Ex Parte Reiner

Patent Trial and Appeal Board

Oct 2, 2017

12998554 (P.T.A.B. Oct. 2, 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.
12/998,554 07/18/2011 Bruce Reiner 71486.0098 9189
13155 7590 10/04/2017
FHwarrk Ne.ils T T C
EXAMINER
125 West Street CERIONI, DANIEL LEE
Suite 202
Annapolis, MD 21401 ART UNIT PAPER NUMBER
3736
NOTIFICATION DATE DELIVERY MODE
10/04/2017 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):
ipgeneral @ edwardsneils. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BRUCE REINER1
Appeal 2016-008326
Application 12/998,554
Technology Center 3700
Before JEFFREY N. FREDMAN, TIMOTHY G. MAJORS, and
DEVON ZASTROW NEWMAN, Administrative Patent Judges.
MAJORS, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) involving claims to
methods of using an eye movement detection apparatus, and claims to a
related non-transitory computer-readable medium and computer system.
The Patent Office rejected the claims for obviousness. We have jurisdiction
under 35 U.S.C. § 6(b).
We REVERSE.
1 Appellant identifies the Real Party in Interest as Bruce Reiner. (App. Br.
2.)
Appeal 2016-008326
Application 12/998,554
STATEMENT OF THE CASE
The Specification explains that the “invention relates to alternative
strategies to counteract the limitations of human-computer interaction in a
medical environment, and includes eye tracking and thought recognition
technologies, which provide for faster and more intuitive human-computer
input.” (Spec. 13.)
Claims 1—25 and 27—29 are on appeal. Claim 1 is illustrative:
1. A method of utilizing an eye movement detection apparatus in
a medical application, the medical application being a
radiological application which obtains medical images by at least
one of a magnetic resonance imaging (MRI) device, a
computerized tomography (CT) imaging device, or an X-ray
device, wherein during review and interpretation by a user of the
medical images obtained during the radiological application, the
user follows a predetermined set of visual and cognitive steps,
the method comprising:
measuring eye movements, including how an eye moves
from one location to another, of the user using the eye movement
detection apparatus, the eye movement detection apparatus
having an optical recording system with a sensing device, said
optical recording system being mounted on a user’s headband
and emitting infrared light which is reflected into a charge-
coupled camera disposed next to said sensing device, and
recording said eye movements;
providing a computer system which is connected to the eye
movement detection apparatus;
receiving inputs from the user via said computer system,
said inputs which are used by a processor of said computer
system, to calibrate the eye movement detection apparatus to said
user;
performing said predetermined set of visual and cognitive
steps using the eye movement detection apparatus on a plurality
of said medical images presented to said user on a display of said
computer system, and storing information from said steps into a
database to establish a baseline for said user;
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Application 12/998,554
determining a visual profile of a workflow of the user
using an analysis of said stored information from said
predetermined set of visual and cognitive steps, using said
processor;
creating, using said processor, an automated visual display
protocol of said workflow of said user, which is user specific, is
stored in said database, and is provided on said display, such that
said user can review said medical images using said automated
visual display protocol;
storing in said database, eye-tracking commands inputted
into said computer system from the eye movement detection
apparatus, for individual user navigation and computer
interactions;
storing context-specific eye-tracking commands from said
user with respect to the medical application, which are inputted
from the eye movement detection apparatus, into said database
of said computer system;
performing the medical application on said medical
images on said display of said computer system, using said eye­
tracking commands; and
storing eye-tracking data and results of an analysis
performed by said processor, of data from performance of the
medical application on said medical images, in said database.
(App. Br. 24—25 (Claims App.).)
The claims stand rejected as follows:
I. Claims 1-3, 5, 7-13, 17-23, 25, and 27-29 under 35 U.S.C.
§ 103(a) over Prokoski2 and Jung3 (“Rejection I”).
II. Claims 4, 6, 14—16, and 24 under 35 U.S.C. § 103(a) over
Prokoski, Jung, and Reiner4 (“Rejection II”).
2 Prokoski, US 7,027,621 Bl, issued Apr. 11, 2006.
3 Jung et al., US 2008/0287821 Al, published Nov. 20, 2008.
4 Reiner, US 2006/0007188 Al, published Jan. 12, 2006.
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Application 12/998,554
DISCUSSION
The same issues are dispositive for both Rejection I and Rejection II.
Accordingly, we address both rejections together, with emphasis on
Rejection I and the combination of Prokoski and Jung.
The Examiner rejects claim 1 as obvious over Prokoski and Jung.
(Ans. 2—6.)5 The Examiner finds Prokoski teaches, among other things, “a
method of utilizing an eye movement detection apparatus in a medical
application ([Prokoski] Abstract), wherein during review and interpretation
by a user of the medical images obtained, the user follows a predetermined
set of visual and cognitive steps.” {Id. at 2—3.) According to the Examiner,
there are, however, two elements of claim 1 not taught in Prokoski. {Id. at
4.) The Examiner finds Prokoski fails to teach: (i) “the medical application
being a radiological application which obtains medical images by at least
one of a magnetic resonance imaging (MRI) device” and (ii) “the eye
movement detection apparatus . . . being mounted on a user’s headband and
emitting infrared light which is reflected into a charge-coupled camera
disposed next to [a] sensing device.” {Id.) Regarding the second deficiency
of Prokoski, the Examiner nevertheless notes that “Prokoski does teach an
IR-CMS (‘infra-red condition monitoring system’). . . mounted on a helmet
or a headset ([Prokoski] col. 20, lines 27—34).” {Id. at 5.)
The Examiner turns to Jung, which the Examiner finds “teaches a
radiological application which obtains medical images by,” for example, an
MRI device. {Id. (citing Jung || 202, 204).) The Examiner finds that Jung
5 The Examiner also rejects the other independent claims (claims 27, 28,
