Ex Parte Köhler et al

Patent Trial and Appeal Board

Oct 6, 2017

14005060 (P.T.A.B. Oct. 6, 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.
14/005,060 09/13/2013 Max Oskar Kohler 2011P00244WOUS 1875
24737 7590 10/11/2017
PTTTT TPS TNTFT T FfTTTAT PROPFRTY fr STANDARDS
EXAMINER
465 Columbus Avenue HOFFMAN, JOANNE M
Suite 340
Valhalla, NY 10595 ART UNIT PAPER NUMBER
3777
NOTIFICATION DATE DELIVERY MODE
10/11/2017 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):
patti. demichele @ Philips, com
marianne. fox @ philips, com
katelyn.mulroy @philips .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MAX OSKAR KOHLER, ERKKI TAPANI VAHALA, and
KIRSI ILONA NURMILAUKAS1
Appeal 2016-008078
Application 14/005,060
Technology Center 3700
Before TONI R. SCHEINER, RICHARD M. LEBOVITZ, and
RYAN H. FLAX, Administrative Patent Judges.
FLAX, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) involving
claims directed to an apparatus comprising a magnetic resonance imaging
system and a method of operating such an apparatus. Claims 2-12 and 15-
23 are on appeal as rejected under 35 U.S.C. §§ 102(b) and 103(a). We have
jurisdiction under 35 U.S.C. § 6(b).
We reverse.
1 Appellants identify the Real Party in Interest as “Koninklijke Philips N.V.”
App. Br. 1.
Appeal 2016-008078
Application 14/005,060
STATEMENT OF THE CASE
The Specification states:
The invention relates to a medical apparatus, a method, and a
computer program product....
There are several different methods to measure temperature by
utilizing magnetic resonance imaging. The proton resonance
frequency (PRF) based temperature mapping method is
commonly used because of its possibility to produce rapidly and
precisely continuous temperature maps with high signal to noise
ratio from the object or tissue in interest. The weakness of the
method is that it does not give absolute temperature, but the
temperature change relative to a certain, supposedly known
initial state. Another method, the proton spectroscopic (PS)
temperature imaging method, produces temperature maps with
absolute temperature scale, but the method is too slow to be used
in continuous imaging for most applications. Embodiment s [sic]
of the invention may combine the two methods, Proton frequency
based temperature mapping and proton spectroscopic imaging
temperature mapping methods, in such a way that the
spectroscopic imaging is used for obtaining an initial guess
and/or sanity checks during/before/after measuring temperature
maps with the PRF method.
Water proton resonance frequency based temperature mapping
method is based on the property of the water proton nuclei that
the local magnetic field experienced by the nuclei depends
linearly on the temperature at least in the temperature range 20-
80°C. This causes the phase of the nuclei to depend linearly on
their temperature on the RF-spoiled gradient echo images. The
formula used for calculation is:
AT=T-Tref=(^(T)-^(Tref))/(ayTEB0),
where § is the phase image at temperature T and Tref, a is the
water chemical shift in ppm* “C'1, y is the proton gyromagentic
[sic] ratio, Te is the echo time and Bo is the main magnetic field.
The method is almost independent of tissue composition.
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Application 14/005,060
Proton spectroscopic imaging based temperature mapping
method can produce temperature maps on absolute scale. The
method relies on the same physical principles of water proton
resonance shift temperature dependence as the PRF method, but
the acquisition method is different: the frequency shift is
calculated from the magnetic resonance spectra. The shift is
calculated from the position difference of the water and a
reference proton peak.
Spec. 1:22-2:21.
Claims 15, 18, and 22 are the independent claims; 15 is representative
and is reproduced below:
15. An apparatus comprising:
a magnetic resonance imaging system, the magnetic imaging
system comprising:
a magnet,
magnetic gradient field coils, and
a radio frequency coil;
a processor for controlling the apparatus; and
a memory storing machine readable instructions for execution by
the processor, wherein execution of the instructions causes the
processor:
to control the magnetic resonance imaging system to
generate a spectroscopic pulse sequence and in response
thereto to acquire spectroscopic magnetic resonance data
for an imaging zone,
to produce a calibration thermal map of the imaging zone
from the acquired spectroscopic magnetic resonance data,
to control the magnetic resonance imaging system to
generate a magnetic resonance thermometry pulse
sequence and in response thereto to acquire baseline
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Application 14/005,060
magnetic resonance thermometry data for the imaging
zone, and
to repeatedly: control the magnetic resonance imaging
system to generate the magnetic resonance thermometry
pulse sequence and in response thereto to acquire
additional magnetic resonance thermometry data for the
imaging zone, and produce a temperature map of the
imaging zone from the calibration thermal map, the
baseline magnetic resonance thermometry data, and the
additional magnetic resonance thermometry data.
App. Br. 22 (Claims App’x).
