Ex Parte Edelman

Patent Trial and Appeal Board

Aug 24, 2017

12651801 (P.T.A.B. Aug. 24, 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.
12/651,801 01/04/2010 Robert R. Edelman 119152.00019.ENH 08-011 9908
26710 7590
QUARLES & BRADY LLP
Attn: IP Docket
411 E. WISCONSIN AVENUE
SUITE 2350
MILWAUKEE, WI 53202-4426
EXAMINER
COOK, CHRISTOPHER L
ART UNIT PAPER NUMBER
3737
NOTIFICATION DATE DELIVERY MODE
08/28/2017 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):
pat-dept@quarles.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROBERT R. EDELMAN
Appeal 2015-002791
Application 12/651,801
Technology Center 3700
Before JENNIFER D. BAHR, GEORGE R. HOSKINS, and
BRANDON J. WARNER, Administrative Patent Judges.
HOSKINS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Robert R. Edelman (“Appellant”)1 appeals under 35 U.S.C. § 134
from the Examiner’s decision rejecting claims 1—18 and 20 in this
application. The Board has jurisdiction over the appeal under 35 U.S.C.
§ 6(b).
We AFFIRM.
1 The Appeal Brief identifies Northshore University Health System as the
real party in interest. Br. 2.
Appeal 2015-002791
Application 12/651,801
CLAIMED SUBJECT MATTER
Claim 1 is the sole independent claim, and it recites:
1. A method for producing an angiogram of a subject with a
magnetic resonance imaging (MRI) system without
administering a contrast agent to the subject, comprising the
steps of:
a) acquiring, with the MRI system, a first image data set of
a vasculature of interest using a balanced steady-state free
precession (SSFP) pulse sequence;
b) acquiring, with the MRI system, a second image data set
of the vasculature of interest using an unbalanced SSFP pulse
sequence;
c) reconstructing first and second images from the
respective first and second acquired image data sets; and
d) subtracting a first of the first and second images from a
second of the first and second images to produce an angiogram
of the vasculature of interest.
Br. 16 (Claims App.).
REJECTIONS ON APPEAL
Claims 1—5, 9, 16, and 20 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Chavhan {Steady-State MR Imaging Sequences: Physics,
Classification, and Clinical Applications, RadioGraphics, Vol. 28, No. 4,
1147-60 (2008)) and Haider (US 2007/0247157 Al, pub. Oct. 25, 2007).
Claim 6 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
Chavhan, Haider, andFeinberg (US 5,613,492, iss. Mar. 25, 1997).
Claims 7 and 9-11 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Chavhan, Haider, and Sutton (US 2009/0088626 Al, pub.
Apr. 2, 2009).
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Claims 7, 8, 17, and 18 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Chavhan, Haider, and Nezafat (US 2008/0221429 Al,
pub. Sept. 11, 2008).
Claims 12—15 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Chavhan, Haider, Sutton, and Miyazaki (US 2008/0071166 Al, pub.
Mar. 20, 2008).
ANALYSIS
A. Obviousness over Chavhan and Haider
(Claims 1—5, 9, 16, and 20)
Claim 1
In rejecting claim 1, the Examiner finds the claimed first image data
set acquired “using a balanced steady-state free precession (SSFP) pulse
sequence” is disclosed by Chavhan’s “fully refocused steady-state
sequence,” or TrueFISP. Final Act. 2—3; Ans. 4; see also Spec. 138
(“a balanced SSFP pulse sequence, such as available on Siemens MR
scanners as ‘TrueFISP’”); Chavhan 1150 (“[fjully refocused steady-state
sequence[]... is also called a balanced SSFP . . . (eg,. . . true FISP . . .)”).
The Examiner finds the claimed second image data set acquired “using an
unbalanced SSFP pulse sequence” is disclosed by Chavhan’s “postexcitation
refocused steady-state sequence,” or FISP. Final Act. 2—3; Ans. 4; see also
Spec. 138 (“a[n] unbalanced SSFP pulse sequence, such as available on the
Siemens scanner as ‘FISP’”); Chavhan 1150 (“(b) Postexcitation refocused
steady-state sequence. . . . Slice-selection and readout gradients are not
balanced.”). The Examiner finds Chavhan does not disclose subtracting a
FISP image from a TrueFISP image (or vice versa) to produce an
angiogram. Final Act. 3.
