Ex Parte Hill et al

Patent Trial and Appeal Board

Jul 3, 2018

12978935 (P.T.A.B. Jul. 3, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/978,935 12/27/2010
67337 7590 07/06/2018
DYKEMA GOSSETT PLLC (STJ)
4000 Wells Fargo Center
90 South Seventh Street
Minneapolis, MN 55402
FIRST NAMED INVENTOR
Anthony D. Hill
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.
OG-045200US/065513-000284 2123
EXAMINER
MOHAMMED, SHAHDEEP
ART UNIT PAPER NUMBER
3737
NOTIFICATION DATE DELIVERY MODE
07/06/2018 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):
ASJM_Patents@abbott.com
MN-IPMail@dykema.com
Patents@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, ROBERT D. AIKEN,
HUA ZHONG, andMARKKUDAS 1
Appeal2017-006767
Application 12/978,935
Technology Center 3700
Before ERIC B. GRIMES, JEFFREY N. FREDMAN, and RYAN H. FLAX,
Administrative Patent Judges.
FLAX, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision under 35 U.S.C. § 134(a) involving claims directed
to a method of and system for identifying objects in an ultrasound image.
The Examiner's final rejection of claims 1-22 under 35 U.S.C. § 103(a) is
appealed. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm. 2
1 The Real Party in Interest is identified as "St. Jude Medical, Atrial
Fibrillation Division, Inc." Appeal Br. 1.
2 Herein we have considered and refer to the Specification of December 27,
2010 ("Spec."), the Final Office Action of February 11, 2016 ("Final
Action"), the Appeal Brief of July 22, 2016 ("Appeal Br."), the Examiner's
Answer of February 6, 2017 ("Answer"), and the Reply Brief of March 17,
2017 ("Reply Br.").
Appeal2017-006767
Application 12/978,935
STATEMENT OF THE CASE
The Specification states:
In an embodiment, distinct anatomic objects may be
displayed within a visual representation of the ultrasound
information by extracting two-dimensional boundary
information from the three-dimensional cardiac model that is
coincident between the model and the registered ultrasound
information, and then displaying a two-dimensional augmented
echo image that includes a visual representation of ultrasound
information along with an overlay of the extracted, coincident
boundary information. The boundary information may be
visualized as boundary lines, and may be identified using the
same identifiers provided for the features within the 3-D model.
Similarly, in an embodiment, electrophysiological markers or
markers denoting physical points of interest, ablation lesions,
catheters, electrodes, or magnetically responsive coils, may be
extracted from the three-dimensional cardiac model and overlaid
on the visual representation of the ultrasound information.
Spec. i-f 5.
Figure 8 of the Specification illustrates such a system and is
reproduced below, annotated for clarity:
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Application 12/978,935
CANCEL UNDO MANUAL
!\EG!STAAl!ON REGISTRATION
FIG.8
242
The Specification's Figure 8 shows anatomic information as it might be
processed and displayed to a user, including a side view 240 of a 3D model
of a heart and a top view 242 of a 3D model of the heart, each indicating a
2D plane of an ultrasound therein; another view 220 is shown of the 2D
ultrasound information with boundary information of cardiac anatomic
objects extracted from the 3D model and overlaid on the ultrasound
information. Spec. i-fi-f 17, 58; see also id. i-fi-123-57 (discussing related
embodiments and elements).
Independent claim 1 is representative and is reproduced below:
1. A method of identifying objects in an ultrasound image
compnsmg:
acquiring ultrasound information of a subject's cardiac
anatomy from a catheter; and
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Application 12/978,935
using a processor, configured to receive the ultrasound
information from the catheter, to:
locate the ultrasound information within a three-
dimensional cardiac model of the subject's cardiac
anatomy, the model having two or more distinct objects,
where each distinct object has a unique identifier;
extract two-dimensional boundary information
from the three-dimensional cardiac model that is
coincident between the model and a plane containing the
ultrasound information, the boundary information
corresponding to at least one distinct object of the model;
display an augmented echo image including the at
least one distinct object within a visual representation of
the ultrasound information while simultaneously
displaying at least a portion of the three-dimensional
model; and
identify the at least one distinct object within the
visual representation of the ultrasound information using
an identifier corresponding to the identifier provided for
that object in the three-dimensional cardiac model.
Appeal Brief 15 (Claims App'x).
The following rejection is on appeal:
Claims 1-22 stand rejected under 35 U.S.C. § 103(a) over Tal, 3
Altmann, 4 and Kawashima. 5 Final Action 9.
DISCUSSION
"[T]he examiner bears the initial burden, on review of the prior art or
on any other ground, of presenting aprimafacie case ofunpatentability. If
3 EP 2 264 670 Al (pub. Dec. 22, 2010) ("Tal").
4 US 2008/0137927 Al (pub. June 12, 2008) ("Altmann").
5 US 2005/0090743 Al (pub. Apr. 28, 2005) ("Kawashima").
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Appeal2017-006767
Application 12/978,935
that burden is met, the burden of coming forward with evidence or argument
shifts to the applicant." In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992).
"The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results."
KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). "[T]he analysis
need not seek out precise teachings directed to the specific subject matter of
the challenged claim, for a court can take account of the inferences and
creative steps that a person of ordinary skill in the art would employ." Id. at
418. "What matters is the objective reach of the claim. If the claim extends
to what is obvious, it is invalid under§ 103." Id. at 419.
The Examiner determined the rejected claims would have been
obvious over the Tal-Altmann-Kawashima prior art combination. Final
Action 9--15, 18-19 and Answer 3-16 (collectively citing Talat Abstract,
~~1,6, 12, 17,24-27,29,32,35,39,41,43--45,48,51,57,58,60,69,Figs.
1, 3, 5; citing Altmann at Abstract,~~ 5, 7, 11, 12, 52-55, 68; and citing
Kawashima at claim 33). Except to the extent the Examiner may have
underestimated the relevant scope of the disclosure of Tal as it relates to and
renders obvious the claimed subject matter, we discern no error in the
Examiner's determinations and we adopt the Examiner's findings of fact as
set forth in the Final Office Action and Answer. See Final Action 9-15, 18-
19; Answer 3-16. We address Appellants' arguments below.
Appellants argue the Examiner's interpretation of the claim limitation
"extract [or extracting] two-dimensional boundary information from the
three-dimensional cardiac model that is coincident between the model and a
plane containing the ultrasound information, the boundary information
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Application 12/978,935
corresponding to at least one distinct object of the model" as collecting
information which is in between intersection of the model slice plane and
cardiac model is incorrect. Appeal Br. 6; see also Final Action 10 (so-
interpreting the claims, citing Spec. i-f 33), 6 18-19. Appellants argue the
Examiner's interpretation is "contrary to its plain meaning" and
"contradict[s] the Appellant[s'] specification." Appeal Br. 6-7. Appellants
point to the Specification's Figure 7b as indicative of the meaning of the
disputed claim language and argue that the claimed boundary information, in
the form of "lines," "are anatomical features, not merely visual indications
of where portions of multiple merged images are stitched together," per
Altmann paragraph 55. Id. at 8.
Appellants' argument is not persuasive. Appellants argue the
Examiner's interpretation is contrary to the plain meaning of the claim
language, but offer no persuasive explanation why. Appellants also argue
the Examiner's interpretation is contrary to the Specification's disclosure,
but, again, offer no persuasive explanation why; particularly in view of the
close paraphrasing of the Specification by the Examiner in interpreting the
claim language and direct citation to the Specification.
"[D]uring examination proceedings, claims are given their broadest
reasonable interpretation consistent with the specification." In re Hyatt, 211
F.3d 1367, 1372 (Fed. Cir. 2000); see also Cuozzo Speed Tech., LLC v. Lee,
136 S. Ct. 2131, 2145 (2016). While the Examiner's terse interpretation of
the disputed claim language may not add substantial clarity to its meaning,
6 The Examiner cites i-f 3 5 of the published application, which corresponds to
i-f 33 of the application as filed.
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Application 12/978,935
we do not find it to be in error because it indisputably comports with the
description in the Specification. See, e.g., Spec. i-fi-123-33; see also US
2012/0165671Ali135 (June 28, 2012 published version of Spec., cited by
the Examiner at, inter alia, Final Action 10). Further consulting the
Specification as to the meaning of the claim language at issue, we find it
explains that the extraction of the 2D boundary information is an
identification and a subsequent merging of the overlapping or related
information in a 3D model and in a 2D ultrasound of the same physiology,
e.g., cardiac tissue. Spec. i-fi-123-33; Figs. 2a, 2b, 3a, 3b, 7a, 7b, 8.
