Ex Parte Bruijns

Patent Trial and Appeal Board

Oct 31, 2016

11816637 (P.T.A.B. Oct. 31, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
111816,637 08/20/2007 Johannes Bruijns
24737 7590 11/02/2016
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
465 Columbus A venue
Suite 340
Valhalla, NY 10595
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
2005P00346WOUS 1339
EXAMINER
GISHNOCK, NIKOLAI A
ART UNIT PAPER NUMBER
3715
NOTIFICATION DATE DELIVERY MODE
11/02/2016 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 JOHANNES BRUIJNS
Appeal2014-009904
Application 11/816,637 1
Technology Center 3700
Before JOHN C. KERINS, STEP AN ST AI CO VICI, and LEE L. STEPINA,
Administrative Patent Judges.
ST AI CO VICI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Johannes Bruijns (Appellant) appeals under 35 U.S.C. § 134(a) from
the Examiner's final decision rejecting claims 1, 2, 5-9, 12 and 14--16.2 We
have jurisdiction over this appeal under 35 U.S.C. § 6(b ).
According to Appellant, the real party in interest is Koninklijke
Philips Electronics, N.V. Appeal Br. 1 (filed Aug. 24, 2011).
2 Claims 3, 4, and 10 were canceled prior to the final decision, and
claims 11 and 13 were canceled in Appellant's after-final amendment, filed
May 31, 2011 ("May 2011 Amendment"). See May 2011 Amendment 4.
The May 2011 Amendment was entered by the Examiner in the Advisory
Action transmitted June 8, 2011 ("June 2011 Adv. Act.). See June 2011
Adv. Act. 1.
Appeal2014-009904
Application 11/816,637
SUMMARY OF DECISION
We AFFIRM-IN-PART.
INVENTION
Appellant's invention relates to "a method for the prediction of the
course of a (micro-) catheter within a vessel system," and "a data processing
unit for the execution of the prediction method." Spec. 1, 11. 1-3.
Claims 1, 7, and 14 are independent. 3 Claims 1 and 7 are illustrative
of the claimed invention and read as follows:
1. A method for predicting a course of a catheter between a
starting location and a target location in a modeled vessel
system, comprising:
a) with one or more processors, defining a corridor tube
within which a catheter may run from the starting location to
the target location through the modeled vessel system;
b) with the one or more processors, identifying an initial
course center line of said corridor tube;
c) with the one or more processors, defining a micro-
catheter tube to estimate a shape of a micro-catheter running
from the starting location to the target location through the
modeled vessel system, the micro-catheter tube having an initial
center line coincident with a course center line of the corridor
tube and being smaller in transverse cross-section than the
corridor tube;
3 In an amendment filed with the Appeal Brief on August 24, 2011
(August 2011 Amendment), Appellant rewrote claim 12 in independent
form. See Appeal Br. 22-23 (Claims App.). The August 2011 Amendment
was not entered by the Examiner in the Advisory Action transmitted October
2011 ("October 2011 Adv. Act."). See October 2011 Adv. Act. 1.
Accordingly, our analysis of claim 12 is based on claim 12 in dependent
form (dependent from claim 1) as presented in the May 2011 Amendment.
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Application 11/816,637
d) with the one or more processors, adjusting the initial
micro-catheter tube center line such that the micro-catheter tube
lies within the modeled vessel system; and
e) on a display device, displaying the modeled vessel
system with the adjusted micro-catheter tube.
