CHILDREN'S NATIONAL MEDICAL CENTER

Patent Trials and Appeals BoardNov 2, 2021

2021003025 (P.T.A.B. Nov. 2, 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. 13/863,954 04/16/2013 Mahdi AZIZIAN 414683US8 9704 22850 7590 11/02/2021 OBLON, MCCLELLAND, MAIER & NEUSTADT, L.L.P. 1940 DUKE STREET ALEXANDRIA, VA 22314 EXAMINER KISH, JAMES M ART UNIT PAPER NUMBER 3799 NOTIFICATION DATE DELIVERY MODE 11/02/2021 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): OBLONPAT@OBLON.COM iahmadi@oblon.com patentdocket@oblon.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte MAHDI AZIZIAN, PETER C.W. KIM, AXEL KRIEGER, SIMON LEONARD, and AZAD SHADEMAN Appeal 2021-003025 Application 13/863,954 Technology Center 3700 ____________ Before MURRIEL E. CRAWFORD, MICHAEL C. ASTORINO, and TARA L. HUTCHINGS, Administrative Patent Judges. ASTORINO, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), the Appellant1 appeals from the Examiner’s decision to reject claims 1–14, 17, 19–30, 34, 36–39, and 41–43. 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. The Appellant identifies the real party in interest as “CHILDREN’S NATIONAL MEDICAL CENTER.” Appeal Br. 3. Appeal 2021-003025 Application 13/863,954 2 STATEMENT OF THE CASE Subject Matter on Appeal The Appellant’s invention “relate[s] generally to apparatuses and methods for tracking and control in surgery and interventional medical procedures.” Spec. ¶ 2. Claims 1, 19, and 34 are the independent claims on appeal. Claim 1, reproduced below, is illustrative of the claimed subject matter. 1. A system for tracking and control in medical procedures, the system comprising: a visual light source; one or more fluorescent markers deployed, by spraying or painting, on an organ under surgery; a fluorescent light source corresponding to one or more excitation wavelengths of the one or more fluorescent markers; and circuitry configured to control the visual light source and the fluorescent light source, capture and digitize resulting visual images and fluorescent images of the organ under surgery having the one or more fluorescent markers deployed thereon, the fluorescent images including at least one stereo pair, perform image segmentation of the fluorescent images based on pixel intensity values of the fluorescent images and relative to a threshold, said image segmentation generating binary representations of the one or more fluorescent markers within the fluorescent images, determine a location of the one or more fluorescent markers within the fluorescent images, determine, from the location of the one or more fluorescent markers within the fluorescent images and using the at least one stereo pair, a three dimensional position of the one or more fluorescent markers, the three dimensional position of the one or more fluorescent markers being estimated by triangulation, Appeal 2021-003025 Application 13/863,954 3 track the three dimensional position of the one or more fluorescent markers in real-time, said real-time tracking being at least initially based upon the binary representations of the one or more fluorescent markers within the fluorescent images, and project the tracked three dimensional position of the one or more fluorescent markers onto the visual images. Appeal Br., Claims App. References The prior art relied upon by the Examiner is: Name Reference Date Gerig et al. (“Gerig”) US 5,446,548 Aug. 29, 1995 Lazarev et al. (“Lazarev”) US 5,986,271 Nov. 16, 1999 Quaid, III (“Quaid”) US 2004/0024311 A1 Feb. 5, 2004 Frangioni US 2005/0182321 A1 Aug. 18, 2005 Kleen et al. “(Kleen”) US 2005/0203420 A1 Sept. 15, 2005 Zhao et al. (“Zhao ’634”) US 2009/0088634 A1 Apr. 2, 2009 Scott et al. (“Scott”) US 2009/0270678 A1 Oct. 29, 2009 Zhao et al. (“Zhao ’323”) US 2010/0166323 A1 July 1, 2010 Rejections2 I. Claims 1, 5, 6, 9–12, 17, 19–27, 30, 39, 41, and 43 are rejected under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Scott, Zhao‘323, Frangioni, Kleen, and Gerig. II. Claims 2–4, 7, 14, 20–22, and 29 are rejected under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Scott, Zhao ’323, Frangioni, Kleen, Gerig, and Zhao ’634. 2 The Examiner failed to list Frangioni as a prior art reference in the statements for Rejections II–V. See Non-Final Act. (mailed June 9, 2020) 13, 15, 16, 17. We understand this to be a minor oversight and update the statements to include the prior art reference. Appeal 2021-003025 Application 13/863,954 4 III. Claim 8 is rejected under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Scott, Zhao ’323, Frangioni, Kleen, Gerig, and Lazarev. IV. Claims 13, 28, and 42 are rejected under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Scott, Zhao ’323, Frangioni, Kleen, Gerig, and Quaid. V. Claims 34 and 36–38 are rejected under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Scott, Zhao ’323, Frangioni, Kleen, Gerig, Zhao ’634, and Quaid. ANALYSIS The Appellant argues that the Examiner’s rejection of independent claims 1 and 19 is inadequately supported because “even if the applied references