BRAINLAB AG

Patent Trials and Appeals Board

Aug 25, 2021

2021001919 (P.T.A.B. Aug. 25, 2021)

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.
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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.
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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.
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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.
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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.
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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.”
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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).
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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
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REVERSED