Ex Parte Raju et al

Patent Trial and Appeal Board

Jul 7, 2017

13501571 (P.T.A.B. Jul. 7, 2017)

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.
13/501,571 04/12/2012 Balasundara Iyyavu Raju 2009P01453WOUS 2947
24737 7590 07/11/2017
PTTTT TPS TNTFT T FfTTTAT PROPFRTY fr STANDARDS
EXAMINER
465 Columbus Avenue PENG, BO JOSEPH
Suite 340
Valhalla, NY 10595 ART UNIT PAPER NUMBER
3786
NOTIFICATION DATE DELIVERY MODE
07/11/2017 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 BALASUNDARAIYYAVU RAJU,
SHIWEI ZHOU, and SHUNMUGAVELU SOKKA
Appeal 2016-003262
Application 13/501,571
Technology Center 3700
Before DONALD E. ADAMS, JEFFREY N. FREDMAN, and
RICHARD J. SMITH, Administrative Patent Judges.
FREDMAN, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal1 under 35 U.S.C. § 134 involving claims to an
ultrasound power supply. The Examiner rejected the claims as obvious. We
have jurisdiction under 35 U.S.C. § 6(b). We affirm.
Statement of the Case
Background
“The invention provides for an ultrasound power supply adapted for
supplying electrical power for driving an ultrasound transducer in contact
with a subject” (Spec. 3:1—2).
1 Appellant identifies the Real Party in Interest as Koninklijke Philips, N.V.,
(see App. Br. 2).
Appeal 2016-003262
Application 13/501,571
The Claims
Claims 1—15 are on appeal. Claim 1 is representative and reads as
follows:
1. An ultrasound power supply adapted for supplying
electrical power for driving an ultrasound transducer in contact
with a subject, the ultrasound power supply comprising:
a communications interface adapted for receiving a first
temperature measurement of a first volume of the subject,
wherein the first volume is a first defined volume within an
imaging volume of the subject, and a second temperature
measurement of a second volume of the subject, wherein the
second volume is a second defined volume within the imaging
volume of the subject, wherein the first volume is located
between the ultrasound transducer and the second volume;
a controller adapted for modulating the output of
electrical power for driving the ultrasound transducer such that
via ultrasonic heating by the ultrasound transducer:
a. the first temperature measurement is maintained above
a first predetermined threshold,
b. the first temperature measurement is maintained below
a second predetermined threshold, and
c. the second temperature measurement is maintained
below a third predetermined threshold; and
wherein the first predetermined threshold is above the
third predetermined threshold.
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Application 13/501,571
The issues
A. The Examiner rejected claims 1, 3—6, 8, 9, 11, and 13—15 under
35 U.S.C. § 103(a) as obvious over Chopra2 and Chen3 (Final Act. 3—9).
B. The Examiner rejected claim 2 under 35 U.S.C. § 103(a) as obvious
over Chopra, Chen, and Trachtenberg4 (Final Act. 9-11).
C. The Examiner rejected claim 7 under 35 U.S.C. § 103(a) as obvious
over Chopra, Chen, and Slayton5 (Final Act. 11—12).
D. The Examiner rejected claim 10 under 35 U.S.C. § 103(a) as obvious
over Chopra, Chen, and Carl6 (Final Act. 12—13).
E. The Examiner rejected claim 12 under 35 U.S.C. § 103(a) as obvious
over Chopra, Chen, Slayton, and Schneider7 (Final Act. 13—14).
A. 35 U.S.C. § 103(a) over Chopra and Chen
The Examiner finds Chopra teaches:
an ultrasound system for driving an ultrasound transducer in
contact with a subject, and the system comprises a
communications interface adapted for receiving a first
temperature measurement of a first volume of the subject,
wherein the first volume is a first defined volume within an
imaging volume of the subject (fig. 2, volumes inside 201, or
fig. 7, inside target boundary, para 0061) and a second
temperature measurement of a second volume of the subject,
wherein the second volume is a second defined volume within
2 Chopra et al., US 2006/0206105 Al, published Sept. 14, 2006.
3 Chen et al., US 2003/0212390 Al, published Nov. 13, 2003.
4 Trachtenberg, J., WO 00/28919 Al, published May 25, 2000.
5 Slayton et al., US 6,623,430 Bl, issued Sept. 23, 2003.
6 Carl, A., US 2002/0095144 Al, published July 18, 2002.
7 Schneider et al., US 2002/0077588 Al, published June 20, 2002.
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Appeal 2016-003262
Application 13/501,571
the imaging volume of the subject (fig. 2, volumes outside of
202, or fig. 7, outside of 704 boundary, para 0061).
