Ex Parte Jain et al

Patent Trial and Appeal Board

Feb 27, 2019

14235220 (P.T.A.B. Feb. 27, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/235,220 01/27/2014 Ameet Kumar Jain
24737 7590 03/01/2019
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
465 Columbus A venue
Suite 340
Valhalla, NY 10595
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.
2011P00961WOUS 3398
EXAMINER
CWERN, JONATHAN
ART UNIT PAPER NUMBER
3793
NOTIFICATION DATE DELIVERY MODE
03/01/2019 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):
patti. demichele@Philips.com
marianne.fox@philips.com
katelyn.mulroy@philips.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte AMEET KUMAR JAIN
and VIJAY PARTHASARATHY 1
Appeal2018-004784
Application 14/235,220
Technology Center 3700
Before DAVID M. KOHUT, JAMES P. CALVE, and
RICHARD H. MARSCHALL, Administrative Patent Judges.
CAL VE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Office Action
finally rejecting claims 1-6, 10, 12, and 15. Appeal Br. 2. Claims 7-9, 11,
13, and 14 are cancelled. Id. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Koninklijke Philips N.V. is identified as the real party in interest. Appeal
Br. 2.
Appeal2018-004784
Application 14/235,220
CLAIMED SUBJECT MATTER
Claims 1, 10, and 15 are independent. Claim 1 is reproduced
below.
1. A method for accurately visualizing soft tissue motion on
an x-ray image, comprising the steps of:
registering a stream of real time ultrasound images to an
x-ray image space (Step 310);
defining a point of interest in soft tissue on one of: the
stream of ultrasound images, the x-ray image, or a model
corresponding to the x-ray image (Step 320);
determining motion of the defined point of interest from
the real time ultrasound images (Step 330);
applying the determined motion to the defined point of
interest on the x-ray image (Step 340).
Appeal Br. 14 (Claims App.).
REJECTIONS
Claims 1-6, 10, 12, and 15 are rejected under 35 U.S.C. § 112, first
paragraph, for lack of written description.
Claims 1-6, 10, 12, and 15 are rejected under 35 U.S.C. § 112, second
paragraph, as being indefinite.
Claims 1-3, 5, 6, 10, 12, and 15 are rejected under 35 U.S.C. § I03(a)
as unpatentable over Hall (US 2010/0063400 Al, pub. Mar. 11, 2010) and
Fu (US 2007/0015991 Al, pub. Jan. 18, 2007).
Claim 4 is rejected under 35 U.S.C. § I03(a) as unpatentable over
Hall, Fu, and Redel (US 2007/0123771 Al, pub. May 31, 2007).
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Appeal2018-004784
Application 14/235,220
ANALYSIS
Claims 1-6, 10, 12, and 15 For Lack of Written Description
Independent claims 1, 10, and 15 each include a limitation directed to
applying the determined motion of the defined point of interest on the x- ray
image. 2 Appeal Br. 14--16 (Claims App.). The Examiner determines the
Specification does not provide sufficient detail on how to "apply" or what
this involves. Final Act. 3. The Examiner finds that "[ n Jo algorithm is set
forth for 'applying."' Id. The Examiner determines that "lacking any detail
in regards to the algorithm for applying determined motion from ultrasound
images to a point on an x-ray image, it is unclear if applicant had possession
of the claimed invention." Id. The Examiner also determines that portions
of the Specification that describe "overlaying" a path of motion onto an x-
ray image are not connected to "applying" as claimed, and a skilled artisan
"would not understand the term 'applying' to be synonymous with
'overlaying.' Ans. 2-3.
35 U.S.C. § 112, first paragraph, provides that "[t]he specification
shall contain a written description of the invention." The test for sufficiency
of a written description is "whether the disclosure of the application relied
upon reasonably conveys to those skilled in the art that the inventor had
possession of the claimed subject matter as of the filing date." Ariad
Pharms., Inc. v. Eli Lilly and Co., 598 F.3d 1336 (Fed. Cir. 2010) (citations
omitted). The test requires an objective inquiry into the four comers of the
specification from the perspective of a person of ordinary skill in the art. Id.
2 Claim 1 recites the step of "applying the determined motion to the defined
point of interest on the x-ray image" while claims 10 and 15 recite "program
instructions for applying/to apply the determined motion to the defined point
of interest on the x-ray image." Appeal Br. 14--16 (Claims App.).
