Ex Parte Bhandarkar et al

Patent Trial and Appeal BoardSep 17, 2012

11578258 (P.T.A.B. Sep. 17, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte SUCHENDRA M. BHANDARKAR and ERNEST WILLIAM TOLLNER ____________________ Appeal 2010-005898 Application 11/578,258 Technology Center 2600 ____________________ Before DEBRA K. STEPHENS, ERIC S. FRAHM, and RAMA G. ELLURU, Administrative Patent Judges. STEPHENS, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-005898 Application 11/578,258 2 Appellants appeal under 35 U.S.C. § 134(a) (2002) from a final rejection of claims 1, 3-8, 10-13, 15-20, 22-25, 27-32, 34, and 35. We have jurisdiction under 35 U.S.C. § 6(b). Claims 2, 9, 14, 21, 26, and 33 have been canceled. We REVERSE. Introduction According to Appellants, the invention relates to computer systems for virtual surgery implementations. (Spec. 1, §TECHNICAL FIELD). STATEMENT OF THE CASE Exemplary Claim Claim 1 is an exemplary claim and is reproduced below: 1. A method for providing virtual alignment of fractured bones comprising: capturing image data of fragments of a bone that were separated due to bone fracture; generating three-dimensional models of the bone fragments from the image data; determining contours of fractured ends of the bone fragments; matching the fractured ends of the bone fragments; determining a transformation that places the fractured ends in three-dimensional alignment to form a reconstructed bone; and generating an image of the reconstructed bone that results from the transformation. Appeal 2010-005898 Application 11/578,258 3 References Krause US 6,701,174 B1 Mar. 2, 2004 Reeves US 7,274,810 B2 Sep. 25, 2007 Rejections (1) Claims 1, 5, 8, 10-13, 17, 20, 22-25, 29, 32, 34, and 35 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Krause. (2) Claims 3, 4, 6, 7, 15, 16, 18, 19, 27, 28, 30, and 31 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Krause and Reeves. ISSUE 1 35 U.S.C. § 103(a): claims 1, 5, 8, 10-13, 17, 20, 22-25, 29, 32, 34, and 35 Appellants assert their invention is not obvious over Krause because Krause does not teach or suggest “a method for providing virtual alignment of fractured bones” (App. Br. 9). Specifically, Appellants contend neither Krause nor Krause teaches the steps of “matching the fractured ends of the bone fragments” and “determining a transformation that places the fractured ends in three-dimensional alignment to form a reconstructed bone” as recited in claim 1 (App. Br. 13-14 and Reply Br. 6 and 7). Appellants assert that Krause discloses modeling whole bones for performing bone distraction (Reply Br. 7). According to Appellants, of the portions relied upon by the Examiner, Figure 4 of Krause illustrates a 3D modeling of a whole bone and Figure 17 illustrates a graphical user interface to help a surgeon plan distraction of the bone (id.). Thus, Appellants argue, neither Figure teaches Appeal 2010-005898 Application 11/578,258 4 providing a virtual alignment of fractured bones but instead teaches a graphical user interface to assist a surgeon in simulating how to fracture a whole bone (id.). Issue 1: Has the Examiner erred in finding Krause teaches or suggests “matching the fractured ends of the bone fragments” and “determining a transformation that places the fractured ends in three-dimensional alignment to form a reconstructed bone” as recited in claim 1? ANALYSIS We agree with Appellants. Figures 4 and 17 of Krause show a bone being split; however, neither shows two distinct pieces which can be manipulated to match the fractured ends of the bone fragments. Specifically, Figure 4 illustrates exemplary computer screen displays generated upon execution of the computer assisted orthopedic surgery planner software (col.7, ll. 5-8). Further, Krause teaches display of a selected bone to be distracted (col. 11, ll. 13-17). Figure 17 illustrates a graphical user interface screen that allows a user to manipulate the 3D simulation (col. 7, ll. 51-53). However, although, a user may manipulate the 3D simulation, Krause does not teach or suggest manipulating two portions of a fractured bone. As a result, we disagree with the Examiner that this portion of Krause suggests matching the fractured ends of the bone fragments or determining a transformation that places the fractured ends in three-dimensional alignment to form a reconstructed bone. Appeal 2010-005898 Application 11/578,258 5 Accordingly, the Examiner erred in finding the combination of Krause teaches or suggests “matching the fractured ends of the bone fragments” and “determining a transformation that places the fractured ends in three- dimensional alignment to form a reconstructed bone” as recited in claim 1 and claims 5, 8, 10-13, 17, 20, 22-25, 29, 32, 34, and 35, not separately argued. Therefore, the Examiner erred in rejecting claims 1, 5, 8, 10-13, 17, 20, 22-25, 29, 32, 34, and 35 under 35 U.S.C. § 103(a) for obviousness over Krause. ISSUE 2 35 U.S.C. § 103(a): claims 3, 4, 6, 7, 15, 16, 18, 19, 27, 28, 30, and 31 Claims 3, 4, 6, 7, 15, 16, 18, 19, 27, 28, 30, and 31 depend from independent claims 1, 13, and 25. We find the Examiner erred in rejecting those claims as being unpatentable over Krause. The Examiner has not shown Reeves cures the deficiencies of Krause. Accordingly, the Examiner erred in finding the combination of Krause and Reeves would have taught or suggested the invention as recited in claims 3, 4, 6, 7, 15, 16, 18, 19, 27, 28, 30, and 31, not separately argued. Therefore, the Examiner erred in rejecting claims 3, 4, 6, 7, 15, 16, 18, 19, 27, 28, 30, and 31 under 35 U.S.C. § 103(a) for obviousness over Krause and Reeves. DECISION The Examiner’s rejection of claims 1, 5, 8, 10-13, 17, 20, 22-25, 29, 32, 34, and 35 under 35 U.S.C. § 103(a) as being obvious over Krause is reversed. Appeal 2010-005898 Application 11/578,258 6 The Examiner’s rejection of claims 3, 4, 6, 7, 15, 16, 18, 19, 27, 28, 30, and 31 under 35 U.S.C. § 103(a) as being obvious over Krause and Reeves is reversed. REVERSED msc