K¿hler, Max Oskar.

Patent Trials and Appeals Board

Oct 18, 2019

14385247 - (D) (P.T.A.B. Oct. 18, 2019)

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.
14/385,247 09/15/2014 Max Oskar Köhler 2011P02614WOUS 1635
24737 7590 10/18/2019
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
465 Columbus Avenue
Suite 340
Valhalla, NY 10595
EXAMINER
SMITH, RUTH S
ART UNIT PAPER NUMBER
3793
NOTIFICATION DATE DELIVERY MODE
10/18/2019 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):
katelyn.mulroy@philips.com
marianne.fox@philips.com
patti.demichele@Philips.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MAX OSKAR KÖHLER
Appeal 2019-002258
Application 14/385,247
Technology Center 3700
BEFORE WILLIAM A. CAPP, JILL D. HILL, and LEE L. STEPINA,
Administrative Patent Judges.
STEPINA, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant,1 Koninklijke Philipus N.v.,
appeals from the Examiner’s decision to reject claims 1, 4 and 7–21. Final
Act. 1. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART and enter a new ground of rejection pursuant
to 37 C.F.R. § 41.50(b).

1 We use the word “Appellant” to refer to “Applicant” as defined in 37
C.F.R. § 1.42(a). Appellant identifies the real party in interest as {{RPII}}.
Appeal Br. 1.
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CLAIMED SUBJECT MATTER
The claims are directed to an apparatus for making interpolated three-
dimensional thermal dose estimates using magnetic resonance imaging.
Claim 1, reproduced below, is illustrative of the claimed subject matter:
1. A medical apparatus comprising:
a magnetic resonance imaging system for acquiring
magnetic resonance thermometry data from a subject, wherein
the magnetic resonance imaging system comprises a magnet with
an imagmg zone;
a temperature control system operable for controlling the
temperature within a target zone located within the imaging
zone;
a memory for storing machine executable instructions;
a processor for controlling the medical apparatus, wherein
execution of the machine executable instructions causes the
processor to:
acquire the magnetic resonance thermometry data from
multiple slices within the imaging zone by controlling the
magnetic resonance imaging system;
interpolate a three dimensional thermal dose estimate in
accordance with the magnetic resonance thermometry data;
receive a treatment plan; and
control the temperature control system in accordance with
the treatment plan to control the temperature within the target
zone;
wherein the instructions cause the processor to acquire at
least part of the magnetic resonance thermometry data when
controlling the temperature control system.
Appeal Br. 17 (Claims App.).
REFERENCE
The prior art relied upon by the Examiner is:
Ozeki US 4,674,046 June 16, 1987
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Mougenot, C, Quantification of Near-Field Heating During
volumentric MR-HIFU Ablation, Med. Phys. 38(1), January 2011
(hereinafter “Mougenot”).
REJECTION
Claims 1, 4, and 7–21 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Mougenot and Ozeki.

