VOLCANO CORPORATION

Patent Trials and Appeals Board

May 26, 2021

2020005805 (P.T.A.B. May. 26, 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.
14/594,599 01/12/2015 Anuja Nair 2014P01988US01 8426
24737 7590 05/26/2021
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
465 Columbus Avenue
Suite 340
Valhalla, NY 10595
EXAMINER
YANG, YI-SHAN
ART UNIT PAPER NUMBER
3793
NOTIFICATION DATE DELIVERY MODE
05/26/2021 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 ANUJA NAIR

Appeal 2020-005805
Application 14/594,599
Technology Center 3700
____________

Before DANIEL S. SONG, MICHAEL J. FITZPATRICK, and
LEE L. STEPINA, Administrative Patent Judges.

FITZPATRICK, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
final decision rejecting claims 1–5, 8, 10–13, 17, 19, and 23–33. Final
Act. 1. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 “Appellant” refers to the applicant as defined in 37 C.F.R. § 1.42.
Appellant identifies “Philips IGT Corporation, formerly known as Volcano
Corporation, [a]s the real party in interest” and states that “Philips IGT
Corporation is a subsidiary of KONINKLIJKE PHILIPS N.V.” Appeal
Br. 3.
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STATEMENT OF THE CASE
The Specification
“A primary concern associated with [endovascular aneurysm repair
or] EVAR is that, despite placement of the stent graft, blood may continue to
flow into the aneurysm, in what is commonly known as an endoleak.
Endoleaks arising after grafting may be attributed to an incomplete sealing
between the stent graft and the aortic wall or defects within the stent graft
itself.” Spec. 1–2. Appellant’s disclosure relates “to methods for detecting
endoleaks associated with aneurysm repair using systems having
visualization and flow detection capabilities.” Id. at 1.
The Claims
Claims 1–5, 8, 10–13, 17, 19, and 23–33 are rejected. Final Act. 1.
Claims 6, 7, 9, 14–16, 18, 20–22 are cancelled, and no other claims are
pending. Appeal Br. 17–22. Claims 1 and 17 are the independent claims on
appeal. Id. Claim 1 is illustrative and reproduced below.
1. A computerized system for presenting information
during an intraluminal procedure, said system comprising:
an interface to a sensor that is adapted to be inserted into
a vessel of a patient, wherein the sensor is operable to capture
intraluminal image data representing an intraluminal image of a
longitudinal view of the vessel and fluid flow data representing
a measurement value of a fluid flow at a location within the
patient; and
at least one processor configured to:
receive the intraluminal image data and the fluid
flow data from the sensor while the sensor is inside the
vessel of the patient;
generate output imagery based on the intraluminal
image data and graphically representing the fluid flow at
the location of the longitudinal view within the vessel so
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that the output imagery graphically presents a combined
image representing both a locality of the fluid flow and
the measurement value of the fluid flow at the location
within the patient;
automatically highlight an area of interest
including a potential endoleak in the output imagery; and
provide the output imagery representing the
combined image for presentation on a display.
Appeal Br. 17.
The Examiner’s Rejections
The following rejections, all under 35 U.S.C. § 103, are before us:
(1) claims 1, 2, 4, 8, 11–13, and 32 as unpatentable over Beebe,2
Dascal,3 Hunter,4 and Nempont5 (Final Act. 6);
(2) claims 17, 19, 24, 25, and 28–30 as unpatentable over Beebe,
Dascal, and Nempont (id. at 19);
(3) claims 3, 5, 10, and 33 as unpatentable over Beebe, Dascal,
Hunter, Nempont, and Arko6 (id. at 29);
(4) claims 23 and 31 as unpatentable over Beebe, Dascal, Nempont,
and Arko (id. at 38);
(5) claim 26 as unpatentable over Beebe, Dascal, Nempont,

2 Hugh G. Beebe et al., Biplane Color Flow Duplex Intravenous
lntravascular Ultrasound for Arterial Visualization, 5 J. ENDOVASCULAR
SURGERY (1998) 5:101–105 (“Beebe”).
3 US 2014/0270436 Al, published Sept. 18, 2014 (“Dascal”).
4 US 2015/0335290 Al, published Nov. 26, 2015 (“Hunter”).
5 US 2015/0294454 Al, published Oct. 15, 2015 (“Nempont”).
6 Frank R. Arko et al., Duplex Scanning After Endovascular Aneurysm
Repair: An Alternative to Computed Tomography, 17:2 SEMINARS IN
VASCULAR SURGERY 161–165 (June 2004) (“Arko”).
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Augustyn,7 and Bhatt8 (id. at 42); and
(6) claim 27 as unpatentable over Beebe, Dascal, Nempont,
Augustyn, Bhatt, and Iliceto9 (id. at 45).
DISCUSSION
Independent Claim 1
The Examiner concluded that the subject matter of claim 1 would
have been obvious over Beebe, Dascal, Hunter, and Nempont. Final Act. 6–
13. As relevant to Appellant’s arguments, claim 1 recites “automatically
highlight an area of interest including a potential endoleak in the output
imagery.” Appeal Br. 17. Appellant asserts (erroneously) that the rejection
relies exclusively on Nempont to disclose the subject matter of this
limitation. See Appeal Br. 11 (quoting the limitation and stating: “The Final
Office Action maintains that Nempont discloses such subject matter of claim
1.”). Appellant then argues that Nempont does not—and indeed cannot—
disclose such a feature. Id. at 11–12. This is so, Appellant argues, because
(1) Nempont uses an X-ray image to enhance an ultrasound image; (2) X-
rays are incapable of imaging soft tissue, and (3) an endoleak occurs in soft
tissue. Id.
The Examiner responds that the rejection does not rely exclusively on
Nempont to disclose the limitation in dispute. See Ans. 5 (“The claimed

