KONINKLIJKE PHILIPS N.V

Patent Trials and Appeals Board

Jun 23, 2020

2020000072 (P.T.A.B. Jun. 23, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/407,484 12/12/2014 ERIK JOHANNES MARIA JANSSEN 2013P00824WOUS 3323
24737 7590 06/23/2020
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
465 Columbus Avenue
Suite 340
Valhalla, NY 10595
EXAMINER
SIRIPURAPU, RAJEEV P
ART UNIT PAPER NUMBER
3793
NOTIFICATION DATE DELIVERY MODE
06/23/2020 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
katelyn.mulroy@philips.com
marianne.fox@philips.com
patti.demichele@Philips.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ERIK JOHANNES MARIA JANSSEN
____________

Appeal 2020-000072
Application 14/407,4841
Technology Center 3700
____________

Before BIBHU R. MOHANTY, BRUCE T. WIEDER, and
ROBERT J. SILVERMAN, Administrative Patent Judges.

WIEDER, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134 from the
Examiner’s final rejection of claims 1, 2, 4, 6, 7, 9, 10, 12, 13, 15, 16, and
18–21. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as
Koninklijke Philips N.V. (Appeal Br. 2.)
Appeal 2020-000072
Application 14/407,484

2
CLAIMED SUBJECT MATTER
Appellant’s “invention relates to a computed tomography system and
to an interventional system comprising the computed tomography system.
The invention relates further to a fusion image generation method and
computer program for generating a fusion image.” (Spec. 1, ll. 2–5.)
Claims 1, 13, and 15 are the independent claims on appeal. Claim 1 is
illustrative. It recites (emphasis added):
1. A computed tomography system comprising:
a computed tomography image generating unit comprising
a computed tomography scanner configured to generate a
computed tomography image of an object within a computed
tomography imaging region, wherein the computed tomography
scanner comprises a bore that encloses the computed tomography
imaging region;
a movable support element comprising a movable table
configured for supporting the object and for moving the
supported object from a first position within the computed
tomography imaging region to a second position within an
outside region, wherein the outside region is outside the bore;
an optical image acquisition unit comprising at least one
camera configured to acquire an actual time-dependent live
optical image of the object within an outside region outside of
the computed tomography imaging region using visible light and
acquire a first distance measurement optical image of an optical
marker arranged in a fixed relation to the moveable support
element and positioned in the computed tomography imaging
region, and a second distance measurement optical image of the
optical marker in the fixed relation to the movable support
element and positioned in the outside region;
a computer configured for:
providing a path of an interventional instrument
positioned at an entry location on an outer surface of the
object located at the second position and extending from
the entry location to a target region within the object based
on the generated computed tomography image;
Appeal 2020-000072
Application 14/407,484

3
detect a first position of the optical marker in the
first distance measurement optical image and a second
position of the optical marker in the second distance
measurement optical image;
determine a moving distance as a distance between
the first and second detected positions;
providing a spatial relation between a field of view
of the computed tomography image generating unit and a
field of view of the optical image acquisition unit; and
generating a fusion image, in which the computed
tomography image of the object at the first position and
the actual time-dependent live optical image of the object
at the second position are fused based on the moving
distance and the provided spatial relation, wherein the
fusion image shows the provided path of the interventional
instrument based on the computed tomography image, the
actual time-dependent live optical image, the provided
path, the provided spatial relation and the moving
distance.

REJECTIONS
Claims 1, 2, 6, 7, 9, 10, 12, 13, 15, 16, and 19–21 are rejected under
35 U.S.C. § 103 as unpatentable over Stolka (US 2012/0253200 A1, pub.
Oct. 4, 2012), Cosman (US 2002/0065461 A1, pub. May 30, 2002), and
Guendel (US 6,380,958 B1, iss. Apr. 30, 2002).2
Claims 4 and 18 are rejected under 35 U.S.C. § 103 as unpatentable
over Stolka, Cosman, Guendel, Bani-Hashemi (US 2003/0083562 A1, pub.

