KONINKLIJKE PHILIPS N.V.

Patent Trials and Appeals Board

Jul 28, 2021

2021000394 (P.T.A.B. Jul. 28, 2021)

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.
15/535,443 06/13/2017 Michael GRASS 2014P01473WOUS 1290
24737 7590 07/28/2021
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
1600 Summer Street
5th Floor
Stamford, CT 06905
EXAMINER
ASGHAR, AMINAH
ART UNIT PAPER NUMBER
3793
NOTIFICATION DATE DELIVERY MODE
07/28/2021 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 MICHAEL GRASS, ROLAND PROKSA, and
SASCHA KRUEGER
____________

Appeal 2021-000394
Application 15/535,4431
Technology Center 3700
____________

Before CYNTHIA L. MURPHY, BRUCE T. WIEDER, and
KENNETH G. SCHOPFER, Administrative Patent Judges.

WIEDER, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134 from the
Examiner’s final rejection of claims 1, 4, 6, 16, and 17. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as
KONINKLIJKE PHILIPS N.V. (Appeal Br. 3.)
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CLAIMED SUBJECT MATTER
Appellant’s “invention generally relates to a perfusion imaging
device, a method for obtaining perfusion-pulsation parameters and a
computer program product for determining perfusion-pulsation parameters.”
(Spec. 1, ll. 7–9.)
Claims 1, 16, and 17 are the independent claims on appeal. Claim 1 is
illustrative. It recites:
1. A perfusion imaging system, comprising:
a computed tomography device configured to generate at
least one perfusion parameter from imaging a tissue of interest,
wherein the perfusion parameter includes image data of a
contrast agent passing through the tissue of interest;
a remote photoplethysmography device configured to
determine at least one blood pulsation parameter within an
examining beam projecting on the tissue of interest, wherein the
blood pulsation parameter includes a cardiac cycle; and
at least one processor configured to determine at least one
perfusion-pulsation parameter based on the perfusion parameter
and the blood pulsation parameter, wherein the perfusion-
pulsation parameter includes the perfusion parameter tagged
with the cardiac cycle in which the perfusion parameter is
acquired.

REJECTIONS
Claims 1, 4, 16, and 17 are rejected under 35 U.S.C. § 103 as
unpatentable in view of Grass (US 2013/0039559 A1, pub. Feb. 14, 2013)
and Jeanne (US 2011/0311119 A1, pub. Dec. 22, 2011).
Claim 6 is rejected under 35 U.S.C. § 103 as unpatentable in view of
Grass, Jeanne, and Choi (US 2014/0355735 A1, pub. Dec. 4, 2014).

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Application 15/535,443

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ANALYSIS
Obviousness is a legal conclusion involving a determination of
underlying facts.
Under § 103, the scope and content of the prior art are to be
determined; differences between the prior art and the claims at
issue are to be ascertained; and the level of ordinary skill in the
pertinent art resolved. Against this background, the obviousness
or nonobviousness of the subject matter is determined. Such
secondary considerations as commercial success, long felt but
unsolved needs, failure of others, etc., might be utilized to give
light to the circumstances surrounding the origin of the subject
matter sought to be patented.

KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007) (quoting Graham v.
John Deere Co. of Kansas City, 383 U.S. 1, 17–18 (1966)).
With regard to the scope and content of the prior art, the Examiner
finds that Grass discloses a computed tomography device (Final Action 3
(citing Grass ¶ 16)) “wherein the perfusion parameter includes image data of
a contrast agent passing through the tissue of interest” (id. (citing Grass
¶¶ 18, 3, 26). The Examiner also finds that Grass discloses a computer
processor configured to determine at least one perfusion-pulsation
parameter. (Id. at 3; see also Answer 4 (“Examiner has cited paragraphs
[0019] and [0025] of Grass, which disclose that the image data from which
the perfusion parameters are derived is imprinted with different timeframes
that correspond to the cardiac cycle or even a specific phase of interest of
each cycle from which they are obtained.”).)
Appellant argues that the Examiner improperly considers “the same
‘perfusion parameters of paragraph 0022 of Grass as both of two different
claimed elements being ‘at least one perfusion parameter’ of claim 1[] and
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‘at least one perfusion-pulsation parameter’ of claim 1.” (Appeal Br. 8
(emphasis omitted).)
Grass discloses:
A method of registering a 4D contrast enhanced image
data set, wherein the 4D contrast enhanced image data set
includes image data of the same volume of interest acquired at
different timeframes with changing contrast enhancement, the
volume of interest includes moving structure, and the different
timeframes correspond to a predetermined motion phase of
interest in different motion cycles of the moving structure, the
method, comprising: registering image data corresponding to a
plurality of the different timeframes with reference image from
one of the timeframes.

