KONINKLIJKE PHILIPS N.V.

Patent Trials and Appeals Board

Mar 18, 2022

2021005461 (P.T.A.B. Mar. 18, 2022)

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. 15/517,740 04/07/2017 JOCHEN KRUECKER 2013P02256WOUS 9551 24737 7590 03/18/2022 PHILIPS INTELLECTUAL PROPERTY & STANDARDS 1600 Summer Street 5th Floor Stamford, CT 06905 EXAMINER FRITH, SEAN A ART UNIT PAPER NUMBER 3793 NOTIFICATION DATE DELIVERY MODE 03/18/2022 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 patti.demichele@Philips.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte JOCHEN KRUECKER, SHYAM BHARAT, EHSAN DEHGHAN MARVAST, CYNTHIA MING-FU KUNG, ANANTH RAVI, FALK UHLEMANN, and THOMAS ERIK AMTHOR Appeal 2021-005461 Application 15/517,740 Technology Center 3700 ____________ Before BIBHU R. MOHANTY, KENNETH G. SCHOPFER, and AMEE A. SHAH, Administrative Patent Judges. SCHOPFER, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1-5, 7-11, 13-15, and 19-25. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real parties in interest as Koninklijke Philips N.V. and Sunnybrook Research Institute (SRI). Appeal Br. 1. Appeal 2021-005461 Application 15/517,740 2 BACKGROUND The Specification states, “[t]he present system relates to an interventional therapy system and, more particularly, to an interventional therapy system for HDR brachytherapy with enhanced real-time tool guidance and real-time organ segmentation capabilities and a method of operation thereof.” Spec. 1, ll. 6-8. CLAIMS Claims 1, 7, and 13 are the independent claims on appeal. Claim 1 is illustrative of the appealed claims and recites: 1. An interventional therapy system, comprising: at least one catheter having proximal and distal ends and at least one tracking element, the at least one catheter being configured for insertion within an object of interest (OOI), wherein the distal end of a respective at least one catheter is configured to be situated within the OOI while the proximal end of the respective at least one catheter is configured to be situated outside of the OOI during use; and at least one controller configured to: obtain a reference image dataset of a volume of interest, wherein the reference image dataset comprises a plurality of two- dimensional image slices forming a three-dimensional reference image dataset which includes a three-dimensional image of the OOI; segment each image slice of the plurality of two- dimensional image slices of the reference image dataset to form segmentation information which defines at least one boundary surface of the OOI; automatically define and highlight without user intervention restricted areas (RAs) within the reference image dataset indicative of at least one area within the volume of interest where the at least one catheter should not travel; Appeal 2021-005461 Application 15/517,740 3 determine location constraints for the at least one catheter relative to at least one image plane of the volume of interest in accordance with (i) planned catheter intersection points for the distal end of the at least one catheter, (ii) a peripheral boundary of the at least one boundary surface of the OOI defined in the segmentation information, and (iii) the RAs defined in the reference image dataset; determine at least one of position and orientation of the distal end of the at least one catheter; determine a planned trajectory for the at least one catheter in accordance with the determined at least one position and orientation of the distal end of the at least one catheter and the location constraints; obtain a current image plane of the volume of interest which includes the OOI; update the at least one of position and orientation of the distal end of the at least one catheter along an actual path of travel of the distal end of the at least one catheter during use to obtain an updated position of the distal end of the at least one catheter relative to the current image plane; update the planned trajectory with an estimated trajectory for the at least one catheter in accordance with (i) the updated position of the distal end of the at least one catheter relative to the current image plane and (ii) the location constraints, wherein the location constraints further include deformable registration constraints or deformation vectors which take into account deformations or changes in shape to boundary surfaces of the OOI that occur due to the at least one catheter during use within