Ex Parte Steckner et al

Patent Trial and Appeal Board

Feb 8, 2013

10573727 (P.T.A.B. Feb. 8, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte MICHAEL C. STECKNER, PETER BOERNERT, and
KAY NEHRKE
__________

Appeal 2011-004730
Application 10/573,727
Technology Center 3700
__________

Before TONI R. SCHEINER, ERIC GRIMES, and ERICA A. FRANKLIN,
Administrative Patent Judges.

GRIMES, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims related to a
radiotherapy apparatus and method, which have been rejected for
anticipation and obviousness. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.
STATEMENT OF THE CASE
“One of the factors in planning oncological procedures is accurately
aligning an interventional tool with the internal tumor” (Spec. 1: 15-16).
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“The more precisely the size, shape, and position of the tumor are known,
the more precisely the treatment beam can be shaped to minimize the
exposure of surrounding tissue while assuring the treatment of all cancerous
tissue” (id. at 1: 28-30).
The Specification states that, in one known technique, “to track the
movement of the target, one or more internal markers have been attached to
or placed near various locations on or near the target organ. . . . From the
placement of the internal markers, it is possible to determine the position of
the target using imaging techniques such as x-ray or ultrasound.” (Id. at
2: 25-30.) “A drawback to this method of tumor tracking, however, is that it
involves the invasive procedure of implanting the internal markers” (id. at
3: 1-2).
The Specification discloses a system in which “external reference, or
fiducial, markers 210 are placed on the subject such that they are positioned
within the [MRI] imaging region 110 and in a desired proximity to the
region of interest 130” (id. at 5: 17-19). An “MRI localizer 150 . . . localizes
the region of interest 130, such as an internal tumor, and optionally the
reference markers 210” (id. at 5: 23-25) and “a reference marker localizer
160 . . . localiz[es] the reference marker positions” (id. at 6: 1-2). A
“tracking processor . . . generates a model relating the position of the tumor
with respect to the external markers” (id. at 6: 18-19), so that treatment can
be directed specifically to the tumor (id. at 6: 20 to 7: 2).
Claims 1-15 are on appeal. Claims 1 and 6 are representative and read
as follows:
1. A target treatment apparatus for treating a target region within a
subject, the apparatus comprising:
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an MRI apparatus for generating MR images during an MR scan of
the subject disposed within an examination region;
an MRI localizer for receiving the image data from the MRI apparatus
wherein the target is localized;
a reference marker localizer for non-invasively receiving reference
data from a plurality of reference points disposed in proximity to the target
wherein the reference points are localized; and
a tracking processor for receiving localized data from the MRI
localizer wherein a relationship between the reference points and the target
region is generated.

6. A method of treating a target region within a subject, the method
comprising:
generating magnetic resonance images of the subject disposed within
an examination region;
localizing the target region from the MR images;
non-invasively localizing a plurality of reference points disposed In
proximity to the target; and
generating a relationship between the reference points and the target
region.

The Examiner has rejected claims 1-4, 6-9, and 11-14 under 35 U.S.C.
§ 102(b) as anticipated by Schweikard1 (Answer 3), and has rejected claims
5, 10, and 15 under 35 U.S.C. § 103(a) as obvious based on Schweikard and
Acker2 (Answer 4). The same issue is dispositive for both rejections.
The Examiner finds that “Schweikard discloses an apparatus and a
method for tracking and treatment of [a] target region” that includes all of
the limitations of the independent claims on appeal (id. at 3).
Appellants argue, however, that “Schweikard is exemplary of th[e]
acknowledged prior art . . . [that] requires the implantation of internal

1 Schweikard et al., US 6,501,981, Dec. 31, 2002
2 Acker et al., US 6,374,132 B1, Apr. 16, 2002
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markers 152” (Appeal Br. 10). Appellants argue that, by contrast, “Claim 1
calls for a reference marker localizer for non-invasively receiving reference
data from a plurality of reference points disposed in proximity to the target,
wherein the reference points are localized” (id.). Similarly, with regard to
claim 6, Appellants argue that Schweikard discloses internal reference
markers that are invasively implanted into the patient, so that “localizing the
internal markers 152 is an invasive rather than a non-invasive localizing
process” (id. at 14).
We agree with Appellants that Schweikard does not disclose a system
or method that includes “a reference marker localizer for non-invasively
receiving reference data from a plurality of reference points disposed in
proximity to [a] target” within a subject (claim 1), or the corresponding
limitation of claim 6 or claim 11, the only other independent claims.
The Specification distinguishes the inventive method from prior art
methods requiring implantation of internal markers (Spec. 2: 25 to 3: 8) and
discloses that an “advantage of the present invention is that it is non-
invasive” (id. at 4: 13). We agree with Appellants that the broadest
reasonable interpretation of “non-invasively receiving reference data from a
plurality of reference points” (claim 1) or “non-invasively localizing a
plurality of reference points” (claims 6 and 11) excludes an invasive step of
implanting internal markers.
Schweikard discloses “an apparatus and method for compensating for
breathing and other motion of a patient . . . which combines internal markers
placed on the target organ with one or more external sensors to accurately
track the position and motion of a moving target region” (Schweikard, col. 2,
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ll. 10-15, emphasis added). Although Schweikard discloses that its method
can include the use of “one or more external markers 180” (id. at col. 6,
l. 55), it expressly states, as Appellants point out, that the “external markers
are not sufficiently precise to compensate for the motion of the patient.
Therefore, the combination of the internal markers and the external markers
is necessary in order to accurately track the motion of the target organ.” (Id.
at col. 7, ll. 3-7.) Schweikard therefore requires the use of invasive internal
markers.
The Examiner argues that Schweikard’s system and method meet the
claim limitations because “the reference markers/points are the external
sensors that transmit reference data to the reference marker localizer in order
to determine the position of the external sensors non-invasively on the
patient; examiner interprets target as the patient under examination”
(Answer 5).
We do not agree that this claim interpretation is reasonable, based on
the claim language and the Specification. Each of claims 1, 6, and 11 recites
treating “a target region within a subject,” and therefore the target region
cannot fairly be interpreted as the subject (patient) itself. The
Specification’s disclosure is also consistent with requiring the target region
of the claims to be a discrete area within a patient rather than the patient
himself. See, e.g., Spec. 5: 15-16 (distinguishing between “region of interest
130” and “subject 140”), and id. at 7: 4-5 (“the markers are placed on the
subject 140 in the vicinity of the target tissue to be treated 130”).
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SUMMARY
We reverse the rejection of claims 1-4, 6-9, and 11-14 as anticipated
by Schweikard. We also reverse the rejection of claims 5, 10, and 15 as
obvious based on Schweikard and Acker because the obviousness rejection
relies on the same findings as the anticipation rejection.

REVERSED

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