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The Examiner further finds Chavhan discloses various “[s]teady-state
sequences have proved useful in . . . imaging of the heart and vessels”
(Chavhan 1148), including FISP and TrueFISP, as illustrated in Figure 4 (id.
at 1150) and described in Table 1 (id. at 1151). Final Act. 10; Ans. 4. The
Examiner finds Chavhan discloses FISP is “sensitive to movement, flow,
and susceptibility,” whereas TrueFISP “is insensitive to motion or flow.”
Final Act. 10—11; Ans. 4; see Chavhan, Table 1. The Examiner,
additionally, finds Chavhan indicates “the appearance of vessels in the FISP
sequence are dark while they are bright on TrueFISP,” and Chavhan further
indicates TrueFISP sequences “are particularly useful assessing blood
vessels without contrast material injection.” Final Act. 10-11; Ans. 4; see
Chavhan, Table 1, 1156.
The Examiner goes on to find Haider discloses “various, known
imaging sequences can differ with regard to contrast.” Final Act. 3 (citing
Haider, Abstract, || 4, 7); Ans. 5—6. The Examiner also cites the following
disclosures of Haider (with emphases added to indicate the portions cited by
the Examiner):
Gradient echo sequences lead to mixed contrasts.
The TrueFISP sequence thus delivers a typical T2/T/ contrast.
The cerebrospinal fluid is shown very bright while tissue (such
as white or grey brain matter) appears only with weak signal in
the MR image. The DESS sequence comprises the simultaneous
acquisition of an MR image on the basis of the aforementioned
FISP sequence and on the basis of a further MR image using the
PSIF sequence, which (presented in a simplified manner)
represents a reversal of the TrueFISP sequence. While the FISP
sequence shows the typical T2/Ti contrast, the PSIF MR image
is strongly T2-weighted. An MR image with particularly high
brightness in the region of cerebrospinal fluid is acquired via the
subsequent addition of the magnitudes of the images in the
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framework of the DESS method, i.e. the addition of the signal
intensities of pixels at the same location. The 3D DESS method
is therefore primarily used for orthopedic imaging, for example
for the differentiation of cartilage and fluid.
It is known to add or to subtract two congruent images
generated in the same manner, i.e. images that image the same
section in the examination subject. For each image point the
magnitude (absolute) value of the associated image point of the
second image is added to or subtracted from a magnitude value
of an image point of a first image. An existing contrast can be
intensified (amplified) in this manner, or new contrasts can be
generated. Moreover, the image addition or the image
subtraction offers the possibility to avoid image artifacts.
The CISS sequence is implemented with the goal of the avoiding
of such artifacts.
Haider || 9-11 ; see Final Act. 3—4, 11. Based on the cited disclosures in
Chavhan and in Haider, the Examiner determines it would have been
obvious to “subtract^ an unbalanced SSFP image (e.g. FISP) from a
balanced SSFP image (e.g. TrueFISP) (e.g. congruent; balanced/unbalanced)
as described by Haider in order to efficiently enhance angiographic image
contrast,” and specifically “to amplify vessel contrast.” Final Act. 4, 11;
Ans. 6.
Appellant does not dispute the Examiner’s findings comparing
claim 1 with the Chavhan disclosure. Appellant argues, instead, that the
Examiner misinterprets the teachings of Haider in determining obviousness.
Br. 5. According to Appellant, the cited disclosures of Haider “represent^
no more than a general statement that two images of different contrast can be
added or subtracted to develop a new image with different properties.” Id. at
5—6. Appellant asserts Haider fails to provide “any teaching specific with
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respect to which ‘two congruent images’ a person ought to select” for
addition or subtraction. Id. at 6. Appellant relatedly contends the Examiner
errs in failing to explain “why a person having ordinary skill in the art would
have been motivated to select the claimed combination of balanced and
unbalanced [SSFP] pulse sequences.” Id. at 7.
We conclude the Examiner does not err in rejecting claim 1 as
unpatentable over Chavhan and Haider. The Examiner cites Haider to
establish different MRI imaging sequences were known to have different
contrasts, and contrasts can be intensified or new contrasts generated by
subtracting two congruent images (that is, images of the same section).