the OOI; update at least one planned catheter intersection point with an estimated intersection of the distal end of the at least one catheter with the current image plane in accordance with the estimated trajectory; and Appeal 2021-005461 Application 15/517,740 4 provide an indication of the estimated intersection of the distal end of the at least one catheter with the current image plane. Appeal Br. 38-40. REJECTIONS 1. The Examiner rejects claims 1, 3-5, 7, 9-11, 13 and 15 under 35 U.S.C. § 103 as unpatentable over Greenblatt2 in view of Jenkins,3 Pagoulatos,4 Cavusoglu,5 and Razzaque 404.6 2. The Examiner rejects claims 2, 8, and 14 under 35 U.S.C. § 103 as unpatentable over Greenblatt in view of Jenkins, Pagoulatos, Cavusoglu, Razzaque 404, and Hoffmeyer7. 3. The Examiner rejects claims 19 and 23 under 35 U.S.C. § 103 as unpatentable over Greenblatt in view of Jenkins, Pagoulatos, Cavusoglu, Razzaque 404, and Razzaque 598.8 4. The Examiner rejects claims 20 and 24 under 35 U.S.C. § 103 as unpatentable over Greenblatt in view of Jenkins, Pagoulatos, Cavusoglu, Razzaque 404, and Pelissier.9 2 Greenblatt et al., US 2012/0277763 A1, pub. Nov. 1, 2012. 3 Jenkins et al., US 2010/0312095 A1, pub. Dec. 9, 2010. 4 Pagoulatos et al., US 2010/0121190 A1, pub. May 13, 2010. 5 Cavusoglu et al., US 2015/0279031 A1, pub. Oct. 1, 2015. 6 Razzaque et al., US 2014/0343404 A1, pub. Nov. 20, 2014. 7 Hoffmeyer et al., EP 1095628 A2, pub. May 2, 2001. 8 Razzaque et al., US 8,585,598 B2, iss. Nov. 19, 2013. 9 Pelissier et al., US 2010/0298704 A1, pub. Nov. 25, 2010. Appeal 2021-005461 Application 15/517,740 5 5. The Examiner rejects claims 21, 22, and 25 under 35 U.S.C. § 103 as unpatentable over Greenblatt in view of Jenkins, Pagoulatos, Cavusoglu, Razzaque 404, and Gilboa.10 DISCUSSION We are persuaded of error in the rejection of claim 1 to the extent the Examiner relies on Cavusoglu to teach the claim 1 limitation requiring updating a planned trajectory in accordance with location constraints that “take into account deformations or changes in shape to boundary surfaces of the OOI that occur due to the at least one catheter during use within the OOI.” Regarding the limitation at issue, the Examiner finds that Cavusoglu teaches using an instrument on a target within an image space including the use of “measurement models and motion models equivalent to the deformable registration constraints” and accounting for movement of the target and the device. Final Act. 8. The Examiner finds that Cavusoglu teaches updating device and target location estimates based on current measurements regarding the motion of the device and the target. Id. at 8-9. The Examiner explains that determining the motion of the device and the target “is specifically considered to be the deformations or changes in shape to boundary surfaces of the object of interest due to the insertion of the catheter or medical device.” Id. at 9. Further, the Examiner explains that Cavusoglu “details the use of the probabilistic model (deformable registration constraints) to update a planned trajectory that is further based on the location of the catheter.” Id. 10 Gilboa et al., US 2003/0074011 A1, pub. Apr. 17, 2003. Appeal 2021-005461 Application 15/517,740 6 Appellant argues that Cavusoglu does not disclose determining location constraints that occur due to the catheter entering the OOI. Appeal Br. 30, 33-34. In support, Appellant contends that Cavusoglu only teaches estimating the motion of the instrument and target to reduce uncertainties caused by tissue motion and catheter motion caused by non-steady blood flow and tissue motion. Id. at 29-30. We are persuaded by Appellant’s argument. Cavusoglu discloses methods for “imaging control to facilitate tracking objects and/or performing real-time intervention.” Cavusoglu ¶ 29. Such methods may include cardiac ablation procedures including an instrument that is “a robotically controlled catheter that is actively controlled according to control parameters determined from active localization of target tissue and the instrument configuration.” Id. ¶ 31. This “control approach can be implemented to provide active cancellation of the target tissue motions and perturbations on the catheter deflection resulting from non- steady blood flow.” Id. Regarding motion cancellation, Cavusoglu discloses employing “adaptive filters for estimating the upcoming motion of the target tissue