The following rejections are on appeal:
Claims 15,18,21, and 22 stand rejected under 35 U.S.C. § 102(b)
as anticipated by Zhou.2 Ans. 2.
Claims 2 and 5 stand rejected under 35 U.S.C. § 103(a) over
Zhou and Chopra.3 Id. at 5.
Claim 3 stands rejected under 35 U.S.C. § 103(a) over Zhou,
Chopra, Freundlich,4 and Widenhom.5 Id. at 7.
Claim 4 stands rejected under 35 U.S.C. § 103(a) over Zhou,
Chopra, and Pearson.6 Id. at 8.
Claim 6 stands rejected under 35 U.S.C. § 103(a) over Zhou,
Kaczkowski,7 and Grady.8 Id. at 9.
2 US 6,377,834 B1 (issued Apr. 23, 2002) (“Zhou”).
3 US 2006/0206105 A1 (published Sept. 14, 2006) (“Chopra”).
4 US 6,522,142 B1 (issued Feb. 18, 2003) (“Freudlich”).
5 US 2009/0105581 A1 (published Apr. 23, 2009) (“Widenhom”).
6 US 2003/0130711 A1 (published July 10, 2003) (“Pearson”).
7 US 2007/0106157 A1 (published May 10, 2007) (“Kaczkowski”).
8 US 2005/0163375 A1 (published July 28, 2005) (“Grady”).
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Application 14/005,060
Claim 7 stands rejected under 35 U.S.C. § 103(a) over Zhou,
Kaczkowski, Grady, and Seeber.9 Id. at 10.
Claim 8 stands rejected under 35 U.S.C. § 103(a) over Zhou,
Kaczkowski, Grady, Seeber, and Li.10 Id.
Claim 9 stands rejected under 35 U.S.C. § 103(a) over Zhou,
Kaczkowski, Grady, Seeber, and Chopra. Id. at 11.
Claim 10 stands rejected under 35 U.S.C. § 103(a) over Zhou,
Kaczkowski, Grady, andLewin.* 11 Id. at 12.
Claim 11 stands rejected under 35 U.S.C. § 103(a) over Zhou,
Shimizu,12 and Ishihara.13 Id.
Claim 12 stands rejected under 35 U.S.C. § 103(a) over Zhou and
Roberts.14 Id. at 13.
Claims 16 and 19 stand rejected under 35 U.S.C. § 103(a) over
Zhou and Yui.15 Id. at 13.
Claims 17 and 20 stand rejected under 35 U.S.C. § 103(a) over
Zhou, Yui, and Grist.16 Id. at 14.
Claim 23 stands rejected under 35 U.S.C. § 103(a) over Zhou and
De Neve.17 Id. at 16.
9 US 2005/0206380 A1 (published Sept. 22, 2005) (“Seeber”).
10 US 2008/0238423 A1 (published Oct. 2, 2008) (“Li”).
11 US 2004/0041563 A1 (published Mar. 4, 2004) (“Lewin”).
12 US 6,445,183 B1 (issued Sept. 3, 2002) (“Shimizu”).
13 US 6,194,899 B1 (issued Feb. 27, 2001) (“Ishihara”).
14 US 2004/0166062 A1 (published Aug. 26, 2004) (“Roberts”).
15 US 2009/0160440 A1 (published June 25, 2009) (“Yui”).
16 US 2006/0064002 A1 (published Mar. 23, 2006) (“Grist”).
17 US 2008/0243112 A1 (published Oct. 2, 2008) (“De Neve”).
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DISCUSSION
“[A] determination of anticipation, as well as obviousness, involves
two steps. First is construing the claim, . . . followed by, in the case of
anticipation or obviousness, a comparison of the construed claim to the prior
art.” Key Pharms, v. Hereon Labs. Corp., 161 F.3d 709, 714 (Fed. Cir.
1998).
Claim Interpretation
“[T]he words of a claim ‘are generally given their ordinary and
customary meaning.’ . . . [T]he ordinary and customary meaning of a claim
term is the meaning that the term would have to a person of ordinary skill in
the art in question at the time of the invention.” Phillips v. AWH Corp., 415
F.3d 1303, 1312-13 (Fed. Cir. 2005). However, “a claim must be read in
view of the specification of which it is a part.” Renishaw PLC v. Marposs
Societa’perAzioni, 158 F.3d 1243, 1248 (Fed. Cir. 1998). “[W]hile it is
true that claims are to be interpreted in light of the specification . . ., it does
not follow that limitations from the specification may be read into the
claims. . . . [T]he claims define the invention.” Sjolund v. Musland, 847
F.2d 1573, 1581-82 (Fed. Cir. 1988). “The specification acts as a dictionary
when it expressly defines terms used in the claims or when it defines terms
by implication.” Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582
(Fed. Cir. 1996).
