Ex Parte Keglovich et al

Patent Trial and Appeal Board

Mar 25, 2013

11562753 (P.T.A.B. Mar. 25, 2013)

UNITED STATES PATENT AND TRADEMARKOFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
11/562,753 11/22/2006 Mike Keglovich SCHWP0269USA 9737
46140 7590 03/25/2013
DON W. BULSON (BRAI)
RENNER, OTTO, BOISSELLE & SKLAR, LLP
1621 EUCLID AVENUE - 19TH FLOOR
CLEVELAND, OH 44115
EXAMINER
REMALY, MARK DONALD
ART UNIT PAPER NUMBER
3777
MAIL DATE DELIVERY MODE
03/25/2013 PAPER
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.
PTOL-90A (Rev. 04/07)
` UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte MIKE KEGLOVICH and CHRISTOPH PEDAIN
__________

Appeal 2011-009325
Application 11/562,753
Technology Center 3700
__________

Before ERIC GRIMES, LORA M. GREEN and ERICA A. FRANKLIN,
Administrative Patent Judges.

GREEN, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134 from the
Examiner’s rejection of claims 1, 2, 4, 5, and 7-16. We have jurisdiction
under 35 U.S.C. § 6(b).
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Application 11/562,753

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STATEMENT OF THE CASE
Claim 1 and 11 are the independent claims on appeal, and read as
follows:
1. A medical tracking system, comprising:
a localization system operative to define a coordinate system;
a computer operative to assign absolute and/or relative positions to
medical instruments in the coordinate system;
at least one localizable gamma camera operative to detect gamma
radiation emitted from a tracer material, wherein absolute and/or relative
positions of the gamma camera in the coordinate system are assignable by
the computer; and
at least one medical instrument including a marker detectable by the
gamma camera.

11. A tracking method in a medical environment, comprising:
spatially localizing at least one gamma camera, said gamma camera
operative to detect gamma radiation emitted from a tracer material;
assigning via computer assistance absolute and/or relative positions of
said gamma camera in a coordinate system; and
using data collected by the at least one gamma camera to localize an
instrument or a part of an instrument by detecting a tracer material on or
attached to said instrument, the tracer material emitting gamma radiation.

The following ground of rejection is before us for review:
Claims 1, 2, 4, 5, and 7-16 stand rejected under 35 U.S.C. § 103(a) as
being rendered obvious by the combination of Kimchy1 and Bucholz.2
We reverse.

1 Kimchy et al., Patent Application Pub. No. US 2004/0015075 A1, Jan. 22,
2004.
2 Bucholz, US Patent No. 6,076,008, June 13, 2000.
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ANALYSIS
The Examiner finds that Kimchy teaches a medical tracking system
that includes “at least one localizable gamma camera operative to detect
gamma radiation emitted from a tracer material (see ¶0123; and ¶0167)”
(Ans. 3). The Examiner finds, relying on ¶167 of Kimchy, that Kimchy
taught that “it would be obvious to use any kind of sensor system for
position tracking of the gamma camera for localization” (id. at 3-4).
Kimchy is drawn to a “radioactive emission detector equipped with a
position tracking system” (Kimchy, p. 1, ¶1). According to Kimchy, the
invention is “useful for calculating the position of a concentrated
radiopharmaceutical in the body in positional context of imaged portions of
the body” (id.). Kimchy thus teaches:
a method for defining a position of a radioactivity emitting
source in a system-of-coordinates. The method is effected by
(a) providing a radioactive emission detector which is
connected to or communicating with a position tracking system;
and (b) monitoring radioactivity emitted from the radioactivity
emitting source, while at the same time, monitoring the position
of radioactive emission detector in the system-of-coordinates,
thereby defining the position of the radioactivity emitting
source in the system-of-coordinates.

