Ex Parte Averbuch

Patent Trial and Appeal Board

Jan 25, 2019

13286977 (P.T.A.B. Jan. 25, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/286,977
107146 7590
Covidien LP
5920 Longbow Drive
Mail Stop A36
11/01/2011
01/29/2019
Boulder, CO 80301-3299
FIRST NAMED INVENTOR
Dorian A verbuch
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.
H-IL-00045DIV3(l988-45DIV 8506
EXAMINER
TRAN,THOQ
ART UNIT PAPER NUMBER
3791
NOTIFICATION DATE DELIVERY MODE
01/29/2019 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):
docket@cdfslaw.com
rs. patents. two@medtronic.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DORIAN A VERBUCH 1
Appeal2017-006431
Application 13/286,977
Technology Center 3700
Before DONALD E. ADAMS, JEFFREY N. FREDMAN and
ROBERT A. POLLOCK, Administrative Patent Judges.
POLLOCK, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) involving claims to a
method of navigating a probe through airways of the lungs of a patient,
which have been rejected as obvious. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.
1 According to Appellant, the real party-in-interest is Coviden LP, and the
ultimate parent of Coviden LP is Medtronic, plc. App. Br. 1.
Appeal2017-006431
Application 13/286,977
STATEMENT OF THE CASE
"The method of the present invention relates generally to the accurate
registration of a detected sensor located in moving lungs to a static image of
the lungs." Spec. ,r 2. This method
provides a representative modeling of the human lungs, based
on statistical anatomical data, which can be tailored to the size
and shape of an individual patient. The method of the present
invention also utilizes a compilation of statistical anatomical
data regarding lung movement in order to predict the movement
of an individual patient's lungs during the breathing cycle.
Id. ,I 8.
The Specification describes embodiments of the invention with
respect to the reference numbers of Figure 1. For example, "[a]t 80 the
procedure begins on the patient. The patient movement sensors are placed
on or in the patient. The physician intubates the patient and the LG
[locatable guide] is inserted and tracked. The CT scan from 40 is displayed
and registered to the superimposed LG display." Id. ,r 26. "[T]he data
acquired at 80 may be used to determine which CT scan most accurately
depicts the configuration of the lungs and can thus be superimposed onto the
LG display." Id. ,I 29.
As the LG is being inserted, the location( s) of the patient
location sensors are constantly monitored and entered into the
algorithm to provide three dimensional location data on the
AOI(s) [areas of interest]. This information is then used at 90 to
ensure that the display is modified such that the LG display
maintains an accurate registration with the CT scan, despite the
movement of the lungs, which cause the LG to move.
Id. ,I 27.
The measured location of the LG can be corrected using the data
acquired at 80. Rather than displaying the real-time data
acquired by the LG system, which represents the position of the
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Appeal2017-006431
Application 13/286,977
LG in relation to a magnetic field filling the AOI, the real-time
data is manipulated so the LG appears in the correct location on
the CT scan, which may be static or dynamic. In this way the
tool may be localized more correctly inside the CT volume. The
geometric model derived from the CT volume can thus be more
accurately represented relative to the tool inside the body.
Id. ,I 30.
Claims 15 and 17-22 are on appeal. Claim 22, the only independent
claim at issue, is reproduced below with key limitations emphasized:
22. A method of navigating a probe through airways of
the lungs of a patient comprising:
measuring patient characteristics;
imaging the patient to acquire a plurality of images;
collecting data regarding positions of sensors on the
patient's body while the patient is breathing;
developing a mathematical model of said patient's
breathing cycle using said data;
inserting a probe into said patient;
detecting a position of the probe;
selecting one of said plurality of acquired images
corresponding to a position of said patient's lungs in said
patient's breathing cycle using said mathematical model;
displaying said selected one of said plurality of acquired
images;
displaying a real-time indication of a position of said probe
on said displayed one of said
plurality of acquired images as said probe is navigated
through an airway of said patient; and
using said mathematical model to manipulate said real-
time indication such that said probe appears in the correct
location on said displayed one of said acquired plurality of
images in accordance with the position of said patient's lungs in
said patient's breathing cycle.
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Appeal2017-006431
Application 13/286,977
The Examiner rejects claims 15, 17, 19, and 22 under pre-AIA 35
U.S.C. § I03(a) as being unpatentable over Soper2 and Edwards. 3 Fin. Rej.
5-10.
The Examiner rejects claims 18 and 21 under pre-AIA 35 U.S.C.
§ I03(a) as being unpatentable over Soper, Edwards, and Vilsmeier. 4 Id. at
8-10.
The Examiner rejects claim 20 under pre-AIA 35 U.S.C. § I03(a) as
being unpatentable over Soper, Edwards, and Armato. 5 Id. at 10.
ANALYSIS
The Examiner rejects claims 15 and 17-22 over, inter alia, Soper and
Edwards. Appellant argues that the cited art fails to teach or suggest the step
of "using said mathematical model to manipulate said real-time indication
such that said probe appears in the correct location on said displayed one of
said acquired plurality of images in accordance with the position of said
patient's lungs in said patient's breathing cycle," as recited in independent
claim 22. See App. Br. 3. As Appellant does not argue the independent
claims separately, we limit our discussion to claim 22. In sum, we adopt the
Examiner's findings of fact and reasoning regarding the scope and content of
the prior art. (Final Act. 2-1 O; Advisory Action dated 6/29/2016 at 2; Ans.
2--4) and agree that claim 22 is obvious over Soper and Edwards.
