Ex Parte WILK

Board of Patent Appeals and Interferences

Mar 16, 2007

09342824 (B.P.A.I. Mar. 16, 2007)

The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte PETER J. WILK
____________

Appeal 2006-1987
Application 09/342,824
Technology Center 3700
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Decided: March 16, 2007
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Before TERRY J. OWENS, MURRIEL E. CRAWFORD, and STUART S.
LEVY, Administrative Patent Judges.

OWENS, Administrative Patent Judge.

DECISION ON APPEAL
The Appellant appeals from a rejection of claims 1-28, which are all
of the pending claims.
THE INVENTION
The Appellant claims medical treatment methods and systems.
Claims 1 and 23 are illustrative:
Appeal 2006-1987
Application 09/342,824

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1. A method for treating cancer, comprising:

detecting a tumor in a patient; and

applying mechanical pressure waves to said tumor at a
mechanical resonance frequency of the entire tumor as a unitary body,
to effectively destroy said tumor.

23. A method for performing a medical operation, comprising:

placing a plurality of electrochemical transducers in pressure-
wave-transmitting contact with a patient;

energizing at least some of said transducers with an ultrasonic
frequency to produce ultrasonic first pressure waves in the patent;

energizing at least one of said transducers with another
frequency in a range below ultrasonic to produce second pressure
waves in the patient; and

analyzing ultrasonic third pressure waves produced at internal
tissue structures of the patient in response to said first pressure waves
to determine three dimensional shapes of said tissue structures and to
monitor resonant motion of said tissue structures in response to said
second pressure waves.

THE REFERENCES
Drewes US 4,315,514 Feb. 16, 1982
Granz US 5,526,815 Jun. 18, 1996
Wilk US 5,871,446 Feb. 16, 1999
THE REJECTIONS
The claims stand rejected as follows: claim 1 under
35 U.S.C. § 102(b) as anticipated by Drewes, and claims 1-28 under
35 U.S.C. § 103 as obvious over Wilk in view of Granz and Drewes.
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OPINION
The rejection over Drewes is affirmed, and the rejection over Wilk in
view of Granz and Drewes is affirmed as to claims 1 and 15 and reversed as
to claims 2-14 and 16-28.
Rejection over Drewes
Drewes discloses non-invasive, selective destruction of tumorous
tissue cells by ultrasonic transmission (Drewes, col. 1, ll. 7-10). Drewes
locates abnormal cells and takes a biopsy of them (Drewes, col. 5, ll. 45-46).
The resonant frequency of the biopsy cells is detected by gradually
increasing the frequency of a radio frequency generator such that the
frequency of an ultrasonic beam generated by a piezoelectric crystal is
varied over the expected useful range of resonant frequencies of the biopsy
cells (Drewes, col. 6, ll. 16-21). “[C]ells exhibit several resonant
frequencies corresponding, for example, to linear motion of the nucleus,
distortion of the nucleus, distortion of the cell wall, etc.” (Drewes, col. 6, ll.
23-26). As the ultrasonic beam is varied over the expected resonant
frequency range, the resonant frequencies of the cells are indicated by
amplified movement of the cell structure as detected by an interferometer
(Drewes, col. 6, ll. 43-47). Once the potentially useful resonant frequencies
of the biopsy cells are known, the damping coefficients of the cells at those
frequencies are determined (Drewes, col. 6, ll. 63-65). Once the damping
coefficients corresponding to the resonant frequencies are known, the energy
intensity required to destroy the cells at each resonant frequency is
determined (Drewes, col. 7, ll. 32-35; col. 9, ll. 3-5, 34-37 and 50-52). The
resonant effect that would be imparted to the various intervening body
tissues at each potentially destructive resonant frequency is determined, and
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Application 09/342,824

