Ex Parte Guendel

Patent Trial and Appeal BoardAug 29, 2013

11144830 (P.T.A.B. Aug. 29, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE ________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ________________ Ex parte LUTZ GUENDEL ________________ Appeal 2011-000802 Application 11/144,830 Technology Center 2600 ________________ Before KALYAN K. DESHPANDE, BARBARA A. PARVIS, and STACEY G. WHITE, Administrative Patent Judges. WHITE, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-000802 Application 11/144,830 2 SUMMARY This is an appeal under 35 U.S.C. § 134(a) from the Final Rejection of claims 1-25. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. STATEMENT OF CASE Appellant’s claims are directed to method and apparatus for medical 3D image display and processing that allows for simplified and improved diagnostic evaluation. (Spec. ¶ 0021). Claim 1 is illustrative and is reproduced below (disputed limitations are indicated in italics): 1. A method for medical 3D image display and processing, comprising: prescribing an observer position, a search beam and a pixel value for a surface of a 3D evaluation volume; determining a first pixel on the search beam on the basis of the pixel value; expanding the search beam to an extended search region proximate to the first pixel; determining a second pixel on the search beam in the extended search region as a pixel which is alternative or additional to the first pixel on the basis of an extended pixel value range with one or more extended pixel values in the form of threshold contrast values, the second pixel having an associated extended pixel value that is chosen based on at least one characteristic of a lesion being sought; automatically searching for a lesion within the extended search region based on a particular geometric structure which is characteristic of the lesion; and displaying at least one of the first pixel and the second pixel. REJECTION Claims 1-25 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Johnson (U.S. 5,891,030) and Yao (U.S. Pub. No. 2005/0078858). Appeal 2011-000802 Application 11/144,830 3 ISSUES Appellant’s response to the Examiner’s rejections presents us with the following issues: (1) Did the Examiner err in finding the cited art teaches or suggests “the second pixel having an associated extended pixel value that is chosen based on at least one characteristic of a lesion being sought” as recited by claim 1? (2) Did the Examiner err in finding the cited art teaches or suggests “automatically searching for a lesion within the extended search region based on a particular geometric structure which is characteristic of the lesion” as recited by claim 1? (3) Did the Examiner err by using impermissible hindsight? ANALYSIS I. Does the Cited Art Teach or Suggest a “Pixel Value … Chosen Based on at Least One Characteristic of a Lesion Being Sought”? Independent claim 1 recites “the second pixel having an associated extended pixel value that is chosen based on at least one characteristic of a lesion being sought.” Independent claims 22 and 25 recite commensurate limitations. Appellant argues that neither Johnson nor Yao teaches or suggests choosing pixel values in an extended pixel value range based on characteristics of lesions being sought. (App. Br. 24). The cited portion of Johnson describes selecting a second pixel beyond an opaque point on an array. (Johnson 13:17-22; see also App. Br. 13-14). The distance between the second pixel and the opaque point may be varied according to the “burrow depth” parameter. (Johnson 13:17-24.). The cited portion of Yao describes a method for adjusting the intensity of Appeal 2011-000802 Application 11/144,830 4 voxels in a 3D digital representation. (Yao ¶ 0170; see also App. Br. 15-16). Yao sends rays from various voxels, scores those voxels based on whether the rays hit convex or concave boundaries, and then adjusts the intensity of the voxels based on those scores. (Yao ¶ 0170). Voxels with rays that hit convex boundaries are given higher scores because convex boundaries are indicative of polyps. (Id.). The Examiner finds that the combined disclosures of these references teach or suggest the claimed invention. In particular, the Examiner cites Yao’s discussion of altering voxel intensity based on the boundaries of anatomical structures found within the digital representation as teaching or suggesting the disputed limitation. (Ans. 4 (citing Yao ¶ [0170-84]); see also Final Rejection 3). We agree with the Examiner. The intensity of the voxel is based on the boundary of the anatomical structure and the boundary is a characteristic of that anatomical structure. As such, Yao’s discussion of adjusting the voxel intensity teaches or suggests the disputed limitation.1 Therefore, the Appellant has not persuaded us of error in the Examiner’s rejection. 