Ex Parte Kolen et al

Patent Trial and Appeal Board

Jan 26, 2018

14362364 (P.T.A.B. Jan. 26, 2018)

United States Patent and Trademark Office
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.
14/362,364 06/02/2014 Alexander Franciscus Kolen 2011P01363WOUS 1773
24737 7590 01/30/2018
PTTTT TPS TNTFT T FfTTTAT PROPFRTY fr STANDARDS
EXAMINER
465 Columbus Avenue BRUTUS, JOEL F
Suite 340
Valhalla, NY 10595 ART UNIT PAPER NUMBER
3786
NOTIFICATION DATE DELIVERY MODE
01/30/2018 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 ALEXANDER FRANCISCUS KOLEN,
GODEFRIDUS ANTONIUS HARKS, and
STEVEN ANTONIE WILLEM FOKKENROOD
Appeal 2017-002486
Application 14/3 62,3 641
Technology Center 1600
Before RICHARD M. LEBOVITZ, JOHN E. SCHNEIDER, and
DAVID COTTA, Administrative Patent Judges.
LEBOVITZ, Administrative Patent Judge.
DECISION ON APPEAL
This appeal involves claims directed to an examination system, and
methods of using it, where the system comprises an interventional device,
ultrasound transducers, a display device, and a processing unit for
determining tissue contact information. The Examiner rejected the claims as
unpatentable under 35 U.S.C. § 103. We have jurisdiction under 35 U.S.C.
§ 6(b). The rejections are affirmed.
1 The Appeal Brief (“Appeal Br.”) 4 lists Boston Scientific Scimed, Inc., and
Koninklijke Philips N.V., as the real-parties-in-interest. The application
specification is referred to as “the Specification” in this decision.
Appeal 2017-002486
Application 14/362,364
STATEMENT OF THE CASE
Claims 1, 2, and 4—15 stand rejected by the Examiner as follows:
1. Claims 1, 5—11, and 13—15 under pre-AIA 35 U.S.C. § 103(a) as
obvious in view of Griffith et al. (US Pat. 4,841,977, iss. Jun. 27, 1989)
(“Griffith”), Miller et al. (US Pat. Appl. Pub. 2009/0177111 Al, publ. Jul. 9,
2009) (“Miller”), Lam et al. (US Pat. Appl. Pub. 2006/0253028 Al, publ.
Nov. 9, 2006) (“Lam”), and Ustuner et al. (US Pat. Appl. Pub.
2004/0006266 Al, publ. Jan. 8, 2004) (“Ustuner”). Examiner’s Answer
(“Ans.”) 3.
2. Claims 2, 4, 9, and 10 under pre-AIA 35 U.S.C. § 103(a) as
obvious in view of Griffith, Miller, Lam, Ustuner, and Altmann et al. (US
Pat. Appl. Pub. 2009/0148012 Al, publ. Jun. 11, 2009) (“Altmann”). Ans.
7.
3. Claim 12 under pre-AIA 35 U.S.C. § 103(a) as obvious in view of
Griffith, Miller, Lam, Ustuner, and Abraham (US Pat. Appl. Pub.
2010/0174189 Al, publ. Jul. 8, 2010) (“Abraham”). Ans. 10.
There are three independent claims on appeal: claim 1 is directed to
an examination system, claim 13 is directed to a method for organizing a
display device and for visualizing information obtained from a plurality of
ultrasound transducers at a plurality of ultrasound transducer positions, and
claim 14 is directed to a non-transitory computer readable storage medium.
