Ex Parte Virta et al

Patent Trial and Appeal Board

Jun 22, 2017

13376858 (P.T.A.B. Jun. 22, 2017)

United States Patent and Trademark Office
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/376,858 12/08/2011 Tero Jouko Valtter Virta 2009P00020WOUS 2304
24737 7590 06/26/2017
PTTTT TPS TNTFT T FfTTTAT PROPFRTY fr STANDARDS
EXAMINER
465 Columbus Avenue FERNANDEZ, KATHERINE L
Suite 340
Valhalla, NY 10595 ART UNIT PAPER NUMBER
3768
NOTIFICATION DATE DELIVERY MODE
06/26/2017 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 TERO JOUKO VALTTER VIRTA,
GOSTA JAKOB EHNHOLM, and PAAVO IMMOONEN1
Appeal 2016-002403
Application 13/376,858
Technology Center 3700
Before ERIC B. GRIMES, JOHN G. NEW, and
DEVON ZASTROW NEWMAN, Administrative Patent Judges.
NEW, Administrative Patent Judge.
DECISION ON APPEAL
appellants state the real party-in-interest is Koninklijke Philips N.V. App.
Br. 3.
Appeal 2016-002403
Application 13/376,858
SUMMARY
Appellants file this appeal under 35 U.S.C. § 134(a) from the
Examiner’s Final Rejection of claims 1—4 and 7—12.2 Specifically, claims
1—4, 7, and 8 stand rejected as unpatentable under 35 U.S.C. § 103(a) as
being
obvious over the combination of Aida et al. (US 5,590,653, issued January 7,
1997) (“Aida”), Rezzonico et al. (US 2007/0282192 Al, published
December 6, 2007) (“Rezzonico”), Appel et al. (US 2004/0090230 Al,
published May 13, 2004) (“Appel”).
Claim 9 stands rejected as unpatentable under 35 U.S.C. § 103(a) as
obvious over the combination of Aida, Rezzonico, Appel, and Atalar et al.
(US 6,898,454 B2, issued May 24, 2005) (“Atalar”).
Claims 10-12 stand rejected as unpatentable under 35 U.S.C. § 103(a)
as obvious over the combination of Aida, Rezzonico, Appel, and Griffin et
al. (US 5,767,674, issued June 16, 1998) (“Griffin”).
We have jurisdiction under 35 U.S.C. § 6(b)
We AFFIRM.
NATURE OF THE CFAIMED INVENTION
Appellants’ invention is directed to a therapeutic system that
comprises: an ultrasound therapy unit arranged to sonicate at least a portion
of a body of a patient with high intensity and a magnetic resonance imaging
2 Claims 1—4 and 7—9 were also rejected by the Examiner as unpatentable
under 35 U.S.C. § 103(a) as being obvious over the combination of Vitek et
al. (US 6,735,461 B2, issued May 11, 2004) (“Vitek”) in combination
severally with Aida, Rezzonico, Appel, and Griffin. See Final Act. 6—9, 10-
11, 13—14. These rejections have been withdrawn by the Examiner. Ans. 2.
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unit arranged to acquire MR signals from the portion of the body and to
reconstruct a MR image from the MR signals. Abstract.
REPRESENTATIVE CLAIM
Claim 1 is representative of the claims on appeal and recites:
1. A therapeutic system comprising:
an ultrasound therapy unit arranged to insonify at
least a portion of a body of a patient with high intensity
ultrasound, wherein the ultrasound therapy unit comprises
an ultrasound applicator attached to a patient table
carrying the body of the patient, and
a MR imaging unit arranged to acquire MR signals
from the portion of the body and to reconstruct a MR
image from the MR signals,
a MR imaging unit arranged to acquire MR signals
from the portion of the body and to reconstruct a MR
image from the MR signals, wherein the MR imaging unit
comprises a RF receiving antenna for receiving the MR
signals, the RF receiving antenna being integrally
incorporated into the patient table,
wherein the RF receiving antenna comprises a
watertight casing and is located within a watertight
compartment of the patient table, and
wherein the watertight compartment is arranged at
a circumference of a treatment hole formed in the patient
table.
App. Br. 30.