and the catheter.” Id. ¶ 123. However, Cavusoglu only indicates that such filtering is related to cardiac motion, “e.g., wall motion synchronized with the patient’s heart beat,” and catheter motion due to non- steady blood flow. Id. Given this disclosure, even if we were to agree with the Examiner that Cavusoglu teaches updating a planned trajectory based on an updated position of the catheter and location constraints, we do not see how Cavusoglu teaches that such location constraints include deformable registration constraints or deformation vectors that take into account Appeal 2021-005461 Application 15/517,740 7 deformation caused by the catheter being used within the object of interest, as claimed. In response to Appellant’s argument, the Examiner asserts that “the broadest reasonable interpretation would include the changes in shape to a target tissue (object of interest) due to tissue motion and catheter motion as taught by the Cavusoglu reference.” Ans. 11. However, the explanation that follows appears to relate only to location constraints in general, and not deformation caused by the catheter during use within the OOI. The Examiner discusses Cavusoglu’s method of modeling catheter motion and target tissue motions, but the Examiner does explain how this is related to the issue at hand. Id. at 11-12. For example, the Examiner explains that Cavusoglu teaches using image data to characterize tissue and other objects in an image space, but the Examiner does not explain how this characterization includes determining location constraints related to deformation caused by the catheter during using within the OOI. Id. It may be that the Examiner is relying on inherency here, i.e., that Cavusoglu’s modeling of tissue motion would necessarily include deformation caused by the catheter during use within the OOI.11 “Inherency, however, may not be established by probabilities or possibilities. The mere fact that a certain thing may result from a given set of circumstances is not sufficient.” In re Robertson, 169 F.3d 743, 745 (Fed. Cir. 1999). Thus, even if it were probable that such modeling would include accounting for deformations due to the catheter during use within the OOI, 11 As noted above, the Examiner finds that determining the motion of the device and the target “is specifically considered to be the deformations or changes in shape to boundary surfaces of the object of interest due to the insertion of the catheter or medical device.” Final Act. 9. Appeal 2021-005461 Application 15/517,740 8 that is insufficient to establish inherency. We also note that, in describing the measurement models for measuring movement of the device and target tissue, Cavusoglu specifically discloses that “the measurements of the device and target can be assumed to be independent.” Cavusoglu ¶ 65. This disclosure indicates that modeling of the target is independent from the modeling of the device, i.e., modeling of the target would not account for the device in use within the OOI. The Examiner relies on the same findings in rejecting the other independent claims, which recite substantially the same limitation at issue. See Appeal Br. 40-45. Based on the foregoing, we are persuaded of error in the rejection of independent claims 1, 7, and 13. For the same reasons, we are persuaded of error in the rejection of dependent claims 3-5, 9-11, and 15. Regarding the rejections of claims 2, 8, 14, and 19-25, the Examiner does not provide any additional reasoning or citation to evidence that would cure the deficiency in the rejection of the independent claims. Accordingly, we do not sustain any of the rejections of claims 1-5, 7-11, 13-15, and 19-25. CONCLUSION We REVERSE the rejections of claims 1-5, 7-11, 13-15, and 19-25. In summary: Claims Rejected 35 U.S.C. § Basis Affirmed Reversed 1, 3-5, 7, 9-11, 13, 15 103 Greenblatt, Jenkins, Pagoulatos, Cavusoglu, Razzaque 404 1, 3-5, 7, 9-11, 13, 15 Appeal 2021-005461 Application 15/517,740 9 Claims Rejected 35 U.S.C. § Basis Affirmed Reversed 2, 8, 14 103 Greenblatt, Jenkins, Pagoulatos, Cavusoglu, Razzaque 404, Hoffmeyer 2, 8, 14 19, 23 103 Greenblatt, Jenkins, Pagoulatos, Cavusoglu, Razzaque 404, Razzaque 598 19, 23 20, 24 103 Greenblatt, Jenkins, Pagoulatos, Cavusoglu, Razzaque 404, Pelissier 20, 24 21, 22, 25 103 Greenblatt, Jenkins, Pagoulatos, Cavusoglu, Razzaque 404, Gilboa 21, 22, 25 Overall Outcome 1-5, 7-11, 13-15, 19-25 REVERSED