Per the Specification's disclosure, a 3D (cardiac) model includes
identifiable structural objects of a subject's (cardiac) anatomy and may be
segmented into 2D slices, e.g., data as obtained in a CT or MRI scan,
assembled into the 3D structure. Id. i-fi-123-25. These structural objects in
the 3D model may be assigned identifiers such as color or textual displays.
Id. i-fi-126-28. The Specification further describes obtaining 2D ultrasound
images of actual, respective patient physiology using a catheter, and that
such ultrasound images can be correlated with a slice plane of the 3D model.
Id. i132. Using this 3D model slice plane, information relating to the 2D
boundary information of the 3D model of that plane corresponding to a
respective 2D ultrasound image is extracted and that information can be
combined as an overlay to the respective 2D ultrasound image to better
illustrate boundaries of structural objects imaged by the ultrasound. Id. i1 33.
The Specification's Figures 2a-3b and 7b illustrate this. Thus, the
Examiner's pointing to Specification paragraph 33 (the Examiner cites
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Application 12/978,935
published Spec. i-f 3 5) to identify the meaning of the disputed claim language
is appropriate.
Appellants argue "Altman[ n ], alone or in combination, does not teach
or suggest extracting 2D boundary information from the 3 D cardiac model
that is coincident between the model and a plane containing the ultrasound
information, as similarly recited in independent claims 1, 14, and 20."
Appeal Br. 9.
This argument is not persuasive. Altmann teaches the claimed
extracting step (see Answer 4) under the broadest reasonable interpretation
of the claim language, and Tal also teaches a similar method. Tal is directed
to identifying "topologic features in cardiac ultrasound images," and
discloses "registering the ultrasound image with the three-dimensional
space, and automatically identifying features" by combining the 2D
ultrasound with a 3D mapped model, e.g., CARTO 3D-space, where cardiac
structures, e.g., heart chambers, are automatically identified on the
ultrasound image using visual indicators, e.g., text, graphics, or color. See
Tal i-fi-1 1, 6, 45--48, Figs. 5, 6. Tal illustrates such processing and an
extraction and merging of 3 D model boundary information and 2D
ultrasound imaging at its Figures 5 and 6, reproduced below, annotated for
clarity:
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Appeal2017-006767
Application 12/978,935
IM
\
FIG .. 5
Tal's Figure 5, above, shows a displayed ultrasound image of cardiac
anatomy. Overlaid on the 2D ultrasound image is text identifying the right
atrium ("RA"), aorta ("Aorta"), and left atrium ("LA"). Boundary lines are
also provided to define these features. The text labeling and boundary lines
are information extracted from a 3D model. See Tal i-fi-141-52. Figure 6,
below, shows a flowchart of the processing steps used to achieve a display
as shown in Figure 5.
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Appeal2017-006767
Application 12/978,935
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Tal's Figure 6 shows that CARTO 3D space 90 (a 3D cardiac model
composed of electro-anatomical maps 92, CT/MRI images 94, and/or
ultrasound contours 96) is merged with a 2D ultrasound image 98 by
extracting information about anatomic structures in the 3D model and
overlaying 100 them upon the 3D model to create an enhanced image 102.
Id. iii! 53-59. The 2D ultrasound image and the information extracted from
the 3D model, i.e., a part of the 3D model, are displayed simultaneously.
Altmann teaches that ultrasound data and information extracted from
respective three-dimensional models of the imaged physiology can be
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Application 12/978,935
combined similarly to the way Tal teaches combining 2D ultrasound and 3D
mapped physiological data. See, e.g., Altmann Abstract, i-fi-149, 54--55, 67.
Altmann teaches that the image/model data disclosed by Tal as produced
using a CARTO XP EP Navigation and Ablation system by Biosense
Webster creates a 3D model and also identifies related software, called
CartoMergeâ„¢, for merging 3D mapped images and 2D ultrasound fan
images. See id. i-fi-150-52. Therefore, we conclude the Examiner was correct
in finding the claimed subject matter obvious over Tal and Altmann.
