Ex Parte Schmidt

Patent Trial and Appeal Board

Aug 31, 2017

12750742 (P.T.A.B. Aug. 31, 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.
12/750,742 03/31/2010 Robert SCHMIDT 013658/000391 9340
108549 7590 09/05/2017
Tucker Ellis LLP EXAMINER
Brainlab AG AN, SHAWN S
950 Main Avenue
Suite 1100
Cleveland, OH 44113-7213
ART UNIT PAPER NUMBER
2483
NOTIFICATION DATE DELIVERY MODE
09/05/2017 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):
patents @ tuckerellis. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROBERT SCHMIDT
Appeal 2017-005542
Application 12/750,742
Technology Center 2400
Before CARLA M. KRIVAK, HUNG H. BUI, and JON M. JURGOVAN,
Administrative Patent Judges.
KRIVAK, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1—7, 9—22, and 24—26, which are all the claims pending in the
application. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.
Appeal 2017-005542
Application 12/750,742
STATEMENT OF THE CASE
Appellant’s invention is directed to a method and device for a
“medical navigation image output” assembled from “virtual image data
captured by means of a medical imaging method and . . . actual images
captured during navigation,” with “virtual image data . . . displayed on the
image output primarily and as the basis of the image, and the actual images
. . . superimposed on it merely as an addition” (Spec. Title; Abstract).
Claims 1 and 24 are independent. Independent claim 1, reproduced
below, is exemplary of the subject matter on appeal.
1. An image output method for medical navigation in
which the positional relationship of a trackable instrument with
respect to a part of a patient’s body is ascertained, and in which
the trackable instrument and the part of the patient’s body are
displayed in real time in the correct positional relationship on
an image output, the method comprising:
displaying in real time the part of the patient’s body
based on virtual image data captured via a medical imaging
method and on actual images captured in real time during
navigation
wherein the virtual image data is displayed on the image
output as the primary basis of the image and the actual images
captured in real time are correlated with and added into the
virtual images as the secondary basis of the image so as to
augment the virtual images, wherein the actual images are
confined to at least one continuous area of the image output that
constitutes less than 50% of the overall area of the image output
assembled by the virtual image data and the actual images, and
wherein capturing the actual images comprises capturing the
actual images using a video image capture unit arranged on the
trackable instrument.
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Application 12/750,742
REFERENCES and REJECTIONS
(1) The Examiner rejected claims 1—7, 9—13, 18, 20, 22, and 24—26
under 35 U.S.C. § 103(a) based upon the teachings of Chen (US 5,765,561;
issued June 16, 1998), Hashimoto (US 2005/0054897 Al; published Mar.
10, 2005), Verard (US 2005/0143651 Al; published June 30, 2005), and
Kreuzer (US 2007/0183637 Al; published Aug. 9, 2007).
(2) The Examiner rejected claim 14 under 35 U.S.C. § 103(a) based
upon the teachings of Chen, Hashimoto, Verard, Kreuzer, and Kleiman (US
6,757,416 B2; issued June 29, 2004).
(3) The Examiner rejected claim 15 under 35 U.S.C. § 103(a) based
upon the teachings of Chen, Hashimoto, Verard, Kreuzer, and Hager (US
2008/0281989 Al; published Nov. 13, 2008).
(4) The Examiner rejected claim 16 under 35 U.S.C. § 103(a) based
upon the teachings of Chen, Hashimoto, Verard, Kreuzer, and Carls (US
2008/0183068 Al; published July 31, 2008).
(5) The Examiner rejected claim 17 under 35 U.S.C. § 103(a) based
upon the teachings of Chen, Hashimoto, Verard, Kreuzer, and Cartlidge (US
6,815,659 B2; issued Nov. 9, 2004).
(6) The Examiner rejected claim 19 under 35 U.S.C. § 103(a) based
upon the teachings of Chen, Hashimoto, Verard, Kreuzer, and Boese (US
8,027,526 B2; issued Sept. 27, 2011).
(7) The Examiner rejected claim 21 under 35 U.S.C. § 103(a) based
upon the teachings of Chen, Hashimoto, Verard, Kreuzer, and Crossno (US
4,962,463; issued Oct. 9, 1990).
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Application 12/750,742
ANALYSIS
The Examiner finds the combination of Chen, Verard, and Kreuzer
teaches
wherein the virtual image data is displayed on the image output
as the primary basis of the image and the actual images captured
in real time are correlated with and added into the virtual images
as the secondary basis of the image so as to augment the virtual
images, wherein the actual images are confined to at least one
continuous area of the image output that constitutes less than
50% of the overall area of the image output assembled by the
virtual image data and the actual images,
as claimed in independent claim 1, and similarly recited in independent
claim 24 (Final Act. 3—6; Ans. 14—17). Particularly, the Examiner finds
Chen teaches actual images correlated with and added into virtual images as
a secondary basis so as to augment the virtual images displayed on an image
output (Final Act. 3 (citing Chen col. 9,11. 12—18); Ans. 14). The Examiner
also finds Verard teaches “a secondary image (Fig. 3, 28) comprising a
region of interest (29), the region of interest being a subset (less than 50 %)
of an area represented by a primary/first image data (38) by superimposing
the region of interest (subset) image and the primary image,” which is
“similar to the claimed superimposed images” (Ans. 15 (citing Verard 5,
14,19, 25, Fig. 3); see also Final Act. 4). The Examiner further finds
Kreuzer teaches “weighting with respect to the [images’] brightness” by
which “a subject (first) image and/or a second image can be weighted when
producing the combination or fusing into [a] sum image,” thereby suggesting
‘ ‘'actual images are confined to at least one continuous area of the image
output that constitutes less than 50% . . . [(\by weighting) of the overall area
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Application 12/750,742
of the image output” as required by claim 1 (Ans. 16—17 (citing Kreuzer
26—27, 55)). We do not agree.
We agree with Appellant that Chen, Verard, and Kreuzer, alone or in
combination, fail to teach or suggest that actual images are confined to at
least one continuous area of less than 50% of the overall area of an image
output assembled by virtual images and actual images correlated with and
added into the virtual images, as recited in claim 1 (Br. 7). Rather, Verard’s
“Fig. 3 . . . shows a display of two different images presented side[sic] by
side,” and “[tjhere is simply no teaching in Verard that a first type of image,
such as an actual video image, is correlated with and added into a second
type of image, such as a virtual image,” as claimed (Br. 6 (citing Verard Fig.
3)). Verard also does not teach a “region of interest ([surgical instrument
indicia] 29). . . being a subset (less than 50 %) of an area represented by a
primary/first image data (38)” as asserted by the Examiner (see Ans. 15).
That is, Verard does not teach a proportion between the area of indicia 29
and the area of virtual image data 38 (of “an interior view of an air passage
within the patient”), as Verard merely illustrates an image 28 of indicia 29 in
“an exterior view of the air passage” (see Verard 25, Fig. 3). Further,
indicia 29 is not “superimposed” on image 28. Verard’s image 28 is just the
image of the location of indicia 29 (see Verard 125).
Kreuzer does not make up for the above-noted deficiencies of Verard
and Chen. Kreuzer merely weights two superimposed x-ray images so that
“the whole subject [x-ray] image is placed over the whole second [real time]
x-ray image and then brightness, contrast, and other image parameters are
altered.” This is in contrast to Appellant’s method in which “the actual
images are confined to a continuous area less than 50% of the overall area in
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Application 12/750,742
a ‘picture-in-picture’ manner” (Br. 6—7 (citing Kreuzer || 25—27)). That is,
Kreuzer’s actual/real time (second) x-ray image covers 100% of the overall
area of an image output because the actual x-ray image is semi-transparently
overlaid over another image (subject x-ray image) (see Kreuzer || 20, 24,
27, 31, 35, 55—56). Further, Kreuzer’s subject x-ray image could qualify as
a virtual image previously obtained before using a contrast agent injected
into a patient (see ]f29) and this virtual subject x-ray image (e.g., a cropped
image of only the organ portion of interest, see 4, 17, 20, 22) may be
confined to an area smaller than the second (actual/real time) x-ray image
(see 18, 20). Thus, Kreuzer does not teach “the actual images are
confined to at least one continuous area of the image output that constitutes
less than 50% of the overall area” limitation in claim 1.
Chen similarly fails to teach a relative proportion less than 50%
between the area of an actual (real time) image and “a composite of the
virtual image and the real image, where the virtual image is superimposed
against the real image” (see Chen col. 9,11. 16—18). The Examiner does not
use the additional teachings of Hashimoto, Kleiman, Hager, Carls, Cartlidge,
Boese, and Crossno to cure the above-noted deficiencies of Chen, Verard,
and Kreuzer.
As the Examiner has not shown where the references disclose the
claimed “image output” in which “the actual images are confined to at least
one continuous area of the image output that constitutes less than 50% of the
overall area of the image output,” we do not sustain the Examiner’s rejection
of independent claims 1 and 24, and claims 2—7, 9—22, 25, and 26 dependent
therefrom. Because the above-discussed issue is dispositive as to the
obviousness rejections of all claims on appeal, we do not reach additional
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issues raised by Appellant’s arguments as to the rejections of claims 16, 17,
21, 25, and 26.
DECISION
The Examiner’s decision rejecting claims 1—7, 9—22, and 24—26 is
reversed.
REVERSED
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