Ex Parte Sabczynski et al

Patent Trial and Appeal Board

Aug 4, 2016

13378175 (P.T.A.B. Aug. 4, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/378, 175 12/14/2011 Joerg Sabczynski
24737 7590 08/08/2016
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.
2009P00582WOUS 1669
EXAMINER
FERNANDEZ, KATHERINE L
ART UNIT PAPER NUMBER
3768
NOTIFICATION DATE DELIVERY MODE
08/08/2016 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 JOERG SABCZYNSKI and HEINRICH SCHULZ
Appeal2014-007666
Application 13/378, 175
Technology Center 3700
Before JENNIFER D. BAHR, GEORGE R. HOSKINS, and
AMANDA F. WIEKER, Administrative Patent Judges.
BAHR, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Joerg Sabczynski and Heinrich Schulz (Appellants) appeal under
35 U.S.C. § 134(a) from the Examiner's decision rejecting claims 1-20. We
have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
Appeal2014-007666
Application 13/378, 175
THE CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
matter.
1. A method of tracking a medical device in a medical procedure,
the method comprising:
capturing real-time images of the anatomy using the
medical device (180);
receiving acceleration data (7 50) from an accelerometer
( 185) that is integrally connected to the medical device ( 180), the
acceleration data being received at a remote processor (120), the
medical device being moved through an anatomy (105) of a
patient towards a target region ( 430) based on the captured real-
time images of the anatomy; and
determining an orientation of the medical device with
respect to the anatomy based on the acceleration data.
REJECTIONS
I. Claims 1, 3, 16, and 17 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Ritter (US 2007 /0270686 Al, pub. Nov.
22, 2007) and Prisco (US 8,337,397 B2, iss. Dec. 25, 2012).
II. Claims 2, 7, 8, 10, and 18 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Ritter, Prisco, and Gilboa
(US 7,233,820 B2, iss. June 19, 2007).
III. Claims 4, 11-13, and 15 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Ritter, Prisco, and Hoheisel
(US 2009/0149740 Al, pub. June 11, 2009).
IV. Claims 5 and 6 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Ritter, Prisco, and Adler
(US 2006/0074289 Al, pub. Apr. 6, 2006).
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V. Claim 9 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Ritter, Prisco, Gilboa, and Hoheisel.
VI. Claim 14 stands rejected under 35 U.S.C. § 103 (a) as
unpatentable over Ritter, Prisco, Hoheisel, and Gilboa.
VII. Claims 19 and 20 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Ritter, Prisco, and Camus
(US 2008/0292046 Al, pub. Nov. 27, 2008).
DISCUSSION
Appellants' independent claims 1 and 11 require, inter alia,
"capturing real-time images of the anatomy using the medical device" and
"the medical device being moved through an anatomy (105) of a patient
towards a target region ( 430) based on the captured real-time images of the
anatomy." Appeal Br. 22, 24 (Claims App.). Independent claim 16 contains
similar limitations. Id. at 25-26.
The Examiner finds that Ritter discloses "receiving acceleration data
from an accelerometer ( 108) that is integrally connected to a medical device
(180)" and "determining an orientation of the medical device with respect to
the anatomy based on the acceleration data." Final Act. 2 (citing i-fi-127-29,
31-32, Fig. 1, Fig. 5). The Examiner finds that Ritter does not "specifically
disclose capturing real-time images of the anatomy using the medical device
and that the medical device is moved through the anatomy towards a target
based on the captured real-time images of the anatomy." Id. at 3. The
Examiner determines that it would have been obvious, in view of Prisco
(col. 2, 11. 43---64; col. 3, 11. 7-12; col. 4, 11. 15-32; col. 7, 11. 37--42; col. 11,
11. 15-16; Figs. 1, 15), to modify Ritter,
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to include capturing real-time images of the anatomy using the
medical device and have the medical device be moved through
the anatomy towards a target based on the captured real-time
images of the anatomy, as taught by [Prisco], in order to provide
accurate visual guidance to an operator, thus avoiding
inadvertently perforating/damaging tissue.
Final Act 3 (citing Prisco, col. 2, 11. 30-47); see also id. at 4--5 (rejecting
claim 16), 8-9 (rejecting claim 11 ).
Appellants contend that the operating principle of Ritter's "closed-
loop navigation method ... encompasses moving the medical [device]
through the anatomy ... based on a comparison ... of a movement ... of a
distal tip of the medical device as determined by inertial signals ... and a
desired movement of [the] distal tip ... in accordance with a planned path"
and that this principle of operation "was designed to overcome limitations of
imaging in medical device navigation." Appeal Br. 11 (citing Ritter i-f 41 ).
According to Appellants:
As such; any modification of the closed-loop navigation method
400 of Ritter as taught by Prisco and/or any other prior art to
replace the inertial signals of Ritter with real-time images of the
anatomy as the basis for navigating the medical device/body
through the anatomy would require a substantial reconstruction
and redesign of Ritter in violation of the operating principle of
Ritter.
Id.; see also id. at 12, 19 (reciting the pertinent limitations of independent
claims 1, 11, and 16 to which the aforementioned arguments are directed).
Lastly, Appellants argue that
any modification of the closed-loop navigation method 400 of
Ritter as taught by Prisco and/or any other prior art to assist the
inertial signal base control of Ritter with real-time images of the
anatomy as feedback control for navigating an endoscope . . .
