BRAINLAB AGDownload PDFPatent Trials and Appeals BoardAug 25, 20212021001919 (P.T.A.B. Aug. 25, 2021) 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. 14/907,756 01/26/2016 WOLFGANG STEINLE 013658/000658 2715 108549 7590 08/25/2021 Tucker Ellis LLP Brainlab AG 950 Main Avenue Suite 1100 Cleveland, OH 44113-7213 EXAMINER BRUCE, FAROUK A ART UNIT PAPER NUMBER 3793 NOTIFICATION DATE DELIVERY MODE 08/25/2021 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): patents@tuckerellis.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte WOLFGANG STEINLE, TIMO NEUBAUER, and INGMAR HOOK Appeal 2021-001919 Application 14/907,756 Technology Center 3700 Before MURRIEL E. CRAWFORD, MICHAEL L. WOODS, and MATTHEW S. MEYERS, Administrative Patent Judges. WOODS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s decision to reject claims 1, 4, 6, 7, 9, 10, and 12–17. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Brainlab AG. Appeal Br. 2. Appeal 2021-001919 Application 14/907,756 2 CLAIMED SUBJECT MATTER The claimed invention is entitled “Moiré Marker Device for Medical Navigation,” and “relates to a medical navigation marker device which is in particular to be detected by a navigation system in a navigated medical procedure.” Spec., code (54), 1.2 The invention essentially comprises a single marker carrier which comprises faces or surfaces which point in different spatial directions. Each of said surfaces features an individual marker pattern which includes a characteristic moiré pattern and also a visual code comprising dots, bars or lines, which serve as an identification pattern or identification code to enable the viewed pattern to be quickly, easily and in particular unambiguously identified by a navigation system. Because the moiré pattern offers a very high level of tracking accuracy, the combination of marker patterns allows reliable tracking, orientation information and optimum localisation accuracy to be mutually integrated. Id. at 2. Claim 1, reproduced below, with disputed language italicized, is illustrative of the claimed subject matter: 1. A medical navigation marker device comprising a light reflector featuring a marker pattern comprising an integration of a face identification pattern and a detailed direction pattern, wherein: the marker pattern points in multiple non-parallel spatial directions by comprising at least two non-parallel angled faces; the face identification pattern is configured to provide information identifying a particular face of the medical navigation marker device viewable from a particular spatial direction; and the detailed direction pattern is configured to provide spatial orientation information for the medical navigation marker device, the detailed direction pattern being integrated with the 2 The Specification as filed is an International Application publication under the PCT, WO 2015/022100 A1, and has no line numbers. Appeal 2021-001919 Application 14/907,756 3 face identification pattern and comprising at least two angled moiré fields that are configured to generate at least one moiré pattern that points in multiple non-parallel spatial directions. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Dekel3 US 2004/0002642 Al Jan. 1, 2004 McClelland US 2012/0059244 Al Mar. 8, 2012 McCombs US 2005/0109855 Al May 26, 2005 REJECTIONS The Examiner rejects4 claims 1, 4, 6, 7, 9, 10, 12–14, 16, and 17 under 35 U.S.C. § 103 as unpatentable over Dekel and McClelland. The Examiner rejects claim 15 under 35 U.S.C. § 103 as unpatentable over Dekel, McClelland, and McCombs. OPINION The Examiner finds that “Dekel teaches a medical navigation marker device” that substantially meets the requirements of claim 1, but that “Dekel does not teach that the detailed direction pattern compris[es] at least two angled moiré fields that are configured to generate at least one moiré pattern that points in multiple non-parallel spatial directions.” Final Act. 5, 6. According to the Examiner, “McClelland teaches a skin marker comprising a graphic image (moiré pattern) 20 of fig.1, printed on a flat circular portion 12, for use in locating the skin marker as a target in Moiré Fringe 3D scanning processes.” Id. at 6 (citing McClelland ¶¶ 26, 27). The Examiner 3 We refer to references by the first named inventor alone. 4 The Examiner includes claim 11 in the statement of rejection, but does not include the claim in the analysis. Final Act. 5, 7. Claim 11 is cancelled. Appeal 2021-001919 Application 14/907,756 4 reasons that it would have been obvious “to provide McClelland’s graphic image on Dekel’s rigid surfaces for reliable recognition during tracking of the target.” Id. at 8. Appellant contends that the Examiner is in error in proposing that the combination of Dekel and McClelland satisfies the claimed inventions, because, at most, “McClelland discloses a single moiré field on one surface,” rather than “at least two angled moiré field[s] on each face of the marker,” as recited in claim 1. See Appeal Br. 7. The Examiner responds that Appellant’s interpretation of the claim language is incorrect, and is based on “an improper assumption . . . made that the recited ‘two angled moiré fields’ necessarily reside on the same face.” Ans. 3. The Examiner further submits that the claim only requires “that the marker includes two angled faces and two angled moiré fields so it is proper for the moiré fields to reside on a same face of the two angled faces or different faces of the two angled faces.” Id. (emphasis added). To this, Appellant counters that “without pairs of patterns of each face, Dekel fails to teach the face identification pattern as” claimed. Reply Br. 3.5 For the reasons that follow, Appellant has shown error in the Examiner’s rejection. The resolution of the dispute depends on the construction of the claimed “angled moiré fields” and “moiré pattern,” as well as the interpretation of “marker for recognition by Moiré Fringe 3D scanning processes,” and whether McClelland teaches the claimed structure. 