7 Joseph S. Augustyn, Intravascular Sonography Assessment of a Type III
Endoleak of an Aortic Endograft, 28:3 JOURNAL OF DIAGNOSTIC MEDICAL
SONOGRAPHY 140–147 (April 2012) (“Augustyn”).
8 Shweta Bhatt, M.D., et al., Sonographic Evaluation of the Abdominal
Aorta, ULTRASOUND CLINICS 437–453 (2007) (“Bhatt”).
9 Sabino Iliceto et al., Color Doppler Evaluation of Aortic Dissection, 75:4
DIAGNOSTIC METHODS: DOPPLER ECHOCARDIOGRAPHY 748–755 (1987)
(“Iliceto”).
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features associated with the output imagery was rejected in the final Office
action based on the combined teaching of Beebe, Dascal, Hunter and
Nempont.”). In particular, the Examiner’s Answer explains:
Beebe, Dascal and Hunter combined teach[] that the output
imagery presents the area of interest including a potential
endoleak. Nempont is relied upon for the teaching that a
processor may be configured to automatically highlight an area
of interest in the output imagery. Nempont is not relied upon for
the teaching of the content of the area of interest, since Beebe,
Dascal and Hunter combined already teaches such a feature.
Id. at 10–11. This is an accurate characterization of the Final Action, which
states:
Therefore, it would have been obvious to one of the
ordinary skilled in the art at the time of the invention to have the
area of interest in the output imagery of Beebe and Dascal
combined employ further feature of “a potential endoleak” that
is taught in Hunter for the advantages of “continuous monitoring
and early detection ... [for]identification and early treatment of
this potentially fetal [sic, fatal] complication of stet graft
treatment” as “most endoleaks are asymptomatic to the patient,
a gradual or rapid increase in stet graft adluminal pressure is an
important early indicator that medical care should be sought”,
as suggested in Hunter, [0040].
Neither Beebe, Dascal nor Hunter teaches that the detected
area of interest is automatically highlighted.
However, in an analogous ultrasound image and data
processing and presentation field of endeavor, Nempont
explicitly teaches such a feature of “automatically highlight area
of interest in the output imagery” ([0005]: an image processing
for enhancing ultrasound images ... The central processing
unit is further configured to highlight at least a part of the
detected area in the ultrasound image).
Therefore, it would have been obvious to one of the
ordinary skilled in the art at the time of the invention to have the
output imagery of Beebe, Dascal and Hunter combined employ
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such features of “automatically highlight area of interest in the
output imagery” that is taught in Nempont for the advantages of
"generating a boosted ultrasound image, [that is] an
improvement for a user in the visibility of an object, as suggested
in Nempont, [0005].
Final Act. 12–13; see also id. at 47 (“Hunter is relied upon for the teaching
the identification of an area of interest being a potential endoleak for the
advantage of early detection and treatment. Nempont remains cited for the
teaching of highlighting such an area of interest on the output imagery.”).
Accordingly, Appellant’s arguments that Nempont itself fails to
disclose “automatically highlight an area of interest including a potential
endoleak in the output imagery,” as recited in claim 1 (emphasis added) is
not responsive to the Examiner’s rejection and, thus, fails to apprise us of
error. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (“Non-
obviousness cannot be established by attacking references individually
where the rejection is based upon the teachings of a combination of
references.”).
In its Reply Brief, Appellant belatedly raises new arguments. First,
Appellant argues that “Beebe merely discloses generating output imagery
without disclosing that there is an area of interest in the output imagery.”).
Reply Br. 2. However, that is an argument Appellant could have raised in its
Appeal Brief but chose not to. See Appeal Br. 10–12 (arguing claim 1 based
solely on purported shortcomings of Nempont); Final Act. 11 (“Beebe
teaches that the area of interest includ[es] an endoleak in the output
imagery.”).
Second, Appellant argues “Paragraph [0040] of Hunter, however, only
provides a ‘sensor warning’ of a potential endoleak, which is decoupled
from any generation of an image [and which] is significantly different than
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the visualization of the exact area of interest of the potential endoleak in
output imagery as required by claim 1.” Reply Br. 3. However, this too is
an argument Appellant could have raised in its Appeal Brief but chose not