2
Appeal 2017-002486
Application 14/362,364
Claim 1 is reproduced below:
1. An examination system for examining an associated
tissue sample, the examination system comprising
- an interventional device comprising:
- a plurality of ultrasound transducers, wherein different
ultrasound transducers within the plurality of ultrasound
transducers are arranged to obtain ultrasound information
packages from spatially different adjacent tissue sample regions
when the associated tissue sample is placed adjacent the
plurality of ultrasound transducers,
- a display device arranged for receiving and visualizing
the ultrasound information packages in spatially different
ultrasound display regions on the display device, wherein
relative spatial positions of the spatially different ultrasound
display regions match corresponding relative spatial positions
of the spatially different adjacent tissue sample regions and
wherein the examination system further comprises a
processing unit arranged for determining tissue contact
information packages based on the ultrasound information
packages, wherein the tissue contact information packages are
indicative of a level of tissue contact between the interventional
device and the associated tissue sample at ultrasound transducer
positions.
The Specification teaches that an interventional device “is generally
known in the art, and may include any one of the non-exhaustive list
comprising a catheter, a needle, a biopsy needle or an endoscope.” Spec.
4:13-15.
CLAIM INTERPRETATION
We begin with claim interpretation because before a claim can be
compared to the prior art, its scope must be interpreted.
3
Appeal 2017-002486
Application 14/362,364
Display device
Claim 1 comprises a display device. The claims recites that the
display is:
arranged for receiving and visualizing the ultrasound
information packages in spatially different ultrasound display
regions on the display device, wherein relative spatial positions
of the spatially different ultrasound display regions match
corresponding relative spatial positions of the spatially different
adjacent tissue sample regions ....
We agree with the Examiner that the claim does not require the
display to have a specific structure or configuration that enables it to
visualize the ultrasound information packages in spatially different adjacent
ultrasound regions. Ans. 11.
The claim recites that the display is “arranged for receiving and
visualizing the ultrasound information packages in spatially different
ultrasound display regions on the display device.” Claim 1. The
Specification defines a display device as a computer screen, computer
monitor, or light emitting units. Spec. 5:5-10. It also defines “receiving and
visualizing” as resulting in the visualization of an image of the ultrasound
information packages. Id. at 5: 11—16. However, no specific definition of
“arranged” appears in the Specification. Thus, we adopt its ordinary
meaning to put into desired or convenient order.2 The limitation requires
that the display receives and visualizes ultrasound packages “in spatially
different ultrasound display regions on the display device.” Claim 1. Thus,
we interpret this phrase to mean that the ultrasound packages are ordered on
the display screen in ultrasound regions.
2 http://www.dictionary.com/browse/arrange (accessed Dec. 30, 2017).
4
Appeal 2017-002486
Application 14/362,364
Ultrasound display regions
The claim recites that the display is “arranged for receiving and
visualizing the ultrasound information packages in spatially different
ultrasound display regions on the display device.” With respect to the
recited “ultrasound display regions,” the Specification discloses that the
display device “is capable of being spatially resolvable into different
ultrasound display regions.” Spec. 5:5—7. The Specification explains that “a
... set of vectors may describe the ultrasound display regions.” Id. at 5:26—
27. Thus, the ultrasound display regions can simply be defined positions on
the display region where an image is visualized.
It appears from the Specification that in certain embodiments the
ultrasound display regions may be graphic interfaces on the monitor (e.g.,
Spec. 13:27—31 describing Figure 9). However, neither claim 1 nor claim 13
require an interface on the display device.
Summary
In sum, we interpret a “display device” to be a computer monitor or
screen that is capable of receiving and displaying images of the ultrasound
information packages on different positions of the monitor or screen. The
positions “match corresponding relative spatial positions of the spatially
different adjacent tissue sample regions.” Claim 1. In other words, the
positions of the ultrasound packages on the monitor or screen “match” the
positions in the tissue from which the ultrasound packages were sampled.
5
Appeal 2017-002486
Application 14/362,364
Claims 13 and 14
Claim 13 recites:
visualizing the ultrasound information packages in spatially
different ultrasound display regions . . . wherein the relative
spatial positions of the spatially different ultrasound display
regions match a corresponding relative spatial positions of the
different adjacent tissue sample regions ....
Claim 14 comprises a similar limitation.
