Ex Parte Tanttu

Patent Trial and Appeal Board

Apr 19, 2018

13817912 (P.T.A.B. Apr. 19, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/817,912 02/20/2013 Jukka Ilmari Tanttu
24737 7590 04/23/2018
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.
201 OP00778WOUS 5905
EXAMINER
IMPINK, BRADLEY GERALD
ART UNIT PAPER NUMBER
3768
NOTIFICATION DATE DELIVERY MODE
04/23/2018 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 JUKKA ILMARI TANTTU 1
Appeal2017-003135
Application 13/817 ,912
Technology Center 3700
Before ERIC B. GRIMES, RICHARD M. LEBOVITZ, and
JOHN E. SCHNEIDER, Administrative Patent Judges.
SCHNEIDER, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) involving claims to a
magnetic resonance imaging apparatus which have been rejected as
indefinite and as obvious. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
STATEMENT OF THE CASE
"The localized heating of tissues may be useful for therapeutic
treatments. For example increased tissue temperature may be used to induce
necrosis or induce other physiological changes in the target tissue." Spec. 1.
1 Appellant identifies the Real Party in Interest as Koninklijke Philips N.V.
Appeal Br. 2.
Appeal2017-003135
Application 13/817,912
"When heating tissue locally, it is beneficial to either measure the
temperature of the region being heated and/ or tissue surrounding the tissue
being heated." Id. The Specification describes a method and system to
calculate temperature using transverse relaxometry data. Id.
Claims 1-5, 7-10, 12, 14, and 15 are on appeal. Claim 1 is
representative and reads as follows:
1. An apparatus comprising a magnetic resonance
imaging system, the magnetic resonance imaging system
compnsmg:
a magnet adapted for generating a magnetic field for
orientating the magnetic spins of nuclei of a subject located
within an imaging volume;
a radio frequency transceiver adapted for acquiring
magnetic resonance data using a radio frequency coil;
a magnetic field gradient coil adapted for spatial
encoding of the magnetic spins of nuclei within the imaging
volume;
a magnetic field gradient coil power supply adapted for
supplying current to the magnetic field gradient coil;
a computer system comprising a processor, wherein the
computer system is adapted for controlling the apparatus; and
a memory containing machine readable instructions for
execution by the processor, wherein execution of the
instructions cause the processor to perform the steps of:
acquiring magnetic resonance data using the magnetic
resonance imaging system, wherein the magnetic resonance
data comprises transverse relaxometry T2 data, as well as
proton resonance frequency shift data, wherein at least the
transverse relaxometry T2 data is acquired using a turbo spin
echo (TSE) sequence, and
calculating temperature of the subject within a
temperature measurement volume during therapeutic treatment
in accordance with the transverse relaxometry T2 data, in
combination with calculating the temperature of the subject
within the temperature measurement volume in accordance with
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Application 13/817,912
the proton resonance frequency shift data, wherein the
temperature measurement volume is within the imaging
volume.
The claims have been rejected as follows2 :
Claim 10 has been rejected under 35 U.S.C. § 112, second paragraph
as indefinite.
Claims 1-5, 7, 8, 14, and 15 have been rejected under 35 U.S.C.
§ 103(a) as unpatentable over Gandhi3 in view of Kanazawa. 4
Claims 1, 7-9 have been rejected under 35 U.S.C. § 103(a) as
unpatentable over Gandhi in view of Kanazawa or Wehrli 5 in further view of
Freundlich. 6
Claim 12 has been rejected under 35 U.S.C. § 103(a) as unpatentable
over Gandhi in view of Kanazawa or Wehrli in further view of Misic. 7
INDEFINITENESS
Issue
Has the Examiner correctly determined that claim 10 is indefinite?
2 Claim 15 was rejected under 35 U.S.C. § 101 as being directed to non-
statutory subject matter. Final Act. 3. The Examiner has withdrawn that
rejection. Ans. 11.
