Ex Parte Avinash et al

Patent Trial and Appeal Board

Apr 19, 2016

12627156 (P.T.A.B. Apr. 19, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/627, 156 11130/2009 Gopal Biligeri Avinash
61604 7590 04/21/2016
GE Healthcare, IP Department
9900 W. Innovation Drive
Mail Code RP2131
Wauwatosa, WI 53226
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.
242890-1 3538
EXAMINER
PAULSON, SHEETAL R.
ART UNIT PAPER NUMBER
3686
NOTIFICATION DATE DELIVERY MODE
04/21/2016 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):
HCTechnologies@ge.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GOP AL BILIGERI A VIN ASH, SAAD AHMED SIROHEY,
ZHONGMIN STEVE LIN, and ANANTH MOHAN
Appeal2014-000176
Application 12/627,1561
Technology Center 3600
Before HUBERT C. LORIN, BIBHU R. MOHANTY, and
BRADLEY B. BAY AT, Administrative Patent Judges.
LORIN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants seek our review under 35 U.S.C. § 134 of the final
rejection of claims 1-39. We have jurisdiction under 35 U.S.C. § 6(b)
(2002).
SUMMARY OF DECISION
We REVERSE.
1 The Appellants identify General Electric Company as the real party in
interest. App. Br. 1.
Appeal2014-000176
Application 12/627,156
THE INVENTION
Claim 1, reproduced below, is illustrative of the subject matter on
appeal.
1. A medical imaging system comprising:
a first database having stored thereon a first data set
longitudinal medical diagnosis test results of an identified patient
population of interest;
a second database having stored thereon a second data set
of longitudinal medical diagnosis test results of a reference
population;
a processor programmed to:
access the first and second databases;
derive a first plurality of time dependent metrics from the
first data set of longitudinal medical diagnosis test results
corresponding to the identified patient population of interest,
wherein the first plurality of time dependent metrics represent a
trend in the test results of the identified patient population of
interest for a clinical parameter over a plurality of time points;
derive a second plurality of time dependent metrics from
the second data set of longitudinal medical diagnosis test results
corresponding to the reference population, wherein the second
plurality of time dependent metrics represent a trend in the test
results of the reference population for the clinical parameter over
a plurality of reference time points;
calculate a separation metric from the first and second
pluralities of time dependent metrics, the separation metric
quantifying a separation between the first data set longitudinal
medical diagnosis test results of the identified patient population
of interest and the second data set of longitudinal medical
diagnosis test results of the reference population; and
generate a report from the calculated separation metric.
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Appeal2014-000176
Application 12/627,156
THE REJECTIONS
The Examiner relies upon the following as evidence of
unpatentability:
Sirohey US 2007 /0081707 Al Apr. 12, 2007
Official Notice2
The following rejections are before us for review:
1. Claims 1-25 and 27-39 are rejected under 35 U.S.C. § 102(b) as
being anticipated by Sirohey.
2. Claim 26 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Sirohey and Official Notice.
ISSUES
Did the Examiner err in rejecting claims 1-25 and 27-39 under 35
U.S.C. § 102(b) as being anticipated by Sirohey; and claim 26 under 35
U.S.C. § 103(a) as being unpatentable over Sirohey and Official Notice?
ANALYSIS
The rejection of claims 1-25 and 27-39 under 35 U.S.C. § 102(b) as being
anticipated by Sirohey.
Independent claim 1 includes the limitation:
derive a second plurality of time dependent metrics from the
second data set of longitudinal medical diagnosis test results
2 "As per claim 26, the Examiner takes Official Notice that it was old and
well known in the art at the time of the invention that a patient's data could
be de-identified of personal information. For example, HIPP A privacy rules
are old and well known examples of such privacy rules to protect the
patient." Ans. 8.
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Appeal2014-000176
Application 12/627,156
corresponding to the reference population, wherein the second
plurality of time dependent metrics represent a trend in the test
results of the reference population for the clinical parameter over
a plurality of reference time points.
The Examiner found said claim limitation disclosed in paragraphs 26-