to. See Appeal Br. 10–12 (arguing claim 1 based solely on purported
shortcomings of Nempont); Final Act. 11–12 (finding that Hunter ¶40
teaches “that an area of interest including a potential endoleak may be
detected” and concluding that it would have been obvious “to have the area
of interest in the output imagery of Beebe and Dascal combined employ
further feature of ‘a potential endoleak’ that is taught in Hunter”).
We will not consider these belated arguments. See Ex parte Borden,
2010 WL 191083 at *2 (BPAI 2010) (informative) (“Nor is the reply brief
an opportunity to make arguments that could have been made in the
principal brief on appeal to rebut the Examiner’s rejections, but were not.”);
see also 37 C.F.R. § 41.41(b)(2) (“Any argument raised in the reply brief
which was not raised in the appeal brief, or is not responsive to an argument
raised in the examiner’s answer, including any designated new ground of
rejection, will not be considered by the Board for purposes of the present
appeal, unless good cause is shown.”).
After presenting these belated arguments regarding Beebe and Hunter,
the Reply Brief states:
The final reference Nempont cannot cure the deficiencies
of the other cited references. Nempont cannot visually enhance
any tissue-related issues let alone the possibility of an endoleak.
Stated differently, Nempont cannot use any information related
to tissue, let alone endoleaks, for enhancement of output
imagery. Instead, Nempont enhances visualizations with
information only related to solid objects such as human-made
“tools” (e.g., probes) and not soft tissue (e.g., endoleaks).
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(Nempont at paragraph [0002].) Accordingly, what Nempont is
enhancing is not related to endoleaks as required by claim 1.
Reply Br. 3. These arguments are not responsive to the Examiner’s
rejection. The Examiner rejection’s rejection does not propose a
modification to Nempont, such as by employing its X-ray image to highlight
a potential endloeak; Appellant’s argument that such an application of X-ray
technology is an impossibility is irrelevant. The Examiner’s rejection relies
on Nempont for teaching, within the same medical imaging field, the
concept of automatically highlighting an area of interest in the obtained
image. The Examiner’s rejection relies on Beebe and Hunter for teaching
the same hypothetical skilled person that endoleaks are of interest. Final
Act. 11 (quoting Beebe ¶3), 11–12 (quoting Hunter ¶40).
Appellant does apprise us of error in the rejection of claim 1.
Accordingly, we affirm the rejection of claim 1.
Independent Claim 17
The Examiner concluded that the subject matter of claim 17 would
have been obvious over Beebe, Dascal, Hunter, and Nempont. Final
Act. 20–26. As relevant to Appellant’s arguments, claim 17 recites
“highlighting the endoleak in the output imagery.” Appeal Br. 20. As it
does with respect to claim 1, Appellant argues against the rejection of
claim 17 based solely on purported shortcomings of Nempont. Appeal Br.
12–13. In doing so, Appellant again attacks Nempont individually and in a
way that is not responsive to the Examiner’s rejection. See, e.g., Appeal Br.
13 (“As mentioned above with respect to overcoming the rejection of claim
1 based in part upon Nempont, Nempont is technically incapable of
highlighting a soft tissue endoleak.”). For reasons similar to those discussed
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above, Appellant does not apprise us of error in the rejection of claim 17.
Accordingly, we affirm the rejection of claim 17.
Dependent Claims 2–5, 8, 10–13, 19, and 23–33
Appellant argues against the rejections of the dependent claims solely
based on their ultimate dependency from either claim 1 or claim 17. Appeal
Br. 14. Thus, as Appellant does not apprise us of error in the rejection of
claim 1 or 17, it likewise does not apprise us of error in the rejections of
claims 2–5, 8, 10–13, 19, and 23–33. We affirm the rejections of claims 2–
5, 8, 10–13, 19, and 23–33.

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SUMMARY
Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/
Basis
Affirmed Reversed
1, 2, 4, 8,
11–13, 32
103 Beebe, Dascal,
Hunter, Nempont
1, 2, 4, 8,
11–13, 32

17, 19, 24,
25, 28–30
103 Beebe, Dascal,
Nempont
17, 19, 24,
25, 28–30

3, 5, 10, 33 103 Beebe, Dascal,
Hunter, Nempont,
Arko
3, 5, 10, 33
23, 31 103 Beebe, Dascal,
Nempont, Arko
23, 31
26 103 Beebe, Dascal,
Nempont,
Augustyn, Bhatt
26
27 103 Beeber, Dascal,
Nempont,
Augustyn, Bhatt,
Iliceto
27
Overall
outcome
1–5, 8, 10–
13, 17, 19,
23–33

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) (2019).
AFFIRMED