Ex Parte Vitek et alDownload PDFPatent Trial and Appeal BoardFeb 18, 201612535004 (P.T.A.B. Feb. 18, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/535,004 08/04/2009 23517 7590 02/22/2016 MORGAN, LEWIS & BOCKIUS LLP (BO) 1111 PENNSYLVANIA A VENUE, N.W. WASHINGTON, DC 20004 FIRST NAMED INVENTOR Shuki Vitek 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. INS-05117301742001 1640 EXAMINER FISHER, MICHAEL NAPOLEON ART UNIT PAPER NUMBER 3737 NOTIFICATION DATE DELIVERY MODE 02/22/2016 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): kcatalano@morganlewis.com patents@morganlewis.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte SHUKI VITEK, RITA SCHMIDT, and AMIR SEGINER Appeal2013-005754 Application 12/535,004 Technology Center 3700 Before CHARLES N. GREENHUT, MICHELLE R. OSINSKI, and MICHAEL L. WOODS, Administrative Patent Judges. OSINSKI, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Shuki Vitek et al. (Appellants) 1 appeal under 35 U.S.C. § 134 from the Examiner's final decision rejecting claims 1-19. We have jurisdiction under 35 U.S.C. § 6(b ). We REVERSE. 1 According to Appellants, the real party in interest is Insightec Ltd. App. Br. 2. Appeal2013-005754 Application 12/535,004 THE CLAIMED SUBJECT MATTER Claims 1, 16, 17, and 19 are the independent claims on appeal. Claim 1, reproduced below, is illustrative of the claimed subject matter on appeal. 1. A method for calibrating a magnetic-resonance-guided focused-ultrasound system, comprising: (a) providing a phased array of ultrasound transducers, the array having at least one magnetic resonance (MR) tracker associated therewith at a fixed relative position with respect thereto; (b) establishing MR coordinates of the MR trackers; ( c) for each of a plurality of sonication schemes, (i) creating an ultrasound focus, and (ii) establishing parameters indicative of MR coordinates of the ultrasound focus, wherein each sonication scheme is associated with a scheme-specific set of production errors; and ( d) based at least in part on the parameters, determining a geometric relationship between the ultrasound transducers and the MR trackers. EVIDENCE The Examiner relied on the following evidence in rejecting the claims on appeal: Kuhn Hynynen Mourad Camus us 5,339,282 US 2006/0052706 Al US 2006/0079773 Al US 2007/0016013 Al REJECTIONS Aug. 16, 1994 Mar. 9, 2006 Apr. 13, 2006 Jan. 18,2007 I. Claims 1-3 and 6-16 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Hynynen and Kuhn. Final Act. 3---6. II. Claims 4 and 5 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Hynynen, Kuhn, and Mourad. Id. at 6-7. 2 Appeal2013-005754 Application 12/535,004 III. Claims 17-19 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Hynynen, Kuhn, and Camus. Id. at 7-9. OPINION Rejection I The Examiner finds, inter alia, that Hynynen teaches "for each of a plurality of sonication schemes, (i) creating an ultrasound focus, and (ii) establishing parameters indicative of MR coordinates of the ultrasound focus," as well as "based at least in part on the parameters, determining a geometric relationship between the ultrasound transducers and the MR trackers." Final Act. 3 (citing Hynynen, Figs. 7-10). With respect to the establishment of parameters indicative of MR coordinates of the ultrasound focus, the Examiner elaborates that Hynynen's computer system 30 identifies the location (i.e., foci) of target tissue 24, monitors movement of target tissue 24 using MRI data 28, and tracks the progress of sonication. Ans. 10 (citing Hynynen i134). The "Examiner interprets this as creating an ultrasound focus to identify the foci (i.e., location) of the target tissue and to establish[] parameters indicative of MR coordinates of the ultrasound focus." Id. Appellants argue that this merely shows that Hynynen identifies MR coordinates of target tissue, not MR coordinates of the ultrasound foci. Reply Br. 4--5. Even assuming arguendo that Hynynen's identification and monitoring of target tissue results in the establishment of parameters indicative of MR coordinates of the ultrasound focus (under an assumption that the ultrasound focus would be focused on the target tissue), we are persuaded by Appellants' subsequent argument that the Examiner has not adequately explained how these established parameters indicative of MR 3 Appeal2013-005754 Application 12/535,004 coordinates of the target tissue