1 Claims 25 recites “the second pixel having an associated threshold contrast value that is characteristic of a lesion being sought” as opposed to claim 1 which recites, “the second pixel having an associated extended pixel value that is chosen based on at least one characteristic of a lesion being sought.” As noted in the Specification, “contrast value” is an example of a pixel value. (Spec. ¶ 0012). Thus, under the broadest reasonable interpretation of the disputed language, Yao’s discussion of adjusting voxel intensity teaches or suggests both the “threshold contrast value” of claims 25 and the “extended pixel value” of claims 1. Appeal 2011-000802 Application 11/144,830 5 II. Does the Cited Art Teach or Suggest “Automatically Searching” for a Lesion “Based on a Particular Geometric Structure Which Is Characteristic of the Lesion”? Claim 1 recites “automatically searching for a lesion within the extended search region based on a particular geometric structure which is characteristic of the lesion.” Independent claims 22 and 25 recite commensurate limitations. Appellant asserts that the Examiner is incorrect in finding Yao teaches or suggests this limitation. (App. Br. 25-26). The cited portion of Yao describes an iterative process used to classify the biological structures found in a digital representation. (Yao ¶¶ [0176- 0181]; see also Ans. 4 (citing Yao ¶¶ [0170-184])). Enhancements are made to the intensity of voxels in a digital representation based on the convex or concave nature of the boundaries of structures found within the digital representation. (Id. ¶ [170]). Membership functions are used to determine the biological structures present in the enhanced digital images. (Id. ¶¶ [0176-0181]). The Examiner finds that Yao teaches conducting a search from the centroid regions to the concave boundary and that that boundary is a geometric structure which is characteristic of a lesion. (Ans. 18-19). Appellant argues that a convex or concave boundary is not the claimed “particular geometric structure which is characteristic of the lesion.” (Reply Br. 16). Appellant has not directed us to a definition of “geometric structure,” however; we note that the Specification describes searching for lesions by seeking “geometrically spherical or circular structures.” (See Spec. ¶ [0061]). One of ordinary skill in the art at the time the application was filed would understand the term “geometric structure” to broadly include a variety of forms including curves and surfaces. One of ordinary skill would also understand the term “concave” to describe an in-ward Appeal 2011-000802 Application 11/144,830 6 curving surface. Thus, we agree with the Examiner’s reasonable finding that a concave boundary includes a geometric structure characteristic of the lesion as set out in the disputed language. (Ans. 19). Therefore, Appellant has not identified evidence or proffered arguments sufficient to persuade us of error in the Examiner’s rejection. III. Is the Examiner Using Impermissible Hindsight? Appellant avers that the Examiner erred by using impermissible hindsight to combine the cited references. (App. Br. 34-35). According to Appellant, the Examiner’s rationale for combing the references includes knowledge gleaned from the Specification. (Id. at 34). The Examiner finds that combing the Yao and Johnson provides “the benefit of allowing rapid differentiation between diagnostically important findings and ‘false positive’ results.” (Ans. 4). The Appellant directs us to a very similar description in the Specification as evidence that the Examiner relied on the teachings of the Specification to support the rationale for combining Yao and Johnson. (See Spec. ¶ 0033 (“By way of example, this would allow rapid differentiation between diagnostically important findings and the ‘false positive’ results.”)). The Examiner explains that one of skill in the art at the time the application was filed would know that a high rate of false positive results would cause clinicians to find a device to be of no value. (Ans. 15). As such, the importance of reducing false positives was “very well known” in the art in regards to CAD products appearing on the market in the late 1990’s. (Id.). The Examiner states that this issue was the subject of papers and presentations at the Radiological Society of North America (RNSA) Scientific Assembly and Annual Meeting. (Id. at 16). Appeal 2011-000802 Application 11/144,830 7 Appellant has not challenged the accuracy of these statements. Instead, Appellant’s Reply Brief includes argument questioning (1) whether the Examiner is one of ordinary skill in the art at the application was filed and (2) whether the Examiner provided a sufficient nexus between the references and proffered rationale. (Reply Br. 3-8). We find the Examiner’s unchallenged factual representations support the Examiner’s stated rationale regardless of whether the Examiner himself is one of ordinary skill in the art at the time the application was filed. In addition, Appellant’s Appeal Brief fails to argue the sufficiency of the nexus between the references and the rationale. “Any bases for asserting error, whether factual or legal, that are not raised in the principal brief are waived.” Ex parte Borden, 93 USPQ2d 1473, 1474 (BPAI 2010) (informative). The Examiner’s rationale is unchanged from the Final Rejection and thus, the Appellant had opportunity to challenge the sufficiency of the rationale in the Opening Brief. (See Final Rejection 11-12). Therefore, this basis for asserting error is waived. See 37 C.F.R. § 41.41(b)(2). For all of the foregoing reasons, we sustain Examiner’s rejection under 35 U.S.C. § 103(a) of independent claim 1 and for similar reasons we sustain the Examiner’s rejection of independent claims 22 and 25 and dependent claims 2-21 and 23-24. DECISION We affirm the rejection of claims 1-25 under 35 U.S.C. § 103(a) as unpatentable over Johnson and Yao. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Appeal 2011-000802 Application 11/144,830 8 msc