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STATEMENT OF THE CASE
Appellants’ Invention
Conventional surgical procedures for knee joints require implantation
of multiple marker arrays, i.e., a femur marker array and a tibia marker
array, to determine particular locations associated with various parts of a
patient’s leg such as tibia and femur. Spec. 1:12-15. However, the implants
of these marker arrays can be highly invasive. Accordingly, Appellants’
invention seeks to determine a femur head center location of a patient’s leg
using only a marker array attached to a tibia, shown in FIG.1a. Id. at 1:30-
31. A femur marker array can be omitted to minimize trauma on the femur
and to improve accessibility of the limited space within the knee joint during
surgical procedures. Id. at 6:1-6.
Appellants’ FIG. 1a is reproduced below.

FIG. 1a shows a tibia marker array (TM), femur center of rotation,
and camera tracking system (C).
As shown in FIG. 1, a kinematical model of a leg shows how a femur
head center location using a marker array (TM) attached to the tibia or
attached to the leg using Velcro is determined without performing surgery.
The femur head center location then provides a navigational guide to tibia
and femur implant surgical cuts. Id. at 2 and 7-8.
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Claims on Appeal
Claims 1, 8, and 12 are the independent claims on appeal. Claims 1
and 8 are illustrative of Appellants’ invention and are reproduced below with
disputed limitations emphasized:
1. A method for localizing a femur head center of a leg
having a femur and a tibia defining a knee, said knee modeled as a
joint having at least one degree of freedom, the method using only a
marker array attached to the tibia, comprising:
using a geometrical model to describe kinematical behavior of
the joint, said geometrical model including joint elements and a
geometrical description of a position and orientation of the joint
elements;
using a tracking system and the marker array attached to the
tibia to acquire data corresponding to motion of the tibia within a
predetermined range of motion, wherein the femur head center is
positionally fixed with respect to a coordinate system of the tracking
system;
calculating positions and orientations of the geometrical model
to fit the acquired of motion of the tibia;
calculating a location of the femur head center from the
calculated positions and/or orientations of the geometrical model; and
outputting the location of the femur head center.

8. A method for localizing a femur head center of a leg
having a femur and a tibia defining a knee, said knee modeled as a
joint having at least one degree of freedom, the method using only a
marker array attached to a tibia, comprising:
modeling the joint as a kinematical chain of data;
calculating from the model and data from the marker array a
position of a point with respect to a flexion axis of the joint such that
the point has a perpendicular distance di from the flexion axis, and
such that lines of movement of the point coincide in a single point,
wherein the single point is considered as the femur head center; and
outputting a location of the femur head center.

Appeal 2012-001838
Application 11/621,674

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Evidence Considered
Reinbolt et al. (Reinbolt), Determination of patient-specific multi-joint
kinematic models through two-level optimization, 38 J. BIOMECHANICS, 621-
626 (2005).
S. David Stulberg et al., Computer-assisted Total Knee Replacement
Arthroplasty, 10 OPERATIVE TECHNIQUES IN ORTHOPAEDICS, 25-39 (2000).

Examiner’s Rejection
Claims 1-16 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Reinbolt and Stulberg. Ans. 5-16.

Issue on Appeal
Based on Appellants’ arguments, the dispositive issue on appeal is
whether the Examiner erred in rejecting claims 1-16 under 35 U.S.C.
§ 103(a) as being unpatentable over Reinbolt and Stulberg. In particular, the
appeal turns on:
(1) Whether the Examiner’s combination of Reinbolt and
Stulberg discloses a “method using only a marker array attached to the
tibia” as recited in Appellants’ independent claims 1, 8, and similarly
claim 12. App. Br. 6-15 and 20; Reply Br. 1-9;

(2) Whether the Examiner’s combination of Reinbolt and
Stulberg discloses “lines of movement of the point coincide in a single
point” as recited in Appellants’ independent claims 8 and 12. App.
Br. 20-22; Reply Br. 15-17;

(3) Whether the Examiner’s combination of Reinbolt and
Stulberg discloses “the joint has only a single degree of freedom” as
recited in Appellants’ dependent claim 3. App. Br. 15-17; Reply Br.
10-12;

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(4) Whether the Examiner’s combination of Reinbolt and
Stulberg discloses “moving the tibia, femur and/or knee to a fixed or
reproducible flexing position to restrict at least one degree of
movement of the knee” as recited in Appellants’ dependent claims 5
and 10. App. Br. 17-18 and 23-24; Reply Br. 13-14 and 18-19;

(5) Whether the Examiner’s combination of Reinbolt and
Stulberg discloses “calculating the distance di includes computing a
position of the single point relative to the marker array attached to the
tibia” as recited in Appellants’ dependent claims 13-14. App. Br. 24-
25; Reply Br. 20-24; and

(6) Whether the Examiner’s combination of Reinbolt and
Stulberg discloses “computing a position and orientation of the femur
head center location relative to the marker array attached to the tibia”
as recited in Appellants’ dependent claim 15. App. Br. 26-27; Reply
Br. 24-26.