2 We treat the inclusion of cancelled claim 17 in the list of rejected claims
appearing on page 2 of the Final Action as inadvertent error. We treat the
discussion of cancelled claim 8 on page 12 of the Final Action as not
relevant to the Final Action.
Appeal 2020-000072
Application 14/407,484

4
May 1, 2003), Schmitz (US 6,050,724, iss. Apr. 18, 2000), and Smith
(US 2006/0079757 A1, pub. Apr. 13, 2006).

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

KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007) (quoting Graham v.
John Deere Co. of Kansas City, 383 U.S. 1, 17–18 (1966)).
With regard to the scope and content of the prior art, the Examiner
finds that Stolka discloses a
computer configured for . . . generating a fusion image, in which
the computed tomography image and the optical image are fused
based on the provided spatial relation and which also shows the
provided path of the interventional instrument (see Figs. 3 and 4
and para 36, 37, 70-73, 78, 82, 95, 99, 164, and 167).

(Final Action 2–3.) Further, the Examiner finds:
Additionally or alternatively, Cosman discloses a similar
medical tracking and registration, system, comprising . . . an
image fusion unit for generating a fusion image, in which the
computed tomography image and the optical image are fused
based on the provided spatial relation and the moving distance
between first and second positions (see Figs. 1, 2, 6, and 11 and
para 27-33, 35-39, 41, 74, 77, 80, 90, 91, 102, and 104-109).
Appeal 2020-000072
Application 14/407,484

5
It would have been obvious to one of skill in the art . . . to
have combined the teachings of Stokla [sic] and Cosman because
doing so would allow the patient space, table, imaging device,
optical imaging space to be registered. Such registration would
ensure accurate and repeatable positioning of the patient on the
bed between the multiple locations suggested in Stokla [sic].

(Id. at 3.)
Appellant argues that “Stokla [sic] does not disclose or suggest
generating a fusion image in which a CT image and an actual time-
dependent live optical image, which is acquired by at least one camera, are
fused as the image captured by the cameras is not fused with the CT/MRI
image.” (Appeal Br. 8.) With regard to Cosman, Appellant only argues that
“[t]he Office does not state either Cosman or Guendel disclose the above
limitations.” (Id.)
The Examiner answers, and we agree, that Appellant has failed to
address the Examiner’s alternative rejection based on Stolka and Cosman,
and specifically based on the Examiner’s above-discussed findings regarding
the image fusion unit of Cosman. (See Answer 4, Final Action 3.) In the
Reply Brief, Appellant argues, for the first time in this appeal, why the
Examiner’s findings regarding the image fusion unit of Cosman are in error.
(See Reply Br. 3–4.)
Any argument raised in the reply brief which was not
raised in the appeal brief, or is not responsive to an argument
raised in the examiner’s answer, including any designated new
ground of rejection, will not be considered by the Board for
purposes of the present appeal, unless good cause is shown.

37 C.F.R. § 41.41(b)(2). The argument in Appellant’s reply brief regarding
Cosman was not raised in the Appeal Brief, is not responsive to an argument
raised in the Examiner’s Answer, and Appellant fails to show good cause for
Appeal 2020-000072
Application 14/407,484

6
not raising the argument in the Appeal Brief. Therefore, we do not consider
the argument here.
In view of the arguments properly before us, Appellant does not
persuasively argue why the Examiner’s alternative rejection based on
Cosman is in error. Therefore we will affirm the rejection of claim 1.
Independent claims 13 and 15 are not separately argued and fall with
claim 1. See 37 C.F.R. § 41.37(c)(1)(iv).
Appellant argues that dependent claims 2, 4, 6, 7, 9, 10, 12, 16, and
18–21 are patentable for the same reason as claim 1.3 (Appeal Br. 9.) For
the reasons discussed above, claims 2, 4, 6, 7, 9, 10, 12, 16, and 18–21 fall
with claim 1.

CONCLUSION
The Examiner’s rejections of claims 1, 2, 4, 6, 7, 9, 10, 12, 13, 15, 16,
and 18–21 under 35 U.S.C. § 103 are affirmed.

3 We treat the inclusion of cancelled claim 17 in the list of claims appearing
on page 9 of the Appeal Brief as inadvertent error.
Appeal 2020-000072
Application 14/407,484

7

Specifically:

Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 2, 6, 7, 9,
10, 12, 13, 15,
16, 19–21
103 Stolka, Cosman,
Guendel
1, 2, 6, 7, 9,
10, 12, 13,
15, 16, 19–
21

4, 18 103 Stolka, Cosman,
Guendel, Bani-
Hashemi, Schmitz,
Smith
4, 18
Overall Outcome 1, 2, 4, 6, 7,
9, 10, 12,
13, 15, 16,
18–21

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

AFFIRMED