7. An apparatus for predicting a course of a micro-catheter
between a starting location and a target location in a modeled
vessel system comprising a data processor programmed to:
a) define a micro-catheter tube that predicts a shape of a
micro-catheter running from the starting location to the target
location;
b) determine an initial micro-catheter center line of the
micro-catheter tube, the micro-catheter center line including an
alternating sequence of:
aa) straight-lined sections, an associated tube
section of which lies in an interior of the vessel system, and
bb) curved sections, an associated tube section of
which lies in the interior of the vessel system, the curved
section associated tube section at least one of touching a vessel
wall of the modeled vessel system turning and into a side
branch of the modeled vessel system;
c) iteratively:
aa) determine a catheter comer as one of (i) an
intersection of a current straight-lined section with the vessel
wall and (ii) a first point on the current straight-lined section
lying at a same distance from a start of said current straight-
lined section as a farthest vessel wall of a side branch which the
micro-catheter follows;
bb) shift a second point of the current straight-
lined section that is close to the catheter comer by an initial
shift vector towards the catheter comer; and
cc) introduce a transition from the current straight-lined
section to a following curved section at the aforementioned shifted
second point.
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Application 11/816,637
REJECTIONS4
The following rejections are before us for review:
I. The Examiner rejected claim 12 under 35 U.S.C. § 101.
II. The Examiner rejected claim 12 under 35 U.S.C. § 112, second
paragraph, as being indefinite.
III. The Examiner rejected claims 1, 2, 5, 6, 12, 14, and 15 under 35
U.S.C. § 102(b) as being anticipated by Anderson (US 2002/0137014 Al,
pub. Sept. 26, 2002).
IV. The Examiner rejected claims 7-9 and 16 under 35 U.S.C.
§ 103(a) as being unpatentable over Anderson and Geiger (US
2004/0209234 Al, pub. Oct. 21, 2004).
ANALYSIS
Rejection I
Claim 12 recites, "[a] non-transitory computer-readable medium on
which a computer program for predicting a course of a catheter is stored,
said program being adapted to control a data processing device to execute a
method according to claim 1." May 2011 Amendment 4.
The Examiner finds that "a single claim which claims both an
apparatus and the method steps of using the apparatus is directed to neither a
'process' nor a 'machine'; but rather embraces or overlaps two different
4 A rejection of claims 1, 2, 5-9, and 11-16 under 35 U.S.C. § 101 was
withdrawn by the Examiner. See June 2011 Adv. Act. 2. A rejection of
claim 13 under 35 U.S.C. § 112, first paragraph, as failing to comply with
the enablement requirement, was obviated because Appellant cancelled
claim 13. See May 2011 Amendment 4; see also June 2011 Adv. Act. 1.
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Application 11/816,637
statutory classes of invention set forth in 35 U.S.C. §101," and thus fails to
recite statutory subject matter, because 35 U.S.C. § 101 "is drafted so as to
set forth the statutory classes of invention in the alternative only." Final Act.
3 (citing MPEP 2173.05(p)(II)).
Appellant argues that "claim 12, being directed to an article of
manufacture, [and thus] complies with 35 U.S.C. § 101." Appeal Br. 18.
We agree with Appellant because claim 12 is directed to an article of
manufacture, namely, a non-transitory computer-readable medium.
Although such medium has a stored computer program that controls a data
processing device to execute a method according to claim 1, claim 12 does
not require that the recited method steps be actually performed, and thus
claim 12 is not also a method claim, as the Examiner contends.
Accordingly, we do not sustain the rejection of claim 12 under 35 U.S.C. §
101.
Rejection II
Similar to Rejection I, the Examiner finds that "a single claim which
claims both an apparatus and the method steps of using the apparatus is
indefinite under 35 U.S.C. 112, second paragraph." Final Act. 4--5 (citing
IPXL Holdings v. Amazon.com, Inc., 430 F.2d 1377, 1384 (Fed. Cir. 2005);
Ex parte Lyell, 17 USPQ2d 1548 (Bd. Pat. App. & Inter. 1990)). The
Examiner concludes that claim 12 "is ambiguous because it is not
sufficiently precise to provide to a person of ordinary skill in the art an
accurate determination of the 'metes and bounds' of protection involved,
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when a user of an apparatus also performs the claimed method of using the
apparatus." Id. at 5 (citing MPEP 2173.05(p)(II)).
Appellant argues that "even though the article of manufacture
references method claim 1, its meaning is clear and the claim is definite."
