Ex Parte Kaus et alDownload PDFPatent Trial and Appeal BoardMar 27, 201712300339 (P.T.A.B. Mar. 27, 2017) Copy Citation United States Patent and Trademark Office UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O.Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 12/300,339 11/11/2008 Michael Kaus 2006P00551WOUS 8285 38107 7590 03/29/2017 PTTTT TPS TNTFT T FfTTTAT PROPFRTY fr STANDARDS EXAMINER 465 Columbus Avenue LUBIN, VALERIE Suite 340 Valhalla, NY 10595 ART UNIT PAPER NUMBER 3686 NOTIFICATION DATE DELIVERY MODE 03/29/2017 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): marianne. fox @ philips, com debbie.henn @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 MICHAEL KAUS, VLADIMIR PEKAR and RAFAEL WIEMKER Appeal 2014-000079 Application 12/300,3391 Technology Center 3600 Before HUBERT C. LORIN, TARA L. HUTCHINGS, and AMEE A. SHAH, Administrative Patent Judges. LORIN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Michael Kaus, et al. (Appellants) seek our review under 35 U.S.C. § 134 of the final rejection of claims 1—8, 10-12, 14, 16—19, 21, 23 and 24. We have jurisdiction under 35 U.S.C. § 6(b). SUMMARY OF DECISION We REVERSE. 1 The Appellants identify Koninklijke Philips Electronics N.V. as the real party in interest. App. Br. 1. Appeal 2014-000079 Application 12/300,339 THE INVENTION Claim 1, reproduced below, is illustrative of the subject matter on appeal. 1. A radiation therapy planning procedure comprising: a) with one or more processors, segmenting organs and diseased tissue with surface meshes from 4D medical images received from a diagnostic imaging device and- from a computer memory; b) identifying surface and internal landmarks located within one or more of the segmented organs and diseased tissue, the surface landmarks including vertices of the surface meshes and the internal landmarks being identified by at least one of: a template matching algorithm; an automated vessel tree extraction algorithm; and an automated marker detection algorithm; c) determining a deformation field based on the identified surface and internal landmarks; d) applying the deformation field to register the 4D medical images; e) developing a radiation therapy plan based on the registered 4D medical images; and f) on a display device, displaying at least one of the 4D medical images, the registered 4D medical images, and the developed radiation therapy plan. THE REJECTIONS The Examiner relies upon the following as evidence of unpatentability: T an- US 6,577,709 B2 June 10, 2003 2 Appeal 2014-000079 Application 12/300,339 Falco Dean Kohler US 2006/0020195 A1 Jan. 26, 2006 US 2006/0094951 A1 May 4, 2006 US 2007/0053482 A1 Mar. 8, 2007 US 2008/0262345 A1 Oct. 23, 2008Fichtinger The following rejections are before us for review: 1. Claims 1—4, 8, 10-12, 14 and 24 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Fichtinger, Dean, and Kohler. 2. Claim 5 is rejected under 35 U.S.C. § 103(a) as being unpatentable over Fichtinger, Dean, Kohler, and Falco. 3. Claims 6 and 7 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Fichtinger, Dean, Kohler, Falco, and Tarr. 4. Claims 19 and 21 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Fichtinger, Dean, Falco, and Tarr. 5. Claims 16—18 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Fichtinger, Dean, Falco, Tarr, and Kohler. 6. Claim 23 is rejected under 35 U.S.C. § 103(a) as being unpatentable over Fichtinger, Dean, and Falco. Did the Examiner err in rejecting claims 1—4, 8, 10—12, 14 and 24 under 35 U.S.C. § 103(a) as being unpatentable over Fichtinger, Dean, and Did the Examiner err in rejecting claim 2 under 35 U.S.C. § 103(a) as being unpatentable over Fichtinger, Dean, Kohler, and Falco? ISSUES Kohler? 3 Appeal 2014-000079 Application 12/300,339 Did the Examiner err in rejecting claims 6 and 7 under 35 U.S.C. § 103(a) as being unpatentable over Fichtinger, Dean, Kohler, Falco, and Tarr? Did the Examiner err in rejecting claims 19 and 21 under 35 U.S.C. § 103(a) as being unpatentable over Fichtinger, Dean, Falco, and Tarr? Did the Examiner err in rejecting claims 16—18 under 35 U.S.C. § 103(a) as being unpatentable over Fichtinger, Dean, Falco, Tarr, and Kohler? Did the Examiner err in rejecting claim 23 under 35 U.S.C. § 103(a) as being unpatentable over Fichtinger, Dean, and Falco? ANAFYSIS The rejection of claims 1—4, 8, 10—12, 14 and 24 under 35 U.S.C. § 103(a) as being unpatentable over Fichtinger, Dean and Kohler. The independent claims are 1 and 10. Both claims call for “calculating a deformation field for registering images based on both surface and internal landmarks.” Claim 1 calls for “determining a deformation field based on the identified surface and internal landmarks.” Claim 10 calls for “calculating] a deformation field which brings the identified surface and internal landmarks in the first and second medical images into registration.” The Examiner’s position is the same (see Final Act. 4); that is, Fichtinger discloses determining a deformation field based on internal landmarks and Dean for determining a deformation field based on surface landmarks. With respect to Fichtinger, the Examiner finds said determination disclosed at 1146 “The software can apply the images in processing pipeline step 1020 and perform deformable mapping”, Fig. 10 element 1030); developing a radiation therapy plan based on the 4 Appeal 2014-000079 Application 12/300,339 registered medical images (1109), and on a display device, displaying at least one of the first medical images, the registered medical images and the developed radiation therapy plan (168 “sends the two images to user interface 145 to be displayed”, claim 10 “displaying the object in the second image”). Final Act. 3. The Examiner appears to equate Fichtinger’s marker objects to the internal landmarks. See Ans. 4. With respect to Dean, the Examiner