Ex Parte Lloyd

Board of Patent Appeals and Interferences

Jun 30, 2011

11561570 (B.P.A.I. Jun. 30, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte CHARLES FREDERICK LLOYD
____________________

Appeal 2009-009755
Application 11/561,570
Technology Center 3700
____________________

Before: WILLIAM F. PATE III, STEVEN D.A. MCCARTHY, and
MICHAEL W. O’NEILL, Administrative Patent Judges.

PATE III, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2009-009755
Application 11/561,570
2
STATEMENT OF CASE
Appellant appeals under 35 U.S.C. § 134 from a rejection of claims 1-
8, and 10-20. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

The claims are directed to a method, a computer interface, and
computer-readable instructions on a machine readable medium for visual
verification of CT registration and feedback during a surgical procedure.
Claim 1, reproduced below, is illustrative of the claimed subject matter:
1. A method for medical navigation, the method including:
determining an initial registration for a data set, wherein
the data set is based at least in part on one or more medical
images, and wherein the initial registration is based at least in
part on a region of interest;
determining an accuracy region for the data set, wherein
the accuracy region defines a region of the data set where the
accuracy of a detected position of the tracked instrument
conforms to a tolerance, wherein the accuracy region is
determined at least in part on the initial registration and the
region of interest;
detecting a position of a tracked instrument with respect
to the data set; and
providing an indication to a user when the tracked
instrument is detected outside the accuracy region.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Vilsmeier
Quaid
US 2002/0077542 A1
US 2006/0142657 A1
Jun. 20, 2002
Jun. 29, 2006

Appeal 2009-009755
Application 11/561,570
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REJECTIONS
Claim 1-8 and 10-15 stands rejected under 35 U.S.C. § 101 as being
directed to non-statutory subject matter.
1
Ans. 3.
Claims 1, 2, 4, 10, 15, 16 and 20 stand rejected under 35 U.S.C.
§ 102(b) as being anticipated by Vilsmeier. Ans. 3.
Claims 3, 5-8, 11-14 and 17-19 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Vilsmeier, and Quaid. Ans. 4.

OPINION
We have carefully reviewed the rejections on appeal in light of the
arguments of the Appellant and the Examiner. As a result of this review, we
have reached the conclusion that claims 1-8 and 10-15 are not directed to
non-statutory subject matter under 35 U.S.C. § 101. We have further
reached the conclusion that claims 1, 2, 4, 10, 15, 16, and 20 lack novelty
under 35 U.S.C. § 102(b), and claims 3, 5-8, 11-14 and 17-19 are prima
facie obvious under 35 U.S.C. § 103. Our reasons follow.
As an initial matter, we agree with the Examiner that the objection to
the subject matter of claims 17-20 is a petitionable matter under 37 C.F.R.
§ 1.181 and is not appealable to the Board. Ans. 2. Therefore we will not
consider this matter. This objection lies outside our jurisdiction. See In re
Mindick, 371 F.2d 892, 894 (CCPA 1967).
Turning to the 35 U.S.C. § 101 rejection of claims 1-8 and 10-15, we
agree with Appellant that the tracked instrument as claimed in claim 1 is
sufficient to tie the method of claim 1 and the dependent claims to a machine
or apparatus. Accordingly, the Examiner has failed to establish that the

1
Claim 9 has been cancelled. App. Br. 2. Where the §101 rejection in the
Brief and Answer contain claim 9 they are in error.
Appeal 2009-009755
Application 11/561,570
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subject matter of claims 1-8 and 10-15 is directed to a non-statutory process.
The 35 U.S.C. § 101 rejection of these claims is reversed.
Turning to the 35 U.S.C. § 102 rejection of claim 1, the following are
our findings of fact with respect to the Vilsmeier reference. Vilsmeier
teaches developing a three-dimensional volume set for the tooth and/or jaw
area of a patient produced by means of an imaging method, for example, a
CAT image. Para. [0007]. As the next step in Vilsmeier’s process, the tooth
and/or jaw area is registered. Para. [0008]. These two steps correspond to
the first clause of Appellant’s claim 1 of determining an initial registration
for a data set where the data set is based at least in part on one or more
medical images. Next, as discussed in Vilsmeier’s paragraph [0014], the
dentist plots a desired positional course of an instrument to be displayed on
the inter-operative display screen output. We agree with the Examiner that
the desired positional course of Vilsmeier corresponds to Appellant’s
claimed accuracy region of the data set. Appellant defined the accuracy
region in paragraph [70] of the Specification. The region of accuracy is “the
region of the data set where the accuracy of the detected position and/or
orientation of the tracked instrument 440 conforms to a tolerance.” Para.
[70]. Finally, we note that during the dental procedure, the position of the
tracked instrument is detected, and an indication is provided to the dentist
when the tracked instrument is detected outside the desired positional course
planned at the outset of the procedure. Vilsmeier, para. [0014].
We note that Appellant argues that Vilsmeier makes no mention of the
accuracy of the detected position of a tracked instrument. App. Br. 9.
Appellant further argues that an accuracy region conforming to a set
tolerance is not shown in Vilsmeier. App. Br. 10. However, we agree with
the Examiner, that an accuracy region and a tolerance are inherent in the
Appeal 2009-009755
Application 11/561,570
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process of Vilsmeier to the extent that Vilsmeier sounds an alarm when the
tracked instrument leaves the planned or projected operational path. A
tolerance for deviation from such path is implicit for such an alarm.
Therefore, we do not agree with Appellant’s argument that Vilsmeier does
not determine an accuracy region based on confirmation to a pre-established
tolerance.
Appellant further argues that the accuracy region in Vilsmeier is not
determined at least in part on the initial registration and the region of
interest. App. Br. 10-11. We also disagree with this argument. Certainly as
noted by the Examiner, the region of interest is the area originally imaged by
the tomographic review of the patient’s jaw or tooth. Ans. 8-9.
Additionally, the accuracy region for the planned path is determined in the
computer software based on the registration of the anatomical details of the
patient. Vilsmeier, paras. [0013]-[0014]. Thus we are in agreement with the
Examiner that every element of claims 1, 2, 4, 10, 15, 16, and 20 is found in
the Vilsmeier reference.
Turning to the 35 U.S.C. § 103 rejection of claims 3, 5-8, 11-14 and
17-19, we note that Appellant has not provided a separate argument directed
to this rejection. App. Br. 11. Accordingly, Appellant waived the argument
that these claims are patentable separately from the independent claims from
which they depend. Therefore the rejection of claims 3, 5-8, 11-14 and 17-
19 is affirmed on the same basis as the rejection of claims 1, 2, 4, 10, 15, 16
and 20.

DECISION
The rejection of claims 17-20 is outside our jurisdiction and has not
been considered by the Panel.
Appeal 2009-009755
Application 11/561,570
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The 35 U.S.C. § 101 rejection of claims 1-8 and 10-15 is reversed.
The 35 U.S.C. § 102(b) rejection of claims 1, 2, 4, 10, 15, 16 and 20 is
affirmed.
The 35 U.S.C. § 103 rejection of claims 3, 5-8, 11-14 and 17-19 is
affirmed.

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED

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