Ex Parte Vahala et al

Patent Trial and Appeal BoardDec 17, 2018

14407831 (P.T.A.B. Dec. 17, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 14/407,831 12/12/2014 Erkki Tapani V ahala 24737 7590 12/19/2018 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. 2012P00939WOUS 7252 EXAMINER ROZANSKI, MICHAEL T ART UNIT PAPER NUMBER 3793 NOTIFICATION DATE DELIVERY MODE 12/19/2018 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 ERKKI TAP ANI V AHALA, MIKA PETRI YLIHAUTALA, and MELANIE SUZANNE KOTYS Appeal2018-005288 Application 14/407 ,831 1,2 Technology Center 3700 Before BIBHU R. MOHANTY, MICHAEL C. ASTORINO, and KENNETH G. SCHOPPER, Administrative Patent Judges. ASTORINO, Administrative Patent Judge. DECISION ON APPEAL The Appellants appeal under 35 U.S.C. Â§ 134 from the Examiner's decision rejecting claims 1-20. We have jurisdiction over the appeal under 35 U.S.C. Â§ 6(b). We REVERSE. 1 "This application is the U.S. National Phase application under 35 U.S.C. Â§ 371 of International Application No. PCT/IB2013/054506, filed May 31, 2013." Amended Spec. (filed Dec. 12, 2014). The International Application was published as Vahala et al. (WO 2013/190413 Al, pub. Dec. 27, 2013) (hereinafter "V ahala"). 2 The real party in interest is Koninklijke Philips N.V. Appeal Br. 2. Appeal2018-005288 Application 14/407,831 STATEMENT OF THE CASE Claimed Subject Matter Claims 1 and 16 are the independent claims on appeal. Claim 1, reproduced below with added notations, is illustrative of the subject matter on appeal. 1. A medical instrument comprising: [(a)]- a medical imaging system for acquiring medical image data from an imaging zone; [ (b) ]- a treatment system for depositing energy into a treatment zone, wherein the treatment zone is within the imaging zone, wherein the treatment system is operable for depositing energy into a subject; [(c)]- a display for displaying a graphical user interface to an operator, wherein the graphical user interface is operable for receiving a halt command; [( d)]- a processor for controlling the medical instrument; and [( e )]- a computer storage for storing machine executable instructions for execution by the processor, wherein execution of the instructions causes the processor to receive a selection of a reference location; wherein execution of the instructions further causes the processor to receive a selection of one or more anatomical references, wherein execution of the instructions further causes the processor to repeatedly: [(el)]-control the treatment system depositing the energy into the subject in accordance with a treatment plan; [ ( e2) ]-control the medical imaging system to acquire the medical image data; [ ( e3) ]- reconstruct a medical image using the medical image data; [(e4)]- determine cumulative dosage data at least partially from controlling the treatment system depositing the energy into the subject, wherein the cumulative dosage data are registered to the medical image; [( e5)]- determine a first registration which registers the reference location to the medical image; 2 Appeal2018-005288 Application 14/407,831 [ ( e6) ]- determine a second registration which registers the one or more anatomical references to the medical image; [ ( e7) ]- render the medical image in the graphical user interface using the first registration to place the reference location in a predetermined position in the graphical user interface, such that the first registration enables the reference location to be displayed on a same position in the graphical user interface if the subject moves; [ ( e8) ]- render a representation of the one or more anatomical references in the graphical user interface using the second registration; [(e9)]- render the cumulative dosage data in the graphical user interface, wherein the cumulative dosage data is superimposed on the medical image; and [ ( e 10) ]- control the treatment system to halt the depositing the energy into the subject if the halt command is received from the graphical user interface. Rejection Claims 1-20 are rejected under 35 U.S.C. Â§ 102(b) as anticipated by George Zouridakis & Ni tin Bagrecha, Computational Tools for MRI-Guided Thermal Therapy, 3 WSEAS Transactions on systems WSEAS Greece 2308 (2004) (hereinafter "Zouridakis"). ANALYSIS Limitations ( e) and ( e 1) of independent claim 1 call for "a computer storage for storing machine executable instructions for execution by [a] processor [for controlling a medical instrument], ... wherein execution of the instructions further causes the processor to repeatedly ... control the treatment system depositing the energy into the subject in accordance with a 3 Appeal2018-005288 Application 14/407,831 treatment plan." Appeal Br., Claims App. Independent claim 16 includes a substantially similar limitation. See id. The Examiner finds that limitations ( e) and ( e 1) of claim 1 read on Zouridakis' disclosure. Final Act. 5, 9. The Examiner's support for this finding is a treatment planning tool of the graphical user interface ("GUI") (Zouridakis, Abstract) and Figure 9, which shows a "[s]patio-temporal tracking of pixels for filtering and temperature map computation purposes" (Zouridakis, Conclusions). Final Act. 5, 9. More