finds said determination disclosed at paragraphs 159, 167, and 183. Final Act. 3. The Specification provides discussion directed to landmarks (page 5) and how to identify them (pages 5—6). The Specification states that “it is desired to develop a method for radiation therapy planning that will accurately account for motion of an imaged object to allow for the development of a highly precise radiation therapy plan, and hence treatment.” Spec. 2. In that regard, [mjotion can be physical movement of the patient (setup error) or movement and deformation of the internal tissues, including the diseased tissue, caused by physiological functions, such as cardiac, respiratory, and digestive systems, or as a result of treatment response. Spec. 1 (emphasis added). In light of the Specification, the claim phrase “internal landmarks” is reasonably broadly construed to cover landmarks “inside the volume of interest” (Spec. 5, line 1), where the volume of interest would relate to “organs and diseased tissue” (claim 1). We have reviewed the cited passages of Fichtinger. We do not find there is adequate evidence for the finding that Fichtinger discloses determining a deformation field based on “internal landmarks” as that claim phrase is reasonably broadly construed. We agree with the Appellants. As 5 Appeal 2014-000079 Application 12/300,339 discussed in paragraph 134 of Fichtinger, “Fichtinger discloses identifying implanted markers which are seeds, wires, or needles, and a fiducial.” However, we agree with the Appellants that “[determining a deformation field based on the identified surface and internal landmarks is not and is not equivalent to the performing a deformable mapping in which only artificial implanted objects are present.” App. Br. 14. For the foregoing reasons, we find that a prima facie case of obviousness for the claimed subject matter as a whole covered by claims 1 and 10 has not been established in the first instance by a preponderance of the evidence. Accordingly, the rejection of claims 1 and 10 is not sustained. We reach the same conclusion as to the rejection of claims 2—4, 8, 11, 12, 14, 24, which depend from claims 1 and 10, respectively. The rejection of claim 2 under 35 U.S.C. § 103(a) as being unpatentable over Fichtinger, Dean, Kohler, and Falco. Claim 2 depends from claim 1 and its rejection is not sustained for the reasons given in not sustaining the rejection of claim 1. The rejection of claims 6 and 7 under 35 U.S.C. § 103(a) as being unpatentable over Fichtinger, Dean, Kohler, Falco, and Tarr. Claims 6 and 8 depend from claim 1 and their rejection is not sustained for the reasons given in not sustaining the rejection of claim 1. The rejection of claims 19 and 21 under 35 U.S.C. § 103(a) as being unpatentable over Fichtinger, Dean, Falco, and Tarr. Independent claim 21 includes the following limitations: 6 Appeal 2014-000079 Application 12/300,339 identifying internal landmarks located internal to one of the internal body structures segmented with surface meshes and locating surface landmarks of a surface of the one body structure segmented with the surface meshes; calculating a deformation field to the first medical image based on the identified internal and surface landmarks. As with the other independent claims 1 and 10, claim 21 calls for calculating a deformation filed based on “internal landmarks.” The Examiner’s position with regard to it is the same (see Final Act. 8); that is, Fichtinger discloses it. We disagree for the reasons discussed above and in the Appellants’ Brief (see page 22). We find that a prima facie case of obviousness for the claimed subject matter as a whole covered by claim 21 has not been established in the first instance by a preponderance of the evidence. Accordingly, the rejection of claim 21 is not sustained. We reach the same conclusion as to the rejection of claim 19 which depends from claim 21. The rejection of claims 16—18 under 35 U.S.C. § 103(a) as being unpatentable over Fichtinger, Dean, Falco, Tarr, and Kohler. Claims 16—18 depend from claim 21 and their rejection is not sustained for the reasons given in not sustaining the rejection of claim 21. The rejection of claim 23 under 35 U.S.C. § 103(a) as being unpatentable over Fichtinger, Dean, and Falco. As with the other independent claims 1,10, and 21, independent claim 23 calls for calculating a deformation field based on “internal landmarks.” The Examiner’s position with regard to it is the same (see Final Act. 11); 7 Appeal 2014-000079 Application 12/300,339 that is, Fichtinger discloses it. We disagree for the reasons discussed above and in the Appellants’ Brief (see page 25). We find that a prima facie case of obviousness for the claimed subject matter as a whole covered by claim 23 has not been established in the first instance by a preponderance of the evidence. Accordingly, the rejection of claim 23 is not sustained. CONCLUSIONS The rejection of claims 1—4, 8, 10-12, 14 and 24 under 35 U.S.C. § 103(a) as being unpatentable over Fichtinger, Dean and Kohler is reversed. The rejection of claim 2 under 35 U.S.C. § 103(a) as being unpatentable over Fichtinger, Dean, Kohler, and Falco is reversed. The rejection of claims 6 and 7 under 35 U.S.C. § 103(a) as being unpatentable over Fichtinger, Dean, Kohler, Falco, and Tarr is reversed. The rejection of claims 19 and 21 under 35 U.S.C. § 103(a) as being unpatentable over Fichtinger, Dean, Falco, and Tarr is reversed. The rejection of claims 16—18 under 35 U.S.C. § 103(a) as being unpatentable over Fichtinger, Dean, Falco, Tarr, and Kohler is reversed. The rejection of claim 23 under 35 U.S.C. § 103(a) as being unpatentable over Fichtinger, Dean, and Falco is reversed. DECISION The decision of the Examiner to reject claims 1—8, 10—12, 14, 16—19, 21 and 23 is reversed. REVERSED 8 Copy with citationCopy as parenthetical citation