Ex Parte John et al

Patent Trial and Appeal Board

Dec 17, 2018

14177340 (P.T.A.B. Dec. 17, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/177,340 02/11/2014
28524 7590 12/19/2018
SIEMENS CORPORATION
INTELLECTUAL PROPERTY DEPARTMENT
3501 Quadrangle Blvd Ste 230
Orlando, FL 32817
FIRST NAMED INVENTOR
Matthias John
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
2013P02992US01 4028
EXAMINER
TURCHEN, ROCHELLE DEANNA
ART UNIT PAPER NUMBER
3793
NOTIFICATION DATE DELIVERY MODE
12/19/2018 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):
ipdadmin.us@siemens.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MATTHIAS JOHN, MURRIL MICHAEL SZUCS,
RAZV AN IONASEC, and ALOIS NOETTLING 1
Appeal2017-010310
Application 14/177 ,340
Technology Center 3700
Before JEFFREY N. FRED MAN, MICHAEL J. FITZPATRICK, and
JOHN G. NEW, Administrative Patent Judges.
NEW, Administrative Patent Judge.
DECISION ON APPEAL
1 Appellants state that the real parties-in-interest are Siemens
Aktiengesellschaft and Siemens Medical Solutions USA, Inc. App. Br. 1.
Appeal2017-010310
Application 14/177 ,340
SUMMARY
Appellants file this appeal under 35 U.S.C. § I34(a) from the
Examiner's Final Rejection of claims 1-34 as unpatentable under 35 U.S.C.
§ 101 as being directed to nonstatutory subject matter. Specifically, claims
1, 5-9, 12, 13, 17, 18, 21, 25-29 and 32 stand rejected as unpatentable under
35 U.S.C. § I03(a) as being obvious over the combination of Boese et al.
(US 2007/0021668 Al, January 25, 2007) ("Boese") and Liao et al (US
2011/0222750 Al, September 15, 2011) ("Liao").
Claims 2, 10, 11, 14, 19, 20, 22, 30 and 31 stand rejected as
unpatentable under 35 U.S.C. § I03(a) as being obvious over the
combination of Boese, Liao, and Grbic et al. (US 2012/0230568 Al,
September 13, 2012) ("Grbic").
Claims 3, 4, 15, 16, 23, 24, 33 and 34 stand rejected as unpatentable
under 35 U.S.C. § I03(a) as being obvious over the combination of Boese,
Liao, and Mountney et al. (US 2012/0296202 Al, November 22, 2012)
("Mountney").
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
NATURE OF THE CLAIMED INVENTION
Appellants' invention is directed to a method and system for
determining an angulation of a C-arm image acquisition system for a cardiac
intervention. Abstr.
REPRESENTATIVE CLAIM
Claim 1 is representative of the claims on appeal and recites:
2
Appeal2017-010310
Application 14/177 ,340
1. A method for determining an angulation of a C-arm image
acquisition system for a cardiac intervention, comprising:
rece1vmg a 3D ultrasound image including a cardiac
reg10n;
registering the 3D ultrasound image to a 3D coordinate
system of the C-arm image acquisition system;
detecting a cardiac structure of interest in the registered
3D ultrasound image; and
determining an angulation of the C-arm image acquisition
system based on the detected structure of interest in the registered
3 D ultrasound image.
App. Br. 26.
ISSUES AND ANALYSES
We are persuaded by, and expressly adopt, the Examiner's findings,
reasoning, and conclusion that Appellants' claims are not directed to
nonstatutory subject matter and are prima facie obvious over the combined
cited prior art. We address the arguments raised by Appellants below.
I.
A.
Issue
REJECTIONUNDER35 U.S.C. § 101
Rejection of independent claims 1, 13, and 21
Appellants argue the Examiner erred because the claims are not drawn
to a judicially-created exception, i.e., an abstract idea, to Section 101. App.
Br. 3.
Analysis
3
Appeal2017-010310
Application 14/177 ,340
The Examiner finds that the claims are directed to analyzing and
registering acquired data. Final Act. 2. The Examiner finds that the claims
do not include additional elements that are sufficient to amount to
significantly more than the judicial exception, because the claims do not
include additional elements that are sufficient to amount to significantly
more than the judicial exception. Id. The Examiner finds that, viewed as a
whole, these additional claim elements link the abstract idea to a particular
environment (i.e., medical diagnostic data analysis) and do not provide any
meaningful limitations to transform the abstract idea into a patent eligible
application of the abstract idea, such that the claims amount to significantly
more than the abstract idea itself. Id. at 2-3.
The Examiner further finds that the claims do not require a particular
machine, but apply the abstract idea on a generic computer or processor to
perform well-understood, routine and conventional acts in the art (i.e., data
acquisition and analysis). Final Act. 3. The Examiner also finds that the
claims do not recite any means or steps reciting improvements to the
technological field, or improvements to the functioning of the
computer/ultrasound/C-arm acquisition system. Id.
Appellants argue that the Examiner erred by characterizing the
independent claims at a high level of abstraction untethered to language
recited in the claims. App. Br. 4. Appellants point to the Federal Circuit's
opinion in Enfzsh, LLC v. Microsoft Corp., 822 F.3d 1327, 1337 (Fed. Cir.
2016), in which the court noted that, when determining whether a claim is
directed to an abstract idea, one should compare the claim to claims already
found to be directed to an abstract idea in previous court decisions. Id.
4
Appeal2017-010310
Application 14/177 ,340
Appellants contend that the Examiner's finding that: "[t]he idea of
analyzing [and] registering data can be considered to be a fundamentally
basic part of human intelligence. It allows humans to make decisions
through the discernment of parameter conditions" is untethered from the
language of the claims. Id. (quoting Final Act. 2-3).
Appellants contend that claim 1 recites a specific method for
determining the angulation of a C-arm image acquisition system that
requires registration of a received ultrasound image with a coordinate system
of the C-arm image acquisition system, detection of a structure of interest in
the registered ultrasound image, and determination of the angulation of the
C-arm image acquisition system based on the detected structure of interest in
the registered ultrasound image. App. Br. 5. According to Appellants, the
Examiner has not established any previous court decisions in which claims
directed to similar subject matter to the present claims, which are directed to
determination of an angulation of interest of a C-arm image acquisition
system based on detected structure of interest in a 3D ultrasound image that
has been registered to a coordinate system of the C-arm image acquisition
system, have been ruled to be abstract. Id.
Appellants point out that examples of abstract ideas in previous court
decisions have included fundamental economic practices, certain methods of
organizing human activities, an idea itself, and mathematical formulas. App.
Br. 5 (citing Alice Corp. Pty. Ltd. v. CLS Bank Int'!, 134 S.Ct. 2347, 2355-
57 (2014)). According to Appellants, the method recited in claim 1 is a
functional and palpable application in the field of computer and medical
imaging technology with a concrete and tangible result, not a basic building
block of human ingenuity. Id. Appellants argue that, although independent
5
Appeal2017-010310
Application 14/177 ,340
claim 1 may require the use of various underlying mathematical
relationships or formulas (e.g., to perform the registration of the ultrasound
image with the coordinate system of the C-arm image acquisition system or
the detection of the structure of interest), claim 1 does not claim or attempt
to tie up the mathematical relationships or formulas, themselves. Id. at 6.
