Ex Parte Govari et al

Patent Trial and Appeal Board

Apr 24, 2017

12129012 (P.T.A.B. Apr. 24, 2017)

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.
12/129,012 05/29/2008 Assaf Govari BI05156USNP 1327
27777 7590 04/26/2017
JOSEPH F. SHIRTZ
JOHNSON & JOHNSON
ONE JOHNSON & JOHNSON PLAZA
NEW BRUNSWICK, NJ 08933-7003
EXAMINER
GUPTA, VANI
ART UNIT PAPER NUMBER
3786
NOTIFICATION DATE DELIVERY MODE
04/26/2017 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):
j nju spatent @ coru s .j nj. com
lhowd@its.jnj.com
pair_jnj @ firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ASSAF GOVARI, ANDRES CLAUDIO ALTMANN, and
ALEXANDER LEVIN1
Appeal 2015-002463
Application 12/129,012
Technology Center 1600
Before ERIC B. GRIMES, ULRIKE W. JENKS, and
ROBERT A. POLLOCK, Administrative Patent Judges.
JENKS, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a method
and system for tracking the position of an internal probe with a reference
probe. The Examiner rejects the claims as obvious. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.
1 According to Appellants, the Real Party in Interest is Biosense Webster
(Israel) Ltd. Br. 1.
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Application 12/129,012
STATEMENT OF THE CASE
According to the Specification:
In intracardiac tracking systems, such as CARTO™
(produced by Biosense Webster, Diamond Bar, California), the
position coordinates of a catheter inside the heart are determined
relative to a reference location outside the patient’s body. In
CARTO, for example, both the catheter and a reference pad
under the patient's back contain miniature coils, which sense the
amplitude and direction of a magnetic field. As the patient
breathes, however, the resulting movement of the patient’s
thorax causes the heart to shift position relative to the reference
pad, so that the coordinates of the catheter will change during the
respiratory cycle even while the catheter is stationary relative to
the heart.
Spec. 1:15—27. By placing a reference probe inside the heart so that “[t]he
reference probe is held stationary and serves as a reference point for
measuring the relative coordinates of the active device” the effect of
respiration on the coordinates of the active device can be largely eliminated.
Spec. 2:14—16.
Claims 1—6, 8—15, 17, and 18 are on appeal, and can be found in the
Claims Appendix of the Appeal Brief. Claim 1 is representative of the
claims on appeal, and reads as follows (emphasis and numbering added):
Claim 1. A method for position tracking, comprising:
placing an internal reference probe, which comprises a first
position transducer, in a fixed reference location within a heart
of a subject;
collecting and processing first location coordinates of the internal
reference probe in an externally fixed frame of reference, using
the first position transducer, during one or more respiratory
cycles of the subject so as to define a first range of the location
coordinates corresponding to the reference location of the
internal reference probe;
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establishing a permitted threshold for a deviation of the location
coordinates from the first range;
inserting an active device, which comprises a second position
transducer, into the heart;
collecting second location coordinates of the active device in the
externally fixed frame of reference, using the second position
transducer, and jointly processing the first location coordinates
and the second location coordinates so as to find relative location
coordinates of the active device in a cardiac frame of reference;
after defining the first range of the location coordinates
corresponding to the reference location, upon detecting a
deviation of the first location coordinates from the first
range_that is more than the permitted threshold, establishing a
second range of location coordinates corresponding to the
reference location that are outside of the first range and more
than the permitted threshold and
establishing a correction vector based on the deviation of the
location coordinates of the first range, thereby identifying a
displacement of the reference probe from the fixed reference
location; and
correcting the relative location coordinates of the active device
in the cardiac frame of reference using the correction vector so
as to compensate for the displacement.
The following grounds of rejection are before us for review:
The Examiner rejects the claims as follows:
I. claims 1, 3—6, 8—15, 17, and 18 under 35 U.S.C. § 103(a) as
unpatentable over Dukesherer2 in view of Smith3 in view of
Lu;4 and
2 Dukesherer et al., US 2005/0085715 Al, published Apr. 1, 2005
(“Dukesherer”).
