Ex Parte van der Kouwe et al

Patent Trial and Appeal Board

Jun 17, 2014

11977153 (P.T.A.B. Jun. 17, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte ANDRE VAN DER KOUWE, BRUCE FISCHL, and
LAWRENCE WALD
__________

Appeal 2012-002117
Application 11/977,153
Technology Center 3700
__________

Before TONI R. SCHEINER, DEMETRA J. MILLS, and
LORA M. GREEN, Administrative Patent Judges.

MILLS, Administrative Patent Judge.

DECISION ON APPEAL

This is an appeal under 35 U.S.C. § 134. The Examiner has rejected
the claims for anticipation. We have jurisdiction under 35 U.S.C. § 6(b).
Appeal 2012-002117
Application 11/977,153

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STATEMENT OF CASE
According to the Specification,
The present invention allows RF pulses employed in a
prescribed pulse sequence to be tailored to a selected target
structure. The target structure is selected using the
segmentation information and the system produces RF pulses
that will excite the tissues in the target structure. Multiple
transmit coils may be used to shape the excited region to
correspond with the current location of the target structure. In
addition, this same information may be used to produce RF
saturation pulses that saturate spins in regions surrounding the
target structure so that signals therefrom are suppressed.

(Spec. 2 (emphasis added).)
The following claim is representative.
1. A method for imaging a desired structure in a subject
with a magnetic resonance imaging (MRI) system, the steps
comprising:
a) acquiring an image with the MRI system during a first
session that
depicts the desired structure;
b) segmenting the acquired image to identify a position
and boundary of the desired structure;
c) prescribing a pulse sequence using the identified
position and boundary produced in step b) to tailor a radio
frequency (RF) pulse for application to the desired structure;
and
d) acquiring an image of the desired structure using the
MRI system and the pulse sequence prescribed in step c).

Cited References

van der Kouwe et al., On-line automatic slice positioning for brain MR
imaging, 27 NEUROIMAGE 222-230 (2005).
Appeal 2012-002117
Application 11/977,153

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Grounds of Rejection
Claims 1-17 rejected under 35 U.S.C. § 102(b) as being anticipated by
van der Kouwe.

FINDINGS OF FACT
The Examiner’s findings of fact are set forth in the Answer at pages 4-
10. The following facts are highlighted.
1. According to the Specification,
When the automatic segmentation is completed the operator
may elect at decision block 308 to manually select additional
structures as indicated at process block 310. For example, a
tumor depicted in the anatomic image may be manually
selected by moving a cursor around its boundary using a
computer mouse or a track ball. Alternatively, it is
contemplated that selection may be done without any automatic
segmentation step and, instead, a fully manual segmentation
process is performed.

(Spec. 9, ¶ 40 (emphasis added).)
2. As taught by the Specification, “the multiple RF transmitters 198
and associated coil elements in the array 155 [of the MRI system] are
separately driven to produce RF excitation and RF saturation pulses
that optimally select the structure of interest.” (Id. at 13, ¶ 57
(emphasis added).)

3. According to the Specification:
The target structure is selected using the segmentation
information and the system produces RF pulses that will excite
the tissues in the target structure. Multiple transmit coils may be
used to shape the excited region to correspond with the current
Appeal 2012-002117
Application 11/977,153

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location of the target structure. In addition, this same
information may be used to produce RF saturation pulses that
saturate spins in regions surrounding the target structure so that
signals therefrom are suppressed.

(Id. at 13, ¶ 9.)

Discussion
ISSUE
The Examiner finds that van der Kouwe teaches each element
claimed. In particular, the Examiner finds that
With respect to applicant’s claim, even the fact that van der
Kouwe is looking at brain tissue could be considered a “desired
structure” and that the slice positions are analytically specified
could be considered “segmenting the acquired image to identify
a position and boundary of the desired structure”. However,
van der Kouwe continues to further explain that “The atlas-
based alignment procedure seeks to find the most probably
alignment and tissue classification for the subject, given
localizer scans and atlas information. This approach scales well
with pathology, and the problem is highly overdetermined”
(Page 224). In this sense, it is clear that the image is segmented
because the tissue is classified within the images.

