Ex Parte Kaus et al

Patent Trial and Appeal Board

Mar 27, 2017

12300339 (P.T.A.B. Mar. 27, 2017)

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
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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?
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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
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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
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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:
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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);
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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
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