Ex Parte Kollias et al

Patent Trial and Appeal BoardNov 28, 2012

11497107 (P.T.A.B. Nov. 28, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte NIKIFOROS KOLLIAS, KENNETH MEROLA, JEFFREY S. POTE, and GREGORY PAYONK ____________________ Appeal 2010-008761 Application 11/497,107 Technology Center 2600 ____________________ Before THU A. DANG, JAMES R. HUGHES, and GREGORY J. GONSALVES, Administrative Patent Judges. DANG, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-008761 Application 11/497,107 2 I. STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134 (a) from a final rejection of claims 1-24. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. A. INVENTION According to Appellants, the invention relates to taking images of the skin using blue light and the use of such images (Spec. 1, ll. 5-7). B. ILLUSTRATIVE CLAIM Claim 1 is exemplary and is reproduced below: 1. A method of photographing the skin of a person, said method comprising: (i) illuminating said skin with at least one light source, wherein said light source either emits substantially only light having a wavelength from 380 to about 430 nm or emits light through a filter that emits substantially only light having a wavelength from 380 to about 430 nm; and (ii) capturing the image of said illuminated skin with a camera; wherein the light entering said camera is also filtered with a long pass filter, wherein said long pass filter substantially eliminates light having a wavelength below about 400 nm. Appeal 2010-008761 Application 11/497,107 3 C. REJECTIONS The prior art relied upon by the Examiner in rejecting the claims on appeal is: Martens US 5,363,854 Nov. 15, 1994 Walsh US 4,911,544 Mar. 27, 1990 Claims 1-6 stand rejected under 35 U.S.C. § 102(b) over Martens. Claims 7-24 stand rejected under 35 U.S.C. § 103(a) over Martens and Walsh. II. ISSUE Did the Examiner err in finding that Martens discloses illuminating skin with a light source that either “emits substantially only light having a wavelength from 380 to about 430 nm” or “emits light through a filter that emits substantially only light having a wavelength from 380 to about 430 nm” (claim 1, emphasis added)? III. FINDINGS OF FACT The following Findings of Fact (FF) are shown by a preponderance of the evidence. Martens Martens discloses an illumination device that illuminates the examination region during recording of a fluorescence picture with ultraviolet light in a wavelength range of 340 to 380 nm, wherein, when recording a reference picture, blue light is produced in a wavelength range Appeal 2010-008761 Application 11/497,107 4 around 435 nm and the light transmission for the ultraviolet light is blocked (col. 3, l. 61 to col. 4, l. 2). IV. ANALYSIS Claims 1-6 As for claims 1-6, although Appellants concede that “Martens teaches the use of ultraviolet light at from 340nm to 380nm,” Appellants contend that Martens teaches the use of “ultraviolet light” and not the “blue light in the wavelength range of from 380 to 430 nm” to illuminate skin (App. Br. 5, emphasis omitted). According to Appellants, “the wavelengths utilized by Martens enable him to identify melanomae” whereas “Appellants claimed range of wavelengths enables them to identify inter alia, acne related coproporphyrin” (id.). However, Appellants’ argument is not commensurate in scope with the language of claim 1 on appeal. That is, claim 1 does not require illumination by any “blue” light or that the wavelengths enables identifying “acne related coproporphyri,” but rather merely requires “light having a wavelength from 380 to about 430 nm.” As the Examiner points out, “the claim as written does not specifically indicate that the light source use[d] in the claim of the present invention is blue light” (Ans. 17). Thus, the Examiner finds that “[‘]the light source has the wavelength range from 380nm to about 430 nm[’] recite[d] in the claim Appeal 2010-008761 Application 11/497,107 5 [includes] the region of 380 nm [of Martens]” (id). We find no error with the Examiner’s finding. Martens discloses a light source that emits light having a wavelength from 340 to 380 nm (FF). That is, the light source of Martens emits lights comprising a wavelength of 380nm. We find no error in the Examiner’s finding that Martens discloses a light source that “emits substantially only light having a wavelength from 380 to about 430 nm” as claimed in claim 1. Our reviewing court has found that, “when, as by a recitation of ranges or otherwise, … the claim is ‘anticipated’ if one of them is in the prior art.” Titanium Metal Corp. v. Banner, 778 F.2d 775, 782 (Fed. Cir. 19985)(citing In re Petering 301 F.2d 676, 682 (CCPA 1962)). Here, we find “380 nm” to be disclosed by Martens with sufficient specificity. “[W]hen the PTO shows sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not.” In re Spada, 911 F.2d 705, 708 (Fed. Cir. 1990) (citing In re King, 801 F.2d 1324, 1327 (Fed. Cir. 1986)); In re Ludtke, 441 F.2d 660, 664 (CCPA 1971). Here, Appellants fail to show how the claimed light source differs from Martens’ light source that emits light comprising a wavelength of 380 nm. Accordingly, we find no error in the Examiner’s rejection of claim 1 and claims 2-6 depending therefrom and falling therewith over Martens. Appeal 2010-008761 Application 11/497,107 6 Claims 7-24 As to claims 7-24, Appellants repeat that “Martens does not teach the use of blue light in the wavelength range of from 380 to 430 nm to illuminate skin” and then contend that “Walsh does not make up for the deficiency in the teachings of Martens” (App. Br. 6). However, as discussed above, we find no efficiency with respect to the teachings of Martens. Accordingly, we also find no error in the Examiner’s rejection of claims 7-24 over Martens in further view of Walsh. V. CONCLUSIONS AND DECISION We affirm the Examiner’s rejection of claims 1-6 under 35 U.S.C. § 102(b) and of claims 7-24 under 35 U.S.C. § 103(a). No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED peb