The only information required to be visualized by the claims is the
ultrasound information packages which must be displayed on different
ultrasound display regions of the display. Ultrasound display regions is
interpreted as above to mean different positions on the monitor.
The claim further requires that the positions of the ultrasound
packages on the display match to the corresponding tissue regions. In other
words, the visualized image on the display must show the ultrasound
packages at different positions of the monitor (ultrasound display regions)
and such packages (regions on the display) must have the same (“match”)
position as the tissue volume which corresponds to the package. Spec. 5:16—
28. Thus, the image of the ultrasound data has the same positional
coordinates as the tissue sampled region.
REJECTION 1
The Examiner found that Griffith teaches an interventional device
with a plurality of ultrasound transducers as claimed. Ans. 3. The Examiner
found that Griffith does not describe “a processing unit arranged for
determining tissue contact information packages based on the ultrasound
information packages” where “the tissue contact information packages are
indicative of a level of tissue contact between the interventional device and
6
Appeal 2017-002486
Application 14/362,364
the associated tissue sample at ultrasound transducer positions” as recited in
the claims. Id. at 4. However, the Examiner found that Miller discloses a
method to detect the degree of contact between a sensor and tissue. Id. The
Examiner determined it would have been obvious to one of ordinary skill in
the art to implement Miller in Griffith for the advantages described by Miller
(e.g., Miller || 6, 14). Ans. 6.
The Examiner found that while neither Griffith nor Miller expressly
mention the claimed limitation that the “spatial positions of the [spatially]
different ultrasound display regions match the corresponding relative spatial
positions of the [spatially] different adjacent tissue sample regions,” the
Examiner found that each of Lam and Ustuner disclose displaying such
information. Ans. 5.
Appellants contend that Miller does not describe tissue contact based
on ultrasound transducers and that neither Lam nor Ustuner teach the display
device limitations recited in the claims. Appeal Br. 12, 14, and 16.
Claim 1
Display limitation
In response to the Examiner’s finding that claimed display is generic
with no distinguishing structure and consequently met by the cited prior art
publications (Ans. 11), Appellants argue that the Examiner
overlooks the recited features of the display device which are
specifically arranged for providing spatially different ultrasound
display regions that correspond to spatial positions of the
spatially different adjacent tissue sample regions which are
imaged by different ultrasound transducers.
Reply Br. 6—7.
7
Appeal 2017-002486
Application 14/362,364
Appellants further state that “[t]hese features require specific structure
concerning the receipt, organization and display of the discrete ultrasound
information packages on the display in positions that relate to the positions
of the spatially different sample regions” but fail to identify what structures
are present in the display that enable it to receive, organize, and display the
information. Id. at 7.
Appellants have not pointed to disclosure in the Specification that
would clarify what structure of the display or display regions they mean, and
as discussed above in the Claim Interpretation section, we reviewed the
Specification and determined that no specific structure is required by the
claims. Accordingly, we conclude that the displays described in Lam and
Ustuner meet the display device requirements because, as found by the
Examiner, they are capable of receiving and displaying images of the
ultrasound information packages on different positions of the monitor or
screen. See Claim Interpretation section above, Summary.
Miller
Appellants state that “Miller fails to teach or suggest at least a system
which includes a processing unit arranged for determining tissue contact
information packages that are indicative of a level of tissue contact between
an interventional device and a tissue sample based on ultrasound information
packages.” Appeal Br. 16. Appellants contend that, instead, Miller
“discloses that the system may utilize electrodes and a localization field to
determine contact between a catheter and associated tissue.” Id.
This argument is not persuasive. Miller broadly discloses that its
method is suitable for sensors generally, and includes “ultrasound
transducers” in its sensor list. Miller 142. Appellants have focused solely
8
Appeal 2017-002486
Application 14/362,364
on the examples, without addressing the broader disclosure which appears in
Miller. The teachings of a prior art publication are not limited to its
preferred embodiments. In re Pfizer v. Apotex, Inc., 480 F.3d 1348, 1370
(Fed. Cir. 2007). “[T]he fact that a specific [embodiment] is taught to be
preferred is not controlling, since all disclosures of the prior art, including
unpreferred embodiments, must be considered.” In re Merck & Co., v.