The Patent Office applies the broadest reasonable claim interpretation
standard in proceedings. Cuozzo Speed Tech., LLC v. Lee, 136 S. Ct. 2131,
2145 (2016). Although PTO gives claims their broadest reasonable
interpretation during examination, claims must be interpreted as they would
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Application 14/005,060
be read by person of ordinary skill in the art, and prior art references are
indicative of how such a skilled artisan would have interpreted terms. In re
Cortright, 165 F.3d 1353, 1358 (Fed. Cir. 1999) (“Although the PTO must
give claims their broadest reasonable interpretation, this interpretation must
be consistent with the one that those skilled in the art would reach.”). A
claim construction that results in a dependent claim having the same scope
as the independent claim from which it depends, and which thus renders the
dependent claim superfluous, is “presumptively unreasonable.”
Beachcombers, Int’lInc. v. WildeWood Creative Prods., Inc., 31 F.3d 1154,
1162 (Fed. Cir. 1994).
Two claim terms or phrases are at issue in this appeal: (1)
spectroscopic magnetic resonance data', and (2) magnetic resonance
thermometry data.
In claim 15, a calibration thermal map is produced from
“spectroscopic magnetic resonance data.” The Specification defines
spectroscopic magnetic resonance data “as being the recorded
measurements of radio frequency signals emitted by atomic spins by the
antenna of a [mjagnetic resonance apparatus during a magnetic resonance
imaging scan which contains information which is descriptive of multiple
resonance peaks.” Spec. 5:30-33 (emphasis added to highlight Appellants’
argued language). The Specification describes a type of spectroscopic
imaging as using proton spectroscopic (PS) data collection. See id. at 1:24-
4:7. We interpret “spectroscopic magnetic resonance data” in accordance
with the above-indicated definition from the Specification, which would
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Application 14/005,060
include within its scope proton spectroscopic data so long as it is descriptive
of multiple resonance peaks.
In claim 15, the other claimed temperature mapping (i.e., baseline and
repeated) is obtained, inter alia, from “magnetic resonance thermometry
data.” The Specification defines magnetic resonance thermometry data “as
being the recorded measurements of radio frequency signals emitted by
atomic spins by the antenna of a [mjagnetic resonance apparatus during a
magnetic resonance imaging scan which contains information which may be
used for magnetic resonance thermometry,” which is a generic description of
MRI data as used for temperature measurement. Id. at 5:1—4.
Because the words “magnetic resonance thermometry data” are
different from “spectroscopic magnetic resonance data,” we find that this
second claimed type of data has a scope different from the first, and refers
more generically to any disclosed (or well-known) magnetic resonance
thermometry measurement technique and resulting data, including all those
specifically referred to in the Specification, i.e., proton resonance frequency
shift, diffusion coefficient, change in the T1 and/or T2 relaxation time,
and/or proton spectroscopic measurements, or other well-known MRI
techniques and data. See id. at 4:29-5:33 (identifying types of magnetic
resonance data useful to measure temperature); see also claim 11 (depending
from claim 15 and expressly reciting various MR thermometry data).18 This
does not exclude spectroscopic data.
18 Under 35 U.S.C. § 112, fourth paragraph, (or § 112(d) under the AIA
law), “a claim in dependent form shall contain a reference to a claim
previously set forth and then specify a further limitation of the subject matter
claimed. A claim in dependent form shall be construed to incorporate by
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Anticipation of Claims 15, 18, 21, and 22
A patent claim is invalid for anticipation under 35 U.S.C. § 102 when
a prior art reference describes “each and every claim limitation and enable[s]
one of skill in the art to practice an embodiment of the claimed invention
without undue experimentation.” ClearValue, Inc. v. Pearl River Polymers,
Inc., 668 F.3d 1340, 1344 (Fed. Cir. 2012) (quoting Am. Calcar, Inc. v. Am.
Honda Motor Co., 651 F.3d 1318, 1341 (Fed. Cir. 2011)). “A single prior
art reference may anticipate without disclosing a feature of the claimed
invention if such feature is necessarily present, or inherent, in that
reference.” Allergan, Inc. v. ApotexInc., 754 F.3d 952, 958 (Fed. Cir.
2014).
“[Ajfter the PTO establishes a prima facie case of anticipation based
on inherency, the burden shifts to appellant to ‘prove that the subject matter
shown to be in the prior art does not possess the characteristic relied on.’”
In re King, 801 F.2d 1324, 1327 (Fed. Cir. 1986) (quoting In re Swinehart,
439 F.2d 210, 212-13 (CCPA 1971)). However, “the examiner must
provide some evidence or scientific reasoning to establish the reasonableness
of the examiner’s belief that the functional limitation is an inherent
characteristic of the prior art” before the burden is shifted to Applicants to
disprove the inherency. Ex parte Skinner, 2 USPQ2d 1788, 1789 (BPAI
1986).