Appellants argue there would have been no motivation to combine the
cited prior art references and Kawashima does not make up for the alleged
deficiencies of Tal and Altmann. Appeal Br. 11.
This argument is not persuasive. As discussed above, the combination
of the three cited prior art references is not entirely necessary to render the
claimed subject matter obvious as Tal accomplishes this on its own.
However, Tal and Altmann are directed to essentially the same subject
matter, that is, cardiac imaging using ultrasound and 3D model information.
They also disclose going about performing such imaging in essentially the
same way. Kawashima is also directed to acquiring and displaying
ultrasonic tomographic images. Therefore, the cited prior art references are
analogous art and they would have been obvious to combine based on the
Examiner's rationale for combining the references or modifying one in view
of another "to have an ... improved image for better interpretation" and "to
provide more detailed and useful information to the user." Final Action 11.
Appellants argue the Final Office Action fails to present a prima facie
case for the obviousness of claim 2, which recites, "receiving a signal from
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Application 12/978,935
the catheter that is indicative of a position and orientation of the ultrasound
information; and using the signal to determine a plane containing the
ultrasound information within the three-dimensional cardiac model."
Appeal Br. 12.
In response, the Examiner states:
The Examiner has relied on prior art Tal to show the limitation
of receiving a signal from the catheter that is indicative of a
position and orientation of the ultrasound information; and using
the signal to determine a plane containing the ultrasound
information within the 3D model. In par. [0006], [0012], [0024],
[0025], [0035], [0044], Tal shows using positional sensors at the
distal end of catheter, using the positional sensors to collect
position coordinates, and using the coordinates to determine the
plane containing the ultrasound information within the 3D
model. Furthermore, Altmann also teaches of receiving a signal
from the catheter that is indicative of a position and orientation
of the ultrasound information; and using the signal to determine
a plane containing the ultrasound information within the 3D
model (see par. [0039], [043], [0060], [0069]).
Answer 14--15.
We conclude that the portions of Tal and Altmann cited by the
Examiner support the determination that claim 2 would have been obvious
over the cited prior art. Appellants argue the Examiner's citation to
paragraphs of Tal and Altmann not previously cited in the rejection of claim
2 is a new ground of rejection. Reply Br. 8-9.
37 C.F.R. § 41.40(a) states that:
Any request to seek review of the primary examiner's failure to
designate a rejection as a new ground of rejection in an
examiner's answer must be by way of a petition to the Director
under § 1.181 of this title filed within two months from the entry
of the examiner's answer and before the filing of any reply brief.
Failure of appellant to timely file such a petition will constitute
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Application 12/978,935
a waiver of any arguments that a rejection must be designated as
a new ground of rejection.
Therefore, we do not consider Appellants' argument that the rejection is now
new.
Appellants argue Kawashima fails to teach displaying an augmented
echo (ultrasound) image while simultaneously displaying some portion of a
3D model, as claimed. Appeal Br. 12.
This is not persuasive. The Examiner responded stating:
Claim 1 merely limit[ s] displaying an augmented echo image
including one distinct object[] within a visual representation of
the ultrasound information. Altmann teaches displaying an
augmented echo image, and displaying the augmented image and
a visualization of 3D model in a consolidated display by
displaying the 3D model the respective intersections of the 2D
image planes with the surface on the 3D model, and a
pseudocolor is displaying on the respective intersection of the
image pla[n]es with the surface (see par. [0011], [0012], [0031],
[0055], [0058]). Furthermore, as stated above, the Examiner has
relied on prior art Kawashima to only show simultaneously
displaying two different images (see claim 33).
Answer 15. The Examiner is correct in identifying the relevant limitation of
claim 1 and its disclosure in the cited prior art combination. Two separate
images are not required by claim 1. Both Tal and Altmann disclose
overlaying a portion of a 3D model and an ultrasound image. See supra Tal
Figures 5 and 6. Appellants' similar argument regarding claim 7 (Appeal
Br. 13) is also unpersuasive for the same reasons.
For the reasons discussed above, we are unpersuaded by Appellants'
arguments and affirm the Examiner's rejection of the claims as obvious over
Tal, Altmann, and Kawashima.
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Application 12/978,935
SUMMARY
The obviousness rejection is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 3 7 C.F .R. § 1.13 6( a )(1 )(iv).
AFFIRMED
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