Ex Parte Summerer et al

Patent Trial and Appeal Board

Jun 20, 2017

13059003 (P.T.A.B. Jun. 20, 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.
13/059,003 04/11/2011 Andreas Summerer FUBO-04 5655
26875 7590 06/22/2017
WOOD, HERRON & EVANS, LLP
2700 CAREW TOWER
441 VINE STREET
CINCINNATI, OH 45202
EXAMINER
HOLLM, JONATHAN A
ART UNIT PAPER NUMBER
3731
NOTIFICATION DATE DELIVERY MODE
06/22/2017 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):
usptodock@whe-law.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANDREAS SUMMERER, THOMAS NEFF,
TOBIAS ORTMAIER, and MARC-WALTERUEBERLE1
Appeal 2016-005423
Application 13/059,003
Technology Center 3700
Before ULRIKE W. JENKS, RYAN H. FLAX, and
TIMOTHY G. MAJORS. Administrative Patent Judges.
JENKS, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) involving claims directed
to a system and method of using a robot for medical procedures. The
Examiner rejects the claims as obvious. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
1 According to Appellants, the Real Party in Interest is KUKA Roboter
GmbH. Appeal Br. 3.
Appeal 2016-005423
Application 13/059,003
STATEMENT OF THE CASE
Claims 14—29 are on appeal and can be found in the Claims Appendix
of the Appeal Brief. Claim 14 is representative of the claims on appeal, and
reads as follows:
14. A method of operating a medical robot used for treating a
patient, the method comprising:
defining a work region of the medical robot relative to a
position, or a position and orientation, of at least a portion of the
patient, the medical robot including a base, a robot arm coupled
to the base, a plurality of axes, each axis of the plurality of axes
including a drive for moving the robot arm, a control device in
communication with the drives, and a medical instrument
attached to the robot arm;
wherein the work region is the permissible zone in which
the robot arm may travel such that a tool center point of the
medical robot and the medical instrument are only able to be
moved within a portion of the patient to be treated;
detecting a change in either the position, or the position
and orientation, of the portion of the patient relative to a base of
the medical robot;
automatically adjusting the work region based on the
detected change in position, or position and orientation, of the
portion of the patient so that the work region remains unchanged
relative to the changed position, or position and orientation, of
the portion of the patient, and;
moving the medical instrument within the portion of the
patient to be treated.
Claims 22 and 28, the only other independent claims, are directed to
products, namely, a medical robot and a medical workstation.
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Application 13/059,003
Appellants request review of the following rejections:
I. Claims 14—18, 21—23, and 25—29 under 35 U.S.C. § 103(a) as
unpatentable over Smith,2 Suita,3 and Cosman.4
II. Claims 19 and 20 under 35 U.S.C. § 103(a) as unpatentable
over Smith, Suita, Cosman, and Harris.5
Ill Claim 24 under 35 U.S.C. § 103(a) as unpatentable over Smith,
Suita, Cosman, and Evans.6
I. Obviousness over Smith, Suita, and Cosman
The issue is: Whether the evidence of record supports the Examiner’s
rejection for obviousness.
Findings of Fact
We adopt the Examiner’s findings concerning the scope and content
of the prior art. For emphasis only we high highlight the following:
FF1. Smith teaches a medical robot system for performing invasive
procedures that is controlled by a guidance system. Smith, Abstract.
Figure 1 of Smith, reproduced below, shows such a guidance system.
2 Smith et al., US 2008/0154389 Al, published June 26, 2008 (“Smith”).
3 Suita et al., US 2004/0249508 Al, published Dec. 9, 2004 (“Suita”).
4 Cosman, US 6,405,072 Bl, issued June 11, 2002.
5 Harris et al., US 2004/0128026 Al, July 1, 2004 (“Harris”).
6 Evans et al., US 2005/0107808 Al, published May 19, 2005 (“Evans”).
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Application 13/059,003
Figure 1 shows radiofrequency transmitters (RF) that are located on
the robot 10 and patient 18. Sensors 12 are located in the room and in
communication with the computer. Smith 139. “Surgical instrument
35 is removably attached to end effectuator 30.” Smith 145.
The computer (not pictured) is also in communication
with surgical robot 15, and moves surgical robot 15
according to the preplanned trajectory entered prior to the
procedure. The position of surgical instrument 35 is
dynamically updated so that surgical robot 15 is aware of
the location of surgical instrument 35 location at all times
during the procedure.
Smith 140; see also H 93—107.
FF2. Smith teaches “a defined ‘safe zone’ around the surgical area within
which the surgical device must stay.” Smith 193. The physician
manually controls the device and if the physician moves the robot arm
outside the designated safe zone the “surgical robot stiffens the arm
[of the device] so that the physician cannot move the instrument in
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Application 13/059,003
any direction that would move the surgical device outside the safe
zone.” Smith 193.
FF3. Smith teaches that “the operator inputs a desired safe zone on the
anatomical image taken in step 410. In an embodiment of the
invention, the operator uses an input to the computer to draw a safe
zone on a CT scan taken of the patient in step 410.” Smith 196.
“[T]he computer determines whether the surgical device attached to
the end effectuator of the surgical robot is within a specified range of
the safe zone boundary.” Smith 1106.
FF4. Suita teaches setting a virtual safety barrier range for robotic
operations. “If the measured value exceeds the range with margin k
(‘virtual safety barrier’) at any of the points, the control device
conducts a stop control (step 807).” Suita 1 59. “[T]he degree of
freedom of movement of the robot arm can be adjusted by adjusting
the margin k. Thus, this method is effective in cases where the robot
is operated in environments where only a slight error in position or
posture cannot be tolerated.” Suita 161.
Principle of Law
“If the claim extends to what is obvious, it is invalid under § 103.”
KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 419 (2007).
Analysis
After reviewing the evidence and arguments, we conclude that the
Examiner has the better position. We affirm the rejection for the reasons
given in the Examiner’s Answer and Final Office Action mailed March 26,
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2015. Based on the record as a whole, we conclude the Examiner properly
rejected the claims for obviousness, and we adopt the Examiner’s reasoning
as our own. We provide the following discussion to address certain
contentions by Appellants.
Briefly, Appellants contend that the Examiner relied on hindsight to
arrive at the present invention in view of the prior art. Appeal Br. 8; see
Reply Br. 4—5. We are not persuaded and agree with the Examiner’s
response that the rejection “takes into account only knowledge which was
within the level of ordinary skill at the time the claimed invention was made,
and does not include knowledge gleaned only from [the Appellants’]
disclosure.” Ans. 4 citing In re McLaughlin, 443 F.2d 1392, 1395 (CCPA
1971). Appellants have not directed us to teachings that could only have
been gleaned from Appellants’ disclosure and was also necessary to arrive at
a conclusion of obviousness. Accordingly, we are not persuaded that
hindsight was required to arrive at the claimed invention.
Appellants contend that the cited references fail to teach a work
region as claimed. Specifically, Appellants argue, “[t]here is no teaching or
suggestion of a medical instrument that is moved within a patient.” Appeal
Br. 10; see also Reply Br. 4 (“There is no teaching or suggestion in Smith
’389 to define a work region within which the entirety of a robot arm may
move so that the medical instrument is maintained within a defined portion
of the patient”).
We are not persuaded. Smith teaches a robotic surgical system that
moves a surgical instrument along a programmed trajectory, and is able to
update the position of the “surgical instrument 35 location at all times during
the procedure.” FF1; see Ans. 3. Smith describes using a safety zone that
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allows the physician movement of the surgical tool within the zone but
prevents movement of the tool into areas outside the zone. FF2; Ans. 3.
Smith teaches that the safe zone is input into the system by an operator and
often follows the anatomical image captured with another diagnostic device
such as a computerized tomography (CT) scan. FF3. “[T]he computer
determines whether the surgical device attached to the end of the effectuator
of the surgical robot is within a specified range of the safe zone boundary.”
FF3. Smith teaches that the medical instrument is only able to move within
the safety zone boundary in the patient’s body, in other words, the portion of
the patient’s anatomy that is being treated with the tool.
Suita similarly teaches setting a safety barrier range for robotic
operations. In Suita the robotic arm movements are limited to be within the
identified boundaries for safety purposes, so that when the device moves
outside the set boundary there is a control stop to prevent movement outside
the defined area. FF4.
We agree with the Examiner’s conclusion that the claimed “work
region,” as read in light of the Specification (see Spec. 4 (“[a]s a rule, only a
partial region of the body of the living being is treated, so that the work
region of the robot according to the invention may be chosen so that the tool
center point, and thus possibly the medical instrument moved by the robot
according to the invention, is essentially only able to move within this partial
region”), is reasonably interpreted “as the permissible zone in which the
robot arm may travel.” Final Act 4. In light of this interpretation, we agree
with the Examiner’s conclusion that “the medical robot and the medical
instrument are only able to be moved within a portion of the patient” that
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encompasses the safe zone, or defined area, for treatments as taught in
Smith. Id.
We conclude that the evidence cited by the Examiner supports a prima
facie case of obviousness with respect to claim 14, and Appellants have not
provided sufficient rebuttal evidence or evidence of secondary
considerations that outweighs the evidence supporting the Examiner’s
conclusion of obviousness. As Appellants do not argue the claims
separately, claims 15—18, 21—23, and 25—29 fall with claim 14. 37 C.F.R.
§41.37 (c)(l)(iv).
II. and III Obviousness over Smith, Suita, Cosman, in view of Harris or
Evans.
With respect to the rejection of claims 19, 20, and 24 that rely on the
combination of Smith, Suita, Cosman, and either Harris or Evans,
Appellants do not make additional arguments other than stating that neither
Harris nor Evans “cure the deficiencies” of Smith, Suita, and Cosman.
Appeal Br. 12; see Reply Br. 5. Therefore, for the reason discussed above,
and those set out in the Answer and Final Action, we find that the Examiner
did not err in rejecting claims 19, 20, and 24.
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SUMMARY
We affirm the rejection of claim 14 under 35 U.S.C. § 103(a) over
Smith, Suita, and Cosman. Claims 15—18, 21—23, and 25—29 were not
separately argued and fall with claim 14.
We affirm the rejection of claims 19 and 20 under 35 U.S.C. § 103(a)
over Smith, Suita, Cosman, and Harris.
We affirm the rejection of claim 24 under 35 U.S.C. § 103(a) over
Smith, Suita, Cosman, and Evans.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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