Ex Parte Brost et al

Patent Trial and Appeal Board

Jan 28, 2019

14368833 (P.T.A.B. Jan. 28, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/368,833 06/26/2014
28524 7590 01/30/2019
SIEMENS CORPORATION
INTELLECTUAL PROPERTY DEPARTMENT
3501 Quadrangle Blvd Ste 230
Orlando, FL 32817
FIRST NAMED INVENTOR
Alexander Benjamin Brost
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.
2012P01793WOUS 6222
EXAMINER
ROY, BAISAKHI
ART UNIT PAPER NUMBER
3793
NOTIFICATION DATE DELIVERY MODE
01/30/2019 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):
ipdadmin.us@siemens.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ALEXANDER BENJAMIN BROST,
SEBASTIAN KAEPPLER, MARTIN OSTERMEIER,
NORBERT STROBEL, WEN WU, and TERRENCE CHEN
Appeal 2018-001118
Application 14/368,833
Technology Center 3700
Before JAMES P. CALVE, WILLIAM A. CAPP, and LEE L. STEPINA,
Administrative Patent Judges.
CAPP, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants 1 seek our review under 35 U.S.C. § 134 of the final
rejection of claims 1, 2, 4, 5, 13-18, 21-23, 25, 26, and 34. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Siemens Aktiengesellschaft and Friedrich-Alexander-Universifat
Erlangen-Niimberg are the Applicants and real parties in interest. Appeal
Br. 1.
Appeal 2018-001118
Application 14/368,833
THE INVENTION
Appellants' invention relates to tracking catheters in fluoroscopic
images. Spec. ,r 2. Claim 1, reproduced below with paragraph indentation
added, is illustrative of the subject matter on appeal.
1. A method comprising:
tracking a first catheter in a plurality of frames of a
fluoroscopic image sequence; and
estimating cardiac and respiratory motion of a portion of a
heart in each of the plurality of frames based on
a position of a second catheter determined from
the tracking of the first catheter using a trained motion
estimation model,
the trained motion estimation model trained based on
tracking the first catheter and the second catheter in a
sequence of training images.
THE REJECTIONS
The Examiner relies upon the following as evidence in support of the
rejections:
Rasche
Willis
Barbu
Xu
US 6,473,635 Bl
US 2005/0203375 Al
US 2009/0062641 Al
US 2009/0163800 Al
Oct. 29, 2002
Sept. 15, 2005
Mar. 5, 2009
June 25, 2009
The following rejections are before us for review:
1. Claims 1, 2, 4, 5, 13, 17, 18, 21-23, 25, 26, and 34 are rejected
under 35 U.S.C. § I03(a) as being unpatentable over Xu, Rasche, and Barbu.
2. Claims 14--16 are rejected under 35 U.S.C. § I03(a) as being
unpatentable over Xu, Rasche, Barbu, and Willis. 2
2 Claims 3, 6-12, 19, 20, 24, and 27-33 are objected to as being dependent
upon a rejected base claim, but the Examiner indicates that these claims
would be allowable if rewritten in independent form. Final Action 4.
2
Appeal 2018-001118
Application 14/368,833
OPINION
Unpatentability of Claims 1, 2, 4, 5, 13, 17, 18, 21-23, 25, 26, and 34
over Xu, Rasche, and Barbu
Claim 1
The Examiner finds that Xu discloses the invention except for motion
estimation based on: ( 1) the spatial relationship between two catheters ( or
probes); and (2) training. Final Action 4---6. The Examiner relies on Rasche
as disclosing respiratory motion measured based on the position of two
catheters (probes). Id. "Rasche therefore teaches of the combination of the
respiratory motion signal and the electrocardiogram or cardiac signal with
respect to the motion of the catheter relative to the heart." Id. The Examiner
concludes that it would have been obvious to a person of ordinary skill in the
art at the time the invention was made to modify Xu with the teachings of
Rasche to measure respiratory and cardiac motion signals based on catheter
(probe) positions. Id. at 5-6.
With respect to trained motion estimation, the Examiner relies on
Barbu as disclosing catheter detection and tracking in a fluoroscope image
sequence with training data and training images. Id. at 6. The Examiner
concludes that it would have been obvious to a person of ordinary skill in the
art at the time the invention was made to further modify Xu with the
teachings of Barbu. Id. According to the Examiner, a person of ordinary
skill in the art would have done this to detect and track the catheter tip in a
fluoroscopic image sequence. Id.
