Ex Parte Moghari et al

Patent Trial and Appeal Board

Feb 27, 2019

13372114 (P.T.A.B. Feb. 27, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/372,114 02/13/2012
26710 7590 03/01/2019
QUARLES & BRADYLLP
Attn: IP Docket
411 E. WISCONSIN A VENUE
SUITE 2350
MILWAUKEE, WI 53202-4426
UNITED ST A TES OF AMERICA
FIRST NAMED INVENTOR
Mehdi Hedjazi Moghari
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.
134507.00032.BIDMC1561 3623
EXAMINER
BRUTUS, JOEL F
ART UNIT PAPER NUMBER
3793
NOTIFICATION DATE DELIVERY MODE
03/01/2019 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 MEHDI HEDJAZI MOGHARI and
REZA NEZAF AT 1
Appeal2017-003933
Application 13/372,114
Technology Center 3700
Before DONALD E. ADAMS, TA WEN CHANG, and
KRISTI L. R. SA WERT, Administrative Patent Judges.
CHANG, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) involving claims to a
method for producing an image of a subject with a magnetic resonance
imaging (MRI) system, which have been rejected as directed to patent-
ineligible subject matter and as obvious. We have jurisdiction under
35 U.S.C. § 6(b).
We REVERSE.
STATEMENT OF THE CASE
"Patient motion has been a long-standing challenge to clinical
[magnetic resonance imaging (MRI)] procedures," because such motion can
introduce errors and artifacts in the image. (Spec., 5.) In one prior art
1 Appellants do not identify the Real Party in Interest in the Brief.
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Application 13/3 72, 114
method, motion artifacts resulting from patient respiration are mitigated by
determining the location of the right hemi-diaphragm ("RHD") at end-
expiration and placing a gating window around that position. (Id. ,r 7.) The
RHD position is then measured again before each acquisition of data (k-
space lines), 2 and the data is accepted for image reconstruction only if the
RHD position is within the gating window. (Id.) The Specification states
that this approach "increases the duration of the MRI scan because the
rejected k-space lines must be reacquired," and further results in "an
unpredictable scan acquisition time." (Id.) Other prior art methods attempt
to account for variations in patients' breathing patterns by, e.g., "track[ing]
the position of the RHD at end-expiration and ... updat[ing] the location of
the gating window." (Id. ,r 8.) According to the Specification, however, the
scan acquisition times are still long and unpredictable when using these
methods.
The Specification states that,
[ t ]herefore, it would be desirable to have a system and
method for mitigating patient motion artifacts in MRI that
overcome the limitations of existing methods. Notable
limitations include the presence of drifts and variations in
a patient's breathing pattern not being accounted for,
thereby generating residual motion artifacts. Notable
limitations also include unpredictable scan times resulting
2 K-space is "data matrix obtained directly from the magnetic resonance
(MR) scanner before any kind of processing and the Fourier transform
application, which will provide the final reconstructed image." D Moratal et
al., k-Space Tutorial: an MRI Educational Tool for a Better Understanding
of k-Space, Biomedical Imaging and Intervention Journal: A
Multidisciplinary Online Journal (2008), http://www.biij.org/2008/1/e15/.
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Application 13/3 72, 114
from no a priori information as to how many repetitions
will be required to obtain a complete k-space data set.
(Id. ,r 10.) The Specification states that the invention provides a system and
method in which "[an] adaptive gating window tracks the breathing pattern
of the subject throughout the scan and adjusts the size of the gating window
such that the gating efficiency is always fixed at a constant value," which
system and method "allow free-breathing cardiac MRI in a relatively fixed
time without compromising imaging quality due to respiratory motion." (Id.
Claims 1-14 are on appeal. Claim 1 is illustrative and reproduced
below:
1. A method for producing an image of a subject with
a magnetic resonance imaging (MRI) system, the steps of the
method comprising:
a) acquiring with an MRI system, navigator data from
a subject;
b) producing a gating window having a defined
gating efficiency value using the navigator data acquired in step
a);
c) acquiring with the MRI system, image data from
the subject while measuring a position of an anatomical
location within the subject;
d) storing the image data acquired in step c) for
reconstruction when the position of the anatomical location
measured in step c) is within the gating window, and discarding
the image data acquired in step c) when the position of the
anatomical location measured in step c) is outside the gating
window;
e) updating a size of the gating window using the
position of the anatomical location measured in step c) while
maintaining a substantially constant gating efficiency of the
gating window;
f) repeating steps c )-e) until a desired amount of
image data has been acquired; and
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g) reconstructing an image of the subject from the
image data stored in step d).
(Appeal Br. A-1 (Claims App'x.).)
The Examiner rejects claims 1-14 under 35 U.S.C. § 101 as being
directed to a judicial exception (i.e., a law of nature, a natural phenomenon,
or an abstract idea) without significantly more. (Ans. 2.)
The Examiner rejects claims 1-3 and 7-11 under pre-AIA 35 U.S.C.
§ I03(a) as being unpatentable over Xu, 3 Feinberg, 4 and Finn. 5 (Ans. 4.)
The Examiner rejects claims 4---6 and 12-14 under pre-AIA 35 U.S.C.
§ I03(a) as being unpatentable over Xu, Feinberg, Finn, and Kolmogorov. 6
(Ans. 8.)
I.
Issue
The Examiner rejected claims 1-14 as being directed to a judicial
exception without significantly more. In particular, the Examiner concludes
that the claims are "directed to the production of a gating window that has a
gating window efficiency value, which is an abstract idea fundamental in the
practice of the art of image analysis" and "a fundamentally basic part of
human intelligence." (Ans. 2-3.) The Examiner additionally concludes that
3 Xu, US 2010/0234723 Al, published Sept. 16, 2010.
4 David A. Feinberg et al., Hybrid Ultrasound MRI for Improved Cardiac
Imaging and Real-Time Respiration Control, 63 MAGNETIC RESONANCE IN
MEDICINE 290 (2010).
5 J. Paul Finn et al., Cardiac MR Imaging: State of the Technology, 241
RADIOLOGY 33 8 (2006).
6 Vladimir N. Kolmogorov et al., Simultaneous Multiple Volume (SMV)
Acquisition Algorithm for Real-Time Navigator Gating, 21 MAGNETIC
RESONANCE IMAGING 969 (2003).
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the claimed invention "reads on mental activity." (Id. at 3, 12.) The
Examiner concludes that, while the claims call for an MRI system, "the MRI
system does not add significantly more than ... mere computer algorithm,"
which would also be an abstract idea. (Id. at 10.) Finally, the Examiner
finds that the "updating" limitation is "recited at such a high level of
generality that it could potentially preempt any resizing of gating window in
the art that would be done to accommodate a desired range." (Id. at 12.)
The Examiner finds that additional elements in the claim are routine
and conventional and/or insignificant extra-solution activities that merely
"link[] the abstract idea to a particular environment [i.e., magnetic
resonance]," and that these elements are therefore not "sufficient to amount
to significantly more than the judicial exception." (Id. at 2-3, 10-12.) The
Examiner likewise finds that "[t]he claims ... do not recite any means/steps
of improvements to a technological field with the generic recitations; and/or
improvements to the functioning of the computer." (Id. at 3, 11.)
The Examiner further concludes that dependent claims 2-8 and 10-14
are patent-ineligible because "the additional recited limitation(s) [in those
claims] fail(s) to establish that the claim(s) is/are not directed to an abstract
idea, as the additional elements/steps are also routine and conventional
without any improvements." (Id. at 4.)
Appellants contend that the claims are not directed to an abstract idea,
that they include "meaningful limitations that add significantly more than
the mere computer implementation of an abstract idea," and that, when
viewed as a whole, they recite methods "that provide[] an improvement in
the technology of magnetic resonance imaging." (Br. 4.)
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The issue with respect to this rejection is whether the Examiner erred
in concluding that the claims on appeal are directed to patent-ineligible
abstract ideas without significantly more.
Analysis
\Ve analyze this case under the framework set forth by the Supreme
Court in Mayo Collaborative Servs. v. Prometheus Labs, Inc., 566 U.S. 66
(2012), and applied by our reviewing court inAriosa Diagnostics, Inc. v.
Sequenom, Inc., 788 F.3d 1371 (Fed. Cir. 2015). As the Ariosa court
explained:
In Mayo ... , the Supreme Court set forth a framework for
distinguishing patents that claim laws of nature, natural
phenomena, and abstract ideas from those that claim
patent-eligible applications of those concepts. First, we
determine whether the claims at issue are directed to a
patent-ineligible concept. . . . If the answer is yes, then
we next consider the elements of each claim both
individually and "as an ordered combination" to determine
whether additional elements "transform the nature of the
claim" into a patent-eligible application .... The Supreme
Court has described the second step of this analysis as a
search for an "inventive concept"-i.e., an element or
combination of elements that is "sufficient to ensure that
the patent in practice amounts to significantly more than a
patent upon the [ineligible concept] itself."
Id. at 1375.
\Ve begin with the first step of the lvlayo test, namely whether a claim
is "directed to" a patent-ineligible concept. On January 7, 2019, the Director
of the US PTO issued the "2019 Revised Patent Subject :rviatter Eligibility
Guidance" ("Revised Guidance"), which provides further details regarding
how the Patent Office analyzes patent-eligibility questions under 35 U.S.C.
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§ 101. 84 Fed. Reg. 50----5 7 (Jan. 7, 2019). Under the Revised Guidance, the
first step of the Afayo test (i.e., Step 2A of the Revised Guidance) is "a two-
pronged inquiry." Id. at 54. In prong one, we evaluate whether the claim
recites a judicial exception, such as laws of nature, natural phenomena, or
abstract ideas. Id. The Revised Guidance explains that
the abstract idea exception includes the following
groupings of subject matter, when recited as such in a
claim limitation(s) (that is, when recited on their own or
per se ):
(a) Mathe ma ti cal concepts-mathematical
relationships, mathematical formulas or equations,
mathematical calculations;
(b) Certain methods of organizing human activity-
fundamental economic principles or practices (including
hedging, insurance, mitigating risk); commercial or legal
interactions (including agreements in the form of
contracts; legal obligations; advertising, marketing or
sales activities or behaviors; business relations); managing
personal behavior or relationships or interactions between
people (including social activities, teaching, and following
rules or instructions); and
( c) Mental processes---concepts performed in the
human mind (including an observation, evaluation,
judgment, opinion).
Id. at 52 (footnotes omitted). The Guidance states that, except in rare
circumstances, "[ c ]laims that do not recite matter that falls within these
enumerated groupings of abstract ideas should not be treated as reciting
abstract ideas" and thus would be patent-eligible. Id. at 53.
We conclude that, under the Revised Guidance, the Examiner has not
established a prima facie case that the claims on appeal are directed to a
patent ineligible concept. The Examiner first concludes that the claims are
directed to an abstract idea because "production of a gating window that has
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Application 13/3 72, 114
a gating window efficiency" is "fundamental in the practice of the art of
image analysis" and "a fundamentally basic part of human intelligence."
(Ans. 2-3.)
We are not persuaded. The Examiner appears to contend that use of a
"gating window that has a gating window efficiency" falls within "[ c ]ertain
[patent-ineligible] methods of organizing human activity." Assuming for the
sake of argument that the claims are indeed "directed to" "production of a
gating window that has a gating window efficiency value," as the Examiner
asserts, the Examiner provides no evidence or analysis showing how use of a
gating window is a "fundamental economic principle[] or practice[]" such as
hedging, insurance, or mitigating risk, a "commercial or legal interaction[],"
or "managing personal behavior or relationships or interactions between
people." 84 Fed. Reg. at 52 (emphasis added).
Neither are we persuaded by the Examiner's conclusion that the
claimed invention "reads on mental activity" because the invention. "not
• C
requiring a particular machine, applies the abstract idea on a generic
computer." (Ans. 3; see also id. at 12 (stating that "the steps [associated
with l\1RI system] could be also performed by a human using mental steps or
basic critical thinking").) As the Examiner concedes later in the answer, the
claims require an 'fv1RI system, not a generic computer. (Ans. 10.) Neither
does the Examiner explain how the steps associated with the l\1Rl system,
e.g., "producing a gating window having a defined gating efficiency value
using the navigator data [from a subject] acquired [with an MRI system],"
may be performed by a human using mental steps or basic critical thinking.
Finally, we are unpersuaded by the Examiner's conclusion that the
claims are directed to a patent-ineligible abstract idea because "the MRI
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system does not add significantly more than ... mere computer algorithm."
(Id. at 10.)7 To the extent the Examiner asserts that the claims are directed
to mathematical algorithms, the Examiner has not identified any specific
mathematical algorithms recited by the claims.
Accordingly, we reverse the Examiner's rejection of claims 1-14 as
being patent-ineligible for being directed to an abstract idea without
significantly more.
II.
Issue
The Examiner rejected claims 1-3 and 7-11 as obvious over Xu,
Feinberg, and Finn. The Examiner rejected claims 4---6 and 12-14 as
obvious over Xu, Feinberg, Finn, and Kolmogorov. The same issues are
dispositive for these rejections; we therefore discuss the rejections together.
