Ex Parte Strommer et al

Patent Trial and Appeal Board

Dec 28, 2015

11971004 (P.T.A.B. Dec. 28, 2015)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
11/971,004 01/08/2008
67337 7590 12/30/2015
DYKEMA GOSSETT PLLC (STJ)
4000 Wells Fargo Center
90 South Seventh Street
Minneapolis, MN 55402
FIRST NAMED INVENTOR
Gera Strommer
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.
OK-041403US 4068
EXAMINER
SIRIPURAPU, RAJEEV P
ART UNIT PAPER NUMBER
3737
NOTIFICATION DATE DELIVERY MODE
12/30/2015 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 GERA STROMMER, UZI EICHLER,
LIAT SCHWARTZ, and ITZIK SHMARAK
Appeal2013-010825
Application 11/971,004
Technology Center 3700
Before LYNNE H. BROWNE, JILL D. HILL, and LISA M. GUIJT,
Administrative Patent Judges.
BROWNE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Gera Strommer et al. (Appellants) appeal under 35 U.S.C. § 134 from
the Examiner's decision rejecting claims 1-58. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
CLAIMED SUBJECT MATTER
The claims are directed to systems and methods for medical
navigation. Claim 1, reproduced below, is illustrative of the claimed subject
matter:
Appeal2013-010825
Application 11/971,004
1. A method for displaying a representation of the tip of a
medical device located within a body region of interest of the
body of a patient on an image of the body region of interest
acquired by an image detector of a moving imager at a selected
physical zoom setting, the method comprising:
acquiring at least one medical positioning system (MPS)
sensor image of an MPS sensor, by said image detector, at each
of a plurality of physical zoom settings of said image detector,
and at a selected image detector region of interest setting of said
image detector, said MPS sensor being associated with an MPS,
said MPS sensor responding to an electromagnetic field
generated by a plurality of electromagnetic field generators that
are firmly coupled with a moving portion of said moving
1mager;
determining a set of intrinsic and extrinsic parameters for
each of said plurality of physical zoom settings, according to
sensor image coordinates of said MPS sensor in each of said at
least one MPS sensor image, in a two-dimensional coordinate
system respective of said image detector, and according to non-
real-time MPS coordinates of said MPS sensor, in an MPS
coordinate system respective of said MPS;
determining two-dimensional coordinates of said tip of
said medical device, according to said selected physical zoom
setting, according to at least one of said sets of intrinsic and
extrinsic parameters, according to said selected image detector
region of interest setting, and according to real-time MPS
coordinates of an MPS sensor located at said tip of said medical
device;
superimposing said representation of said tip of said
medical device, on said image of said body region of interest,
according to said two-dimensional coordinates; and
displaying said representation of said tip of said medical
device superimposed on said image of said body region of
interest.
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Appeal2013-010825
Application 11/971,004
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Allen
Seeley
Barth
Webber
Strommer
Boese
Simon
us 4,945,914
US 2003/0130576 Al
US 2004/0267112 Al
US 2005/0059886 Al
US 2005/0107688 Al
US 2005/0251028 Al
US 2005/0273004 Al
REJECTIONS
Aug. 7, 1990
July 10, 2003
Dec. 30, 2004
Mar. 17,2005
May 19, 2005
Nov. 10, 2005
Dec. 8, 2005
I. Claims 1, 7, 8, 11-38, 40-46, 48-53, and 55-58 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Simon, Boese, and
Strommer.
II. Claims 2, 45, 47, and 54 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Simon, Boese, Strommer, and Seeley.
III. Claim 39 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Simon, Boese, Strommer, and Barth.
IV. Claims 3---6 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Simon, Boese, Strommer, Seeley, and Barth.
V. Claim 9 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
Simon, Boese, Strommer, and Allen.
VI. Claim 10 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Simon, Boese, Strommer, and Webber.
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Application 11/971,004
OPfNION
Rejection I
Appellants argue claims 1, 7, 8, 11-38, 40-46, 48-53, and 55-58
together. See Appeal Br. 7-12. We select independent claim 1 as the
representative claim, and claims 7, 8, 11-38, 40-46, 48-53, and 55-58 stand
or fall with claim 1.
The Examiner finds that Simon discloses the method of claim 1
except for the implementation of electromagnetic generators and
determining a set of intrinsic and extrinsic parameters for each of the
plurality of physical zoom settings. Final Act. 2--4. The Examiner also
finds that Strommer discloses the use of electromagnetic field generators and
determines that it would have been obvious to combine the teachings of
Simon and Strommer "so that the imaging system can be mobile, which, for
example, has the advantages of multiple imaging angles and placements
during a procedure." Id. at 4. The Examiner further finds that Boese
discloses determining a set of intrinsic and extrinsic parameters at a plurality
of physical zoom settings and concludes that it would have been obvious to
combine the teachings of Simon and Boese "because doing so would allow
for automatic registration of images generated using MPS sensor locations,
imager locations, fiducial markers, zooming settings, and the position of the
patient to be imaged." Id. at 5 (citing Boese i-fi-136 and 37).
Appellants argue that "Boese does not teach physical zoom" and,
therefore, Boese does not teach the claim limitation regarding determining
intrinsic and extrinsic parameters for a plurality of physical zoom
settings. Appeal. Br. 9; see also Reply Br. 2-3. In particular, Appellants
argue that
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Appeal2013-010825
Application 11/971,004
there is nothing is Boese, or in any other cited reference, that
would lead a person of skill in the art to understand that such
movement or translation is physical zoom. Instead, it appears
that the movement/translation described in Boese refers to
movement in the plane of the operation table or floor-i. e.,
translation or movement that maintains a constant distance
between the patient and the imaging radiation detector in the
axis extending from the imaging radiation detector to the
imaging radiation emitter (thereby not resulting in physical
zoom).
Appeal Br. 9 (emphasis omitted); see also Reply Br. 2.
Appellants' argument is not persuasive because Appellants'
Specification explains that physical zoom can be achieved by moving the
image detector and patient relative to each other. See Spec. p. 16, 1. 23-p.17,
1. 23. The physical zoom in Appellants' invention is achieved through
moving the image detector closer to the emitter (Spec. p. 16, 11. 23-26),
moving the assembly to which the image detector is connected closer to or
farther from the patient (id. at p. 17, 11. 16-18), or moving the patient closer
to or farther from the image detector (id. at p. 17, 11. 16-18). Boese
discloses that the C-arm and the patient table may be moved relative to each
other (see Boese i-fi-126, 29, and 30), and the intrinsic and extrinsic
parameters of these various positions are determined (see id. at i-fi-1 3 6 and
37). Thus, a person of ordinary skill in the art would understand that the
movement of the C-arm and patient table in Boese would result in a plurality
of physical zoom settings, and the intrinsic and extrinsic parameters are
determined for these (see Ans. 6). Because, Boese describes achieving
physical zoom in the same manner described in the Specification,
Appellants' argument does not persuade us of error in the Examiner's
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Appeal2013-010825
Application 11/971,004
finding that Boese teaches determining a set of intrinsic and extrinsic
parameters at a plurality of physical zoom settings.
Appellants also argue that Strommer and Simon fail to teach
determining a set of intrinsic and extrinsic parameters for each of the
plurality of physical zoom settings. Appeal Br. 10-11. We are not
persuaded by Appellants' argument because, as the Examiner notes, Boese is
relied upon for this limitation. See Ans. 9--10.
Appellants further argue that the Examiner used impermissible
hindsight reasoning when finding that Boese teaches physical zoom via
movement of the C-arm and the patient's bed while noting that Appellants'
application states that physical zoom may be effected by movement of the
patient's bed and not just movement between the imaging transmitter and
receiver. Appeal Br. 1 O; Reply Br. 2--4. Appellants assert that "[b ]y using
the instant disclosure to interpret a reference, the Examiner is applying an
impermissible level of hindsight reasoning." Appeal Br. 10. This argument
is not persuasive because the Examiner has only used Appellants'
Specification to construe the claim term "physical zoom settings." See Ans.
9. It is not impermissible to look to the Specification to define claim terms.
Cf In re Prater, 415 F.2d 1393, 1404-05 (CCPA 1969); In re Am. Acad. of
Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (During examination of
a patent application, pending claims are given their broadest reasonable
construction consistent with the Specification.).
Appellants also argue that "Simon does not indicate any issue or
difficulty in the use of zoom such that one of skill in the art would be
motivated to go beyond the disclosure of Simon to find a mechanism for
accounting for multiple zoom levels." Appeal Br. 11 (emphasis
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Appeal2013-010825
Application 11/971,004
omitted). Appellants' argument that Simon does not indicate any issues or
difficulties is not persuasive because it is not necessary to show a flaw in the
base reference to combine references and the motivation to combine
references does not have to be expressly stated in the primary reference. See
KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 420 (2007); see also id. at 418.
Appellants further argue that "the cited references also do not provide
any motivation for modifying the disclosure of the references to include
intrinsic and extrinsic parameters for a plurality of physical zoom
settings." Id. Appellants' arguments are not persuasive because they are
foreclosed by KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398 (2007), in which
the Court rejected the rigid requirement of a teaching or suggestion or
motivation to combine known elements in order to show obviousness. KSR,
550 U.S. at 415. The Court noted that an obviousness 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.
Here, the Examiner articulates a reason to combine the teachings of Simon
and Boese. Specifically, the Examiner finds that a person of ordinary skill in
the art would be motivated to combine Simon and Boese because of the
benefits of the offline calibration discussed in Boese (Ans. 10). Appellants
have not addressed this reason (see Appeal Br. 11) and thus have not
persuaded us that the Examiner's reasoning lacks a rational underpinning.
Accordingly, Appellants do not apprise us of error in the rejection.
For these reasons, we sustain the Examiner's decision rejecting claims
1, 7, 8, 11-38, 40-46, 48-53, and 55-58 as unpatentable over Simon, Boese,
and Strommer.
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Appeal2013-010825
Application 11/971,004
Rejections II-VI
Claims 2-6, 9, 10, 39, 45, 47, and 54 depend from claims 1and35,
respectively. Appellants argue that none of the additional cited references
teaches a plurality of intrinsic and extrinsic parameters associated with a
plurality of physical zoom settings, as recited in claims 1 and 35. Appeal Br.
11-12. As discussed supra, Appellants do not apprise us of error in the
Examiner's finding that Boese discloses the claim limitation reciting
determining a set of intrinsic and extrinsic parameters at a plurality of
physical zoom settings. Therefore, we sustain the Examiner's decision
rejecting claims 2---6, 9, 10, 39, 45, 47, and 54.
DECISION
The Examiner's rejections of claims 1-58 are 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).
AFFIRMED
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