Ex Parte Herrmann

Patent Trial and Appeal Board

Dec 6, 2018

13884978 (P.T.A.B. Dec. 6, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/884,978 05/13/2013 Christoph Herrmann
24737 7590 12/10/2018
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
465 Columbus A venue
Suite 340
Valhalla, NY 10595
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.
201 OP00990WOUS 6564
EXAMINER
MEHL, PATRICK M
ART UNIT PAPER NUMBER
3793
NOTIFICATION DATE DELIVERY MODE
12/10/2018 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):
patti. demichele@Philips.com
marianne.fox@philips.com
katelyn.mulroy@philips.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHRISTOPH HERRMANN
Appeal2017-000066
Application 13/884,978
Technology Center 3700
Before JEFFREY N. FREDMAN, JEFFREY B. ROBERTSON, and
DEBORAH KATZ, Administrative Patent Judges.
FREDMAN, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal1, 2 under 35 U.S.C. § 134 involving claims to a
radiation detector system. The Examiner rejected the claims as obvious.
We have jurisdiction under 35 U.S.C. § 6(b). We reverse.
1 Appellant identifies the Real Party in Interest as Koninklijke Philips
Electronics N.V. (see App. Br. 1 ).
2 We have considered and herein refer to the Specification of May 13, 2013
("Spec."); Final Office Action of July 14, 2015 ("Final Act."); Appeal Brief
of Dec. 11, 2015 ("App. Br."); Examiner's Answer of July 27, 2016
("Ans."); and Reply Brief of Sept. 21, 2016 ("Reply Br.").
Appeal2017-000066
Application 13/884,978
Statement of the Case
Background
Positron emission tomography (PET) involves "administering a
radiopharmaceutical to the subject ... and detecting radiation emitted from
the subject by the radiopharmaceutical" (Spec. 1 :7-9). According to the
Specification, PET is "recognized as complementary to transmission
computed tomography (CT) or magnetic resonance (MR) for oncology,
because PET ... tend[s] to provide functional information relating to
metabolic activity; whereas, CT and MR provide primarily structural
information" (id. at 1: 12-15). "Great care is taken to position the subject in
the same location in both the CT and the PET ... scanner. Misalignment of
even 1 mm or less can cause significant registration errors" (id. at 1 :28-30).
The Specification teaches "a more efficient scanning system for both
PET and CT imaging" (Spec. 2:28-29).
The Claims
Claims 1--4, 6, 7, 9-15, 17-19, 21, and 22 are on appeal. Independent
claim 1 is representative and reads as follows ( emphasis added):
1. A radiation detector system comprising:
a first detector layer of detectors having a first cross-
section dimension and to convert incident radiation from
transmission source into transmission data or emission radiation
into emission data wherein the first detector layer includes an
array of first scintillators and an array of first photodetectors;
at least one second detector layer of detectors having a
second cross-section dimension and disposed below the first
layer to convert emission radiation into emission data wherein
the second detector layer includes an array of second
scintillators and an array of second photodetectors; and
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Appeal2017-000066
Application 13/884,978
a processor connected with the first and at least one
second detector layers and programmed to:
perform CT imaging using transmission data
acquired by the first detector layer including the first
scintillators while ignoring any scintillations in the
second scintillators; and
perform emission imaging using at least emission
data acquired by the at least one second detector layer
including the second scintillators.
The Issues
A. The Examiner rejected claims 1, 2, 6, 9, and 14 under 35 U.S.C. §
I03(a) as obvious over Fritzler, 3 Mccallum, 4 Powolny, 5 and Crosetto 6 (Final
Act. 4--8).
B. The Examiner rejected claims 3, 4, and 20-22 under 35 U.S.C. §
I03(a) as obvious over Fritzler, Mccallum, Powolny, Crosetto, Beigelman-
Aubry,7 Zaidi, 8 and Inadama9 (Final Act. 8-11, 18-19).