(Grass, Abstract.) By way of background, Grass discloses that “CT, as well
as other imaging modalities, can be used for perfusion imaging. Generally,
perfusion imaging is an imaging approach for capturing information
corresponding to the passage of fluid (e.g., blood, lymph, etc.) through
anatomical tissue and quantifying the information . . . .” (Id. ¶ 3.) Grass
further discloses that “[p]rospectively ECG gated CT has been used for the
myocardial perfusion imaging. With this technique, although a certain or
particular cardiac phase (e.g., systole, diastole, etc.) is selected for the
prospective gating, the motion states of the heart in the different time frames
of the cardiac cycle may differ.” (Id. ¶ 4.)
Specifically, Grass discloses “[a] motion monitor or sensor 114” that
“may include a cardiac and/or respiratory and/or other motion sensor” and
software to allow an “operator to select a scanning protocol (e.g., an ECG or
otherwise gated contrast enhanced protocol that gates scanning based on the
signal from the motion monitor 114” to initiate scanning. (Id. ¶ 18.) Grass
discloses an injector to inject a contrast material “for a contrast enhanced
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imaging procedure.” (Id.) Thus, we agree with the Examiner that Grass
discloses a CT device configured to generate image data of a contrast agent
passing through tissue of interest. (See Final Action 3.)
Grass also discloses that
[a] four dimensional (4D) data set can be reconstructed based on
data acquired at different timeframes. In one instance, each
timeframe may correspond to a different motion (e.g., cardiac,
respiratory, etc.) cycle, or a sub-portion of the different motion
cycles. The sub-portion may correspond to a predetermined
and/or selected (e.g., cardiac, respiratory, etc.) phase(s) of
interest within each cycle. With cardiac imaging, the phase may
be systole, diastole, or other phase.

(Id. ¶ 19.) Specifically, Grass discloses filtering the “4D image data that
includes image data acquired at different moments in time, or image data
corresponding to different timeframes. The illustrated filter 202 is
configured to spatially filter the image data and then temporally filter the
image data.” (Id. ¶ 25.) Grass discloses “an example of spatially filtering
4D image data corresponding to a prospectively ECG gated contrast
enhanced cardiac perfusion scan along spatial coordinates (x, y, and z)” as
well as “an example of temporally filtering the 4D image data temporal
coordinates (time).” (Id.) Thus, we agree with the Examiner that Grass
discloses the above-referenced image data filtered with different timeframes
corresponding to the cardiac phases, i.e., the cardiac cycle. (See Answer 4.)
Regardless, Appellant has argued that the Examiner improperly used
the same perfusion parameters of paragraph 22 of Grass as both the
perfusion parameter and the perfusion-pulsation parameter. (See Appeal
Br. 8.) We do not find this argument persuasive.
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Although the Examiner cites paragraph 22 of Grass, the Examiner’s
determination does not rely solely on the disclosures in paragraph 22.
Rather, the Examiner relies, in relevant part, on the disclosures in
paragraphs 18, 19, and 25 of Grass. (See Final Action 3.) Moreover,
paragraph 22, unlike the broader disclosures of paragraphs 18, 19, and 25,
discloses analyzing the registered image data “to generate perfusion maps
and/or perfusion parameters such as time to peak, area under the curve (i.e.,
blood volume passing through the tissue), local peak intensity or
enhancement, average rising slope, maximum up-slope, time to maximum
up-slope, etc.” (Grass ¶ 22.) Claim 1, however, recites that a perfusion
parameter need only “include[] image data of a contrast agent passing
through the tissue of interest.” It does not require, and the Examiner does
not rely on, the additional data analysis needed to generate the types of
perfusion maps/parameters recited in paragraph 22.2 Therefore, we do not
agree with Appellant that the Examiner used the same perfusion parameters
of paragraph 22 of Grass as both the perfusion parameter and the perfusion-
pulsation parameter. (See Appeal Br. 8.)