In traversing the rejection, Appellants concede that Rasche relates to
determining the position of a medical instrument relative to a moving organ
of the body. Appeal Br. 5. However, according to Appellants, Rasche does
not teach estimating cardiac and respiratory motion based on position of a
3
Appeal 2018-001118
Application 14/368,833
second catheter that is determined by tracking a first catheter using a trained
motion estimation model. Id. at 5---6. Appellants contend that Rasche
merely deals with a change of position of the patient during treatment. Id.
at 6.
Id.
[D]etermining the change of position of a patient based on the
relative position of two reference probes, as described in the
cited portions of Rasche, does not teach or suggest at least
"estimating cardiac and respiratory motion of a portion of a
heart in each of the plurality of frames based on a position of a
second catheter determined from the tracking of the first
catheter" as in claim 1. That is, the cited portions of Rasche do
not teach or suggest a position of one reference probe
determined from the tracking of another reference probe. The
cited portions of Rasche do not teach or suggest "a position of a
second catheter determined from the tracking of the first
catheter" in claim 1.
Furthermore, Appellants accuse the Examiner of relying on an overly
broad claim construction. Id. at 6-7. Appellants contend that, properly
construed, Rasche does not teach "a position of a second catheter determined
from the tracking of the first catheter." Id. at 7. Finally, Appellants argue
that the passage of Barbu on which the Examiner relies fails to teach the
entire second or "estimating" limitation of claim 1. Id.
In response, the Examiner notes that Appellants' claim language is
very broad. Ans. 7. In particular, the Examiner states that "trained motion
estimation model" is a very broad term. Id. at 8. Furthermore, the Examiner
states that, under the broadest reasonable interpretation, claim 1 is directed
to determining cardiac and respiratory motion of the heart based on the
respective positions of two interdependent catheters. Id. at 7. The Examiner
concludes that Xu, Rasche, and Barbu, taken in combination, teach tracking
4
Appeal 2018-001118
Application 14/368,833
the position of multiple catheters with respect to cardiac and respiratory
motion in training images. Id.
In response to Appellants' argument that Rasche only tracks
movement of the entire patient, but not cardiac/respiratory movement, the
Examiner states that Rasche teaches monitoring positions of a catheter and
reference probe and determining cardiac and respiratory motion based on the
positions of the catheter and probe. Id. at 5.
[ A ]s is well known in the art, the Rasche reference is directed to
combined effect of the respiratory and cardiac motion signal
with respect to the position of a catheter or medical instrument.
Rasche reference furthermore teaches that the relative positions
of two probes is used determine change of position of patient
during treatment and that "the position in space of the catheter 4
relative to the patient reference probe 21 is subsequently used to
convert the position in space of the catheter 4 relative to the 30
image data set and hence relative to the heart" ( col. 6, 11. 20-29).
Since the reference explicitly teaches the dependency between
the position of the probe and the catheter, clearly the position of
one is dependent on the position of the other.
Id. at 6.
In response to Appellants' argument regarding the Barbu reference,
the Examiner states that Barbu was used to address the training images
limitation. Id. at 7. The Examiner reminds Appellants that this case
involves a Section 103 rejection and, as such, it is not necessary that Barbu
teach every limitation of the claim. Id.
Xu is directed to a method for real-time cardiac visualization that
includes acquiring fluoroscope imagery from two planes. Xu, Abstract. The
invention assists a medical practitioner in performing cardiac RF catheter
ablation procedures. Id. ,r,r 9, 33, 47, 52. The location of a catheter
( electrophysiology device) is marked within the fluoroscope imagery from
5
Appeal 2018-001118
Application 14/368,833
each of the two planes. Id. Abstract. Xu's method determines a three
dimensional ("3D") location of the catheter. Id. In step S77 of Xu's
method, breathing motion is calculated using a combined 3D trajectory. Id.
,r,r 78-83, Fig. 7. In step S78, the method compensates for calculated
motion. Id.
Rasche is directed to a method and device for determining the position
of a catheter relative to a beating heart. Rasche, Abstract, col. 3, 1. 60 -
col. 4, 1. 23. Rasche determines the spatial position of a catheter and a
reference probe while simultaneously acquiring a periodic motion signal of
the heart. Id., Abstract, Fig. 1. Rasche also utilizes a stored, pre-operatively
acquired 3D image data set of the patient. Id. col. 4, 11. 28-39. A control
and arithmetic unit determines the position of the catheter relative to the
heart from the data supplied and on the basis of a 3D image data set. Id.
col. 4, 11. 53-57. An image of the anatomy surrounding the catheter is
thereby displayed on display device 13. Id.
