Ex Parte Ruijters

Patent Trial and Appeal Board

Nov 29, 2016

13695641 (P.T.A.B. Nov. 29, 2016)

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.
13/695,641 11/01/2012 Daniel Simon Anna Ruijters 2010P00409WOUS 3584
24737 7590 03/31/2017
PTTTT TPS TNTFT T FfTTTAT PROPFRTY fr STANDARDS
EXAMINER
465 Columbus Avenue RIVERA-MARTINEZ, GUILLERMO M
Suite 340
Valhalla, NY 10595 ART UNIT PAPER NUMBER
2668
NOTIFICATION DATE DELIVERY MODE
03/31/2017 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 DANIEL SIMON ANNA RUIJTERS
Appeal 2016-003700
Application 13/695,6411
Technology Center 2600
Before HUNG H. BUI, ADAM J. PYONIN, and AMBER L. HAGY,
Administrative Patent Judges.
BUI, Administrative Patent Judge.
DECISION ON REQUEST FOR REHEARING
Appellant has filed a Request for Rehearing under 37 C.F.R. § 41.52
for reconsideration of our Decision on Appeal, mailed September 26, 2016
(“Decision”). In that Decision, we affirmed the Examiner’s final rejection of
claims 1—4, 6, 7, 9, 15—24, 26, 27, and 29 under 35 U.S.C. § 103(a) as being
unpatentable over Frank et al. (US 2009/0290771 Al; published Nov. 26,
2009; “Frank”) and Simon et al., (US 6,470,207 Bl; published Oct. 22,
2002; “Simon”). We have considered the arguments presented by Appellant
in the Request for Rehearing (“Req. Reh’g”), but we are not persuaded that
any points were misapprehended or overlooked by the Board in issuing the
1 According to Appellant, the real party in interest is Koninklijke Philips
Electronics N.V. App. Br. 3.
Appeal 2016-003700
Application 13/695,641
Decision. We have provided herein additional explanations, but decline to
change our decision in view of Appellant’s arguments.
ANALYSIS
The applicable standard for a Request for Rehearing is set forth in
37 C.F.R. § 41.52(a)(1), which provides in relevant part, “[t]he request for
rehearing must state with particularity the points believed to have been
misapprehended or overlooked by the Board.”
In this case, Appellant requests a rehearing not on the basis of any
points believed to have been misapprehended or overlooked by our
Decision, but on the basis of Appellant’s disagreement and
mischaracterization of our factual findings regarding Frank. See Req. Reh’g
6—24. In particular, Appellant argues Frank does not teach the disputed
function of Appellant’s claimed “image processor,” i.e., “overlaying live X-
ray images onto the first two-dimensional projection constituting a first
view,” as recited in independent claim 1, and similarly recited in
independent claims 6 and 9 for the following reasons:
(1) There is no disclosure or suggestion of, in accordance with
claim 1, overlaying fluoroscopic (Examiner's Answer, page 4,
line 3: “fluoroscopic”) images onto any of the 12 lower panes (id.
at page 12, fourth line up from the bottom: “slice views”) in
Frank Fig. 4. See reply brief, page 9, lines 16-18. Nor is there
disclosure or suggestion of, in accordance with claim 1,
overlaying fluoroscopic images onto any other 2D projections of
a 3D image data set, such as Frank images 208 or 210;
(Req. Reh’g 6)
(2) “If, on the other hand, the Decision is saying that Frank
image 204 or 206 is overlaid onto any of the 12 lower panes of
Frank Fig. 4, it would appear that the Decision is misinterpreting
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Application 13/695,641
the meaning the of the claim 1 term ‘overlaying’ in the context
of the claim 1”;
(Req. Reh’g 7; emphasis added)
(3) “The Board has misapprehended what the claim 1
language ‘overlaying ... onto ...’ means to one having ordinary
skill in the art at the time the invention was made”;
(Req. Reh’g 11—12).
(4) “To go the extra step of characterizing such a ‘combining’
as the ‘overlaying ... onto ...’ of claim 1 only adds to the
incorrectness of the Decision’s position”; and
(Req. Reh’g 13).
(5) “The Decision says that ‘overlaying’ in claim 1 is being
interpreted broadly. The Decision is thereby verifying, or
coming close to verifying, that indeed at least one of the
arguments being offered is equating the ‘overlaying ... onto’ of
claim 1 to ‘co-registering an image with another image.’ The
Board has thus overlooked or misapprehended what claim 1
says.”
(Req. Reh’g 16).
We remain unpersuaded by Appellant’s new arguments. At the
outset, we note that the Board has not misapprehended or overlooked any
points or arguments originally raised by Appellant. The Board carefully
considered Appellant’s previous arguments, but nevertheless found Frank
teaches or suggests the disputed function of Appellant’s claimed “image
processor,” i.e., “overlaying live X-ray images onto the first two-
dimensional projection constituting a first view,” as recited in claims 1, 6,
and 9. Dec. 7—9.
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Application 13/695,641
In our Decision, we explained that the term “overlaying” is not
explicitly defined in Appellant’s Specification; instead, that term is only
described generally in the context of “overlaying” X-ray images onto the
first two-dimensional projection [of a 3D image data set].” Dec. 8 (citing
Spec. 4:28—30, 9:5—7). Appellant’s Specification is also silent regarding the
meaning of the first or second “two-dimensional projection” of a 3D data
set. In fact, Appellant’s Specification is imprecise, with only 4 pages of