3 Fritzler et al., US 2006/0081899 Al, published Apr. 20, 2006.
4 Mccallum et al., US 2007/0263764 Al, published Nov. 15, 2007.
5 Powolny et al., A Novel Time-Based Readout Scheme for a Combined PET-
CT Detector Using APDs, 55 IEEE TRANS. ON NUCLEAR SCI. 2465-74
(2008).
6 Crosetto, US 7,180,074 Bl, issued Feb. 20, 2007.
7 Beigelman-Aubry et al., Multi-Detector Row CT and Postprocessing
Techniques in the Assessment of Diffuse Lung Disease, 25 RADIOGRAPHICS
1639-52 (2005).
8 Zaidi et al., Advances in multimodality molecular imaging, 34 J. MED.
PHYS. 122-28 (2009).
9 Inadama et al., 8-Layer DOI Encoding of 3-Dimensional Crystal Array, 53
IEEE TRANS. ON NUCLEAR SCI. 2523-28 (2006).
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Application 13/884,978
C. The Examiner rejected claim 7 under 35 U.S.C. § 103(a) as obvious
over Fritzler, Mccallum, Powolny, Crosetto, Berard, 10 and Martinez 11 (Final
Act. 11-12).
D. The Examiner rejected claim 10 under 35 U.S.C. § 103(a) as obvious
over Fritzler, Mccallum, Powolny, Crosetto, Edie, 12 and Cao 13 (Final Act.
13-14).
E. The Examiner rejected claim 11 under 35 U.S.C. § 103(a) as obvious
over Fritzler, Mccallum, Powolny, Crosetto, and Edie (Final Act. 14).
F. The Examiner rejected claim 12 under 35 U.S.C. § 103(a) as obvious
over Fritzler, Mccallum, Powolny, Crosetto, and Frutschy14 (Final Act. 14--
15).
G. The Examiner rejected claim 13 under 35 U.S.C. § 103(a) as obvious
over Fritzler, Mccallum, Powolny, Crosetto, Frutschy, and Edie (Final Act.
16).
H. The Examiner rejected claim 15 under 35 U.S.C. § 103(a) as obvious
over Fritzler, Mccallum, Powolny, Crosetto, and Chen 15 (Final Act. 16-17).
10 Berard et al., CT Acquisition Using PET Detectors and Electronics, 52 IEEE
TRANS. ON NUCLEAR SCI. 634--37 (2005).
11 Martinez et al., PET and PET/CT: Basic Principles and Instrumentation, 170
RECENT RESULTS IN CANCER RESEARCH 1-23 (2008).
12 Edie et al., US 7,366,279 B2, issued Apr. 29, 2008.
13 Cao et al., A dynamic micro-CT scanner based on a carbon nanotube field emission
X-ray source, 54 PHYS. MED. BIOL. 2323--40 (2009).
14 Frutschy et al., X-ray Multisourcefor Medical Imaging, 7258 PROC. OF SPIE 1-
12(2009).
15 Chen et al., Determination of the System Matrix Used in
List-Mode EM Reconstruction of PET, 2007 IEEE NUCLEAR SCIENCE SYMPOSIUM
CONFERENCE RECORD 3855-58 (2007).
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Appeal2017-000066
Application 13/884,978
I. The Examiner rejected claims 17 and 18 under 35 U.S.C. § 103(a) as
obvious over Fritzler, Mccallum, Powolny, Crosetto, Edie, and Cao (Final
Act. 17-18).
J. The Examiner rejected claim 19 under 35 U.S.C. § 103(a) as obvious
over Fritzler, Mccallum, Powolny, Crosetto, Edie, Cao, and Frutschy (Final
Act. 18).
Because the same issue is dispositive for all of the obviousness
rejections, we will consider them together.
The Examiner finds that Fritzler teaches a radiation detection system
"combining transmission and emission tomography, measuring transmission
X-ray radiation and emission y-radiation inside the detector" (Final Act. 4).
