Ex Parte Von Bucsh et al

Patent Trial and Appeal BoardApr 11, 2018

14117873 (P.T.A.B. Apr. 11, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 14/117,873 11115/2013 Hinrich Johannes Von Bucsh 24737 7590 04/13/2018 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. 2011P00995WOUS 6784 EXAMINER ROZANSKI, MICHAEL T ART UNIT PAPER NUMBER 3786 NOTIFICATION DATE DELIVERY MODE 04/13/2018 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 HINRICH JOHANNES VON BUCSH, RAYMOND CHAN, GERT WIM 'T HOOFT, REINARDUS GERHARDUS AARNINK, and ADRIEN EMMANUEL DESJARDINS 1 Appeal2017-003002 Application 14/117 ,873 Technology Center 3700 Before JEFFREY N. FREDMAN, RY ANH. FLAX, and DAVID COTTA Administrative Patent Judges. FLAX, Administrative Patent Judge. DECISION ON APPEAL This is a decision on appeal under 35 U.S.C. Â§ 134(a) involving claims directed to a system, workstation, and method for monitoring changes during therapy. Claims 1--4, 6, 7, 10, 11, 13, and 15-20 are on appeal as rejected under 35 U.S.C. Â§Â§ 102 and 103. We have jurisdiction under 35 U.S.C. Â§ 6(b). We affirm. 1 Appellants identify the Real Party in Interest as "KONINKLIJKE PHILIPS N.V." Appeal Br. 3. Appeal2017-003002 Application 14/117,873 STATEMENT OF THE CASE2 The Specification states, "[ t ]his disclosure relates to medical devices and methods, and more particularly to systems and methods for optical fiber sensing for determining applicator geometries during interventional therapy in real-time." Spec. 1 :6-8. Further, In accordance with the present principles, a system for monitoring changes during therapy includes a first probing segment having an optical fiber sensor disposed therein. The first segment is percutaneously inserted in or near a target area and providing a local reference for one or more treatment devices. A second probing segment has an optical fiber sensor disposed therein. The second segment is generally disposed apart from the first probe and provides a spatial reference point for the first segment. The first and second segments have at least one common position to function as a reference between the first and second probes. A shape determination method is configured to determine a shape of each of the first and second segments based on feedback signals to measure changes in the shapes during a procedure and update a therapy plan in accordance with the changes. Id. 1: 19--2:5. Independent claim 1 is representative and is reproduced below: 1. A system for monitoring changes during therapy, compnsmg: a first probing segment having an optical fiber sensor disposed therein, the first segment configured for being percutaneously inserted in or near a target area and providing a local reference for one or more treatment devices; 2 Herein, we refer to the Specification filed Nov. 15, 2013 ("Spec."); Final Office Action mailed Mar. 23, 2016 ("Final Action"); Appeal Brief filed Aug. 17, 2016 ("Appeal Br."); and the Examiner's Answer mailed Oct. 11, 2016 ("Answer"). 2 Appeal2017-003002 Application 14/117,873 a second probing segment having an optical fiber sensor disposed therein, the second segment configured to be generally disposed apart from the first segment and provide a spatial reference point for the first segment, and the first and second segments having at least one common position to function as a reference between the first and second segments; and a shape determination module configured to determine a shape of each of the first and second segments based on feedback signals to measure changes in the shapes during a procedure by comparing the shapes with shape information of the first and second segments from a different point in time to evaluate temporal progress and update a therapy plan in accordance with the changes. Appeal Br. 25 (Claims App'x). The following rejections are appealed: Claims 1-3, 6, 7, 10, 11, and 15-20 stand rejected under 35 U.S.C. Â§ 102(b) as anticipated by Ramamurthy. 3 Final Action 2. Claims 4 and 13 stand rejected under 35 U.S.C. Â§ 103(a) over Ramamurthy and Gattani. 4 Id. at 4. DISCUSSION We adopt the Examiner's findings of fact, reasoning on scope and content of the claims and prior art, and conclusions set out in the Final Action and Answer. Final Action 2-6; Answer 2-7. Only those arguments made by Appellants in the Appeal Brief and properly presented in the Reply Brief have been considered in this Decision. Arguments not so presented in the Briefs are waived. See 37 C.F.R. Â§ 41.37(c)(l)(iv) (2015); see also Ex parte Borden, 93 USPQ2d 1473, 1474 (BPAI 2010) (informative) ("Any 3 US 2009/0137952 Al (pub. May 28, 2009) ("Ramamurthy"). 