3 Smith et al., US 5,515,853, issued May 14, 1996 (“Smith”).
4 Lu et al., US 2007/0201613 Al, published Aug. 30, 2007 (“Lu”).
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II. claims 2 and 11 under 35 U.S.C. § 103(a) as unpatentable over
Dukesherer, Smith, and Lu and further in view of Slettenmark.5
Since both of these rejections rely upon the teaching of Dukesherer,
Smith, and Lu regarding the use of probes for the purpose of determining the
location of an active probe that is located in a cardiac reference frame and
correcting the coordinate location of the active probe in the frame, the same
issue is dispositive for both of these rejections, so we will consider the
rejections together. As Appellants do not argue the claims separately, we
focus our analysis on claim 1, and claims 2—6, 8—15, 17, and 18 stand or fall
with that claim. 37 C.F.R. § 41.37 (c)(l)(iv).
The Examiner finds that Dukesherer teaches the use of a catheter and
at least one reference probe. See Ans. 2-4. According to the Examiner
Dukesherer teaches the use of a fixed frame reference probe 54 “for
collecting and processing first location coordinates of the internal reference
probe [] with respect to the fixed frame of reference, using the first position
transducer.” Ans. 3. Although Dukesherer teaches that the reference frame
54 can be attached externally as well as internally (Dukesherer H 55 and
56), “Dukesherer does not suggest specifically that the dynamic reference
frame (54) may be placed attached to both internal and external regions of
the patient's body.” Ans. 4. The Examiner relies on Smith for teaching the
use “of both an internal reference frame and an external reference frame for
tracking of an [] object such a catheter device inserted into a patient.”
Ans. 4. The Examiner acknowledges that the combination of Dukesherer
5 Slettenmark, US 6,266,552 Bl, issued July 24, 2001.
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and Smith does not teach establishing a “threshold for a deviation of the
location coordinates” and looks to Lu for providing this teaching. Ans. 4.
With respect to the correction vector, the Examiner finds that Dukesherer
teaches ‘“comparison between two sets of points’” Ans. 5, citing Dukesherer
|63. The Examiner explains that
comparison between two points of interest would provide
movement information which would include speed, direction,
etc. as it would be understood reasonably by one of ordinary skill
in the art that body or anatomical movement of patient would
include these parameters), thereby identifying a displacement of
the reference probe (i.e. internal dynamic frame, 54) from the
fixed reference location (as described by Dukesherer in
paragraph [0065]); and correcting the relative location
coordinates of the active device in the cardiac frame of reference
using the correction vector so as to compensate for the
displacement (Dukesherer: [0065]; Lu: paragraph [0083]).
Ans. 5—6. In other words, the Examiner’s position is that the reference
teaches correcting the images on the display in response to the movement of
the reference frame in relation to the coil array, where “[t]his relative motion
is communicated to the coil array controller 48, via the navigation probe
interface 50, which updates the registration correlation to thereby maintain
accurate navigation.” Dukesherer |65.
Appellants contend that neither Dukesherer, Smith, nor Lu either
alone or in combination teach all the claimed elements. Br. 4—6. Appellants
contend that there is no suggestion or motivation in the art to modify
Dukesherer, because even when combined with the other references there
are no first and second range of location coordinates and the resulting
combination would not disclose using a vector in any way. Br. 6—10.
According to Appellants, Dukesherer “merely teaches the use of multiple
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dynamic reference frames 54 to compensate for movement based purely on
assumption using a rudimentary weighting technique and not at all based on
a correction vector.” Br. 10. Specifically noting that the “weighting
technique [is] based on the assumption that certain parts of the body ‘move
more than others’ and, as such, those respective body parts are weighted
accordingly.” Br. 11. Appellants contend that Lu has nothing to do with
determining the location of a probe. Lu simply “teaches compensating for
such deviations in motion (due to breathing) merely using ‘tracks’” and
these tracks have “absolutely no relation to the correction vectors distinctly
claimed.” Br. 13.
The issue is: Does the preponderance of evidence of record support
the Examiner’s conclusion that the combination of references renders the
claimed method of position tracking an active device in the heart of a subject
obvious?
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Findings of Fact
FF1. Dukesherer teaches a surgical navigation system that utilizes a
dynamic reference frame. Figure 1 is reproduced below:
Figure 1 is a diagram of a navigation system that shows
instrument 52 with sensor 58, a dynamic reference frame 54,
the electromagnetic tracking system 44, a transmitter coil array
46, a coil array controller 48, and a display 36. ^fl[52—66. The
system also includes an x-ray source 18, an x-ray receiving
section 20, an optional calibration and tracking target 22 and
optional radiation sensors 24. |35.