The Examiner relies upon Mccallum for avalanche photodetectors (id. at 6),
upon Powolny for optically coupling scintillators and photodetectors (id. at
7), and on Crosetto for merging CT and PET emission data (id. at 8).
The Examiner finds Fritzler teaches the device has three detector
layers and that each layer "is connected to a bus of data information ...
corresponding to the CT, SPECT and PET detection layer" (id. at 5). The
Examiner finds the ordinary artisan can "choose, as a matter of design
choice, the size or thickness of the first layer" thereby "allowing the
recording of the CT signal without considering the scintillation for the PET
detector" (id. at 5---6).
Appellants contend "[t]here is no fair suggestion in Fritzler that its
evaluation unit (2) is programmed to perform CT imaging using
transmission data acquired by the first detector layer ( A 1, C 1) including the
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Application 13/884,978
first scintillators ( C 1) while ignoring any scintillations in the second
scintillators (A2, A3)" (App. Br. 11 ).
The Examiner responds
This approach of "ignoring any scintillations in the second
scintillators" is furthermore suggested by Fritzler (Fritzler [0020]) that
only the first layer signals can be considered for the CT imaging
signals even though both first and second layer can also be chosen as
a matter of choice for design dependent on the appropriate resolution
needed, which broadly reads on the evaluation unit capable to perform
the CT imaging analysis using the first layer signals while ignoring
the scintillation signals from the second layers, as claimed.
(Ans. 13).
We agree with Appellants. When functional language is associated
with programming or some other structure required to perform the function,
that programming or structure must be present in order to meet the claim
limitation. Typhoon Touch Techs., Inc. v. Dell, Inc., 659 F.3d 1376, 1380
(Fed. Cir. 2011); see also Ultramercial, LLC v. Hulu, LLC, 657 F.3d 1323,
1328-29 (Fed. Cir. 2011) ("[P]rogramming creates a new machine, because
a general purpose computer in effect becomes a special purpose computer
once it is programmed to perform particular functions pursuant to
instructions from program software.").
Therefore, the prior art must suggest the specific programming
element required by each of the independent claims to "perform CT imaging
using transmission data acquired by the first detector layer including the first
scintillators while ignoring any scintillations in the second scintillators"
( Claim 1; cf claim 14 "while ignoring any conversion of incident radiation
from the transmission source into transmission data at second detectors of
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Application 13/884,978
the second detector layer"; claim 21 "while ignoring any scintillations in the
second array of scintillators").
The only portion of Fritzler identified by the Examiner as suggesting
this programming limitation is paragraph 20 (see Ans. 13), which recites in
pertinent part:
In accordance with this different division of the absorption
layers, measurements can then be performed with higher
resolution for CT pictures for which the first or, if appropriate,
also the second layer of the detection arrangement is
responsible, whereas the measurements of the positron emission
are performed with a lower but sufficient resolution.
(Fritzler ,r 20). The reasonable interpretation of this paragraph of Fritzler is
that when performing the CT analysis, the processor had to consider
scintillation from both of the first and second layers in order to decide if
scintillation from the second layer was appropriate for the CT analysis.
Thus, rather than ignoring the second layer, Fritzler suggests that the
processor considers the second layer to determine if the signals from that
layer would have been appropriate.
Even if we treated the "if appropriate" as suggesting that the processor
will sometimes consider and sometimes not consider scintillation from the
second layer, the Examiner does not establish that Fritzler unambiguously
suggests programming the device to "ignor[ e] any scintillations in the
second scintillators" as required by the independent claims (see Reply Br. 3-
5). "[T]he Examiner bears the burden of establishing a prima facie case of
obviousness based upon the prior art." In re Fritch, 972 F.2d 1260, 1265
(Fed. Cir. 1992).
We therefore reverse the obviousness rejections.
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Application 13/884,978
SUMMARY
In summary, we reverse all of the obviousness rejections.
REVERSED
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