Ex Parte Vik et al

Patent Trial and Appeal Board

Oct 6, 2016

12531494 (P.T.A.B. Oct. 6, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/531,494 09/16/2009 Torbjoern Vik
38107 7590 10/11/2016
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.
2007P00232WOUS 1405
EXAMINER
NAJARIAN, LENA
ART UNIT PAPER NUMBER
3626
NOTIFICATION DATE DELIVERY MODE
10/11/2016 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):
marianne.fox@philips.com
debbie.henn@philips.com
patti.demichele@philips.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TORBJOERN VIK and JULIEN SENEGAS
Appeal2014-004644 1
Application 12/531,4942
Technology Center 3600
Before NINA L. MEDLOCK, PHILIP J. HOFFMANN, and
MATTHEWS. MEYERS, Administrative Patent Judges.
MEDLOCK, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's final
rejection of claims 1-8, 11, 12, 32, 33, and 35--41. We have jurisdiction
under 35 U.S.C. § 6(b ).
We AFFIRM-IN-PART.
1 Our decision references Appellants' Appeal Brief ("App. Br.," filed
September 10, 2013) and Reply Brief ("Reply Br.," filed February 26,
2014), and the Examiner's Answer ("Ans.," mailed December 27, 2013) and
Final Office Action ("Final Act.," mailed April 10, 2013).
2 Appellants identify Koninklijke Philips Electronics N.V. as the real party
in interest. App. Br. 1.
Appeal2014-004644
Application 12/531,494
CLAIMED fNVENTION
Appellants' claimed invention "relates to the radiotherapy treatment
arts" (Spec. 1, 1. 2 ).
Claims 1, 3 3, and 41 are the independent claims on appeal. Claim 1,
reproduced below, is illustrative:
1. A method of planning radiotherapy treatment
compnsmg:
generating an initial delineation of a target structure within
a patient with a segmentation processor;
creating an optimal radiotherapy plan from the initial
delineation of the target structure with a radiotherapy planning
processor;
creating a plurality of alternate delineations of the target
structure with the segmentation processor;
producing a target measure for each alternate delineation
by a target measure processor;
calculating at least one statistic from the target measures
of the alternate delineations with a statistic processor;
displaying the statistic to a user on a display.
REJECTIONS
Claims 33 and 35--40 are rejected under 35 U.S.C. § 112, second
paragraph, as indefinite for failing to particularly point out and distinctly
claim the subject matter that Appellants regard as the invention. 3
Claims 32 and 40 rejected under 35 U.S.C. § 112, fourth paragraph, as
being of improper dependent form for failing to further limit the subject
matter of a previous claim.
3 We treat the Examiner's mistaken reference to canceled claim 34 as
inadvertent.
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Appeal2014-004644
Application 12/531,494
Claims 1-8, 11, 12, 32, 33, and 35--41 are rejected under 35 U.S.C.
§ 102(b) as anticipated by Dempsey (US 2005/0197564 Al, pub. Sept. 8,
2005).
ANALYSIS
Section 112 Rejections
Appellants do not present any response to the Examiner's rejection of
claims 33 and 35--40 under 35 U.S.C. § 112, second paragraph, or to the
rejection of claims 32 and 40 rejected under 35 U.S.C. § 112, fourth
paragraph. Therefore, we summarily sustain the Examiner's rejections.
Anticipation 4
Independent claim 1 and dependent claims 2---8, 11, 12, and 32
We are persuaded by Appellants' argument that the Examiner erred in
rejecting claim 1under35 U.S.C. § 102(b) because Dempsey does not
disclose "calculating at least one statistic from the target measures of the
alternate delineations with a statistic processor; [and] displaying the statistic
to a user on a display," as recited in claim 1 (App. Br. 8-9).
Dempsey is directed to "[a] device and a process for performing high
temporal- and spatial-resolution MR imaging of the anatomy of a patient
during intensity modulated radiation therapy (IMR T) to directly measure and
control the highly conformal ionizing radiation dose delivered to the patient
for the treatment of diseases caused by proliferative tissue disorders"
(Dempsey, Abstract). Dempsey discloses that with IMRT, a high degree of
4 We characterize claims 32 and 40 as dependent claims here, consistent
with the characterization of those claims by Appellants and the Examiner.
However, we need not, and do not, decide any issue related to the
correctness of that characterization.
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Appeal2014-004644
Application 12/531,494
accuracy and precision has been achieved for static objects but explains that
a problem lies in the fact that patients are essentially dynamic deformable
objects that cannot be perfectly positioned for fractional radiotherapy such
that, even for one dose delivery, intra-fraction organ motion can cause
significant errors (id. i-f 14). Dempsey describes that with prior art systems,
where images of a patient's anatomy are generated before and/or after
radiation delivery, the images do not reflect movement and/or natural
changes that occur in the patient during radiation delivery; as a result, the
radiation treatment may not be successful if after the image is taken, the
portion of the body to be treated either changes in size naturally (e.g., due to
tumor growth or shrinkage) or changes in location due to shifting of the
patient prior to treatment (id. i-f 49). Dempsey discloses that its system helps
to eliminate these issues by performing real-time MRI of the patient
substantially simultaneous to radiation delivery and then readjusting the
targeted radiation if the region to be treated suffers from any type of
dosimetric error caused patient setup error, physiological change, and inter-
fraction or intra-fraction organ motion (id. i-f 50; see also id. i-fi-132, 33).
The Examiner cites paragraphs 14, 32, and 50 of Dempsey as
disclosing "calculating at least one statistic from the target measures of the
alternate delineations with a statistic processor," as recited in claim 1 (Final
Act. 5, 7), and cites Dempsey paragraphs 50 and 53 and Figures 9--10 of
Dempsey as disclosing "displaying the statistic to a user on a display" (id.).
Yet we find nothing in paragraphs 14, 32, and 50 of Dempsey that discloses
"calculating at least one statistic," as claimed. Instead, as described above,
these portions of Dempsey merely disclose performing real-time MRI of the
patient substantially simultaneous to radiation delivery and then readjusting
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Appeal2014-004644
Application 12/531,494
the targeted radiation if the region to be treated suffers from dosimetric
error. We also find nothing in paragraph 50 that discloses "displaying the
statistic to a user on a display."
Paragraph 53 of Dempsey describes the computational analysis that
demonstrates the enablement of Dempsey's cobalt IMRT, and Dempsey, in
Figures 9 and 10, shows the results of the analysis in graph form. But we
find nothing in these portions of Dempsey that discloses "displaying the
statistic [from the target measures of the alternate delineations with a
statistic processor] to a user on a display," as called for in claim 1.
In view of the foregoing, we do not sustain the Examiner's rejection
of independent claim 1under35 U.S.C. § 102(b). For the same reasons, we
also do not sustain the Examiner's rejection of dependent claims 2-8, 11, 12,
and 32.
Independent claims 33 and 41 and dependent claims 35-40
Independent claims 33 and 41 include language substantially similar
to the language of claim 1. Therefore, we do not sustain the Examiner's
rejection under 35 U.S.C. § 102(b) of independent claims 33 and 41, and
dependent claims 35--40, for the same reasons set forth above with respect to
claim 1.
DECISION
The Examiner's rejection of claims 33 and 35--40 under 35 U.S.C.
§ 112, second paragraph, is affirmed.
The Examiner's rejection of claims 32 and 40 under 35 U.S.C. § 112,
fourth paragraph, is affirmed.
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Appeal2014-004644
Application 12/531,494
The Examiner's rejection of claims 1-8, 11, 12, 32, 33, and 35--41
under 35 U.S.C. § 102(b) is reversed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED-IN-PART
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