Gerard van Rhoon et al.

Patent Trials and Appeals Board

Dec 31, 2020

2019006702 (P.T.A.B. Dec. 31, 2020)

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.
14/239,658 06/19/2014 Gerard Cornelis van Rhoon 289039 2756
23460 7590 12/31/2020
LEYDIG VOIT & MAYER, LTD
TWO PRUDENTIAL PLAZA, SUITE 4900
180 NORTH STETSON AVENUE
CHICAGO, IL 60601-6731
EXAMINER
EKRAMI, YASAMIN
ART UNIT PAPER NUMBER
3794
NOTIFICATION DATE DELIVERY MODE
12/31/2020 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):
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GERARD CORNELIS VAN RHOON,
MARGARETHUS MARIUS PAULIDES, JURRIAAN FOKKE BAKKER,
and ROELF ALBERT ROSKAM

Appeal 2019-006702
Application 14/239,658
Technology Center 3700
Before JENNIFER D. BAHR, JEREMY M. PLENZLER, and
CARL M. DEFRANCO, Administrative Patent Judges.
DEFRANCO, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–10 and 14–16. Appeal Br. 1. Claims
11–13 were withdrawn. Id. A telephonic hearing was held on
November 12, 2020. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42(a). Appellant identifies the real party in interest as Erasmus
University Medical Center Rotterdam. Appeal Br. 1.

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CLAIMED SUBJECT MATTER
The claimed invention is directed to a “hyperthermia system” having
“one or more RF antenna” for “generating a focused three-dimensional RF
field” on a patient. Spec. 2:5–14. Claim 1, the sole independent claim, is
reproduced below.
1. A hyperthermia system for treating a patient, comprising:
an RF power unit;
one or more RF antennas connected to the RF power unit
for generating a focused three-dimensional RF field;
a treatment planning system comprising a controller for
adjusting, in real time during the treating [of] the patient, either
or both an output of the RF power source or the one or more RF
antennas, the adjusting causing a steering of the focused three-
dimensional RF field to obtain a desired temperature related
profile;
a sensor for sensing a parameter representative of the
focused three-dimensional RF field generated by the antennas;
a communication environment configured to carry out a
real time feedback loop-based control method comprising:
receiving a sensor data from the sensor and a patient
feedback information provided by the patient;
generating in real time, in response to the sensor data
and the patient feedback information, trigger signals to the
controller for use in steering the focused three-dimensional RF
field to adjust the temperature in a region of discomfort within
the patient;
superposing a real-time temperature profile on patient
diagnostic data using an anatomical model including
characteristic points or areas; and
filling a look-up table of the hyperthermia system with a
feedback content, based on the patient feedback information, in
respect to the characteristic points or areas,
wherein the feedback content is translated, in real time,
into the trigger signals.
Appeal Br. 16 (Claims App.) (emphasis added).
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EXAMINER REJECTIONS
1. Claims 1–10 and 14–16 stand rejected under 35 U.S.C. § 112,
second paragraph, as indefinite. Non-Final Act. 3.
2. Claim 1 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Turner (U.S. Patent No. 5,097,844, iss. Mar. 24, 1992), Knowlton (U.S.
Patent App. Pub. No. 2004/0210214 A1, pub. Oct. 21, 2004), Mehta (U.S.
Patent App. Pub. No. 2010/0217253 A1, pub. Aug. 26, 2010), and Rittman
(U.S. Patent No. 6,575,969 B1, iss. June 10, 2003). Non-Final Act. 3–10.
3. Claims 2, 6, 9, 10 and 16 stand rejected under § 103(a) as
unpatentable over Turner, Knowlton, Mehta, Rittman, and Paulides (“The