3 Gandhi et al., Temperature Dependence of Relaxation Times in Bovine
Adipose Tissue, Proc. Int'l Soc. Magnetic Resonance in Med. 701 (2000)
("Gandhi").
4 Kanazawa, US 5,508,612, issued Apr. 16, 1996 ("Kanazawa").
5 Wehrli et al., US 4,777,957, issued Oct. 18, 1988 ("Wehrli").
6 Freundlich et al., US 6,618,620 B 1, issued Sept. 9, 2003 (Freundlich").
7 Misic et al., US 2008/0086050 Al, published Apr. 10, 2008 ("Misic").
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Application 13/817,912
The Examiner contends that claim 10 is indefinite because it recites
that the memory contains a pulsed sequence for controlling operation of the
MRI system wherein the pulsed sequence is an inversion recovery T2
weighted turbo spin echo sequence. Final Act. 2. The Examiner finds that
the claim as written is unclear whether the term refers to an additional turbo
spin sequence or a further definition of the sequence recited in claim 1. Id.
The Examiner also finds that the term "longitudinal relaxometry T 1 data"
lacks a proper antecedent as claim 1 does not recite T 1 data. Final Act. 3.
Appellant contends that claim 10 is not indefinite. Appeal Br. 7.
Appellant contends that claim 10 embraces an embodiment where
the memory contains a pulse sequence for controlling operation
of the magnetic resonance imaging system, where the pulse
sequence is an inversion recovery T2 weighted turbo spin echo
sequence, and where the pulse sequence is adapted for
acquiring both longitudinal relaxometry T 1 data and the
transverse relaxometry T2 data by using an inversion time
which is shorter than T 1 relaxation time.
Appeal Br. 4. Appellant further explains that the turbo spin echo (TSE)
sequence used to acquire the transverse relaxometry T2 data recited in claim
1, is the T2 pulse data recited in claim 10. Reply Br. 5.
Anaylsis
Appellant has the better argument. Claim 10 clearly adds an
additional limitation regarding pulse sequence data being stored in the
memory of the device and how that data is used to calculate T2. Claim 10
calls for the transverse relaxometry data to be calculated using the pulse
sequence data. Thus claim 10 directed ties the pulse sequence data to the T2
data of claim 1.
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Application 13/817,912
We agree with Appellant that claim 10 is not indefinite.
OBVIOUNSESS
Issue
The issue with respect to this rejection is whether a preponderance of
the evidence supports the Examiner's conclusion that the subject matter of
claims 1-5, 7, 8, 14, and 15 would have been obvious over Gandhi in view
of Kanazawa.
The Examiner finds that Gandhi teaches the use of MRI to guide
thermal ablative procedures and monitoring the temperature of water and fat
based tissue using different data sets. Final Act. 5. The Examiner finds that
while Gandhi teaches the use of T 1 data to monitor temperature change in
fat based tissue, and also teaches that T2 data is equivalent to Tl data,
therefore it would have been obvious to substitute one for the other. Id.
The Examiner finds that while Gandhi does not teach the use of turbo
spin echo sequences, this is taught by Kanazawa. Final Act. 5---6. The
Examiner concludes that "it would have been obvious to one of ordinary
skill in the art at the time of the invention to modify Gandhi to use fast spin
echo (or turbo spin echo) sequences in order to achieve faster imaging than
standard spin echo sequences." Id.
Appellant contends that Kanazawa does not teach the use of turbo
spin echo sequences
in the context of acquiring transverse relaxometry T2 data using
a TSE sequence, and calculating temperature of a subject within
a temperature measurement volume during therapeutic
treatment in accordance with the transverse relaxometry T2
data, in combination with calculating the temperature of the
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Application 13/817,912
subject within the temperature measurement volume in
accordance with acquired proton resonance frequency shift
data.
Appeal Br. 11.
Appellant argues that there is evidence of unexpected results to rebut
the Examiner's prima facie case of obviousness. Appeal Br. 11-18.
