Ex Parte Moonen et alDownload PDFPatent Trial and Appeal BoardSep 6, 201612438934 (P.T.A.B. Sep. 6, 2016) Copy Citation 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.) 2 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 3 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 4 Appeal2014-005507 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 5 Copy with citationCopy as parenthetical citation