Canfield Scientific, IncorporatedDownload PDFPatent Trials and Appeals BoardJun 28, 20212021003363 (P.T.A.B. Jun. 28, 2021) Copy Citation 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. 15/074,304 03/18/2016 Brian D'Alessandro CAN-15-001 1032 55168 7590 06/28/2021 Kolefas IP Law, LLC 22 Maple Drive Colts Neck, NJ 07722 EXAMINER AN, SHAWN S ART UNIT PAPER NUMBER 2483 NOTIFICATION DATE DELIVERY MODE 06/28/2021 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): ck@35usclaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte BRIAN D’ALESSANDRO Appeal 2021-003363 Application 15/074,304 Technology Center 2400 Before JEAN R. HOMERE, MICHAEL J. STRAUSS, and MICHAEL J. ENGLE, Administrative Patent Judges. HOMERE, Administrative Patent Judge. DECISION ON APPEAL I. STATEMENT OF THE CASE1 Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the Examiner’s rejection of claims 1–22, 33–35, and 37–39, which constitute all of the claims pending. Appeal Br. 1. Claims 23–32 and 36 have been canceled. Id. at 20 (Claims App.) We have jurisdiction under 35 U.S.C. § 6(b). We reverse. 1 We refer to the Specification, filed Mar. 18, 2016 (“Spec.”); Final Office Action, mailed Mar. 23, 2020 (“Final Act.”); Appeal Brief, filed Nov. 23, 2020 (“Appeal Br.”); and Examiner’s Answer, mailed Feb. 23, 2021 (“Ans.”). 2 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Canfield Scientific, Inc. Appeal Br. 1. Appeal 2021-003363 Application 15/074,304 2 II. CLAIMED SUBJECT MATTER According to Appellant, the claimed subject matter relates to a method and system for assisting a user in identifying skin conditions (e.g., moles, lesions). Spec. ¶ 10. In particular, upon determining an attribute (e.g., size, color, symmetry) associated with each of a plurality of skin features captured in an image of an interested skin portion, a processor crops the captured image to generate a tile or thumbnail of each of the captured skin features according to the attribute associated therewith to subsequently arrange and display the skin features as a plurality of concentric tiles/thumbnails isolating one skin feature from another. Id. ¶¶ 10, 47, 49. Figure 3, reproduced below, is useful for understanding the claimed subject matter: Figure 3 illustrates tile images of detected lesions arranged in a spiral order of area according to a size associated with each lesion. Id. ¶ 51. Appeal 2021-003363 Application 15/074,304 3 Independent claim 1 is illustrative of the claimed subject matter: 1. A method performed by a skin imaging apparatus, comprising: determining at least one attribute associated with each of a plurality of skin features included in one or more images of skin; generating a plurality of tile images, each of the plurality of tile images generated being of each of the plurality of skin features, wherein generating the tile image of each skin feature includes cropping at least one of the one or more images of skin to isolate the skin feature from the other of the plurality of skin features; arranging the tile images in accordance with the at least one attribute associated with each of the plurality of skin features; and controlling a display device to display the arranged tile images of the plurality of skin features. Claims App. (emphasis added). III. REFERENCES The Examiner relies upon the following references as evidence.3 Name Reference Date Skladnev US 6,993,167 B1 Jan. 31, 2006 Grichnik US 7,415,143 B2 Aug. 19, 2008 Ortiz US 2009/0118600 A1 May 7, 2009 Zuhlke- Kimball US 2014/0126787 A1 May 8, 2014 Smith (referenced as Levi) WO 97/47235 Dec. 18, 1997 IV. REJECTIONS The Examiner rejects claims 1–22, 33–35, and 37–39 as follows: 3 All reference citations are to the first named inventor only. Appeal 2021-003363 Application 15/074,304 4 Claims 1–6, 9–18, 21, 22, 33–35, and 37–39 are rejected under 35 U.S.C. § 103 as unpatenable over the combined teachings of Levi, Zuhlke- Kimball, and Skladnev. Final Act. 3–5. Claims 7 and 19 are rejected under 35 U.S.C. § 103 as unpatenable over the combined teachings of Levi, Zuhlke-Kimball, Skladnev, and Grichnik. Final Act. 5–6. Claims 8 and 20 are rejected under 35 U.S.C. § 103 as unpatenable over the combined teachings of Levi, Zuhlke-Kimball, Skladnev, and Ortiz. Final Act. 6–7. V. ANALYSIS Appellant argues, inter alia, that the Examiner erred in finding the combination of Levi, Zuhlke- Kimball, and Skladnev teaches or suggests “‘generating a tile image of each of [a] plurality of skin features,’ and ‘arranging the tile images in accordance with … at least one attribute associated with each of the plurality of skin features,” as recited in independent claim 1. Appeal Br. 6 (emphasis added). In particular, Appellant argues that Levi discloses generating and displaying a list of skin lesions, but it does not generate a tile image for each lesion to thereby arrange or display the tile images in accordance with an attribute. Id. at 7–8 (citing Levi Figs. 11, 12). Further, Appellant argues that Zuhlke-Kimball’s disclosure of cropping an image of one or more lesions and examining factors indicative of melanoma does not teach generating a tile image for each lesion and thereby does not cure the admitted deficiencies of Levi. Id. at 