(Final Act. 3—4). The Examiner finds Chopra teaches a controller “adapted
for modulating the output of electrical power by continually varying the
power . . . wherein the first temperature measurement is maintained between
the first predetermined threshold and second predetermined threshold and
the second temperature measurement is maintained below the third
predetermined threshold” (Final Act. 4—5).
The Examiner acknowledges that Chopra “fails to teach a power
supply and a controller to control ultrasound by changing voltage and
current” (Final Act. 5). The Examiner finds Chen teaches a “DC power
supply 34 furnishes the necessary power to both the RF board 36 and the
ultrasound board 50” (Id.). The Examiner finds it obvious to modify Chopra
with the “controllable power supply features of Chen ‘390 in order to control
the ultrasound transducer by controlling the power supply” (Final Act. 6).
The issue with respect to this rejection is: Does the evidence of record
support the Examiner’s conclusion that Chopra and Chen render obvious a
“second defined volume” as required by claim 1?
Findings of Fact
1. The Specification teaches “a communications interface adapted
for receiving a first temperature measurement of a first volume of the subject
and a second temperature measurement of a second volume of the subject”
(Spec. 3:16-18).
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Appeal 2016-003262
Application 13/501,571
2. The Specification teaches “the temperature in the first volume
and the second volume may be measured using magnetic resonance
thermometry” (Spec. 5:22—23).
3. Figure 5 of the Specification is reproduced below:
FIG. 5
Fig. 5 illustrates the geometry of the prostate with the urethra
500 inside. An unfocused ultrasonic transceiver may be
inserted into the urethra 500. Shown is the boundary 502 of the
prostate. Point 504 represents a first volume within the
boundary of the prostate 502 which would benefit from a heat
treatment by an unfocused ultrasonic transceiver. The point
labeled 506 represents a second volume which could represent a
neurovascular bundle which could be damaged if it were heated
above the third predetermined threshold by an unfocused
ultrasonic transceiver.
(Spec. 12:10-16).
4. Chopra teaches “using an ultrasound heating applicator to
generate site-specific thermal lesions in diseased tissues which conform to a
target volume and boundaries established by medical imaging, e.g., magnetic
resonance imaging (MRI)” (Chopra 1 5).
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Appeal 2016-003262
Application 13/501,571
5. Chopra teaches:
Temperature measurements made with MRI techniques at or
near the boundary of the target volume and/or the maximum
temperature within the treatment volume are used to control the
scan rate, power, and frequency of the heating applicator and/or
of each element of the applicator, such that substantially the
entire target volume reaches a predetermined therapeutic
temperature or other thermal threshold.
(Chopra 130).
6. Figure 2 of Chopra is reproduced below:
FIG. 2 illustrates an example of conformal thermal therapy
from a single directional ultrasound transducer, in the plane of
rotation. The figure is a planar view with the page being in a
plane perpendicular to the axial dimension of a heating
applicator 204. . . . The target volume 201 can be identified in
anatomical/fimctional imaging information acquired prior to
treatment. A treatment volume boundary 202 is chosen so that
it substantially encompasses the target volume 201 while
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Appeal 2016-003262
Application 13/501,571
generally sparing the surrounding or nearby tissue structures
207. The surrounding or nearby tissue structures 207 may be
sensitive or critical structures that cannot or should not be
damaged by the thermal therapy.
(Chopra 148).