Appellants dispute the relevance of the Examiner's reliance upon
SmartGene, Inc. v. Advanced Biological Labs., SA, 555 F. App'x 950 (Fed.
Cir. 2014) (nonprecedential) and Digitech Image Techs., LLC v. Elecs.for
Imaging, Inc., 758 F.3d 1344 (Fed. Cir. 2014). App. Br. 6 (citing Final
Office Act. 10). Appellants assert that the claims in SmartGene were
directed to a method for guiding the selecting of a therapeutic treatment
regimen for a patient with a known disease of medical condition. Id. ( citing
SmartGene, 555 F. App'x at 952). Appellants note that, in SmartGene, the
Federal Circuit ruled that the claim at issue was directed to the mental steps
of comparing new and stored information and using rules to identify medical
options. Id. (citing SmartGene, 555 F. App'x at 954). Furthermore,
Appellants argue, the court further held that: "Our ruling is limited to the
circumstances presented here, in which every step is a familiar part of the
conscious process that doctors can and do perform in their heads." Id.
(citing SmartGene, 555 F. App'x at 955).
To the contrary, Appellants assert, claims 1, 13, and 21 are not
directed to comparing new and stored information and using rules to identify
medical options, and are therefore not similar to the claims at issue in
SmartGene. App. Br. 6-7. Nor, argue Appellants, are they directed to an
ineligible abstract process of gathering and combing data, as in Digitech. Id.
at 7 (citing Digitech, 758 F.3d at 1351).
6
Appeal2017-010310
Application 14/177 ,340
Appellants further point to the Federal Circuit's holding in Enfzsh that
distinguished between claims that recite an improvement in computer-
related technologies and those in which general-purpose computer
components are added post-hoc to a fundamental economic practice or
mathematical equation. App. Br. 7 ( citing Enfzsh, 822 F.3d at 1339).
According to Appellants, claim 1 is directed to an improvement in the
computer-related technology of determination of an angulation of interest of
a C-arm image acquisition system. Id. According to Appellants, the method
of claim 1 reduces the amount of radiation and contrast agent exposure
required for a patient as compared to convention techniques for determining
a C-arm angulation. Id. Furthermore, Appellants argue, the method of
claim 1 does not require any extra operating room setting, as in intra
operative X-ray imaging. Id. Therefore, Appellants assert, claim 1 provides
improvements to the computer related technology of determination of an
angulation of interest of a C-arm image acquisition system. Id.
Appellants therefore contend that the claims at issue are not directed
to an abstract idea, and are therefore directed to a patent-eligible idea. App.
Br. 8. However, Appellants argue, assuming arguendo, that the claims
incorporate an exception to Section 101, the claims recite significantly more
than the abstract idea itself. Id. According to Appellants, the limitations of
claim 1 recite improvements to specific technologies and therefore claim
significantly more than the abstract idea of "analyzing and registering
acquired data." Id. at 9. By way of example, Appellants point to claim 1 's
limitation reciting: "registering the 3D ultrasound image to a 3D coordinate
system of the C-arm image acquisition system." Id. Appellants assert that
this limitation recites significantly more than the alleged abstract idea of
7
Appeal2017-010310
Application 14/177 ,340
"registering data" in that it requires that a 3D ultrasound image is registered
to a 3D coordinate system of a C-arm image acquisition system. Id. at 4.
Furthermore, Appellants argue, the limitations of claim 1 do not seek
to tie up the concept of "registering data," but instead recite a specific
method step of "registering the 3D ultrasound image to a 3D coordinate
system of the C-arm image acquisition system" in a method for determining
an angulation of the C-arm image acquisition system. App. Br. 9.
Appellants point out that claim 1 also recites the limitations of "detecting a
cardiac structure of interest in the registered 3D ultrasound image" and
"determining an angulation of the C-arm image acquisition system based on
the detected structure of interest in the registered 3D ultrasound image." Id.
Appellants argue that these limitations thus recite specific method steps that
require that a structure of interest be detected in a 3 D ultrasound image that
has been registered to a 3D coordinate system of the C-arm image
acquisition system, and that the detected structure of interest be used as a
basis for determining the angulation of the C-arm image acquisition system.
Id. These limitations, argue Appellants, recite significantly more than the
abstract concept of "analyzing data." Id.
Appellants dispute the Examiner's finding that the limitation of claim
1 reciting "receiving a 3D ultrasound image" is an additional extra-solution
activity. App. Br. 9. Appellants assert that claim 1 requires that the
received 3D ultrasound image is registered to a coordinate system of the C-
arm image acquisition system and requires that the structure of interest,
which is used as the basis for determining the angulation of the C-arm image
acquisition system, be detected in the 3D ultrasound image. Id. at 9--10.
Appellants further assert the method of claim 1 does not merely recite that a
8
Appeal2017-010310
Application 14/177 ,340
computer is used to determine the angulation for a C-arm image acquisition
system, but recites a specific method for how the angulation is determined
for a C-arm image acquisition system. Id.
We are not persuaded by Appellants' arguments. As an initial matter,
we point out that whether a claim preempts a judicial exception, such as an
abstract idea, is not an actual part of the test that the Supreme Court set forth
in either Alice or Mayo Collaborative Servs. v. Prometheus Labs. Inc., 566
U.S. 66, 71 (2012). Rather, such preemption is acknowledged to be an
outcome to be avoided by any such analysis, rather than an established step
in the analytical framework itself. See Mayo, 566 U.S. at 72-73.
Appellants' claims are directed to a method, i.e., a "process," and
therefore fall into one of the broad statutory categories of patent-eligible
subject matter under 35 U.S.C. § 101. See App. Br. 8-9. We consequently
next tum to determining whether this process is patent-eligible or comes
under one of the nonstatutory exceptions to Section 101.
In performing such a patentability analysis under 35 U.S.C. § 101, we
follow the framework set forth by the Supreme Court in Mayo. As a first
step, we determine whether the claims at issue are directed to a patent-
ineligible concept, i.e., a law of nature, a phenomenon of nature, or an
abstract idea. Mayo, 566 U.S. at 70-71. If the claims are so directed, we
next consider the elements of each claim both individually and "as an
ordered combination" to determine whether additional elements "transform
the nature of the claim" into a patent-eligible application. Id. at 78-79; see
also Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1375 (Fed.
Cir. 2015). Specifically, the Supreme Court considered this second step as
determining whether the claims recite an element or combination of
9
Appeal2017-010310
Application 14/177 ,340
elements that is "sufficient to ensure that the patent in practice amounts to
significantly more than a patent upon the [ineligible concept] itself." Mayo,
566 U.S. at 72-73.
Claim 1 comprises four discrete steps: (1) receiving a 3D ultrasound
image; (2) registering the 3D ultrasound image to a 3D coordinate system;
(3) detecting a cardiac structure of interest in the registered image; and ( 4)
determining an angulation of the C-arm system.