9–11 (citing Zuhlke-Kimball ¶¶ 36, 52–54, 56, 73–76, Fig. 6). According to Appellant, Zuhlke-Kimball’s cropping focuses on a particular one of the plurality of lesions in an image without creating a tile image for any of the Appeal 2021-003363 Application 15/074,304 5 lesions (i.e., creating multiple cropped images of each lesion and arrange them as a tile). Id. at 10. Additionally, Appellant argues that Skladnev’s disclosure of using a frame grabber to capture and store frames of video of skin features and fitting them on a histogram of color to distinguish between lesions based on differences in color does not teach the disputed limitations. Id. at 10–12 (citing Skladnev 10:12–13, 28:35–62, 36:48–37:11). Appellant’s arguments are persuasive of reversible Examiner error. As a preliminary matter, we agree with Appellant that the disputed claim limitations set forth above require generating multiple tile images from an image of multiple lesions by cropping the image multiple times to isolate each lesion from the other lesions. Appeal Br. 12. Levi relates to a dermal diagnostic analysis system for quantifying the visual appearance of skin disorders by comparing different versions of captured images in a patient’s skin conditions. Levi Abstr., Figs. 11, 12. Further, Zuhlke-Kimball relates to a dermatologic assessment system for detecting melanoma risks by cropping a particular area in a captured image depicting various skin lesions of a patient to thereby generate mole image information including a snapshot digital image of the content within the image capture field. Zuhlke-Kimball ¶¶ 36, 52–54, 56, Fig. 3. Additionally, Skladnev discloses a system for collecting, storing, and displaying dermatological images depicting a patient’s lesions on a map, and subsequently arranged on a color histogram according to their intensity. Skladnev, Abstr., 24:5–58, 28:35–62, 36:47–37:11. We do not agree with the Examiner that because Levi displays a list of lesions detected on a patient’s skin, it discloses generating a tile for each of the lesions. Ans. 8 (citing Levi Figs. 6, 11–13). As persuasively argued by Appeal 2021-003363 Application 15/074,304 6 Appellant, Levi merely displays a list of lesions in a captured image without generating a tile image for each of the lesion. Appeal Br. 8. We likewise do not agree with the Examiner that Zuhlke-Kimball’s disclosure of cropping a captured image to generate mole image information including a snapshot of the mole teaches the disputed limitations. Ans. 9 (citing Zuhlke-Kimball ¶¶ 17, 29, 36, 46, 51, 56, Figs. 3, 6). As persuasively argued by Appellant, Zuhlke-Kimball’s disclosed cropping modifies the captured image to focus on a particular lesion, as opposed to reproducing various images of the lesion to generate the tile. Appeal Br. 10. Additionally, we do not agree with the Examiner that Skladnev’s disclosure of displaying detected lesions on a histogram to distinguish one lesion from another teaches the disputed limitations. Ans. 9–10 (citing Skladnev 24:5–42, 36:48–67, 37:1–11, Figs. 5, 13). The Examiner’s conclusion is rather speculative, and wholly unsupported on the record before us. We decline to engage in such speculation. “A rejection . . . must rest on a factual basis . . . .” In re Warner, 379 F.2d 1011, 1017 (CCPA 1967). “The Patent Office has the initial duty of supplying the factual basis for its rejection. It may not . . . resort to speculation, unfounded assumptions or hindsight reconstruction to supply deficiencies in its factual basis.” Id. The Levi, Zuhlke- Kimball, and Skladnev combination would at best result in a dermal diagnostic system that crops different captured images of a skin condition to identify and display differences between the lesions therein. As persuasively argued by Appellant, the cited combination falls short of creating a tile image for each of the captured lesions by cropping each of the lesions and arranging them according to a detected attribute (e.g., size). Appeal Br. 12. Because the record is devoid of any evidence to support that the dermal diagnostic Appeal 2021-003363 Application 15/074,304 7 system generates and arranges a plurality of tile images for the skin features, we agree with Appellant that the proposed combination of Levi, Zuhlke- Kimball, and Skladnev does not teach or suggest the disputed limitations of claim 1. Because Appellant shows at least one reversible error in the Examiner’s obviousness rejection of independent claim 1, we do not reach Appellant’s remaining arguments. Accordingly, we do not sustain the Examiner’s obviousness rejection of independent claim 1. Likewise, we do not sustain the rejections of claims 2–22, 33–35, and 37–39, which also recite the disputed limitations. VI. CONCLUSION For the above reasons, we reverse the Examiner’s rejections of claims 1–22, 33–35, and 37–39. VII. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–6, 9–18, 21, 22, 33– 35, 37–39 103 Levi, Zuhlke- Kimball, Skladnev 1–6, 9–18, 21, 22, 33– 35, 37–39 7, 19 103 Levi, Zuhlke- Kimball, Skladnev 7, 19 8, 20 103 Levi, Zuhlke- Kimball, Skladnev, Ortiz 8, 20 Overall Outcome 1–22, 33– 35, 37–39 REVERSED Copy with citationCopy as parenthetical citation