2 Soper et al., US 2006/0149134 Al, published July 6, 2006.
3 Edwards et al., US 2009/0281566 Al, published Nov. 12, 2009.
4 Vilsmeier, US 2003/0185346 Al, published Oct. 2, 2003.
5 Armato et al., US 2003/0086599 Al, published May 8, 2003.
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Appeal2017-006431
Application 13/286,977
With respect to the disputed limitation, Soper teaches a system for
guiding an endoscope within a lung during a bronchoscopy procedure
including a continually updated visual display showing the present position
and orientation of the endoscope tip in a 3-D graphical airway model
generated from image reconstruction. Soper, Abstact. "The visual display
also includes windows depicting a virtual fly-through perspective and real-
time video images acquired at the head of the endoscope." Id.
According to the Examiner, although "it is not entirely clear if the
virtual fly through [ of Soper] selects a single image ... Edwards teaches a
method where [the] location can be indicated by identifying a single image
from a plurality during at least one period of the respiration cycle." Fin. Rej.
6-7 (citing Edwards ,r 32). The Examiner further finds that Edwards'
system chooses an image associated with a particular
dataset/vector (Fig. 5, steps 98, 101, 102), but after this image is
selected and displayed (102, Fig. 5) the system receives the
position of the instrument reference marker (step 106, this
reference marker is located on the instrument and its position is
determined in space). The position of the instrument is then
transformed to image space and then a representation of the
instrument is superimposed on the instrument (see [0085] -
[0087]). Therefore Edwards teaches similarly to Soper the step
of using a mathematical model to adjust the location of the probe
on the selected image as claimed ( the mathematical model in this
case is the transformation process). Edwards also notes that
images corresponding to various phases of breathing are captured
initially as well (see [0050]), such images being necessary to
accurately place the probe during respiration. This is all
performed in real time (see [0088]). It would have been obvious
to a person having ordinary skill in the art at the time of the
invention to modify Soper's image guidance fly through to select
the image and accurately place a marker on the image in real time
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Appeal2017-006431
Application 13/286,977
based on a mathematical model, as taught by Edwards, for
assisting a doctor in navigating the lungs of a patient.
Id. at 7.
According to Appellant, the Examiner misunderstands "the
differences between the registration steps taught by Edwards and the
manipulation of the location of the probe as recited in independent claim
22." Reply Br. 2. In particular, Appellant argues that "Edwards merely
teaches registration (or correlation) of the real time location of the probe to a
gated image (i.e., a particular image of a gated image set).[6J In contrast, the
real-time indication of the probe recited in independent claim 22 is
manipulated (i.e., changed) such that the correct location of the probe
appears on the identified image, rather than the real-time location of the
probe itself." Id. at 2-3 (referencing App. Br. 4---6).
We do not find Appellant's argument persuasive for the reasons set
forth on pages 2--4 of the Examiner's Answer. In particular,
it is unclear how the claimed limitations do not reflect common
registration as taught in the cited teachings of Soper and
Edwards. The cited part of the specification appears to teach that
a real time position is acquired and then manipulated to appear
on the correct location of the image. In Soper and Edwards, a
real time position of the sensor on the probe is acquired (i.e. an
"absolute coordinate" or "tracking space" coordinate). This
value is then mapped or transformed into the corresponding
model coordinate or image space coordinate, such mapping
resulting in placement of the marker taught by both Soper and
Edwards to appear in the correct position and orientation in the
image used (in Soper, the marker is placed relative to a particular
representation in a 3 D model while in Edwards, a particular
6 Insofar as Edwards characterizes gated images as those associated with
periodic human characteristics and including the output from ECG, MRI, or
CT devices, we do not consider this a patentable distinction. See Edwards
,r,r 12, 49, 52.
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Appeal2017-006431
Application 13/286,977
image, see box 110 in Fig. 5 of Edwards; such mapping uses a
mathematical model which operates on the absolute or tracking
space to transform the location to model coordinate or image
space coordinate, see [0078]). To use the words of Applicant's
specification, "rather displaying the real time image data
acquired ... which represents the position of the LG in relation to
a magnetic field," (i.e. the absolute coordinates), the location is
manipulated to depict the correct location in the image (i.e ..
transformed to image space). Again, the transformation from the
location in the magnetic field area of interest (AOI) is
manipulation that results in the correct depiction in the 3D model
space (Soper) or image (Edwards).
Ans. 3; see also Advisory Action dated 6/29/2016, noting that
Edwards' s position tracking system can account for breathing
motion (i.e. in accordance with position of the patient's lungs in
said breathing cycle) and place a probe on an image in the right
location based on position tracking data. So in the particular
image shown, the indication of the probe is placed in the right
spot (i.e. not just anywhere in the image).
Accordingly, we affirm the Examiner's rejection of claim 22. Claims
15 and 17-21, which are not separately argued, fall with claim 22.
37 C.F.R. § 4I.37(c)(l)(iv).
SUMMARY
For the reasons above, we affirm the Examiner's decision rejecting
claims 15 and 17-22.
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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