Ex Parte Gogin et al

Patent Trial and Appeal BoardAug 2, 2017

13125579 (P.T.A.B. Aug. 2, 2017)

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. 13/125,579 04/22/2011 Nicolas Pierre Bruno Gogin 2008P01238WOUS 5999 24737 7590 08/04/2017 PTTTT TPS TNTFT T FfTTTAT PROPFRTY fr STANDARDS EXAMINER 465 Columbus Avenue BRUTUS, JOEL F Suite 340 Valhalla, NY 10595 ART UNIT PAPER NUMBER 3786 NOTIFICATION DATE DELIVERY MODE 08/04/2017 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 NICOLAS PIERRE BRUNO GOGIN, CECILE ANNE MARIE PICARD, and NICHOLAS FRANCOIS VILLAIN Appeal 2015-001513 Application 13/125,579 Technology Center 3700 Before LYNNE H. BROWNE, ANNETTE R. REIMERS, and PAUL J. KORNICZKY, Administrative Patent Judges. REIMERS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE1 Nicolas Pierre Bruno Gogin et al. (Appellants) appeal under 35 U.S.C. § 134(a) from the Examiner’s decision to reject under 35 U.S.C. § 103(a): (1) claims 1—4, 6—8, 10, and 11 as unpatentable over Verard (US 1 Appellants submitted an Amendment After Final Action proposing an amendment to claim 11. See Response After Final Act. 5—7 (filed May 17, 2014). In the Advisory Action, the Examiner stated that “the proposed amendment(s)” “will be entered” and that “[regarding claim 11, the 101 rejection of the previous office action is moot due to the amendment to the claim.” Adv. Act. Summary Sheet and p. 2 (dated Mar. 28, 2014); see also Final Act. 2 (dated Jan. 27, 2014). Appeal 2015-001513 Application 13/125,579 2004/0097805 Al, pub. May 20, 2004), and Shahidi (US 2001/0016684 Al, pub. Aug. 23, 2001); and (2) claims 5 and 9 as unpatentable over Verard, Shahidi, and Herman (US 2002/0140815 Al, pub. Oct. 3, 2002). We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. CLAIMED SUBJECT MATTER The claimed subject matter relates to “image-guided radiofrequency ablation and pacemaker placement procedures.” Spec. 1:7—8; Fig. 1. Claims 1, 6, and 11 are independent. Claim 1 is illustrative of the claimed subject matter and recites: 1. An image acquisition method for tracking navigation motions of an interventional instrument while being navigated through a cardiovascular system or cardiac chambers anatomy of a patient, the method comprising the steps of: intraoperatively acquiring and recording a sequence of 2D live images from the same projection angle and object distance, said 2D live images showing the interventional instrument during different stages of such a navigation motion, recording phases of a cardiac or respi[ra]tory cycle of the patient during the acquisition and recording of the live 2D images, selecting a set of said 2D live images which correspond to a specific phase of the patient’s cardiac or respiratory cycles fusing cardiac or respiratory gating, and, while executing said selection step and further navigating the interventional instrument, generating a 2D reconstruction of the cardiovascular system or cardiac chambers anatomy of the patient by fusing an overlay of the set of said 2D live images showing the interventional instrument at different navigation motion stages, wherein said 2D reconstruction 2 Appeal 2015-001513 Application 13/125,579 is dynamically enriched by overlaying and fusing each newly acquired and selected 2D image, and displaying the 2D reconstruction of the patient’s cardiovascular system or cardiac chambers anatomy on a monitor screen or display. ANALYSIS Obviousness over Verard and Shahidi Claims 1—4, 6—8, 10, and 11 Independent claim 1 is directed to an image acquisition method including the step of “generating a 2D reconstruction of the cardiovascular system or cardiac chambers anatomy of the patient by fusing an overlay of the set of said 2D live images showing the interventional instrument at different navigation motion stages.” Appeal Br. 15, Claims App. The Examiner finds that Verard discloses the method of claim 1 except “Verard [does not] disclose dynamically enriched 2D reconstructed.” Final Act. 4. The Examiner finds that “Shahidi discloses displaying an updated version of the 2D reconstructed virtual anatomy by overlaying and fusing newly selected 2D live images to the current version of the reconstructed anatomy [see 0049-0050].” Id.', see also Ans. 8. In the Answer, the Examiner further finds that Verard discloses “intraoperatively acquiring a sequence of 2D images [see 0062, 0068, 0081, 0133, 0004] shows the interventional instrument (catheter 52) in real time (meaning live) [see 0133] during different stages of such navigation motions [see 0139], the position of the catheter is overlaid onto intraoperative images [see 0139].” Ans. 8. 3 Appeal 2015-001513 Application 13/125,579 Appellants contend that “Verard does not fuse images of an inte[r]ventional instrument at different navigational stages in a patient’s cardiovascular system to generate a 2D reconstruction of the cardiovascular system.” Reply Br. 8; see also Appeal Br. 8—11. According to Appellants, the position of the catheter [in Verard] is determined using EM tracking. Then, the position of the catheter is overlaid onto a preoperative or intraoperative image. A single real time location is overlaid onto an image. Verard overlays a determined location of the catheter onto a single preoperative or intraoperative image. . . . This is not the same as fusing a sequence of images of the catheter from different navigational positions onto each other. Reply Br. 8—9 (citing Verard 1139); see also Appeal Br. 8—11. Appellants further contend that “[similarly, Shahidi tracks an instrument with a separate tracking system (OTS) and fuses intraoperative images with