Moonen, Chr¿tien et al.

Patent Trials and Appeals Board

May 28, 2020

12438934 - (D) (P.T.A.B. May. 28, 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.
12/438,934 02/25/2009 Chrétien Moonen 2006P02815WOUS 9783
24737 7590 05/28/2020
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
465 Columbus Avenue
Suite 340
Valhalla, NY 10595
EXAMINER
LEE, WENG WAH
ART UNIT PAPER NUMBER
3783
NOTIFICATION DATE DELIVERY MODE
05/28/2020 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):
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 CHRÉTIEN MOONEN and CHARLES MOUGENOT
____________

Appeal 2019-003352
Application 12/438,9341
Technology Center 3700
____________

Before MICHAEL C. ASTORINO, PHILIP J. HOFFMANN, and
BRUCE T. WIEDER, Administrative Patent Judges.

WIEDER, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134 from the
Examiner’s final rejection of claims 1–20. 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. Appellant identifies the real party in interest as
Koninklijke Philips N.V. (formerly named Koninklijke Philips Electronics
N.V.). (Appeal Br. 3.)
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CLAIMED SUBJECT MATTER
Appellant’s claimed invention relates “to the treatment of biological
tissue using hyperthermia.” (Spec. 1.)
Claims 1 and 10 are the independent claims on appeal. Claim 1 is
illustrative. It recites (emphasis added):
1. A thermal treatment device to treat a target region of a
biological tissue, comprising:
a signal generator and a transducer to supply energy to a
focal point in the target region;
an imaging apparatus to measure a spatial distribution of
temperature adjacent to a plurality of treatment points in the
target region; and
a control unit operably configured to control moving of the
focal point from one or more previous treatment points towards
one or more successive treatment points, and to control the
energy to be provided by the signal generator and the transducer
to the successive treatment points,
wherein the control unit is further operably
configured to determine a position and treatment energy
of each of the one or more successive treatment points in
relation to a position of each of the one or more previous
treatment points and a spatial distribution of temperature
adjacent the one or more previous treatment points.

REJECTIONS2
Claims 1–3, 5, 6, 8–12, 14, 15, and 17–20 are rejected under
35 U.S.C. § 102(b) as anticipated by Freundlich (US 6,618,620 B1, iss.
Sept. 9, 2003).

2 The rejection of claims 2 and 11 under 35 U.S.C. § 112, second paragraph,
was withdrawn. (See Advisory Action, mailed June 28, 2018.)
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Claims 4 and 13 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Freundlich and Rudie (US 6,122,551, iss. Sept. 19, 2000).
Claims 7 and 16 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Freundlich.

ANALYSIS
The § 102(b) rejection
“[A]n invention is anticipated if the same device, including all the
claim limitations, is shown in a single prior art reference. Every element of
the claimed invention must be literally present, arranged as in the claim.”
Richardson v. Suzuki Motor Co., 868 F.2d 1226, 1236 (Fed. Cir. 1989).
“Anticipation can occur when a claimed limitation is ‘inherent’ or otherwise
implicit in the relevant reference.” Standard Havens Prods., Inc. v. Gencor
Indus., Inc., 953 F.2d 1360, 1369 (Fed. Cir. 1991).
The Examiner finds that claim 1 is anticipated by Freundlich. (Final
Action 3–4.) Appellant disagrees and argues that “the thermal dose
parameters [in Freundlich] are generally constant across all treatment points
and are not dependent upon a spatial distribution of temperature adjacent the
previous treatment points,” as recited in Appellant’s claim 1. (Appeal Br. 17
(citing Freundlich, col. 6, l. 9–col. 15, l. 9).) We do not find Appellant’s
argument persuasive.
Freundlich discloses “a method and apparatus for controlling thermal
dosing in a thermal treatment system.” (Freundlich, col. 1, ll. 8–10.)
Freundlich discloses “constructing a three-dimensional treatment plan, using
three-dimensional images of target mass 104 and a three-dimensional
predicted thermal dose distribution 300.” (Id. at col. 8, ll. 63–66.) “The
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ability of focusing at different focal lengths (l) leads to variable focal spots
and variable lesion sizes in target mass 104 as a function of (y), the
transducer axis.” (Id. at col. 8, l. 66–col. 9, l. 2; see also id. at Fig. 3.) By
way of example, Freundlich shows a target mass under the skin surface
extending along the y-axis from a depth of ynear to a depth of yfar. (Id. at
Fig. 3.)
Once (y) is defined[,] planner 108 will perform a dose
prediction in step 408 using the maximal power required for
small and large spot sizes at (Yfar). . . . If the resulting maximal
temperature does exceed the allowable limit, the power is scaled
down linearly in step 412 until the temperature elevation is
within the allowable limit.

