GIVEN IMAGING LTD.Download PDFPatent Trials and Appeals BoardMay 21, 202014409601 - (D) (P.T.A.B. May. 21, 2020) Copy Citation 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. 14/409,601 12/19/2014 Thomas R. Parks P-76045-US 1881 137540 7590 05/21/2020 Pearl Cohen Zedek Latzer Baratz LLP Given Imaging Ltd. 1500 Broadway, 12th Floor New York, NY 10036 EXAMINER LUONG, PETER ART UNIT PAPER NUMBER 3793 NOTIFICATION DATE DELIVERY MODE 05/21/2020 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): rs.patents.two@medtronic.com uspto@pearlcohen.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte THOMAS R. PARKS, SANKET KHANDELWAL, and SERGIY KANILO Appeal 2019-005810 Application 14/409,601 Technology Center 3700 Before JILL D. HILL, LEE L. STEPINA, and ARTHUR M. PESLAK, Administrative Patent Judges. PESLAK, 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 1–8 and 10–20. 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. Appellant identifies the real party in interest as Given Images Ltd. Appeal Br. 1. Appeal 2019-005810 Application 14/409,601 2 CLAIMED SUBJECT MATTER Appellant’s invention relates to a system and method for spatiotemporally synchronizing and displaying bodily organ images and physiological parameters related to the organ. Claims 1, 18, and 19 are independent. Claim 1, reproduced below with italics added, is illustrative of the claimed subject matter: 1. A method for displaying images of bodily organs and parameters related to the physiological activity of the bodily organs, the method comprising: (i) introducing one or more sensing elements into a bodily organ, each sensing element comprising one or more radio discernible sensors, each sensor outputting a signal representative of a physiological parameter associated with the activity of the bodily organ; (ii) radioscopically imaging the bodily organ with the one or more sensing elements introduced into the organ, and concurrently reading the output of the sensors of the one or more sensing elements; (iii) for each sensing element, visually superimposing the radioscopic image with a displayable representation symbol associated with the sensing element, the representation symbol having display characteristics dependent on the location of the pertinent sensors in the radioscopic image and on the output values of the sensors. REFERENCE The prior art relied upon by the Examiner is: Name Reference Date Parks US 2009/0257554 A1 Oct. 15, 2009 Appeal 2019-005810 Application 14/409,601 3 REJECTIONS2 1) Claims 1–8, and 13–20 are rejected under 35 U.S.C. § 102(b) as being anticipated by Parks.3 2) Claims 10–12 are rejected under 35 U.S.C. § 103(a) as unpatentable over Parks. ANALYSIS Rejection 1 In rejecting independent claims 1, 18, and 19 as anticipated by Parks, the Examiner finds, inter alia, that Parks discloses a displayable representation symbol 213 with display characteristics that depend on the output values (shaded area) of the sensors. Non-Final Act. 3 (citing Parks ¶¶ 24, 40, 41, 46, and 77; Figs. 6A–6D). Appellant argues that Parks’ symbols 213 are simply divisions of the image that do not “depend on or change with output values of [the] sensors.” Appeal Br. 5. According to Appellant, the shaded area is a bolus, which is not a sensor. Id. Appellant contends that, although symbols including rectangles are “drawn around and correspond to the position of the targets, they do not represent and are not based on a sensor output value, and the ‘display characteristics’ of these boxes, etc. do not change with any sensor output value.” Id. at 7–8. 2 A rejection of claim 9 under 35 U.S.C. § 112, second paragraph, as being indefinite is withdrawn in the Answer. Answer 3; see also Non-Final Act. 2. 3 The caption of this rejection refers to Claim 10. Non-Final Act. 3. This is a typographical error, however, as the body of the rejection does not contain a rejection of claim 10, which is addressed in Rejection 2. Non-Final Act. 5. Appeal 2019-005810 Application 14/409,601 4 The Examiner responds that Figures 6A–6D of Parks represent the images taken when a bolus is introduced. Ans. 6 (citing Parks ¶ 72). “The Examiner’s interpretation of Figs. 6A–6D is that the display characteristic (white squares and local fields which represent the location of the sensor) depends on the location of the sensor and the output of the sensors (pressure caused by the traveling bolus).” Id. According to the Examiner, the phrase “dependent on output value” is interpreted to mean “depending on whether the sensor produces an output value.” Id. Appellant replies that the Examiner’s interpretation is inconsistent with the disclosure of Parks. Reply Br. 3. Appellant contends that the small white rectangles in Figures 6A–6D of Parks, which the Examiner equates to sensors, do not have display characteristics that vary “depending on output values of the reading of the signal from the respective targets 205,” and rather, “are always a white rectangular box of the same shape and size.” Id. at 4. According to Appellant, regardless of whether the claims require that an actual value is displayed, Parks’ “radiopaque targets do not visually change at all dependent on its output value of its associated radiopaque target, let alone dependent also on the position of its associated radiopaque target, as required by independent claim 1.” Id. at 6. Appellant has the better argument. For the following reasons, we do not sustain the rejection of claim 1. Claim 1 recites, inter alia, “visually superimposing the radioscopic image with a displayable representation symbol associated with the sensing element, the representation symbol having display characteristics dependent on the location of the pertinent sensors in the radioscopic image and on the output values of the sensors.” Appeal Br. 14 (Claims App.). Independent Appeal 2019-005810 Application 14/409,601 5 claim 18 similarly