Appellants' Specification describes the registration of the received 3D
ultrasound image to the 3D coordinate system as comprising:
At step 104, the ultrasound image is registered to a
coordinate system of the C-arm image acquisition device. In
particular, the ultrasound image is registered to the "table"
coordinate system of the C-arm image acquisition device. The
table coordinate system is a mechanical coordinate system that is
oriented with respect to the table of the C-arm device and thus
remains constant even as the C-arm portion of the C-arm image
acquisition device is rotated with respect to the table.
Spec. ,r 22. The image received can be input as a series of abstract digital
values suitable for processing by a computer:
An image acquisition device 920 can be connected to the
computer 902 to input images to the computer 902. For example
the image acquisition device 920 may be a C-arm image
acquisition system capable of acquiring X-ray images and
inputting the X-ray images to the computer 902. The image
acquisition device 920 can also include an ultrasound probe, such
as a TEE or ICE ultrasound probe, capable of acquiring 3D
ultrasound images and inputting the ultrasound images to the
computer 902.
Id. at 40.
In the subsequent step of claim 1:
10
Appeal2017-010310
Application 14/177 ,340
[A] structure of interest is detected in the registered ultrasound
image. The structure of interest at least a portion of an
anatomical structure that can be used to defined an optimal
viewing angle for the X-ray acquisition. Although it is possible
for a user to manually mark the structure of interest in the
ultrasound image, according to an advantageous embodiment
the structure of interest can be detected automatically in the 3D
ultrasound image.
Spec. ,r 33. In an exemplary embodiment of this method:
In order to efficiently localize an object using MSL, [ marginal
space learning] parameter estimation is performed in a series of
marginal spaces with increasing dimensionality. Accordingly,
the idea of MSL is not to learn a classifier directly in the full
similarity transformation space, but to incrementally learn
classifiers in the series of marginal spaces. As the
dimensionality increases, the valid space region becomes more
restricted by previous marginal space classifiers. In particular,
detection of the global object in the 3D image is split into three
stages: position estimation, position-orientation estimation, and
position-orientation-scale estimation. A separate classifier is
trained based on annotated training data for each of these steps.
Id. at ,r 34. Finally, in the next step of the claimed method:
[T]he C-arm angulation is determined based on the detected
structure of interest. The C-arm angulation is dependent on the
type of cardiac intervention being performed and can be
automatically determined based on the structure of interest. For
example, for TA VI, the annulus plane of the aortic valve is
determined based on the detected structure of interest and a C-
arm angulation that is perpendicular to the aortic annulus plane
is selected. Similarly, for mitral valve intervention procedures, a
C-arm angulation that is perpendicular to the annulus plane of
the mitral valve can be selected.
11
Appeal2017-010310
Application 14/177 ,340
In summary, all of these steps constitute a receiving of, and
subsequent manipulation of, routinely gathered data to produce an optimal
angular measurement for the C-arm using a series of mathematical
processes, all of which constitute no more than abstract processes.
Furthermore, and as the Specification discloses, all of these processes can be
performed on a generic computer:
The above-described methods for determining an
angulation of a C-arm image acquisition system may be
implemented on one or more computers using well-known
computer processors, memory units, storage devices, computer
software, and other components.... The computer program
instructions may be stored in a storage device 912, or other
computer readable medium (e.g., magnetic disk, CD ROM, etc.)
and loaded into memory 910 when execution of the computer
program instructions is desired. Thus, the steps of the methods of
FIGS. 1, 2, 4, and 5 may be defined by the computer program
instructions stored in the memory 910 and/ or storage 912 and
controlled by the processor 904 executing the computer program
instructions.
Spec. ,r 40. All of the steps of the claimed process, therefore, represent a
series of abstract computational steps of the sort that could be performed
mentally (however laboriously) and therefore constitute an abstract idea of
the sort that falls within the exceptions to Section 101.
We find our reviewing court's opinion in CyberSource Corp. v. Retail
Decisions, Inc., 654 F.3d 1366 (Fed. Cir. 2011) to be instructive in this
regard. A method claim in CyberSource was directed to:
a) obtaining information about other transactions that have
utilized an Internet address that is identified with the [ ] credit
card transaction;
12
Appeal2017-010310
Application 14/177 ,340
b) constructing a map of credit card numbers based upon the
other transactions and;
c) utilizing the map of credit card numbers to determine if the
credit card transaction is valid.
654 F.3d at 1370. Or, more generically, the claim recited: (1) gathering
data; (2) mapping data with respect to a set of references; and (3) analyzing
the data received to determine a useful output (valid/invalid).
The Federal Circuit therefore reasoned that, with respect to the subject
claim:
[The claim's] steps can all be performed in the human mind.
Such a method that can be performed by human thought alone is
merely an abstract idea and is not patent-eligible under § 101.
Methods which can be performed entirely in the human mind are
unpatentable not because there is anything wrong with claiming
mental method steps as part of a process containing non-mental
steps, but rather because computational methods which can be
performed entirely in the human mind are the types of methods
that embody the "basic tools of scientific and technological
work" that are free to all men and reserved exclusively to none.
CyberSource, 654 F.3d at 1373 (quoting Gottschalkv. Benson, 409 U.S. 63,
67 (1972) (footnote omitted).
We conclude that the same reasoning applies with respect to
Appellants' claims. The steps of the claims relate to: (1) receiving data; (2)
mapping (registering) the data to a series of references (a 3D coordinate
system); (3) identifying a useful feature; and (4) calculating an optimal
angular measure. We consequently conclude that Appellants' claims are
directed to an abstract idea and, therefore, to a judicially-created exception
to Section 101.
13
Appeal2017-010310
Application 14/177 ,340
Proceeding to the second step of our analysis, i.e., determining
whether the rest of the claim, viewed individually or as an ordered
combination, add "significantly more" to the claim than just the exception
itself. We conclude that it does not. Appellants point to no additional steps
beyond these calculation steps that could not be performed mentally, with
the aid of pencil and paper, or without using a generic computer.
Nor are we persuaded by Appellants' arguments that Appellants'
claims are directed to an improvement in computer-related technology itself,
as was the case in Enfish. See App. Br. 7. As we have noted supra,
Appellants' claims can be performed on a generic computer, using
commercially-available software. See Spec. ,r 40.
We consequently affirm the Examiner's rejection of claims 1, 13, and
21 upon this ground.
