KONINKLIJKE PHILIPS N.V

Patent Trials and Appeals Board

Dec 9, 2021

2021003287 (P.T.A.B. Dec. 9, 2021)

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.
15/504,029 02/15/2017 MOLLY LARA FLEXMAN 2014P00754WOUS 1054
24737 7590 12/09/2021
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
1600 Summer Street
5th Floor
Stamford, CT 06905
EXAMINER
FRITH, SEAN A
ART UNIT PAPER NUMBER
3793
NOTIFICATION DATE DELIVERY MODE
12/09/2021 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):
katelyn.mulroy@philips.com
marianne.fox@philips.com
patti.demichele@Philips.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte MOLLY LARA FLEXMAN, DAVID PAUL NOONAN,
and BHARAT RAMACHANDRAN
____________

Appeal 2021-003287
Application 15/504,029
Technology Center 3700
____________

Before JOHN C. KERINS, BENJAMIN D. M. WOOD, and
WILLIAM A. CAPP, Administrative Patent Judges.

CAPP, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 seeks our review under 35 U.S.C. § 134(a) of the final
rejection of claims 1–14, 20, and 27–31. We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42(a). Appellant identifies Koninklijke Philips N.V., as the
Applicant and real party in interest. Appeal Br. 2.
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THE INVENTION
Appellant’s invention relates to medical instruments. Spec. 1.
Claim 1, reproduced below, is illustrative of the subject matter on appeal.
1. A system for detecting instrument interaction with a
surface, the system comprising:
a shape sensing enabled instrument configured to pass along
the surface; and
an interaction evaluation module configured to monitor
shape sensing feedback from the instrument to identify when
contact is made by the instrument with the surface based on
vibrations of the instrument induced by the contact, and to
determine a position where the contact has been made between
the instrument and the surface.
THE REJECTIONS
The Examiner relies upon the following as evidence in support of the
rejections:
NAME REFERENCE DATE
Leo US 2010/0298826 A1 Nov. 25, 2010
Larkin US 7,930,065 B2 Apr. 19, 2011
Cohen US 2011/0237933 A1 Sept. 29, 2011
Younge US 2012/0323075 A1 Dec. 20, 2012
Stein US 2013/0079790 A1 Mar. 28, 2013
Ramamurthy US 2013/0083310 A1 Apr. 4, 2013
Von Busch WO 2012/168855 A1 Dec. 13, 2012
The following rejections are before us for review:
1. Claims 1, 2, 4–6, 12, 14, and 20 are rejected under 35 U.S.C. § 103
as unpatentable over Ramamurthy, Larkin, and Von Busch.
2. Claims 3, 13, 27, and 29 are rejected under 35 U.S.C. § 103 as
unpatentable over Ramamurthy, Larkin, Von Busch, and Younge.
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3. Claims 7–10 are rejected under 35 U.S.C. § 103 as unpatentable
over Ramamurthy, Larkin, Von Busch, and Cohen.
4. Claims 11, 28, and 30 are rejected under 35 U.S.C. § 103 as
unpatentable over Ramamurthy, Larkin Von Busch, and Leo.
5. Claim 31 is rejected under 35 U.S.C. § 103 as unpatentable over
Ramamurthy, Larkin Von Busch, and Stein.
OPINION
Unpatentability of Claims 1, 2, 4–6, 12, 14, and 20
over Ramamurthy, Larkin, and Von Busch
Claim 1
The Examiner finds that Ramamurthy discloses the invention
substantially as claimed except for: (1) using the shape sensing feedback
system to identify when contact occurs; and (2) doing so based on vibrations
induced by the contact. Final Act. 4–6. The Examiner relies on Larkin as
disclosing identifying when contact occurs via a shape sensing feedback
system. Id. at 5. The Examiner relies on Von Busch as identifying when
contact occurs based on vibrations induced by contact. Id. at 5–6. The
Examiner concludes that it would have been obvious to a person of ordinary
skill in the art at the time the invention was made to modify Ramamurthy by
the teachings of Larkin and Von Busch. Id. According to the Examiner, a
person of ordinary skill in the art would have done this to enable the user to
identify and accurately measure contact with a surface that may be moving
dynamically. Id.
Appellant argues that Larkin fails to identify when contact occurs.
Appeal Br. 8. Appellant argues that Larkin merely teaches measuring the
amount of force that is applied during contact after first presuming that
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contact has already been made. Id. According to Appellant: “[d]etermining
the amount of force being applied during contact between an instrument and