ANALYSIS
With respect to independent claim 1, and similarly, independent
claims 8 and 12, the Examiner finds Reinbolt discloses a similar system and
method of applying kinematic modeling to determine an optimized knee/hip
joint center using a single marker array attached to tibia, as claimed. Ans. 5-
6 (citing Reinbolt, FIG. 2 and FIG. 3).
FIG. 2 and FIG. 3 of Reinbolt are reproduced below with additional
markings for illustration.
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FIG. 2 FIG. 3

FIG. 2 and FIG. 3 of Reinbolt show a single marker array located at
the tibia.

Appellants acknowledge Reinbolt teaches using a marker array
attached to both the tibia and the femur, i.e., (1) a marker array attached to
the tibia and (2) another marker array attached to the femur. App. Br. 9
(citing Reinbolt, p. 622, col. 1, l. 21 – p. 623, col. 2, l. 5; and FIG. 2.)
Nevertheless, Appellants contend the Examiner’s combination of Reinbolt
and Stulberg does not disclose “using only a marker array attached to the
tibia.” App. Br. 6-15 and 20; Reply Br. 1-9. According to Appellants, the
claim term “using only a marker array attached to the tibia” when interpreted
in light of Appellants’ Specification means using only a marker array
directly attached to the tibia, and not a marker array indirectly attached to
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the tibia via a knee joint, or any other marker array attached to the femur, as
also disclosed by Reinbolt. App. Br. 12-14 (citing Spec. 6:1-6.) In other
words, when interpreted in light of Appellants’ Specification, the claim term
“using only a marker array attached to the tibia” precludes the use of marker
arrays other than a marker array directly attached to the tibia, i.e., use of a
marker array attached to the femur, as Appellants contend. Reply Br. 6-10.
We disagree with Appellants. At the outset, we note “[t]he
transitional term ‘comprising’ . . . is inclusive or open-ended and does not
exclude additional, unrecited elements or method steps.” Georgia-Pacific
Corp. v. U.S. Gypsum Co., 195 F.3d 1322, 1327 (Fed. Cir. 1999) (citing
MPEP § 2111.03 (6th ed.1997)). “A drafter uses the term ‘comprising’ to
mean ‘I claim at least what follows and potentially more.’” Vehicular
Techs. Corp. v. Titan Wheel Int'l, Inc., 212 F.3d 1377, 1383 (Fed. Cir. 2000);
see also Genentech, Inc. v. Chiron Corp., 112 F.3d 495, 501 (Fed. Cir. 1997)
(“‘Comprising’ is a term of art used in claim language which means that the
named elements are essential, but other elements may be added and still
form a construct within the scope of the claim.”). Accordingly, Appellants’
claim 1 does not preclude any other sensor, i.e., other marker arrays attached
to any other parts, such as femur or pelvis or other body part, as correctly
found by the Examiner. Ans. 17 (citing Reinbolt, p. 623, col. 1; and FIG. 2.)
Moreover, as further acknowledged by Appellants, Reinbolt also discloses
the use of a single marker array attached to the tibia. App. Br. 9 (citing
Reinbolt, FIG. 2.). Consequently, we find the Examiner’s combination of
Reinbolt and Stulberg discloses “using only a marker array attached to the
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tibia” as recited in Appellants’ independent claim 1 and similarly recited in
Appellants’ independent claims 8 and 12.
For the reasons set forth above, Appellants have not persuaded us of
any error in the Examiner’s rejection of independent claims 1. Accordingly,
we sustain the Examiner’s obviousness rejection of claim 1.
With respect to independent claims 8 and 12, Appellants further argue
the Examiner’s combination of Reinbolt and Stulberg does not disclose
“‘calculating from the model and data from the marker array a [position of a
point] . . . such that lines of movement of the point coincide in a single point,
wherein the single point is considered the femur head center.’” App. Br. 20-
22.
We disagree with Appellants. At the outset, we note the claim term
“lines of movement of the point coincide in a single point” is neither defined
in Appellants’ claims nor Appellants’ Specification. In the absence of such
an explicit definition, the Examiner may adopt the broadest reasonable
definition of the term consistent with the Specification. In re Morris, 127
F.3d 1048, 1053-54 (Fed. Cir. 1997). In the instant appeal, the Examiner has
broadly interpreted the claim term “lines of movement of the point coincide
in a single point” as encompassing Reinbolt’s disclosed marker distances to
hip only or marker distances to knee only with three types of movement
data. Ans. 10 (citing Reinbolt, Table 2; also see Reinbolt, Table 1.). We
find the Examiner’s broad interpretation of the claim term is reasonable and
consistent with Appellants’ own Specification. See Appellants’ FIG. 3.
Additionally, we find Reinbolt discloses a method of optimizing an
individual joint to determine a knee/hip joint center with a patient’s
