Ex Parte Pekar et al

Patent Trial and Appeal BoardDec 29, 2016

13581512 (P.T.A.B. Dec. 29, 2016)

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. 13/581,512 08/28/2012 Vladimir Pekar 2010P00360WOUS 1680 24737 7590 01/03/2017 PTTTT TPS TNTFT T FfTTTAT PROPFRTY fr STANDARDS EXAMINER 465 Columbus Avenue HE, WEIMING Suite 340 Valhalla, NY 10595 ART UNIT PAPER NUMBER 2612 NOTIFICATION DATE DELIVERY MODE 01/03/2017 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): marianne. fox @ philips, com debbie.henn @philips .com patti. demichele @ Philips, com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte VLADIMIR PEKAR and ARISH A. QAZI Appeal 2016-001305 Application 13/581,5121 Technology Center 2600 Before THU A. DANG, JOHN D. HAMANN, and ALEX S. YAP, Administrative Patent Judges. HAMANN, Administrative Patent Judge. DECISION ON APPEAL Appellants file this appeal under 35 U.S.C. § 134(a) from the Examiner’s Final Rejection of claims 1, 3—8, and 10-23. We have jurisdiction under 35 U.S.C. § 6(b). We affirm-in-part. THE CLAIMED INVENTION Appellants’ claimed invention relates to image segmentation for medical diagnostic imaging for delineating target volumes, organs, and the like. Spec. 1. Claims 1 and 17 are illustrative of the subject matter of the appeal and are reproduced below. 1 According to Appellants, the real party in interest is Koninklijke Philips Electronics NV. App. Br. 1. Appeal 2016-001305 Application 13/581,512 1 . A system for segmenting current diagnostic images comprising: one or more workstations which segment a volume of interest in previously generated diagnostic images of a selected volume of interest generated from a plurality of patients; one or more processors programmed to: register the segmented previously generated images, and merge the segmented previously generated images into a probability map which depicts a probability that each voxel represents the volume of interest, a probability that each voxel represents background, and a mean segmentation boundary; a segmentation processor which registers the probability map with a current diagnostic image of the volume of interest in a current patient to generate a transformed probability map, the segmentation processor being programmed to register the probability map with the current image by performing the steps of: registering the mean segmentation boundary to the volume of interest of one of the current image and a model registered to the current image; determining a transform by which the mean segmentation boundary was transformed to be registered to the current image or model; transforming the probability map with the determined transform to generate the transformed probability map; and a segmentation boundary processor which determines a segmentation boundary for the volume of interest based on the transformed probability map. 17. A probability map generated by the method of claim 10. 2 Appeal 2016-001305 Application 13/581,512 REJECTIONS ON APPEAL (1) The Examiner rejected claims 1, 3—8, 10-18, and 22 under 35 U.S.C. § 103(a) as being unpatentable over the combination of O. Commowick et al., Atlas-based delineation of lymph node levels in head and neck computed tomography images, 87 Radiotherapy and Oncology 281 (2008) (hereinafter “Commowick”) and Gering et al. (US 2009/0226060 Al; published Sept. 10, 2009) (hereinafter “Gering”).2 (2) The Examiner rejected claims 19-21 and 23 under 35 U.S.C. § 103(a) as being unpatentable over the combination of Commowick, Gering, and Koptenko et al. (US 2008/0008369 Al; published Jan. 10, 2008) (hereinafter “Koptenko”). (3) The Examiner rejected claim 17 under 35 U.S.C. § 101 as being directed to non-statutory subject matter. ANALYSIS We have reviewed the Examiner’s rejections in light of Appellants’ contentions that the Examiner erred. In reaching our Decision, we consider all evidence presented and all arguments made by Appellants. We below address specific findings and arguments relating to each of the Examiner’s rejections Appellants are appealing. (1) Generate the transformed probability map Appellants argue the combination of Commowick and Gering fails to teach or suggest “transforming the probability map with the determined 2 Appellants did not provide arguments for the patentability of independent claims 16—18 for the Examiner’s § 103 rejection. Accordingly, we summarily sustain the § 103 rejection for these claims. 