Ex Parte Ramachandran et al

Patent Trial and Appeal Board

Aug 29, 2018

14240032 (P.T.A.B. Aug. 29, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/240,032 02/21/2014 Bharat Ramachandran
24737 7590 08/31/2018
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.
2011P01 l 12WOUS 7770
EXAMINER
PARK, PATRICIA JOO YOUNG
ART UNIT PAPER NUMBER
3737
NOTIFICATION DATE DELIVERY MODE
08/31/2018 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):
patti. demichele@Philips.com
marianne.fox@philips.com
katelyn.mulroy@philips.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BHARAT RAMACHANDRAN, ROBERT MANZKE, and
RAYMOND CHAN1
Appeal2017-005431
Application 14/240,032
Technology Center 3700
Before TA WEN CHANG, JOHN E. SCHNEIDER, and
DAVID COTTA, Administrative Patent Judges.
SCHNEIDER, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a sensing
device which have been rejected as obvious. We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM.
STATEMENT OF THE CASE
Minimally invasive surgery often involves insertion of surgical
devices through small incisions or keyholes. Spec. 1. "[I]t is important to
1 Appellants identify the Real Party in Interest as KONINKLIJKE PHILIPS
N.V. Appeal Br. 5.
Appeal2017-005431
Application 14/240,032
know the point of insertion relative to the device and patient, for example, to
determine the portion of the device currently residing within the body versus
outside the body." Id. The Specification describes "a system, device and
method [that] include a sensing enabled device having an optical fiber
configured to perform distributed sensing of temperature-induced strain. An
interpretation module is configured to receive optical signals from the
optical fiber within a body and interpret the optical signals to determine one
or more temperatures or temperature gradients of the device." Id.
Claims 1, 3-5, 8, 9, 12, 14--16, and 23-24 are on appeal. Claim 1 is
illustrative and reads as follows:
1. A system, comprising:
a sensing enabled device having at least one optical fiber
configured to perform distributed sensing of temperature-
induced strain and shape sensing of the device; and
an interpretation module configured to receive optical
signals from the at least one optical fiber within a body and
interpret the optical signals to determine at least one
temperature gradient of the device.
The claims stand rejected as follows:
Claims 1 and 3 have been rejected under 35 U.S.C. § I03(a) as
unpatentable over Arkwright2 in view of Larkin. 3
Claim 4 has been rejected under 35 U.S.C. § I03(a) as unpatentable
over Arkwright in view of Larkin in further view of Saxena. 4
2 Arkwright et al., US 2011/0116743 Al, published May 19, 2011
("Arkwright").
3 Larkin et al., US 2007/0156019 Al, published July 5, 2007 ("Larkin").
4 Saxena et al., US 2007/056212 Al, published July 5, 2007 ("Saxena").
2
Appeal2017-005431
Application 14/240,032
Claim 5 has been rejected under 35 U.S.C. § I03(a) as unpatentable
over Arkwright in view of Larkin and Saxena in further view of Kobayashi. 5
Claim 8 has been rejected under 35 U.S.C. § I03(a) as unpatentable
over Arkwright in view of Larkin in further view of Tu6 and Roelle. 7
Claim 9 has been rejected under 35 U.S.C. § I03(a) as unpatentable
over Arkwright in view of Larkin in further view of Rosengaus. 8
Claims 12 and 14 have been rejected under 35 U.S.C. § I03(a) as
unpatentable over Tu in view of Arkwright and Larkin.
Claim 15 has been rejected under 35 U.S.C. § I03(a) as unpatentable
over Tu in view of Arkwright and Larkin in further view of Saxena.
Claim 16 has been rejected under 35 U.S.C. § I03(a) as unpatentable
over Tu in view of Arkwright, Larkin, and Saxena in further view of
Kobayashi.
Claims 23 and 24 have been rejected under 35 U.S.C. § I03(a) as
unpatentable over Arkwright in view of Saxena, Kobayashi and Larkin.
5 Kobayashi et al., US 2011/015528 Al, published Jan. 20, 2011
("Kobayashi").
6 Tu et al., US 2005/0075704 Al, published Apr. 7, 2005 ("Tu").
7 Roelle et al., US 2011/0319910 Al, published Dec. 29, 2011 ("Reolle").
The Examiner mistakenly lists the first inventor of this application a
"Rochelle".
8 Rosengaus, US 5,653,539, issued Aug. 5, 1997 ("Rosengaus").
3
Appeal2017-005431
Application 14/240,032
OBVIOUSNESS
Arkwright Combined with Larkin
Issue
The issue with respect to this rejection is whether a preponderance of
the evidence supports the Examiner's conclusion that the subject matter of
claims 1 and 3 would have been obvious over Arkwright combined with
Larkin.
The Examiner finds that Arkwright teaches a sensing enabled device
having at least one optical fiber configured to perform distributed sensing of
temperature-induced strain wherein a temperature change is measured from
the strain of a Bragg grating. Final Act. 5. The Examiner finds that
Arkwright further teaches an interpretation module that receives signals
from the optical fiber inserted into a body and interprets the optical signals
to determine a temperature gradient. Id. The Examiner also finds that
Larkin teaches the use of an optical fiber system that is configured to
perform shape sensing of the device. Id. The Examiner concludes
Id.