Final Act. 3—4, 11; Ans. 5—6. Those findings are supported by a
preponderance of the evidence. See, e.g., Haider || 4, 7, 9—11. We
appreciate Appellant’s point that Hader discloses many different sequences
in this regard (HASTE, TrueFISP, DESS, CISS, and SINOP), whereas
claim 1 recites two specific sequences (FISP and TrueFISP).
Nonetheless, the Examiner provides an articulated reasoning with a
rational underpinning, supported by a preponderance of the evidence, for
why a person of ordinary skill in the art would have known to subtract
a FISP sequence image from a TrueFISP sequence image. See In re Kahn,
441 F.3d 977, 988 (Fed. Cir. 2006) (cited with approval in KSRInt’l Co. v.
Teleflex Inc., 550 U.S. 398, 418 (2007)). The Examiner, in particular, relies
on Chavhan’s disclosure that FISP and TrueFISP images were both known
to be useful in “imaging of the heart and vessels” (Chavhan 1148), with the
former showing vessels as “dark” and being sensitive to motion, and the
latter showing vessels as “bright” and being insensitive to motion {id. at
Table 1). Based on these known characteristics of the FISP and TrueFISP
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sequence images as disclosed in Chavhan, and the general knowledge of
using image subtraction to improve contrast of targeted tissues as disclosed
in Haider, we agree with the Examiner’s conclusion that a person of ordinary
skill in the art would have known to subtract a FISP sequence image from a
TrueFISP sequence image to achieve an improved contrast of targeted
vessels. See, e.g., KSR, 550 U.S. at 420 (“Common sense teaches, however,
that familiar items may have obvious uses beyond their primary purposes,
and in many cases a person of ordinary skill will be able to fit the teachings
of multiple patents together like pieces of a puzzle.”). Appellant’s
suggestion that the obviousness of such a method step is belied by
Chavhan’s failure to disclose the subtraction (Br. 8) is not persuasive of
Examiner error, because “it is unreasonable ... to expect a single reference
to disclose every possible application of MRI image acquisition.” Ans. 4.
For the foregoing reasons, we sustain the rejection of claim 1 as
having been unpatentable over Chavhan and Haider.
Claims 2—5
Appellant argues for the patentability of claims 2—5, which each
separately depend from claim 1, together as a group. Br. 9-10. We select
claim 2 to decide Appellant’s appeal as to this group of claims, with
claims 3—5 standing or falling with claim 2. See 37 C.F.R. § 41.37(c)(l)(iv).
Claim 2 specifies “the balanced SSFP pulse sequence includes a slice
select and readout gradient configured to have a nulled first moment that
rephases signals from moving spins in the vasculature of interest between
performances of the balanced SSFP pulse sequence.” Br. 16 (Claims App.).
The Examiner determines this limitation is an “inherent property]” of a
balanced SSFP pulse sequence, such as the TrueFISP sequence disclosed by
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Chavhan. Final Act. 4, 12—13. In particular, the Examiner determines
“balanced SSFP sequences (e.g. TrueFISP) have a first moment nulled” by
definition. Ans. 6—7. In support, the Examiner cites to Appellant’s
Specification, which states “[t]he SSFP pulse sequence gradient pulses differ
for each image acquisition in that gradient pulses are balanced, or first
moment nulled, for one acquisition, but not the other.” Spec. 116 (emphasis
added); Ans. 7. The Examiner further cites to the Specification’s description
of “[t]he balanced slice select and readout gradients are shaped to have a
nulled first moment that rephases the signal from moving spins from one
pulse sequence to the next.” Spec. 139 (emphases added); Ans. 7—8.
Appellant responds that a rejection predicted upon an inherent
disclosure, as here, must provide a basis in fact and/or technical reasoning to
support the finding of inherency. Br. 9—10. Appellant contends the
Examiner has failed to do so in this case, so the burden has not shifted to
Appellant under MPEP § 2112(IV—V) to rebut the inherent disclosure found
by the Examiner. Id.
We determine the Examiner has provided a sufficient basis in fact for
the finding that Chavhan’s balanced SSFP sequence (i.e., a TrueFISP
sequence) inherently has the property specified in claim 2. This basis is
Appellant’s own Specification, which indicates the “balanced” feature of the
claimed balanced SSFP sequence is defined by the nulled first moment
identified in claim 2. See Spec. Tflf 16, 38—39. Appellant fails to address that
disclosure, such as with evidence or argument to indicate the Specification’s
description of a “balanced” sequence differs from Chavhan’s description of
a “balanced” sequence. Compare id., with Chavhan 1150, 1152. We,
therefore, are not apprised of Examiner error in that regard, and we sustain
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the rejection of claim 2 as having been unpatentable over Chavhan and
Haider. Claims 3—5 fall with claim 2.
