Ex Parte Osborn et al

Board of Patent Appeals and Interferences

Feb 15, 2012

11295280 (B.P.A.I. Feb. 15, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
11/295,280 12/06/2005 Thomas Ward Osborn III 10233 7957
27752 7590 02/15/2012
THE PROCTER & GAMBLE COMPANY
Global Legal Department - IP
Sycamore Building - 4th Floor
299 East Sixth Street
CINCINNATI, OH 45202
EXAMINER
COOK, CHRISTOPHER L
ART UNIT PAPER NUMBER
3737
MAIL DATE DELIVERY MODE
02/15/2012 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte THOMAS WARD OSBORN III, HYUNDAE HONG,
DONNA RENE HILL, and JOHN DAVID NORCOM
__________

Appeal 2010-011159
Application 11/295,280
Technology Center 3700
__________

Before TONI R. SCHEINER, DEMETRA J. MILLS, and
FRANCISCO C. PRATS, Administrative Patent Judges.

SCHEINER, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the final rejection of
claims 1-7, 9-17, 19, and 20, directed to a method of determining the
biomechanical properties of internal tissues. The claims have been rejected
as obvious. We have jurisdiction under 35 U.S.C. § 6(b).
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Application 11/295,280

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STATEMENT OF THE CASE
Claims 1-7, 9-17, 19, and 20 are pending and on appeal. Claim 1 is
representative of the subject matter on appeal:
1. A method for determining biomechanical properties of internal tissues
of a body, the method comprising the steps of:
a. providing force measuring device, said force measuring device
comprising:
i. a probe head having a tube connection cavity and a
dimension suitable for insertion into a body cavity,
wherein said probe head comprises a material
having a specific gravity of from about 0.98 to
about 1.2;
ii. a load cell operatively connected to said probe
head such that forces on said probe head are
transmitted to said load cell;
iii. a relatively rigid portion and a relatively flexible
hollow tube that is joined to said tube connection
cavity of said probe head and said relatively rigid
portion, such that said probe head is flexibly joined
to said relatively rigid portion and can move
laterally with respect to a longitudinal center line
of said relatively rigid portion; and
b. providing an imaging means for acquiring images of
deformation or displacement of tissues inside a body cavity;
c. providing a calculation means for quantifying displacement of
internal tissues;
d. inserting at least a portion of said probe head into the body
cavity;
e. applying force with said probe head against an internal body
tissue;
f. measuring said force applied to said internal body tissue;
g. acquiring images of displacement of said internal body tissue;
h. calculating said displacement of said internal body tissue; and
i. calculating biomechanical properties from said measured force
and said calculated displacement.

Appeal 2010-011159
Application 11/295,280

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The Examiner relies on the following evidence:
Sarvazyan US 5,785,663 Jul. 28, 1998
Varghese et al. US 2004/0210136 A1 Oct. 21, 2004
Mansour et al. US 2005/0049509 A1 Mar. 3, 2005
Claims 1-7, 9-17, 19, and 20 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Varghese, Sarvazyan, and Mansour.
We affirm.
Findings of Fact
1. The method of claim 1 requires, in pertinent part, “a force
measuring device” comprising a probe head, a relatively flexible tubular
connecting portion, and a relatively rigid portion, joined in such a way that
the probe head can move laterally with respect to the longitudinal axis of the
relatively rigid portion. Figure 1, reproduced in part below, depicts a device
that meets the limitations of the claims:

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Figure 1depicts a device that meets the limitations of the claims. “The
device 10 can be termed a ‘probe,’ and includes at least four main parts: a
probe head 12, a probe body 14 including a flexible connecting portion 16,
and a relatively rigid housing 18, [and] a load cell 20 . . . [alternatively] load
cell 20 can be located in the probe head 12” (Spec. 5: 29 - 6: 2).
2. The Specification teaches that present method and device “can
include a measurement system in a combined format of a strain gauge type
physiological pressure transducer to measure the tissue loading stress, and
imaging devices such as . . . an ultrasound imager to measure localized
tissue deflection and strain profiles” (Spec. 5: 9-12).
3. Varghese discloses a method and transvaginal probe that
incorporate an ultra-sound technique termed elastography for assessment of
the elasticity of uterine, cervical, and pelvic floor tissue. “Elastography
produces images closely related to tissue stiffness” (Varghese ¶¶ 10-13, 72).
4. In addition, Varghese teaches that “[p]ressure sensors on the
transvaginal probe will be used to measure pressure when compression is
applied to the cervix using the probe” (Varghese ¶ 27), and “pressure and
strain measurements will be used to obtain quantitative or Young’s Modulus
values of the stiffness of the cervix and uterine tissue” (id. at ¶ 28).
5. Sarvazyan discloses a method and device for “Mechanical
Imaging” (MI) of the prostate (Sarvazyan, col. 2, ll. 49-52).
The essence of MI is the reconstruction of the internal structure
of soft body tissues by measuring a surface stress pattern using
a pressure sensing array. The pattern of mechanical stress and
its changes as a function of applied pressure and time contain
comprehensive information on the mechanical properties and
geometry of the internal structures of body tissues.
(Id. at col. 2, ll. 52-58.)
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6. Sarvazyan’s “Mechanical Imaging probe” 100 is depicted in
Figures 10A-C, reproduced below:

Figures 10A-C depict Sarvanyan’s “Mechanical Imaging probe” 100.
“[T]he probe 100 comprises a movable tip 102 which contains an array of
pressure sensors 101 and a position/orientation sensor 103” (Sarvazyan,
col. 9, ll. 23-25). “The tip 102 is mated to a rigid tube 111, which in turn is
attached to a pistol grip handle 114. A disposable rubber sheath 113 covers
the entire tip 102 as well as the tube 111” (id. at col. 9, ll. 34-37). “A
flexible joint [disks 105, 107, 108, 110] between the tip 102 and the tube 111
. . . is provided to allow the tip to be articulated over angles ranging from 0°
to ±45° vertically, and ±90° horizontally” (id. at col. 9, ll. 39-44).
7. According to the Examiner, Figures 2B, 2D, and 2E of
Mansour depict “a transvaginal probe comprising . . . a probe head having a
tube connection cavity [68] . . . a relatively ridged [sic, rigid] portion [76] . .
. and a relatively flexible hollow tube [62] . . . joined to the tube connection
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cavity of a probe head [40] . . . and said relatively ridged [sic, rigid] portion”
(Ans. 5-6). Mansour’s Figures 2B, 2D, and 2E are reproduced below:

Figures 2B, 2D, and 2E depict side views of Mansour’s probe and rod
applicator.
Discussion
The evidence of record supports the Examiner’s conclusion that the
claimed invention would have been obvious over the combined teachings of
Varghese, Sarvazyan, and Mansour.

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Appellants contend that:
Claims 1 and 11, from which claims 2-7, 9, 10, 12-17, 19, and
20 depend, claim a probe head having a tube connection cavity,
wherein a relatively flexible hollow tube is joined to the tube
connection cavity of the probe head and a relatively rigid
portion, such that the probe head is flexibly joined to the
relatively rigid portion and can move laterally with respect to a
longitudinal center line of the relatively rigid portion. The cited
references neither individually nor in combination disclose or
suggest the present invention as currently claimed.
(App. Br. 5.)
Nevertheless, the Examiner finds that Varghese discloses “a method
for determining biomechanical properties of internal tissues of a body
comprising the steps of: providing a force measuring device comprising a
probe having a dimension suitable for insertion into a body cavity” (Ans. 4).
The Examiner acknowledges that Varghese does not “provide flexibility of a
probe head while the probe is in the cavity” (id. at 7). However, the
Examiner cites Sarvazyan and Mansour, “from within the same field of
endeavor with respect to . . . measuring biomechanical properties by
inserting a probe into a [body] cavity” (id. at 6), as evidence that articulated,
flexible probes are conventional in the art (id. at 5).
Based on these findings, the Examiner concludes that it would have
been obvious for one of ordinary skill in the art to “tak[e] the overall concept
of providing a specialized vaginal probe to evaluate cervical tissue . . .
provid[e] a displacement of the tissue with said probe . . . and correlat[e] an
acquired pressure and/or force measurement with an image as described by
Varghese with the probe structure configuration as described by Sarvazyan
and Mansour” in order to “provide flexibility of a probe head while the
probe is within the cavity” (Ans. 7). In other words, the Examiner concludes
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that one of ordinary skill in the art would have had a reason to modify
Varghese’s device in such a way as “to facilitate the probe head to move
laterally with respect to a longitudinal center line of the ridged [sic, rigid]
portion while the probe is in the cavity” (id.at 6).
Despite their contention that the references cited by the Examiner
“neither individually nor in combination disclose or suggest the present
invention” (App. Br. 5), Appellants have not identified any particular error
in the Examiner’s fact findings. Nor have Appellants identified any
particular defect in the Examiner’s rationale for combining the teachings of
the references.
The rejection of claim 1 as unpatentable over Varghese, Sarvazyan,
and Mansour is affirmed. In accordance with the provisions of 37 C.F.R.
§ 41.37(c)(1)(vii), claims 2-7, 9-17, 19, and 20 fall with claim 1 as they were
not separately argued.
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED

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The Procter & Gamble Company
Global Legal Department – IP
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th
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