4 US 2008/0071143 Al (pub. Mar. 20, 2008) ("Gattani"). 3 Appeal2017-003002 Application 14/117,873 bases for asserting error, whether factual or legal, that are not raised in the principal brief are waived."). "[T]he examiner bears the initial burden, on review of the prior art or on any other ground, of presenting aprimafacie case ofunpatentability. If that burden is met, the burden of coming forward with evidence or argument shifts to the applicant." In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). Anticipation "Anticipation requires that all of the claim elements and their limitations are shown in a single prior art reference." In re Skvorecz, 580 F.3d 1262, 1266 (Fed. Cir. 2009). The Examiner determined Ramamurthy disclosed each element of the claims. Final Action 2---6; Answer 2-7. We discern no error in the Examiner's determination. Appellants argue: Ramamurthy fails to teach or suggest at least a first probing segment and a second probing segment that is generally disposed apart from the first segment which provides a spatial reference point for the first segment wherein "the first and second segments hav[ e] at least one common position to function as a reference" between the segments, because the claim "language clearly specifies that the common position is a position of the first and second segments, not a position of a separate structure, such as a connector." Appeal Br. 10 (citing Spec. 10:2-16 and Fig. 1). Appellants' argument is not persuasive. The claim language at issue merely requires that the two claimed probing segments share a common position that can function as a reference point between the two. There is no 4 Appeal2017-003002 Application 14/117,873 limitation as to precisely how the two segments are physically associated or connected or what that connection might be, other than a functional reference point. The portion of the Specification cited by Appellants is consistent with this broader interpretation because it describes the reference point generally as a mechanical attachment or coupling, or a part of a sheath, or a position along a single tether when the two probes are provided "in- line" with one another. Spec. 10:2-16. Further, the Specification's Fig. 1 (and the related description) shows the common position (sheath 110 with a marker 117) as a separate structure between and linking the two probe segments 112 and 114. The common position is provided outside the surgical zone and is a part of the associated workstation 101, adjacent the related processor 105 and optical console 108 and is certainly not an integral part of the two associated probe segments 112, 114. See also Spec. 15:7- 16:8 and Fig. 3 (similarly describing the common position/reference). Thus, in light of the Specification, the claimed "common position" and "reference" is reasonably interpreted to broadly to encompass the disclosure of Ramamurthy at, inter alia, Figs. 13-15, 26B, and i-fi-120, 68, 104, 111-112, 122, 129-136, 194--196. Appellants argue Ramamurthy fails to teach or suggest at least a shape determination module configured to determine a shape of the first and second segments based on feedback signals to measure changes in the shapes during a procedure by comparing the shapes with shape information of the first and second segments from a different point in time to evaluate temporal progress. Appeal Br. 12. Further, Appellants argue Ramamurthy "does not involve comparing shape information from a different point in time whatsoever. 5 Appeal2017-003002 Application 14/117,873 Instead, the determined shapes are used to map the internal structure without any comparison between a present determined shape and a shape at a previous point in time." Id. at 14. This argument is not persuasive. Ramamurthy is directed to determining the shape and position of remote surgical devices in real time so that the devices can be navigated accurately and efficiently to perform surgery and to determining whether these surgical devices are on the right track or whether correction is needed. See Ramamurthy i-fi-1 85, 104, 106, 111-112, 118-119, 122-127, 131, 205. Ramamurthy's system tracks directional, location, and shape changes (both intentional and unexpected), it plans and anticipates where the surgical device is intended to go (i.e., a therapy plan) and be, where the device actually is at any given time in real- time, and where the device was so as to determine whether the device's changing shape and direction comports with the intended shape and direction