Ex Parte Oktay et al

Patent Trial and Appeal Board

May 1, 2017

14078002 (P.T.A.B. May. 1, 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.
14/078,002 11/12/2013 Ozan Oktay 2012P26745US01 6899
28524 7590 05/03/2017
SIEMENS CORPORATION
INTELLECTUAL PROPERTY DEPARTMENT
3501 Quadrangle Blvd Ste 230
EXAMINER
DELANEY, MOLLY K
Orlando, EL 32817 ART UNIT PAPER NUMBER
2666
NOTIFICATION DATE DELIVERY MODE
05/03/2017 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):
ipdadmin.us@siemens.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte OZAN OKTAY and LI ZHANG
Appeal 2016-008606
Application 14/078,0021
Technology Center 2600
Before NORMAN H. BEAMER, JOYCE CRAIG, and
ALEX S. YAP, Administrative Patent Judges.
BEAMER, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1—27. We have jurisdiction over the pending rejected
claims under 35 U.S.C. § 6(b).
We reverse.
1 Appellants identify Siemens Aktiengesellschaft as the real party in interest.
(Appeal Br. 1.)
Appeal 2016-008606
Application 14/078,002
THE INVENTION
Appellants’ disclosed and claimed invention is directed to registering
pre-operative images and intra-operative images using biomechanical
simulations. (Abstract.)
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A method for registering a pre-operative image of a patient
to an intraoperative image of the patient, comprising:
generating an initially registered pre-operative image by
estimating deformations of one or more segmented anatomical
structures in the pre-operative image using biomechanical gas
insufflation model constrained registration with the intra­
operative image; and
refining the initially registered pre-operative image using
diffeomorphic nonrigid refinement.
REJECTIONS
The Examiner rejected claims 1, 2, 5, 6, 8, 9, 10, 11, 14, 15, 17—20,
23, 24, 26, and 27 under 35 U.S.C. § 103(a) as being unpatentable over
Kitasaka, et al., “Virtual Pneumoperitoneum for Generating Virtual
Laparoscopic Views Based on Volumetric Deformation”, MICCAI 2004,
LNCS 3217, pp. 559-567 (2004), and Chefd’hotel, et al., “Flows of
Diffeomorphisms for Multimodal Image Registration,” IEEE 0-7803-7584-
X/02 (2002). (Final Act. 11-20.)
The Examiner rejected claims 3, 4, 12, 13,21, and 22 under 35 U.S.C.
§ 103(a) as being unpatentable over Kitasaka, Chefd’hotel, and Miga et al.
(US 2008/0123927 Al, pub. May 29, 2008). (Final Act. 20-22.)
The Examiner rejected claims 7, 16, and 25 under 35 U.S.C. § 103(a)
as being unpatentable over Kitasaka, Chefd’hotel, and Bano, et al.,
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Appeal 2016-008606
Application 14/078,002
“Simulation of Pneumoperitoneum for Laparoscopic Surgery Planning,” N.
Ayache et al. (Eds.): MICCAI2012, Parti, LNCS 7510, pp. 91-98 (2012).
(Final Act. 22—24.)
ISSUE ON APPEAL
Appellants’ arguments in the Appeal Brief present the following
dispositive issue:2
Whether the Examiner erred in finding the combination of Kitasaka
and Chefd’hotel teaches or suggests the independent claim 1 limitation,
generating an initially registered pre-operative image by
estimating deformations of one or more segmented anatomical
structures in the pre-operative image using biomechanical gas
insufflation model constrained registration with the intra­
operative image;
and the commensurate limitation recited in independent claims 10 and 19.
(Appeal Br. 4—9.)
ANALYSIS
For the limitation at issue, the Examiner relies on the disclosure in
Kitasaka, in the context of laproscopic surgery, of virtual views of an
inflated abdominal cavity by mathematically deforming pre-operative 3-D
CT images of the abdomen. (Final Act. 12; Kitasaka Abstract, pp. 561—
562).
Appellants argue, inter alia, the Examiner errs because, “There is no
description in Kitasaka of the input 3D image being registered to an intra-
2 Rather than reiterate the arguments of Appellants and the findings of the
Examiner, we refer to the Appeal Brief (filed Jan. 21, 2016); the Reply Brief
(filed Sep. 14, 2016); the Final Office Action (mailed Jul. 27, 2015); and the
Examiner’s Answer (mailed Jul. 14, 2016) for the respective details.
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Appeal 2016-008606
Application 14/078,002
operative image,” as required by the independent claims. (Appeal Br. 6.)
The Examiner finds “Kitasaka registers an initial pre-operative 3D image
with the gas model, which serves as a virtual intra-operative image.” (Ans.
12; citing Kitasaka p. 561, § 2.3.) We are persuaded this finding is in error.
We agree with Appellants, the gas model described in Kitasaka is not an
intra-operative image — rather, it is a calculated transformation of a pre­
operative image. (Reply Br. 4.) We also agree with Appellants, the
calculation of the deformed pre-operative image does not involve
“registration” as claimed. (Appeal Br. 7.)
In sum, we agree with Appellants that the Examiner does not provide
prima facie support for the rejections. “[T]he examiner bears the initial
burden, on review of the prior art or on any other ground, of presenting a
prima facie case of unpatentability.” In re Oetiker, 977 F.2d 1443, 1445
(Fed. Cir. 1992). Therefore, on the record before us, we are constrained to
find the Examiner errs in rejecting independent claims 1,10 and 19.
CONCLUSION
For the reasons stated above, we do not sustain the obviousness
rejections of independent claims 1,10 and 19 over Kitasaka and
Chefd’hotel. We also do not sustain the obviousness rejections of claims 2,
5, 6, 8, 9, 11, 14, 15, 17, 18, 20, 23, 24, 26, and 27 over Kitasaka and
Chefd’hotel, of claims 3, 4, 12, 13, 21, and 22 over Kitasaka, Chefd’hotel,
and Miga, and of claims 7, 16, and 25 over Kitasaka, Chefd’hotel, and Bano,
which claims are dependent from claims 1, 10 or 19.
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Appeal 2016-008606
Application 14/078,002
DECISION
We reverse the Examiner’s rejections of claims 1—27.
REVERSED
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