2 In the Reply Brief, Appellant seeks to present a new argument regarding
the timing of the processes of the analyzer 122, the reconstructor 118, and
the registration component 120 of Grass. (See Reply Br. 5–7.) This
argument was not raised in the Appeal Brief, is not responsive to a new
argument raised in the Answer, and Appellant has not shown good cause for
why we should consider this new argument. See 37 C.F.R. § 41.41(b)(2).
Regardless, we note that Appellant’s new argument depends on the
perfusion parameters not coming into existence until generation of the
perfusion maps/parameters of paragraph 22. However, for the reasons
already discussed regarding paragraph 22, we do not find the argument
persuasive.

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Nonetheless, we recognize the apparent confusion resulting from the
error on page 4 of the Examiner’s Answer. Specifically, Appellant argues:
The Examiner’s Answer on pages 3 states:
Examiner notes that the “perfusion parameters” disclosed
by Grass have been interpreted as only the “at least one perfusion
parameter” of claim 1.
In contrast, the Examiner’s Answer on pages 4 states:
Examiner has not interpreted the “perfusion parameters”
disclosed by Grass in paragraph [0022] as the “at least one
perfusion parameter” of claim 1.
These statements are inconsistent.

(Reply Br. 3 (italicized emphasis added).)
In the paragraph bridging pages 3 and 4 of the Answer, the Examiner
explains that
with respect to the “at least one perfusion-pulsation
parameter[ ... ], wherein the perfusion-pulsation parameter
includes the perfusion parameter tagged with the cardiac cycle in
which the perfusion parameter is acquired” of claim 1, Examiner
has cited paragraphs [0019] and [0025] of Grass, which disclose
that the image data from which the perfusion parameters are
derived is imprinted with different timeframes that correspond to
the cardiac cycle or even a specific phase of interest of each cycle
from which they are obtained. Therefore, Examiner has not
interpreted the “perfusion parameters” disclosed by Grass in
paragraph [0022] as the “at least one perfusion parameter” of
claim 1.

(Answer 3–4 (brackets in original).) It is clear from the context that the
Examiner was discussing the perfusion-pulsation parameter, and that the
Examiner’s reference to the “at least one perfusion parameter” should have
read “at least one perfusion-pulsation parameter.” Thus, while we agree that
the statements as written are inconsistent, we find this to be a harmless
typographical error.
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Appellant argues that none of the relied on paragraphs of Grass
“disclose a perfusion-pulsation parameter, let alone that the perfusion-
pulsation parameter is based on a perfusion parameter and a blood pulsation
parameter.” (Appeal Br. 10; see also id. at 11.) We do not find this
argument persuasive.
The Examiner finds that Appellant’s Specification discloses that
“blood pulsation parameters may be the phase of the cardiac cycle in which
the perfusion data was obtained.” (Answer 5 (quoting Spec. 5, ll. 8–9).)
The Examiner also finds that Appellant’s Specification discloses that “[a]n
example of a perfusion-pulsation parameter is for instance perfusion data
tagged or imprinted with a cardiac cycle in which the perfusion data was
acquired.” (Id. at 6 (quoting Spec. 6, ll. 5–7.)
Grass discloses that each timeframe of the image data may correspond
to a different sub-portion of, e.g., the cardiac cycle. (Grass ¶ 19.) And, we
agree with the Examiner that Grass also discloses “that the image data from
which the perfusion parameters are obtained is imprinted with the cardiac
cycle and cardiac phase timing information and additionally that the data
may be temporally filtered accordingly.” (Answer 6 (citing Grass ¶¶ 19,
25.)
In view of the above, we are not persuaded that the Examiner erred in
finding that Grass discloses a perfusion-pulsation parameter “based on the
perfusion parameter and a blood pulsation parameter that is consistent with
the description provided in Appellant’s disclosure and as recited in claim 1.”
(Id.) Therefore, we are not persuaded that the Examiner erred in rejecting
claim 1.
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Appellant provides separate topic headings in the Appeal Brief for
claims 16 and 17, claim 4, and claim 6. (Appeal Br. 11.) However,
Appellant relies on the arguments presented regarding claim 1. (Id. at 11–
12.) In view of the above, we are not persuaded of error with regard to the
rejections of claims 16, 17, 4, and 6.

CONCLUSION
The Examiner’s rejections of claims 1, 4, 6, 16, and 17 under
35 U.S.C. § 103 are affirmed.
Specifically:
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 4,
16, 17
103 Grass, Jeanne 1, 4,
16, 17

6 103 Grass, Jeanne, Choi 6
Overall
Outcome
1, 4, 6,
16, 17

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)(1)(iv).

AFFIRMED