Ex Parte Maringelli

Patent Trial and Appeal Board

Jan 31, 2017

11718224 (P.T.A.B. Jan. 31, 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.
11/718,224 04/27/2007 Francesco Maringelli 314,506 3370
38137 7590 01/31/2017
ABELMAN, FRAYNE & SCHWAB
666 THIRD AVENUE, 10TH FLOOR
NEW YORK, NY 10017
EXAMINER
MIDKIFF, AARON
ART UNIT PAPER NUMBER
2621
MAIL DATE DELIVERY MODE
01/31/2017 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte FRANCESCO MARINGELLI
____________________

Appeal 2016-005168
Application 11/718,224
Technology Center 2600
____________________

Before THU A. DANG, JENNIFER L. McKEOWN, and
KIMBERLY McGRAW, Administrative Patent Judges.

DANG, Administrative Patent Judge.

DECISION ON APPEAL

I. STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 14–21, 24–26 and 28–30, which are all of the
pending claims. Claims 22, 23, and 27 have been canceled. We have
jurisdiction under 35 U.S.C. § 6(b).

We affirm.

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A. INVENTION
According to Appellant, the invention relates to “visualization,
processing and analysis of medical images” (Spec. 1, ll. 5–7).

B. REPRESENTATIVE CLAIM
Claim 14 is exemplary:
14. A system for the visualization of a digital medical image of a
patient, the system comprising:
a computer system having a processor and at least one non-transitory
memory device for storing the digital medical image, and at least one system
module stored in the at least one memory device and having program code
which, when executed by the processor, is operable to activate an interactive
icon or active object which selectively controls viewing of the medical
image;
a monitor in data communication with the computer system and
operable to display the digital medical image and the interactive icon or
active object that selectively controls viewing of the digital medical image,
the icon or active object being configured to operate the computer system;
and
a remote, non-invasive eye-tracking device that tracks eye movement
of a user during visual exploration of the digital medical image and of
the interactive icon or active object displayed on the monitor, the eye-
tracking device being in data communication with the computer
system and the at least one system module generating control data
signals in response to the user selectively gazing at the interactive
icon or active object, the interactive icon or active object being
indicative of optical commands that are initiated by the user while
interacting with the eye-tracking device to control the view the
digital medical image, and
wherein the eye tracking device further generates data signals
indicative of visual exploration by the user of the digital medical image,
and the computer system processes the data signals to provide qualitative
and quantitative feedback to the user related to said digital medical image
itself, wherein the feedback includes spatial and temporal information
that enhances and guides an optical scan path during the user’s visual
exploration.
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C. REJECTION
Claims 14–19, 21, 24–26, and 28–30 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over the teachings of Morita et al. (US
2006/0082542 A1; pub. Apr. 20, 2006), Smyth (US 5,689,619; iss. Nov. 18,
1997), and Milekic (US 7,561,143 B1; iss. July 14, 2009).
Claims 20, 25, and 26 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the teachings of Morita, Smyth, Milekic, and Garmin et al.
(US 4,595,999; iss. June 17, 1986).
II. ISSUES
The principal issues before us are whether the Examiner erred in
finding that the combination of Morita, Smyth and Milekic teaches or would
have suggested a “computer system” that “processes the data signals
[indicative of visual exploration of the user of a digital image] to provide
qualitative and quantitative feedback to the user related to said digital
medical image itself,” wherein “the feedback includes spatial and temporal
information that enhances and guides an optical scan path during the user’s
visual exploration of the digital medical image itself” (claim 14, emphasis
added).
III. FINDINGS OF FACT
The following Findings of Fact (FF) are shown by a preponderance of
the evidence.
Morita
1. Morita discloses surgical operating room information display gaze
detection, wherein information on the display is customized for the user
based on the user’s gaze (Abst.). Eyewear is used to capture a user’s gaze
and perform interface navigation, wherein repeated measurements track
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changes in the gaze and images are projected into a screen which allows
specific information to be targeted for display for specific users in the
healthcare environment (¶ 37–38). A gaze tracking processor recognizes
that the user wants to see certain information and displays context-sensitive
information for the patient on a larger display, wherein the information
displayed is determined based on rules in place or in addition to perspectives
(¶ 41–42).
Smyth
2. Smyth discloses an eyetracker and an adaptive display interface that
automatically aids the user in display operations during high manual task
loading (Abst.). A “smart cuer” provides displaying cueing that responds
naturally to the control task on the user as indicated by the user’s response
time and eye movement (col. 4, ll. 42–45), wherein gaze control cues are
displayed to aid the user (col. 4, ll. 50–53).
Milekic
3. Milekic discloses using gaze actions to interact with interactive
displays (Abst.). When a user gazes onto a zoom button, the button
immediately becomes active, and when the user moves the gaze back to an
area in the display, the zoom tool moves with the gaze and enlarges the
portion of the area underneath the zoom tool (col. 9, ll. 53–59).
IV. ANALYSIS
In reaching this decision, we consider all evidence presented and all
arguments actually made by Appellant. We do not consider arguments that
Appellant could have made but chose not to make in the Appeal Brief, and
we deem any such arguments waived. 37 C.F.R. § 41.37(c)(1)(iv).
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In the Appeal Brief, Appellant contends “the feedback provided by
the present invention is directed to the actual digital medical image, as
opposed to providing feedback for the icon or other image control
information” (App. Br. 12). According to Appellant, Morita’s processor