specifically, the Examiner uses these disclosures to find that the claimed control instruction for a treatment system to deposit energy into a subject in accordance with a treatment plan is inherent and/or implied. See Ans. 7-8. The Examiner determines that Zouridakis' disclosure concerning "'treatment planning' at least inherently utilizes a 'treatment plan' that either contains instructions or contains information useful for controlling the treatment system or generating commands for controlling the treatment system." Ans. 7 (emphasis added). The "Examiner also submits that the reference discloses 'treatment planning' to indicate that a treatment plan is utilized and executed by the GUI." Id. The Appellants argue that although Zouridakis' GUI has the "ability to perform treatment planning[, that ability] does not inherently translate into controlling a treatment system in accordance with a treatment plan," as required by independent claims 1 and 16. Appeal Br. 12 ( emphasis omitted); see Reply Br. 4---6. The Appellants submit that "[t]here is no disclosure that a determined treatment plan is effected, but rather that treatment planning, which is not described in detail, is done." Reply Br. 6. 4 Appeal2018-005288 Application 14/407,831 The Appellants' argument is persuasive as the Examiner's determination is not based on adequately supported evidence. The Examiner also determines that: Figure 9 of Zouridakis shows continuous deposition of energy into the subject. This implies that the treatment system is controlled to deposit energy in accordance with a treatment plan. The computation of the thermal effect of heating of tissue as tracked in space and time ( along with computation of the dose as described in the reference) amounts to a control of the treatment system according to a treatment plan generated through the various algorithms developed for the GUI. Ans. 8 (emphasis added). The Examiner adds, "[i]t is noted that this implication from Figure 9 is the same position that is taken in the Written Opinion of the PCT/IB2013/054506 search report[, i.e., Vahala]." Id. The Appellants argue that Zouridakis' Figure 9 "actually shows tracking in space and time ( the temperature of) the various pixels, in order to compute thermal doses correctly," which is a "means of gathering data," and "does not disclose instructions causing a processor to repeatedly 'control the treatment system depositing the energy into the subject in accordance with a treatment plan."' Appeal Br. 12; Reply Br. 8; see Zouridakis, Conclusions. The Appellants' argument is persuasive. Further, we note that Vahala identifies Zouridakis as an "X" reference; i.e., a "document of particular relevance; the claimed invention cannot be considered novel or cannot be considered to involve an inventive step when the document is taken alone." Vahala, International Search Report; see id. at 28-29 (Claim 1), 32 (Claim 16). However, Vahala does not explain - with any degree of specificity - how limitations ( e) and ( e 1) of claim 1 or the substantially similar limitation of claim 16 would read on Zouridakis' disclosure. 5 Appeal2018-005288 Application 14/407,831 Lastly, the Examiner cites to a statement in Zouridakis' Conclusions section; i.e., "the GUI should be interfaced with the treatment apparatus to control the position and intensity of the focal point." Ans. 8 ( citing Zouridakis, Conclusions). The relevant paragraph of Zouridakis describes: Finally, with only a few exceptions, most of the results obtained thus far have been achieved with phantom and synthetic data, which were used to fine-tune the parameters of the various algorithms developed for the GUI. Finally, to achieve the long term objective of this line of research of an integrated tool for ablative thermal therapy, the GUI should be interfaced with the treatment apparatus to control the position and intensity of the focal point. Zouridakis, Conclusions ( emphasis added). The Appellants argue that this disclosure "seems to recognize that it would be useful to interface a GUI with a treatment apparatus to control an integrated instrument," but "falls short of tying the device to a treatment plan, and therefore does not disclose controlling the treatment system to actually execute the determined treatment plan." Reply Br. 8 ( emphasis omitted). The Appellants contend that the foregoing disclosure "recognizes the need to interface a GUI with a treatment apparatus to control an integrated instrument," but "Zouridakis does not describe how this is effected, or even that it could be effected." Id. (emphasis omitted). The Appellants' argument is persuasive. Ultimately, Zouridakis' GUI, including "treatment planning" and its associated functions, is not described in sufficient detail to adequately support the Examiner's finding that Zouridakis - by inherency or implication - includes a control instruction for a treatment system to deposit energy into a subject in accordance with a treatment plan, as required by independent claims 1 and 16. 6 Appeal2018-005288 Application 14/407,831 Thus, we do not sustain the Examiner's rejection of claims 1-20 as anticipated by Zouridakis. DECISION We REVERSE the Examiner's decision rejecting claims 1-20. REVERSED 7