Claim 9
Claim 9 depends from claim 1, and specifies the image reconstruction
step c) of claim 1 “includes performing a complex Fourier transformation of
the first image data set and the second image data set to form corresponding
complex images.” Br. 18 (Claims App.). The Examiner determines: “for
any MR image, the use of the Fourier transform allows manipulation of the
data into the frequency domain (k-space) in order to properly plot the
amplitudes on the image.” Final Act. 13. According to the Examiner, this is
consistent with the Specification’s description of reconstructing images
“from the two k-space image data sets” in “a complex two-dimensional
Fourier transformation of each k-space data set to form corresponding
complex images.” Ans. 8—9 (citing Spec. 141).
Appellant responds that the Examiner improperly relies on “common
knowledge” in the art as the principal evidence in the rejection without
evidentiary support, and by improperly taking official notice of facts.
Br. 10-11 (citing In re Zurko, 258 F.3d 1379, 1385 (Fed. Cir. 2001) and
MPEP § 2144.03(A)).
We agree with Appellant that the Examiner’s determination that
claim 9 is unpatentable over Chavhan and Haider is not supported by a
preponderance of the evidence. In particular, the Examiner has not
established that either Chavhan or Haider discloses a complex Fourier
transformation of image data to form a complex image, or otherwise
provided evidence or technical reasoning in this rejection of claim 9
sufficient to establish that such a transformation would have been obvious to
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implement when combining Chavhan and Haider. We, therefore, do not
sustain the rejection of claim 9 as having been unpatentable over Chavhan
and Haider.
Claim 16
Claim 16 depends from claim 1, and specifies “the balanced SSFP
pulse sequence and the unbalanced SSFP pulse sequence are one of 3D pulse
sequences and 2D pulse sequences.” Br. 19 (Claims App.). The Examiner
finds “the commercially available pulse sequences (FISP and TrueFISP)
used by Siemens as disclosed by Chavhan (Page 1152) are 2D/3D pulse
sequences.” Final Act. 13; Ans. 10.
Appellant responds that “careful examination of page 1152 of
Chavhan reveals that 2D pulse sequences are not specifically discussed and
only balanced SSFP sequences are discussed in terms of 3D pulse
sequences.” Br. 11. Appellant additionally asserts the Examiner improperly
relies on “common knowledge” in the art as the principal evidence in the
rejection without evidentiary support, and by improperly taking official
notice of facts. Id. (citing Zurko and MPEP § 2144.03(A)).
The cited Chavhan disclosure provides:
Contrast differences also exist between two-dimensional
and 3D balanced SSFP sequences because of the long duration
of the transient phase (7). Two-dimensional balanced SSFP
images display contrast between proton density and T2/T1,
whereas 3D images have pure steady-state contrast characterized
by poor gray matter—white matter differentiation and increased
signal from fat and water. Whereas vessels are bright due to flow
enhancement on two-dimensional images, they are dark on 3D
balanced SSFP images (7).
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Chavhan 1152 (emphases added). We determine this disclosure supports, by
a preponderance of the evidence, the Examiner’s finding that Chavhan
discloses the use of 2D and 3D balanced SSFP pulse sequences and, by
extension, 2D and 3D unbalanced SSFP pulse sequences. Indeed, Figure 5b
of Chavhan illustrates a 2D image resulting from an unbalanced SSFP
sequence (i.e., a postexcitation refocused steady state sequence). See
Chavhan, 1152—53. Thus, we sustain the rejection of claim 16 as having
been unpatentable over Chavhan and Haider.
Claim 20
Claim 20 depends from claim 1, and specifies “the first and second
images are complex images,” and the subtraction step d) of claim 1 “includes
performing a complex subtraction.” Br. 20 (Claims App.) (emphases added).
The Examiner determines the combination of Chavhan with Haider
“provides for the subtraction of the TrueFISP and FISP images,” and
“each . . . respective image is reconstructed from its own k-space (e.g.
complex images).” Final Act. 13; Ans. 11.