a surface is not the same as determining when that contact occurs.” Id.
In response, the Examiner explains that Larkin and Von Busch are
relied on, not to alter the type of sensor, but to further teach capabilities of
the sensor that enables it to determine “when” contact occurs as well as
measure “vibrations.” Ans. 4. The Examiner refers to column 14 of Larkin
as teaching that, “when” contact occurs with a surface, a measurement value
is obtained using the Fiber Bragg Grating sensor of the device. Id. In
response to Appellant’s argument that Larkin presumes that contact has
already occurred, the Examiner essentially points out that such argument is
based on Appellant’s interpretation of Larkin rather than based on what
Larkin actually teaches. Id. at 5. The Examiner interprets Larkin
differently, explaining that:
This type of measurement would show no strain measurements
prior to contact with a surface and then compression
measurements initiated at contact with the surface. The
appellant argues that these measurements don't determine when
contact occurs, but since the compression strain measurements
only occur when contact is made with the surface, this change
in detection of axial loading indicates when contact occurs.
Id.
In reply, Appellant disputes the Examiner’s interpretation of Larkin
and argues that “Larkin . . . does not describe doing anything ‘when contact
occurs.’” Reply Br. 5. Appellant argues that Larkin’s distal tip could be in
contact with a surface for anywhere between one second and ten minutes
before the distal tip is used to apply a force in the axial direction onto the
surface. Id.
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Having considered the competing positions of Appellant and the
Examiner, we think that the Examiner states the more persuasive position.
Larkin is directed to a surgical instrument that features an optical fiber bend
sensor. Larkin, Abstract. Furthermore, Larkin teaches that:
[W]hen the distal tip of the instrument 500 is used to apply a
force in the axial direction onto a surface, the compressible
fixed position region 560 will compress, thereby compressing
the fiber 520. The sensor region 540 may be used to detect the
axial loading of the fiber 520 in the fixed position region 560,
thereby enabling determination of the force applied by the tip of
the instrument 500.
Id. col. 14, 59–65. A person of ordinary skill in the art would recognize that,
when the strain measurement from Larkin’s Fiber Bragg Grating sensor
transitions from zero to some positive value, such indicates the location of
the point of contact between the distal tip and the surface. A person of
ordinary skill in the art would also understand that, in order for the distal tip
of the sensor to go from a place of no contact to a place of contact with the
surface, either the tip or the surface or both need to move. Such movement
generates a force that is measured by the sensor when contact is made.
Appellant next argues that Von Busch fails to disclose vibrations of an
instrument or vibrations induced by contact between an instrument and a
surface, or identifying when contact is made between the instrument and the
surface based on vibrations. Appeal Br. 8. Appellant argues that the
passages and drawings of Von Busch relied on by the Examiner merely
disclose that body mass 302 and target 304 vibrate or change position. Id.
at 9.
[T]he movement taught by Von Busch et al. is movement of the
mass 302 and the target 304 themselves, not movement of an
instrument, and more particularly, not vibrations of an
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instrument or vibrations of an instrument induced by contact by
the instrument with a surface, as specifically recited in claim 1.
Id. at 10.
In response, the Examiner explains that Von Busch features optical
fiber sensors that are positioned within a body tissue treatment region
(mass 302) and that vibration of mass 302 and target 304 creates relative
movements that the optical fiber sensors measure to determine the position
of the target. Ans. 5. Therefore, according to the Examiner, the optical fiber
sensor placed within the region is using the optical fiber sensors to measure
vibrations and local strains of the target and processes those vibration
induced measurements for positioning purposes. Id. at 6. Furthermore, the
Examiner maintains that Von Busch shows optical fiber sensor 308 placed
