Ex Parte Hill et al

Patent Trial and Appeal Board

Oct 30, 2017

12983013 (P.T.A.B. Oct. 30, 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.
12/983,013 12/31/2010 Anthony D. Hill 0G-046000US/065513-000312 9450
67337 7590 11/01/2017
DYKEMA GOSSETT PLLC (STJ)
4000 Wells Fargo Center
90 South Seventh Street
Minneapolis, MN 55402
EXAMINER
MOHAMMED, SHAHDEEP
ART UNIT PAPER NUMBER
3737
NOTIFICATION DATE DELIVERY MODE
11/01/2017 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):
MN_IPMail @ dykema. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANTHONY D. HILL, D. CURTIS DENO, HUA ZHONG, and
MARTIN M. GRASSE1
Appeal 2016-007839
Application 12/983,013
Technology Center 3700
Before ERIC B. GRIMES, RICHARD J. SMITH, and
DAVID COTTA, Administrative Patent Judges.
SMITH, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35U.S.C. § 134 involving claims to a
visualization and modeling system and a method of augmenting a medical
image. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 According to Appellants, the real party in interest is St. Jude Medical,
Atrial Fibrillation Division, Inc. (Appeal Br. 1.)
Appeal 2016-007839
Application 12/983,013
STATEMENT OF THE CASE
Background
“It is well known that the prevalence of different imaging modalities
in medicine provide the clinician with valuable information regarding patient
physiology.” (Spec. 12.)
“It is well known that intracardiac echo (‘ICE’) catheters provide
images of cardiac structures and, under some conditions, other intracardiac
catheters.” {Id. 13.)
“Another imaging modality commonly employed is three dimensional
mapping using electrical or magnetic fields to create a geometric model.”
{Id. 14.)
“[TJhere is a need for the combination of three dimensional cardiac
models and ICE catheter images to provide more useful images to the
clinician.” {Id. 15.)
Claims on Appeal
Claims 1—3, 8—10, 21, 26, 28, 30, 33, and 34 are on appeal. (Appeal
Br. 13—15, Claims Appendix.) Claim 1 is illustrative and reads as follows
(emphases added):
1. A visualization and modeling system comprising:
an ultrasound echo imaging system having an intracardiac echo
catheter configured to produce a intracardiac echocardiography image (ICE
image), the intracardiac echo catheter comprising an ultrasound sensor and a
plurality of location sensors;
a visualization, navigation, or mapping system configured to generate
a geometric model of a body cavity and maintain a position data set
containing the location of one or more medical device sensors in the
geometric model; the visualization, navigation, or mapping system being
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configured to generate a location field, receive a location signal from the
plurality of location sensors in response to the location field and create a
position data of the position data set from the location signal; the
visualization navigation, or mapping system being further configured to
generate the geometric model from the position data; and
an electronic control system (ECS) being configured to receive the
ICE image, the geometric model, and the position data set, the ECS being
further configured to generate a composite image by displaying one or more
visual markers within the ICE image and locating the echo catheter in the
geometric model using position data from the position data set associated
with the echo catheter and wherein the ECS is further configured to display
within the ICE image an anatomical boundary reference from the geometric
model; wherein the visual markers correspond to features in the geometric
model.
{Id. at 13.)
Examiner’s Rejections
1. Claims 1—3, 9, 21, 26, 30, 33, and 34 stand rejected under pre-
AIA 35 U.S.C. § 103(a) as unpatentable over Li2 and Altmann.3 (Ans. 3—5.)
2. Claims 8 and 21 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Li, Altmann, and Belson.4 {Id. at 5.)
3. Claim 10 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Li, Altmann, and Suzuki.5 (Id. at 6.)
4. Claim 28 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Li, Altmann, and Sheer.6 {Id. at 6—7.)
2 Li, US 2008/0287790 Al, pub. Nov. 20, 2008.
3 Altmann et al., US 2008/0137927 Al, pub. June 12, 2008 (“Altmann”).
4 Belson, US 2007/0135803 Al, pub. June 14, 2007.
5 Suzuki et al., US 2002/0183592, pub. Dec. 5, 2002 (“Suzuki”).
6 Modules:Fiducials-Documentation-3.2; 3D sheer 3.2 software (“Sheer”).
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DISCUSSION
We adopt as our own the Examiner’s findings, analysis, and
conclusions as set forth in the Answer (Ans. 3—10), including the Examiner’s
findings regarding the scope and content of, and reasons to modify or
combine, the prior art. We discern no error in the rejections of the claims as
obvious.
Issue
Whether a preponderance of evidence of record supports the
Examiner’s rejections under 35 U.S.C. § 103(a).