B. Rejection of dependent claims 3, 15, and 23
Analysis
Appellants contend that each of these claims elaborate upon the
requirement that the 3D ultrasound image is registered to a 3D coordinate
system of the C-arm image acquisition system by: (1) "acquiring a 2D x-ray
image by the C-arm image acquisition system"; (2) "detecting a position of
an ultrasound probe in the 2D x-ray image using a learning based probe
detector"; "estimating a pose of the ultrasound probe in the 3D coordinate
system of the C-arm image acquisition device based on the detected position
of the ultrasound probe in the 2D x-ray image"; and (4) "registering the 3D
ultrasound image to the 3D coordinate system of the C-arm image
acquisition device based on the estimated pose of the ultrasound probe in the
14
Appeal2017-010310
Application 14/177 ,340
3D coordinate system of the C-arm image acquisition device." App. Br. 11.
Appellants contend that the claims thus recite a specific method for how the
registration is performed and are not directed to the mere idea of registration.
Id.
We do not find this contention to be persuasive. Although the claims
recite a more specific method for registering the received data to a 3D
coordinate system, we do not find that this essentially changes the nature of
the abstract process of registering data against a coordinate system that
constitutes the exception to 101. We conclude that the refinement of the
steps found patent-ineligible in Section A of our analysis supra insufficient
in nature to render them patent eligible.
Appellants argue further that the claims each recite: "detecting a
position of an ultrasound probe in the 2D x-ray image using a learning based
probe detector." App. Br. 11. Appellants contend that this limitation of the
claims require the use of a "learning based probe detector" to detect the
position of the ultrasound probe in the 2D x-ray image. Id. Therefore,
Appellants argue, this limitation requires machine learning-based detection
of the position of the ultrasound probe, and clearly cannot be performed as a
mental process or by a human being with a pen and paper. Id.
We disagree. Appellants' Specification discloses:
At step 202, the ultrasound probe is detected in the 2D X-
ray image. According to an advantageous implementation, a
learning based method can be used for probe detection. Leaming
based methods are robust to noise and capable of handling large
variations in appearance. Unlike matching or similarity
measures, learning based methods are trained on a set of
manually annotated or synthetically generated training data. In
particular, a probe detector is trained using a learning based
method offline prior to the cardiac intervention procedure, and
15
Appeal2017-010310
Application 14/177 ,340
the trained probe detector is used to detect an image patch in the
20 X-ray image that contains the ultrasound probe head.
Spec. ,r 24. Appellants' Specification thus discloses that a "learning based
method" involves a series of steps involving the generation of training data
and then using that training data as a basis to train the system to detect a
probe. As such, this consists of a series of steps directly emulating a mental
process, i.e., learning through repetition and familiarization. Appellants
point to no non-abstract addition to this limitation that would constitute
"significantly more" than the exception, i.e., the abstract idea, itself. We
consequently affirm the Examiner's rejection of claims 3, 15, and 23 upon
this ground.
C. Rejection of dependent claims 4, 16, and 24
Appellants argue that claims 4, 16, and 24 each recite a series of steps
that define how the step of "registering the 3D ultrasound image to a 3D
coordinate system of the C-arm image acquisition system" recited in the
independent claims is performed. App. Br. 12. Specifically, Appellants
assert that the claims require that the 3D ultrasound image is registered to a
3D coordinate system of the C-arm image acquisition system by "tracking a
position of an ultrasound probe in the 3D coordinate system of the C-arm
image acquisition device using a position sensor" and "registering the
ultrasound image to the 3D coordinate system of the C-arm image
acquisition device based on the tracked position of the ultrasound probe."
Id. Appellants therefore argue that the claims recite a specific method for
how the registration is performed and are not directed to the mere idea of
registration. Id.
16
Appeal2017-010310
Application 14/177 ,340
We do not find Appellants' arguments persuasive. Claim 4, by way of
example, recites:
The method of claim 1, wherein registering the 3D
ultrasound image to a 3D coordinate system of the C-arm image
acquisition system comprises:
tracking a position of an ultrasound probe in the 3D
coordinate system of the C-arm image acquisition device using
a position sensor; and
registering the ultrasound image to the 3D coordinate
system of the C-arm image acquisition device based on the
tracked position of the ultrasound probe.
Although we acknowledge Appellants' point that the limitations of
these claims provide more specific detail with respect to the limitation of the
independent claims reciting: "registering the 3D ultrasound image to a 3D
coordinate system of the C-arm image acquisition system," we do not see
how the addition of these specific steps alters the method from being
abstract because these steps also lack anything significantly more than the
exception itself.
Appellants argue further that the claims each recite: "tracking a
position of an ultrasound probe in the 3D coordinate system of the C-arm
image acquisition device using a position sensor." App. Br. 13. According
to Appellants, this limitation requires the use of a position sensor to detect
the position of the ultrasound probe in the 2D x-ray image. Id. Appellants
argue that paragraph [0032] of Appellants' Specification discloses that a
"position sensor" refers to a device, such as an electro-magnetic tracking
sensor, that tracks the position of the ultrasound probe relative to the C-arm
image acquisition device. Id. Therefore, Appellants contend, this limitation
17
Appeal2017-010310
Application 14/177 ,340
cannot be performed as a mental process or by a human being with a pen and
paper.
We are not persuaded. Paragraph [0032] of Appellants' Specification
discloses that:
In another exemplary embodiment, the registration of the
3D ultrasound image to the coordinate system of the C-arm
image acquisition device can be implemented by equipping the
ultrasound probe with a position sensor ( e.g., an electro-magnetic
tracking sensor). The position sensor tracks the position of the
ultrasound probe relative to the C-arm image acquisition device,
and the tracked position of the ultrasound probe can be used to
derive the position of the ultrasound image in the coordinate
system of the C-arm image acquisition device.
Appellants' Specification provides no more detail concerning, or indeed
mentioning, a "position sensor," suggesting that such sensors would be
known to a person of ordinary skill in the art. Indeed, the Examiner finds
that Mountney teaches tracking a position of an ultrasound probe in the 3D
coordinate system of the C-arm image acquisition device using a position
sensor (i.e., a detector):
At step 106, the probe is detected in the fluoroscopic
image. The probe detection identifies the location of the probe
head used in the fluoroscopic image. The probe head is rigid and
can move in 3D space with six degrees of freedom (DOF). The
probe' s location in the fluoroscopic image is defined by two
parameters, i.e., the x and y position in the image space.
Mountney ,r 26. Because such probe sensors are known in the art, we find
that the use of such a sensor constitutes routine data gathering activity
already engaged in by the scientific community, and therefore does not add
significantly more to the abstract idea than the abstract idea itself. See
18
Appeal2017-010310
Application 14/177 ,340
Mayo, 566 U.S. at 79--80. We therefore affirm the Examiner's rejection of
the claims upon this ground.
D. Rejection of dependent claims 12 and 32
Appellants next argue that claims 12 and 32 each recite the limitation
of "orienting the C-arm image acquisition device to the determined
angulation." App. Br. 13. Therefore, Appellants argue, these claims require
movement of C-arm image acquisition device to a specific determined
angulation. Id. Appellants argue that physical movement of a C-arm image
acquisition device to a determined angulation is clearly not a mental process,
and the claims therefore recite more than the abstract idea of "analyzing and
registering acquired data." Id. at 13-14.