“at or near the target 304 to detect local strains.” Id. citing Von Busch
Fig. 3. The Examiner considers placement “at the target” to be “in contact
with the target.” Id.
Moreover, the Examiner explains that the rejection relies on
Ramamurthy as disclosing contacting a surface with an optical fiber shape
sensing system in a manner that would induce vibration. Id. (citing
Ramamurthy ¶ 88). The Examiner relies on Von Busch as teaching the
capability of an optical fiber sensor system to process strain measurements
in a way that detects vibration of a target tissue. Id. at 7. According to the
Examiner, “modification of Ramamurthy to incorporate the strain processing
techniques of Von Busch to detect vibrational movements thus teaches to
vibrations induced by contact and enhances positional accuracy of the
overall system.” Id.
Particularly with respect to Appellant’s argument that Von Busch
merely teaches movement of mass 302 and target 304, but does not teach
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vibration “of the instrument” per se, the Examiner explains that vibration of
target 304 generates a corresponding vibrational movement within the
instrument that is measured by the optical fiber sensor. Id. According to the
Examiner, “[w]ithout a corresponding vibrational/strain motion in the
sensor, the device would be unable to provide any measurement data of the
underlying vibrational movements in the tissue.” Id.
In reply, Appellant essentially just repeats the arguments that were
advanced in the Appeal Brief. See generally Reply Br. Appellant offers
nothing to rebut the Examiner’s position that vibration of the tissue in Von
Busch generates corresponding vibrational movement in Von Busch’s
instrument. Id.; Ans. 7.
Von Busch is directed to a system for optical fiber sensing that
determines positions and path trajectories for energy such as radiation and
high-intensity ultrasound. Von Busch 1, 3. The system calculates the spatial
distribution of dose delivery. Id. at 4. Von Busch uses optical shape sensing
to track components used for patient treatment. Id. at 5. Von Busch teaches
that:
[A] three dimensional (3D) shape of a flexible, elongated
structure can be tracked in real-time. The fundamental
principles underlying optical shape sensing, as implemented,
for example, with Fiber Bragg Gratings (FBGs) and with
Rayleigh scattering arc relied upon to provide detailed spatial
information for tools during a procedure. With optical shape
sensing, the 3D position of a particular location on a patient can
be tracked.
Id. at 5–6.
In Von Busch, optical fiber sensors 306, 308 monitor the position and
orientation of mass 302 and target 304. Id. Fig. 3, p. 15. Fiber optic
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sensor 306 is placed on mass 302 to monitor local changes. Id. Mass 302
and target 304 vibrate. Id.
Again, we are more persuaded by the Examiner’s position. Von
Busch places a fiber optic sensor on body mass tissue to monitor changes in
position and orientation including by vibration. Modifying Ramamurthy by
the teachings of Von Busch yields a system that detects when the distal end
of an instrument contacts a tissue surface in a manner that causes vibration
in the fiber optic sensor. Ramamurthy ¶ 88, Fig. 10; Von Busch, 5, 15,
Fig. 3. The Examiner’s finding that vibrations in Von Busch’s mass 302
will induce corresponding vibration in fiber optic sensors that are devoted to
monitoring the position and orientation of mass 302 is supported by sound
technical reasoning. Ans. 6–8. Apart from unsubstantiated and conclusory
assertions, Appellant offers nothing in the way of evidence or persuasive
technical reasoning that provides a basis for us to doubt the Examiner’s
finding. See Icon Health & Fitness, Inc. v. Strava, Inc. 894 F.3d 1034, 1043
(Fed. Cir. 2017) (explaining that unsworn attorney argument is not
evidence).
Appellant’s reliance on the absence of an express teaching in Von
Busch that the fiber optic sensor vibrates with the body mass and/or target is
not enough to apprise us of Examiner error. It is well settled that what a
reference teaches a person of ordinary skill is not limited to what a reference
specifically “talks about” or what is specifically “mentioned” or “written” in
the reference. Syntex (U.S.A.) LLC v. Apotex, Inc., 407 F.3d 1371, 1380
(Fed. Cir. 2005). Thus, the mere absence from the prior art of a teaching or