are used, at least in part, in determining a geometric relationship between the ultrasound transducers and the MR trackers as required by the claims. With respect to the step of "based at least in part on the parameters [indicative of MR coordinates of the ultrasound focus], determining a geometric relationship between the ultrasound transducers and the MR trackers, the Examiner's position is that: Hynynen teaches wherein the coordinate registration function 120 registers the coordinates of the ultrasound array 20 with the coordinates of the MRI data 28. Then, the target-tissue identification function 122 identifies the image space coordinates of the target tissue. These coordinates are translated from image space 264 to array space 260 by the coordinate registration function 120 [] and wherein an image marker 48 has known coordinates 262 denoted by Q, where Q=[ x y z] is referenced to the array-coordinate system. The coordinate registration function 120 begins by storing the coordinates 262 in memory (step 150). An MRI image is taken of the image marker 48 and its surroundings. The computer system 30 receives and stores the resulting MRI data (step 152) and identifies the image marker (step 154) []. Examiner interprets this as determining a geometric relationship between the ultrasound transducers and the MR trackers. Ans. 11-12 (citing Hynynen i-fi-141, 42). Appellants argue that this description in Hynynen is simply "a conventional system" in which MR coordinates of target tissue are identified and then transformed to array coordinates (Reply Br. 4) using a calculated "transformation matrix that determines the relationship between the array- coordinate system and the [MR] image-coordinate system based on already- known array coordinates and measured image coordinates of an image marker" (App. Br. 8) (citing Hynynen i1 42) (emphasis omitted). Appellants 4 Appeal2013-005754 Application 12/535,004 further argue that "determining a geometric relationship based on the location of an image marker is entirely unrelated to determining a geometric relationship based on the location of ultrasound foci generated by multiple sonication schemes." Id. (emphasis omitted). We agree with Appellants. Even assuming arguendo that the Examiner has reasonably identified in Hynynen a determination of a geometric relationship between ultrasound transducers and MR trackers, this geometric relationship is determined based on known array coordinates of the transducer, the measured MR coordinates of the image marker, and a transformation matrix that "relates the array- coordinate system to the image-coordinate system." Hynynen i-f 42. The Examiner has not adequately explained, nor do we discern from our review of Hynynen, how Hynynen discloses that the determined geometric relationship between the ultrasound transducers and Hynynen's image markers is based in any part on the MR coordinates of an ultrasound focus (or the MR coordinates ofHynynen's target tissue which we assume arguendo aligns with the ultrasound focus). The Examiner also does not explain how Kuhn might remedy this deficiency. See Final Act. 4; see also Ans. 4--5. For the foregoing reasons, we do not sustain the Examiner's rejection of independent claims 1 and 16, and claims 2, 3 and 6-15, which depend therefrom, under 35 U.S.C. § 103(a) as unpatentable over Hynynen and Kuhn. Rejections II and III Claims 4 and 5 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Hynynen, Kuhn, and Mourad, and claims 17-19 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Hynynen, Kuhn, and 5 Appeal2013-005754 Application 12/535,004 Camus. Final Act. 6-9. The rejections of these claims rely on the Examiner's erroneous finding that Hynynen teaches determining a geometric relationship between ultrasound transducers and MR trackers based at least in part on parameters or MR imaging data that is indicative of MR coordinates of the ultrasound focus. Id. The Examiner does not explain how Mourad or Camus cures this underlying deficiency. Id. Accordingly, for the reasons discussed supra, we do not sustain, under 35 U.S.C. § 103(a), the Examiner's rejection of claims 4 and 5 as unpatentable over Hynynen, Kuhn, and Mourad, nor claims 17-19 as unpatentable over Hynynen, Kuhn, and Camus. DECISION The Examiner's decision to reject claims 1-19 is REVERSED. REVERSED 6 Copy with citationCopy as parenthetical citation