Therefore, it would have been obvious to one of ordinary
skill in the art, having the teachings of Arkwright and Larkin
before him at the time the invention was made, to modify the
apparatus taught by Arkwright to include the teachings of
Larkin, as shape sensing are [sic] well known in the art and
suitable for use in the apparatus of optical fiber sensing system.
One of ordinary skill in the art would have been motivated to
make such a combination as it provides monitoring of the shape
of the instrument ([0045]).
Appellants contend that that Arkwright does not teach a device
configured to determine at least one temperature gradient but instead only
4
Appeal2017-005431
Application 14/240,032
measures a change in temperature. Appeal Br. 10-11. Appellants also
contend that Arkwright does not teach the presence of an interpretation
module configured to determine a temperature gradient of the device. Id. at
11. Finally, Appellants contend that Arkwright does not teach a system
which senses both temperature induced strain and shape of the device. Id. at
12.
Appellants argue that Larkin does not cure the deficiencies of
Arkwright. Appellants argue that Larkin does not teach or suggest an optical
fiber configured to measure both temperature and shape. Id. at 13-14.
Findings of Fact
We adopt the Examiner's findings as our own, including with regard
to the scope and content of, and motivation to modify or combine, the prior
art. The following findings are included for emphasis and reference
purposes
FF 1. Arkwright teaches
Optical devices are widely used for sensing different
properties. Such optical devices may comprise optical fibres
that have sensing regions in which a change in a property
causes a change in an optical condition for guiding light in the
optical fibres.
For example, an optical device may be arranged for
sensing changes in temperature, strain or pressure and may
comprise a Bragg grating which has an optical response that
depends on the strain of the Bragg grating. A change in an
external pressure or temperature may cause a change in strain of
the Bragg grating, which in tum causes a change in a light
interference condition. Consequently, the change in external
pressure or temperature can be detected by monitoring an
optical response of the Bragg grating.
5
Appeal2017-005431
Application 14/240,032
Arkwright ,r,r 2 and 3.
FF2. Arkwright discloses
An optical device according to embodiments of the
present invention is now described. In the described
embodiment the optical device is arranged for pressure sensing.
However, it is to be appreciated by a person skilled in the art
that the device may alternatively be arranged for sensing any
other properties, such as temperature or strain. Further, the
device may be arranged for sensing any number of suitable
properties, which may or may not be the same properties. In
addition, the optical device may not be arranged for sensing a
property.
Id. at ,r 51 ( emphasis added).
FF3. Arkwright teaches "the device 106 is arranged so that each
optical fibre comprises Bragg gratings that are exposed to forces resulting
from changes in external pressures and Bragg gratings that only experience a
change in strain in response to a change in temperature." Id. at ,r 60.
FF4. Arkwright teaches
The combined response from the Bragg gratings is
wavelength division multiplexed and the optical analyser [sic]
108 uses known wavelength division de-multiplexing
techniques to identify the responses from the respective grating
positions. Suitable software routines are used to determine a
pressure or pressure distribution from the optical responses
received from the Bragg gratings. Pressure measurements
typically include calibrating the device.
Id. at i164.
FF5. Larkin teaches
In accordance with embodiments of the present
invention, an optical fiber, such as the optical fibers described
in U.S. patent application publication no. 2006/ 0013523, is
6
Appeal2017-005431
Application 14/240,032
utilized as optical fiber 220 for monitoring the shape and
relative position of each body segment 212 in the instrument
200. This information, in tum, in [sic] can be used to determine
other related variables, such as velocity and acceleration of the
parts of a surgical instrument. By obtaining accurate
measurements of one or more of these variables in real time, the
controller can improve the accuracy of the robotic surgical
system and compensate for errors introduced in driving the
component part.
Larkin ,r 45.
FF6. The system of Larkin comprises a control system to detect the
position of a surgical instrument to assist in surgical procedures. The control
system comprises
a detection system 260 coupled to an imaging system 270 and
the servo controller 16. The detection system 260 is utilized for
generating and detecting the light used for determining the
position of the instrument 200. The imaging system 270 is used
to provide the surgeon or other operator with real-time position
information for use in the control of the instrument 200. The
servo controller 16 may utilize the position information as
feedback for positioning the instrument 200.
Id. at i151.
FF7. Larkin teaches
In other embodiments, the fixed position region 560 is
substantially rigid so that no external load is applied to the
portion of the fiber 520 in the fixed position region 560. In this
case, changes in temperature of the fiber 520 and the rigid
section 560 cause thermal expansion or contraction of the fiber
520 and the rigid section 560. Because the fiber 520 is fixed at
anchor points 502-503, the net thermal expansion of this
composite structure causes strain in the fiber 520. This strain
combined with the temperature-induced change in the refractive
index causes a shift in the Fiber Bragg Grating's reflection peak,
7
Appeal2017-005431
Application 14/240,032
which can then be detected as described above. The temperature
may be determined by looking up a detected signal in a pre-
calculated lookup table, thereby eliminating the need for
comparison with the second sensor region.
