Ex Parte Moonen et al

Patent Trial and Appeal Board

Sep 6, 2016

12438934 (P.T.A.B. Sep. 6, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/438,934 0212512009 Chretien Moonen
24737 7590 09/08/2016
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
465 Columbus A venue
Suite 340
Valhalla, NY 10595
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.
2006P02815WOUS 9783
EXAMINER
LEE, WENG WAH
ART UNIT PAPER NUMBER
3763
NOTIFICATION DATE DELIVERY MODE
09/08/2016 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):
marianne.fox@philips.com
debbie.henn@philips.com
patti. demichele@Philips.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHRETIEN MOONEN and CHARLES MOUGENOT
Appeal2014-005507
Application 12/438,934 1
Technology Center 3700
Before MICHAEL C. ASTORINO, PHILIP J. HOFFMANN, and
BRUCE T. WIEDER, Administrative Patent Judges.
WIEDER, 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 1-18. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
CLAIMED SUBJECT MATTER
Appellants' claimed invention relates "to the treatment of biological
tissue using hyperthermia." (Spec. 1.)
Claims 1 and 10 are the independent claims on appeal. Claim 1 is
representative and is reproduced below:
1 According to Appellants, the real party in interest is Koninklijke Philips
Electronics N.V. (Appeal Br. 3.)
Appeal2014-005507
Application 12/438,934
1. A thermal treatment device to treat a target region of a
biological tissue, comprising:
a signal generator and a transducer (3,4) to supply energy
to a focal point (P) in the target region;
an imaging apparatus (2) to measure the spatial
distribution of temperature in said region; and
a control unit (7) operably configured to control moving
of the focal point (P) towards successive treatment points, and to
control the energy to be provided by the signal generator and the
transducer (3,4) to the successive treatment points,
wherein the control unit (7) is further operably
configured to determine a spatial and energy distribution
of the treatment points to be performed, each successive
treatment point having a determined position and
treatment energy in relation to the positions and spatial
energy distributions of the previous treatment points.
REJECTIONS2
Claims 1-3, 5, 6, 8-12, 14, 15, 17, and 18 are rejected under
35 U.S.C. § 102(b) as anticipated by Freundlich (US 6,618,620 Bl, iss.
Sept. 9, 2003).
Claims 4 and 13 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Freundlich and Rudie (US 6,122,551, iss. Sept. 19, 2000).
Claims 7 and 16 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Freundlich.
ANALYSIS
Appellants argue that "unlike Freundlich, the Moonen Application
[i.e., Appellants' application] recognizes an [sic] spatial distribution of
2 The rejections of claims 1 and 10 for nonstatutory obviousness-type
double patenting were withdrawn. (See Answer 6.)
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Appeal2014-005507
Application 12/438,934
energy is not solely located on the treatment point but also extends to areas
adjacent the treatment point." (Appeal Br. 16.) Appellants further argue
that
Freundlich fails to describe, expressly or inherently, "wherein
the control unit (7) is further operably configured to determine a
spatial and energy distribution of the treatment points to be
performed, each successive treatment point having a determined
position and treatment energy in relation to the positions and
spatial energy distributions of the previous treatment points" as
recited in independent claim 1.
(Id. at 17 .) Additionally, Appellants argue that "the thermal dose parameters
[in Freundlich] are generally consistent across all treatment points and are
not dependent upon a spatial and energy distribution of the treatment
points." (Id. at 15.)
The Examiner, however, finds that the elements of claim 1 are
disclosed in Freundlich. (Final Action 4; Answer 7.) We agree with the
Examiner.
Freundlich discloses "a method and apparatus for controlling thermal
dosing in a thermal treatment system." (Freundlich, col. 1, 11. 8-10.)
Freundlich discloses that the method includes a treatment plan and that
implementing the plan
comprises capturing temperature sensitive image sequences of
the target mass as each step of the plan is being implemented.
These images will illustrate the actual thermal dose distribution
resulting from each successive thermal dose. An online feedback
imager 502 may, for example, provide the temperature sensitive
images that are used to construct the actual thermal dose
distribution. In step 718, the actual thermal dose distribution is
compared with the predicted thermal dose distribution in order to
determine how closely the actual treatments are tracking the
treatment plan. Then in step 724, it is determined if the treatment
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Appeal2014-005507
Application 12/438,934
can proceed to the next step (repeat step 716), or if changes must
be made to the treatment plan. (step 720). The changes may be
accomplished manually or automatically and may comprise
adding treatment sites, deleting treatment sites, repeating
treatment sites, or modifying specific thermal dose properties for
some or all of the treatment sites.
(Id. at col. 12, 11. 2-18, emphasis added.)
Freundlich further discloses that "the planner preferably constructs a
predicted thermal dose distribution" (id. at col. 4, 11. 11-12, emphasis
added) and that "after a thermal dose is delivered to a treatment site in the
treatment plan, the actual thermal dose distribution is compared to the
predicted thermal dose distribution to determine remaining untreated
locations within the target mass" (id. at col. 4, 11. 14--18, emphasis added.)
Freundlich also discloses using actual "thermal dose distribution 600 in
some of the points to adjust for the neighboring points." (Id. at col. 10,
11. 49-53.) In short, Freundlich recognizes that the actual energy distribution
may differ from the planned energy distribution, e.g., the energy may extend
to areas adjacent the treatment site.
Freundlich also discloses that the thermal dose distribution may be
adjusted in real-time after each sonication and that "the thermal dose
properties of some or all remaining treatment sites may automatically be
adjusted ... based on real-time feedback." (Id. at col. 10, 11. 49-58.)
Further, Freundlich discloses that the system may reduce power associated
with the sonifications, i.e., the power need not be consistent across treatment
points. (See id. at col. 9, 11. 32-35.)
In view of the above, we are not persuaded that Freundlich fails to
disclose a control unit/planner "operably configured to determine a spatial
and energy distribution [i.e., thermal dose distribution,] of the treatment
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Application 12/438,934
points to be performed, each successive treatment point having a determined
position and treatment energy in relation to the positions and spatial energy
distributions of the previous treatment points," as recited in claim 1. Claim
10 contains similar language. For the above reasons, we affirm the rejection
of claims 1 and 10.
With regard to dependent claims 2-9 and 11-18, the Appeal Brief
provides separate section headings but Appellants simply recite the claim
language and assert that the cited art does not describe the claimed features.
(See Appeal Br. 17-24.) Appellants do not explain why the Examiner's
finding that dependent claims 2, 3, 5, 6, 8, 9, 11, 12, 14, 15, 17, and 18 are
anticipated by the cited art is erroneous or why the Examiner's conclusion
that dependent claims 4, 7, 13, and 16 are obvious in view of the cited art is
erroneous. (See Final Action 5-8.) Therefore, we are not persuaded that the
Examiner erred in rejecting claims 2-9 and 11-18. See 37 C.F.R.
§ 41.37(c)(iv) (2013).
DECISION
TheExaminer'srejectionofclaims 1-3, 5, 6, 8-12, 14, 15, 17, and 18
under 35 U.S.C. § 102(b) is affirmed.
The Examiner's rejections of claims 4, 7, 13, and 16 under 35 U.S.C.
§ 103(a) are 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)(l )(iv).
AFFIRMED
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