Ex Parte van der Kouwe et alDownload PDFPatent Trial and Appeal BoardJun 17, 201411977153 (P.T.A.B. Jun. 17, 2014) Copy Citation 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 2 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 3 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 4 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 . . . . Appeal 2012-002117 Application 11/977,153 5 (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 Appeal 2012-002117 Application 11/977,153 6 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. Appeal 2012-002117 Application 11/977,153 7 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 Copy with citationCopy as parenthetical citation