FF2. Dukesherer teaches that, after the insertion of a catheter into a
patient,
the position of the instrument is displayed on the display
36 and is not generally viewable by a user because it is
within the cavity of the patient 14. Therefore, the user is
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generally dependent upon the accuracy of the display 36
to ensure the proper location, orientation and other
attributes of the instrument relative to the patient 14. For
example, ... the instrument 52, such as the catheter, is
positioned relative to a specific portion of a heart of the
patient 14.
Dukesherer 1115, see also H52—66. “[T]he electromagnetic
tracking system 44 can determine the position of the catheter 52
by measuring the field strength at the sensor 58 location.”
Dukesherer 162.
FF3. Dukesherer teaches “the dynamic reference frame 54 may be
internally attached, for example, to the wall of the patient’s heart or
other soft tissue using a temporary lead that is attached directly to the
heart. This provides increased accuracy since this lead may track the
regional motion of the heart.” Dukesherer 156 (emphasis added). “It
should further be noted that multiple dynamic reference frames 54
may also be employed.” Dukesherer 157.
FF4. The dynamic reference frame 54 of Dukesherer
is a small magnetic field detector that is designed to be
fixed to the patient 14 adjacent to the region being
navigated so that any movement of the patient 14 is
detected as relative motion between the transmitter coil
array 46 and the dynamic reference frame 54. This relative
motion is forwarded to the coil array controller 48, which
updates registration correlation and maintains accurate
navigation.
Dukesherer 155; see 1 65. “[T]he dynamic reference frame 54 may be
used to ensure that any planned or unplanned movement of the patient
or the receiver array 46 is determined and used to correct the image on
the display 36.” Dukesherer 166.
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FF5. Dukesherer teaches that the navigation field is a low energy
magnetic field that allows for the tracking system to
the electromagnetic tracking system 44 can determine the
position of the catheter 52 by measuring the field strength
at the sensor 58 location. The dynamic reference frame 54
is fixed to the patient 14 to identify the location of the
patient in the navigation field. The electromagnetic
tracking system 44 continuously recomputes the relative
position of the dynamic reference frame 54 and the
catheter 52 and relates this spatial information to patient
registration data to enable image guidance of the catheter
52 within the patient 14.
Dukesherer |62.
FF6. Dukesherer teaches that “[rjespiration and cardiac motion can
cause movement of cardiac structures relative to the instrument
52.” Dukesherer |58. Allowing for image acquisition at the
same point in the movement phase is achieved “[b]y time­
gating or event gating at a point in a cycle the image data and/or
the navigation data, the icon of the location of the catheter 52
relative to the heart at the same point in the cardiac cycle may
be displayed on the display 36.” Dukesherer |58.
FF7. Dukesherer teaches that
navigation system 10 analyzes the relationship between
the two sets of points that are selected and computes a
match, which correlates every point in the image data with
its corresponding point on the patient's anatomy or the
patient space. The points that are selected to perform
registration are the fiducial markers or landmarks 60, such
as anatomical landmarks. Again, the landmarks or fiducial
points 60 are identifiable on the images and identifiable
and accessible on the patient 14. The landmarks 60 can be
artificial landmarks 60 that are positioned on the patient
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14 or anatomical landmarks that can be easily identified in
the image data. The artificial landmarks, such as the
fiducial markers 60, can also form part of the dynamic
reference frame 54.
Dukesherer |63.
FF8. Smith discloses “[a] method and apparatus for simultaneous
measurement of multiple distances by means of networked
piezoelectric transducers.” Smith, Abstract. Smith teaches:
The basic principle of the Catheter Guidance System
(CGS) of the present invention involves the establishment
of an internal reference frame and an (optional) external
reference frame in three dimensions from which the
catheter can be traced. Using the transceiver hardware and
the triangulation algorithm discussed above, the crystal
positioning data can be captured and processed to resolve
the location of the catheter of interest.
Id. at 12:30-37; see also 15:29-33 (“A further application of
the tracking system according to the present invention involves
placing reference crystals anywhere on the patient’s head, and
an active crystal on the tip of the probe. As the probe is
inserted into the head, its movement relative to the reference
crystals can be tracked in real time 3-D”).
FF9. Lu teaches that real time tracking of the position of an internal
tumor is important in extending radiation therapy to a patient.
Lu teaches “a method of treating a moving target, such as a
tumor of a lung, can include ‘gating,’ or delivering radiation
only when the target is within a specified window of
trajectory.” Lu 12. Lu also teaches breathing synchronized
delivery (“BSD”), a technique that “utilizes an anticipated
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track, or path of motion, for a target to follow during
treatment.” Lu|3.
[GJating, tracking, BSD, or the free-breathing delivery
(“FBD”) technique, [each] require[s] the real time
knowledge of the breathing states, or at least the tumor
position. Some available respiratory monitoring
techniques include marker methods and airflow methods.
Both methods indirectly monitor respiratory motion by
some kind of surrogate. The marker methods use external
or internal markers as the surrogate.
Lu 163
FF10. Lu teaches that when applying radiation therapy to regions that are
moving, for example due to respiration,
[t]he software program . . . [tracks] anticipated motion
(e.g., the patient’s breathing pattern). The treatment plans
are optimized (block 178) by the optimization module 95
to correspond to the tracks 102-130.... The plan selection
module 142 can compare the deviation to a range to
determine if the deviation is greater than a specified
threshold. The plan selection module 142 determines
(block 198) which track 102-130 the motion most
closely[] presently corresponds. The plan selection
module 142 selects (block 202) the treatment plan that
corresponds to the identified track 102-130. The patient's
treatment can include delivery of portions of a plurality of
treatment plans as the selected plan can automatically
switch to correspond to the patient's actual motion.
Id. 183
Principle of Law
“If the claim extends to what is obvious, it is invalid under § 103.”
KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 419 (2007).
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Analysis
Dukesherer teaches a reference probe 54 and an instrument 52, such
as a catheter. FF1—FF3. The instrument contains a sensor 58 that can
indicate the position of the instrument 52 in the electromagnetic field.
FF5Dukesherer teaches the processing of motion between the transmitter
coil 46 and reference frame 54 that measures any planned and unplanned
movement of the patient as well as establish the location of the patient in the
navigation field. FF4 and FF5. “The electromagnetic tracking system 44
continuously recomputes the relative position of the dynamic reference
frame 54 and the catheter 52 during localization.” FF5. Thus, the tracking
system computes the location of reference frame 54 and the instrument 52 as
they are positioned in the electromagnetic field 46, and positions them not
only in relation to each but also in relation to the patient. FF4 and FF5.
Dukesherer teaches that the reference frame 54 may be placed externally, as
well as internally into the heart. FF3. Dukesherer also teaches, but does not
exemplify, the use of more than one reference frame 54 in a patient. FF3.
Dukesherer recognizes that respiration and heart rhythm result in motion of
the reference frame as well as device 52 while they are positioned in the
heart. FF6. Dukesherer teaches using a gating technique in order to time the
location acquisition data to the same point in the cardiac cycle. FF6.
Smith teaches a catheter guidance system that uses external as well as
internal reference frames that allow for the three dimensional positioning of
the catheter using triangulation algorithms. FF8.
Lu teaches determining the location of a tumor based on the
anticipated location of the tumor during a respiration cycle in order to
program a device to continuously deliver radiotherapy to the tumor. FF9
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and FF10. To achieve this Lu utilizes a software program that tracks the
anticipated motion and sets deviation ranges. FF10. Lu’s program will
select a treatment plan that most closely resembles the detected motion in
the patient. FF10.
The Examiner finds that Dukesherer teaches most of the claimed
elements but recognizes that “Dukesherer does not suggest specifically that
the dynamic reference frame (54) may be placed [and] attached to both
internal and external regions of the patient’s body,” and relies on Smith for
teaching “both an internal reference frame and an external reference frame
for tracking of an [] object.” Ans. 4. The Examiner also acknowledges that
Dukesherer and Smith do “not suggest specifically ‘establishing a permitted
threshold for a deviation of the location coordinates from the first range.’”
Ans. 4. The Examiner relies on Lu to establish setting deviation parameters
for tracking patient movement. Ans. 4. The Examiner concludes that it
would have been obvious
to modify the tracking patient movement with external and
internal reference frame teachings of Dukesherer in view of
Smith with the establishment of permitted threshold for a
deviation of the location coordinates from the first range with
respect to tracked patient movement teachings of Lu to “promote
a more consistent track” (Lu: [0083]) or movement of catheter
within the patient's body.
Ans. 4
We have reviewed Appellants’ contentions that the Examiner erred in
rejecting claims 1—6, 8—15, 17, and 18 as obvious over the cited art. Br. 4—
14. We disagree with Appellants’ contentions and adopt the findings
concerning the scope and content of the prior art set forth in the Examiner’s
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Answer and the Final Rejection dated April 9, 2014. We address
Appellants’ contentions below.
Appellants contend that the combined teachings of Dukesherer, Smith,
and Lu, “does not disclose using a vector in any way.” Br. 10. According to
Appellants, Dukesherer “merely teaches the use of multiple dynamic
reference frames 54 to compensate for movement based purely on
assumption using a rudimentary weighting technique and not at all based on
a correction vector.” Br. 10. Appellants argue that Dukesherer teaches “a
weighting technique based on the assumption that certain parts of the body
‘move more than others’ and, as such, those respective body parts are
weighted accordingly.” Br. 11. Appellants contend that Lu has nothing to
do with determining location coordinates and the “reference merely teaches
compensating for [] deviations in motion (due to breathing) [by] merely
using “tracks”” and these tracks have “absolutely no relation to the
correction vectors distinctly claimed.” Br. 13.
We are not persuaded. As the Examiner explained, Dukesherer
teaches
“comparison between two sets of points,” [0063]; comparison
between two points of interest would provide movement
information which would include speed, direction, etc., as it
would be understood reasonably by one of ordinary skill in the
art that body or anatomical movement of patient would include
these parameters), thereby identifying a displacement of the
reference probe (i.e. internal dynamic frame, 54) from the fixed
reference location (as described by Dukesherer in paragraph
[0065]); and correcting the relative location coordinates of the
active device in the cardiac frame of reference using the
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correction vector so as to compensate for the displacement
(Dukesherer: [0065]; Lu: paragraph [0083]).
Ans. 14. We agree with the Examiner that correcting the relative location
coordinates of the instrument in the cardiac frame of reference, in other
words on the display, would inherently require the use of a calculated
correction. Dukesherer specifically discloses tracking unplanned movement
between transmitter coil 46 and reference frame 54 and correcting the image
on the display. FF4. Dukesherer also discloses tracking of the catheter 52
based on the field strength 58 and the dynamic reference frame 54 to identify
the location of the catheter in the reference frame of the patient. FF5.
Dukesherer’s “electromagnetic tracking system 44 continuously recomputes
the relative position of the dynamic reference frame 54 and the catheter 52.”
FF5. Although Dukesherer continuously calculates the position of the
catheter based on the reference frame and pre-set landmarks, the reference is
silent with respect to what calculations are being applied. Smith teaches that
one way to track the position of a catheter in a patient is to apply a
triangulation algorithm to data from internal and external reference frames.
FF8 ; see Ans. 10. We agree with the Examiner’s position that calculating
the displacement of a reference probe as well as the location of the catheter
using a fixed reference frame as taught by Dukesherer within the
electromagnetic field would reasonably encompass vector correction via
triangulation to compensate for such displacement as suggested by Smith.
Appellants contend that neither Dukesherer, Smith, nor Fu teach all
the claimed elements either alone or in combination. Br. 4—6.
We are not persuaded. The test for obviousness is what the combined
teachings of the references as a whole would have suggested to those of
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ordinary skill in the art. In re Keller, 642 F.2d 413, 425 (CCPA 1981).
With the exception of using both internal and external reference frames as
well as setting deviation thresholds, the Examiner finds that Dukesherer
discloses all other claimed elements. See Ans. 4. Dukesherer teaches the
use of a reference frame 54 that can be internally attached to the heart, as
well as the use of multiple reference frames. FF3. Dukesherer also teaches
that the reference frame 54 can be externally positioned. FF1, see
Dukesherer |55. In addition to the use of one or multiple reference frames
54, Dukesherer also discloses the use of fiducial or artificial marks that serve
as landmarks for the imaging data for the purpose of registration. FF7.
Dukesherer’s “electromagnetic tracking system 44 continuously recomputes
the relative position of the dynamic reference frame 54 and the catheter 52
during localization and relates this spatial information to patient registration
data to enable image guidance of the catheter 52 within the patient 14.”
FF5. Here, Dukesherer already discloses the option of using more than one
reference frame and also teaches determining the location of both the
reference frame and the catheter in the magnetic field. Even though the
specific calculations are not disclosed in Dukesherer, Smith teaches that one
way to locate the position of a catheter in a patient is through the use of
triangulation algorithms that employ vector calculations to determine the
location of the catheter tip in a patient. FF8; see Ans. 10 (“tracking of an
object such as a catheter inserted into a patient”).
