Ex Parte Glossop

Patent Trial and Appeal Board

Nov 3, 2016

11508835 (P.T.A.B. Nov. 3, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
111508,835 08/24/2006 Neil David Glossop
24737 7590 11/07/2016
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
465 Columbus A venue
Suite 340
Valhalla, NY 10595
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.
2005P03266WOUS 3467
EXAMINER
IP,JASONM
ART UNIT PAPER NUMBER
3777
NOTIFICATION DATE DELIVERY MODE
11/07/2016 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):
marianne.fox@philips.com
debbie.henn@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 NEIL DAVID GLOSSOP
Appeal2015-000326
Application 11/508,835
Technology Center 3700
Before DONALD E. ADAMS, JEFFREY N. FREDMAN, and
TIMOTHY G. MAJORS, Administrative Patent Judges.
PER CURIAM
DECISION ON APPEAL 1
This is an appeal under 35 U.S.C. § 134 involving claims 1 and 3-22
(App. Br. 9). Examiner entered rejections under 35 U.S.C. § 103(a). We
have jurisdiction under 35 U.S.C. § 6(b ).
We REVERSE.
STATEMENT OF THE CASE
Appellant's "invention relates to methods and apparatus for assisting
navigated flexible endoscopy" (Spec. i-f 2), in which "rather than a calculated
centerline, the 'most likely path' of the passage of a flexible endoscope or
1 Appellant identifies the Real Party in Interest as Koninklijke Philips N.V.
(App. Br. 2).
Appeal2015-000326
Application 11/508,835
other flexible instrument is calculated using the one or more pre-operative
images" (Spec. i-f 1 7). Independent claim 1 is representative and reproduced
in the Claims Appendix of Appellant's Appeal Brief.
Claims 1, 3---6, 9-12, 14, 17-19, and 22 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over the combination of Ferre,2 Shahidi,3 and Wan.4
Claims 7 and 8 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Ferre, Shahidi, Wan, and Kaufman. 5
Claim 13 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over the combination of Ferre, Shahidi, Wan, and Galloway. 6
Claims 15 and 16 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Ferre, Shahidi, Wan, and
Gronningsaeter. 7
Claims 20 and 21 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Ferre, Gronningsaeter, and Wan.
ISSUE
Does the preponderance of evidence relied upon by Examiner support
a conclusion of obviousness?
2 Ferre et al., US 5,800,352, issued Sept. 1, 1998.
3 Shahidi, US 6,529,758 B2, issued Mar. 4, 2003.
4 Wan et al., Automatic Centerline Extraction for Virtual Colonoscopy, 21
IEEE TRANSACTIONS ON MEDICAL IMAGING 12:1450-1460 (2002).
5 Kaufman et al., US 2001/0031920 Al, published Oct. 18, 2001.
6 Galloway, Jr. et al., US 6,584,339 B2, issued June 24, 2003.
7 Gronningsaeter et al., US 6,019,724, issued Feb. 1, 2000.
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Appeal2015-000326
Application 11/508,835
FACTUAL FINDINGS (FF)
FF 1. Appellant's Specification discloses
In some instances, the most likely path of an endoscope may
include points that intersect the walls of any conduit-like
anatomy in the anatomical region (e.g., the endoscope may
collide with the walls of the colon), rather than points that follow
a centerline path through the anatomy. Using mathematical
predictive techniques, this "most likely path" of an
endoscope/instrument can be calculated. In some embodiments,
determination of the most likely path uses a predictive collision
detection system that predicts the endoscope locations touching
the walls of channel-like anatomy such as, for example, at
locations with sharp curvature (e.g., the junction between the
ascending-transverse and transverse-descending colon).
(Spec. ii 17.)
FF 2. Appellant's Figure 3 is reproduced below:
};;.;$
............. ····
Fig.3
Figure 3 shows
a portion of colon 201, wherein a predicted "most likely path" of
an endoscope is indicated as path 301. An endoscope 303 is
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Appeal2015-000326
Application 11/508,835
shown along part of most likely path 301. Endoscope 303, as
illustrated, collides with the wall of colon 201 at location 305.
Rather than follow the path of centerline 211, endoscope 303 is
most likely to follow path 301.
(Spec. ii 60.)
FF 3. Wan suggests
The centerline should stay away from the colon wall as much as
possible. This requirement guarantees that the centerline is not
only an accurately centered object shape descriptor, but also a
safe navigation guide that prevents the navigator from
penetrating the colon wall (i.e., always stays inside the colon
lumen) and hugging the comers at sharp turns.
(Wan 1451, left col.; see also Ans. 4, 13.)
ANALYSIS
The combination of Ferre, Shahidi, and Wan:
Each of Appellant's independent claims 1 and 22 requires, inter alia,
calculating "coordinates of a predicted path in a first preoperative frame of
reference corresponding to the one or more preoperative images based on
predicted collisions with interior walls of a conduit within the anatomy of
the patient in the first preoperative frame of reference" (see Appellant's
claims 1 and 22).
Examiner finds that "Ferre et al[.] disclose a method utilizing a
computing device in an image-guided medical procedure for indicating on a
display controlled by the computing device relative locations of a medical
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Appeal2015-000326
Application 11/508,835
instrument and one or more items of interest within an anatomy of a patient"
(Ans. 3; see also Ans. 8). Examiner acknowledges that
Ferre et al[.] do not explicitly disclose calculating coordinates of