Id. at i175.
FF8. Larkin also teaches
In the embodiment shown in FIG. 5, the fixed position
region 560 is provided at the distal end of the instrument 500.
In other embodiments, one or more fixed position regions 560
including Fiber Bragg Grating sensor regions may be provided
at different locations along the length of the instrument 500.
These additional sensor regions may be used, e.g., to measure
strain at joint regions, as described above with respect to FIGS.
2-4. Thus, the same fiber 520 may be used to both detect
bending at the joint regions and force or temperature at the
fixed position regions.
Id. at ,r 79 ( emphasis added).
FF9. The Specification teaches
The temperature of the human body at 37 degrees C is
higher than the ambient temperature in an operating room or an
interventional suite (around 20 degrees C, e.g., with air
conditioning, etc.). As a result, at the point when the fiber
device enters into the body, the fiber will undergo a gradient or
gradual change in temperature from 20 to 37 degrees C
( assuming normal human body temperature).
Spec. 10, 11. 21-23 ( emphasis added).
Principles of Law
[T]he examiner bears the initial burden, on review of the
prior art or on any other ground, of presenting a prima facie
case ofunpatentability. If that burden is met, the burden of
8
Appeal2017-005431
Application 14/240,032
coming forward with evidence or argument shifts to the
applicant.
After evidence or argument is submitted by the applicant
in response, patentability is determined on the totality of the
record, by a preponderance of evidence with due consideration
to persuasiveness of argument.
In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992).
"Non-obviousness cannot be established by attacking references
individually where the rejection is based upon the teachings of a
combination of references. . . . [The reference] must be read, not in
isolation, but for what it fairly teaches in combination with the prior art as a
whole." In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
Analysis
We find the Examiner has established that the subject matter of the
claims would have been obvious to one of ordinary skill in the art at the time
the invention as made over Arkwright combined with Larkin. Appellants
have not produced evidence showing, or persuasively argued, that the
Examiner's determinations on obviousness are incorrect. Only those
arguments made by Appellants in the Briefs have been considered in this
Decision. Arguments not presented in the Briefs are waived. See 37 C.F.R.
§ 4I.37(c)(l)(iv) (2015). We have identified claim 1 as representative;
therefore, all claims fall with claim 1. We address Appellants' arguments
below.
Appellants contend that Arkwright only teaches a device that
measures a change in temperature and not a temperature gradient. Appeal
Br. 10-11. This argument is unpersuasive. As taught by the instant
9
Appeal2017-005431
Application 14/240,032
Specification a temperature gradient inherently results from a change in
temperature. FF 9.
Appellants also contend that Arkwright does not teach an
interpretation module or other device configured to determine a temperature
gradient. Appeal Br. 11. Again, we are not persuaded.
Even if Arkwright does not disclose this element, it is taught by
Larkin. FF 5. Appellants' argument is an attack on the teachings of a single
reference and not on the combined teachings of the references and does not
overcome the Examiner's rejection. In re Merck & Co., 800 F.2d at 1097.
Appellants next argue that Larkin does not teach or suggest sensing
both temperature and shape using the same optical fiber. Appeal Br. 13.
Appellants contend that Larkin fails to teach that the sensing of temperature
and shape occurs in the same region of the optical fiber. Id. at 14. We have
considered Appellants' arguments and find them unpersuasive.
Claim 1 calls for "at least one optical fiber configured to perform
distributed sensing of temperature-induced strain and shape sensing of the
device." Appeal Br. 27 (Claims App'x). We do not construe this phrase as
requiring that temperature sensing and shape sensing be performed in the
same region of the optical fiber, only that the optical fiber, as a whole, be
able to perform both functions. Appellants point to nothing in the record
that would support a different interpretation. See, Appeal Br. 13-14.
The combination of Larkin and Arkwright teaches an optical fiber that
can sense both temperature change and shape change. FF 2, 3, and 8. The
limitation calling for an optical fiber configured to perform distributed
10
Appeal2017-005431
Application 14/240,032
sensing of temperature-induced strain and shape sensing is clearly taught by
the references.
Conclusion of Law
We conclude that a preponderance of the evidence supports the
Examiner's conclusion that the subject matter of claim 1 would have been
obvious over Arkwright combined with Larkin.
Claim 3 has not been argued separately and therefore falls with claim
1. 37 C.F.R. § 4I.37(c)(l)(iv).
The Remaining Rejections
While the remaining rejections have been argued separately,
Appellants simply argue that the additional references do not remedy the
deficiencies of Arkwright and Larkin. See, e.g., Appeal Br. 10-11. As
demonstrated above, the teaching of Arkwright and Larkin are not deficient.
We therefore affirm the remaining rejections.
SUMMARY
We affirm the rejections under 35 U.S.C. § 103(a).
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
11