Appeal Br. 18.
As discussed supra, claim 12 does not require that the recited method
steps be actually performed, and thus claim 12 is not also a method claim, as
the Examiner contends. One of ordinary skill in the art would reasonably be
able to determine what is required of the computer readable medium to meet
the claim. Therefore, we also do not sustain the rejection under 35 U.S.C. §
112, second paragraph, of claim 12.
Rejection III
Claim 1 recites, in part, "the micro-catheter tube having an initial
center line coincident with a course center line of the corridor tube ...
adjusting the initial micro-catheter tube center line such that the micro-
catheter tube lies within the modeled vessel system." Appeal Br. 20 (Claims
App.). Independent claim 14 includes a similar recitation. See id. at 23.
The Examiner's position is that the "central line geometry" of
Anderson is a tube center line. Final Act. 6 (citing Anderson, para. 90; Fig.
5, dashed line). The Examiner considers that Anderson discloses "adjusting
the initial micro-catheter tube center line such that the micro-catheter tube
lies within the vessel system," because Anderson discloses that "an edge
routing technique with constant radius is used to construct a feature of the
simulated device that may provide safe access to the blood [vessel] walls.
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Id. (citing Anderson, paras. 13, 14, and 125, noting that "the simulated
device fits into the body cavity or lumen path).
Appellant argues that Anderson's "[p]aragraph [0090] refers to
determining the center line of the model of the vessel system and the dashed
line of Figure 5 referenced by the Examiner is the central line of the vascular
system, not a center line of a micro-catheter tube." Appeal Br. 11.
Appellant asserts that in Anderson, "the center line of the four modeled
segments are more akin to the three straight solid lines shown in Figure 5
which are initially not coincident with the vessel system model center line,"
and that "Anderson adjusts the four piecewise linear catheter segments
whose center lines do not initially lie on the vessel system model center line,
to approach the vessel system model center line," which is the opposite of
the claimed adjusting step. Id. at 11-12.
The Examiner responds that "the center lines of both the catheter tube
and the lumen of Anderson coincide," and that "appellant's assertion that
Anderson does not address 'two center lines' is not required by claim(s) 1."
Ans. 12. The Examiner states that "the 'simulated device backbone
geometry' defining a virtual catheter is best understood to be the center line
of the micro-catheter tube." Id. at 13 (citing Anderson, paras. 122-123).
Appellant replies that the Examiner fails to identify where Anderson
discloses "adjusting the micro-catheter tube center line." Reply Br. 3.
Appellant argues that "Anderson's use of a finite element method to refine
the three linear segments illustrated in Figure 5 is distinctly different than
starting with the micro-catheter tube initial center line coincident with the
course center line and being adjusted therefrom as called for in claim 1." Id.
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at 4. Appellant contends that paragraph 122 of Anderson discloses that a
catheter can be approximated using finite elements, and that paragraph 123
of Anderson discloses that the catheter is reconstructed as a series of
surfaces such as four-node or eight-node elements. Appellant asserts that
"these paragraphs emphasize that the Anderson technique is very different
from the technique of claim 1 in which the initial center line of the micro-
catheter tube is coincident with the course center line and adjusted from
there." Id.
We agree with Appellant because the Examiner does not adequately
identify where Anderson discloses an initial center line of the micro-catheter
that is coincident with a course center line of the corridor tube and then
adjusting the micro-catheter tube center line, as required by the claims. As
Appellant notes, paragraph 90 and Figure 5 of Anderson relate to "a central
line model of a vasculature," and neither paragraph 90 nor Figure 5 of
Anderson define the position of the catheter relative to the vasculature.