Appellant responds that the Examiner improperly relies on “common
knowledge” in the art as the principal evidence in the rejection without
evidentiary support, and by improperly taking official notice of facts.
Br. 11—12 (citing Zurko and MPEP § 2144.03(A)). This conclusory
response is not persuasive of Examiner error. In particular, it fails to
indicate how the claim term “complex” — the only term added to claim 1 by
dependent claim 20 — might distinguish claim 20 from the subtraction of a
FISP image from a TrueFISP image, as found by the Examiner to result
from the combination of Chavhan and Haider. Thus, we sustain the
rejection of claim 20 as having been unpatentable over Chavhan and Haider.
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B. Obviousness over Chavhan, Haider, and one or more of
Feinberg, Sutton, Nezafat, and Miyazaki
(Claims 6—15, 17, and 18)
Appellant does not argue for the patentability of any one of claims 6—
8, 10-15, 17, and 18 separately from claim 1. Br. 12—14. For the reasons
provided above in relation to claim 1, we sustain the various rejections of
these claims over Chavhan, Haider, and one or more of Feinberg, Sutton,
Nezafat, and Miyazaki.
As discussed above, claim 9 depends from claim 1, and specifies the
image reconstruction step c) of claim 1 “includes performing a complex
Fourier transformation of the first image data set and the second image data
set to form corresponding complex images.” Br. 18 (Claims App.). The
Examiner determines “the transformation of the signals into image space
requires the well-known Fourier transformation and is considered to be
‘complex’ in its broadest reasonable interpretation.” Final Act. 6. The
Examiner additionally relies on Sutton’s disclosing “well known MR signal
detection techniques,” which “efficiently and accurately digitize received
MR signals.” Id. at 7; Ans. 9-10.
Appellant responds that the Examiner improperly relies on “common
knowledge” in the art as the principal evidence in the rejection without
evidentiary support, and by improperly taking official notice of facts.
Br. 13—14 (citing Zurko and MPEP § 2144.03(A)).
We conclude the Examiner does not err in rejecting claim 9 as
unpatentable over Chavhan, Haider, and Sutton. In particular, the Examiner
relies on Sutton as disclosing the Fourier image transformation recited in
claim 9. See Final Act. 13; Ans. 9—10. Sutton correspondingly indicates:
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The MR signals acquired with an MRI system are signal
samples of the subject of the examination in Fourier space, or
what is often referred to in the art as “k-space”. Each MR
measurement cycle, or pulse sequence, typically samples a
portion of k-space along a sampling trajectory characteristic of
that pulse sequence. Most pulse sequences sample k-space in a
raster scan-like pattern sometimes referred to as a “spin-warp”, a
“Fourier”, a “rectilinear”, or a “Cartesian” scan.
Sutton | 6. Sutton further indicates “[a]n image is reconstructed from the
acquired k-space data by transforming the k-space data set to an image space
data set,” including using “an inverse Fourier transformation.” Id. 1 8.
Thus, a preponderance of the evidence supports the Examiner’s reliance on
Sutton as disclosing Fourier transformation of an image data set into a
corresponding image. We cannot ascertain, and Appellant does not explain,
what the claim term “complex” might add to the common Fourier
transformation disclosed by Sutton. See Final Act. 13 (equating k-space to a
“complex” image); Ans. 10 (Fourier transform is “complex”); Spec. 141
(“images are then reconstructed from the two k-space image data sets” in “a
complex two-dimensional Fourier transformation of each k-space data set to
form corresponding complex images”). Thus, we sustain the rejection of
claim 9 as having been unpatentable over Chavhan, Haider, and Sutton.
DECISION
The rejection of claims 1—5, 9, 16, and 20 as unpatentable over
Chavhan and Haider is affirmed as to claims 1—5, 16, and 20, and reversed
as to claim 9.
The rejection of claim 6 as unpatentable over Chavhan, Haider, and
Feinberg is affirmed.
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The rejection of claims 7 and 9-11 as unpatentable over Chavhan,
Haider, and Sutton is affirmed.
The rejection of claims 7, 8, 17, and 18 as unpatentable over Chavhan,
Haider, and Nezafat is affirmed.
The rejection of claims 12—15 as unpatentable over Chavhan, Haider,
Sutton, and Miyazaki is affirmed.
No time period for taking any subsequent action in connection with
this appeal maybe extended, under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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