Ex Parte Li et al

Patent Trial and Appeal Board

May 7, 2018

14991428 (P.T.A.B. May. 7, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/991,428 01/08/2016 ShutianLi
14420 7590 05/09/2018
WOMBLE BOND DICKINSON (US) LLP / Accuray, Inc.
Attn: IP Docketing
P.O. Box 7037
Atlanta, GA 30537-7037
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.
Al02110.1880US.Cl 8859
EXAMINER
BALI, VIKKRAM
ART UNIT PAPER NUMBER
2667
NOTIFICATION DATE DELIVERY MODE
05/09/2018 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):
IPDocketing@wbd-us.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SHUTIAN LI, YE SHENG,
and
SO HAIL SAYED
Appeal2017-010635
Application 14/991,428
Technology Center 2600
Before CARLA M. KRIVAK, HUNG H. BUI, and JON M. JURGOV AN,
Administrative Patent Judges.
KRIVAK, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's final
rejection of claims 1-3, 7, 9-11, and 13-16. 1 We have jurisdiction under
35 U.S.C. § 6(b ).
We affirm.
1 Pending claims 4---6, 8, and 12 are not before us on appeal as the non-
statutory double patenting rejection based on US 9,248,312 is moot (Final
Act. 14--15; Ans. 12-13). A Terminal Disclaimer filed August 11, 2017,
was entered on August 11, 2017 (see Reply Br. 10-11; "Electronic Terminal
Disclaimer - Approved" (entered August 11, 2017)).
Appeal2017-010635
Application 14/991,428
STATEMENT OF THE CASE
Appellants' invention is directed to an apparatus and methods for
"tracking target movement in radiation treatment" and "automatically
control[ling] the timing of an image acquisition by an imaging system in
developing a correlation model of movement of a target within a patient"
(Spec. ,r 2; Abstract).
Claims 1, 2, and 10 are independent. Independent claim 2,
reproduced below, is exemplary of the subject matter on appeal.
2. A method, comprising:
automatically triggering, by a processing device, image
acquisition of a plurality of pretreatment images of a target,
wherein the plurality of pretreatment images are internal to a
patient, each of the plurality of pretreatment images acquired at
a specified time, wherein said automatically triggering the
plurality of pretreatment images comprises:
selecting a desired phase of a periodic cycle in
which to acquire an image;
automatically determining whether the target is in
the desired phase of the periodic cycle; and
sending a first command to trigger an imaging
system to acquire a first pretreatment image when the
target is in the desired phase of the periodic cycle;
sending second command to trigger the imaging
system to acquire a second pretreatment image; and
generating a correlation model distinguishing
between inspiration and expiration movements that maps
the movements of an external marker to a target location
of the target using the first and second pretreatment
images.
REFERENCES and REJECTION
The Examiner rejected claims 1-3, 7, 9-11, and 13-16 under
35 U.S.C. § 103(a) based upon the teachings of Schweikard (US 6,144,875;
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Application 14/991,428
issued Nov. 7, 2000) and Mostafavi (WO 03/003796 Al; published Jan. 9,
2003).
ANALYSIS
With respect to independent claims 1 and 2, Appellants contend the
Examiner's combination of Schweikard and Mostafavi does not teach or
suggest "automatically triggering, by a processing device, image
acquisition of a plurality of pretreatment images of a target" and "a
correlation model distinguishing between inspiration and expiration
movements" (App. Br. 5---6, 8; Reply Br. 6-8). Particularly, Appellants
argue Mostafavi' s "triggering the starting and stopping of application of the
radiation beam based on the gating thresholds" is not automatic triggering of
"image acquisition of a plurality of pretreatment images of a target" as
claimed (App. Br. 8 (emphases added)). Appellants argue Mostafavi teaches
the opposite of "automatically triggered" image acquisition because it
teaches "the recording of the video stream and ... the determination
and comparison of marker locations are initiated by a user" via "a
'RECORD' button that allows [the] user to record" (Reply Br. 6 (citing
Mostafavi Figs. 12B and 15)). Appellants also argue "the physiological
based triggering of Mostafavi cannot correspond to the [ claimed] feature
'automatically triggering, by a processing device, image acquisition' ...