(Id. at 11, ¶123.)
Kimchy teaches further:
A position sensor 204 is provided for sensing the position
of radiation probe 202. Position sensor 204 may be physically
attached to radiation probe 202, or may be distanced therefrom.
Position sensor 204 transmits the sensed position data to a
position tracking system 206. Position tracking system 206
may be a system like position tracking system 24, described
hereinabove with reference to FIG. 1, and position sensor 204
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may be any kind of sensor applicable for such position tracking
systems.

(Id. at 15, ¶167).
The Examiner finds that Kimchy does not “explicitly teach attaching
the radioactive emitting source/marker to a medical instrument” (Ans. 3).
The Examiner finds that Bucholz teaches “a medical tracking system
where an acoustic or optical source/marker is attached to a medical
instrument (see column 6, lines 4-17; and column 10, lines 26-49)” (id.).
Bucholz is drawn to “a system which can determine the position of a
probe within an object and display an image corresponding to the
determined position” (Bucholz, col. 1, ll. 49-51). The system includes a
reference means located outside of the object and a probe that includes a tip,
wherein the system determines the position of the tip relative to the
reference means (id. at col. 1, l. 65-col. 2, l. 1).
Bucholz teaches that the tip of the probe may be determined using, for
example, sound emitters and microphone detectors, which are used to
determine the position of the probe relative to a reference point, such as a
ring on the patient’s head (id. at col. 6, ll. 4-13). Bucholz also teaches the
use of infrared light in place of sound (id. at col. 10, ll. 6-10). Bucholz
teaches that at least two infrared emitters are placed on the probe, and are “in
line and immediately below the surgeon’s line of sight so that the line of
sight is not blocked” (id. at col. 10, ll. 26-36). According to Bucholz:
During surgery, the line of sight between some of the emitters
545 and the array 552 may be blocked by a surgical hose or
other object. This could temporarily prevent array 552 from
detecting the position of bar 548. Accordingly, it is preferable
to place more than three emitters (e.g., seven or eight emitters)
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on bar 548 so that the line of sight for at least three emitters is
always maintained. Such additional emitters can also be used
to more precisely locate the position of bar 548. Bar 548 which
holds emitters 545 is also preferably positioned slightly away
from head 394 for increased clearance around head 394 and to
reduce the number of instances where the line of sight between
emitters 545 and array 552 is blocked.

(Id. at col. 10, ll. 41-53.)
The Examiner concludes that it would have been obvious to the
ordinary artisan to “combine the radiation tracking system of Kimchy [ ]
with the instrument tracking system of Bucholz for the combined benefit of
instrument and marker tracking using radiation when a direct line of sight is
not possible or affective [sic]” (Ans. 4).
Appellants argue that neither Kimchy nor Bucholz teaches the use of a
gamma camera to determine the position of a medical instrument (App. Br.
7). Appellants further assert that even if the ordinary artisan were to
combine Bucholz with Kimchy, one would not arrive at the claimed
invention (id. at 8). According to Appellants, the “logical result” of the
combination would be to use the acoustic or optical tracking system that
Kimchy uses to track the position of the gamma camera to acoustically or
optically track the emitters of Bucholz attached to the probe (id.).
Appellants also argue that ¶ 167 of Kimchy does not support the Examiner’s
rejection, as that paragraph is drawn to tracking of the gamma camera, and
does not suggest using a gamma camera to determine the position of the
instrument (id. at 9).
We agree with Appellants that the Examiner has failed to establish
that the combination of Kimchy and Bucholz renders the claimed tracking
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system and method prima facie obvious for the reasons set forth by
Appellants above. Specifically, ¶ 167 of Kimchy deals with tracking the
gamma camera, and not tracking an instrument using the gamma camera.
The Examiner has not provided any reason as to why the ordinary artisan
would have added a radioactive tracer to the probe of Bucholz in order to
use the gamma camera of Kimchy to track the probe, as Kimchy uses a
gamma camera to determine the location of concentrated
radiopharmaceuticals. We thus reverse the rejection.

REVERSED

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