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ISSUES AND ANALYSES
We agree with, and adopt, the Examiner’s findings and conclusion
that the appealed claims are prima facie obvious over the combined prior art
cited by the Examiner. We address the arguments raised by Appellants
below.
A. Rejection of claims 1—4 and 7 under 35 U.S.C. $ 103(a)
Issue
Appellants argues the Examiner erred in that the combined cited prior
art references neither teach nor suggest the limitations of claim 1 reciting:
(1) the MR imaging unit comprises a [radio frequency] RF receiving antenna
for receiving the [magnetic resonance] MR signals, the RF receiving antenna
being integrally incorporated into the patient table; (2) the RF receiving
antenna comprises a watertight casing and is located within a watertight
compartment of the patient table; and (3) the watertight compartment is
arranged at a circumference of a treatment hole formed in the patient table.
App. Br. 20.
Analysis
The Examiner finds, in relevant part, that Aida teaches an RF
receiving antenna integrally incorporated into the patient table and that the
RF receiving antenna is arranged at a circumference of a treatment hole
formed in the patient table. Final Act. 6—8 (citing Aida col. 7,11. 40-50, 23—
50; cols. 8—9,11. 38-43; Figs. 1, 3). The Examiner finds Aida also teaches
that the RF receiving antenna is arranged at a circumference of a treatment
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Application 13/376,858
hole formed in the patient table. Id. (citing Aida, col. 7,11. 41—50; Figs. 1,
3).
The Examiner finds Rezzonico teaches a hidden housing/receptacle
(i.e., element 307 “compartment of the patient table”) within the patient
table thyat houses a coil adapted to receive signals from anatomic regions
upon excitation by the MR imaging apparatus. Final Act. 7 (citing
Rezzonico 80, 83, 5, 7, Figs. 11—13).
The Examiner further finds Appel teaches encasing an NMR sensor
structures, including an RF transmit/receive antenna, in a protective package
in order to protect the structures from ambient conditions, including fluids,
pressure and shock. Final Act. 8 (citing Appel 1 60; Fig. 4A)
The Examiner concludes that, at the time of the invention, it would
have been obvious to one of ordinary skill in the art to have the RF receiving
antenna located within a compartment of the patient table, as taught by
Rezzonico, so as to provide a hidden housing for the RF receiving antenna.
Final Act. 4. (cite) The Examiner also concludes that it would have been
obvious to one of ordinary skill in the art to encase the RF receiving antenna
in a watertight compartment, as taught by Appel, to protect the RF receiving
antenna from ambient conditions, including fluids. Id. at 5
Appellants argue that Aida does not teach that it is necessary or
required that its RF receiving antenna 20 comprises a watertight casing or is
located within a watertight compartment of the patient table 22 to receive
MR signals as taught by Aida. App. Br. 20
According to Appellants, their instant application was conceived in
view of the failure of Aida to describe, teach or suggest that the RF receiving
antenna is integrally incorporated into the patient table, and in which the RF
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receiving antenna includes a watertight casing and is located within a
watertight compartment of the patient table, arranged at a circumference of a
treatment hole formed in patient table. App. Br. 20—21 (citing Spec. 2,11.
10-23).
Appellants argue further that neither Rezzonico nor Appel teach or
suggest a modification of Aida to integrally incorporate the RF receiving
antenna into the patient table, in which the RF receiving antenna includes a
watertight casing and is located within a watertight compartment of the
patient table and arranged at a circumference of a treatment hole formed in
patient table. App. Br. 21. Specifically, Appellants assert that Rezzonico
and Appel, in combination, teach insertion of the MR sensor of Appel (Fig.
4A) into a drawer of Rezzonico (Fig. 12) that would be impeded for closure
by treatment hole 24 of Aida. Id. (citing Appel Fig. 4 A; Rezzonico Fig. 12
Aida Fig. 1). Therefore, Appellants argue, Rezzonico and Appel in
combination fail to teach or suggest the disputed limitations of claim 1 and
that, absent any teaching or suggestion by Rezzonico or Appel to modify
Aida, Aida may not be further modified by and/or combined with additional
prior art to render obvious claim 1. Id.