We do not find this argument persuasive. "[T]o transform an
unpatentable [ exception to Section 101] into a patent-eligible application of
such a law, one must do more than simply state the law of nature while
adding the words 'apply it."' Mayo, 566 U.S. at 72 (citing, e.g., Benson, 409
U.S. at 71-72). In the appeal before us, the abstract idea is the registration
of the data onto a 3D coordinate system and the resultant calculation of the
optimal angle of the C-arm. Moving the C-arm to match the calculated
angle for the arm constitutes no more than applying the abstract idea. In
other words, we find that moving the C-arm to correspond to the result of the
abstract processing does not rise to the level of an "inventive concept," as
required by the second step of the Mayo analysis. See Mayo, 566 U.S. at 82.
We agree with the Examiner that this is not "significantly more" than the
exception itself, as required by the second step of our patent eligibility
19
Appeal2017-010310
Application 14/177 ,340
analysis under Alice and Mayo. We therefore affirm the Examiner's
rejection upon this ground.
E. Rejection of dependent claim 33
Appellants argue that claim 33 recites a series of steps that
specifically define how the step, recited in claim 3, of "estimating a pose of
the ultrasound probe in the 3D coordinate system of the C-arm image
acquisition device based on the detected position of the ultrasound probe in
the 2D x-ray image" is performed. App. Br. 14. Specifically, claim 33
recites that the step requires: "acquiring a 2D x-ray image by the C-arm
image acquisition system" and "refining the estimated initial pose of the
ultrasound probe in the 3D coordinate system of the C-arm image
acquisition device to reduce a difference value between a DRR image
generated based on the estimated initial pose of the ultrasound probe and the
2D x-ray image." Id. at 14--15. Therefore, Appellants argue, claim 33
recites a specific method for how the pose of the ultrasound probe is
estimated, and is not directed to the mere idea of analyzing and registering
acquired data. Id. at 15.
Appellants argue further that the limitations of claim 33 require the
use of MSL-based pose detection ( which utilizes a series of trained learning
based classifiers) to estimate an initial pose of the ultrasound probe in the 3D
coordinate system of the C-arm image acquisition device, and also require
generating a digitally reconstructed radiograph (DRR) image. App. Br. 15.
According to Appellants, these limitations clearly cannot be performed as a
mental process or by a human being with a pen and paper. Id.
20
Appeal2017-010310
Application 14/177 ,340
We are not persuaded by Appellants' arguments. As we have
explained supra, adding refinements to an abstract idea that do not add
significantly more than that idea will not transform the abstract idea into a
non-abstract idea. Furthermore, recitation of the additional steps of an MSL-
based learning model, which is itself designed to model human learning
processes (i.e., mental steps) does not render the scope of the claim any less
abstract. See CyberSource, 654 F.3d at 1373 (quoting Benson, 409 U.S. at
67) ("[C]omputational methods which can be performed entirely in the
human mind are the types of methods that embody the 'basic tools of
scientific and technological work"'). Finally, the step of generating an
image, i.e., a digitally reconstructed radiograph (DRR) image, is, as we have
explained an example of obtaining the end result and simply "apply[ing] it,"
and, as such, does not add significantly more to the claim than the abstract
idea itself, as required by the second step of our Mayo analysis. We
consequently affirm the Examiner's rejection of claim 33 on this ground.
F. Rejection of dependent claim 34
Appellants argue that claim 34 requires that the step of "estimating an
initial pose of the of the ultrasound probe in the 3D coordinate system of the
C-arm image acquisition device based on the detected position of the
ultrasound probe in the 2D x-ray image using marginal space learning-based
pose detection," as recited in claim 33, comprises "initializing x and y
coordinates of the ultrasound probe using the detected position of the probe
in the 2D x-ray image," "estimating a 3D position of the probe ultrasound
probe in a first detection stage using a first trained classifier," and
"estimating the 3D position and orientation of the ultrasound probe in a
21
Appeal2017-010310
Application 14/177 ,340
second detection stage using a second trained classifier." App. Br. 16.
Appellants therefore argue that claim 34 recites a specific method for how
the initial pose of the ultrasound probe is estimated, and is not directed to the
abstract idea of analyzing and registering acquired data. Id.
Appellants argue further that the limitations of claim 34 require the
use of a first trained classifier to estimate a 3D position of the ultrasound
probe in a first detection stage and a second trained classifier to estimate the
3D position and orientation of the ultrasound probe in a second detection
stage. App. Br. 16. According to Appellants, this limitation requires the use
of trained machine learning-based classifiers, and cannot be performed as a
mental process or by a human being with a pen and paper. Id.
We are not persuaded.
Appellants' Specification discloses that:
Leaming based techniques are used for each detection
stage. This approach treats pose estimation as a classification
problem. A training dataset of the probe in different poses is
generated offline. The training set can include manually
annotated and synthetically generated training data. In a possible
implementation, separate PBT classifiers are trained for each
detection stage (i.e., position and position-orientation) of the
pose estimation. At run time, features (e.g., Haar features) are
extracted from the fluoroscopic image and used by the sequence
of trained classifiers to estimate the pose of the probe. This
approach is fast and provides an initial estimate of the probes
position and orientation.
Spec ,r 28. We find that Appellants' argument that "the use of trained
machine learning-based classifiers" is not directed to a non-abstract concept,
because such trained machine learning-based classifiers are, by design,
intended to emulate human learning processes, which are themselves,
22
Appeal2017-010310
Application 14/177 ,340
abstract concepts. See CyberSource, 654 F.3d at 1373 (quoting Benson, 409
U.S. at 67) ("[C]omputational methods which can be performed entirely in
the human mind are the types of methods that embody the 'basic tools of
scientific and technological work"'). We therefore affirm the Examiner's
rejection of claim 34 on this ground.
II.
A.
Issue
REJECTIONUNDER35 U.S.C. § 103(a)
Claims 1, 3, and 21
Appellants argue that the Examiner erred because the combined cited
prior art references fail to teach or suggest the limitations of the claims
reciting: (1) "registering the 3D ultrasound image to a 3D coordinate system
of the C-arm image acquisition system"; and (2) "detecting a cardiac
structure of interest in the registered 3D ultrasound image." App. Br. 21.
Analysis
The Examiner finds that Boese teaches a method, apparatus and non-
transitory computer readable medium for determining an angulation of a C-
arm image acquisition system for a cardiac intervention, comprising: (1)
receiving a 3D image including a critical structure; (2) registering the 3D
image to a 3D coordinate system of the C-arm image acquisition system; (3)
detecting a critical structure of interest in the registered 3D image; and ( 4)
determining a required position of the C-arm image acquisition system based
on the detected critical structure of interest in the registered 3D image. Final
Act. 5 (citing Boese ,r,r 17, 22, 25). However, the Examiner finds, Boese
does not teach or suggest receiving a 3D ultrasound image including a
23
Appeal2017-010310
Application 14/177 ,340
cardiac region, and determining an angulation of the C-arm image
acquisition system and a transcatheter aortic valve implantation (TA VI). Id.