The Examiner also acknowledges that Dukesherer and Smith do “not
suggest specifically ‘establishing a permitted threshold for a deviation of the
location coordinates from the first range.’” Ans. 4. The Examiner relies on
the teaching of Lu to establish setting deviation parameters for tracking
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patient movement. Dukesherer acknowledges that “[rjespiration and cardiac
motion can cause movement of cardiac structures relative to the instrument
52, even when the instrument 52 has not been moved. Therefore,
localization data may be acquired on a time-gated basis triggered by a
physiological signal.” Dukesherer |58. “Gating may also increase the
navigational accuracy of the system 10.” Dukesherer |56. “By time-gating
or event gating at a point in a cycle the image data and/or the navigation
data, the icon of the location of the catheter 52 relative to the heart at the
same point in the cardiac cycle may be displayed on the display 36.”
Dukesherer |58. Thus, Dukesherer recognizes that physical movement can
interfere with accurate navigation in the system, and in order to minimize
error in the location of the catheter as it is displayed, one option is to acquire
the localization data at the same time point in the cardiac cycle. This is one
way of dealing with motion in the patient. The Examiner, however, looks to
Lu for using another method to determine how to track an object in a
moving target, e.g., a tumor in a patient’s lung. FF9. Fu acknowledges that
one “method of treating a moving target, such as a tumor of a lung, can
include ‘gating,’ or delivering radiation only when the target is within a
specified window of trajectory. This method is inefficient because the target
is only being irradiated for periodic intervals of time.” Fu |2. Fu teaches
determining the anticipated motion of the object (the tumor) and applying a
treatment track based on this motion. FF10. Fu’s program includes multiple
tracks each having a different deviation range based on a particular
threshold. FF10. Fu teaches that the selection of the treatment plan is based
on the selection of the track that most closely resembles the current
breathing pattern of the patient. FF10. Both Dukesherer and Fu recognize
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that a patient’s rhythmic motion such as breathing or cardiac rhythm can
affect the accuracy of detecting the location of an object in the patient.
Dukesherer’s solution is to use gating while Lu’s method accounts for the
rhythmic motion but sets parameters so that when the rhythm changes, the
object would no longer fall within the set parameters and an alternate
treatment plan is then activated. We find no error with the Examiner’s
reliance on Lu for teaching that one of ordinary skill in the art could
substitute one known technique for minimizing location error due to
movement for another technique that also minimizes location error due to
motion in the patient. “Express suggestion to substitute one equivalent for
another need not be present to render such substitution obvious.” In re Font,
675 F.2d 297, 301, (CCPA 1982); see also In re Mayne, 104 F.3d 1339,
1340 (Fed. Cir. 1997) (“Because the applicants merely substituted one
element known in the art for a known equivalent, this court affirms [the
rejection for obviousness].”).
Appellants contend that there is no suggestion or motivation in the art
to modify Dukesherer, and even when combined with the other references
there are no first and second range of location coordinates. Br. 6—10.
We are not persuaded. The Examiner explains that Dukesherer uses
“the fixed frame of reference (when attached in either mode - external or
internal) for collecting and processing first location coordinates of the
internal reference probe in with respect to the fixed frame of reference, using
the first position transducer, during one or more respiratory cycles of the
subject so as to define a range of the location coordinates corresponding to
the reference location.” Ans. 3; FF4. Attaching the reference frame
internally, for example to the wall of the patient’s heart, “provides increased
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accuracy since this lead may track the regional motion of the heart.” FF3.
The Examiner finds that “the active device (52) is also located within the
heart. Dukesherer also teaches collecting second location coordinates of the
active device.” Ans. 5; FF2, FF5 and FF6.
We conclude that the evidence cited by the Examiner supports a prima
facie case of obviousness with respect to claim 1, and Appellants have not
provided sufficient rebuttal evidence, or evidence of secondary
considerations that outweighs the evidence supporting the prima facie case.
As Appellants do not argue the claims separately, claims 3—6, 8—15, 17, and
18 fall with claim 1. 37 C.F.R. § 41.37 (c)(l)(iv). Because Appellants do
not present additional arguments with respect to the rejection of claims 2 and
11 that relies on the additional reference of Slettenmark (see Br. 14) we
affirm this rejection for the same reasons discussed with respect to claim 1.
SUMMARY
We affirm the rejection of claim 1 under 35 U.S.C. § 103(a) as
unpatentable over Dukesherer in view of Smith in view of Lu. Claims 3—6,
8—15, 17, and 18 were not argued separately and fall with claim 1.
We affirm the claims 2 and 11 under 35 U.S.C. § 103(a) as
unpatentable over Dukesherer, Smith, and Lu and further in view of
Slettenmark.
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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