a predicted path in a first preoperative frame of reference
corresponding to the one or more preoperative images based on
predicted collisions with interior walls of a conduit within the
anatomy of the patient in the first preoperative frame of
reference.
(Id. at 4; see also id. at 8.)
Examiner turns to Wan and asserts that "Wan et al[.] teach that a
predicted path is determined by calculating coordinates of a predicted path
based on the premise of establishing a centerline within a lumen which
avoids collision with lumen walls (p. [] 1451, 'Centricity')" (Id. at 4, see also
id. at 8-9).
We are not persuaded. "[C]laims in an application are to be given
their broadest reasonable interpretation consistent with the specification and
that claim language should be read in light of the specification as it would be
interpreted by one of ordinary skill in the art." In re Sneed, 710 F.2d 1544,
1548 (Fed. Cir. 1983). "The protocol of giving claims their broadest
reasonable interpretation during examination does not include giving claims
a legally incorrect interpretation." In re Skvorecz, 580 F.3d 1262, 1267
(Fed. Cir. 2009).
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Appeal2015-000326
Application 11/508,835
Appellant's Specification differentiates between a centerline path and
a "most likely path" or a predicted path in which an instrument collides with
the walls of a conduit (FF 1-2). Accordingly, we agree with Appellant that
[i]n Wan on page 1451 in a section titled "Centricity" cited by
the Final Office Action, Wan makes clear that (emphasis added)
"Centricity. The centerline should stay away from the colon wall
as much as possible" which is in sharp contrast from the claims
recitation that this section is cited for showing.
(App. Br. 11; see also FF 3, Reply Br. 4--5.) As Appellant explains,
the centerline approach of Wan does not teach, disclose or
suggest, (illustrative emphasis added) "calculating coordinates of
a predicted path in a first preoperative frame of reference
corresponding to the one or more preoperative images based on
predicted collisions with interior walls of a conduit within the
anatomy of the patient in the first preoperative frame of
reference [.]"
(App. Br. 11; see also Reply Br. 4--5.)
The combination of Ferre, Shahidi, JiVan, and Kaufman:
Based on the combination of Ferre, Shahidi, Wan, and Kaufman,
Examiner concludes that, at the time Appellant's invention was made, it
would have been obvious to "apply the colonoscope of Kaufman et al[.] to
the procedure of Ferre et al[.] in conjunction with Shahidi and Wan et al[.],
as to provide a means for colonoscopic examination" (Ans. 9). Examiner,
however, failed to establish that Kaufman makes up for the deficiency in the
combination of Ferre, Shahidi, and Wan as discussed above.
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Appeal2015-000326
Application 11/508,835
The combination ofFerre, Shahidi, Wan, and Galloway:
Based on the combination of Ferre, Shahidi, Wan, and Galloway,
Examiner concludes that, at the time Appellant's invention was made, it
would have been obvious to "apply the algorithm of Galloway, Jr. to the
procedure of Ferre et al[.] in conjunction with Shahidi and Wan et al[.], as to
provide an algorithm for registering images" (id. at 10). Examiner, however,
failed to establish that Galloway makes up for the deficiency in the
combination of Ferre, Shahidi, and Wan as discussed above.
The combination of Ferre, Shahidi, Wan, and Gronningsaeter:
Based on the combination of Ferre, Shahidi, Wan, and
Gronningsaeter, Examiner concludes that, at the time Appellant's invention
was made, it would have been obvious to "apply the tracking and
registration of Gronningsaeter et al[.] to the procedure of Ferre et al[.] in
conjunction with Shahidi and Wan et al[.], as to provide registration
techniques between coincident spaces and/or systems" (id. at 11 ). Examiner,
however, failed to establish that Gronningsaeter makes up for the deficiency
in the combination of Ferre, Shahidi, and Wan as discussed above.
The combination of Ferre, Gronningsaeter, and Wan:
Based on the combination of Ferre, Gronningsaeter, and Wan,
Examiner similarly asserts that "Wan et al[.] teach that a predicted path is
determined by calculating coordinates of a predicted path based on the
premise of establishing a centerline within a lumen which avoids collision
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Appeal2015-000326
Application 11/508,835
with lumen walls (p.lJ1451, 'Centricity')" (id. at 13). We thus reverse this
rejection for the reasons discussed above.
CONCLUSION OF LAW
The preponderance of the evidence relied upon by Examiner fails to
support a conclusion of obviousness.
The rejection of claims 1, 3---6, 9-12, 14, 17-19, and 22 under 35
U.S.C. § 103(a) as unpatentable over the combination of Ferre, Shahidi, and
Wan is reversed.
The rejection of claims 7 and 8 under 35 U.S.C. § 103(a) as
unpatentable over the combination of Ferre, Shahidi, Wan, and Kaufman is
reversed.
The rejection of claim 13 under 35 U.S.C. § 103(a) as unpatentable
over the combination of Ferre, Shahidi, Wan, and Galloway is reversed.
The rejection of claims 15 and 16 under 35 U.S.C. § 103(a) as
unpatentable over the combination of Ferre, Shahidi, Wan, and
Gronningsaeter is reversed.
The rejection of claims 20 and 21under35 U.S.C. § 103(a) as
unpatentable over the combination of Ferre, Gronningsaeter, and Wan is
reversed.
REVERSED
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