[B]y observing the images displayed, in which each
instantaneous position of the catheter or the catheter itself can
be superposed, the attending physician can thus see where
exactly the catheter is situated. He or she can thus very
accurately address given points, for example within the heart,
because according to the proposed method the eigenmotion of
the heart is taken into account for determining the position of
the catheter relative to the heart.
Id., col. 4, 11. 59---66. Contrary to Appellants' argument, the reference probes
in Rasche are not limited to merely determining a change of position of the
patient during treatment. Appeal Br. 6. Reference probe 6 may be attached
to the surface of a patient's body. Rasche col. 4, 11. 20-22. Furthermore,
Rasche discloses that:
6
Appeal 2018-001118
Application 14/368,833
Because the position of the reference probe relative to the body
organ is also known in this 3D image data set and the actual
spatial position of the reference probe was measured, a
conversion formul[ a] can be determined therefrom; the
measured spatial position of the [catheter] ... can thus be
simply converted, for example by means of a simple co-
ordinate transformation, into its position relative to the body
organ. The invention thus enables exact determination of the
position of a [catheter] ... , introduced into the body of a
patient, relative to a periodically moving body organ ... and
also the tracking of motions of the instruments.
Id. col. 2, 11. 50-62. More particularly, with respect to reference probe 21
identified in the Appeal Brief, Rasche discloses:
The position in space of the catheter 4 relative to the patient
reference probe 21 is subsequently used to convert the position
in space of the catheter 4 relative to the 3D image data set and
hence relative to the heart.
Id. col. 6, 11. 26-29. In short, the Examiner's finding that the positions of
Rasche' s catheter and reference probe are interdependent is supported by a
preponderance of the evidence.
Barbu discloses a method and system for detecting and tracking an
ablation catheter tip in a fluoroscopic image sequence. Barbu Abstract.
Catheter tips are detected in each frame of a fluoroscopic image sequence
using marginal space learning. Id. We agree with the Examiner that:
( 1) the claim term "trained motion estimation model" is broad; and
(2) applying a broad but reasonable interpretation, Barbu discloses a trained
motion estimation model as claimed.
Appellants' arguments regarding the Barbu reference fail to apprise us
of Examiner error. Appeal Br. 7. In the first instance, Appellants'
arguments amount to an individual attack on a single reference. However, it
is well settled that non-obviousness cannot be established by attacking
7
Appeal 2018-001118
Application 14/368,833
references individually where the rejection is based upon the teachings of a
combination of references. In re Merck & Co., Inc., 800 F.2d 1091, 1097
(Fed. Cir. 1986); In re Keller, 642 F.2d 413,425 (CCPA 1981). Secondly,
the argument merely recites a claim limitation and then makes a naked
assertion that Barbu fails to disclose the limitation. Appeal Br. 7. As such,
it fails to rise to a level of a separate argument for the patentability of
claim 1. See 37 C.F.R. § 4I.37(c)(l)(iv) ("A statement which merely points
out what a claim recites will not be considered an argument for separate
patentability of the claim"); see also In re Lovin, 652 F.3d 1349, 1357 (Fed.
Cir. 2011) (Rule 41.3 7 requires more than recitation of the claim elements
and a naked assertion that the elements are not found in the prior art).
Finally, the Examiner has articulated a sound reason as to why a
person of ordinary skill in the art would have combined the references in the
manner proposed in the rejection. Final Action 5---6. Such reasoning is not
persuasively challenged by Appellants. See generally Appeal Br.
In view of the foregoing discussion, we determine the Examiner's
findings of fact are supported by a preponderance of the evidence and that
the Examiner's legal conclusion of unpatentability is well-founded.
Accordingly, we sustain the Examiner's unpatentability rejection of claim 1.
Independent Claims 17 and 22
Appellants argue claims 1 7 and 22 under respective separate headings
in the Appeal Brief. Appeal Br. 7-9. In traversing the rejection of each of
these claims, Appellants rely solely on arguments that we previously
considered and found unpersuasive with respect to claim 1 and find equally
unpersuasive here. Id. We sustain the rejection of claims 17 and 22.
8
Appeal 2018-001118
Application 14/368,833
Claims 4 and 2 5
Appellants argue claims 4 and 25 together. Appeal Br. 9--10. We
select claim 4 as representative. See 37 C.F.R. § 4I.37(c)(l)(iv). In
traversing the rejection, Appellants argue that the passage of Barbu that the
Examiner relies on fails to disclose that the training images are of the same
patient as the fluoroscope image sequence. Appeal Br. 9.