The Examiner finds that Xu teaches all the limitations of independent
claims 1 and 9, except Xu does not teach "discard[ing] the acquired image
data when the measured position of the anatomical location is outside the
gating window" and also does not teach "updat[ing] a size of the gating
7 The Examiner also finds that the "updating" limitation is "recited at such a
high level of generality that it could potentially preempt any resizing of
gating window in the art that would be done to accommodate a desired
range." (Id. at 12.) We are not persuaded. As an initial matter, the claims
require updating a size of the gating window "while maintaining a
substantially constant gating efficiency of the gating window," not any
resizing of the gating window. (Br. A-1 (Claims App'x.)) Furthermore, as
discussed above, the Examiner has not properly identified an abstract idea to
which the claims are directed. Thus, the Examiner has not established a
prima facie case that the claims will preempt an abstract idea, which is the
relevant inquiry with respect to preemption in § 101 patent eligibility
analysis.
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Application 13/3 72, 114
window using the measured position of the anatomical location while
maintaining a substantially constant gating efficiency of the gating window."
(Ans. 4---6.) The Examiner finds that Feinberg suggests the former limitation
because it teaches tracking the position of the diaphragm to monitor
respiration and "to decide whether to accept or reacquire the MR data in real
time," where data was accepted only if it fell inside a predefined acceptance
window. (Id. at 5.) The Examiner also finds that Finn suggests the latter
limitation because it discloses a "sliding temporal window" that is updated
and also teaches accepting data only if it is acquired within an acceptance
window defined by diaphragm position. (Id. at 6.)
The Examiner concludes that it would have been obvious to an
ordinarily skilled artisan to combine Xu, Feinberg, and Finn to arrive at the
invention of claims 1 and 9, "in order to provide a fine acquisition matrix,
extended coverage, and a high [signal-to-noise ratio (SNR)]," as discussed in
Finn. (Id. at 6-7.)
With respect to dependent claims 3 and 11, the Examiner finds that,
while Xu and Finn do not disclose "updating the motion profile using the
position of the anatomical location," Feinberg teaches
updat[ing] as soon as new positional data from the US
system were available; the SSFP sequence moved to new
acquisition locations without interrupting the sequence,
using new position updates every eight echoes in an echo
train of 128 echoes to make each image.
In addition, Finn et al disclose during each cardiac
cycle, the navigator signal updates the superior-to-inferior
motion of the right hemidiaphragm.
(Id. at 7 (citations omitted).) The Examiner concludes that a skilled artisan
would therefore have reason to combine Xu, Feinberg, and Finn by
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"updating the motion profile using the position of the anatomical location,"
in order to "improve image quality and to provide a fine acquisition matrix,
extended coverage, and a high signal to noise ratio," as discussed in Finn.
(Id.)
Appellants contend that the combination of Xu, Feinberg, and Finn
does not teach or suggest "updating the size of a gating window while
maintaining a constant gating efficiency" during an imaging session, as
required by independent claims 1 and 9. (Br. 9-16.) With regard to claims
3 and 11, Appellants further contend that the combination of Xu, Feinberg,
and Finn does not teach "updating [a] motion profile using the measured
position of the anatomical location," as recited in those two claims. (Id. at
16-17.)
The issue with respect to this rejection is whether the Examiner erred
in finding that the combination of Xu, Feinberg, and Finn suggests an MRI
system, or a method for producing an image with an MRI system,
comprising respectively a computer system programmed to update, or a step
of updating, the size of a gating window using a measured position of an
anatomical location while maintaining a substantially constant gating
efficiency of the gating window, as recited in the independent claims on
appeal.
Analysis
We agree with Appellants that the Examiner has not established a
prima facie case that the combination of Xu, Feinberg, and Finn suggests
updating the size of a gating window using a measured position of an
anatomical location while maintaining a substantially constant gating
efficiency of the gating window.
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The Examiner contends that updating the size of a gating window is
suggested by Finn's Figure 2c (Ans. 6), reproduced below:
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(Finn 341, Figure 2c.) Figure 2c of Finn describes cardiac cine imaging with
k-space segmentation8 and echo-sharing. 9 (Id. at 339, right column-340, left
column; see also id. at 341, Fig. 2 caption.) Finn explains that use of echo-
sharing doubles "the number of frames (temporal resolution) ... with little
increase in imaging time." (Id. at 340, left column.)
The Examiner contends that Finn's Figure 2c suggests updating the
size of a gating window because it teaches generating a "'sliding temporal
window' that is five lines wide (which is the size of the window ... ) but is
updated (meaning the size of the sliding window is updated ... ) almost
twice as often as in the non-echo-shared version [of MRI]." (Ans. 6.)
We are not persuaded. The Examiner assumes, without providing any
basis for the assumption, that Finn's reference to "updating" the "sliding
temporal window" necessarily means updating the size of the window. As
8 K-space segmentation involves "acquisition of multiple lines ... of data
after a single ECG trigger pulse," wherein "the sum of the[] lines form[] a
segment of k-space." (Finn 339, right column.)
9 Echo-sharing involves "acquisition of the central k-space point twice as
often as the other k-space points and selection of appropriate neighboring
points to fill the k-space segment." (Id. at 340, left column.)
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Appellants point out, to the extent the Examiner asserts that the "size" of the
sliding temporal window refers to the number of lines (i.e., five) in the
window, the Examiner has not pointed to any "sliding temporal window" in
Figure 2c that contains anything other than five lines of data. (Br. 13.)
Thus, it is unclear how Figure 2c shows updating the size of a window. We
also agree with Appellants that the Examiner has failed to explain how the
"sliding temporal window" in Finn's Figure 2c may be considered a "gating"
window or how the "sliding temporal window" is updated using the position
of a measured anatomical position, as required by the claims. (Id. at 12-13.)
We also agree with Appellants that the Examiner has not established a
prima facie case that the combination of cited prior art suggests updating a
size of the gating window "while maintaining a substantially constant gating
efficiency of the gating window," as required by the claims.
In the Answer, the Examiner responds to Appellants' arguments by
asserting that Feinberg teaches respiratory gating combined with adaptive
line-reordering algorithm, where "[t]he tracked position of the diaphragm
was used to monitor respiration and to decide whether to accept or reacquire
the MR data ... in real time" and "the acceptance window position was
dynamically adjusted during measurement." (Ans. 12-14.) The Examiner
asserts that Feinberg teaches that "accessing the respiration position several
times during the ECG cycle and using an adequate data reordering scheme
may thus help to considerably improve image quality and scan efficiency."
(Id. at 13.)
We are not persuaded. Feinberg teaches "[a] hybridized dual-imaging
system combining real-time ultrasound imaging and MRI ... for cardiac
imaging." (Feinberg Abstract.) While Feinberg does teach using the
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ultrasound-tracked position of the diaphragm to decide whether to accept or
reacquire MR data in real time, as well as dynamically adjusting the
acceptance window position (id. at 3, left column), the Examiner has not
pointed to any teachings in Feinberg regarding updating a size of the gating
window.
As to the limitation relating to "maintaining a substantially constant
gating efficiency of the gating window" while updating a size of the gating
window, the Examiner asserts:
Inherently, every gating window has an initial gating
efficiency value predetermined as the threshold for
acceptable image quality and since gating efficiency value
links to window, it would be expected that the initial value
or threshold value inherently disclosed relied on the
numerical value to maintain image quality. Regarding
"substantially constant" gating efficiency, it is not clear
what Applicant intends with this broad limitation that is
given limited patentable weight because it appears to be
referring to an intended result - it is not apparent what
enables this result to be achieved. Taking the broadest
reasonable interpretation of the term that is not specifically
defined in the disclosure, Examiner submits that
conventional respiratory gating linked to a regular cycle
would appear to achieve the result that is broadly claimed.
(Ans. 13.)
We are not persuaded. To the extent the Examiner asserts that a
skilled artisan would not understand the meaning of the phrase "substantially
constant gating efficiency," the proper rejection is indefiniteness rather than
obviousness based on reading out the limitation. In re Wilson, 424 F.2d
1382, 1385 (CCPA 1970) ("All words in a claim must be considered in
judging the patentability of that claim against the prior art. If no reasonably
definite meaning can be ascribed to certain terms in the claim, the subject
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matter does not become obvious-the claim becomes indefinite.")
Likewise, assuming for argument's sake that the Specification fails to enable
maintaining a substantially constant gating efficiency of the gating window
while updating a size of the window, as the Examiner asserts, the proper
rejection is not obviousness but non-enablement. Finally, the Examiner fails
to cite any evidence that, under the broadest reasonable interpretation of the
limitation, conventional respiratory gating linked to a regular cycle would
inherently "maintain[] a substantially constant gating efficiency of the gating
window" while updating a size of the window. Indeed, the Examiner fails to
provide an explanation of what such "broadest reasonable interpretation" of
the limitation would be.
Accordingly, we reverse the Examiner's rejection of independent
claims 1 and 9 as obvious over Xu, Feinberg, and Finn. We likewise reverse
the Examiner's obviousness rejections of claims 2-8 and 10-14, which
depend directly or indirectly from claims 1 and 9. "Dependent claims are
nonobvious under section 103 if the independent claims from which they
depend are nonobvious." In re Fine, 837 F.2d 1071, 1076 (Fed. Cir. 1988).
SUMMARY
For the reasons above, we reverse the Examiner's decision rejecting
claims 1-14.
REVERSED
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