(Ans. 11(emphasis added).)
Appellants contend that
The Examiner’s assertion relies on the assumption that
prescribing an MRI pulse sequence in the abstract must
necessarily include the tailoring of an RF pulse using the
position and boundary of a segmented structure such that the
RF pulse is tailored particularly for application to that
segmented structure. Such an assumption amounts to a broader
than reasonable interpretation of the claimed invention . . . .

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Application 11/977,153

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(Reply Br. 4.) Appellants argue that
First, the method taught by van der Kouwe operates globally;
thus, according to van der Kouwe, to align localizer images to
the anatomical space defined by a pre-compiled statistical atlas,
the position and boundary of a desired structure, which would
constitute a landmark, is not determined or identified. Instead,
the algorithm operates on all portions of the brain.
The second inference follows logically from the first. If
the algorithm of van der Kouwe operates globally and does not
use landmarks, then there is no reason why van der Kouwe
would ever display the position and boundary of a desired
structure identified on a segmented image, let alone select a
desired structure using such a display. Indeed, a close and
proper reading of page 226, paragraphs 3—4 of van der Kouwe
reveals that no disclosure is provided in which a desired
structure to be imaged is selected from a displayed position and
boundary of that desired structure that were identified . . . .

(Br. 14 (emphasis added).)
The issue is: Does the cited prior art support the Examiner’s finding
that the claimed subject matter is anticipated?

PRINCIPLES OF LAW
In making our determination, we apply the preponderance of the
evidence standard. See, e.g., Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427
(Fed. Cir. 1988) (explaining the general evidentiary standard for proceedings
before the Office). The Board “determines the scope of claims in patent
applications not solely on the basis of the claim language, but upon giving
claims their broadest reasonable construction ‘in light of the specification as
it would be interpreted by one of ordinary skill in the art.’” Phillips v. AWH
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Application 11/977,153

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Corp., 415 F.3d 1303, 1316 (Fed. Cir. 2005) (quoting In re Am. Acad. of Sci.
Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004).
In order for a prior art reference to serve as an anticipatory reference,
it must disclose every limitation of the claimed invention, either explicitly or
inherently. See In re Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997). To
anticipate, every element and limitation of the claimed invention must be
found in a single prior art reference, arranged as in the claim. Karsten Mfg.
Corp. v. Cleveland Golf Co., 242 F.3d 1376, 1383 (Fed. Cir. 2001).
We recognize that during prosecution before the Office, claims are to
be given their broadest reasonable interpretation consistent with the
Specification as it would be interpreted by one of ordinary skill in the art. In
re Am. Acad. Of Sci. Tech. Ctr, 367 F.3d at 1364. Claim language, however,
“should not [be] treated as meaningless.” Bicon, Inc. v. Straumann Co., 441
F.3d 945, 951 (Fed. Cir. 2006). Moreover, “the claims themselves provide
substantial guidance as to the meaning of particular claim terms.” Phillips.,
415 F.3d at 1314.

ANALYSIS
We find that the Examiner has not provided evidence to support a
prima facie case of anticipation. We do not find that the Examiner has
provided evidence to support that van Der Kouwe discloses Claim 1, steps
(b) and (c) of “segmenting the acquired image to identify a position and
boundary of the desired structure,” and “prescribing a pulse sequence using
the identified position and boundary produced in step b) to tailor a radio
frequency (RF) pulse for application to the desired structure,” as claimed.
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Application 11/977,153

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Appellants have argued that “the algorithm of van der Kouwe
operates globally and does not use landmarks, then there is no reason why
van der Kouwe would ever display the position and boundary of a desired
structure identified on a segmented image, let alone select a desired structure
using such a display.” (Br. 14 (emphasis added).)
The Examiner has found that the statistical atlas of van Der Kouwe
can find a most probable alignment and tissue classification (gray matter,
white matter, CSF, skin, skull, eyes) (page 224, first full paragraph),
however, the Examiner not pointed to a specific disclosure in van Der
Kouwe consistent with the Specification’s usage of the concept of
identifying a position and boundary of a desired structure, such as by
manually selecting a structure, such as a tumour (FF1), and then prescribing
a pulse sequence using that identified position and boundary, as required by
claim 1.Thus, the Examiner has failed to meet the burden of providing
demonstrating that steps (b) and (c) are taught, either explicitly or inherently,
in the van der Kouwe reference, and the anticipation rejection is reversed.

CONCLUSION OF LAW
The cited reference does not support the Examiner’s anticipation
rejection which is reversed.

REVERSED

cdc