Biocraft Laboratories, Inc., 874 F.2d 804, 807 (Fed. Cir. 1989). Appellants
contend that “Miller [is] completely silent with respect to utilizing
ultrasound information packages acquired by a plurality of ultrasound
transducers to determine a level of tissue contact.” Appeal Br. 17.
However, this statement is inconsistent with the broader disclosure in Miller
of ultrasound transducers.
Summary
For the foregoing reasons, the obviousness rejection of claim 1 is
affirmed. Dependent claims 5—11 and 15 fall with claim 1 because separate
arguments for their patentability were not provided. See 37 C.F.R.
§ 41.37(c)(l)(iv).
Claims 13 and 14
Independent claims 13 and 14 require:
visualizing the ultrasound information packages in spatially
different ultrasound display regions . . . wherein the relative
spatial positions of the spatially different ultrasound display
regions match a corresponding relative spatial positions of the
different adjacent tissue sample regions.
9
Appeal 2017-002486
Application 14/362,364
Lam publication
Appellants contend that the Examiner erred in finding claims 13 and
14 obvious because the “Lam system solely displays a single image of
ultrasound information packages from a single transducer that is moved over
a period of time.” Reply Br. 7. See also Appeal Br. 13. Appellants contend
that “each image containing the plurality of echogenic records in the Lam
system is generated on the display without any reference to a display region
that corresponds to the spatial position of the different tissue sample
regions.” Appeal Br. 13.
Appellants’ argument is not persuasive. As indicated by the
Examiner, Lam teaches utilizing a plurality of transducers. Lor example,
Lig. 3 A of Lam shows two transducers, although Lam expressly discloses
that any number can be used. Lam || 30, 32. Lam further discloses:
In one embodiment, echogenic data sets 503 for each transducer
112 and 114 are compiled into an image data set. Echogenic
data records 503 from corresponding angular positions in each
image data set are then combined, or blended, to form a
combined image data set. Data items 506 occurring at similar
depths and angular positions 504 are combined, or blended, in a
manner sufficient to produce a resulting blended data item.
Lam 139.
The blended data item preferably accurately represents the
tissue feature in relation to the other tissue features in image
501.
Lam 140.
As discussed in paragraphs 39 and 40 of Lam, the echogenic data
(“the ultrasound information packages” of claim 13) from the two
transducers, when displayed as an image, represents the tissue features (Lam
140) (“tissue sample region” of claim 13) “in relation” to other tissue
10
Appeal 2017-002486
Application 14/362,364
features (the “different adjacent tissue sample regions”). Thus, the compiled
image from the two transducers3 “match a corresponding relative spatial
positions of the different adjacent tissue sample regions” as required by the
claims because Lam teaches that the data “accurately represents the tissue
feature in relation to the other tissue features in image.” In other words, the
image of the ultrasound data has the same positional coordinates as the
sampled tissue regions, meeting the limitation of claims 13 and 14 as we
have interpreted these claims.
Appellants’ statement that “Lam is completely silent with respect to
spatially different ultrasound display regions on the display device which
match corresponding relative spatial positions of the spatially different
adjacent tissue sample regions” {id. at 14) is inconsistent with paragraph 40,
reproduced above, which expressly teaches representation of tissue features
in relation to other tissue features in image produced from two transducers
112 and 114. If Appellants mean to imply that the claims require that the
ultrasound display region is a graphic interface on the monitor as disclosed
in certain embodiments in the Specification (e.g., Spec. 13:27—31 describing
Figure 9), we have not been directed to any language in the claim that would
require such a feature (see Claim Interpretation section above).
