Ex Parte Köhler et alDownload PDFPatent Trial and Appeal BoardOct 6, 201714005060 (P.T.A.B. Oct. 6, 2017) Copy Citation 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. 2 Appeal 2016-008078 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 3 Appeal 2016-008078 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”). 4 Appeal 2016-008078 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”). 5 Appeal 2016-008078 Application 14/005,060 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 6 Appeal 2016-008078 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 7 Appeal 2016-008078 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 8 Appeal 2016-008078 Application 14/005,060 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). 9 Appeal 2016-008078 Application 14/005,060 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 10 Appeal 2016-008078 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 11 Appeal 2016-008078 Application 14/005,060 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 Copy with citationCopy as parenthetical citation