Ex Parte Gross

Patent Trial and Appeal Board

Mar 14, 2016

12561582 (P.T.A.B. Mar. 14, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/561,582 0911712009
26574 7590 03/16/2016
SCHIFF HARDIN, LLP
PA TENT DEPARTMENT
233 S. Wacker Drive-Suite 6600
CHICAGO, IL 60606-6473
FIRST NAMED INVENTOR
Patrick Gross
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.
P09,0214 (26965-4340) 2596
EXAMINER
HUYNH, PHONG KY
ART UNIT PAPER NUMBER
3737
NOTIFICATION DATE DELIVERY MODE
03/16/2016 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):
patents-CH@schiffhardin.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PA TRICK GROSS
Appeal2013-009960
Application 12/561,582
Technology Center 3700
Before EDWARD A. BROWN, MICHELLE R. OSINSKI, and
MICHAEL L. WOODS, Administrative Patent Judges.
OSINSKI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Patrick Gross (Appellant) 1 appeals under 35 U.S.C. § 134 from the
Examiner's final decision rejecting claims 1-20. We have jurisdiction under
35 U.S.C. § 6(b).
We REVERSE.
1 According to Appellant, the real party in interest is Siemens
Aktiengesellschaft. App. Br. 1.
Appeal2013-009960
Application 12/561,582
THE CLAIMED SUBJECT MATTER
Claims 1 and 1 7 are the independent claims on appeal. Claim 1,
reproduced below, is illustrative of the claimed subject matter on appeal.
1. A method to bring two different imaging modalities into
registration with each other, comprising the steps of:
warming an examination subject in a common image
acquisition region of a first imaging modality and a second
imaging modality to produce a heat landmark in or on
examination subject;
after warming the examination subject, acquiring an image
data set of the examination subject in the image acquisition
region with said first imaging modality, said image data set
including a representation therein of said heat landmark;
also after warming the examination subject and before,
after or simultaneously with obtaining said image data set with
said first imaging modality, acquiring a heat image data set of the
examination subject in the image acquisition region with said
second imaging modality, said heat image data set including a
representation therein of said heat landmark;
in a processor, identifying the respective representations
of the heat landmark in said image data set and said heat image
data set; and
in said processor, bringing the first and second imaging
modalities into registration with each other by correlating the
representation of the heat landmark in said image data set with
the representation of the heat landmark in said heat image data
set.
EVIDENCE
The Examiner relied on the following evidence in rejecting the claims
on appeal:
Freundlich
Preiss
Nields
Porikli
US 6,618,620 Bl
US 2007 /0049817 Al
US 2008/0033420 Al
US 7,680,303 B2
2
Sept. 9, 2003
Mar. 1, 2007
Feb. 7,2008
Mar. 16, 2010
Appeal2013-009960
Application 12/561,582
Wood et al., Technologies for Guidance of Radiofrequency Ablation in the
Multimodality Interventional Suite of the Future, 181 J. Vase. Interv. Radiol.
9-24 (Jan. 2007).
REJECTIONS
I. Claims 1-13, 16-18, and 20 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Nields, Preiss, and Freundlich. Final Act.
2-8.
II. Claims 14 and 15 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Nields, Preiss, Freundlich, and Wood. Id. at 8-9.
III. Claim 19 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Nields, Preiss, Freundlich, and Porikli. Id. at 10.
OPINION
Rejection I
The Examiner concludes that claims 1-13, 16-18, and 20 are
unpatentable over Nields; Preiss; and Freundlich. Final Act. 2-8. The
Examiner finds that Nields teaches substantially all of the limitations of
independent claims 1 and 17. Id. at 2--4. As to the claimed step of warming
an examination subject, the Examiner finds that Nields teaches the
application of thermal energy, which is interpreted as "warming." Id. at 2
(citing Nields i-f 42). As to the claimed step of acquiring an image data set
with a first imaging modality, the Examiner finds that Nields teaches
obtaining image data sets of a volume of interest (VOI) captured by X-ray
system. Id. at 2 (citing Nields Abstr., i-fi-1 10, 41 ). More particularly, Nields
teaches "temperature differential images generated using an x-ray system."
Nields i-f 58. With respect to the claimed "heat landmark" that is represented
in the image data set acquired by a first imaging modality, the Examiner
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Application 12/561,582
finds that the temperature differential image of Nields generated by X-rays
provides information regarding temperature changes derived from
Hounsfield unit data. Final Act. 3 (citing Nields i-fi-158, 59, 131, 132, 233).
As to the claimed step of acquiring a heat image data set with a
second imaging modality, the Examiner finds that Nields teaches at least
obtaining a temperature differential image that may be based on ultrasound
in addition to x-ray. Final Act. 3 (citing Nields i-fi-134--36, 59). More
particularly, Nields teaches that "[t]he temperature differential digital image
may also be at least partially based on information obtained through an
additional imaging modality such as ultrasound." Nields i1 59. With respect
to the claimed "heat landmark" that is represented in the heat image data set
acquired by a second imaging modality, the Examiner finds that the heat
image data set generated by ultrasound inherently includes some heat
information. Final Act. 3 (citing Nields i-fi-134--36).
With respect to the claimed step of bringing the first and second
imaging modalities into registration with each other, the Examiner
determines that this step "would have been necessarily present, or would
have been obvious to include, in order to integrate and combine the imaging
modalities for enhanced imaging (not registering would misalign the images
and defeat the purpose of enhancing quality and accuracy)." Id. at 4.
The Examiner acknowledges that Nields does not expressly teach that
"the registration is performed using the heat information (heat landmarks)
from the first and second imaging modalities." Id. The Examiner finds that
Preiss teaches "that one of many types of physiological data that may be
mapped and used in multimodal image registration include temperature." Id.
(citing Preiss i-fi-126, 72). The Examiner concludes "it would have been
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Application 12/561,582
obvious ... to have implemented the physiological data based multimodality
registration, such as using temperature maps (heat information from image
data set and heat image data set), as taught by Preiss" in order to "allow for a
fast and accurate multimodal registration method to offer better accuracy