29 of Sirohey. See Final Act. 3; Ans. 3. According to the Examiner:
Sirohey teaches acquiring images for specific anatomical
[features] using tracers at two different times; the comparison of
the acquired image is done with normative standardized image
data in reference to one or more tracers. Therefore, the normal
data consists of the time dependent metric of the anatomical
organ based on the similar tracer used for acquiring patient data
to determine separation metric.
Ans. 8-9.
Appellants contend that the cited prior art does not disclose a trend in
the test results of the reference population for the clinical parameter over a
plurality of reference time points. App. Br. 4--7; Reply Br. 2-5.
We agree with Appellants.
Paragraphs 26-29 of Sirohey disclose "a normal image database 102
that includes images of non-diseased anatomical structures" and "provides a
baseline for comparison to help identify images of diseased anatomical
structures." Sirohey i-f 26. Normal image database 102 comprises "averaged
anatomic feature images" that are "sufficiently within the range of typical
non-diseased anatomic features to be considered as normal." Id. at
i-f 27. However, the cited passages provide no indication that the normal
image database contains "longitudinal medical diagnosis test results," nor do
the cited passages disclose that the system derives a "plurality of time
dependent metrics [that] represent a trend in the test results of the reference
population for the clinical parameter over a plurality of reference time
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Appeal2014-000176
Application 12/627,156
points" as required by claim 1. For example, there is no teaching that the
averaging of normal anatomic features is performed "over a plurality of
reference time points."
The Examiner's conclusion that "the normal data consists of the time
dependent metric of the anatomical organ based on the similar tracer used"
does not follow from the evidence. Ans. 9. The fact that both data sets may
include images created using the same radiotracer (see, e.g., Sirohey i-fi-154,
55) does not imply that normal image database 102 necessarily includes
longitudinal data, nor does it imply that the system derives a plurality of
time dependent metrics that represent a trend. To find anticipation, "'[t]he
mere fact that a certain thing may result from a given set of circumstances is
not sufficient [to establish inherency]."' In re Oelrich, 666 F.2d 578, 581
(CCP A 1981) (citation omitted).
To establish a prima facie case of anticipation, each and every element
of the claimed invention, arranged as required by the claim, must be found in
a single prior art reference, either expressly or under the principles of
inherency. That has not been established here based on a preponderance of
the evidence.
Accordingly, the rejection of independent claim 1, and its dependent
claims 2-14, is not sustained.
The Examiner rejected independent claims 15, 30, and 31 for the same
reasons as the rejection of independent claim 1, and the Examiner's rejection
of these claims suffers from the same deficiency. See Final Act. 5, 7; Ans.
5, 7. Although the Examiner finds the claims to be similar, claims 15, 30,
and 31 have distinguishing limitations that render the claims different as a
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Appeal2014-000176
Application 12/627,156
whole. Because the Examiner has provided no additional reasoning for
those distinguishing limitations, the rejection as to claims 15, 30, and 31 is
not sustained for the additional reason that a prima facie case of anticipation
has not been made out for the claimed subject matter as a whole.
Accordingly, the rejection of independent claims 15, 30, and 31, and claims
16-25, 27-29, and 32-39 which depend therefrom, is not sustained.
The rejection of claim 26 under 35 U.S. C. § 103 (a) as being unpatentable
over Sirohey and Official Notice.
Claim 26 depends from independent claim 15, whose rejection we
have not sustained, as described above. For the same reasons, we will not
sustain the rejection of claim 26 over the cited prior art.
CONCLUSIONS
The rejections of claims 1-25 and 27-39 under 35 U.S.C. § 102(b) as
being anticipated by Sirohey; and claim 26 under 35 U.S.C. § 103(a) as
being unpatentable over Sirohey and Official Notice are not sustained.
DECISION
The decision of the Examiner to reject claims 1-39 is reversed.
REVERSED
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