pre-operative images .... The fused images are generated from endoscope or microscope image data (i.e., image data from the interventional instrument not of the interventional instrument).” Reply Br. 9 (citing Shahidi 1 50); see also Appeal Br. 11—12. As such, Appellants conclude that neither Verard nor Shahidi discloses “fusing a sequence of intraoperative images from different navigational positions with each other to generate a 2D reconstruction of the anatomy being navigated.” Reply Br. 9. Verard discloses that [b]y using the catheter 52 equipped with the [electromagnetic] EM sensors 58 that can be tracked by the EM tracking system 44 and by using the image registration techniques 236 to overlay the position of the catheter 52 onto a pre-operative (CT, MRI, etc.) and or intraoperative (fluoroscopy, ultrasound, etc.) images, the catheter 52 may be steered from the jugular, groin, or spine all the way to the neurological site, via the endovascular or the 4 Appeal 2015-001513 Application 13/125,579 cerebral fluid tree path. At the neurological site, treatment can then be delivered and provided. Verard 1139, Figs. 1,13; see also Ans. 8; Reply Br. 8. Stated differently, Verard discloses overlaying the position of the catheter onto (1) a pre-operative image and intra-operative images or (2) intra-operative images. Claim 1 requires “fusing an overlay of the set of [the] 2D live images showing the interventional instrument at different navigation motion stages” to generate a 2D reconstruction of the cardiovascular system or cardiac chambers. Appeal Br. 15, Claims App. (emphasis added).2 Although Verard discloses overlaying intra-operative images to track the position/location of the catheter, Verard is silent as to fusing an overlay of intra-operative images to show the catheter at different navigation motion stages to generate a reconstruction of the anatomic stmcture being navigated. See Reply Br. 8—9; see also Appeal Br. 8—11. Shahidi discloses that [t]he location and orientation of the transducer is tracked and determined 402 by the [optical tracking system] OTS, and the [ultrasound] US data is used to reconstruct 403 three- dimensional intra-op image data for the region of interest. This data is manipulated 404 in a way analogous to the manipulation 306 of the [pre-operative] pre-op data, and then used to generate three-dimensional images 405, together with any desired corresponding two-dimensional images of the ultrasound data. These [intra-operative] intra-op images are fused 406 with the pre-op images generated by the pre-op protocol 311, and the composite images are further displayed. 2 We note that claim 1 also recites that the “2D reconstruction is dynamically enriched by overlaying and fusing each newly acquired and selected 2D image.” Appeal Br. 15, Claims App. (emphasis added). 5 Appeal 2015-001513 Application 13/125,579 Shahidi 149 (emphasis added), Fig. 4; see also id. at | 50 (“These intra-op images are fused 508 with the pre-op images generated by the pre-op protocol 311, and the composite images are further displayed.”), Fig. 5; Final Act. 4; Ans. 8; Appeal Br. 11—12; Reply Br. 9. Stated differently, Shahidi discloses fusing an overlay of intra operative and pre-operative images to track/determine the location/orientation of the transducer. Shahidi is silent as to fusing an overlay of intra-operative images to show the transducer at different navigation motion stages to generate a reconstruction of the anatomic structure being navigated. See Reply Br. 9; see also Appeal Br. 11—12; Spec. 5:13-31. Based on the foregoing reasons, we agree with Appellants that neither Verard nor Shahidi discloses fusing a plurality of 2D images with each other to show the interventional instrument at different navigational motion stages to generate a 2D reconstruction of the cardiovascular system or cardiac chambers, as called for in claim 1. See Reply Br. 8—9; see also Appeal Br. 8—12; id. at 15, Claims App. Independent claim 6 is directed to an image processing system and independent claim 11 is directed to a computer program product and each independent claim includes language to “generating a 2D reconstruction of the cardiovascular system or cardiac chambers” similar to that discussed above for claim 1. See Appeal Br. 16—19, Claims App. The Examiner relies on the same unsupported findings and conclusions for claims 6 and 11 as those discussed above for claim 1. See Final Act. 3—4, 6—7. Thus, the Examiner’s findings with respect to Verard and Shahidi are deficient for claims 6 and 11 as well. 6 Appeal 2015-001513 Application 13/125,579 Accordingly, for the foregoing reasons, we do not sustain the Examiner’s rejection of independent claims 1, 6, and 11 and their respective dependent claims 2—4, 7, 8, and 10 as unpatentable over Verard and Shahidi. Obviousness over Verard, Shahidi, and Herman Claims 5 and 9 The Examiner’s rejection of claims 5 and 9 as unpatentable over Verard, Shahidi, and Herman is based on the same unsupported findings and conclusions discussed above with respect to independent claim 1. See Final Act. 7—8. The Examiner does not rely on Herman to remedy the deficiencies of Verard and Shahidi. Accordingly, for reasons similar to those discussed above for claim 1, we do not sustain the Examiner’s rejection of claims 5 and 9 as unpatentable over Verard, Shahidi, and Herman. DECISION We REVERSE the decision of the Examiner to reject claims 1—4, 6—8, 10, and 11 as unpatentable over Verard and Shahidi. We REVERSE the decision of the Examiner to reject claims 5 and 9 as unpatentable over Verard, Shahidi, and Herman. REVERSED 7