OPINION
Claim 1
The Examiner finds that Mougenot discloses most of the elements
recited in claim 1, including an apparatus that uses magnetic resonance
imaging to acquire thermometry data from multiple slices within an imaging
zone, but Mougenot fails to disclose “interpolating a three dimensional
thermal dose estimate.” Final Act. 2–3. To address this deficiency, the
Examiner turns to Ozeki, finding this reference discloses “image processing
including interpolating a three-dimensional data set from acquired multi-
slice image data in order to obtain information between the slices which
cannot be obtained by data acquisition of the parallel slices.” Id. at 3 (citing
Ozeki 5:24–41). The Examiner reasons that it would have been obvious to
one skilled in the art to have modified the apparatus disclosed by Mougenot
to incorporate interpolation between slices in order to provide a more
detailed thermal dose estimation. Id.
Appellant argues that the Examiner erred in finding that Ozeki
discloses “inte[r]polating a three dimensional thermal dose estimate in
accordance with the magnetic resonance thermometry data.” Appeal Br. 7.
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Appellant argues that, instead, Ozeki discloses linear interpolation of image
data to generate an interpolated image. Id.
The Examiner responds that Ozeki is cited only to teach interpolating
a three-dimensional data set from acquired multi-slice image data in order to
obtain information between the slices which cannot be obtained by data
acquisition of the parallel slices. Ans. 5. Thus, according to the Examiner,
Appellant’s assertion that the rejection relies on an incorrect finding of fact
regarding Ozeki misinterprets the basis for the rejection set forth in the Final
Office Action. Id.
In reply, Appellant argues, “the Examiner has not cited any portion of
Ozeki or Mougenot that discloses that the interpolation operation of Ozeki is
applicable to the image acquisition operation of Mougenot,” and “the
motivation to combine references must come from the references themselves
(see MPEP §2143).” Reply Br. 3.
Appellant’s arguments are unavailing. As the Examiner correctly
notes, the rejection of claim 1 does not rely on Ozeki to teach interpolating a
three dimensional thermal dose estimate in accordance with the magnetic
resonance thermometry data. Thus, Appellant’s argument that Ozeki does
not teach this element does not address the rejection of claim 1.
As for Appellant’s argument that the motivation to combine the
references must come from the references themselves (see Reply Br. 8), this
assertion appears to rely on an outdated interpretation of the teaching,
suggestion, or motivation test. Contrary to Appellant’s contention, the
Examiner’s obviousness rejection must be based on
“some articulated reasoning with some rational
underpinning to support the legal conclusion of
obviousness” . . . . [H]owever, the analysis need not seek
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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.
KSR Int’l. Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007) (quoting In re
Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)). The Examiner finds that Ozeki
teaches image data processing including interpolation of three-dimensional
data from acquired multi-slice image data to obtain information between
slices that cannot be obtain by data acquisition of parallel slices. Final
Act. 3. Appellant does not contest this finding. See Appeal Br. 7–9. The
Examiner determines that, in light of this teaching in Ozeki, a person of
ordinary skill in the art would have found it obvious to incorporate
interpolation in the apparatus of Mougenot to obtain more detailed thermal
dose estimates. Final Act. 3. Again, Appellant does not persuasively
contest this conclusion. Accordingly, we sustain the rejection of claim 1 as
unpatentable over Mougenot and Ozeki.
Appellant next argues that the interpolation process carried out by the
apparatus recited in claim 1 is complex. Appeal Br. 7–9. Specifically,
Appellant states:
The present application recognizes that interpolat[ing] a
three dimensional thermal dose estimate in accordance with the
magnetic resonance thermometry data is a complex process that
entails integrating two distinct transformations: (1) conversion of
the magnetic resonance thermometry data to thermal dose data,
and (2) spatial interpolation. How these two distinct
transformations are integrated to (per claim 1) interpolate a three
dimensional thermal dose estimate in accordance with the
magnetic resonance thermometry data is not obvious, nor is it
made obvious by Ozeki’s linear interpolation of imaging data to
generate an interpolated image.
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Id. at 8.
We disagree with Appellant’s argument on this point because, as the
Examiner correctly points out (Ans. 5), this argument is not commensurate
with the scope of claim 1, which does not specify the two steps upon which
Appellant’s argument is based.
We have considered all of Appellant’s arguments in support of the
patentability of claim 1, but find the Examiner has the better position.
Accordingly, we sustain the rejection of claim 1.
Claims 4, 7, 8, and 11–13
Appellant makes no separate arguments in support of claims 4, 7, 8,
and 11–13. See Appeal Br. 7–16. Accordingly, these claims fall with
claim 1, from which they depend.
Claim 9
Claim 9 depends from claim 1 and requires that “the target zone has a
border, wherein execution of the instructions further causes the processor to
calculate a border thermal dose within a predetermined distance from at least
a portion of the border.” Appeal Br. 18 (Claims App.).
The Examiner finds that Figure 2 of Mougenot discloses the elements
required by claim 9. Final Act. 3.
Appellant contends that Figure 2 of Mougenot does not disclose
instructions that cause a processor to perform a calculation as recited.
Appeal Br. 9.
The Examiner responds by finding “a target zone would inherently
include a border and the thermal dose maps shown in figure 2 of Mougenot
. . . inherently include a calculation of a border thermal dose within a
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predetermined distance from at least a portion of the border (figure 2).”
Ans. 5.
Appellant has the better position on this point because the Examiner
does not adequately explain how Figure 2 of Mougenot discloses, explicitly
or inherently, instructions that perform a calculation of thermal dose at a
predetermined distance from a portion of a border. Assuming for the sake of
argument that a border is an inherent element of the target zone, the mere
fact that such a border exists does not mean that calculating a quantity (such
as a thermal dose) within a predetermined distance of this inherent border
will occur. We do not sustain the rejection of claim 9 as unpatentable over
Mougenot and Ozeki.
Claim 10
Claim 10 depends from claim 1 and requires that “the three
dimensional thermal dose estimate is only calculated within a predetermined
interpolation volume, wherein the interpolation volume comprises the
treatment zone.” Appeal Br. 18 (Claims App.).
The Examiner determines that, “in the absence of any showing of
criticality or unexpected result, the location of the interpolation volume
would have been obvious to yield predictable results.” Final Act. 3–4.
We agree with Appellant (see Appeal Br. 10; Reply Br. 5) that the
Examiner’s reasoning is inadequately supported, and, therefore, we reverse
the Examiner’s rejection of claim 10 as unpatentable over Mougenot and
Ozeki.
Nonetheless, we determine that a person of ordinary skill in the art of
ordinary skill in the art would have found it obvious to estimate a three-
dimensional thermal dose within a predetermined volume that comprises the
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treatment zone because, by definition, the treatment zone is the intended
target of the thermal energy. In other words, a person of ordinary skill in the
art would have had good reason to determine the thermal dose delivered to
the primary area of interest during treatment. As for limiting the three-
dimensional thermal dose estimate to calculation only within the
predetermined interpolation volume, a person of ordinary skill in the art
would have found it obvious to limit calculations in order to conserve
computational resources. In this regard, we note that claim 10 limits the
term “predetermined interpolation volume” only by requiring it to comprise
the treatment zone. See Appeal Br. 18 (Claims App.). Accordingly, for the
reasons discussed above, we enter a NEW GROUND OF REJECTION of
claim 10 as unpatentable over Mougenot and Ozeki.
Claims 14–21
Independent claim 14 recites a computer readable medium with
instructions that cause a processor to “interpolate a three dimensional
thermal dose estimate in accordance with the magnetic resonance
thermometry data by linear interpolation of the magnetic resonance
thermometry data followed by conversion of the interpolated magnetic
resonance thermometry data to interpolated thermal dose data.” Appeal
Br. 19 (Claims App.) (emphasis added).
Independent claim 15 recites a method including the steps of
“interpolating a three dimensional thermal dose estimate in accordance with
the magnetic resonance thermometry data by conversion of the magnetic
resonance thermometry data to thermal dose data followed by exponential
interpolation of the thermal dose data.” Id. at 20.
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Claims 16–20 depend, directly or indirectly, from one of claims 14
and 15. Id. at 20–22.
Claim 21 depends from claim 1 and recites similar functional
language to that quoted above from claims 14 and 15, but with the two
functions presented as alternatives. Id. at 22.
With respect to claims 14 and 15, the Examiner finds “the specific
interpolation process applied to the data would involve an obvious selection
of known interpolation processes to achieve the optimum result.” Ans. 6.
With respect to claim 21, the Examiner states, “in the absence of any
showing of criticality or unexpected result, the specific manner in which the
dose estimate is interpolated would have been a matter of design choice to
achieve optimum results.” Final Act. 4.
We agree with Appellant that the Examiner’s reasoning in the
rejection of claims 14–21 is not supported by rational underpinnings. See
Appeal Br. 10–12. The Examiner does not identify any teaching regarding
the specific order of steps recited in claims 14, 15, and 21. Further, to the
extent the Examiner’s rejection relies on design choice, Appellant’s
Specification explains the effect the different sequences and types of
interpolation/conversion have on the accuracy of the estimate obtained. See
Spec. 19:8–21:28, Figs. 9–12. Thus, Appellant has shown error in the
Examiner’s use of design choice to address the above-noted limitations.
Accordingly, we do not sustain the rejection of claims 14–21 as unpatentable
over Mougenot and Ozeki.

