Ex Parte Coe et al

Patent Trial and Appeal Board

Feb 5, 2018

12819330 (P.T.A.B. Feb. 5, 2018)

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.
12/819,330 06/21/2010 Jonathan A. Coe H-US-02046CIP(1850-46CIP) 9879
90039 7590 02/07/2018
Covidien LP
Attn: IP Legal
5920 Longbow Drive
Mail Stop A36
Boulder, CO 80301-3299
EXAMINER
NG, JONATHAN K
ART UNIT PAPER NUMBER
3686
NOTIFICATION DATE DELIVERY MODE
02/07/2018 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):
mail @ cdfslaw. com
SurgicalUS@covidien.com
medtronic_mitg-si_docketing@cardinal-ip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JONATHAN A. COE and CASEY M. LATDKOW
Appeal 2016-007925
Application 12/819,330
Technology Center 3600
Before ERIC S. FRAHM, CATHERINE SHIANG, and JOYCE CRAIG,
Administrative Patent Judges.
CRAIG, Administrative Patent Judge.
DECISION ON APPEAL
Appellants1 appeal under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1—16, 18, and 19, which constitute all of the claims
pending in this application.2 We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 According to Appellants, the real party in interest is Covidien LP, which is
a wholly-owned subsidiary of Medtronic PLC. App. Br. 1.
2 Claim 17 has been canceled. App. Br. 13.
Appeal 2016-007925
Application 12/819,330
INVENTION
Appellants’ invention relates to image analysis and visualization of
medical image data suitable for use in assessing tissue ablation and systems
and methods for controlling tissue ablation using the same. Abstract. Claim
1 is illustrative and reads as follows:
1. A method of configuring an electro surgical power
generating source, comprising the steps of:
receiving, at a processor, a data set including image data,
the image data representing a sequence of two-dimensional (2-
D) slice images;
receiving, at the processor, from a database in operable
communication with the processor, energy applicator data
associated with one or more energy applicators;
segmenting, at the processor, an object of interest from
surrounding image data of each slice image by iteratively
examining pixels adjacent to a starting pixel based on a p-value
of a t-statistic relating each pixel successively examined to
statistical properties automatically derived from pixel values
within the region of interest to define the object of interest, and
appending pixels to the object of interest based on a probability
threshold;
rendering, at the processor, a volume of the object of
interest using (x,y) coordinates corresponding to boundaries of
the segmented object of interest; and
configuring, at the electrosurgical power generating
source, a treatment parameter based on a parameter of the
rendered volume and the energy applicator data.
REJECTIONS
Claims 1—15 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over the combination of Bitter et al. (US 2005/0228250 Al; published Oct.
13, 2005) (“Bitter”), Greenblatt et al. (US 2012/0277763 Al; published Nov
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Application 12/819,330
1, 2012) (“Greenblatt”), and Scheuering et al. (US 2008/0080757 Al;
published Apr. 3, 2008) (“Scheuering”). Final Act. 2—12.
Claims 16, 18, and 19 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Greenblatt, Scheuering, and Bitter.
Final Act. 13—15.
ANALYSIS
We have reviewed the rejections of claims 1—16, 18, and 19 in light of
Appellants’ arguments that the Examiner erred. We have considered in this
Decision only those arguments Appellants actually raised in the Briefs. Any
other arguments that Appellants could have made but chose not to make in
the Briefs are deemed waived. See 37 C.F.R. § 41.37(c)(l)(iv).
We do not find Appellants’ arguments persuasive of error. We agree
with and adopt as our own the Examiner’s findings of facts and conclusions
as set forth in the Examiner’s Answer (Ans. 2-4) and in the Final Office
Action from which this appeal was taken (Final Act. 2—17). We provide the
following explanation for emphasis.
Appellants contend the Examiner erred because the cited portions of
Bitter, Greenblatt, and Scheuering do not teach or suggest the following
limitation in representative claim 1:
segmenting, at the processor, an object of interest from
surrounding image data of each slice image by iteratively
examining pixels adjacent to a starting pixel based on a p-value
of a t-statistic relating each pixel successively examined to
statistical properties automatically derived from pixel values
within the region of interest to define the object of interest, and
appending pixels to the object of interest based on a probability
threshold.
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Application 12/819,330
App. Br. 3. In particular, Appellants argue Scheuering does not teach
“examining pixels adjacent to a starting pixel based on a p-value of a t-