(Id. at col. 9, ll. 24–35 (emphasis added); see also Answer 3–4.) In other
words, Freundlich teaches using scaled down thermal dose parameters when
the planner determines that use of maximal temperature would exceed
allowable limits. Therefore, we do not agree with Appellant’s
characterization of Freundlich as teaching only “generally constant” thermal
dose parameters. (See Appeal Br. 17.)
Appellant also argues that “Freundlich fails to describe, expressly or
inherently, . . . determining a position and a treatment energy of successive
treatment point(s) 612 within target mass 104 in relation to a spatial
distribution of temperature adjacent previous treatment points 614 as
encompassed by” Appellant’s claims 1 and 10, “particularly in three-
dimensions as encompassed by” Appellant’s claims 2 and 11. (Appeal
Br. 18.) Appellant further argues that Freundlich teaches a cooling off
period and that “a functional reason for the cooling period is the ability to
obtain an accurate binary image of an actual thermal dose distribution.”
(Reply Br. 10.) Appellant still further argues that to address the
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disadvantages of such a binary monitoring system, Appellant’s system is
“premised on a spatial energy (temperature) distribution of treatment points
of ablated tissues as a basis to determine position and treatment energy of
successive treatment point(s) of non-ablated tissue.” (Id. at 10–11.)
Freundlich teaches the automatic construction of a “treatment plan
[that] includes constructing an expected thermal dose distribution showing
the predicted thermal dose at each treatment site.” (Freundlich, col. 11,
ll. 34–38.) Once the plan is set, “[v]erification is required to ensure that
treatment system 100 is properly registered with regard to the position of the
focal spot relative to patient 116 and target mass 104.” (Id. at col. 11,
ll. 55–58.)
Once the verification is complete, the treatment plan is
implemented in step 716. In one embodiment, this step
comprises capturing temperature sensitive image sequences of
the target mass as each step of the plan is being implemented.
These images will illustrate the actual thermal dose distribution
resulting from each successive thermal dose. . . . In step 718,
the actual thermal dose distribution is compared with the
predicted thermal dose distribution in order to determine how
closely the actual treatments are tracking the treatment plan.
Then in step 724, it is determined if the treatment can proceed to
the next step (repeat step 716), or if changes must be made to the
treatment plan. (step 720). The changes may be accomplished
manually or automatically and may comprise adding treatment
sites, deleting treatment sites, repeating treatment sites, or
modifying specific thermal dose properties for some or all of the
treatment sites.

(Id. at col. 12, ll. 1–19 (emphasis added); see also Answer 4.) And, as
discussed above, Freundlich “construct[s] a three-dimensional treatment
plan, using three-dimensional images . . . and a three-dimensional predicted
thermal dose distribution.” (Id. at col. 8, ll. 63–66.) In short, Freundlich
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teaches capturing temperature data for the target mass to show the actual
spatial distribution of the thermal doses, i.e., determining the actual spatial
distribution of thermal doses (as measured by the temperature sensitive
images of the target mass). Thus, Freundlich teaches measuring the spatial
distribution of temperature, including temperatures adjacent the treatment
points, at least within the target mass. Therefore, we do not find Appellant’s
argument persuasive.
In view of the above, we are not persuaded that the Examiner erred in
rejecting independent claims 1 and 10, and dependent claims 2 and 11 under
§ 102(b).
With regard to dependent claims 3 and 12, the Examiner finds that
Freundlich discloses wherein the control unit is further operably
configured to determine a spatial and energy distribution of the
one or more successive treatment points (col. 8, lines 46-60) in
relation to a spatial distribution of required energy defined by a
temperature regulation system to treat the target region (col. 7,
lines 56-63).

(Final Action 5, 6.)
Appellant argues that Freundlich “fails to describe, expressly or
inherently, . . . determining a spatial and energy distribution of the one or
more successive treatment points in relation to a spatial distribution of
required energy defined by a temperature regulation system to treat the
target region as encompassed by” claims 3 and 12. (Appeal Br. 18–19.) But
Appellant does not explain why the Examiner’s findings to the contrary are
in error. Therefore, we are not persuaded that the Examiner erred in
rejecting claims 3 and 12 under § 102(b).
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For the same reason, Appellant’s arguments with regard to dependent
claims 5 and 14, 6 and 15, 8 and 17, 9 and 18, and 19 and 20 are
unpersuasive. (See Appeal Br. 19, Final Action 5–7.)