7. Figure 7 of Chopra is reproduced below:
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FIG. 7 illustrates four exemplary outcomes using the above-
described computer simulations demonstrating the capability to
perform conformal thermal therapy of the prostate gland using a
directional ultrasound heating applicator. Each panel in the
figure shows the target prostate boundary 702 derived from a
clinical axial MR image of the prostate gland. The boundary
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Appeal 2016-003262
Application 13/501,571
with solid circles 703 denotes the region that reached a thermal
threshold of 55° C. during the treatment. This level of heating
results in rapid and irreversible cell death through thermal
coagulation, and is referred to as 100% cell kill 703 in the
figure to indicate that substantially all of the diseased cells
within this area would be killed by the thermal treatment. The
boundary with the open triangles 704 represents the region that
was exposed to at least 30 equivalent minutes at 43° C. of
thermal isodose (T43=30 minutes). This is a measure of the
combined time/temperature exposure standardized to a common
temperature. This conservative level of thermal dose is
typically considered to be the minimum thermal dose required
to observe histological changes in prostate tissue, and
represents the region outside which tissue would be unharmed
by the heating. The contour is thus labeled as the 0% cell-kill
boundary 704 in the figure to signify that substantially none of
the cells in this region are killed by the thermal treatment.
(Chopra 1 61).
8. Chen teaches the “output of the DC power supply 34 is
provided to an input of a Color LCD Display and microcontroller 38, an
input of an RF board 36, an input of a thermocouple and thermistor board
48, and an input of an ultrasound board 50” (Chen 121).
Principles of Law
“[DJuring examination proceedings, claims are given their broadest
reasonable interpretation consistent with the [Specification.” In re Hyatt,
211 F.3d 1367, 1372 (Fed. Cir. 2000).
“The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results.”
KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). “If aperson of
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Appeal 2016-003262
Application 13/501,571
ordinary skill can implement a predictable variation, § 103 likely bars its
patentability.” Mat417.
Analysis
We begin with claim interpretation because before a claim is properly
interpreted, its scope cannot be compared to the prior art. In this case, the
dispute centers over the phrase “second defined volume” in claim 1.
While the Specification discusses temperature measurements of a
“second volume” (FF 1), the Specification lacks a definition of the phrase
“second defined volume” and exemplifies a “second volume” in Figure 5 as
a point location outside the prostate boundary 502 (FF 3). Even if there
were an embodiment showing a “second defined volume,” in the absence of
a definition of the term “defined” it “is improper to ‘confm[e] the claims to
th[e] embodiments’ found in the specification.” In re Trans Texas Holdings
Corp., 498 F.3d 1290, 1299 (Fed. Cir. 2007) (alterations in original).
Appellants “submit that it is unreasonable on the face of the claim
language alone to completely read out the term defined. The Applicants
have elected to recite a ‘second defined volume’ and not merely a second
volume. The use of the term defined must be considered when interpreting
the claim” (App. Br. 5).
We do not find this argument persuasive because the term “defined”
in this context is a term of degree depending upon subjective opinion in light
of a Specification that identifies a second volume by a point outside a
boundary (FF 3). Datamize teaches that the “scope of claim language cannot
depend solely on the unrestrained, subjective opinion of a particular
individual purportedly practicing the invention.” Datamize, LLC v.
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Appeal 2016-003262
Application 13/501,571
Plumtree Software, Inc., 417 F.3d 1342, 1350 (Fed. Cir. 2005). Here, the
phrase “second defined volume” would be subject to such subjectivity
because no specific limits attach to the word “defined,” and we therefore
interpret it broadly to encompass any volume that has boundaries of some
sort. See In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989) (“[Djuring patent
prosecution when claims can be amended, ambiguities should be recognized,
scope and breadth of language explored, and clarification imposed. ... An
essential purpose of patent examination is to fashion claims that are precise,
clear, correct, and unambiguous. Only in this way can uncertainties of claim
scope be removed, as much as possible, during the administrative process.”).
We adopt the Examiner’s findings of fact and reasoning regarding the
scope and content of the prior art (Final Act. 3—9; FF 1—8) and agree that
claim 1 is obvious over Chopra and Chen. We address Appellants’
arguments below.
Appellants contend:
[T]he application of the broadest reasonable interpretation is
tempered with the guidance “consistent with the specification.”
It appears the Examiner has attempted to address this concern
by stating that “[ajpplicant never positively described in the
specification the exact defined second volume.” (See 3/10/2014
Office Action, p. 15). This is simply incorrect. The application
as filed positively describes a defined second volume with
location boundaries, where the defined second volume is a
specific anatomical feature that may be damaged if heated. An
example of such a defined volume is a neurovascular bundle in
the prostate, which is often located close to a targeted tumor
region, that would negatively affect a patient’s potency if
damaged.
(App. Br. 6 (second alteration in original)).