statistic relating each pixel successively examined to statistical properties
automatically derived from pixel values” because “Scheu[e]ring merely
discloses determining a probability measure and comparing that probability
with a threshold value.” Id. at 3—5. According to Appellants, it is known in
the statistical arts that a t-statistic is a measure of the accuracy of a statistical
estimate, i.e., a probability value, and a p-value is used to test a null
hypothesis to quantity the statistical significance of data. Id. at 3^4.
Appellants explain that a p-value is used to determine whether a null
hypothesis should be rejected. Id. at 5. Appellants attach a textbook excerpt
(David S. Moore et al., Introduction to the Practice of Statistics, 372—99
(2009) (“Moore”)) as evidence to support their position. See App. Br. 15.
Appellants’ arguments are not persuasive. Appellants have not
persuasively shown error in the Examiner’s broadest reasonable
interpretation of the variable “p-value of a t-statistic” as a “generic
probability value that is indicative of whether a hypothesis is true or not.”
See Ans. 3. Appellants have not shown the Examiner’s interpretation is
overly broad, unreasonable, or inconsistent with the Specification.
Appellants acknowledge the Specification does not define the term
“p-value of a t-statistic.” Reply Br. 2. Appellants do not identity any
portion of the Specification with which the Examiner’s interpretation is
inconsistent. See id. We find the Specification describes using “a p-value of
a t-statistic” where “pixels are appended or not appended to the processed
entity based on the value of the probability that they are equal to a
predetermined probability threshold.” Spec. 1 87. Although Appellants cite
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Application 12/819,330
to Moore as showing “a ‘p-value of a t-statistic’ has a very specific ordinary
and customary meaning within the statistical arts,” Appellants provide
insufficient accompanying explanation as to how Moore supports
Appellants’ particular arguments or shows the Examiner’s interpretation of
the disputed term is unreasonably broad. See App. Br. 4—5 (citing Moore
372—89); Reply Br. 2—3. As the Examiner points out, Appellants have not
provided detailed information about how the p-value is calculated using a t-
statistic value. See Ans. 3. For these reasons, Appellants have not
persuaded us that the Examiner’s interpretation of the disputed term is
overly broad, unreasonable, or inconsistent with the Specification.
Applying the broadest reasonable interpretation, the Examiner found
the segmentation technique in Scheuering iteratively examines pixels based
on intensity values exceeding a threshold value and whether a vessel
probability measure exceeds a threshold value. Ans. 3 (citing Scheuering |
71). The Examiner found the hypothesis in Scheuering is whether or not the
pixel belongs to a vessel. Id. The Examiner further found the probability of
the presence of a vessel structure at the voxel considered in Scheuering “is
determined only if, in the threshold value method based on voxel intensities,
the voxel considered is considered as belonging to a vessel.” Id. (citing
Scheuering claim 13); see also Final Act. 4—5 (citing Scheuering || 63—64,
71, 76, claim 13); see also Scheuering || 67, 72, 73.
Appellants have not persuasively rebutted the Examiner’s findings. In
the Appeal Brief, Appellants set forth paragraphs 63 and 64 of Scheuering,
but do not persuasively explain why the cited portions of Scheuering do not
teach or suggest the disputed limitation. See App. Br. 3—5. In the Reply
Brief, Appellants argue in a conclusory manner that “Scheu[e]ring merely
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Application 12/819,330
discloses determining a probability measure and comparing that probability
with a threshold value.” Reply Br. 3. In other words, Appellants do not
persuasively address the portions of Scheuering on which the Examiner
actually relied in rejecting claim 1.
For these reasons, Appellants have not persuaded us the Examiner
erred in finding that the combination of Bitter, Greenblatt, and Scheuering
teaches or suggests the disputed limitation, as recited in claim 1.
Accordingly, we sustain the Examiner’s 35 U.S.C. § 103(a) rejection
of independent claim 1, as well as the Examiner’s 35 U.S.C. § 103(a)
rejections of independent claims 9 and 16, which Appellants argue are
patentable for similar reasons. App. Br. 5—6. We also sustain the
Examiner’s rejections of dependent claims 2—8, 10-15, 18, and 19, not
argued separately with particularity. Id.
DECISION
We affirm the Examiner’s decision to reject claims 1—16, 18, and 19.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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