Appellant argues that the use of TSE sequences results in increased
temperature sensitivity which was unexpected. Appeal Br. 15. In support of
this argument Appellant cites to Baron 8 and the Tanttu Declaration9 which
show that use of TSE results in an unexpected "improvement in relative
temperature sensitivity k/T2 of more than 190 percent." Appeal Br. 14.
Principles of Law
An examiner bears the initial burden of presenting a
prima facie case of obviousness. Once the examiner establishes
a prima facie case of obviousness, the burden shifts to the
applicant to rebut that case. However, once the applicant has
come forward with rebuttal evidence, the examiner must
consider the totality of the evidence to determine whether the
obviousness rejection should stand.
In re Huai-Hung Kao, 639 F.3d 1057, 1066 (Fed. Cir. 2011) (citations
omitted).
8 Baron et al., In Vivo T2t2-based MR Thermometry in Adipose Tissue Layers
for High-Intensity Focused Ultrasound Near-Field Monitoring, 72 Magnetic
Resonance in Med. 1057 (2014).
9 Declaration of Inventor under 37 C.F.R. § 1.132, filed July 24, 2015
("Tanttu Deel.").
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Application 13/817,912
"One way for a patent applicant to rebut a prima facie case of
obviousness is to make a showing of 'unexpected results,' i.e., to show that
the claimed invention exhibits some superior property or advantage that a
person of ordinary skill in the relevant art would have found surprising or
unexpected." In re Soni, 54 F.3d 746, 750 (Fed. Cir. 1995).
Analysis
We have considered the arguments advanced by Appellant and the
Examiner and find while the Examiner established a prima facie case of
obviousness, Appellant put forth persuasive evidence of unexpected results
sufficient to overcome the prima facie case. As shown by Baron and the
Tanttu Declaration, the present invention yields significantly improved
temperature sensitivity which is unexpected. Tanttu Deel. i-fi-f 15 and 16.
The Examiner contends that Baron was published after the filing date
of the present application and cannot be considered as having any influence
on one of ordinary skill in the art at the time the invention was made. Ans.
13. The Examiner's argument is unpersuasive. Baron is not offered to show
what was known in the art at the time the invention was made but as
evidence of unexpected results. See, Appeal Br. 14. That Baron was
published after the filing date does not affect the probative value of the
reference.
The Examiner contends that the improved sensitivity is not relevant as
the motivation to combine the references was based on the fact that TSE
provides faster imaging. Ans. 14. Again we are unpersuaded. Motivation
to combine relates to the establishment of a prima facie case. The evidence
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relating to the unexpected increase in temperature sensitivity is offered to
rebut the prima facie case, not to disprove it.
The Examiner goes on to argue that even if the evidence were
relevant, it is not persuasive in that Appellant has not established that the
results are unexpected. Ans. 14--15. The Examiner contends that the
improved sensitivity is a feature of the invention that would naturally flow
from the invention. Ans. 15. The Examiner also argues that Appellant has
not shown why the results are unexpected in that there is no evidence as to
what one skilled in the art would expect the temperature sensitivity would be
using TSE. Ans. 16.
We have considered the Examiner's argument and find it
unpersuasive. Dr. Tanttu declares that the increased temperature sensitivity
shown using TSE was unexpected. Tanttu Deel. i-fi-f 15 and 16. This coupled
with the evidence that the use of TSE resulted in an increase in sensitivity of
over 190% supports the conclusion that the results are unexpected and rebuts
the Examiner's prima facie case. The Examiner has not advanced any
evidence or persuasively argued why the evidence of unexpected results is
insufficient.
We conclude that a preponderance of the evidence does not support
the Examiner's conclusion that claims 1-5, 7, 8, 14, and 15 would have been
obvious over Gandhi in view of Kanazawa.
With respect to the remaining rejections, Appellant offers the same
arguments with respect to those rejections are discussed above. See, Appeal
Br. 19-22. For the reasons discussed above, we reverse those rejections.
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SUMMARY
We reverse the rejection under 35 U.S.C. § 112, second paragraph.
We reverse the rejections under 35 U.S.C. § 103(a).
REVERSED
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