were somehow found to be reasonably combinable, such hypothetical combination still would not arrive at all of the features of the independent claims.” Appeal Br. 21. This argument is based on the understanding that the Examiner’s rejection is based on a finding that Gerig teaches the claimed features concerning segmentation processing and triangulation methods. See id. at 23. The Appellant contends: One of ordinary skill in the art, however, would appreciate that Gerig does not describe performing image segmentation to generate a binary representation of the one or more fluorescent markers within the fluorescent image and, based on the binary representation, using triangulation to estimate a three dimensional position of the one or more fluorescent markers. Id. The Appellant submits that Gering teaches “us[ing] the original gray- scale image (i.e. non-binary image) rather than the binary image to identify targets and, ultimately, perform triangulation methods to determine three Appeal 2021-003025 Application 13/863,954 5 dimensional positions of the targets.” Appeal Br. 23–24. The remainder of the Appellant’s contentions are similar to the above. See id. at 19–24. The Appellant’s argument is not persuasive of Examiner error. The Examiner determines that “claims [1 and 19] never require that a three dimensional position of fluorescent markers are determined using a combination of the binary image and triangulation.” Ans. 4. We agree with the Examiner. In other words, the Appellant’s contentions are not commensurate with the scope of claims 1 and 19. See id. at 3–4. For example, claim 1 recites: circuitry configured to . . . perform image segmentation of the fluorescent images based on pixel intensity values of the fluorescent images and relative to a threshold, said image segmentation generating binary representations of the one or more fluorescent markers within the fluorescent images, determine a location of the one or more fluorescent markers within the fluorescent images, [and] determine, from the location of the one or more fluorescent markers within the fluorescent images and using the at least one stereo pair, a three dimensional position of the one or more fluorescent markers, the three dimensional position of the one or more fluorescent markers being estimated by triangulation. Appeal Br., Claims App. These limitations require, among other things, estimation, by triangulation, of a three dimensional position of the one or more fluorescent markers, from the location of the one or more fluorescent markers within the fluorescent images. The estimation of the three dimensional position of the one or more fluorescent markers is not claimed as being based on the binary representations of the one or more fluorescent markers within the fluorescent images, which is generated by image Appeal 2021-003025 Application 13/863,954 6 segmentation. Further, we determine that the Examiner’s rejection of claims 1 and 19, including findings with respect to Gerig, is adequately supported. See Ans. 3–4; Non-Final Act. 5–10; see also Ethicon, Inc. v. Quigg, 849 F.2d 1422 (Fed. Cir. 1988) (nonpatentability in the PTO is established by a preponderance of evidence); In re Caveney, 761 F.2d 671, 674 (Fed. Cir. 1985) (an examiner’s burden of proving nonpatentability is by a preponderance of the evidence). Thus, we sustain the Examiner’s rejection of independent claims 1 and 19, and their dependent claims under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Scott, Zhao ’323, Frangioni, Kleen, and Gerig. The Appellant provides separate headings for the other grounds of rejection (i.e., Rejections II–V). The argument under each heading refers back the alleged deficiency discussed above. See Appeal Br. 24–26. For reasons similar to those similar above, we determine that these arguments are not persuasive of Examiner error. Therefore, we likewise sustain the Examiner’s rejections under pre-AIA 35 U.S.C. § 103(a) of: claims 2–4, 7, 14, 20–22, and 29 as unpatentable over Scott, Zhao ’323, Frangioni, Kleen, Gerig, and Zhao ’634; claim 8 as unpatentable over Scott, Zhao ’323, Frangioni, Kleen, Gerig, and Lazarev; claims 13, 28, and 42 as unpatentable over Scott, Zhao ’323, Frangioni, Kleen, Gerig, and Quaid; and, claims 34 and 36–38 as unpatentable over Scott, Zhao ’323, Frangioni, Kleen, Gerig, Zhao ’634, and Quaid. Appeal 2021-003025 Application 13/863,954 7 CONCLUSION In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 5, 6, 9–12, 17, 19–27, 30, 39, 41, 43 103(a) Scott, Zhao ’323, Frangioni, Kleen, Gerig 1, 5, 6, 9–12, 17, 19–27, 30, 39, 41, 43 2–4, 7, 14, 20–22, 29 103(a) Scott, Zhao ’323, Frangioni, Kleen, Gerig, Zhao ’634 2–4, 7, 14, 20–22, 29 8 103(a) Scott, Zhao ’323, Frangioni, Kleen, Gerig, Lazarev 8 13, 28, 42 103(a) Scott, Zhao ’323, Frangioni, Kleen, Gerig, Quaid 13, 28, 42 34, 36–38 103(a) Scott, Zhao ’323, Frangioni, Kleen, Gerig, Zhao ’634, Quaid 34, 36–38 Overall Outcome 1–14, 17, 19–30, 34, 36–39, 41–43 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED