Ex Parte Olson et al

Patent Trial and Appeal Board

Apr 24, 2017

13231284 (P.T.A.B. Apr. 24, 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.
13/231,284 09/13/2011 Eric S. Olson 0G-047400US 9622
(065513-0355)
67337 7590 04/26/2017
DYKEMA GOSSETT PLLC (STJ)
4000 Wells Fargo Center
90 South Seventh Street
Minneapolis, MN 55402
EXAMINER
KINNARD, LISA M
ART UNIT PAPER NUMBER
3786
NOTIFICATION DATE DELIVERY MODE
04/26/2017 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 ERIC S. OLSON, CARLOS CARBONERA,
LEV A. KOYRAKH, and DANIEL R. STARKS
Appeal 2015-004619
Application 13/231,284
Technology Center 3700
Before: CHARLES N. GREENHUT, NATHAN A. ENGELS, and
ERIC C. JESCHKE, Administrative Patent Judges.
GREENHUT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1—
22. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.
Appeal 2015-004619
Application 13/231,284
CLAIMED SUBJECT MATTER
The claims are directed to a catheter navigation method and system
using impedance and magnetic field measurements. Claim 1, reproduced
below, is illustrative of the claimed subject matter:
1. A method of operating a computer system comprising a first
positioning system and a second positioning system, comprising
the steps of:
determining an interpolation function configured to
register a first, non-orthonormal coordinate system in a second,
orthonormal coordinate system, wherein said first and second
coordinate systems are independent, wherein said determining an
interpolation function comprises:
collecting a plurality of fiducial pairs in three-dimensional
(3D) space distributed throughout a region of interest, each
fiducial pair including (1) a first coordinate in said first
coordinate system measured by a first positioning system and (2)
a second coordinate in said second coordinate system measured
by a second positioning system, each fiducial pair corresponding
to a physical point in 3D space in the region of interest; and
applying an interpolation algorithm to said plurality of
fiducial pairs to yield said interpolation function;
obtaining a first coordinate in said first coordinate system
within said region of interest; and
determining, by a computer processor associated with the
computer system, a corresponding second coordinate in said
second coordinate system in accordance with said interpolation
function.
REFERENCES
The prior art relied upon by the Examiner is:
Galloway
Dean
US 7,072,707 B2 July 4, 2006
US 7,747,305 B2 June 29, 2010
US 7,088,099 B2 Aug. 8, 2006
US 2007/0016007 A1 Jan. 18, 2007
US 2009/0067755 A1 Mar. 12, 2009
US 2009/0198126 A1 Aug. 6, 2009
Doddrell
Govari
Khamene
Klingenbeck-Regn
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Appeal 2015-004619
Application 13/231,284
Kraus US 2011/0267340 A1 Nov. 3,2011
REJECTIONS
Claims 1—5, 7—10, 14—16, 18, 19, 21 and 22 are rejected under 35
U.S.C. § 103(a) as being unpatentable over Govari, Kraus and Khamene.
Claim 6 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Govari, Kraus, Khamene and Doddrell.
Claim 11 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Govari, Doddrell, and Klingenbeck-Regn.
Claims 12 and 13 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Govari, Doddrell, Khamene, and Klingenbeck-Regn.
Claim 17 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Govari, Kraus, Khamene, and Galloway.
Claim 20 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Govari, Kraus, Khamene, and Dean.
OPINION
In rejecting independent claims 1 and 14 the Examiner finds that
“Khamene discloses: i. a set of fiducial (landmark) pairs [paragraph
[[0011]]; and, ii. applying an interpolation algorithm to said plurality of
fiducial pairs to yield an interpolation function [paragraph [0004]].” Non-
Final Act. 3. The Examiner does not expressly identify in the Office Action,
and it is not apparent, exactly what elements of Khamene in the referenced
paragraphs constitute the recited “fiducial pairs.”1 Nor does the Examiner
1 See 37 C.F.R. § 1.104(c)(2) (“When a reference is complex . . ., the
particular part relied on must be designated as nearly as practicable. The
pertinence of each reference, if not apparent, must be clearly explained and
each rejected claim specified.”)
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Application 13/231,284
clarify this point in the Answer. Paragraph 4 of Khamene discusses an aspect
of the main problem Khamene sought to address—displacement of points in
medical imaging, resulting, for example, from breathing. Paras. 3^4.
Paragraph 11 is largely devoted to a mathematical equation involving points
P - [Pi1. . ., Pi1. . ., Pn1} defining the edges of image I. Although it is not
clear what the Examiner regards as the recited “plurality of fiducial pairs,”
Appellants presume the Examiner is relying on pairs of points on the edge of
the object in different images. App. Br. 7 (“the ‘fiducial pairs’ identified by
the Office Action (which are points on the edge of the object as seen in the
separate images—for example, the edges of the lung at full inhale and at full
exhale)”). To distinguish claims 1 and 14 over the subject matter presumably
relied upon by the Examiner, Appellants argue that the points of Khamene
that Appellants understand to be relied upon by the Examiner “do not
occupy the same point in physical space.2 Indeed, if the points occupied the
same point in physical space (i.e., if there was no movement between
images), there would be no need for the interpolation taught by Khamene.”
App. Br. 7. We have carefully reviewed the Examiner’s Answer and do not
find any response to Appellants’ argument in this regard. Reply Br. 1; Ans.
passim.
“[T]he precise language of 35 U.S.C. § 102 that ‘(a) person shall be
entitled to a patent unless, ’ concerning novelty and unobviousness, clearly
places a burden of proof on the Patent Office which requires it to produce
the factual basis for its rejection of an application under sections 102 and
103.” In re Warner 379 F.2d 1011,1016 (CCPA 1967). The Patent Trial and
Appeal Board is primarily a tribunal of review. See Ex Parte Frye, 94
2 Claims 1 and 14 each recite, “each fiducial pair corresponding to a physical
point in 3D space in the region of interest.”
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Appeal 2015-004619
Application 13/231,284
USPQ2d 1072, 1075—77 (BPAI 2010)(precedential). For that review to be
meaningful it must be based on some concrete evidence in the record to
support the Examiner’s factual findings and legal conclusions. In re Zurko,
258 F.3d 1379, 1386 (Fed. Cir. 2001). As the Examiner has not provided
“specific fact findings for each contested limitation and satisfactory
explanations for such findings” (Gechter v. Davidson, 116 F.3d 1454, 1460
(Fed. Cir. 1997)), we do not sustain the rejections of claims 1 and 14 on the
basis set forth by the Examiner. The rejections of dependent claims 2—10 and
15—21 do not account for this deficiency and must also be reversed.
With regard to independent claim 11, the Examiner initially appears to
rely on Doddrell for:
i. establishing an interpolation function configured to receive
as input said real-time first coordinate and to output a
corresponding second coordinate in said second coordinate
system, said establishing step comprising [col. 10,11. 15—26 and
col. 12, 11. 55-67]:
(2) applying an interpolation algorithm to said plurality
of fiducial pairs to yield said interpolation function [col.
10,11. 15—27 and col. 36,11. 56—65]; and
ii. applying said interpolation function to said real-time first
coordinate [col. 10, 11. 15—27 and col. 36, 11.56—65].
Non-Final Act. 9—10.
Appellants correctly argue, with regard to Doddrell:
there are no “fiducial pairs” that are collected, as claimed—
instead, the data points in the second coordinate frame are
entirely solved for, rather than collected, based on the
interpolation function. Furthermore, because the coefficients of
the interpolation function are known separately from the
collection of data points in the second coordinate system, no
“interpolation algorithm,” as claimed, is applied to yield the
interpolation function.
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Application 13/231,284
App. Br. 10. This argument also goes without any response from the
Examiner. See Reply Br. 1; Ans. passim.
Although the Examiner appears to initially rely on Doddrell regarding
the limitations discussed above, the Examiner also states:
Doddrell does not explicitly disclose details regarding inputting
fiducial pairs to an interpolation algorithm. Klingenbeck-Regn
discloses fiducial pairs that are input (scanned coordinate data)
to an interpolation algorithm [paragraphs [0005] and [0015]].
Non-Final Act. 10.
Appellants argue with regard to Klingenbeck-Regn, the “interpolation,
though, presumes the existence of a function; the reference includes no
teaching of first applying an interpolation algorithm to yield that
interpolation function.” App. Br. 10 (citing Klingenbeck-Regn para. 52). We
again do not find any response to this argument in the Examiner’s Answer.
Reply Br. 1; Ans. passim.
Doddrell uses an interpolation function in a correction method
involving different coordinate systems. Non-Final Act. 9—10 (citing
Doddrell col. 9,11. 19-33; col. 10,11. 15-27; col. 12,11. 55-67, col. 36,11.
32—36, 56—65). Klingenbeck-Regn uses fiducial markers as reference points
for “relating, aligning, or registering different images, representations and
projections, which are obtained from different sources and/or at different
times.” Non-Final Act. 10 (citing Klingenbeck-Regn paras. 5, 15). However,
it is not clear based on the Non-Final Office Action, the Answer, and a
review of Doddrell and Klingenbeck-Regn what specific act or acts the
Examiner considers “applying an interpolation algorithm to said plurality of
fiducial pairs to yield said interpolation function.” As the Examiner has
again failed to provide “specific fact findings for each contested limitation
and satisfactory explanations for such findings” (see Gechter, supra), we are
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constrained to reverse the Examiner’s rejection of claim 11, as well as the
rejection of dependent claims 12 and 13, which does not account for the
deficiency discussed above.
DECISION
The Examiner’s rejections are reversed.
REVERSED
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