conflicting text as to whether the two different views of a 3D image set are
connected to different types of 2D projections. For example, Appellant’s
Abstract describes:
a medical viewing system having an X-ray image acquisition
device a data processing unit is adapted for generating two
different views on a three-dimensional image set, wherein a first
view is corresponding to the viewing direction of the X-ray
image acquisition device and a second view has a rotational
offset to the first viewing direction. The first view may include
live X-ray images, e.g.[,] for monitoring a stent placement. The
second view 10 supports a clinician to unambigously [sic] judge
whether ostia connection points may be blocked that are not
clearly visible in anterior-posterior images.
Abstract, Koninklijke Philips Electronics N.V. (emphasis added).
Similarly, Appellant’s Specification describes “[t]he gist of the
invention lies in displaying two different views onto an object of interest
represented by a three-dimensional image data at two distinct viewing
angles.” Spec. 3:5—6. According to Appellant,
“a method for generating an angulated view onto an object of
interest, which method basically comprises the steps of selecting
a viewing direction, moving the X-ray image acquisition device
to correspond this viewing direction, obtaining X-ray images,
generating a first view corresponding to the selected viewing
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angle, overlaying X-ray images, generating an angulated view
represented by an offset angle to the first viewing direction and
further optionally generating reference lines to mark an
intravascular device in the angulated view.”
Spec. 4:26—31. However, Appellant’s Specification does not describe (1)
how “[a] first projection of a three-dimensional data set corresponding to the
selected viewing direction is generated” and (2) how “the obtained X-ray
images are overlaid 44 with this first view” shown in Figure 2. Spec. 9:5—7.
Nevertheless, Appellant’s Figure 2 shows the first and second (angulated)
views of an object as described in Appellant’s Abstract, as reproduced with
additional markings for illustration.
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Application 13/695,641
As shown in Appellant’s Figure 2, the first and second (angulated)
views of an object are not very different from various views of an object
shown in Frank’s Figures 8—19. For example, Frank’s Figure 16 shows a
visual display of a first view (anterior/posterior “AP” image) 204 and a
second view (lateral image) 206 of an object in 3D image data in a SIDE-
BY-SIDE manner, via display 12, as reproduced below:
COMPETE
FIG. 16
Frank’s Figure 16 shows a display of a first view (anterior/posterior
“AP” image) 204 and a second view (lateral image) 206 of an object in 3D
image data in a SIDE-BY-SIDE manner.
As shown in Frank’s Figure 16, the first image (“AP” image) 204 and
the second image (lateral image) 206 of a patient in 3D scan are displayed
on display 12. Frank || 46, 47, 49, and 51—52.
Based on our reading of Appellant’s Specification, and in the absence
of any explicit definition of the term “overlaying” or the term “first two-
dimensional projection” of a 3D data set, we agreed with and adopted the
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Examiner’s broad construction of the claimed “overlaying [live] X-ray
images onto the first two-dimensional projection [of a 3D image data set]”
as encompassing Frank’s combining X-ray images and a 2D projection (e.g.,
patient orientation) to generate a digitally reconstructed radiograph (DRR).
Dec. 8 (citing Ans. 13—14; Frank || 40, 46-47, and 49). Contrary to
Appellants’ arguments, the term “overlaying” can be broadly interpreted to
encompass “combining” in context of Frank’s disclosure. More importantly,
we also explained that Frank teaches the concept of “overlaying” 3D images
such as fluoroscopic images of a patient with graphical representations of
surgical instrument. Dec. 9 (citing Frank H 4—5). When Frank’s teachings
are considered together, we find Frank teaches the disputed function of the
claimed “image processor,” i.e., “overlaying live X-ray images onto the first
two-dimensional projection constituting a first view,” as recited in
independent claim 1, and similarly recited in independent claims 6 and 9.
CONCFUSION
We have considered new arguments raised by Appellant in the
Request, but find none of these arguments persuasive that our original
Decision misapprehended or overlooked any points raised by Appellant
resulting in error. It is our view that Appellant has not identified any points
the Board misapprehended or overlooked. We decline to grant the relief
requested. This Decision on Appellant’s “REQUEST FOR
REHEARING” is deemed to incorporate our earlier Decision by reference.
See 37 C.F.R. § 41.52(a)(1).
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DECISION
We have granted Appellant’s request to the extent that we have
reconsidered our Decision, but we deny the request with respect to making
any changes therein. The Examiner’s decision rejecting claims 1—4, 6, 7, 9,
15—24, 26, 27, and 29 under 35 U.S.C. § 103(a) remains AFFIRMED.
REHEARING DENIED
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