Ex Parte Van Acht et al

Patent Trial and Appeal Board

Jul 27, 2017

13142447 (P.T.A.B. Jul. 27, 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.
13/142,447 09/07/2011 Victor Martinus Gerardus Van Acht 2009P00202WOUS 3570
24737 7590 07/31/2017
PTTTT TPS TNTFT T FfTTTAT PROPFRTY fr STANDARDS
EXAMINER
465 Columbus Avenue NGUYEN, HUONG Q
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NOTIFICATION DATE DELIVERY MODE
07/31/2017 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
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte VICTOR MARTINUS GERARDUS VAN ACHT and
NICOLAAS LAMBERT
Appeal 2015-006129
Application 13/142,447
Technology Center 3700
Before JENNIFER D. BAHR, GEORGE R. HOSKINS, and
ANTHONY KNIGHT, Administrative Patent Judges.
BAHR, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Victor Martinus Gerardus Van Acht and Nicolaas Lambert
(Appellants) appeal under 35 U.S.C. § 134(a) from the Examiner’s decision
rejecting claims 1—14. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
Appeal 2015-006129
Application 13/142,447
THE CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
matter.
1. Method for automatic alignment of a position and orientation
indicator with respect to a body part, the method comprising the
steps:
attaching a position and orientation indicator (2,4) to a
body part;
moving the body part and measuring movements of the
position and orientation indicator; and
using a control unit, determining the alignment of the
position and orientation indicator with respect to the body part
by exploiting physical constraints to motion.
REJECTIONS
I. Claims 1—3 and 5—13 stand rejected under 35 U.S.C. § 102(e) as
anticipated by Leitner (US 7,780,677 B2, issued Aug. 24, 2010).
II. Claims 1, 4, and 14 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Guimond (US 6,514,219 Bl, issued Feb. 4,
2003) and Edwards (US 5,533,531, issued July 9, 1996).
DISCUSSION
Rejection I—Anticipation
Independent claim 1 requires, in pertinent part, “using a control unit,
determining the alignment of the position and orientation indicator with
respect to the body part by exploiting physical constraints to motion.”
Claims App. 3.1 Similarly, independent claim 9 requires a control unit
1 References to the Claims Appendix (“Claims App.”) are to the Claims
Appendix in the REPLY TO NOTICE OF NON-COMPLIANT APPEAL
BRIEF (submitted Dec. 3, 2014).
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adapted to “determine the alignment of the position and orientation indicator
with respect to the body part from [measurements of movements of the
position and orientation indicator when a body part to which the position and
orientation indicator is attached is moved] by exploiting physical constraints
to motion.” Claims App. 4. Appellants argue that “Leitner does not use
constraints to motion to determine alignment (or registration) of position and
orientation indicators to a body part, but rather to determine possible
locations of the articular point of the joint.” Id. at 7. Appellants add that
“[i]n Leitner, the indicator is assumed to be properly aligned with a body
part, and constraints to motion are used to determine an articular point, not
alignment of a sensor with a body part.” Id. at 8.
Addressing claim 1, the Examiner finds that Leitner discloses
“exploiting physical constraints to motion to determine the alignment of the
position and orientation indicator with respect to the body part, i.e. [,] that the
alignment is correct and thus can determine the point of the joint.” Final
Act. 2 (citing Leitner, col.7,11. 23—28; col.7,1. 60-col. 8,1. 67). Addressing
claim 9, the Examiner finds that Leitner discloses a control unit adapted to
measure movements of the position and orientation indicator
when the body part is moved . . . and exploit physical constraints
to motion to determine the alignment of the position and
orientation indicator with respect to the body part from the
measured movements, i.e.[,] that the alignment is correct and
thus determine the point of the joint.
Id. at 4.
The Examiner explains that the act of moving a body part, such as the
knee in Leitner, which can only be bent or extended so far due to
physiological constraints, “reasonably constitutes exploiting physical
constraints to motion because it is implicit that the possible range of motion
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Application 13/142,447
to the joint, e.g.[,] physical constraints to motion, must be taken into
account.” Ans. 2—3. The Examiner adds that “Leitner indirectly determines
the alignment of the position and orientation indicator WHEN the point of
the joint is determined because the alignment of the indicator must be
correct for the determination of the location of the joint.” Id. at 3.
According to the Examiner, “[a]n assumption of proper alignment of the
indicator ... is adequate to anticipate the limitation of ‘determining the
alignment of the position and orientation indicator with respect to the body
part.’” Id. at 3^4.
The Examiner’s position that Leitner’s assumption that the indicators
are correctly aligned with the body part to which they are secured constitutes
a control unit determining an alignment of the indicators with respect to the
body part, as called for in claims 1 and 9, is unreasonable. As Appellants
point out, alignment of Leitner’s indicator with respect to the body part “is
determined by a harness.” Reply Br. 7 (citing Leitner, col. 4,11. 29—31, 35—
41). Unlike Appellants’ invention, which uses a control unit to determine,
from measurements and calculations, as disclosed on pages 10-14 of the
Specification, a mathematical alignment of the position and orientation
indicator with respect to a body part, Leitner’s control unit is unconcerned
with the particular locations or alignment of the markers relative to the body
part, so long as they do not shift once attached. See Leitner, col. 4,11. 29—31,
36-41 (disclosing attaching the markers using harnesses that prevent each
marker from shifting once attached so that the markers indicate true
locations of the leg portions and not a shift in the marker location relative to
the leg, thereby ensuring that any calculations based upon those marker
locations will be meaningful with the respect to the actual leg locations).