recites “visually superimposing the radioscopic image with the representation symbol, the representation symbol positioned in relation to the locations of the pertinent sensors in the radioscopic image and having display characteristics corresponding to the output values of the sensors.” Id. at 17. Independent claim 19 similarly recites “for each sensing element, to superimpose the radioscopic image with a displayable representation symbol associated with the sensing element's sensors, the representation symbol having display characteristics dependent on the location of the sensors in the radioscopic image and on the output values of the sensors.” Id. The Specification discloses: By “a displayable element representing a particular sensor” is meant that display attributes or particulars of the displayable element may depend on, or stem or derived from, the location of the particular sensor in the image, and on/from the output value of that sensor at the image acquiring time, or shortly before or after that time. Spec. 15:15–19. The Specification further discloses that “[d]isplay attributes/particulars of a displayable element may include, for example, the location/position of the displayable element relative to the location/position of other displayable elements, color, size, shape, length, radius, etc.” Spec., 15:19–21. Based on this disclosure, we understand the claimed “display characteristics dependent on … the output values of the sensors” to mean that the display characteristics depend on or change as the output value changes. For example, the Figure 2A embodiment has a circle as the displayable element where the size of the circle, e.g., the radius of the circle has a value that “depends on the value of sensor S1 at the image acquiring Appeal 2019-005810 Application 14/409,601 6 time, or shortly before or after that time.” Spec. 15:35–16:1. Figure 2A is reproduced below. Figure 2A schematically illustrates image and data co-display cycles according to an exemplary embodiment. Spec., 4:32–33. In Figure 2A, displayable representation symbols 214 are depicted as filled circles 241– 248, and displayed on top of bodily organ 250 with each filled circle showing a respective position “according to the locations {X1,Y1},{X2,Y2}, ... , {X8,Y8} of sensors S1–S8 as identified from the image, and respectively sized according to the output values S1(out), S2(out), ... , S8(out) of sensors S1–S8.” Spec. 16:18–25. Here, the increased radius visually represents, for example, the “peristaltic pressure of the esophagus.” Spec. 27:9–12. Appeal 2019-005810 Application 14/409,601 7 By contrast, as Appellant correctly notes, none of Parks’ symbols 213 display characteristics that vary depending on output values of the signal from respective targets 205, and “are always a white rectangular box of the same shape and size.” Reply Br. 4. Parks discloses that “ladder structure 213 has been used to define the local image fields at successive intervals in time as a bolus of contrast material moves through a lumen.” Parks ¶ 73. In Parks, “the bolus appears as a darkish blob” that “appears to advance downwards over the sequence of images,” as seen in Figure 6A and 6B, reproduced below. Figures 6A and 6B illustrate 2 radiographic images of a catheter having 36 radiopaque targets inside a bodily lumen with rectangular local image fields constructed with a ladder structure and superimposed, and Appeal 2019-005810 Application 14/409,601 8 corresponding profiles with the baseline image subtracted from each of the series of images. Parks, ¶¶ 26, 27, 29. As seen in Figures 6A and 6B, there is no change in either ladder structure 213 or the smaller white rectangles inside the ladder structure, i.e., radiopaque targets, only a change in the location of the bolus. As such, the Examiner has not adequately established that Parks’ representation symbol has display characteristics that depend on the output values of the sensors, as required by claim 1. As to the Examiner’s position in the Answer that “display characteristics dependent on … output values” only requires that the display characteristic depends on “whether the sensor produces an output value,” is an unreasonably broad interpretation. The term “characteristic” is defined as “a distinguishing trait, quality, or property.”4 This is consistent with the Specification, which provides various examples of an attribute or particular feature such as color, size, shape, length, or radius. See Spec. 15:19–21. The Examiner does not provide any evidence that merely providing an output or not providing an output, is a characteristic, consistent with how one of ordinary skill in the art would understand this term in light of the Specification. This unreasonably broad claim construction led to the unsupported finding that Parks’ ladder structure 213 is a displayable representation symbol that has display characteristics dependent on output values of the sensors. Therefore, we do not sustain the rejection of independent claims 1, 18, and 19, and of claims 2–8, 13–17, and 20 depending therefrom as anticipated by Parks. 4 “Characteristic” Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-webster.com/dictionary/characteristic. (accessed Apr. 30, 2020). Appeal 2019-005810 Application 14/409,601 9 Rejection 2 Claims 10–12 depend indirectly from claim 1. Appeal Br. 15 (Claims App.). The Examiner does not rely on the additional disclosure of Parks in any manner that would remedy the deficiencies in the rejection of claim 1 discussed above. For the same reasons, we do not sustain the rejection of claims 10–12 as unpatentable over Parks. CONCLUSION The Examiner’s rejections are reversed. More specifically, DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–8, 13–20 102(b) Parks 1–8, 13–20 10–12 103(a) Parks 10–12 Overall Outcome: 1–8, 10–20 REVERSED Copy with citationCopy as parenthetical citation