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Appeal2018-004784
Application 14/235,220
Appellants argue that the sufficiency of a written description depends
on the standpoint of a skilled artisan at the time the application was filed and
"[i]nformation which is well known in the art need not be described in
detail in the specification." Appeal Br. 8. Appellants cite portions of their
Specification that describe their system as calculating the path of motion of a
point of interest and overlaying it onto the x-ray image. Id. at 8-9 (citing
Spec. ,r,r 26, 25, 26, 29, 39). 3 Appellants argue that "there is no need to
provide further details on overlaying the point of interest and path of motion
from an ultrasound image stream onto an x-ray image, because the technique
of overlaying a point and motion ( or successive points) onto an image is
known in the art." Id. at 9.
The Specification describes the invention as "accurately visualizing
soft tissue motion on an x-ray image" (Spec. ,r 4) by determining the motion
of a selected point from real time ultrasound images and then "applying" the
determined motion to the selected point on the x-ray image (see id. ,r,r 5, 6,
13, 17, 35, 45). The Specification also describe this process as overlaying
tissue motion onto x-ray images. Id. ,r,r 9-11, 15, 16, 25, 29, 46, 47, 49. We
find that the Specification uses "applying" and "overlaying" interchangeably
to describe the positioning of the determined motion of a defined point of
interest on an x-ray image. Figure 7 illustrates a motion path overlaid on a
point of interest. Figure 3 discloses a flow chart. Id. ,r,r 21, 25. A skilled
artisan would understand Appellants to have possessed this subject matter
when the application was filed. Thus, we do not sustain this rejection.
3 Citations are to International Application Number PCT/IB2012/053825,
published on Feb. 7, 2013, as WO 2013/018003 Al, and filed in the USPTO
on Jan. 27, 2014.
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Appeal2018-004784
Application 14/235,220
Claims 1-6, 10, 12, and 15 For Indefiniteness
The Examiner also determines that independent claims 1, 10, and 15
are indefinite because "it is unclear what is meant by the term 'applying"'
and "[i]t is unclear how 'motion' may be applied to a point on an image."
Final Act. 3. Appellants argue that the meaning of this term is clear from the
description provided in the Specification. Appeal Br. 10. We agree. As
discussed in the previous rejection, the Specification discloses this subject
matter as positioning a determined motion of a defined point of interest on
an x-ray image. The Specification describes this procedure as applying or
overlaying the determined motion onto the x-ray image. Spec. ,r,r 9-11, 15,
16, 25, 29, 46, 47, 49. Thus, we do not sustain this rejection.
Claims 1-3, 5, 6, 10, 12, and 15 As Unpatentable Over Hall and Fu
Appellant argues claims 1-3, 5, 6, 10, 12, and 15 as a group. Appeal
Br. 10-12. We select claim 1 as representative, with claims 2, 3, 5, 6, 10,
12, and 15 standing or falling with claim 1. 37 C.F.R. § 4I.37(c)(l)(iv).
The Examiner finds that Hall discloses a system that registers
ultrasound images to x-ray image space, defines a point of interest in soft
tissue, tracks/ determines the motion of the defined point of interest from
real-time ultrasound images, and applies the determined motion to the select
point on the x-ray image, but Hall does not determine motion of a soft tissue
point as recited in claim 1. Final Act. 4--5. The Examiner finds that Fu
discloses dynamic tracking of soft tissue targets with ultrasound images. Id.
at 5. In particular, the Examiner finds that Fu uses ultrasound images to
track soft tissue targets dynamically, determine their motion, and register the
ultrasound motion images to another modality such as CT imaging. Id.
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Appeal2018-004784
Application 14/235,220
The Examiner determines that it would have been obvious to modify
Hall to include the ability to track soft tissue targets and determine their
motion, as taught by Fu, "as this will improve the accuracy of the procedure
by accounting for patient motion due to for example heart beat or breathing,
decreasing the risk of damage to the patient caused by an improper insertion
of the device." Id.; Ans. 4.
Appellants argue that Hall does not determine motion of a soft tissue
point. Appeal Br. 11. Appellants argue that Fu determines soft tissue
displacement (motion), but does not apply soft tissue motion determined
from ultrasound images to an x-ray image. Id. Appellants argue that Fu
uses the soft tissue displacement for different functions than applying it to an
x-ray image as claimed. Id.; Reply Br. 10. In the Reply Brief, Appellants
also argue for the first time that Hall does not determine motion or apply a
determined motion but instead determines a current position of a catheter tip
and displays that position on an x-ray image. Reply Br. 12. Appellants
further argue that Fu determines soft tissue displacement, which is the
difference between two locations and is not the same as motion. Id.
Appellants' arguments that Hall and Fu do not determine motion are
raised for the first time in the Reply Brief and will not be considered absent
good cause, which was not shown. 37 C.F.R. § 4I.41(b)(2). The Examiner
presents essentially the same findings and arguments in the Answer (see
Ans. 4--5) as in the Final Office Action (see Final Act. 4--5, 8-10). Thus, we
do not have the benefit of the Examiner's response to these new arguments.
Furthermore, these arguments, like Appellants' other arguments, are
not persuasive because they amount to individual attacks on the references
rather than on the teachings as combined in the rejection.
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Appeal2018-004784
Application 14/235,220
The Examiner correctly finds that Hall determines motion of a
point of interest as recited in claim 1, except Hall's method is applied
to a catheter, rather than "a point of interest in soft tissue" as claimed.
Final Act. 4--5, 8-10; Ans. 4. The Examiner summarizes the findings.
[T]he combination of the rejection relies upon Hall tracking motion
information with ultrasound imaging and overlaying the information
onto an x-ray image. Hall teaches that the motion information is of a
foreign object. Fu demonstrates that it is known to use ultrasound to
track the motion of soft tissue targets, to provide a higher accuracy
treatment. Thus, it would be obvious to one of ordinary skill in the
art, to in addition to tracking and overlaying motion information of a
foreign object, to also do so with information of soft tissue targets, in
order to increase the accuracy of a procedure and prevent damage to
otherwise healthy tissue.
Final Act. 10; see id. at 8 (same); Ans. 4 (same).
In response, Appellants argue that "Hall fails to determine motion of a
soft tissue point." Appeal Br. 11. Appellants also argue that Fu describes
"determining soft tissue displacement (motion)" but "Fu does not disclose or
suggest applying the soft tissue motion determined from ultrasound images
to an x-ray image." Id. These individual attacks are not persuasive.
Hall describes its invention and system/method as follows:
A tracking module is configured to track movement of the
foreign object within the ultrasound image and the display is
further configured to display an indication of the movement of
the foreign object on the X-ray image.
A live ultrasound image is displayed that includes at least the
tip of the guide wire and at least a portion of the vessels. The
guide wire is identified on both the X-ray image and the
ultrasound image. Movement of the guide wire is indicated on
the X-ray image based on movement of the guide wire that is
detected in the ultrasound image.
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Appeal2018-004784
Application 14/235,220
The operator then, at 218, adjusts the position of the guide wire
152, feeding the guide wire 152 towards the point or area of
interest. The operator may watch the motion of the guide wire
152 in real-time on the ultrasound image 160 while using the
X-ray image 150 that shows the vascular tree pattern 146 as a
base or reference image."
Hall ,r,r 4, 5, 31 (emphasis added). Hall tracks motion with real time
ultrasound images 180 and combines that motion on x-ray image 150.
Hall teaches that ultrasound images 180 may be fused with or overlaid
on x-ray image 150. Id. ,r 41; Final Act. 4--5. Appellants admit that
such overlays are known generally in the art. See Appeal Br. 8.
The Examiner also finds that Fu tracks soft tissue targets in real time
with ultrasound images. Final Act. 5. Appellants do not dispute these
findings. See Appeal Br. 11. Fu overlays real time ultrasound images onto
computer tomography images, which a skilled artisan would understand to
involve x-rays. See Fu ,r 25, 28, 43. Fu tracks soft tissue motion in real time
so that a treatment delivery device can account for the movement of a target
within the tissue. Id. ,r,r 4, 45. Fu also defines "real time" ultrasound
imaging to mean "synchronous acquisition and display of images without
perceptible latency or flicker, for example, at a rate approximately greater
than 1 Hertz (Hz)." Id. ,r 23. Such real time images of soft tissue motion are
important because "the soft tissue target may be a moving target" due to the
motion of a patient caused by breathing or organ motion. Id. ,r 59. Thus, the
Examiner's reason for modifying Hall to track soft tissue targets is supported
by a rational underpinning based on Fu's teaching of the benefits of doing so
to improve treatment. Id. ,r,r 25, 36, 43--46, 59, 69; see Final Act. 5; Ans. 4.
Thus, we sustain the rejection of claims 1-3, 5, 6, 10, 12, and 15.
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Appeal2018-004784
Application 14/235,220
Claim 4 As Unpatentable Over Hall, Fu, and Redel
The Examiner relies on Redel to teach features recited in claim 4.
Final Act. 6. Appellants do not present arguments for this rejection. See
Appeal Br. 10-12. Therefore, we summarily sustain this rejection.
DECISION
We reverse the rejection of claims 1---6, 10, 12, and 15 for lack of
written description.
We reverse the rejection of claims 1-6, 10, 12, and 15 for being
indefinite.
We affirm the prior art rejections of claims 1---6, 10, 12, and 15.
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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