3 Appeal 2016-001305 Application 13/581,512 transform to generate the transformed probability map,” as recited in claims 1 and 22, and similarly (at least in relevant part) recited in claim 10. See App. Br. 15—16, 18, 20-21; Reply Br. 2—3, 8. Specifically, Appellants argue Commowick instead teaches “(i) constructing] a mean image from an image database; (ii) then calculating] a probability of each voxel of the mean image; and (iii) finally automatically segmenting] a new patient image.” App. Br. 15 (citing Commowick 283—84); Reply Br. 2. As to Gering, Appellants argue it also instead teaches constructing a mean image, determining voxel probabilities, and segmenting a current image. See App. Br. 15—16 (citing Gering || 73—74, 90); Reply Br. 3. Appellants contend Commowick and Gering’s teachings are in contrast to the disputed limitation, which requires “transforming a probability map to generate [a] transformed probability map.” App. Br. 16. The Examiner finds the combination of Commowick and Gering teaches or suggests the disputed limitation. Ans. 3^4. As to Commowick, the Examiner finds it teaches constructing a mean image and a mean segmentation boundary, and thus, “probabilities of each voxel as belonging to a given structure can be appropriately evaluated.” Ans. 3 (citing Commowick 283—84). The Examiner also finds Commowick teaches “the generated mean segmentation boundary is adapted (registered) to a patient (a current image) using global affine transformation and local registration techniques.” Id. (emphasis omitted) (citing Commowick 284). The Examiner finds “the generated mean segmentation boundary is the probability map” (i.e., the probability of each voxel belonging to each structure) and transformations (i.e., a global affine transformation and a local transformation) “are [] applied to the mean segmentation boundary 4 Appeal 2016-001305 Application 13/581,512 (probability map) to generate a transformed probability map.” Id. (citing Commowick 284). As to Gering, the Examiner finds it also teaches the disputed limitation. Ans. 3^4. Specifically, the Examiner finds Gering teaches or suggests creating a mean image, determining voxel probabilities, and creating a mask (i.e., a probability map), and transforming the mask. Id. (citing Gering H 63, 73-74, 80, 83-88, 90). Based on this record, we are constrained to agree with Appellants. We disagree with the Examiner’s finding that Commowick’s mean segmentation boundary is a probability map — for example, the claim language clearly provides a probability map depicts a probability that each voxel represents the volume of interest and a probability that each voxel represents background, in addition to a mean segmentation boundary. App. Br. 26—27. The cited portions of Commowick fail to teach or suggest that a transformed probability map is generated — rather, once a patient image is registered, a patient image is automatically segmented. See Commowick 284. Furthermore, Commowick fails to teach or suggest the transformed probability map is generated “with the determined transform” because there is no teaching that the mean segmentation boundary is used to register the probability map and the new patient image, as is recited in the claim language. See id.', App. Br. 26—27. We also find that the cited portions of Gering fail to teach or suggest generating a transformed probability map based on the determined transform. Gering || 63, 73—74, 80, 83—88, 90. Furthermore, the Examiner’s findings fail to explain sufficiently how Gering’s mask meets the requirements of a probability map. 5 Appeal 2016-001305 Application 13/581,512 (2) Probability may Appellants argue claim 17 claims statutory subject matter under §101. Specifically, Appellants argue (i) “claim 17 depends from claim 10, and thus contains all of the limitations of claim 10” and (ii) the Examiner has provided no evidence to support the rejection and what is provided is conclusory. (App. Br. 23). The Examiner finds claim 17 is directed to an abstract idea “because the cited ‘a probability map’ is only an arrangement of data and is neither process, machine, manufacture, nor composition of matter.” Final Act. 4; Ans. 2. We agree with the Examiner’s findings and adopt them as our own. Claim 17 is not a dependent claim, but rather is a product-by-process claim. “[Ejven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production.” In re Thorpe, 111 F.2d 695, 698 (Fed. Cir. 1985) (citations omitted). We agree a probability map is an abstract idea and is only an arrangement of data. We find the Examiner’s reasoning is sufficiently expressed. CONCLUSION Based on our above findings, we do not sustain the Examiner’s § 103 rejection of claims 1 and 10 (and claims 3—8 and 11—15, which depend therefrom respectively), as well as claim 22. The Examiner does not show that Koptenko cures the deficiencies of Commowick and Gering, and thus, we also do not sustain the Examiner’s §103 rejection of claims 19—21 and 23 over Commowick, Gering, and Koptenko. We summarily sustain the 6 Appeal 2016-001305 Application 13/581,512 Examiner’s § 103 rejection of independent claims 16—18. We sustain the Examiner’s § 101 rejection of claim 17 based on the above discussion. DECISION We reverse the Examiner’s § 103 rejections of claims 1, 3—8, 10-15, and 19-23. We affirm the Examiner’s § 103 rejection of claims 16—18. We affirm the Examiner’s § 101 rejection of claim 17. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED-IN-PART 7