because [Mostafavi' s] physiological based triggering relies on a pre-
existing correlation" in contrast to claims 1 and 2-in which "the
correlation model is generated using the pretreatment images" (Reply
Br. 7, 10). Appellants further argue the Examiner's combination of
Schweikard and Mostafavi lacks articulated reasoning and "is devoid of any
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analysis of how the suggested combination would obtain predictable
results" (Reply Br. 4--5; App. Br. 6-7). With regard to claim 2, Appellants
additionally argue Mostafavi does not teach or suggest "automatically
triggering" includes "selecting a desired phase of a periodic cycle in which
to acquire an image" and "automatically determining whether the target is in
the desired phase of the periodic cycle" (App. Br. 11). We do not agree.
We agree with and adopt the Examiner's findings as our own.
Particularly, we agree with the Examiner that Mostafavi automatically
triggers not only radiation treatment, but also pretreatment image
acquisition prior to radiation therapy (Ans. 15, 17 (citing Mostafavi 15:30-
16: 16; 23:4--12)). Particularly, Mostafavi's tracking of a marker block (an
external marker) "allows monitoring of the patient motion in diagnostic and
therapy imaging applications where image data acquisition is gated or
synchronized with periodic motion" which corresponds to "the motion and
phase of patient physiological activity," thereby "trigger[ing] image
acquisition . .. at specific points during [a] normal periodic cycle (e.g.,
breathing cycle)" (see Mostafavi 16:7-15 (emphases added)). For example,
a "phase of the physiological movement signal. ... from 30 degrees to 300
degrees" and a "'beam on' portion of the treatment interval" direct a switch
"to gate ... acquisition of images from the patient using an imaging device"
(see Mostafavi 19:19-23; 23:8-10 and 17-18; Figs. 3 and 9). Thus,
Mostafavi teaches selecting a desired phase of a periodic cycle in which to
acquire an image, and automatically determining whether the target is in the
desired phase (e.g., from 30 degrees to 300 degrees) of the periodic cycle, as
required by claim 2 (Ans. 16-17).
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We are also unpersuaded by Appellants' argument that Mostafavi' s
video recording "initiated by a user via a graphical user interface"
teaches the opposite of "automatically triggered" image acquisition as
claimed (Reply Br. 6, 10). The broadest reasonable interpretation of the
claim phrase "automatically triggering, by a processing device, image
acquisition," in light of Appellants' Specification, encompasses a user
requesting a processing device to acquire images at preselected phases in a
periodic breathing cycle, as also taught by Mostafavi (see Spec. ,r,r 51, 61;
see Mostafavi Fig. 9; Ans. 15-16).2
We are similarly unpersuaded by Appellants' argument that
Mostafavi' s physiological based triggering "cannot correspond to the
[ claimed] feature 'automatically triggering, by a processing device, image
acquisition' ... because [Mostafavi' s] physiological based triggering
relies on a pre-existing correlation" between the external marker and the
2 Appellants' Specification describes a "user interface 901 is a graphical
user interface (GUI) that includes an 'Acquire' button" and "a window with
a generic graph of the respiratory cycle with multiple input devices ( e.g.,
radio input buttons) to select a phase (e.g., location) of the respiratory
cycle," to "help a user achieve automatic modeling with substantially
evenly-distributed images of the target during the respiratory cycle with
minimal user interaction" (Spec. ,r 61 ). "[T]he operator selects a desired
location on the respiratory cycle 600 by clicking a model point, and clicks
on the button (e.g., 'Acquire' button) in the user interface, and the system
automatically controls the timing of the X-ray image acquisition to add a
model point at the user-selected desired location" (Spec. ,r 51 ( emphases
added)). Thus, "[u]pon selecting the 'Acquire' button, the user interface 901
sends an acquire command to the processing device 902," which then
"automatically triggers the imaging system 905 to acquire the images at
determined specified times" and "automatically acquires the model point
( e.g., image) at the indicated phase of the respiratory cycle" (see Spec. ,r 61 ).