Although Anderson discloses that "the system simulates a path which
represents at least a portion of the body cavity or lumen and determines [a]
fit between the geometry of the device and the geometry of the path" (see
Anderson, para. 14 ), it is speculation that the fit entails coincident center
lines. Rather, Anderson provides that "[a]s used herein, to 'determine the fit
between the geometry of the device and the geometry of the path' refers to
displaying a representation of at least a portion of the device and simulating
its placement within at least a portion of the body cavity or lumen." Id.,
para. 50; see also id. at Figs. 8A-1-8A-3 and the relative location of the
catheter and the lumen. Neither the disclosure nor the figures of Anderson
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necessarily requires coincident center lines. Nor does Anderson's changing
a "curvature or 'central curve' of the backbone" of a catheter device
adequately establish that the center line is initially coincident with a center
line of a corridor tube and is then adjusted. Id., para. 122. As such, the
Examiner has not established a prima facie case of anticipation.
Accordingly, for the foregoing reason, we do not sustain the rejection
under 35 U.S.C. § 102(b) of claims 1, 2, 5, 6, 12, 14, and 15 as being
anticipated by Anderson.
Rejection IV
Claim 7
Claim 7 recites, in part, iteratively "determin[ing] a catheter comer ..
. and introduce[ing] a transition from the current straight-lined section to a
following curved section." Appeal Br. 21-22 (Claims App.).
The Examiner recognizes that Anderson fails to teach the above
recited limitation, but nonetheless, relies on Geiger for this limitation, and
concludes that it would have been obvious "to have each iteration step of the
design of the catheter of Anderson comprise the determination of a catheter
comer," based on the teachings of Geiger, "in order to avoid designing a
catheter that would be 'stuck' in a sharp bend or fold in a lumen of a blood
vessel." Final Act. 9-10 (citing Geiger, paras. 10, 11, 34, 35; Figs. 2a-2c).
Appellant asserts that "Geiger is concerned with defining the 'flight
path,"' which "is typically a center line of the colon." Appeal Br. 13 (citing
Geiger, paras. 10, 11 ). Appellant argues that "finding the center line of the
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tubular organ does not determine a catheter comer, much less determine a
catheter comer in the manner defined in step aa) of claim 7." Id. at 15.
The Examiner responds that "Anderson discloses adjusting a center
line of a catheter from an initial location (the device is modified in an
iterative way, see Para. 0135 of Anderson)," and that Geiger adds the "steps
of iteratively shifting and applying transition to determine the centerline,
using the techniques described for voxel growing." Ans. 15 (citing Geiger,
para. 22). The Examiner considers that the technique of Geiger "performs
the steps in claim 7 because each iteration determines a score, used to
qualify the most optimal path for the endoscope." Id.
In reply, Appellant asserts that Geiger does not suggest "custom
designing an endoscope, much less designing or adapting a medical
endoscope or the physical device based on the center line of the colon or
other tubular anatomical structure." Reply Br. 6. Appellant argues that
paragraphs 22 and 23 of Geiger "provide no teaching or suggestion of any
technique for adjusting the center line of a physical catheter or otherwise
adapting or generating a custom physical catheter." Id.
Appellant's arguments are not persuasive, because they are not
commensurate with the Examiner's rejection. Nonobviousness cannot be
established by attacking the references individually when the rejection is
predicated upon a combination of prior art disclosures. See In re Merck &
Co. Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Here, the Examiner uses the
teachings of Geiger to iteratively shift a center line, and correctly notes that
Anderson already shifts the center line of a catheter, but does not do so
iteratively. See Ans. 15. Specifically, Anderson discloses that a user is
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"able to change the material properties of the virtual catheter (or one or more
segments of the catheter) in order to achieve an optimized solution (e.g., for
optimal fit of the catheter within the path)." Anderson, para. 133. As such,
Anderson adapts the segments of the catheter to the shape of the path
followed by the catheter. Appellant does not adequately explain why
Anderson's fit of the catheter within the path where the path is iteratively
shifted, as taught by Geiger, does not meet the claimed limitation. Nor does
Appellant adequately explain why determining the path through the comers
of the vessel of Geiger as depicted, for example, in Figure 2c of Geiger, is
not determining a catheter comer, as claimed. See Ans. 15. As such,
Appellant has not persuasively shown error in the Examiner's findings and
reasonmg.
