Ex Parte Cheng

Patent Trial and Appeal Board

Dec 31, 2018

13884172 (P.T.A.B. Dec. 31, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/884, 172 05/08/2013 Jeanne Cheng
24737 7590 01/03/2019
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.
2010P01275WOUS 8146
EXAMINER
DIETERLE, JENNIFER M
ART UNIT PAPER NUMBER
3793
NOTIFICATION DATE DELIVERY MODE
01/03/2019 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):
patti. demichele@Philips.com
marianne.fox@philips.com
katelyn.mulroy@philips.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JEANNE CHENG
Appeal2018-005598 1
Application 13/884, 1722
Technology Center 3700
Before PHILIP J. HOFFMANN, KENNETH G. SCHOPPER, and
TARA L. HUTCHINGS, Administrative Patent Judges.
HUTCHINGS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's final
rejection of claims 1-3, 7, 8, and 10-15. We have jurisdiction under
35 U.S.C. § 6(b).
We REVERSE.
1 Our Decision references Appellant's Appeal Brief ("App. Br.," filed
Dec. 4, 2017) and Reply Brief ("Reply Br.," filed May 9, 2018), and the
Examiner's Answer ("Ans.," mailed Mar. 20, 2018), and Final Office Action
("Final Act.," mailed Sept. 1, 2017).
2 Appellant identifies KONINKLIJKE PHILIPS ELECTRONICS N.V. as
the real party in interest. App. Br. 3.
Appeal2018-005598
Application 13/884, 172
CLAIMED INVENTION
Appellant's claimed invention "relates to ultrasonically guided
invasive procedure and, in particular, to invasive procedures guided by three
dimensional ultrasonic imaging." Spec. 1, 11. 4--7.
Claim 1, reproduced below, is the sole independent claim and
representative of the claimed subject matter on appeal:
1. A method for guiding the insertion of an invasive
instrument with an ultrasonic imaging system having a probe
with a two-dimensional array transducer, the method
compnsmg:
following placement of the probe against an acoustic
window of a body, transmitting ultrasound and receiving
ultrasound echoes with the probe to ultrasonically image a site of
an invasive procedure in a volumetric region of the body;
forming a plurality of real-time two-dimensional (2D)
images of adjacent planes of the volumetric region, each of the
adjacent planes extending from the two-dimensional array
transducer in a depth dimension to at least a depth of the invasive
procedure site, wherein the adjacent planes of the volumetric
region overlap one another in the thickness dimension by fifty
percent;
displaying concurrently the plurality of real-time 2D
images of adjacent planes of the volumetric region in spatially
adjacent order in a common display plane, wherein the plurality
of real-time 2D images of adjacent planes of the volumetric
region includes at least one image of the invasive procedure site;
and
updating the plurality of real-time 2D images of adjacent
planes of the volumetric region during insertion of the invasive
instrument into the volumetric region along an insertion path
directed toward the invasive procedure site for observing the
progress of instrument insertion as the instrument approaches the
invasive procedure site and successively intersects a plurality of
the adjacent planes of the volumetric region,
wherein the updating includes concurrently displaying at
least two of the plurality of real-time 2D images of adjacent
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Appeal2018-005598
Application 13/884, 172
planes of the volumetric region, each of the two of the plurality
of real-time 2D images of adjacent planes of the volumetric
region including a same portion of the invasive instrument when
the insertion path is not aligned with a single plane of the
adjacent planes of the volumetric region.
REJECTIONS
Claims 1-3, 7, 8, and 10-12 are rejected under 35 U.S.C. § I03(a) as
unpatentable over Anderson (WO 2009/044316 Al, pub. Apr. 9, 2009),
Yamagata (US 2009/0306511, pub. Dec. 10, 2009), and Day
(US 2006/0114254 Al, pub. June 1, 2006). 3
Claims 13-15 are rejected under 35 U.S.C. § I03(a) as unpatentable
over Anderson, Yamagata, Day, and Chalana (US 2003/0174872 Al, pub.
Sept. 18, 2003).
ANALYSIS
Independent Claim 1, and Dependent Claims 2, 3, 7, 8, and 10-12