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internal target (Reply Br. 7, 10). Appellants' argument is not commensurate
with claims 1 and 2, which do not preclude the use of a pre-existing
correlation for the "automatically triggering" step. Appellants'
Specification provides that the claimed "automatically determining whether
the target is in the desired phase of the periodic cycle" ("automatically
triggering" in claim 2) may rely on a pre-existing correlation between the
target's phase (not directly measured for a target internal to the patient) and
the external marker's phase of movement (measured by an external tracking
sensor) (see Spec. ,r,r 42, 52, and 69). 3
As to Appellants' argument that the Examiner's combination of
Schweikard and Mostafavi lacks articulated reasoning and analysis "of how
the suggested combination would obtain predictable results" (Reply Br.
4--5; App. Br. 6-7), we find the Examiner has articulated sufficient
reasoning for combining the references to produce the claim limitations
(Ans. 15; Final Act. 7).
Particularly, the Examiner finds Schweikard acquires "a series of time
sequence images" of a target "throughout the respiratory cycle ... during the
3 Appellants' Specification provides "[a]s the patient breathes, the target 10
may move along a path within the patient's body," and "[t]he movement of
the one or more external markers may be used to define the respiratory cycle
600 .... [which] can then be used to determine the desired locations (e.g.,
different phases of the respiratory cycle) at which images should be acquired
to generate the correlation model" (see Spec. ,r,r 42, 52 (emphases added)).
Particularly, "[t]he processing device 902 determines a specified time in the
respiratory cycle that corresponds to a first phase of the respiratory cycle to
acquire an image of a target based on . .. displacement points" that "are
indicative of the motion of the external marker during a respiratory cycle of
a patient" (see Spec. ,r 69 (emphases added)).
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pre-operative phase" to generate a correlation model mapping an external
marker to the target (see Schweikard col. 8, 11. 8-13 and 11. 18-20; Ans. 14).
Further, the Examiner finds Mostafavi uses an external marker "to determine
a physiological phase and resulting period which can be broken down [in ]to
the exhale and inhale periods," thus "distinguishing between inspiration and
expiration movements" as claimed (Final Act. 6 (citing Mostafavi 27:33-
28: 11) ). Mostafavi further synchronizes image capturing with the patient's
breathing "to specifically generate the pre-operative images during a
particular phase of respiration" (Final Act. 6-7). The Examiner reasons the
skilled artisan would have modified Schweikard to acquire its series of time
sequence images of the target during a particular phase of the respiratory
cycle as taught by Mostafavi, to provide predictable results such as
decreasing errors due to patient movement, including blurring, smearing,
and the appearance of image artifacts (Ans. 15 (citing Mostafavi 19:10-14)).
In the Reply, Appellants argue there is no advantage to adding
Mostafavi' s teachings to Schweikard because "Schweikard itself is capable
of compensating for the movement of a patient, one having ordinary
skill in the art would have no need to use the teachings of Mostafavi to
decrease errors due to patient movement" (Reply Br. 5). Appellants'
argument is not persuasive because Appellants have not established that
Schweikard can compensate for a patient's "motion . .. that is relatively fast
when compared to the effectively operating speeds" of an imaging system,
as can Mostafavi ( emphasis added) (see Mostafavi 23 :24--26). Particularly,
Mostafavi's predictive imaging acquires images only during a treatment
interval (phase in breathing cycle) that excludes a patient's "motion that is
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predicted to result in unacceptable levels of movement of the tumor or
tissue" (see Mostafavi 17:16-17; 18:18-20).
Thus, Appellants have failed to clearly distinguish the claimed
invention over the prior art relied on by the Examiner. We, therefore,
sustain the Examiner's rejection of independent claims 1 and 2, independent
claim 10 argued for substantially the same reasons as claim 1, and dependent
claims 3, 7, 9, 11, and 13-16 for which no separate arguments are provided
(App. Br. 8-9).
DECISION
We affirm the Examiner's decision rejecting claims 1-3, 7, 9-11, and
13-16 under 35 U.S.C. § 103(a).
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
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