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Application 13/501,571
We do not find this argument persuasive because Appellants identify
no portion of the Specification that defines or limits the phrase “second
defined volume” to specific anatomical features such as neurovascular
bundles. See In re Self, 671 F.2d 1344, 1348 (CCPA 1982) (“[A]ppellanf s
arguments fail from the outset because . . . they are not based on limitations
appearing in the claims.”). Moreover, as already noted, without a definition
of what constitutes a “second defined volume,” the term is based on the
unrestrained, subjective opinion of individuals, not grounded in detailed
limitations.
Appellants contend, regarding Chopra, that the “region outside of
boundary 704 is not a defined volume, but an open volume that encompasses
anything within the imaging limits. The region does not represent a specific
sensitive anatomical feature that must be kept below a specific temperature
to avoid damage” (App. Br. 7). Appellants contend that Chopra
never describes that these nearby tissue structures are a
specifically defined volume for which temperature
measurements are taken. Rather, the nearby tissue structures
207 are just structures that are not the target volume 201.
Chopra never describes how one these nearby tissue structure
are defined. Accordingly, the nearby tissue structures 207 of
Chopra cannot be the “second defined volume” recited in claim
1.
(App. Br. 8).
We find these arguments unpersuasive. Whether we apply the
Examiner’s broadest reasonable interpretation or Appellants’ narrower
interpretation, Chopra clearly discloses a “second defined volume.” Figure
2 of Chopra discloses two volumes, target volume 201 and tissue structure
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Application 13/501,571
volume 207 (FF 6). Chopra shows tissue structure volume 207 as a specific,
enclosed region with well-defined boundaries (FF 6). Consistent with the
language and intent of claim 1, target volume 201 is subject to ultrasonic
heating by the ultrasound transducer within the larger volume 202 and
contains volume located between the transducer and the tissue structure
volume 207 that is not subject to heating (FF 4—7). Thus, tissue volume 207
in Figure 2 of Chopra reasonably satisfies even Appellants’ narrow
construction of “second defined volume” and both Figures 2 and 7 disclose
regions of “second defined volume” that satisfy the Examiner’s broader
reading of this phrase.
We recognize, but find unpersuasive, Appellants’ contention that “the
‘second defined volume,’ could not be exceedingly large in size or located
too closely to the ultrasound transducer because the first defined volume
would not have room to fit between the ‘second defined volume’ and the
ultrasound transducer” (Reply Br. 5). Neither claim 1 nor the Specification
imposes any size or location limitations on the “second defined volume”
other than that it falls within the imaging volume, which could encompass
the entire body of the patient, and that it permit a first volume to be located
between it and the transducer. Claim 1 imposes no requirement that these
volumes are immediately adjacent one another or alternatively that they are
separated by any particular distance, volume, or structures. In re Self, 671
F.2d at 1348.
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Application 13/501,571
Conclusion of Law
The evidence of record supports the Examiner’s conclusion that
Chopra and Chen render obvious a “second defined volume” as required by
claim 1.
B-E. 35 U.S.C. § 103(a)
Appellants do not separately argue these obviousness rejections,
instead relying upon their arguments to overcome Chopra and Chen (see
App. Br. 9-10). The Examiner provides sound fact-based reasoning for
combining Trachtenberg, Slayton, Carl, and Schneider with Chopra and
Chen (see Final Act. 9—14). Having affirmed the obviousness rejection of
claim 1 over Chopra and Chen for the reasons given above, we also find that
the further combinations render the rejected claims obvious for the reasons
given by the Examiner.
SUMMARY
In summary, we affirm the rejection of claim 1 under 35 U.S.C.
§ 103(a) as obvious over Chopra and Chen. Claims 3—6, 8, 9, 11, and 13—15
fall with claim 1.
We affirm the rejection of claim 2 under 35 U.S.C. § 103(a) as
obvious over Chopra, Chen, and Trachtenberg.
We affirm the rejection of claim 7 under 35 U.S.C. § 103(a) as
obvious over Chopra, Chen, and Slayton.
We affirm the rejection of claim 10 under 35 U.S.C. § 103(a) as
obvious over Chopra, Chen, and Carl.
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Application 13/501,571
We affirm the rejection of claim 12 under 35 U.S.C. § 103(a) as
obvious over Chopra, Chen, Slayton, and Schneider.
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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