The Examiner determined Zhou anticipated claims 15, 18, and 22 (and
Zhou is the foundational reference for every rejection). Zhou is directed to
reference all the limitations of the claim to which it refers.” See also
Monsanto Co. v. Syngenta Seeds, Inc., 503 F.3d 1352, 1358 (Fed. Cir. 2007).
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NMR temperature mapping (see, e.g., Zhou Abstract) and the Examiner
contends that NMR connotes spectroscopic data collection and imaging and
that magnetic resonance is, in general, a type of NMR. The Examiner states,
e.g., “NMR is nuclear magnetic resonance spectroscopy,” because “any data
coming from NMR would contain information which is descriptive of
multiple resonance peaks,” per the Specification’s definition of
“[sjpectroscopic magnetic resonance data,” and because “NMR
spectroscopy shows the spectroscopic data in a chemical shift response,”
which is converted to an image. Ans. 17-21 (where relevant, referring to
Spec. 5:30-33); see also Zhou 1:49-62, 6:20^16 (disclosing using NMR to
image quantitative temperature measurements based on thermally induced
chemical shift changes). Each of the Examiner’s rejections is premised on
this determination.
Appellants argue Zhou does not disclose “a spectroscopic pulse
sequence or acquiring spectroscopic magnetic resonance data.” App. Br. 7.
Appellants argue Zhou does not disclose “a calibration thermal man of the
imaging zone from the acquired spectroscopic magnetic resonance data.”
App. Br. 8.
In the Final Action, the Examiner indicates “Zhou et al. does not teach
explicitly . . . : wherein spectroscopic magnetic resonance data is descriptive
of the proton-resonance frequency shift of multiple resonance peaks,” which
coincides, generally, with the Specification’s definition of “spectroscopic
magnetic resonance data,” which again states, “radio frequency signals
emitted by atomic spins by the antenna of a [mjagnetic resonance apparatus
during a magnetic resonance imaging scan which contains information
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Application 14/005,060
which is descriptive of multiple resonance peaks.” Final Action 13; and
Spec. 5:30-33. While Zhou is directed to NMR imaging, which may be
spectroscopic magnetic resonance imaging as contended by the Examiner,
Zhou is silent on whether its NMR data “is descriptive of multiple resonance
peaks.”
Here, the Examiner’s explanation of how NMR magnetic resonance
imaging, as disclosed by Zhou, would necessarily invoke the claimed
subject matter does not include a single citation in support of the Examiner’s
findings. See Ans. 18-20. While the Examiner’s rationale may appear
reasonable, we cannot affirm a rejection that is based on a determination of
inherency, while lacking any identification of evidence to support such a
determination, and which is contested by Appellants. See Reply Br. 6-9
(“The Examiner goes on to present a lengthy dissertation regarding NMR
and NMR imaging (also known as MRI) - all without a single citation to any
document in the art in support of any of the statements included therein.”).
For the above reasons, we find the Examiner has not carried the initial
burden to establish a prima facie case that Zhou anticipates the rejected
claims. For this reason, we reverse the anticipation rejection.
Obviousness
A proper § 103 analysis requires “a searching comparison of the
claimed invention—including all its limitations—with the teachings of the
prior art.” In re Ochiai, 71 F.3d 1565, 1572 (Fed. Cir. 1995).
As identified, supra, every rejection relies on Zhou as allegedly
teaching all the elements of the independent claims on appeal. However, as
discussed, supra, it is not clear from the record that Zhou teaches all the
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elements of the independent claims. Specifically, there is no evidence that
Zhou (or any other cited reference) discloses “spectroscopic magnetic
resonance data,” as it is explicitly defined in the Specification, and the
necessarily associated and also-recited claim elements, because there is no
evidence that Zhou’s NMR data inherently includes “information which is
descriptive of multiple resonance peaks.”19
Because the record does not support a prima facie case for
obviousness over Zhou, we reverse each obviousness rejection.
SUMMARY
All rejections are reversed.
REVERSED
19 We note that in rejecting claim 12, the Examiner cites Roberts 97) as
disclosing “spectroscopic magnetic resonance data is descriptive of the
proton-resonance frequency shift of multiple resonance peaks.” Final
Action 13. Reviewing Roberts, we agree that it does disclose NMR data
collected utilizing chemical shift magnetic resonance imaging, which
includes multiple peaks suggestive of specific chemicals. Roberts ^ 97.
However, we also find that Roberts does not suggest using such data to
measure temperature, but only to identify molecules, e.g., ethanol or water.
Id. There is no rational underpinning presented for the combination of
Roberts and Zhou other than that they both relate to NMR technology —
they have different objectives and use NMR data for different purposes.
Therefore, we are not persuaded on the record before us that Zhou and
Roberts would have been combined so as to render the independent claims
or claim 12 obvious.
12