3 Appellants state that “Lam system solely displays a single image of
ultrasound information packages from a single transducer”; however,
paragraph 39 of Lam states “echogenic data sets 503 for each transducer 112
and 114 are compiled into an image data set.” Thus, the image is produced
from two transducers.
11
Appeal 2017-002486
Application 14/362,364
Ustuner
Appellants contend that “Ustuner solely discloses a display that is
configured to generate a combined image of ultrasound images that have
been temporally and/or spatially aligned by a processor.” Appeal Br. 14—
15. Appellants state, with regard to paragraphs 42 and 47:
these portions of Ustuner solely disclose that the display is a
monitor or other device for generating an image wherein the
image is a combination of images which are spatially and
temporally aligned (Ustuner, ||42, 27). The spatial alignment
of an image is completely different from a display which
includes separate spatially different ultrasound display regions
that correspond to the relative spatial positions of the spatially
different adjacent tissue sample regions.
Id. at 15.
Appellants’ argument does not persuade us that the Examiner erred in
finding that Ustuner describes the claimed limitation.
Ustuner discloses that different transducers can be used for each
acoustic window in capturing ultrasound information. Ustuner | 50. Thus,
Ustuner describes “a plurality of ultrasound transducers” as required by the
claims.
Ustuner also teaches
The display 22 comprises a monitor or other device for
generating an image as a function of the combined images. The
image is responsive to the imaging parameters used for
acquiring the component images. By temporally and/or
spatially aligning images responsive to different acoustic
windows or different imaging parameters, high quality cardiac
imaging may be provided.
Ustuner 142.
The image is a representation of ultrasound data (Ustuner || 2, 23).
The acoustic window represents the area of interest being imaged. The
12
Appeal 2017-002486
Application 14/362,364
teaching in Ustuner that the images are spatially aligned responsive to
different acoustic windows (142 as reproduced above) meets the
“visualizing” limitation of claim 13, as we have interpreted it, because the
images (the “ultrasound information packages”) are visualized on the
monitor, the images are aligned to the acoustic windows, and the acoustic
windows have the same positional coordinates as the tissue sample region
they represent.
Appellants’ contention that the “spatial alignment of an image is
completely different from a display which includes separate spatially
different ultrasound display regions that correspond to the relative spatial
positions of the spatially different adjacent tissue sample regions” appears to
rely upon a limitation that does not appear in the claim. Appeal Br. 15.
Specifically, Appellants appear to be distinguishing the claim based on a
display which has “separate spatially different ultrasound display regions.”
However, we have interpreted such regions to simply be positions on a
screen or monitor. Thus, an image on a monitor, where the components of
the image are at different positions which correspond to the sampled tissue
volume, meets the claim limitation. Appellants appear to be requiring the
ultrasound regions to have a graphic structure, e.g., as shown in Figure 9 of
the Specification. However, as indicated above, we have not been directed
to language in the claim that would require it. Consequently, we conclude
that the claim limitation is met by Ustuner’s disclosure of “spatially aligning
images responsive to different acoustic windows or different imaging
parameters” on the display.
Appellants also argue that Ustuner does not describe “separate”
packages displayed on “separate” ultrasound display regions. Appeal Br. 15.
13
Appeal 2017-002486
Application 14/362,364
The term “separate” does not appear in the claims. It is unclear what is
missing from Ustuner when Ustuner’s image is made of different ultrasound
packages and such packages are in “spatially different” regions on the
display, namely “spatially aligning images responsive to different acoustic
windows” (Ustuner 142).
Summary
For the foregoing reasons, the obviousness rejection of claims 13 and
14 is affirmed.
REJECTIONS 2 AND 3
Appellants relied on the same argument for Rejection 1 that they did
for claims 1, 13, and 14. Consequently, the obviousness rejection of claims
2, 4, 9, 10, and 12 are affirmed for the same reasons.
DECISION
The Examiner’s rejections are affirmed.
TIME PERIOD
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
14