The Examiner responds that, with respect to Appellants’ argument
that Aida fails to teach the receiving antenna being “integrally incorporated”
into the patient table, the Examiner finds that “integrally incorporated” may
be defined as including, as a whole structure (i.e. “integrally”), the antenna
as part of the table. Ans. 9. Therefore, the Examiner finds, since the whole
structure of the RF receiving antenna is part of, and below the surface of, the
patient table (which is interpreted as the structure that provides support for
the patient to lie on) and is structured to be part of the table such that it
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moves with the table, the RF antenna of Aida must be “integrally
incorporated” into the table. Id. Relatedly, the Examiner also finds that the
ultrasonic wave applicator 1 and the mechanical arm 17 are both cited by
Aida as being “integrally incorporated within the treatment bed 22.” Id.
(citing Aida col. 7,11. 40-46, Figs. 3A, 38). The Examiner points out that
both the ultrasonic wave applicator and the mechanical arm are depicted as
being below the surface of the table and moving with the treatment table. Id.
at 9—10. The Examiner therefore finds the RF receiving antenna of Aida,
which is in a similar arrangement, is similarly “integrally incorporated” into
the treatment table. Id. at 10.
The Examiner further finds that, when combining the teachings of
Aida with those of Rezzonico and Appel, a person of ordinary skill in the art
would realize that the RF antenna of Aida could be located within a
watertight compartment formed in the patient table. Ans. 10. The Examiner
finds such a modification would similarly result in the RF receiving antenna
being “integrally incorporated” into the patient table. Id.
With respect to Appellants’ argument that any modification of Aida
with the teachings of Rezzonico and Appel would be “[an improper
modification] of the operating principle of Aida,” the Examiner finds that
the operating principle of Aida, at least with respect to the RF receiving
antenna, relies on the ability of the RF receiving antenna to receive MR
signals. Ans. 14—15. The Examiner finds that neither Rezzonico nor Appel
teach that their inventions would impede the reception of MR signals. Id.
To the contrary, the Examiner finds both Rezzonico and Appel rely on an
RF antenna/coil to detect MR signals. Id. Therefore, the Examiner finds,
modifying the teachings of Aida to incorporate a drawer/compartment, as
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taught by Rezzonico, in the patient table of Aida to hold the RF receiving
antenna would not impede the RF receiving antenna from receiving MR
signals. Id. (citing Rezzonico 5, 80, 83).
Similarly, the Examiner finds, modifying the combined teachings of
Aida and Rezzonico to include the watertight features taught by Appel
would not impede the RF receiving antenna from receiving MR signals,
because Appel teaches an RF antenna within the fluidtight/watertight casing
that is fully capable of detecting MR signals. Ans. 14—15 (citing Appel
1 60). Therefore, the Examiner concludes, modifying Aida in view of
Rezzonico and Appel would not be an improper modification of the
operating principle of Aida. Id. at 15.
Appellants reply that the combination of Aida, Rezzonico, and Appel
proposed by the Examiner fails to render obvious any modification of Aida
to integrally incorporate an RF receiving antenna into the patient table in
which the RF receiving antenna includes a watertight casing and is located
within a watertight compartment of patient table arranged at a circumference
of a treatment hole formed in the patient table. Reply Br. 13. Specifically,
Appellants argue that such an arrangement would impede placement of the
surface coil on a body surface of a patient in the closest proximity to the
treatment target as possible in order to obtain MR images at a sufficiently
high signal-to-noise ratio, as mandated by the operating principle of Aida.
Id. at 14 (citing Spec. Fig. 3,1 60).
We are not persuaded by Appellants’ arguments. As an initial matter,
and contrary to Appellants’ assertion, there is no requirement in law, as
Appellants seem to assert, that Aida must teach that it is necessary or
required that the RF receiving antenna comprises a watertight casing or is
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located within a watertight compartment of the patient table 22 to receive
MR signals. See App. Br. 20. Rather, the test for obviousness is “what the
combined teachings of the references would have suggested to those of
ordinary skill in the art.” In re Keller, 642 F.2d 413, 425 (C.C.P.A. 1981).
In short, it is not necessary that Aida teach that a watertight casing or
compartment are either required or necessary but, rather, what the combined
references would teach or suggest to a person of ordinary skill in the art.
Appellants next contend that neither Rezzonico nor Appel teach or
suggest a modification of Aida to integrally incorporate the RF receiving
antenna into the patient table, in which the RF receiving antenna includes a
watertight casing and is located within a watertight compartment of the
patient table and arranged at a circumference of a treatment hole formed in
patient table. See App. Br. 21. Again, it is not necessary that either
reference teaches or suggests a modification of the teachings of Aida; the
proper obviousness analysis, rather, is what the combined teachings would
have suggested to a person of ordinary art at the relevant period. See Keller,
642 F.2d at 425.
Appellants contend that Aida neither teaches nor suggests that the RF
receiving antenna 20 is integrally incorporated into the patient table. See
App. Br. 20. We disagree. Aida teaches:
In this first embodiment, this ultrasonic wave applicator 1
and the mechanical arm 17 are integrally incorporated within the
treatment bed 22 as shown in FIGS. 3A and 3B such that the
ultrasonic wave applicator 1 moves along with the treatment bed
22 when the treatment bed 22 is controlled to carry the patient 3
in and out of an MRI gantry 25. Here, an upper opening of the
treatment hole 24 is covered by a film 26, and in addition, an RF
coil 20 for transmitting RF pulses and receiving MR signals in
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the MRI is provided at a circumference of the treatment hole 24
in advance.
Aida col. 7,11. 40—50. Figures 3A and 3B of Aida are reproduced below:
Figures 3 A and 3B of Aida depict, respectively, a perspective
view and a lateral cross section of an embodiment of the
invention
Figures 3A and 3B, as described in the passage quoted supra, depict
the RF receiving antenna 20 located at a circumference of the treatment hole
24. Moreover, Aida teaches that the patient bed 22 containing the RF
antenna 20 and the other elements described, moves in and out of the MRI
gantry as a single unit. We consequently agree with the Examiner that Aida
teaches the limitation of claim 1 reciting “wherein the MR imaging unit
comprises a RF receiving antenna for receiving the MR signals, the RF
receiving antenna being integrally incorporated into the patient table.”
The Examiner agrees with Appellants that Aida neither teaches nor
suggests the limitations of claim 1 reciting: “the RF receiving antenna
comprises a watertight casing and is located within a watertight
compartment of the patient table” and “the watertight compartment is
arranged at a circumference of a treatment hole formed in the patient table.”
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The Examiner relies upon Rezzonico and Appel as teaching these
limitations. See Final Act. 4—5.
Rezzonico teaches:
[A] hidden housing 307 is provided on the support surface 7,
coincident with the longitudinal center axis thereof, for another
flat coil 13', adapted for spine examinations. This housing 307 is
constructed like a drawer and may be accessed from the patient
supporting side, for positioning the coil 13' therein. In the
embodiment of the figures, the coil 13' has such a size that spine
examinations are divided into three examinations for the
cervical, thoracic and lumbar segments of the spine, although
coils 13' may be used of sizes and/or types other than the ones of
the figures.
Rezzonico | 80; see also Figs 11—13. Rezzonico thus teaches that the RF
receiving antenna (i.e., the coil 13’) is positioned within a housing, or
casing, that is integrally incorporated into the patient bed.
Appel teaches:
One embodiment of the NMR sensor capable of performing
known NMR, Pulsed Field Gradient (PFG) NMR, and MRI
imaging experiments is depicted in FIG. 4A, which is a top view
of the NMR sensor 50. The sensor is encased in a protective
package 52 designed to protect the sensor antenna and magnet
structure from ambient conditions, including fluids, pressure and
shock.
Appel 1 60 (emphases added). The Examiner therefore concludes that a
person of ordinary skill would understand that combined teachings of
Rezzonico and Appel teach a watertight casing for the RF receiving antenna
21 of Aida that would be integral to the patient bed 22 and which would be
advantageous in providing ease of access and protection to the RF receiving
antenna.
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We agree. Appellants argue that Rezzonico and Appel, in
combination, teach insertion of the MR sensor of Appel into a drawer of
Rezzonico that would be impeded for closure by treatment hole 24 of Aida.