a limitation recited in the patent at issue is insufficient for a conclusion of
nonobviousness. “[T]he question under 35 USC 103 is not merely what the
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references expressly teach but what they would have suggested to one of
ordinary skill in the art at the time the invention was made.” Merck & Co.,
Inc. v. Biocraft Labs, Inc., 874 F.2d 804, 807 (Fed. Cir. 1989) quoting In re
Lamberti, 545 F.2d 747, 750 (CCPA 1976). Here, we agree with the
Examiner that Von Busch fairly suggests to the skilled artisan that vibration
of body tissue at or near an optical shape sensor will generate corresponding
vibration in the sensor.
Finally, Appellant advances a cursory, conclusory argument that it is
not obvious to modify Ramamurthy and Larkin by the teachings of Von
Busch because the former identify contact between an instrument and a
surface using strain measurements whereas Von Busch senses vibration.
Appeal Br. 11. This argument is abbreviated and is not well developed in
either explanation or analysis. All of the prior art references use Fiber Bragg
Grating sensor technology. Ramamurthy, Fig. 8; Larkin, col. 14, ll. 47–55,
Fig. 5; Von Busch, 6. All of the references analyze data from the sensors
using computer processors and algorithms. Ramamurthy, ¶ 80; Larkin
col. 19, ll. 15–29; Von Busch p. 8. The Examiner’s conclusion that it would
have been obvious to incorporate the vibration measurement capabilities of
Von Busch into the shape sensing detection system of Ramamurthy and
Larkin is supported by sound technical reasoning. Final Act. 6; Ans. 7–8.
If this tissue surface moves due to adjacent cardiac tissue or
respiratory tissue oscillation, the continued position data of
contact with tissue surfaces would be modified by the Von
Busch reference to more accurately account for relative
vibrational motion in the generation of a structural map of the
tissue surface. These vibrations would also occur when the
Ramamurthy optical fiber sensor brushes against a tissue
surface and thus the strain measurements would need to be
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processed in such a way to account for vibrations induced by
the contact.
Ans. 8. Appellant presents no evidence or persuasive technical reasoning
that incorporating the vibration signal processing of Von Busch into the
system of Ramamurthy would have required more than ordinary skill or
produced unexpected results.
Under the circumstances, we determine that the Examiner’s findings
of fact are supported by a preponderance of the evidence and the Examiner’s
legal conclusion of unpatentability is well-founded. In view thereof, we
sustain the Examiner’s unpatentability rejection of claim 1.
Claims 2, 4–6, 12, 14, and 20
Claims 12 and 20 are independent claims. Claims App. Claims 2
and 4–6 depend from claim 1. Claims App. Claim 14 depends from
claim 12. Id. Appellant does not argue for the separate patentability of
these claims apart from arguments presented with respect to claim 1, which
we have previously considered and found unpersuasive. We sustain the
Examiner’s rejection of claims 2, 4–6, 12, 14, and 20. See 37 C.F.R.
§ 41.37(c)(1)(iv) (failure to separately argue claims constitutes a waiver of
arguments for separate patentability).
Unpatentability of Claims 3, 7–11, 13, and 27–31
over Combinations based on Ramamurthy, Larkin, and Von Busch
These claims depend, directly or indirectly, from either claim 1 or
claim 12. Claims App. They are rejected over Ramamurthy, Larkin, and
Von Busch in combination with various other references and the claims are
not separately argued apart from arguments presented with respect to
claim 1, which we have previously considered and found unpersuasive.
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Consequently, we sustain the Examiner’s unpatentability rejection of
claims 3, 7–11, 13, and 27–31. 37 C.F.R. § 41.37(c)(1)(iv).
CONCLUSION
Claims
Rejected
35
U.S.C. §
References Affirmed Reversed
1-2, 4-6,
12, 14, 20
103 Ramamurthy, Larkin,
Von Busch
1-2, 4-6,
12, 14, 20

3, 13, 27,
29
103 Ramamurthy, Larkin,
Von Busch, Younge
3, 13, 27,
29

7-10 103 Ramamurthy, Larkin,
Von Busch, Cohen
7-10
11, 28, 30 103 Ramamurthy, Larkin,
Von Busch, Leo
11, 28, 30
31 103 Ramamurthy, Larkin,
Von Busch, Stein
31
Overall
Outcome
1-14, 20,
27-31

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED