Ex Parte Liao et al

Patent Trial and Appeal Board

Nov 15, 2017

12858494 (P.T.A.B. Nov. 15, 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.
12/858,494 08/18/2010 Rui Liao 2009P15726US01 5989
28524 7590 11/17/2017
SIEMENS CORPORATION
INTELLECTUAL PROPERTY DEPARTMENT
3501 Quadrangle Blvd Ste 230
EXAMINER
LULTSCHIK, WILLIAM G
Orlando, EL 32817 ART UNIT PAPER NUMBER
3626
NOTIFICATION DATE DELIVERY MODE
11/17/2017 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):
ipdadmin.us@siemens.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RUI LIAO, YEFENG ZHENG, MATTHIAS JOHN,
ALOIS NOETTLING, and JAN BOESE
Appeal 2016-006305
Application 12/858,494
Technology Center 3600
Before THU A. DANG, ELENI MANTIS MERCADER, and SCOTT B.
HOWARD, Administrative Patent Judges.
MANTIS MERCADER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1—36, which constitute all the claims pending in
this application. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Appeal 2016-006305
Application 12/858,494
CLAIMED SUBJECT MATTER
The claimed invention is directed to determining angulation of the c-
arm image acquisition system for aortic valve implantation. Abstract.
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A method for determining an angulation of a C-arm image
acquisition system for aortic valve implantation, comprising:
automatically detecting, by a processor, one or more
anatomic landmarks of an aortic root in a 3D image;
defining, by a processor, a plane representing an aortic
annulus direction in the 3D image based on the detected one or
more anatomic landmarks;
determining, by a processor, a viewing angle at which to
position the C-arm image acquisition system for X-ray image
acquisition by the C-arm image acquisition system, wherein the
viewing angle provides a viewing plane that is perpendicular to
the defined plane; and
controlling the C-arm image acquisition system to be
positioned at the determined viewing angle that provides a
viewing plane that is perpendicular to the defined plane.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Lienard et al. (“Lienard”) US 2002/0006185 A1 Jan. 17, 2002
Viswanathan US 2006/0079745 Al Apr. 13, 2006
Cai et al. (“Cai”) US 2007/0274579 Al Nov. 29, 2007
Adrie C. M. Dumay et al., Determination of Optimal Angiographic Viewing
Angles: Basic Principles and Evaluation Study, IEEE Transactions on
Medical Imaging, Vol. 13, No. (March 1, 1994).
Michael Gessat et al., A Planning System for Transapical Aortic Valve
Implantation, SPIE Vol. 7261, Medical Imaging (2009).
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Application 12/858,494
Razvan loan Ionasec et al. Dynamic model-driven quantitative and visual
evaluation of the aortic valve from 4D CT, Med Image Comput Comput
Assist Interv. (“MICCAI”), 686-94 (2008).
REJECTIONS
Claims 1—5, 10-18, 23—29, and 34—36 stand rejected under 35 U.S.C
§103 (a) as being unpatentable over Gessat in view of Ionasec and Lienard.
Claims 6, 19, and 30 stand rejected under 35 U.S.C § 103(a) as being
unpatentable over Gessat in view of Ionasec and Lienard and further in view
of Cai.
Claims 7, 20, and 31 stand rejected under 35 U.S.C § 103(a) as being
unpatentable over Gessat in view of Ionasec and Lienard and further in view
of Cai and further in view of Dumay.
Claims 8, 9, 21, 22, 32, and 33 stand rejected under 35 U.S.C § 103(a)
as being unpatentable over Gessat in view of Ionasec, Lienard, Cai, Dumay
and further in view of Viswanathan.
ANALYSIS
Claims 1, 7, 15, 20, 26, and 31 rejected under 35 U.S.C. § 112, first
paragraph, as failing to comply with the written description requirement
Appellants argue that paragraphs 22—25 of the specification clearly
describe the limitation of “determining a viewing angle” in sufficient detail
that one skilled in the art would reasonably conclude that the inventor had
possession of the claimed invention (App. Br. 4). In particular, Appellants
contend paragraphs 22—23 describe that a plane representing an aortic
annulus direction is defined based on the detected anatomic landmarks and
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an optimal viewing angle is determined that is perpendicular to the defined
plane (id.). According to Appellants:
Paragraph [0024] describes that an optimal viewing angle is
automatically determined from multiple viewing angles that are
perpendicular to the defined plane representing the aortic annulus
direction. Paragraph [0024] provides a detailed list of optimization
parameters (e.g., relative positions of the detected anatomic
landmarks, such as the hinges, commissure points, coronary ostia, and
aortic root centerline) that can be used to define an objective function
which can be optimized to determine the optimal viewing direction.
Paragraph [0024] provides criteria which may be optimized to select
an optimal viewing angle (e.g., in one possible implementation: (a)
the coronary ostia should be visible on the boundary of the projected
aortic root; (b) the viewing angle should be close to an anterior
posterior (AP) C-arm angulation; and (c) the three aortic cusps should
be well separated in one implementation; and in another possible
implementation: the projection of the commissure points appears
between the left and right coronary ostia and the centerline of the
aortic root is parallel to the viewing direction). Paragraph [0024]
describes that “[a]n objective function can be defined based on one or
more optimization parameters and the objective function can be
optimized to determine the optimal viewing direction” and “one
skilled in the art can devise an objective function that weights various
optimization parameters, and well known optimization techniques can
be used to optimize the objective function.”
App. Br. 4—5.
We do not agree. We agree with the Examiner, as acknowledged by
Appellants,1 that the optimization parameters are described in the
Specification only as parameters that can be used to mathematically select
an optimal viewing angle, but the Specification does not disclose how the
parameters are used to mathematically select the optimal viewing angle
(Ans. 21). We agree that the three example criteria described are only the
1 See, e.g., App. Br. 4, 5, 7; Reply Br. 3.
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desired result from performing the optimization, namely that the resulting
angle should provide the described viewing characteristics (id.). As the
Examiner finds, stating that these may be optimized using various weights to
select a viewing angle without providing any example or description of how
this might be accomplished does not provide support for how Appellants’
claimed invention actually performs the optimization to achieve the claimed
function (id,).
Here, we agree that:
While paragraph 24 states that that one skilled in the art can devise an
objective function that weights various optimization parameters and
that “well known optimization techniques” can be used to optimize
the objective function, it is not sufficient for purposes of the written
description requirement to disclose simply that one skilled in the art
could devise a way of achieving a claimed function. Under the
written description requirement claims may fail to satisfy the written
description requirement when the invention is claimed and described
in functional language but the specification does not sufficiently
identify how the invention achieves the claimed function. Ariad, 598
F.3d at 1349 (“[A]n adequate written description of a claimed genus
requires more than a generic statement of an invention's boundaries.”)
(citing Eli Lilly, 119 F.3d at 1568).
Ans. 21—22.
We agree with the Examiner that the Specification does not describe
“determining a viewing angle” in sufficient detail that one skilled in the art
would reasonably conclude that the inventor had possession of the claimed
invention, especially when the Specification does not provide any disclosure
of a mathematical formula or algorithm for such a determination.
Appellants could have provided supporting evidence for their assertion that
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one skilled in the art can devise an objective function that weighs various
optimization parameters and that “well known optimization techniques” can
be used to optimize the objective function, but did not.
Accordingly, we affirm the Examiner’s rejection of claims 1,7, 15,
20, 26, and 31 under 35 U.S.C. § 112, first paragraph.2
Claims 1—5, 10—18, 23—29, and 34—36 under 35 U.S.C§103(a)
Appellants argue that although Gessat describes that a user selects
landmarks of a segmented aortic root, in Gessat the user-selected landmarks
are used to calculate geometric constraints for the size and position of the
aortic valve implant, not to define a viewing plane at which to position a C-
arm image acquisition system for X-ray acquisition by the C-arm image
acquisition system (App. Br. 10—11). Appellants assert that Gessat shows
different views of the simplified root model in Figure 3, however none of
these views represent a viewing angle for X-ray image acquisition by a C-
arm image acquisition system and there is no description of a determination
of a viewing angle of the C-arm image acquisition system that providing a
viewing plane perpendicular to a defined plane representing an aortic
annulus direction (App. Br. 11).
We do not agree with Appellants’ arguments. The Examiner finds,
and we agree, the functional portion of the limitation at issue is determining
2 Should there be further prosecution the Examiner should consider whether
a rejection under 35 U.S.C § 101 is applicable as the claims appear to be
directed to mental steps performed by a physician evaluating the angle to
take the best image of interest constituting an abstract idea. We note that
mere automation of those steps do not convert the claims to statutory subject
matter.
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a viewing angle providing a viewing plane that is perpendicular to the
defined plane (Ans. 26). We agree with the Examiner that the angle
determination is recited only in relation to the defined plane itself within the
3D image (id.). We agree that Gessat’s Figure 3 correspondingly provides
such a viewing angle because the resulting viewing plane is perpendicular to
the defined plane shown in the image as required by the claim (id.). As the
Examiner further notes, the claim does not specify the axis on which the
angle is measured, which means that any viewing angle parallel to the plane
as shown in Figure 3 by definition is a viewing angle providing a viewing
plane that is perpendicular to the defined plane (Ans. 26—27). The Examiner
notes, and we agree, that the claim does not recite a determination of a
viewing angle “of the C-arm image acquisition system,” but rather only
recites determining an angle providing a viewing plane that is perpendicular
to the described plane (Ans. 27).
Appellants further argue that although, Lienard describes positioning
an X-ray apparatus at a viewing angle, there is no description in Lienard of
controlling to X-ray apparatus to be positioned at a determined viewing
angle that provides a viewing plane that is perpendicular to a plane
representing an aortic annulus direction that has been defined in a 3D image
(App. Br. 13). Furthermore, Appellants assert that there is no reason that
one of ordinary skill in the art would modify the teachings of Lienard to
provide a viewing angle allegedly taught in the image of the simplified root
model in Figure 3 of Gessat (id.).
One cannot show nonobviousness by attacking references individually
where the rejections are based on combinations of references. In re Keller,
642 F.2d 413, 426 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 1097
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(Fed. Cir. 1986). We agree with the Examiner that Gessat is not relied upon
to teach the function of controlling the C-arm system to be positioned at the
determined viewing angle, but rather, Lienard is instead relied upon to teach
the actual controlling of the C-arm system (Ans. 27). In other words, Gessat
is relied upon to teach the functional language of determining a viewing
angle that provides a viewing plane that is perpendicular to the defined
plane, and does not rely on Gessat to further teach controlling a C-arm
image acquisition system to be positioned at the determined viewing angle
(id.). Lienard is relied upon to teach the limitation of controlling the C-arm
image acquisition system to be positioned at the determined viewing angle
that provides a viewing plane that is perpendicular to the defined plane (id.).
We further agree with the Examiner that the combination does not
rely on impermissible hindsight because Lienard describes not only
controlling a C-arm imaging system such that the axis of the beam is
perpendicular to the long axis of a vessel portion of interest (Ans. 27—28
citing paras. 22, 25, and Fig. 1), but also that positioning the C-arm system
in the described manner allows for acquisition of images as preferred angles
(Ans. 28 citing paras. 37 and 51).
Thus, we affirm the Examiner’s rejection of claim 1 and for the same
reasons the Examiner’s rejection of claims 1—5, 10-18, 23—29, and 34—36,
not argued separately.
Claims 14, 25, and 36
Appellants further argue that the probabilistic boosting tree classifiers
of Ionasec do not determine transfer functions for visualizing a segmented
aortic root using 3D volume rendering (App. Br. 16). Therefore, Appellants
assert that the cited prior art does not teach or suggest “automatically
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determining transfer function parameters for 3D volume rendering of the
segmented aortic root based on one or more quantitative properties of the 3D
image using trained approximation functions,” as recited in claims 14, 25,
and 36 (id.).
We do not agree. We agree with the Examiner’s findings as stated in
the Answer:
the parameter Li|xs,Ys,Zs is disclosed in Ionsec [sic] as the
probability of a landmark at location Li|xs,Ys,Zs, and is therefore
a parameter used in 3D volume rendering as described in
Sections 2.1 and 2.2. Section 2.2 of Ionasec teaches a 3D volume
rendered root and valve model which uses a training set of
positive and negative sample landmark positions to
automatically train a discriminative classifier (i.e. [,] a transfer
function as shown in equation 3) to detect landmark locations for
volume rendering an aortic valve (Section 2.2 describes training
a discriminative classifier Husing a Probabilistic Boosting Tree;
Figure 3 shows the volume rendering of the aortic valve overlaid
on the aorta). The landmark parameters are then used for global
fitting of a 3D model such as seen in Figure 3 (Section 2.2). The
3D volume rendering provided by the model can be seen in
Figures 3 and 4. Examiner notes that the claims do not define or
limit what constitutes a transfer function, or what may constitute
a transfer function parameter beyond that the parameters are
based on one or more quantitative properties of a 3D image using
trained approximation functions. Furthermore, while Applicant
asserts that the discriminative classifier taught by Ionasec do not
determine a transfer function, Applicant has not provided any
basis on which Examiner's interpretation of the training of such
a discriminative classifier as shown in equation 3 is incorrect as
applied to the determination recited in the claims. Section 2.2
describes the trained function as used in the estimation of the
visual aortic valve model, and Applicant has not provided
arguments distinguishing this function and its parameters from
those recited in the claims.
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Ans. 30. Accordingly, we also affirm the Examiner’s rejection of claims 14,
25, and 36.
DECISION
The Examiner’s rejection of claims 1—36 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l)(iv).
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