In response, the Examiner essentially maintains that a person of
ordinary skill in the art, reading Barbu's entire disclosure in context, would
understand that the patient who is undergoing treatment is the same patient
from which training data is obtained. Ans. 14 (citing Barbu ,r 5).
Appellants' invention, as well as that of the prior art, including Barbu,
are involved with radio frequency catheter ablation of heart tissue. See, e.g.,
Xu ,r 9 ("In RF catheter ablation, an RF catheter may be used to destroy
abnormal electrical pathways in heart tissue."); Barbu ,r 3 ("the ablation ...
destroys, or ablates, the tissue at these locations and interrupts the triggers
for the heart arrhythmia"). Persons of ordinary skill in the art understand
that cardiac ablation procedures require accuracy in the placement of
electrodes. See, e.g., Xu ,r 7 ("In order to accurately place the electrodes, it
may be necessary to visualize the heart using a medical imaging device. As
the heart is constantly in motion, and the location of tools in and around the
heart must be known"). Given the precision requirements of the procedure
and the sensitivity of the human tissue that is being treated, i.e., the human
heart, it is implicit in Barbu that the training data is obtained from the same
patient that is undergoing treatment. We think a person of ordinary skill in
the art would not understand Barbu in any other way, nor do we think a
person of ordinary skill in the art would need to be explicitly instructed to
9
Appeal 2018-001118
Application 14/368,833
use the same patient for training as will undergo treatment. In that regard,
we note that Rasche utilizes a stored, pre-operatively acquired 3D image
data set of the same patient that is undergoing treatment. Rasche col. 4,
11. 28-39.
As persons of scientific competence in the fields in which they work,
examiners are responsible for making findings, informed by their scientific
knowledge, as to the meaning of prior art references to persons of ordinary
skill in the art and the motivation those references would provide to such
persons. Absent legal error or contrary factual evidence, those findings can
establish a prima facie case of obviousness. In re Berg, 320 F.3d 1310, 1315
(Fed. Cir. 2003). In our opinion, the Examiner's interpretation of Barbu is
reasonable and well within the Examiner's competency under Berg,
particularly in light of the disclosure in Rasche demonstrating that it was
known to use stored, pre-operatively acquired 3D image data sets of the
same patient that is undergoing treatment. Rasche col. 4, 11. 28-39.
Appellants provide neither evidence nor persuasive technical reasoning to
support any other reasonable conclusion based on the evidence of record.
We sustain the rejection of claims 4 and 25.
Claims 5 and 2 6
Appellants argue claims 5 and 26 together. Appeal Br. 10. We select
claim 5 as representative. In traversing the rejection, Appellants argue that
the passage of Barbu that the Examiner relies on fails to disclose that the
training data is "a number of frames of the fluoroscopic image sequence
prior to the plurality of frames of the fluoroscopic image sequence." Appeal
Br. 10.
10
Appeal 2018-001118
Application 14/368,833
In response, the Examiner states that Barbu teaches conducting the
training and detecting catheter tip candidates in fluoroscopic images.
Ans. 15. Barbu teaches that "[o]nce the PBT classifiers are trained for each
level, the classifiers can be used to detect catheter tip candidates in input
fluoroscopic images." Barbu ,r 21. Barbu further teaches that catheters are
detected using the classifier trained for each learning level. Id. The
temporal sequence of claim 5 can be discerned from the disclosure in Barbu.
In re Gleave, 560 F.3d 1331, 1334 (Fed. Cir. 2009) (a reference need not
satisfy an ipsissimis verbis test). Thus, the Examiner's finding of fact is
supported by a preponderance of the evidence.
We sustain the rejection of claims 5 and 26.
Claims 2, 13, 18, 21, 23, and 34
Each of these claims depend from an independent claim whose
rejection we have previously sustained and which are not separately argued
by Appellants. We sustain the Examiner's rejection of claims 2, 13, 18, 21,
23, and 34. See 37 C.F.R. § 4I.37(c)(l)(iv) (failure to separately argue
claims).
Unpatentability of Claims 14-16
over Xu, Rasche, Barbu, and Willis
Appellants do not argue for the separate patentability of claims 14--16
apart from arguments presented with respect to claim 1, which we have
previously considered. Accordingly, we sustain the Examiner's rejection of
claims 14--16. 37 C.F.R. § 4I.37(c)(l)(iv).
DECISION
The decision of the Examiner to reject claims 1, 2, 4, 5, 13-18, 21-23,
25, 26, and 34 is AFFIRMED.
11
Appeal 2018-001118
Application 14/368,833
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
12