and speed ... and to better register non-rigid moving organs with relatively
few accurately localized anatomical landmarks ... in comparison to
standard methods which only use[] location data." Id. at 5 (citing Preiss
i-fi-1 7, 9, 10, 54 ). The Examiner further states that "when provided with a
teaching of using temperature information as a basis for registration, it
would have been obvious for one skilled in the art to have used any form of
'natural' or 'artificial' heat landmark, and if not present, would have been
obvious to have created an 'artificial' heat landmark, in accordance with
conventional methods of image registration." Id. at 13.
Appellant argues that in Nields, "the imaging modalities must
necessarily already be in registration before thermal energy is introduced for
the therapeutic treatment." App. Br. 4 (citing Nields i137). Accordingly,
Appellant argues that there is no reason, other than hindsight, to use the
therapeutic thermal energy to create heat landmarks in order to register
different temperature differential digital images. Reply Br. 3--4. That is,
Nields already uses other types of landmarks to register the imaging
modalities used to produce the baseline digital image of the volume of
interest (see, e.g., Nields i-fi-148-52), so the use of yet another landmark to
register the temperature differential digital images would be superfluous.
Reply Br. 4. We agree with Appellant that modifying Nields to use
temperature maps for multimodal image registration would be superfluous,
considering that other landmarks would already be utilized in registering the
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nmltimodal images associated with obtaining a baseline image.
Accordingly, the Examiner's stated reasoning to modify Nields lacks
rational evidentiary underpinnings.
Moreover, Appellant argues that Preiss "discloses no more than
registration between a three-dimensional image in which anatomical features
have been detected or marked, with a map that exhibits functional properties
that can be associated with the marked anatomical features by virtue of
already-known properties possessed by the marked anatomical features."
App. Br. 6-7. Appellant argues that even ifNields and Preiss were
combined, "the subject matter of independent claims 1 and 17 still would not
result." Id. at 8.
We agree with Appellant that Preiss teaches only correlation between
one image set having temperature information and a map illustrating
anatomical landmarks having certain known temperatures, rather than any
kind of correlation between first and second image sets. The Examiner has
not adequately explained how modification ofNields with the teachings of
Preiss would have resulted in correlation of a representation of a heat
landmark produced by warming in a first image with a representation of the
same heat landmark produced by warming in a second image.
The Examiner also states that "attention is directed to Freundlich ...
which teaches applying low energy thermal doses to a predetermined spot to
verify proper calibration and alignment of the system, before applying the
regular energy ablation dose" such that "it would have been obvious to have
employed these test doses to calibrate the systems and to have formed heat
landmarks as the basis for registration." Final Act. 6, 12. Appellant argues
that in Freundlich "there is no registration of multiple image data sets that
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occurs based on this initially-heated region." App. Br. 7. We agree with
Appellant in that registration in Freundlich is between the treatment system
and the target mass, not multiple image data sets. See Freundlich, 11 :54--59
("Verification is required to ensure that treatment system 100 is properly
registered with regard to the position of the focal spot relative to patient 116
and target mass 104. In one embodiment, verification comprises performing
a low energy thermal dose at a predefined spot within said target mass in
order to verify proper registration."). That is, Freundlich also fails to teach
correlating a representation of a heat landmark in one image data set with a
representation of the heat landmark in the second heat image data set to
register two images. Again, the Examiner has not adequately explained how
modification ofNields with the teachings of Freundlich would have resulted
in correlation of a representation of a heat landmark produced by warming in
a first image with a representation of the same heat landmark produced by
warming in a second image.
The Examiner's proposed modification to Nields with the teachings of
Preiss and/or Freundlich (and the resulting conclusion of the obviousness of
performing registration of first and second imaging modalities using heat
landmarks from the application of therapeutic thermal energy) appears to be
impermissibly based on hindsight in view of Appellant's disclosure, rather
than articulated reasoning having rational underpinnings. Moreover, the
Examiner has not adequately explained how modification ofNields with the
teachings of Preiss and/or Freundlich would result in a method to bring two
different imaging modalities into registration with each other that includes
correlating a representation of a heat landmark in a first image data set with
a representation of a heat landmark in a second heat image data set.
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For the foregoing reasons, we do not sustain the Examiner's rejection
of independent claims 1 and 17, and claims 2-13, 16, 18, and 20, which
depend therefrom, as unpatentable over Nields, Preiss, and Freundlich.
Rejections II and III
The Examiner rejects, under 35 U.S.C. § 103(a): claims 14 and 15 as
unpatentable over Nields, Preiss, Freundlich, and Wood; and claim 19 as
unpatentable over Nields, Preiss, Freundlich, and Porikli. Final Act. 8-10.
The rejections of these claims rely on the Examiner's erroneous conclusion
that Nields, Preiss, and Freundlich renders obvious using a representation of
a heat landmark in a first image data set and a representation of a heat
landmark in a second heat image data set to bring two different imaging
modalities into registration with each other. The Examiner does not explain
how Wood and/or Porikli cure this underlying deficiency.
Accordingly, for the reasons discussed supra, we do not sustain the
Examiner's rejection, under 35 U.S.C. § 103(a), of claims 14 and 15 as
unpatentable over Nields, Preiss, Freundlich, and Wood; and claim 19 as
unpatentable over Nields, Preiss, Freundlich, and Porikli.
DECISION
The Examiner's decision to reject claims 1-20 under 35 U.S.C.
§ 103(a) is REVERSED.
REVERSED
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