The Examiner finds that Liao, in the same medical field of endeavor,
teaches: (1) receiving a 3D ultrasound image including a cardiac region; (2)
determining an angulation of the C-arm image acquisition system; (3)
wherein the cardiac intervention is a transcatheter aortic valve implantation
(TA VI) procedure. Final Act. 5 (citing Liao ,r,r 34, 3, 8). The Examiner
finds that Liao further teaches detecting a cardiac structure of interest in the
registered 3D ultrasound image comprising: (1) detecting an aortic annulus
plane in the registered 3D ultrasound image. Id. ( citing Liao ,r 3).
The Examiner concludes that it would have been obvious to one of
ordinary skill in the art to modify the 3D image acquisition of a critical
structure and positioning a C-arm image acquisition system with ultrasound
images of the cardiac region and determining an angulation of the C-arm
image acquisition system, because it would provide imaging of a region of
interest in order to optimize intraoperative image acquisition. Final Act. 6.
Appellants argue that, in the method of Boese, the registration of the
2D fluoroscopy system with the 3 D data set is performed after the optimum
direction of projection is determined and, to any extent to which the critical
structure is detected in the 3 D data set, the detection of the critical structure
occurs before the registration of the 2D fluoroscopy system with the 3D data
set. App. Br. 19. According to Appellants, Boese does not teach detection
of a structure of interest in the registered 3D image.
Appellants dispute the Examiner's finding that paragraph [0025] of
Boese teaches "detecting a critical structure of interest in the registered 3D
image." App. Br. 19 (quoting Final Act. 5). However, Appellants argue,
24
Appeal2017-010310
Application 14/177 ,340
paragraph [0025] of Boese teaches that the defined intervention data, which
is determined prior to the registration, is transmitted to a navigation system,
and then data determined within the context of the projection planning
previously undertaken is transmitted to the fluoroscopy system. Id. ( citing
Boese ,r,r 17-21; Fig. 1 ).
Appellants further contend that paragraph [0025] teaches that, when
the position of the C-arm is determined using the previously determined
optimal direction of projection, the critical structure and the needle can be
seen in the fluoroscopy image. Id. However, Appellants assert, the
fluoroscopy image is the 2D image acquired using the fluoroscopy system,
and not a 3D image that has been registered with the fluoroscopy system.
Id. According to Appellants, there is no description in paragraph [0025] or
elsewhere in Boese that teaches or suggests detecting the critical structure in
a 3D image once the 3D image has been registered to the 2D fluoroscopy
system. Id.
Appellants also dispute the Examiner's finding that: "Boese[]
disclose[ s] registration of a 3D image set and a critical structure of interest is
determined after image registration." App. Br. 19 (quoting Final Act. 11).
However, Appellants assert, the cited portions of Boese teach that the critical
structure is located in the 3D image prior to the registration step, and there is
no description in Boese of detecting the critical structure in a 3D image once
the 3 D image has been registered to the 2D fluoroscopy system. Id.
Appellants also argue that, as described in paragraph [0017] of Boese,
the 3D data can be 3D angiography, computer tomography, or magnetic
resonance tomography. App. Br. 20. Appellants assert that there is no
description in Boese of receiving a 3D ultrasound image, registering the 3D
25
Appeal2017-010310
Application 14/177 ,340
ultrasound image to a 3D coordinate system of a C-arm image acquisition
device, or detecting a cardiac structure of interest in a 3D ultrasound image.
Id.
With respect to Liao, Appellants argue that the reference teaches that
"[ e ]xemplary embodiments of the inventions as described herein generally
include systems and methods for detecting acoustic shadows and evaluating
image quality in 3D ultrasound images." App. Br. 20. According to
Appellants, this teaching of Liao is inconsistent with the description in all of
the other paragraphs of Liao and does not appear to be related to the rest of
Liao's teachings. Id. By way of example, Appellants point to paragraph
[0002] of Liao, which teaches that: "This disclosure is directed to methods
for guiding aortic valve replacements using real-time digital imaging." Id.
Appellants also point to paragraph [0008] of Liao, which states that:
"Exemplary embodiments of the invention as described herein generally
include methods and systems for performing 3 D C-arm CT imaging during
transcatheter aortic valve implantations." Id. Appellants assert that there is
no description anywhere in Liao of any methods or systems for "detecting
acoustic shadows and evaluating image quality in 3 D ultrasound images," as
stated in paragraph [0034]. Id.
Furthermore, argue Appellants, even though paragraph [0034] of Liao
teaches: "detecting acoustic shadows and evaluating image quality in 3D
ultrasound images," but there is no description in Liao of any such
ultrasound images including a cardiac region or of detecting a cardiac
structure in any ultrasound image. App. Br. 20-21. Appellants note that
paragraph [0035] of Liao also states that the term "image" may refer to a
medical image of a subject collected by computer tomography, magnetic
26
Appeal2017-010310
Application 14/177 ,340
resonance imaging, ultrasound, or any other medical imaging system. Id. at
21.
However, Appellants argue, all of the embodiments described in Liao
in which cardiac structures are detected utilize 3D C-arm CT imaging, and
there is no description in Liao of any cardiac structure being detected in an
ultrasound image. Id. Consequently, Appellants assert, there is no reason
that a person of ordinary skill in the art would replace the 3D C-arm CT
images of Liao with 3D ultrasound images, because such a modification
would change the fundamental purpose of the methods described in Liao.
Id.
We do not find Appellants' arguments persuasive. Boese teaches:
A critical structure 11, in the exemplary embodiment
depicted, an organ of a patient, is located in the vicinity of a
needle channel 12 indicated by an arrow. The structure 11 and
the needle channel 12 are objects in a three-dimensional space.
The task within the context of pre-interventional planning
consists of finding an optimum direction of projection for the
fluoroscopy. This direction or the associated plane which lies
perpendicular to the direction of projection, is defined by the best
visualization of the critical structure 11 in relation to the needle
channel 12 and allows an especially secure monitoring of the
needle movement during the intervention.
Boese ,r 20. Boese then teaches that: "The user can move away from these
projection directions which are determined from the recorded 3D data and
visualized on a screen, and selects an optimum visualization." Id. at ,r 21.
In the next step:
[A] registration 5 of the 2D fluoroscopy system with 3D data set
is performed in order to match the coordinate systems to each
other.
27
Appeal2017-010310
Application 14/177 ,340
Where 3 D data from other sources such as magnetic
resonance tomography or computer tomography is used,
automatic or interactive image registration methods can be used.
It is also possible, to initially register an external data set with
3D/3D registration with the 3D rotation angiography data set, in
order to implicitly establish the registration with the fluoroscopy
system in this way.
Id. ,r,r 22-24. Finally, Boese teaches that:
In the next step shown in FIG. 1 the defined intervention
data 6 is transmitted to a navigation system. In this exemplary
embodiment the navigation system is a stereotactic frame.