5 The Reply Brief does not display page numbers. We consider the page which states “Dear Commissioner” to be page 1. Appeal 2021-001919 Application 14/907,756 5 Claim Construction of Moiré Field and Moiré Pattern The specific, relevant claim language recited in each independent claim is “at least two angled moiré fields that are configured to generate at least one moiré pattern.” Appeal Br. 10 (Claims App.). The Specification states that “the moiré pattern offers a very high level of tracking accuracy” and that “Moiré patterns are described in a non- medical motion tracking environment in US 2011/0286010 A1.” (“Kusik,” published Nov. 24, 2011). Spec. at 1–2. Kusik explains that: moiré patterns are seen as light and dark fringes that change in response to changes in orientation of the target. Small rotations produce moiré-pattern displacements that are visible to the eye. With the out-of-plane rotations revealed by the moiré patterns, the system is able to determine the six degree of freedom (“6- DOF”) pose of the target from a single [2D] camera image. Kusik ¶ 6. The Specification further describes that the “moiré pattern can comprise at least two angled moiré fields and/or one or more curved moiré fields,” where angled moiré fields are used on flat faces, and curved moiré fields could be used on “cylindrical” or “spherical” surfaces. Spec. at 4. The Specification states, moiré patterns can be used which consist of secondary and visually evident superimposed patterns, as for example when two identical, usually transparent patterns on a surface (such as closely spaced straight lines drawn radiating from a point or taking the form of a grid) are overlaid while displaced or rotated a small amount from one another. A moiré pattern can therefore also be defined as a pattern formed by overlaid geometrical structures such as lines or grids. Straight or curved geometrical structures can be used, and the overlaid patterns can be rotated or merely shifted with respect to one another. Because one pattern overlays the other, the moiré field looks different when viewed from different directions. Appeal 2021-001919 Application 14/907,756 6 Id. at 10–11 (emphasis added). The Specification describes additional embodiments, relying on “overlap” of moiré fields to create moiré patterns. Id. at 11. The Specification thus describes pairs of moiré fields, which are superimposed, or overlaid, to create moiré patterns. Kusik, cited in background in the Specification, is consistent with this, in stating that “the target 150 includes grating regions that create moiré patterns,” where “front grated portions 330 and rear grated portions 420 generate moiré patterns which shift as the target 150 is tilted.” Kusik ¶¶ 37, 44. This construction is also consistent with other external references. For example, a “Scientific American” article from 1963 discloses that moiré patterns “are produced whenever two periodic structures are overlapped,” where “[t]he only general requirement for a moiré pattern is that the interacting figures have some sort of solid and open regions.” Gerald Oster and Yasunori Nishjima, “Moiré Patterns,” Scientific American, Vol. 28, No. 5, 1963, p. 54. Another scholarly article indicates that “[i]n optics, moiré refers to a beat pattern produced between two gratings of approximately equal spacing. Examples of moiré can be seen using household items, such as overlapping two window screens or with a striped shirt seen on television.” E. P. Goodwin and J. C. Wyant, “Field Guide to Interferometric Optical Testing,” SPIE Press, Bellingham, WA, 2006, pp. 30–31 (last retrieved from https://spie.org/publications/fg10_p30-31_moire on Aug. 12, 2021). We thus construe “moiré pattern” as a visual interference pattern formed by overlaying or superimposing one “moiré field,” or “grating,” over another “moiré field” or “grating.” Appeal 2021-001919 Application 14/907,756 7 Based on our construction, we disagree with the Examiner’s contention that two moiré fields can reside on different faces (one moiré field on each face), and still together create a moiré pattern, because the moiré pattern requires the overlaying of two moiré fields, which thus must be on the same face. McClelland’s Moiré Fringe We note first that McClelland does not disclose explicitly anything using the exact term “moiré fringe,” but instead discloses “printed surface image 22 . . . in the form of a matt black ring surrounding the coloured graphic image 20, is provided on the central portion of the marker for recognition by Moiré Fringe 3D scanning processes or other optical scanning processes.” McClelland ¶ 28; see also id. ¶ 8, claim 3. Nevertheless, the Examiner finds that McClelland’s image 20 is a moiré pattern. Final Act. 6; see also Ans. 4. We disagree with the Examiner. McClelland discloses that a “coloured graphic surface image 20 (preferably blue or green) is formed . . . around the dome 18 for recognition by colour imaging processes.” McClelland ¶ 27. McClelland further discloses that it is a further printed surface image 22, in the preferred embodiment in the form of a matt black ring surrounding the coloured graphic image 20, is provided on the central portion of the marker for recognition by Moiré Fringe 3D scanning processes or other optical scanning processes. The substantially non-reflective black pattern of the image 22 absorbs the light from an optical scanning process, resulting in a gap/blank on the surface model geometry. Id. ¶ 28 (emphasis added). Appeal 2021-001919 Application 14/907,756 8 Based on this disclosure, we find image 20 to be a color image for recognition by a color imaging process, and image 22 to be a matt black ring that reveals to “Moiré Fringe 3D scanning processes or other optical scanning processes” a gap/blank image. Id. The Examiner’s finding that McClelland’s image 20 is a Moiré pattern is not supportable. Final Act. 6. We thus agree with Appellant that the Examiner has not clearly established in McClelland the disclosure of a moiré pattern, as claimed, that when combined with the teachings of Dekel, would produce an interference pattern that permits the type of location determination addressed by the claimed invention. For this reason, we do not sustain the rejection of claims as obvious over Dekel and McClelland. Because the Examiner did not establish on the record that McCombs remedies the shortcomings of Dekel and McClelland, we also do not sustain the rejection of claim 15. CONCLUSION The Examiner’s rejections are REVERSED. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 4, 6, 7, 9, 10, 12–14, 16, 17 103 Dekel, McClelland 1, 4, 6, 7, 9, 10, 12– 14, 16, 17 15 103 Dekel, McClelland, McCombs 15 Overall Outcome 1, 4, 6, 7, 9, 10, 12– 17 Appeal 2021-001919 Application 14/907,756 9 REVERSED Copy with citationCopy as parenthetical citation