Principles of Law
“The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results.”
KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). “[Wjhen a patent
‘simply arranges old elements with each performing the same function it had
been known to perform’ and yields no more than one would expect from
such an arrangement, the combination is obvious.” Id. at 417 (quoting
Sakraida v. Ag Pro. Inc., 425 U.S. 273, 282 (1976)).
“[T]he test [for obviousness] is what the combined teachings of the
references would have suggested to those of ordinary skill in the art” and not
“that the claimed invention must be expressly suggested in any one or all of
the references.” In re Keller, 642 F.2d 413, 425 (CCPA 1981). “[0]ne
cannot show non-obviousness by attacking references individually.” Id. at
426.
Analysis
Rejection No. 1
Appellants separately argue independent claims 1 and 30.
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Application 12/983,013
Claim 1
The Examiner points to certain Figures and corresponding disclosures
in Li to find that Li teaches all of the limitations of claim 1, except that “Li
fails to explicitly state that the [electronic control system] is further
configured to display within the ICE image, an anatomical boundary
reference from the model.” (Ans. 3—4.) Figure 3 of Li is illustrated below:
Figure 3 above illustrates a diagram of a tracking system combined
with an imaging system. (Li 112.) The Examiner finds, for example, that
Li teaches an electronic control system (ECS) configured to receive the ICE
image, the geometric model, and the position data set, and that the ECS
further generates a composite image. (Ans. 4, citing Li H 19, 25, 28, 29, 32,
37, 44, and 48.) The Examiner further finds that “Li shows displaying the
ICE real-time image 385, and one or more visual markers (graphic
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representation/visual markers 390, 400, 405, 415 or 420).” (Ans. 8, citing Li
151 and FIG. 5.)
The Examiner finds that Altmann teaches an anatomical boundary
reference from the geometric model. (Ans. 4 and 8—9, citing 1 67 and FIGs.
5—7.) The Examiner further finds that “Altmann also teaches [a] composite
image by displaying one or more visual markers within the image.” (Ans. 4,
citing FIGs. 5—7.)
Based on these findings, the Examiner concludes that “it would have
been obvious to one of ordinary skill in the art, at the time the invention was
made, to have utilized displaying an anatomical boundary reference from the
model in the invention [of] Li as taught by Altmann to improve medial [sic,
medical] image interpretation.” (Ans. 4, citing Altmann 1 6.)
Appellants contest the rejection with three arguments (A, B, and C),
which we address below.
A. Appellants argue that “Li does not disclose or suggest
‘displaying one or more visual markers within the ICE image.’” (Appeal Br.
4— 6; see also Reply Br. 2—3.) Appellants point to Li’s disclosure of “another
embodiment” and argue that “the fused or combined image is later shown to
be displayed within the pre-acquired or intra-operative image.” (Appeal Br.
5.) Appellants also point to the disclosure in Li that is relied on by the
Examiner to show the “ICE real-time image 385, and one or more visual
markers” (Li 151), and argue that the visual markers in Li are not displayed
within the ICE image; rather, according to Appellants, “data from an ICE
catheter is displayed within a pre-acquired or intra-operative image.” (Id. at
5- 6.)
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Application 12/983,013
We are not persuaded. In addition to disclosing “another
embodiment” that combines image data (using the ICE imaging system)
with “pre-acquired or intra-operative image data,” Li first discloses “one
embodiment” that includes “real-time . . . ICE . . . image data.” (Li 119; see
also Ans. 8.) Moreover, Li’s disclosure that is relied on by the Examiner
refers to this real-time embodiment in describing “a display 385 (See EIG. 3)
of the acquired real-time . . . ICE image data.” (Ans. 8, citing Li | 51.)
Thus, contrary to Appellants’ arguments, Li teaches displaying one or more
visual markers within the ICE image.
B. Appellants argue that “Altmann does not disclose or suggest
displaying anatomical boundary reference from the geometric model within
the ICE image.” (Appeal Br. 6—7; see also Reply Br. 3 4.) In particular,
Appellants argue that “Altmann discloses superimposing information on an
electro-anatomical map. Altmann makes no mention or suggestion of
displaying information within an ICE image.” {Id. at 7.) Appellants further
argue that “Altman[n] specifically states that a skeleton model of a three-
dimensional ultrasound image is superimposed on an electro-anatomical
map. This is the opposite of what is being claimed herein.” (Reply Br. 4.)