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experimental movement data and kinematic modeling, where different joint
parameters are required to define the knee/hip joint center, where joint
parameters are adjusted to degrees of freedom to fit a kinematic model to
experimental movement data, and where experimental movement data are
collected using surface markers and video-based motion analysis. See
Reinbolt, p. 622; FIG.1 and FIG.2. Reinbolt further discloses moving the
model through motions representative of the individual joint. Id. at p. 623.
Consequently, we find Reinbolt discloses “lines of movement of the point
coincide in a single point” as recited in Appellants’ independent claim 8, and
similarly recited in Appellants’ independent claim 12.
With respect to dependent claim 3, Appellants further argue the
Examiner’s combination of Reinbolt and Stulberg does not disclose “the
joint has only a single degree of freedom.” App. Br. 15-17. In particular,
Appellants argue Reinbolt’s disclosed “constrained movement” cannot
reasonably refer to restricting at least one degree of freedom such that the
joint only has a single degree of freedom, as recited in claim 3. Id. at 17.
We disagree with Appellants. As correctly found by the Examiner,
Reinbolt discloses a kinematic modeling with experimental movement data
where the knee joint is isolated at one degree of freedom. Ans. 23 (citing
Reinbolt, p. 622; also see FIG. 2.). Consequently, we find Reinbolt
discloses the disputed limitation of claim 3.
With respect to dependent claim 5, and similarly, dependent claim 10,
Appellants argue the combination of Reinbolt and Stulberg does not disclose
“moving the tibia, femur and/or knee to a fixed [or] reproducible flexing
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position to restrict at least one degree of movement of the knee.” App. Br.
17-18 and 23-24.
Again, we disagree with Appellants. As correctly found by the
Examiner, Reinbolt discloses a kinematic modeling with experimental
movement data where the knee joint is isolated at one degree of freedom.
Ans. 23-24 (citing Reinbolt, pp. 622; also see FIG. 2.). Consequently, we
find Reinbolt discloses the disputed limitation of claim 5, and similarly,
claim 10.
With respect to dependent claim 13, and similarly, dependent claim
14, Appellants argue the Examiner’s combination of Reinbolt and Stulberg
does not disclose “calculating the distance di includes computing the
position of the single point relative to the marker array attached to the tibia.”
App. Br. 24-25.
Again, we disagree with Appellants. We find Reinbolt discloses
determining marker distances to the hip only and marker distances to the
knee only with three types of movement data, and optimizing an individual
joint to determine knee/hip joint center with a patient’s experimental
movement data and kinematic modeling, where different joint parameters
are required to define the knee/hip joint center, where joint parameters are
adjusted to degrees of freedom to fit a kinematic model to experimental
movement data, and where experimental movement data are collected using
surface markers and video-based motion analysis. See Reinbolt, p. 622;
Table 1; FIG. 1 and FIG. 2. Consequently, we find Reinbolt discloses the
disputed limitation of claim 13, and similarly, claim 14.
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With respect to dependent claim 15, Appellants further argue the
Examiner’s combination of Reinbolt and Stulberg does not disclose
“computing a position and orientation of the femur head center location
relative to the marker array attached to the tibia.” App. Br. 26-27.
Again, we disagree. Reinbolt discloses optimizing joint parameters to
determine individual knee/hip joint centers with different positions and
orientations and determining a femur joint center at the hip where a marker
is placed at the femur. See Reinbolt, pp. 622 and 624; Table 1; FIG. 1. We
further find a skilled artisan would have been able to modify Reinbolt with
the teachings from Stulberg to determine the femur joint center location
relative to the marker array attached to the tibia instead of the femur in order
to achieve accurate placement of the bone-cutting perpendicular to the
mechanical axes of the femur and the tibia. See Stulberg, Abstract; pp. 27-
28. Consequently, we find the Examiner’s combination of Reinbolt and
Stulberg discloses the disputed limitation of claim 15.
With respect to dependent claims 2, 4, 6-7, 9, 11, and 16, Appellants
present no separate patentability arguments. For the same reasons discussed,
we also sustain the Examiner’s obviousness rejection of claims 2, 4, 6-7, 9,
11, and 16.

CONCLUSION
On the record before us, we conclude the Examiner has not erred in
rejecting claims 1-16 under 35 U.S.C. § 103(a).

Appeal 2012-001838
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DECISION
As such, we AFFIRM the Examiner’s final rejection of claims 1-16.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

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