See App. Br. 21. However, the “test for obviousness is not whether the
features of a secondary reference may be bodily incorporated into the
structure of the primary reference.” Keller, 642 F.2d at 425; see also In re
Sneed, 710 F.2d 1544, 1550 (Fed. Cir. 1983): (“[I]t is not necessary that the
inventions of the references be physically combinable to render obvious the
invention under review”). Appellants offer no evidence in support of their
argument beyond mere attorney argument that the drawer of Rezzonico is
somehow physically incompatible with Aida’s patient bed. But even if that
were so, the Examiner finds, and we agree, that the combination of
Rezzonico, Appel, and Aida suggests a watertight casing for the RF
receiving antenna that is integrally incorporated into the patient bed.
Finally, Appellants argue that combining the references would
mandate an arrangement that would impede placement of the surface coil on
a body surface of a patient in the closest proximity to the treatment target as
possible in order to obtain MR images at a sufficiently high signal-to-noise
ratio, as mandated by the operating principle of Aida and therefore
combining the references would be incompatible with that operating
principle. Reply Br. 14.
We are not persuaded. As an initial matter, Appellants raise this
argument de novo in their Reply Brief, and we do not consider such
arguments. See 37 C.F.R. § 41.41(b)(2); Ex parte Borden, 93 USPQ2d
1473, 1474 (BPAI 2010) (Informative) (Arguments not raised in the
Appellate Brief are considered waived). However, even if we were to
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consider Appellants’ argument, we would not find it persuasive. As
explained supra, Aida teaches an RF receiving antenna 20 integrally
incorporated into the patient bed 22. The combination of Rezzonico and
Appel teach that such an integrally incorporated RF antenna in a patient bed
could be encased in a protective, fluidtight casing to protect the RF antenna
without impeding its function.
Consequently, because we agree with the Examiner’s findings and
conclusions, and because we are not persuaded by Appellants’ arguments,
we affirm the Examiner’s rejection of claims 1—4 and 7.
B. Rejection of claims 8—12 under 35 U.S.C. $ 103(a)
Appellants argue these claims separately. App. Br. 23—28.
Appellants advance the same arguments for each claim that they argued
supra with respect to claims 1—4 and 7; viz.:
Specifically, any alleged teaching by Rezzonico of integrating an
RF cable into a patient table (See, Rezzonico at paragraph [0079])
does not otherwise overcome a failure of Aida, Rezzonico and
Appel in combination fail to teach or suggest the aforementioned
limitation requirements of independent claim 1.
See, e.g., App. Br. 24. We do not find these arguments persuasive for the
reasons we have explained. Furthermore, with respect to each of claims 9—
12, Appellants argue: “Furthermore, any modification of Aida in view of
Rezzonico and Appel and in further view of [Atalar’ox Griffin3 4] in an attempt
to render obvious the aforementioned limitations of dependent claim 9 is an
3 Cited by the Examiner for claim 9
4 Cited by the Examiner for claims 10—12
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improper modification of the operating principle of Aida.” See, e.g., App.
Br. 25.5 Appellants adduce no evidence of record that the respective cited
references neither teach nor suggest the limitations which the Examiner cited
as teaching. As such, we accord such arguments no probative weight. See
In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011): (“[W]e hold that the
Board reasonably interpreted [37 C.F.R. § 41.37] to require more substantive
arguments in an appeal brief than a mere recitation of the claim elements and
a naked assertion that the corresponding elements were not found in the
prior art”). We consequently affirm the Examiner’s rejection of claims 8—
12.
DECISION
The Examiner’s rejection of claims 1—4 and 7—12 as unpatentable
under 35 U.S.C. § 103(a) is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R.
§ 1.136(a)(l)(iv).
AFFIRMED
5 Similarly, with respect to claim 8, Appellants argue: “Furthermore, any
modification of Vitek in view of Aida, Rezzonico and Appel in an attempt to
render obvious the aforementioned limitations of dependent claim 8 is an
improper modification of the operating principle of Vitek.” App. Br. 24.
However, the Examiner has withdrawn the rejection of claim 8 over Vitek.
See Ans. 2. We consequently need not address Appellants’ argument in this
respect.
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