We are not persuaded. The rejection at issue is based on the
combined teachings of Li and Altmann, and Appellants’ argument amounts
to attacking Altmann individually (i.e. separately from Li). See Keller, 642
F.2d at 425—26. The Examiner clearly relies on Altmann for teaching a
three-dimensional ultrasound image “having a plurality of contours 102, 104
outlining the right ventricle and left ventricle, respectively.” (Altmann | 67;
see Ans. 8—9.) It is that teaching of displaying an anatomical boundary
reference that the Examiner combines with the invention of Li (i.e.
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displaying an anatomical boundary within an ICE image). (Ans. 4.) Thus,
the argument that Altmann discloses that the ultrasound image showing
anatomical boundaries (contours) is superimposed on an electro-anatomical
map (rather than an ICE image) is unavailing.
C. Appellants contest the Examiner’s finding that Altmann teaches
visual markers that correspond to features in the geometric model. (Appeal
Br. 7—8.) In particular, Appellants argue that “[t]he cited portion of
paragraph [0067] [of Altmann] is not suggesting displaying visual markers
that correspond to features in the geometric model within the ICE image.
Instead, this paragraph is discussing showing areas of adequate ultrasound
acquisition on an electro-anatomical map.” {Id. at 8.)
We are not persuaded. Appellants argue Altmann separately from Li,
and the Examiner relies on Li’s disclosure of visual markers within the ICE
image 385.7 (Ans. 9—10.) In fact, Appellants do not address the Examiner’s
rejection based on Li’s teaching of this limitation, thereby waiving any
arguments regarding such teaching by Li. (See Appeal Br. 7—8; Reply Br.
A-5.) See also 37 C.F.R. § 41.37(c)(l)(iv); MPEP § 1205.02.
Nevertheless, the arguments advanced as to Altmann are
unpersuasive. Similar to argument B above, Appellants argue that the visual
markers in Altmann are shown on an electro-anatomical map rather than
within the ICE image. (Appeal Br. 8.) Again, however, the rejection is
based on the combined teachings of Li and Altmann. See Keller, 642 F.2d at
425—26. Li teaches “within the ICE image,” and the argument that Altmann
7 The Examiner finds that “Altmann also teaches [a] composite image by
displaying one or more visual markers within the image.” (Ans. 4, citing
FIGs. 5—7 (emphasis added).)
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discloses visual markers on an electro-anatomical map (rather than an ICE
image) is thus unavailing.
Claim 30
Appellants argue that method claim 30 includes limitations similar to
claim 1 that include the recitation “within the ICE image,” and otherwise
reassert their arguments regarding claim 1 above. (Appeal Br. 9.) We thus
affirm the rejection of claim 30 for the reasons set forth above in connection
with the rejection of claim 1.
Accordingly, for the reasons of record and as set forth above, we
affirm the rejection of claims 1 and 30. Claims 2, 3, 9, 21, 26, 33, and 34
were not argued separately and fall with claims 1 and 30.
Rejection No. 2
Appellants state that the combination of references fails to disclose or
suggest all of the limitations recited in claims 8 and 21, and that “at least
because claims 8 and 21 depend from claim 1,” the rejection is improper.
(Appeal Br. 9—10.) Accordingly, for the reasons of record and as set forth
above in connection with Rejection No. 1, we affirm the rejection of claims
8 and 21. See 37 C.F.R. § 41.37(c)(l)(iv); see also In re Lovin, 652 F.3d
1349, 1357 (Fed. Cir. 2011).
Rejection No. 3
Appellants state that the combination of references fails to disclose or
suggest all of the limitations recited in claim 10, and that “at least because
claim 10 depends from claim 1,” the rejection is improper. (Appeal Br. 10—
11.) Accordingly, for the reasons of record and as set forth above in
connection with Rejection No. 1, we affirm the rejection of claim 10. See 37
C.F.R. § 41.37(c)(l)(iv); see also Lovin, 652 F.3d at 1357.
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Rejection No. 4
Appellants do not advance any arguments or otherwise respond to
Rejection No. 4. Accordingly, the rejection of claim 28 is summarily
affirmed. See Hyatt v. Dudas, 551 F.3d 1307, 1314 (Fed. Cir. 2008).
Conclusions of Law
Rejection No. 1: A preponderance of evidence of record supports the
Examiner’s rejection of claims 1 and 30 under 35 U.S.C. § 103(a). Claims
2, 3, 9, 21, 26, 33, and 34 fall with claims 1 and 30 because they were not
argued separately.
Rejection Nos. 2, 3 and 4: A preponderance of evidence of record
supports the Examiner’s rejection of claims 8, 10, 21, and 28 under 35
U.S.C. § 103(a).
SUMMARY
We affirm the rejections of all claims on appeal.
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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