Ex Parte Krugman et al

Patent Trial and Appeal Board

Nov 17, 2016

12260811 (P.T.A.B. Nov. 17, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/260,811
90039 7590
Covidien LP
Attn: IP Legal
5920 Longbow Drive
Mail Stop A36
10/29/2008
11/21/2016
Boulder, CO 80301-3299
FIRST NAMED INVENTOR
Kimberly Krugman
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.
H-US-00902 (1850-29) 3341
EXAMINER
PENG, BO JOSEPH
ART UNIT PAPER NUMBER
3768
NOTIFICATION DATE DELIVERY MODE
11/21/2016 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):
mail@cdfslaw.com
SurgicalUS@covidien.com
medtronic_mitg-si_docketing@cardinal-ip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KIMBERLY KRUGMAN
and CASEY M. LADTKOW
Appeal2015-002505
Application 12/260,811
Technology Center 3700
Before JAMES P. CAL VE, GEORGE R. HOSKINS, and
FREDERICK C. LANEY, Administrative Patent Judges.
CAL VE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from the final rejection of
claims 1-14. See Br. 9. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
Appeal2015-002505
Application 12/260,811
CLAIMED SUBJECT MATTER
Claim 1, the sole independent claim, is reproduced below.
1. A method for determining a volume of ablated tissue
compnsmg:
supplying energy from at least one electrode to tissue to
create a tissue ablation volume;
indicating an axis within the tissue ablation volume based
on a trajectory of the at least one electrode inserted through the
tissue ablation volume;
simulating slicing of the tissue ablation volume
transverse to the axis to obtain a plurality of simulated slices of
the tissue ablation volume, each of the plurality of simulated
slices of the tissue ablation volume having a thickness, a cross-
sectional perimeter, and a trajectory point defined by the axis;
determining a volume of each of the plurality of
simulated slices of the tissue ablation volume based on the
trajectory point, the cross-sectional perimeter, and the thickness
of each simulated slice of the tissue ablation volume; and
summing the volumes from each of the plurality of
simulated slices of the tissue ablation volume to obtain the
volume of the ablated tissue.
REJECTIONS 1
Claims 1, 3-8, and 10-14 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Rittman, III (US 6,575,969 Bl, iss. June 10, 2003)
("Rittman"), Butz ("Pre- and Intra-operative Planning and Simulation of
Percutaneous Tumor Ablation," Third International Conference on Medical
Image Computing and Computer Assisted Intervention, Pittsburgh, PA, Oct.
11-14, 2000, 317-326) (hereinafter "Butz"), and Vass (US 2005/0197568
Al, pub. Sept. 8, 2005).
1 The Examiner withdrew the rejection of claim 1 under 35 U.S.C. § 112,
first paragraph, for lack of written description. See Ans. 10.
2
Appeal2015-002505
Application 12/260,811
Claims 2 and 9 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Rittman, Butz, Vass, and Woloszko (US 7,429,262 B2, iss. Sept. 30,
2008).
ANALYSIS
Claims 1, 3---8, and 10-14 as unpatentable over Rittman, Butz, and Vass
Regarding claim 1, the Examiner found that Rittman teaches a method
for determining a volume of ablated tissue, including supplying energy from
an electrode to create a tissue ablation volume, indicating an axis within the
tissue ablation volume based on a trajectory of the electrode, and simulating
slices of the tissue ablation volume, but fails to teach explicitly simulating a
plurality of slices of tissue ablation volume substantially perpendicular to the
axis and having a thickness, cross-section perimeter, and trajectory point that
is defined by the axis and "determining a volume of each of the plurality of
simulated slices of tissue ablation volume." Final Act. 4--5, 6.
Appellants argue that there is no teaching in Rittman of obtaining a
volume of even a single slice of a created tissue ablation volume, much less
simulating the slicing of the tissue ablation volume transverse to the axis to
obtain a plurality of simulated slices, as claimed. Appeal Br. 6-7. Instead,
Appellants argue that Rittman only describes providing a clinician with a
visual appreciation of the size of the total heat ablation volume. Id. at 7.
Appellants argue that Butz and Vass do not remedy these deficiencies
of Rittman. Id. Appellants argue that Butz teaches pre-operative simulation
software that uses a 3D slicer to visualize 2D slices of a 3D MR scan, but