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then the potentially destructive frequency imparting the least resonant effect
to the intervening body tissue is selected (Drewes, col. 10, ll. 3-22). A radio
frequency generator is adjusted to drive a crystal at the frequency and
intensity of the selected destructive beam until the target cells are destroyed
(Drewes, col. 10, ll. 39-50). If the abnormal cells define a growth of some
thickness, the intensity of the ultrasonic beam must be increased to
compensate for attenuation losses from transmission of the beam through the
growth so as to insure destruction of the cells farthest from the beam’s
source (Drewes, col. 10, ll. 58-63). If the target cells occupy a volume in
excess of the focal zone of the lens used to direct the beam, the beam can be
scanned to impact the entire abnormal growth without regard to whether
neighboring healthy cells are impacted (Drewes, col. 10, l. 66 – col. 11,
l. 21).
The Appellant argues that Drewes’ method is directed toward small
parts of a tumor, and Drewes’ resonant frequency is that of individual cells
or thinly sliced biopsies of a tumor, not of the tumor as a whole (Br. 5;
Reply Br. 1-2). Drewes’ beam selected based upon the biopsies has an
intensity and resonance frequency that destroys all the target cells in a
tumor, even if the tumor is thick or wide, not just the cells in the region in
which a biopsy was taken (Drewes, col. 10, l. 49 – col. 11, l. 21). Hence,
Drewes’ selected beam has “a mechanical resonance frequency of the entire
tumor as a unitary body” as required by the appellant’s claim 1.
We therefore are not convinced of reversible error in the Examiner’s
rejection of claim 1 over Drewes.
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Rejection over Wilk in view of Granz and Drewes
Because anticipation is the epitome of obviousness, see In re Skoner,
517 F.2d 947, 950, 186 USPQ 80, 83 (CCPA 1975); In re Pearson, 494 F.2d
1399, 1402, 181 USPQ 641, 644 (CCPA 1974), we affirm the rejection of
claim 1 over Drewes in combination with Wilk and Granz.
Claim 15, which depends from claim 1, requires transmitting the
mechanical pressure wave through overlying tissues of the patient. Drewes’
disclosure that “[a] transmission path through the patient’s body to the
abnormal cells is then selected” (Drewes, col. 2, ll. 64-65) indicates that the
beam is transmitted through tissues overlying the abnormal cells. We
therefore affirm the rejection of claim 15 over Drewes in combination with
Wilk and Granz.
Wilk discloses “a medical system which determines three-dimensional
shapes of internal organs by using ultrasonic pressure waves” (Wilk, col. 1,
ll. 14-16). Wilk places adjacent a patient’s skin surface a flexible web that is
conformable to the patient and has attached thereto at least one
electroacoustic transducer and at least one acoustoelectric transducer (Wilk,
col. 2, ll. 39-43). The electroacoustic transducer is energized with an
electrical signal having an ultrasonic frequency to produce a first pressure
wave (Wilk, col. 2, ll. 49-52). In response to the first pressure wave, second
pressure waves are produced at internal organs and at the distal end of a
medical instrument that has been inserted into the patient (Wilk, col. 2, ll.
46-55). Signals are generated by the acoustoelectric transducer in response
to the second pressure waves and are automatically analyzed to determine
three-dimensional shapes of the internal organs and a location of the distal
end of the medical instrument relative to the internal organs, thereby
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Application 09/342,824

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enabling real time manipulation of the instrument to conduct a medical
operation on a selected one of the internal organs (Wilk, col. 2, ll. 52-61).
Granz discloses “a therapy apparatus for locating and treating a zone
in the body of a living subject with acoustic waves” (Granz, col. 1, ll. 10-
12). The apparatus includes an electroacoustic transducer that “generates
therapeutic acoustic waves focused onto a zone of action in the therapy
mode having a first frequency and generates diagnostic acoustic waves in the
locating mode having a second frequency, and receives portions of the
diagnostic acoustic waves reflected in the body of the subject in the locating
mode and converts them into electric signals” (Granz, col. 2, ll. 6-12). The
therapeutic and diagnostic waves are ultrasonic, and the frequency of the
therapeutic waves is lower than that of the diagnostic waves (Granz, col. 6,
ll. 48-53).
The Appellant’s claims 2-14 and 16 require monitoring a tumor’s
oscillatory motion resulting from transmission of investigatory pressure
waves into a patient. Claims 17-22 require analyzing incoming pressure
waves to determine mechanical resonant characteristics of internal tissue
structures of a patient, and determining which of a plurality of transducers
on a carrier are to be energized to resonantly overload one of the tissue
structures and thereby destroy it. Claims 23-28 require monitoring resonant
motion of tissue structures in response to below-ultrasonic pressure waves in
a patient.
The Examiner argues that “[i]t would have been obvious to one
skilled in the art at the time the invention was made to have used the
transducers of Wilk’446 in view of Granz et al.’815 to detect resonant
frequencies of selected cells and use a destructive frequency for the selected
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Application 09/342,824

7
cells as a way of treatment as taught by Drewes et al.’514 as an alternative
way to treat the area of interest” (Answer 4).
For a prima facie case of obviousness to be established, the teachings
from the prior art itself must appear to have suggested the claimed subject
matter to one of ordinary skill in the art. See In re Rinehart, 531 F.2d 1048,
1051, 189 USPQ 143, 147 (CCPA 1976). The mere fact that the prior art
could be modified as proposed by the Examiner is not sufficient to establish
a prima facie case of obviousness. See In re Fritch, 972 F.2d 1260, 1266, 23
USPQ2d 1780, 1783 (Fed. Cir. 1992). The Examiner must explain why the
prior art would have suggested to one of ordinary skill in the art the
desirability of the modification. See Fritch, 972 F.2d at 1266, 23 USPQ2d at
1783-84.
The Examiner’s argument that one of ordinary skill in the art would
have used the transducers of Wilk and Granz to monitor resonant motion of
tissue structures as an alternative way to treat the area of interest does not
include the required explanation as to why the references themselves would
have fairly suggested doing so to one of ordinary skill in the art. The
Examiner, therefore, has not carried the burden of establishing a prima facie
case of obviousness of the inventions claimed in the Appellant’s claims 2-14
and 16-28.
DECISION
The rejection of claim 1 under 35 U.S.C. § 102(b) over Drewes is
affirmed. The rejection of claims 1-28 under 35 U.S.C. § 103 over Wilk in
view of Granz and Drewes is affirmed as to claims 1 and 15 and reversed as
to claims 2-14 and 16-28.
Appeal 2006-1987
Application 09/342,824

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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)(2006).
AFFIRMED-IN-PART

hh

COLEMAN SUDOL SAPONE, P.C.
714 COLORADO AVENUE
BRIDGEPORT, CT 06605-1601