In the Reply Brief, Appellant also argues that Geiger is non-analogous
art. Reply Br. 6.
We are not persuaded by this argument because the present invention
"relates to a method for the prediction of the course of a (micro-) catheter
within a vessel system," and Geiger teaches a "method for automatic local
path planning such as may be utilized for virtual endoscopy and virtual
colonoscopy," which "provides the endoscopist with important information
prior to performing an actual endoscopic examination." Compare Spec. ,-r 1,
with Geiger, paras. 3, 4. By calculating a virtual path through the system
before actually entering the vessel system, Geiger is pertinent to the problem
faced by the inventor of planning and preparing a catheter intervention with
the help of suited modeling procedures (see Spec. 1) and thus, would have
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been considered to be reasonably pertinent to a problem sought to be solved
by Appellant. See Ans. 14.
For the foregoing reasons, we sustain the rejection under 35 U.S.C. §
103(a) of claim 7 as being unpatentable over Anderson and Geiger.
Claim 8
Claim 8 recites, in part,
wherein a micro-catheter center line of a following curved
section is piece by piece shifted in a direction of the initial shift
vector with a shift length being [ monotoniously] reduced such
that the curved section associated tube contacts the vessel wall
of the vessel system, wherein a following straight-lined section
starts where contact to the vessel wall is lost.
Appeal Br. 22 (Claims App.).
The Examiner relies on paragraph 36 of Geiger for this limitation.
See Final Act. 10-11.
Appellant asserts that this passage of Geiger "makes no suggestion
that a curved section of a physical micro-catheter should contact the vessel
wall of a vessel system," and that Anderson does not "suggest that a
following straight line section start[s] where contact with the vessel is lost."
Appeal Br. 15-16.
Geiger teaches a process for centering a path through a vessel (i.e.,
lumen) by determining when a virtual sphere collides with the wall of the
vessel and the process is repeated for each point along the path to establish a
center line path through the vessel. Geiger, para. 36; Fig. 4. If the catheter
tube of Anderson were to be modeled using probes like Geiger's spheres, as
the Examiner suggests (see Final Act. 11 ), it is not apparent how the catheter
tube differentiates between curved sections and straight-lined sections of the
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vessel as Geiger' spheres contact the vessel wall whether the section is
curved or straight-lined. In other words, Geiger does not differentiate
between a curved section where the sphere would contact the wall and a
straight portion where the sphere loses contact with the wall. See Geiger,
para. 36, Fig. 2c. The Examiner does not adequately explain how to
determine when a following straight line section starts, where contact with
the vessel is lost, as called for by claim 8, because all sections in Geiger,
including straight-lined sections, collide with (are in contact with) the wall.
Accordingly, the Examiner has not adequately established that the combined
teachings of Anderson and Geiger would result in the apparatus of claim 8.
Therefore, we do not sustain the rejection of claim 8.
Claims 9 and 16
The Examiner's use of the disclosure of Geiger does not remedy the
deficiencies of the rejection of claims 1 and 14 based on Anderson,
discussed supra. See Final Act. 9-11.
For the same reasons set forth above, the rejection of claims 9 and 16
based on the combined teachings of Anderson and Geiger is also not
sustained.
SUMMARY
The rejection under 35 U.S.C. § 101 of claim 12 is reversed.
The rejection under 35 U.S.C. § 112, second paragraph, of claim 12 as
being indefinite is reversed.
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The rejection under 35 U.S.C. § 102(b) of claims 1, 2, 5, 6, 12, 14,
and 15 as being anticipated by Anderson is reversed.
The rejection under 35 U.S.C. § 103(a) of claim 7 as being
unpatentable over Anderson and Geiger is affirmed.
The rejection under 35 U.S.C. § 103(a) of claims 8, 9, and 16 as being
unpatentable over Anderson and Geiger is reversed.
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)(l )(iv).
AFFIRMED-IN-PART
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