does not obtain a volume of even a single slice. Id. Appellants argue that
Vass describes how to display and store medical images that may be stacked
together but does not determine a tissue ablation volume. Id. at 7-8.
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Appeal2015-002505
Application 12/260,811
The Examiner has not established by a preponderance of evidence that
Rittman, Butz, and Vass teach or suggest a method of determining a volume
of ablated tissue by obtaining plural simulated slices of the tissue ablation
volume having a thickness, cross-sectional perimeter, and trajectory point
defined by an axis, determining a volume of each simulated slice based on
the trajectory point, cross-sectional perimeter, and thickness of each slice,
and summing the volumes to obtain the volume of the ablated tissue. The
Examiner recognizes that Rittman simulates tissue ablation slices 916, 918,
but does not determine a volume of the slices based on a cross-sectional
perimeter, thickness, or trajectory point. Final Act. 4--5. The Examiner's
finding that Rittman obtains ablation volume from multiple CT slices that
have a thickness and cross-sectional perimeter such that it would have been
obvious to obtain ablation volume by summing the volume of each slice (id.
at 5---6) is not supported by a preponderance of evidence. Rittman visualizes
thermal ablation volumes via scanning and contrast materials (see Ans. 12),
but the 2D images of tomographic cuts/slices through the body 916, 918 do
not represent thicknesses or volumes of individual CT slices. See Rittman,
22:39---67, Fig. 9. The Examiner provides no basis for this determination.
Final Act. 4--6; Ans. 11-13. Rittman acquires image scan data and stores it
for access, rendering, and graphic representation, and the two-dimensional
images (slices 916, 918) can be fused together, overlaid, and manipulated in
3D. Rittman, 22:42---67. The Examiner has not explained how fusing such
2D slices to depict ablation volumes, e.g. by spacing slices 916, 918 in an
orthogonal direction as in Figure 9, teaches or suggests the calculation of the
thicknesses or volumes of individual slices, or the summing of volumes of
each slice to obtain tissue ablation volumes, as claimed.
4
Appeal2015-002505
Application 12/260,811
The Examiner's reliance on Butz to teach visualization of 2D planar
slices of 3D MR scans in orthogonal orientations (Final Act. 6; Ans. 13)
does not teach or suggest these limitations either. The Examiner has not
explained how Butz's visualization of ablated volumes based on 2D slices
requires calculations of the perimeters, thicknesses, or volumes of the slices.
Nor does Butz's use of 2D slices to render 3D scenes of a patient's anatomy
via a 3D Slicer (Butz, 3 (§ 2.1 )) and check the ablated volumes (Ans. 13)
necessarily teach or suggest the calculation of perimeters and volumes of the
slices, or the summing of slice volumes to obtain tissue ablation volumes.
The Examiner's finding that Vass obtains tissue volume by summing
or stacking targeted slices (Ans. 14; Final Act. 6-7) is not supported by a
preponderance of evidence. Appeal Br. 7-8. Vass teaches that 2D image
slices taken by a CT scan are formed of pixels and are stacked together
where each pixel corresponds to a small volume of tissue called a voxel.
Vass i-f 4 7. The Examiner has not explained how this disclosure teaches or
suggests the calculation of the volume of each slice, or the calculation of
tissue ablation volumes by summing the volumes of individual 2D image
slices (Ans. 14) when Vass provides 3D anatomical models to facilitate
atrial fibrillation ablation and therapy, e.g., by scarring the heart's surface or
by emplacing leads in the heart. See Vass i-fi-16-23, 45--47, 66, 74--76.
Thus, we do not sustain the rejection of claims 1, 3-8, and 10-14.
Claims 2 and 9 as unpatentable over Rittman, Butz, Vass, and Woloszko
The Examiner's reliance on W oloszko to teach using electro surgical
energy (claim 2) and removal of ablated tissue (claim 9) does not overcome
the deficiencies of Rittman, Butz, and Vass as to claim 1 from which claims
2 and 9 depend. Thus, we do not sustain the rejection of these claims.
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Appeal2015-002505
Application 12/260,811
DECISION
We reverse the rejections of claims 1-14.
REVERSED
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