In rejecting independent claim 1 under§ I03(a), the Examiner relies
on Anderson and Yamagata as each teaching forming 2D images via multi-
planar reformatting. Final Act. 6 ( citing Anderson ,r 20; Yamagata ,r 42).
The Examiner acknowledges that neither reference describes the use of
overlapping planes/images, and relies on Day to teach the use of overlapping
image planes. Id. ( citing Day ,r,r 2, 21 ). The Examiner finds that Day
discloses an overlap greater than 50%, but determines that this difference
could be an "infinitesimally small amount" above 50%, which could be
3 We treat the Examiner's identification of claims 13 and 14 among the
claims subject to rejection as inadvertent error in view of the separate
rejection of these claims at page 12 of the Final Office Action.
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Appeal2018-005598
Application 13/884, 172
interpreted as non-existent. Id. at 7. The Examiner concludes that reducing
the overlap from an infinitesimally small amount above 50% to 50% would
have been obvious to one of ordinary skill in the art, and would provide
"substantially the same appearance of a gradual progression through the
imaged volume." Id.
Appellant argues (see App. Br. 6-9; see also Reply Br. 1-2), and we
agree, that a person of ordinary skill in the art would have had no apparent
reason to modify Anderson and/or Yamagata such that adjacent planes of the
volumetric region overlap one another in the thickness dimension by fifty
percent, as the Examiner proposes. Day supports Appellant's assertions.
For example, at paragraph 21, Day describes that "MPR slabs [] overlap one
another by a significant amount, for example, by greater than 50% of their
thickness, e.g. greater than 60% or 70%" and "more preferably by a still
higher amount, such as 80%, 90% or 95%." It is unclear why one of
ordinary skill in the art would be motivated to modify Anderson and/or
Yamagata to overlap by a mere fifty percent, given that Day instructs only to
overlap at levels above 50%, and preferably much greater than 50%, such
as 95%.
Anderson and Yamagata also support Appellant's assertions. For
example, as pointed out by Appellant (see App. Br. 9-10; see also Reply
Br. 2-3), Anderson and Yamagata are concerned with acquiring fewer slices
to improve frame rate/temporal resolution. See Anderson ,r,r 23-24;
Yamagata ,r,r 79-81. But increasing the overlap requires acquiring more
slices and, thus, would have the opposite effect on frame rate. It is unclear,
and the Examiner does not adequately explain, why one of ordinary skill in
the art would be motivated to modify Anderson and Yamagata to have any
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Appeal2018-005598
Application 13/884, 172
overlap, much less the claimed overlap of fifty percent in light of Day's
disclosure of an overlap greater than fifty percent, such as 60 or 70 percent,
and preferably much greater than fifty percent, such as 80-95%.
The Examiner has not established, on this record, that a person of
ordinary skill in the art would have had an apparent reason to modify
Anderson and Yamagata, to result in the claimed invention. As such, the
Examiner has failed to establish a prima facie case of obviousness.
See KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,418 (2007) (holding that a
prima facie case of obviousness requires showing that one of ordinary skill
in the art would have had both an apparent reason to modify the prior art and
predictability or a reasonable expectation of success in doing so).
Therefore, we do not sustain the Examiner's rejection of claim 1 and
dependent claims 2, 3, 7, 8, and 10-12 under 35 U.S.C. § 103(a).
Dependent Claims 13-15
The Examiner's rejection of dependent claims 13-15 does not cure the
deficiency in the rejection of claim 1. Therefore, we do not sustain the
Examiner's rejection under 35 U.S.C. § 103(a) of dependent claims 13-15
for the same reasons described above with reference to claim 1.
DECISION
The Examiner's rejections of claims 1-3, 7, 8, and 10-15 under
35 U.S.C. § 103(a) are reversed.
REVERSED
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