Subsequently the data determined within the context of the
projection planning 7 previously undertaken is transmitted to the
fluoroscopy system. This enables the required position of the C-
arm to be determined.
Id. at ,r 25. We therefore agree with the Examiner that Boese teaches the
claimed steps of: (1) receiving a 3D image including a critical structure; (2)
registering the 3D image to a 3D coordinate system of the C-arm image
acquisition system; (3) detecting a critical structure of interest in the
registered 3D image; and (4) determining a required position of the C-arm
image acquisition system based on the detected critical structure of interest
in the registered 3D image. However, we agree with Appellants that Boese
teaches performing step (4) before step (3), i.e., the critical structure is
detected prior to registration of the received 3D image with the 3D
coordinate system. However, we do not find that this is sufficient to
overcome the Examiner's prima facie conclusion of obviousness.
Our reviewing court has held that:
Unless the steps of a method actually recite an order, the steps
are not ordinarily construed to require one. See Loral Fairchild
Corp. v. Sony Corp., 181 F.3d 1313, 1322, 50 USPQ2d 1865,
28
Appeal2017-010310
Application 14/177 ,340
1870 (Fed. Cir. 1999) (stating that "not every process claim is
limited to the performance of its steps in the order written").
However, such a result can ensue when the method steps
implicitly require that they be performed in the order written.
Interactive Gift Express, Inc. v. Compuserve Inc., 256 F.3d 1323, 1342--43
(Fed. Cir. 2001). Claim 1 recites, in relevant part: "A method for
determining an angulation of a C-arm image acquisition system for a cardiac
intervention, comprising .... " (Emphasis added). The claim does not
expressly require that the steps of registering the 3D image to a 3D
coordinate system of the C-arm image acquisition system and detecting a
critical structure of interest in the registered 3D image be performed in the
specific order listed, i.e., there is no language reciting, "then" or "next" after
each subsequent step. Furthermore, Appellants do not argue that preceding
the detection step with the registration step is necessary to the functioning of
their claimed invention, or that the claimed invention will be inoperative if
the steps are reversed.
Furthermore, the use of the transitional term "comprising" in the
language of the claim creates a presumption that the claim does not exclude
additional, unrecited elements. See Crystal Semiconductor Corp. v. TriTech
Microelectronics Int'!, Inc., 246 F.3d 1336, 1348 (Fed. Cir. 2001). In other
words, additional steps could be included in the method claimed by
Appellants, not excluding again detecting the critical structure of interest
again after registering the 3D image with the 3D coordinate system.
Moreover, and importantly, Appellants provide neither argument nor
evidence as to why the order of steps in the claims are necessary to the
function of the claimed invention. In Burhans, there were four process steps,
where each of the steps was disclosed in the prior art, differing only order of
29
Appeal2017-010310
Application 14/177 ,340
the steps. In re Burhans, 154 F.2d 690, 692 (CCPA 1946). The court was
unpersuaded of patentability, finding that "[t]here is no merit in the point
here in the absence of any proof in the record that the order of performing
the steps produces any new and unexpected results." Id. In other words,
Appellants adduce no evidence that, if step ( 4) is performed prior to step (3),
the claimed method would not have been obvious and would not function to
predict an optimal angle for the C-arm.
With respect to the teachings of Liao, Liao expressly teaches that:
As used herein, the term "image" refers to
multidimensional data composed of discrete image elements
(e.g., pixels for 2-D images and voxels for 3-D images). The
image may be, for example, a medical image of a subject
collected by computer tomography, magnetic resonance
imaging, ultrasound, or any other medical imaging system
known to one of skill in the art.
Liao ,r 35. Appellants argue that there is no description in Liao of any such
ultrasound images including a cardiac region or of detecting a cardiac
structure in any ultrasound image and that the embodiments taught by Liao
in which cardiac structures are detected utilize 3D C-arm CT imaging rather
than ultrasound. App. Br. 20-21. We do not find this argument persuasive.
Although Liao teaches CT imaging of cardiac structures in its exemplary
embodiments, "all disclosures of the prior art, including unpreferred
embodiments, must be considered." Merck & Co., Inc. v. Biocraft Labs.,
Inc., 874 F.2d 804, 807 (Fed. Cir. 1989). We agree that a person of ordinary
skill in the art would understand from the disclosures of Liao, and
particularly from paragraph [0035] supra, that its imaging methods could
include 3D ultrasound images, as also taught by Boese, of cardiac structures.
We therefore affirm the Examiner's rejection of claims 1, 3, and 21.
30
Appeal2017-010310
Application 14/177 ,340
Furthermore, Appellants rely upon these same arguments with respect
to the Examiner's rejection of dependent claims 2, 3, 5, 6, 8-15, 17-20, 22,
23, 25, 26, and 28-34. App. Br. 22. For the same reasons we have given for
rejecting the independent claims from which these claims depend, we affirm
the Examiner's rejection of these claims.
B. Claims 4, 16, and 24
Issue
Appellants argue the Examiner erred in finding the combined cited
prior art teaches or suggests the limitation of these claims reciting: "tracking
a position of an ultrasound probe in the 3D coordinate system of the C-arm
image acquisition device using a position sensor." App. Br. 22.
Analysis
Appellants argue that paragraph [0032] of their Specification discloses
that: a "position sensor" is a device, such as an electro-magnetic tracking
sensor, that tracks the position of the ultrasound probe relative to the C-arm
image acquisition device. App. Br. 22-23.
Appellants assert that the Examiner mistakenly relies upon Mountney
as teaching this limitation. App. Br. 23. According to Appellants, paragraph
[0030] of Mountney teaches that the pose of a probe in 3D is estimated, and
the detected probe position in the 2D fluoroscopic image can be used as a
starting point for probe pose estimation using a marginal space learning
(MSL) framework. Id. Appellants further contend that paragraphs [0026]-
[0029] of Mountney describe that the probe position in the 2D fluoroscopic
image is detected using a learned based method. Id. However, Appellants
31
Appeal2017-010310
Application 14/177 ,340
argue, paragraph [0032] of the Specification, which discloses that a
"position sensor" refers to a device that tracks the position of the ultrasound
probe relative to the C-ann image acquisition device, is distinguishable from
the use of a learning-based method for detecting the probe position. Id.
The Examiner responds that, contrary to Appellants' assertion, the
Specification does not expressly provide a limited definition of the position
sensor, but rather provides a non-limiting example of the position sensor as
an electro-magnetic tracking sensor. Ans. 25. The Examiner finds that
Mountney is directed to registration of ultrasound to x-ray fluoroscopic
images. Id. (citing Mountney Abstr.). The Examiner finds Mountney
further discloses tracking a position of an ultrasound probe in the 3D
coordinate system of the C-arm image acquisition device, in that the pose of
the probe relative to the fluoroscopic image is defined by defining the
probe's position in 3D in the coordinate system of the x-ray fluoroscopic
image. Id.