HYPERcollar,” published November 2007). Non-Final Act. 10–12.
4. Claims 3 and 4 stand rejected under § 103(a) as unpatentable over
Turner, Knowlton, Mehta, Rittman, Paulides, and Doty (US. Patent No.
6,494,901 B1, iss. Dec. 17, 2002). Non-Final Act. 12–14.
5. Claims 5, 14, and 15 stand rejected under § 103(a) as unpatentable
over Turner, Knowlton, Mehta, Rittman, Paulides, Doty, and Munro (U.S.
Patent No. 7,276,716 B1, iss. Oct. 2, 2007). Non-Final Act. 14–15.
6. Claims 7 and 8 stand rejected under § 103(a) as unpatentable over
Turner, Knowlton, Mehta, Rittman, Paulides, and Stauffer (U.S. Patent No.
6,330,479 B1, iss. Dec. 11, 2001). Non-Final Act. 15–17.
ANALYSIS
A. Indefiniteness
The Examiner rejected all the pending claims as indefinite for failing
to particularly point out and distinctly claim the subject matter of the
invention. Non-Final Act. 3. According to the Examiner, the limitation “the
treating the patient,” as recited in the body of claim 1, lacks sufficient
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antecedent basis. Id. We disagree. The preamble of claim 1 explicitly
recites that the claimed hyperthermia system is “for treating a patient.”
Inexplicably, the Examiner neither acknowledges nor addresses this
recitation. Non-Final Act. 3 (stating simply “[t]here is insufficient basis for
this limitation”). Even after Appellant explained that the preamble of claim
1 provides clear and unequivocal support for the claim’s later reference to
“the patient,” the Examiner simply disregarded Appellant’s argument.
Compare Appeal Br. 5 (responding to the Examiner’s indefiniteness
rejection), with Ans. 3–10 (failing to respond to Appellant’s argument with
respect to the indefiniteness rejection). Without any meaningful response
from the Examiner as to why Appellant’s perfectly reasonable argument is
wrong, we cannot sustain the Examiner’s indefiniteness rejection.
B. Obviousness
The Examiner rejected claim 1 as unpatentable for obviousness over
Turner, Knowlton, Mehta, and Rittman. Non-Final Act. 3–10. Appellant
does not dispute the Examiner’s finding that Turner discloses the first four
limitations of claim 1, which recite:
“an RF power unit,”
“one or more RF antennas . . . for generating a focused
three-dimensional RF filed,”
“a treatment planning system comprising a controller for
adjusting. . . either or both an output of the RF power source or
the one or more RF antennas, the adjusting causing a steering of
the focused three-dimensional RF filed to obtain a desired
temperature related profile,” and
“a sensor for sensing a parameter representative of the
focused three-dimensional RF generated by the antennas.”
See Appeal Br. 8; Reply Br. 6–7. Nor can Appellant reasonably
dispute the Examiner’s findings in that regard, given that Turner
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discloses those elements expressly. See Turner, 2:54–3:16; 4:9–21,
4:40–57.
As for the remaining limitations of claim 1, they are directed to “a real
time feedback loop-based control method” that causes steering of the RF
field and includes the following steps:
“receiving a sensor data from the sensor and a patient
feedback information provided by the patient;”
“generating in real time . . . trigger signals to the
controller for use in steering the focused three-dimensional RF
field;”
“superposing a real-time temperature profile on a patient
diagnostic data using an anatomical model including
characteristic points or areas;” and
“filling a look-up table of the hyperthermia system with a
feedback content, based on the patient feedback information . . .
wherein the feedback content is translated, in real time, into the
trigger signals.”