The §103(a) rejections
Claims 4 and 13
Obviousness is a legal conclusion involving a determination of
underlying facts.
Under § 103, the scope and content of the prior art are to be
determined; differences between the prior art and the claims at
issue are to be ascertained; and the level of ordinary skill in the
pertinent art resolved. Against this background, the obviousness
or nonobviousness of the subject matter is determined. Such
secondary considerations as commercial success, long felt but
unsolved needs, failure of others, etc., might be utilized to give
light to the circumstances surrounding the origin of the subject
matter sought to be patented.

KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007) (quoting Graham v.
John Deere Co. of Kansas City, 383 U.S. 1, 17–18 (1966)).
With regard to the scope and content of the prior art, the Examiner
finds that “Rudie teaches a method of thermal therapy using a PID
[(Proportional-Integral-Derivative)] control loop in order to achieve a
desired output level (col. 5, lines 39-45).” (Final Action 8.) Further, the
Examiner determines that in view of Rudie,
it would have been obvious . . . to modify the thermal treatment
device of Freundlich to determine information using a PID
system, since it is a known way of controlling output level in the
art and doing so would effectively prevent the patient from being
exposed to unnecessarily high amounts of energy.

(Id.)
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Appellant argues that
Rudie fails to describe, teach or suggest a modification of . . .
Freundlich to incorporate determining a position and a treatment
energy of successive treatment point(s) 612 within target mass
104 in relation to a spatial distribution of temperature adjacent
previous treatment points 614 as encompassed by [Appellant’s]
independent claims 1 and 10 . . . , more particularly to
incorporate determining the spatial distribution of required
energy for the one or more successive treatment points to treat
the target region according to a Proportional-Integral-Derivative
regulation system as encompassed by [Appellant’s] dependent
claims 4 and 13.

(Appeal Br. 20.)
“[O]ne cannot show non-obviousness by attacking references
individually where, as here, the rejections are based on combinations of
references.” In re Keller, 642 F.2d 413, 426 (CCPA 1981). A reference
“must be read, not in isolation, but for what it fairly teaches in combination
with the prior art as a whole.” In re Merck & Co., 800 F.2d 1091, 1097
(Fed. Cir. 1986). The question here is not whether Rudie itself describes,
teaches, or suggests modifying Freundlich. Rather, the question is whether
the Examiner erred in determining that it would have been obvious to one of
ordinary skill in the art at the time to modify Freundlich in view of Rudie in
the manner indicated by the Examiner. Appellant does not present a
persuasive argument as to why the Examiner is alleged to have erred in
determining that the modification would have been obvious to one of
ordinary skill in the art at the time.

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Claims 7 and 16
Appellant argues that “Freundlich fails to describe, teach or suggest
determining spatial and energy distribution of the one or more successive
treatment points to be performed in accordance with” the equation recited in
claims 7 and 16, and that “[f]or this reason, Freundlich fails to render
obvious the limitations of dependent claims 7 and 16.” (Appeal Br. 20–21.)
But “[t]he obviousness analysis cannot be confined by a formalistic
conception of the words teaching, suggestion, and motivation, or by
overemphasis on the importance of published articles and the explicit
content of issued patents.” KSR Int’l Co., 550 U.S. at 419. “If a person of
ordinary skill can implement a predictable variation, § 103 likely bars its
patentability.” Id. at 417.
Here, Appellant does not address the central question, i.e., whether it
would have been obvious to one of ordinary skill in the art at the time to
modify Freundlich to determine the spatial and energy distribution of the
successive treatment points in accordance with the equation recited in
claims 7 and 16. Nor does Appellant otherwise explain why the Examiner’s
obviousness determination is deficient. Therefore, we do not find
Appellant’s argument persuasive.

CONCLUSION
The Examiner’s rejection of claims 1–3, 5, 6, 8–12, 14, 15, and 17–20
under 35 U.S.C. § 102(b) is affirmed.
The Examiner’s rejections of claims 4, 7, 13, and 16 under 35 U.S.C.
§ 103(a) are affirmed.

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Specifically:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis  Affirmed Reversed
1–3, 5, 6, 8–
12, 14, 15,
17–20
102(b) Freundlich 1–3, 5, 6, 8–
12, 14, 15,
17–20

4, 13 103(a) Freundlich, Rudie 4, 13
7, 16 103(a) Freundlich 7, 16
Overall Outcome 1–20

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED