Ex Parte Vitek et al

Patent Trial and Appeal Board

Feb 18, 2016

12535004 (P.T.A.B. Feb. 18, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/535,004 08/04/2009
23517 7590 02/22/2016
MORGAN, LEWIS & BOCKIUS LLP (BO)
1111 PENNSYLVANIA A VENUE, N.W.
WASHINGTON, DC 20004
FIRST NAMED INVENTOR
Shuki Vitek
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.
INS-05117301742001 1640
EXAMINER
FISHER, MICHAEL NAPOLEON
ART UNIT PAPER NUMBER
3737
NOTIFICATION DATE DELIVERY MODE
02/22/2016 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):
kcatalano@morganlewis.com
patents@morganlewis.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SHUKI VITEK, RITA SCHMIDT,
and AMIR SEGINER
Appeal2013-005754
Application 12/535,004
Technology Center 3700
Before CHARLES N. GREENHUT, MICHELLE R. OSINSKI, and
MICHAEL L. WOODS, Administrative Patent Judges.
OSINSKI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Shuki Vitek et al. (Appellants) 1 appeal under 35 U.S.C. § 134 from
the Examiner's final decision rejecting claims 1-19. We have jurisdiction
under 35 U.S.C. § 6(b ).
We REVERSE.
1 According to Appellants, the real party in interest is Insightec Ltd. App.
Br. 2.
Appeal2013-005754
Application 12/535,004
THE CLAIMED SUBJECT MATTER
Claims 1, 16, 17, and 19 are the independent claims on appeal. Claim
1, reproduced below, is illustrative of the claimed subject matter on appeal.
1. A method for calibrating a magnetic-resonance-guided
focused-ultrasound system, comprising:
(a) providing a phased array of ultrasound transducers,
the array having at least one magnetic resonance (MR) tracker
associated therewith at a fixed relative position with respect
thereto;
(b) establishing MR coordinates of the MR trackers;
( c) for each of a plurality of sonication schemes, (i)
creating an ultrasound focus, and (ii) establishing parameters
indicative of MR coordinates of the ultrasound focus, wherein
each sonication scheme is associated with a scheme-specific set
of production errors; and
( d) based at least in part on the parameters, determining a
geometric relationship between the ultrasound transducers and
the MR trackers.
EVIDENCE
The Examiner relied on the following evidence in rejecting the claims
on appeal:
Kuhn
Hynynen
Mourad
Camus
us 5,339,282
US 2006/0052706 Al
US 2006/0079773 Al
US 2007/0016013 Al
REJECTIONS
Aug. 16, 1994
Mar. 9, 2006
Apr. 13, 2006
Jan. 18,2007
I. Claims 1-3 and 6-16 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Hynynen and Kuhn. Final Act. 3---6.
II. Claims 4 and 5 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Hynynen, Kuhn, and Mourad. Id. at 6-7.
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Application 12/535,004
III. Claims 17-19 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Hynynen, Kuhn, and Camus. Id. at 7-9.
OPINION
Rejection I
The Examiner finds, inter alia, that Hynynen teaches "for each of a
plurality of sonication schemes, (i) creating an ultrasound focus, and (ii)
establishing parameters indicative of MR coordinates of the ultrasound
focus," as well as "based at least in part on the parameters, determining a
geometric relationship between the ultrasound transducers and the MR
trackers." Final Act. 3 (citing Hynynen, Figs. 7-10).
With respect to the establishment of parameters indicative of MR
coordinates of the ultrasound focus, the Examiner elaborates that Hynynen's
computer system 30 identifies the location (i.e., foci) of target tissue 24,
monitors movement of target tissue 24 using MRI data 28, and tracks the
progress of sonication. Ans. 10 (citing Hynynen i134). The "Examiner
interprets this as creating an ultrasound focus to identify the foci (i.e.,
location) of the target tissue and to establish[] parameters indicative of MR
coordinates of the ultrasound focus." Id.
Appellants argue that this merely shows that Hynynen identifies MR
coordinates of target tissue, not MR coordinates of the ultrasound foci.
Reply Br. 4--5. Even assuming arguendo that Hynynen's identification and
monitoring of target tissue results in the establishment of parameters
indicative of MR coordinates of the ultrasound focus (under an assumption
that the ultrasound focus would be focused on the target tissue), we are
persuaded by Appellants' subsequent argument that the Examiner has not
adequately explained how these established parameters indicative of MR
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Appeal2013-005754
Application 12/535,004
coordinates of the target tissue are used, at least in part, in determining a
geometric relationship between the ultrasound transducers and the MR
trackers as required by the claims.
With respect to the step of "based at least in part on the parameters
[indicative of MR coordinates of the ultrasound focus], determining a
geometric relationship between the ultrasound transducers and the MR
trackers, the Examiner's position is that:
Hynynen teaches wherein the coordinate registration function
120 registers the coordinates of the ultrasound array 20 with the
coordinates of the MRI data 28. Then, the target-tissue
identification function 122 identifies the image space coordinates
of the target tissue. These coordinates are translated from image
space 264 to array space 260 by the coordinate registration
function 120 [] and wherein an image marker 48 has known
coordinates 262 denoted by Q, where Q=[ x y z] is referenced to
the array-coordinate system. The coordinate registration
function 120 begins by storing the coordinates 262 in memory
(step 150). An MRI image is taken of the image marker 48 and
its surroundings. The computer system 30 receives and stores
the resulting MRI data (step 152) and identifies the image marker
(step 154) []. Examiner interprets this as determining a
geometric relationship between the ultrasound transducers and
the MR trackers.
Ans. 11-12 (citing Hynynen i-fi-141, 42).
Appellants argue that this description in Hynynen is simply "a
conventional system" in which MR coordinates of target tissue are identified
and then transformed to array coordinates (Reply Br. 4) using a calculated
"transformation matrix that determines the relationship between the array-
coordinate system and the [MR] image-coordinate system based on already-
known array coordinates and measured image coordinates of an image
marker" (App. Br. 8) (citing Hynynen i1 42) (emphasis omitted). Appellants
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Application 12/535,004
further argue that "determining a geometric relationship based on the
location of an image marker is entirely unrelated to determining a geometric
relationship based on the location of ultrasound foci generated by multiple
sonication schemes." Id. (emphasis omitted). We agree with Appellants.
Even assuming arguendo that the Examiner has reasonably identified
in Hynynen a determination of a geometric relationship between ultrasound
transducers and MR trackers, this geometric relationship is determined based
on known array coordinates of the transducer, the measured MR coordinates
of the image marker, and a transformation matrix that "relates the array-
coordinate system to the image-coordinate system." Hynynen i-f 42. The
Examiner has not adequately explained, nor do we discern from our review
of Hynynen, how Hynynen discloses that the determined geometric
relationship between the ultrasound transducers and Hynynen's image
markers is based in any part on the MR coordinates of an ultrasound focus
(or the MR coordinates ofHynynen's target tissue which we assume
arguendo aligns with the ultrasound focus). The Examiner also does not
explain how Kuhn might remedy this deficiency. See Final Act. 4; see also
Ans. 4--5.
For the foregoing reasons, we do not sustain the Examiner's rejection
of independent claims 1 and 16, and claims 2, 3 and 6-15, which depend
therefrom, under 35 U.S.C. § 103(a) as unpatentable over Hynynen and
Kuhn.
Rejections II and III
Claims 4 and 5 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Hynynen, Kuhn, and Mourad, and claims 17-19 stand
rejected under 35 U.S.C. § 103(a) as unpatentable over Hynynen, Kuhn, and
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Application 12/535,004
Camus. Final Act. 6-9. The rejections of these claims rely on the
Examiner's erroneous finding that Hynynen teaches determining a geometric
relationship between ultrasound transducers and MR trackers based at least
in part on parameters or MR imaging data that is indicative of MR
coordinates of the ultrasound focus. Id. The Examiner does not explain how
Mourad or Camus cures this underlying deficiency. Id. Accordingly, for the
reasons discussed supra, we do not sustain, under 35 U.S.C. § 103(a), the
Examiner's rejection of claims 4 and 5 as unpatentable over Hynynen, Kuhn,
and Mourad, nor claims 17-19 as unpatentable over Hynynen, Kuhn, and
Camus.
DECISION
The Examiner's decision to reject claims 1-19 is REVERSED.
REVERSED
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