does [no] more than provide an alternative of imaging
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component 160 of Ritter without teaching or suggesting claims
1-20 of the present application.
Reply Br. 11.
The Examiner points out that "Ritter does disclose the use of imaging
in their navigation method. See Ritter, paragraphs [0032]-[0033], referring
to the use of fluoroscopy imaging or ultrasound imaging and also see
paragraph [0036], referring to the use of MRI in their navigation method."
Ans. 2-3.
Additionally, the Examiner notes,
Ritter further discloses that "real-time physician input may be
incorporated into the loop of FIG. 4" (paragraph [0031]),
wherein the "loop" refers to the above mentioned closed-loop
method ( 400) of navigating a medical device in an operating
region. Ritter further discloses that "A physician uses an
interface 170 and computer 120 to navigate the device tip 122
... The interface 170 also may include one or more displays 110
whereby the physician may view images provided by the MRI
and monitor navigation of the device" (see paragraph [0036]) and
further discloses " ... the wires 720 [i.e. used to control the
direction of the catheter tip] may be operated by the computer
120 acting in response to imaging and physician input".
From the above cited passages, it is clear that imaging as well as
physician input are used to navigate the medical device and thus
it can be said that the operating principle of the navigation
method of Ritter further encompasses imaging and physician
input.
Id. at 3--4 (alterations in original).
Furthermore, the Examiner emphasizes that the obviousness
combination made in the Final Action "is not suggesting that the inertial
signals of Ritter be 'replaced' with real-time images as the basis for
navigating the medical device." Id. at 4 (alterations in original). Instead, the
Examiner determines that "in addition to the use of said inertial signals of
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Ritter which provide current location/orientation information for the medical
device, real-time images provided by the endoscope (i.e. 'medical device'),
as taught by Prisco, can be used to move the endoscope through the anatomy
to reach the target." Id. (alterations in original).
Ritter discloses that "[a] physician uses a graphical user interface
(UIF) 170 and computer 120 to control one or a multiplicity of magnetic
field source(s) 528 and to navigate the device tip 122 in a magnetic field 532
produced by the source(s) 528" and that "[t]he interface 170 also may
include one or more displays 110 whereby the physician may view images
provided by the MRI and monitor navigation of the device 112." Ritter i-fi-1
32, 36 (boldface omitted). Moreover, Ritter teaches "[a] user interface 170
also may be used to receive real-time physician input if desired." Id. i141
(boldface omitted). Taken as a whole, Ritter contemplates alternative or
supplemental input, in addition to the inertial signals, for navigation.
Accordingly, the modification proposed by the Examiner would not change
the basic operating principles of Ritter's system. Moreover, use of real-time
images from the medical device to assist or influence, in any manner, the
navigation of the medical device, even in a secondary, rather than primary,
capacity, would satisfy the limitation in independent claims 1, 11, and 16 of
moving the medical device through a patient's anatomy "based on" the real-
time images. Furthermore, as noted above, the Examiner articulates a
reason, supported by the teachings of Prisco and Ritter, thus providing
rational underpinnings for the modification proposed by the Examiner. See
Final Act. 3; Ans. 3---6.
Appellants also argue that none of the other applied references (Adler,
Gilboa, Camus, or Hoheisel) cures the purported deficiencies of the
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combination of Ritter and Prisco. Appeal Br. 13-18. Having discerned no
such deficiencies, for the reasons discussed above, we likewise are not
apprised of error in the rejections by these arguments. In contesting the
rejections of dependent claims 3, 5, 6, 9, 14, and 17-20, Appellants merely
rely on their arguments, discussed above, advanced against the rejections of
independent claims 1, 11, and 16. Id. at 12-14, 17, 20.
In addition to the arguments discussed above, Appellants also recite
limitations of dependent claims 2, 4, 7, 8, 10, 12, 13, and 15, and baldly
assert that "Ritter in view of Prisco [alone or in further view of Gilboa or
Hoheisel] fails to render obvious" these limitations. Appeal Br. 15-16, 18-
19. Appellants make no attempt to point out where the Examiner's findings
relative to the presence of these elements in the prior art or in the
combination of the teachings of the prior art articulated by the Examiner
with regard to these limitations on pages 6-9 of the Final Action are
deficient. Such arguments are insufficient to apprise us of error in the
rejections of these claims. Cf In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir.
2011) (holding that the Board had reasonably interpreted 37 C.F.R.
§ 41.37(c)(l)(vii) as requiring "more substantive arguments in an appeal
brief than a mere recitation of the claim elements and a naked assertion that
the corresponding elements were not found in the prior art").
For the above reasons, Appellants fail to apprise us of error in the
rejections of claims 1-20. Accordingly, we sustain the rejections of claims
1-20 under 35 U.S.C. § 103(a).
DECISION
All of the Examiner's rejections are sustained. The Examiner's
decision rejecting claims 1-20 is AFFIRMED.
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
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