instead “detects when the user is looking at a particular button, option or
feature on the display and then activates the button, option or feature” (App.
Br. 13). Further, according to Appellant, “[t]he ‘display elements’ of Smyth
overlay the image or scene” (App. Br. 14), wherein the feedback “is
associated with the projected control imagery overlaid on the display area,
and not the scenery (digital medical image) itself” (App. Br. 15).
Appellant then contends “Milekic does not disclose any guidance
provided to the user” but rather “teaches a system that follows the user
choices and makes them more comfortable” (App. Br. 16).
We have considered all of Appellant’s arguments and evidence
presented. However, we disagree with Appellant’s contentions regarding the
Examiner’s rejections of the claims. We agree with the Examiner’s findings,
and find no error with the Examiner’s conclusion that the claims would have
been obvious over the combination of teachings.
The test for obviousness is what the combined teachings would have
suggested to one of ordinary skill in the art. See In re Merck & Co., Inc.,
800 F.2d 1091, 1097 (Fed. Cir. 1986). Based on the record before us, we are
unpersuaded of Examiner error in finding the combination of Morita, Smyth
and Milekic at least suggests the contested limitation.
Although Appellant contends neither Morita nor Smyth discloses
providing “feedback” to the user “related to said digital medical image
itself” (App. Br. 12–15), as the Examiner points out, “Milekic…-not either
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of Morita or Smyth- is cited for a teaching of a user’s visual exploration of
the digital image itself” (Ans. 2). In particular, Appellant are arguing that
Morita and Smyth do not individually disclose the contested limitation when
the Examiner is relying on the combination of Morita and Smyth with
Milekic to teach and suggest the contested limitation. The Examiner finds,
and we agree, Milekic discloses selecting an image by a user’s gaze and
zooming the selected image (id, FF 3). Thus, we find no error with the
Examiner’s reliance on Milekic for at least suggesting providing a feedback
that is related to the image itself (id.).
We also agree with the Examiner’s reliance on Morita to teaching and
suggesting “a system for the visualization of a digital medical image of a
patient” (Final Act. 3; FF 1). Further, we agree with the Examiner’s reliance
on Smyth for teaching and suggesting “processing the data signals to
enhance and guide an optical scan path during the user’s visual exploration”
missing from Morita (Final Act. 5; FF 2).
Thus, we agree with the Examiner that the combination of Morita and
Smyth “produces gaze controlled navigation of image data (such as image-
guided surgery) taking predictive/assistive action to aid a user in selection of
options to navigate said image data” (Final Act. 6). We also agree that it
would have been obvious “for the gaze controlled device of Morita and
Smyth to perform enhancements and guidance of the digital medical image”
in view of “the teaching of Milekic for the implementation of intuitive
interface navigation” (Final Act. 7).
We note that although Appellant contends that “the feedback provided
by the present invention is directed to the actual digital medical image”
(App. Br. 12, emphasis added), such contention is not commensurate with
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the language of the claims. In particular, claim 14 does not require that the
feedback be “directed to” the digital medical image, but rather just “related
to” the medical image. Thus, although Appellant contends Morita’s
processor “detects when the user is looking at a particular button, option or
feature on the display” (App. Br. 13), while Smyth’s feedback “is associated
with the projected control imagery overlaid on the display area” (App. Br.
15), nothing in the claim precludes a “feedback” being related to “a
particular button, option or feature on the display” or “control imagery
overlaid on the display area” (id.), as long as it is also “related to” the
medical image itself. Accordingly, giving “related to” its broadest
reasonable interpretation consistent with the Specification, we conclude that
a feedback relating to buttons, options, features, or control imagery overlaid
on a display that is displaying a medical image is “related to” the medical
image itself. See In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997).
Accordingly, we find no error in the Examiner’s reliance on the
combination of the cited references for teaching and suggesting the
contested limitation of claim 14. We find the combination to an ordinarily
skilled artisan, is simply a combination of familiar prior art practices or acts
(as taught or suggested by the cited combination of references) that would
have realized a predictable result. The skilled artisan is “a person of
ordinary creativity, not an automaton.” KSR Int’l Co. v. Teleflex, Inc., 550
U.S. 398, 420–21 (2007).
We further note that Appellant introduces new arguments in the Reply
Brief (Reply Br. 3–10). However, it is inappropriate for Appellant to discuss
for the first time in a Reply Brief matters that could have been raised in the
Appeal Brief. Because Appellant advances new arguments in the Reply
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Brief without showing good cause, Appellant has waived such arguments.
See 37 C.F.R. § 41.41(b)(2).
Based on this record, we find no error in the Examiner’s rejection of
independent claim 14, and claim 17 not separately argued and falling
therewith (App. Br. 17), as well as claims 15, 16, 18, 19, 21, 24–26, and
28–30, respectively depending therefrom, over Morita, Smyth and Milekic.
Appellant repeats the above arguments with respect to dependent
claims 20, 25, and 26 and merely adds that “Garmin only discloses ‘a wide
variety of algorithms can be applied to the raw data in order to screen out
invalid data points…’” (App. Br. 18–19). However, as discussed above, we
find no error with the Examiner’s rejection of the independent claims over
Morita, Smyth and Milekic. Thus, on this record, we are unconvinced that
the Examiner erred in also rejecting claims 20, 25, and 26 over Morita,
Smyth and Milekic in further view of Garmin.

V. CONCLUSION AND DECISION
We affirm the Examiner’s rejections of claims 14–21, 24–26 and 28–
30 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)(1)(iv).

AFFIRMED