The Examiner finds that, because Appellants have not expressly
defined the position sensor in the claims, the position sensor can be
reasonably interpreted to be the computer of Mountney which tracks the x,
y, and z data points for the position of the ultrasound probe. Ans. 25-26.
The Examiner also finds that Mountney teaches a trained probe detector to
detect the probe location. Id. at 26 (citing Mountney ,r 29).
We agree with the Examiner. Dependent claim 4 recites, in relevant
part: "tracking a position of an ultrasound probe in the 3D coordinate system
of the C-arm image acquisition device using a position sensor; and
registering the ultrasound image to the 3D coordinate system of the C-arm
32
Appeal2017-010310
Application 14/177 ,340
image acquisition device based on the tracked position of the ultrasound
probe."
We determines the scope of claims in patent applications by giving
claims their broadest reasonable construction in light of the Specification as
it would be interpreted by one of ordinary skill in the art. Phillips v. A WH
Corp., 415 F.3d 1303, 1316 (Fed. Cir. 2005). We agree with the Examiner
that Appellants' Specification gives no express limiting definition to the
claim term "position sensor," but merely provides an exemplary
embodiment. Paragraph [0032] of Appellants' Specification discloses:
In another exemplary embodiment, the registration of the
3D ultrasound image to the coordinate system of the C-arm
image acquisition device can be implemented by equipping the
ultrasound probe with a position sensor ( e.g., an electro-magnetic
tracking sensor). The position sensor tracks the position of the
ultrasound probe relative to the C-arm image acquisition device,
and the tracked position of the ultrasound probe can be used to
derive the position of the ultrasound image in the coordinate
system of the C-arm image acquisition device.
We consequently define the claim term "position sensor" as meaning: "a
device or mechanism that tracks the position of a probe relative to the C-arm
image acquisition device."
Mountney teaches:
[A]t step 104, a TEE image is received. The TEE image is an
ultrasound image that is acquired using a probe with an
ultrasound transducer at the tip that is passed into a patient's
esophagus. The TEE image may be received directly from the
probe in real-time during the cardiac intervention procedure. In
an advantageous implementation, the TEE image may be
acquired at the same time as the fluoroscopic image received in
step 102.
33
Appeal2017-010310
Application 14/177 ,340
At step 106, the probe is detected in the fluoroscopic
image. The probe detection identifies the location of the probe
head used in the fluoroscopic image. The probe head is rigid and
can move in 3D space with six degrees of freedom (DOF). The
probe' s location in the fluoroscopic image is defined by two
parameters, i.e., the x and y position in the image space. The
probe has the potential to move in six DOF and therefore the
detection should be robust to changes in scale, translation, and
rotation.
According to an advantageous implementation, a learning
based method can be used for probe detection .... In particular, a
probe detector is trained using a learning based method offline
prior to receiving the fluoroscopic image, and the trained probe
detector is used to detect an image patch in the fluoroscopic
image that contains the ultrasound probe head.
Mountney ,r,r 25-27. Mountney thus teaches using a computer learning-
based mechanism for locating, in three-dimensional space, the location of
the ultrasound probe relative to the acquisition device, as determined by the
relative location of the probe to the acquired image. We consequently affirm
the Examiner's rejection of the claims.
C. Claims 7 and 27
Issue
Appellants argue that the Examiner erred in finding that the combined
cited art teaches the limitation of the claims reciting: "detecting the aortic
annulus plane as a plane that is perpendicular to the aortic root centerline at
the aortic annulus." App. Br. 24.
Analysis
34
Appeal2017-010310
Application 14/177 ,340
Appellants note that the Examiner relies on the paragraph [0022] of
Liao as teaching this limitation. App. Br. 24 (Final Act. 6). Appellants
assert that paragraph [0022] of Liao teaches deriving a perpendicularity
circle parallel to a plane spanned by the three lowest points of the aortic root
cusps and a ruler orthogonal to that plane. Id. Furthermore, Appellants
assert, paragraph [0055] of Liao provides further description of how the
perpendicularity circle is derived: a circle is derived that is parallel to the
plane spanned by the three lowest points of the cusps, and the circle is then
displaced a predetermined distance below the plane of the three points along
a direction normal to that plane. Id. at 24--25. Therefore, argue Appellants,
the perpendicularity circle described in paragraphs [0022] and [0055] is not
located at the aortic annulus, as required by the claims. Id. at 25.
Furthermore, Appellants contend, the perpendicularity circle is
derived to be parallel to a plane defined by the three lowest points on the
aortic root cusps. App. Br. 25. Appellants assert that, although paragraph
[0038] of Liao mentions a centerline of the aortic root, there is no
description of the perpendicularity circle being detected as a plane that is
perpendicular to the aortic root centerline at the aortic annulus. Id.
The Examiner responds that the aortic annulus is a fibrous ring that
constitutes the transition point between the left ventricle of the heart and the
aortic root. Ans. 26. The Examiner finds that the aortic root consists of the
aortic valve which has three cusps surrounded by the aortic annulus and the
openings for the coronary arteries. Id.
The Examiner finds that Liao teaches detecting the root shape and
landmarks, in particular the lowest points of each aortic root cusp, which are
known to be surrounded by the aortic annulus, in the 3D volume and then
35
Appeal2017-010310
Application 14/177 ,340
detecting the centerline. Ans. 27 (citing Liao ,r 38). The Examiner finds
that Liao then teaches deriving a perpendicularity circle parallel to a plane
spanned by three lowest points of the aortic root, and notes that a plane of
the aortic root would be perpendicular to a plane spanned by all three of the
lowest points, i.e., the aortic root cusps. Id. ( citing Liao ,r 22). The
Examiner finds that, if the plane of the aortic root cusps is perpendicular to
the aortic root, the plane of the aortic annulus is also perpendicular to the
aortic root. Id. The Examiner also notes that the claim requires only
detecting an aortic plane which is perpendicular to the aortic annulus.
We agree with the Examiner. Liao teaches:
According to a further aspect of the invention, the method
includes deriving a perpendicularity circle parallel to a plane
spanned by three lowest points of the aortic root cusps and a ruler
orthogonal to that plane, where the perpendicularity circle is
displayed in the 3D volume rendering, and the ruler is displayed
in one of the intersection planes.
Liao ,r 22. We agree with the Examiner's reasoning that the three lowest
points of the aortic root cusps as sufficient to define the aortic annulus plane.
We further agree with the Examiner that Liao' s teaching of a ruler
orthogonal to that plane includes the "aortic root centerline at the aortic
annulus," as recited in the claim, because the centerline of the aortic root is
necessarily orthogonal to the plane containing the aortic annulus. We
therefore find that Liao teaches the disputed reference, and we affirm the
Examiner's rejection of the claims.
36
Appeal2017-010310
Application 14/177 ,340
DECISION
The Examiner's rejection of claims 1-34 under 35 U.S.C. § 101 is
affirmed.
The Examiner's rejections of claims 1-34 under 35 U.S.C. § 103(a) is
affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 3 7 C.F .R. § 1.13 6( a )(1 )(iv).
AFFIRMED
37