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For the above reasons, we do not sustain the rejection of independent
claims 1 and 9, or dependent claims 2, 3, 5—8, and 10-13, under 35 U.S.C.
§ 102(e) as anticipated by Leitner.
Rejection II—Obviousness
The Examiner finds that Guimond discloses a method as recited in
claim 1, with the exception that Guimond “does not expressly disclose
exploiting physical constraints to motion to determine the alignment of the
position and orientation indicator with respect to the body part.” Final Act.
6 (citing Guimond, Figs. 1—3; col. 11,11. 4-42). According to the Examiner,
Guimond discloses “that it is necessary to have proper indicator placement.”
Id. (citing Guimond, col. 11,11. 43—56). The Examiner finds that Edwards
teaches attaching a sensor
to a human joint to be monitored such that when motion of the
joint is detected which is not possible, i.e.[,] the output of the
sensor 18 is not constant in view of physical constraints, i.e. [,]
isolating the joint so that only extension/flexion motion is
possible, an alignment fault of the sensor is determined to be
present and thus in need of adjustment.
Id. (citing Edwards, col. 1,11. 1—30; col. 4,1. 58—col. 5,1. 30). The Examiner
then determines it would have been obvious to modify Guimond’s method
by exploiting constraints to motion “such that upon motion of the body part
being detected which is not possible in view of physical constraints, it is
determined that an alignment fault is present as taught by Edwards ... to
effectively correct for misalignment between the sensor and the body part
before the diagnostic procedure.” Id. at 6—7.
In particular, Edwards teaches measuring wrist movement using two
sensors 18, 20, each having two nonparallel sense axes defined by two
substantially nonparallel sense elements. Edwards, col. 4,11. 31—57. Sensor
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20 is positioned across the top of the wrist joint to measure extension and
flexion, as illustrated in Figures 11 and 12, while sensor 18 is positioned
approximately 90 degrees from sensor 20, near the side of the wrist joint, to
measure radial and ulnar deviation, as illustrated in Figures 13 and 14. Id.,
col. 4,11. 45-56.
Edwards teaches having a technician or specialized fixture isolate the
ulnar/radius joint so that the wrist may be moved only in an up-and-down
motion (i.e., extension/flexion), as shown in Figures 11 and 12. Id., col. 4,
11. 58—63. Readings from the two sense elements of sensor 18 are taken at
different, known degrees of flexion, and the readings are analyzed to
determine if the output of sensor 18 is constant while the wrist is moved in
the up-and-down direction. Id., col. 4,1. 63—col. 5,1. 2. If sensor 18 is
properly positioned, and the wrist is properly immobilized from movement
in the radial/ulnar direction, then the output from sensor 18 should not
change (i.e., should be constant) as the wrist is moved in the up-and-down
direction. Id., col. 5,11. 2—7. If the output of sensor 18 is not constant, then
the output is determined not to be “acceptable,” and sensor 18 therefore “is
electronically aligned” at step 50 of the Edwards method. Id., col. 5,11. 14—
18; Fig. 15.
Edwards teaches checking the alignment of second sensor 20 in much
the same way, by immobilizing the wrist to prevent up-and-down (i.e.,
extension/flexion) movement and taking readings as the wrist is moved in
the radial/ulnar direction. Id., col. 5,11. 20-25. If the output of sensor 20 is
determined not to be constant, sensor 20 “is electronically aligned” at step
58 of the Edwards method. Id., col. 5,11. 25—27; Fig. 15.
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Edwards determines the alignment by calculating a rotational constant
“e,” and applies that alignment value so that the output of the respective
sensor remains constant when moved about the axis not measured by that
sensor. Id., col. 5,1. 55—col. 6,1. 41. Once the rotational constant for each
sensor is determined, the output of the sensor is electronically aligned such
that as the wrist is moved in the direction in which the respective sensor is
not measuring movement, the output of the sensor is constant. Id., col. 6,11.
37-41.
Appellants argue that “Edwards describes a method for calibrating
and electronically aligning a sensor” and that “[t]he actual alignment of the
sensor to the body part is not determined, but rather the sensors are
mechanically calibrated while individual axes of motion are isolated and an
electronic alignment is performed mathematically after calibration.” Appeal
Br. 10.
Appellants’ characterization of Edwards — particularly that “[t]he
actual alignment of the sensor to the body part is not determined” — is
incorrect. Edwards’s process of determining whether the output of each of
sensors 18 and 20 remains constant when the wrist is moved about the axis
for which movement is not being measured by the respective sensor, and
calculating a rotational constant to electronically align the sensor so the
output remains constant during such movement, is a step of determining the
alignment of the sensor with respect to the body part (i.e., the wrist) by
exploiting the physical constraints to motion imposed by the technician or
specialized fixture, as called for in claim 1. Edwards, col. 4,1. 57—col. 5,1.
30.
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Appellants contend that “the electronic alignment of Edwards does
not determine the alignment of the position and orientation indicator with
respect to the body part,” but, rather, “applies mathematical formulas to
compensate for sensor misalignment.” Appeal Br. 11. This contention does
not apprise us of error because claim 1 neither precludes the use of
mathematical formulas to determine the alignment nor distinguishes
“alignment” from a value (or plurality of values) which compensates for
misalignment. Indeed, Appellants’ Specification describes “mathematically
aligning]” the orientation of the position and orientation indicator
coordinate frame to that of the local body part, and applies mathematical
formulas to do so. Spec. 10,11. 27—29; id. at 12,1. 2—14,1. 12 (including
equation (5)). Like the electronic alignment of Edwards, Appellants’
mathematical alignment compensates for sensor misalignment. See id. at 8,
1. 31—9,1. 2 (explaining that measurement of a movement which is
physically not possible “must be due to a position and orientation indicator
to body part alignment fault” and that the alignment must be updated to
compensate for this alignment fault); id. at 10,11. 27—29 (disclosing that the
alignment update is done “mathematically”). Appellants’ Specification
expresses the alignment in terms of quaternions, but does not set forth any
definition of “alignment” that would restrict its meaning to such an
expression. Spec. 11,1. 23—14,1. 12. Appellants do not persuasively explain
why determining the rotational constant to electronically align the sensors
with respect to the body part, as taught by Edwards, does not constitute
“determining the alignment of the position and orientation indicator with
respect to the body part,” as recited in claim 1.
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Appellants also submit that the Examiner errs in construing the claim
language ‘“constraints to motion’ to cover an external harness applied to a
body part which is not a physiological constraint.” Appeal Br. 11.
Appellants assert that “[i]n the [Specification, the term ‘constraints to
motion’ means physiological constraints, those constraints which exist in the
body parts of interest.” Id. Appellants’ assertion is incorrect. Appellants’
Specification expressly states:
The physical constraints to motion which are exploited can[,]
e.g.[,] be physiological motion constraints such as the directivity
of possible movements of a joint or another body part and/or
physical motion constraints with respect to the motion of the
position and orientation indicator which are caused by a specific
way of attachment of the position and orientation indicator
and/or further physical motion constraints.
Spec. 3,11. 6—11. Thus, “physical constraints to motion” as defined in
Appellants’ Specification is not limited to physiological constraints to
motion, as Appellants contend.
Claim 1 recites “exploiting physical constraints to motion,” not
physiological constraints to motion, and, therefore, encompasses the type of
externally imposed constraints taught by Edwards. Appeal Br. 14 (Claims
App.). Thus, Appellants’ argument is not commensurate with the scope of
claim 1.
For the above reasons, Appellants’ arguments fail to apprise us of
error in the rejection of claim 1. Accordingly, we sustain the rejection of
claim 1, as well as the rejection of claim 14, which Appellants group with
claim 1, under 35 U.S.C. § 103(a) as unpatentable over Guimond and
Edwards. Appeal Br. 9—11; see 37 C.F.R. § 41.37(c)(l)(iv) (providing that
when multiple claims subject to the same ground of rejection are argued as a
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group by the appellant, the Board may select a single claim from the group
to decide the appeal with respect to the group as to the ground of rejection
on the basis of the selected claim alone).
Claim 4 depends from claim 1, and additionally recites that “the
physical constraints to motion are exploited such that, upon a motion of the
body part being detected which is not possible in view of the physical
constraints, the control unit judges that an alignment fault is present.”
Appeal Br. 14 (Claims App.).
The Examiner finds, and we agree, that Edwards teaches this feature
by teaching determining that the output from sensor 18 is not constant when
the wrist is moved in the extension/flexion direction and prevented from
radial or ulnar deflection. See Final Act. 6. Appellants argue that “Edwards
does not judge that an alignment fault is present.” Appeal Br. 11. However,
we find that a determination of “N” (i.e., no) in step 46 in Edwards is a
judgment that an alignment fault is present, thereby triggering an electronic
alignment (step 50). Edwards, Fig. 15; col. 5,11. 14—18. Appellants argue
that “[t]he output is not indicative of a motion that is not possible, but rather
imperfect alignment of a sensor to a secondary axis of rotation.” Appeal Br.
12. Appellants are correct that an output that is not constant is indicative of
imperfect alignment of a sensor to a secondary axis of rotation, but such
output is also a (false) detection of motion that is not possible, and is
therefore an “alignment fault” as claimed.
Thus, Appellants’ arguments do not apprise us of error in the rejection
of claim 4. Accordingly, we sustain the rejection of claim 4 under 35 U.S.C.
§ 103(a) as unpatentable over Guimond and Edwards.
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DECISION
The Examiner’s decision rejecting claims 1—3 and 5—13 under
35 U.S.C. § 102(e) is REVERSED.
The Examiner’s decision rejecting claims 1, 4, and 14 under 35 U.S.C.
§ 103(a) 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).
AFFIRMED-IN-PART
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