or is unexpected, which discloses the claimed shape determination module. Id. These functions of the Ramamurthy device and system are expressly disclosed and obvious. Without comparing previous positions and shapes of the device, the system of Ramamurthy could not determine, in repeated localizing steps, the overall shape of the serpentine devices as they change shape and direction. See, e.g., id. at Fig. 16 (step 1615 involves comparing a sensed geometric configuration with a known geometric configuration), i-f 140; see also id. i1213 ("Velocity is calculated by comparing the desired position from the previous servo cycle, as calculated with a conventional memory block calculation 3506, with that of the incoming commanded cycle."). 6 Appeal2017-003002 Application 14/117,873 Appellants argue "Ramamurthy fails to teach or suggest at least a system that is configured to update a therapy plan based on the measured changes between the shape information of the first and second segments and shape information of the segments from a different point in time." Appeal Br. 15. This argument is not persuasive. As discussed above, Ramamurthy discloses navigating a surgical device (robotically or manually) into and through a body to arrive at a desired surgery location and perform surgery on an intended physiology, accurately and efficiently. This discloses a therapy plan. As discussed above, Ramamurthy' s system tracks where the surgical device is and compares it to where it should be as it navigates; if the device is not where it should be or shaped as it should be it is corrected. This discloses a modification to the therapy plan based on measured changes to the devices (or body). Regarding claim 18, Appellants argue: independent claim 18 specifically recites the step of "comparing the positions and path trajectories in real time to a therapy plan from a different point in time to quantify deviations from the plan". The cited portions of Ramamurthy fail to teach or suggest at least the step of comparing the positions and path trajectories in real time to a therapy plan from a different point in time to quantify deviations from the plan. Appeal Br. 19. This argument is not persuasive. Ramamurthy discloses conducting its navigation/location/shape analysis repeatedly and in real time. See, e.g., Ramamurthy i-f 127 ("optical fiber sensor 215 is used to understand the 7 Appeal2017-003002 Application 14/117,873 relative geometric/spatial relationships of the instrument 210 components and patient 1500 in real, or near-real, time, in which scenario registration may be updated manually or automatically."). Therefore, we conclude the "comparing the positions and path trajectories in real time ... "limitation is disclosed by the reference. For the reasons above we find the balance of evidence supports the Examiner's determinations and do not find Appellants arguments persuasive, and we affirm the anticipation rejection of the claims. Obviousness In analyzing patentability and determining obviousness "[ t ]he combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results." KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). The Examiner determined: Ramamurthy discloses all features of the instant invention including determining trajectories but do not specifically disclose determining seed locations from the trajectories. However, Gattani et al teach [that] a navigation system is used to determine seed positions [0062]. It would have been obvious to the skilled artisan to modify Ramamurthy, to use the trajectory to determine a seed position as taught by Gattani et al, in order to permit enhanced brachytherapy procedures. Final Action 4. We discern no error in the Examiner's determination. The two cited references disclose similar systems, used for similar purposes, and it would have been obvious to use or modify the Ramamurthy system for the purposes disclosed by Gattani. Appellants generally renew their arguments over the Ramamurthy reference as anticipating and contend "Gattani fails to teach or suggest the 8 Appeal2017-003002 Application 14/117,873 system and workstation of independent claims 1 and 10 or dependent claims 4 and 13 or cure the deficiencies ofRamamurthy." Appeal Br. 21-23. We remain unpersuaded. Therefore, for the reasons set forth above, we affirm the obviousness rejection. SUMMARY The rejection of claims 1-3, 6, 7, 10, 11, and 15-20 as anticipated is affirmed. The rejection of claims 4 and 13 as obvious is affirmed. TIME PERIOD FOR RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a). AFFIRMED 9