Appeal Br. 16.

Appellant disputes the Examiner’s assertion that those limitations are
taught by the combined teachings of Turner, Knowlton, Mehta, and Rittman.
See Appeal Br. 5, 8–13; Reply Br. 6–12. At the outset, we note the
Examiner’s findings that:
Turner teaches the claim limitation of “generating in
response to the sensor data trigger signals to the controller for
use in steering the focused three-dimensional RF field to adjust
the temperature in a region within the patient” (Non-Final Act.
4–5);
Knowlton teaches the claim limitations of “receiving . . .
patient feedback information” that is used for “generating . . .
trigger signals to the controller” and “filling a look-up table . . .
based on the patient feedback information” (id. at 5–7);
Mehta teaches receiving and utilizing the patient
feedback information “in real time” (id. at 7–8); and
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Rittman teaches the limitation of “superposing a real-time
temperature profile on a patient diagnostic data using an
anatomical model” (id. at 8–10).
In combining those teachings, the Examiner reasons that a skilled artisan
would have been led to modify Turner with the features taught by Knowlton,
Mehta, and Rittman in order to ensure optimal energy delivery and peak
temperatures in the treatment of target tissue while minimizing patient
discomfort and destruction of normal tissue. Id. at 6–10.
To begin, Appellant does not persuade us of error in the Examiner’s
findings with respect to the teachings of Knowlton, Mehta, and Rittman. See
Appeal Br. 9–13; Reply Br. 8–12. The record evidence clearly supports the
Examiner’s findings as to the teachings of each of those references. See
Knowlton ¶¶ 29, 101, 188, 199, 200; Mehta ¶¶ 93, 183, 204; Rittman,
17:35–40, 22:20–50, 24:60–25:10, 26:34–40, 27:57–28:5.
Nor does Appellant persuade us of error in the Examiner’s reason for
combining those teachings with Turner. See Non-Final Act. 7–10 (citing
Knowlton ¶¶ 101, 190, 200; Mehta ¶¶ 183, 204; Rittman, 25:64–26:5,
28:33–45). We reject Appellant’s argument that Knowlton, Mehta, and
Rittman are inapplicable to Turner’s hyperthermia system. See Appeal Br.
13 (“the secondary references are not even in a technological area to which
one would look to make a modification to the [hyperthermia] system
described in Turner”); see also id. at 9, 11 (asserting that Knowlton, Mehta,
and Rittman, respectively, are “unrelated,” “not related in any way,” or have
“absolutely no relationship” to hyperthermia treatment). Rather, we agree
with the Examiner’s finding that, like Turner, each of those references is
concerned with controlling the delivery of heat energy in a system for
treating a patient. See Ans. 4 (citing Knowlton ¶¶ 101, 188); id. at 7 (citing
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Mehta ¶¶ 93, 204); id. at 8 (citing Rittman, 25:64–68, 26:1–5). Appellant
does not adequately explain or direct us to objective evidence showing error
in that finding by the Examiner. See Reply Br. 9–12 (Appellant’s
conclusory third, fifth, and sixth arguments). Thus, in our view, the record
evidence clearly supports the Examiner’s reason for combining the teachings
of Knowlton, Mehta, and Rittman with Turner. See Non-Final Act. 6–8, 10;
Ans. 4–9.
That said, however, the Examiner falls short in analyzing what is
taught by Turner. Specifically, the Examiner finds that Turner teaches a
feedback-based control loop that generates trigger signals for use in steering
the RF field, as required by claim 1. Non-Final Act. 4–5 (citing Turner
4:40–54). Indeed, when Appellant thought the Examiner was relying on
Knowlton for teaching that limitation, the Examiner clarified that Turner,
not Knowlton, teaches “carry[ing] out a feedback loop-based control method
comprising generating in response to the sensor data trigger signals to the
controller for use in steering the focused three-dimensional RF field to adjust
the temperature in a region within the patient.” Ans. 3–4 (citing Turner,
3:9–16, 3:25–35, 4:40–54); see also id. at 5 (repeating that Turner teaches
“generating . . . trigger signals to the controller for use in steering the
focused three-dimensional RF field”).
Appellant persuades us of error in the Examiner’s findings and
conclusions with respect to Turner. More specifically, although Turner may
describe steering of the RF field (see Turner, 3:5–8), nowhere do we discern,
nor does the Examiner explain, how Turner’s controller 12 is used for that
purpose. See Ans. 3–5. We agree with the Examiner that Turner’s “control
loop” assures that the target tissue is maintained at a selected temperature.
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Ans. 3. But we fail to grasp how the Examiner surmises from that finding
that “[t]herefore, Turner teaches the controller for adjusting either or both an
output of the RF power source or the one or more RF antennas, the
adjusting causing a steering of the focused tree-dimensional field.” Id. At
best, the Examiner’s citation to Turner’s disclosure that “[p]ower levels and
phase of the signal modifier may be adjusted . . . by a control loop to assure
that the target tissue is maintained at the selected temperature” simply
provides support for the first part of the Examiner’s conclusion, namely, that
the controller is used to adjust the output of the RF power delivered to the
RF antenna. Turner, 4:9–17, 4:41–53. But how controlling the output of the
RF power also amounts in steering of the RF field, as the Examiner also
concludes, is left wholly unexplained.2 Without more, the Examiner’s
conclusion in that regard amounts to unsupported speculation. For that
reason alone, we do not sustain the Examiner’s rejection of claim 1. Given
that claims 2–10 and 14–16 stem directly or indirectly from claim 1, we also
do not sustain the Examiner’s rejection of the pending dependent claims.

2 Nor can the Examiner rely on Knowlton to cure Turner’s deficiency in that
regard because, like Turner’s controller 12, Knowlton’s feedback control
module 54 is used for “controlling the delivery of energy (including power
levels, power profiles . . . or cooling media delivery responsive to that
input.” Knowlton, ¶ 188; see also id. ¶ 189 (disclosing that the control
device is configured “to control the delivery of energy, heat or cooling to the
tissue site”).
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CONCLUSION
Claims
Rejected
35 U.S.C. § Basis Affirmed Reversed
1–10, 14–16 112 Indefiniteness 1–10, 14–16
1 103(a) Turner,
Knowlton,
Mehta, Rittman
1
2, 6, 9, 10,
16
103(a) Turner,
Knowlton,
Mehta, Rittman,
Paulides
2, 6, 9, 10,
16
3, 4 103(a) Turner,
Knowlton,
Mehta, Rittman,
Paulides, Doty
3, 4
5, 14, 15 103(a) Turner,
Knowlton,
Mehta, Rittman,
Paulides, Doty,
Munro
5, 14, 15
7, 8 103(a) Turner,
Knowlton,
Mehta, Rittman,
Paulides, Stauffer
7, 8
Overall
Outcome
1–10, 14–16

REVERSED