DECISION
The Examiner’s rejection is affirmed-in-part.
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More specifically,
We affirm the rejection of claims 1, 4, 7, 8, and 11–13 as unpatentable
over Mougenot and Ozeki.
We reverse the rejection of claims 9, 10, and 14–21 as unpatentable
over Mougenot and Ozeki.
We enter a new ground of rejection of claim 10 as unpatentable over
Mougenot and Ozeki.
DECISION SUMMARY
Claims
Rejected
Basis Affirmed Reversed New
Ground
1, 4, and 7–
21
§ 103; Mougenot,
Ozeki
1, 4, 7, 8,
and 11–13
9, 10, 14–
21

10 § 103; Mougenot,
Ozeki
10
Overall
Outcome
1, 4, 7, 8,
and 11–13
9, 10, 14–
21
10
TIME PERIOD FOR RESPONSE
This decision contains a new ground of rejection pursuant to
37 C.F.R. § 41.50(b). 37 C.F.R. § 41.50(b) provides “[a] new ground of
rejection pursuant to this paragraph shall not be considered final for judicial
review.”
37 C.F.R. § 41.50(b) also provides that the Appellant, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new ground of rejection to
avoid termination of the appeal as to the rejected claims:
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(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new Evidence relating
to the claims so rejected, or both, and have the matter
reconsidered by the examiner, in which event the proceeding
will be remanded to the examiner. . . .
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same Record. . . .

Further guidance on responding to a new ground of rejection can be
found in the Manual of Patent Examining Procedure § 1214.01.
AFFIRMED-IN-PART; 37 C.F.R. 41.50(b)