and 29) over the combination of Prokoski and Jung, providing substantially
the same findings and explanation as given for claim 1. (Ans. 9—18.)
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“also teaches an eye movement detection apparatus having an optical
recording system with a sensing device . . . mounted on a user’s headband
and emitting infrared light.” {Id. (citing Jung 1198).)
The Examiner concludes it would have been obvious “to modify
Prokoski such that the medical application being a radiological application
which obtains medical images” using an MRI device. The Examiner reasons
this modification is “a simple substitution of the type of image that is
presented on the display to the user in Prokoski.” (Id.) The Examiner
further reasons it would have been obvious to modify Prokoski’s apparatus
so it is “mounted on a user’s headband ... for the obvious advantage of
monitoring the user’s eye movements with a portable device that can
produce a high-quality image.” {Id. at 5—6.)
Appellant argues the Examiner’s rejection is flawed for several
reasons. Appellant contends, inter alia, that the teachings cited by the
Examiner in Prokoski “ha[ve] nothing to do with a ‘medical application, the
medical application being a radiological application’” as recited in the
claims. (App. Br. 17.) To the contrary, Appellant contends, the cited
teachings “merely indicate[] that the IR-CMS serves to . . . facilitate rapid
medical treatment, quarantine, re-training, or counseling as appropriate.”
{Id. {see Prokoski Abstract).) Appellant further argues none of the cited
portions of Prokoski “has anything to with a medical application . . . where
the user follows a predetermined set of visual steps during review of the
radiological images obtained” as required by the claims. {Id.; see also App.
Br. 24 (claim 1 reads “wherein during review and interpretation by a user of
the medical images obtained during the radiological application, the user
follows a predetermined set of visual and cognitive steps.”).)
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Appellant also argues there is no teaching in Prokoski of “determining
a visual profile of a workflow of the user” using stored information related
to the user’s performance of the predetermined visual and cognitive steps.
According to Appellant, the cited portions of Prokoski relate only to
biometric identification. (Id. at 19.) Moreover, Appellant contends,
Prokoski fails to teach the step of “creating, using said processor, an
automated visual display protocol of said workflow of said user, which is
user specific . . . and is provided on said display, such that said user can
review said medical images using said automated visual display protocol.”
(Id.; see also id. at 21.) Appellant argues the cited portions of Prokoski are
inapplicable and “relate [] to passive thermal image sequences of the face of
an operator during polygraphy.” (Id. at 19.)
As to Jung, Appellant argues it is likewise deficient. According to
Appellant, the teaching related to functional magnetic resonance imaging
(fMRI) in Jung is unrelated to the medical application and interpretation of
medical images recited in the claims. (Id. at 20.) Appellant contends “the
Examiner has simply extracted a totally unrelated reference to fMRI and
then has used that to modify Prokoski.” (Id.) Appellant also points out that
Jung’s “headband” relates to a device that sends light “through the forehead
of a user ... to interact with the brain’s frontal lobe” and “has nothing to do
with an eye movement detection apparatus.” (Id.)
On the record before us, the Examiner failed to make a persuasive
prima facie showing that claim 1 would have been obvious.
As an initial matter, we agree with Appellant that the portions of
Prokoski cited by the Examiner do not relate to use of an eye detection
apparatus for a “medical application” in the manner claimed. Some context
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is helpful, and is provided by other language in the claim. Claim 1 requires
using the apparatus
in a medical application, the medical application being a
radiological application which obtains medical images by at least
one of a magnetic resonance imaging (MRI) device, [] wherein
during review and interpretation by a user of the medical images
obtained during the radiological application, the user follows a
predetermined set of visual and cognitive steps.
(App. Br. 24.) Put differently, when the user of the device is carrying out a
medical application, which happens to be a radiological application, the user
follows a predetermined set of visual and cognitive steps to review medical
images. The remainder of the claim explains how the user’s eye movements
are tracked and recorded while the user reviews the images and carries out
the radiological application. In plainer terms, consider a system or method
where a radiologist, or other medical professional, has his or her eye
movements tracked as they review and interpret MRIs, X-ray images, etc.
Putting aside the “radiological” elements of the claim, the portions of
Prokoski cited by the Examiner simply fail to teach that the user of the
device is interpreting “medical images” or carrying out a “medical
application” as claimed. To the contrary, the reference to “facilitating]
rapid medical treatment” in Prokoski, in context, relates to providing
medical treatment to the user of the device when observed variables (e.g.,
unusual eye-fixation patterns, blink rate, etc.) indicate the user is suffering
from cognitive, motor, or some other impairment. (See Prokoski Abstract;
see also id. at 5:16-41, 6:2—7, and 6:42—59.) For instance, consider a user of
the device who is a pilot or soldier; use of Prokoski’s device can provide an
early warning that the user is extremely fatigued, under the influence of
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Application 12/998,554
drugs, etc., and thus allows for prompt medical treatment or other
intervention. (Id.; see also id. at 2:17—19 (“Medical emergencies such as
stroke, seizure, or heart attacks, are also a serious concerns in persons
performing critical or life-threatening tasks.”).)6 7
Jung fails to cure the deficiency in the Examiner’s findings related to
Prokoski. Jung lists numerous techniques that can be used to measure
physiologic activity, including MRI, electroencephalography, and others.
(See, e.g., Jung || 188, 195, and 201.) That radiological techniques and
images — like MRI — were known to provide a measurement of some
physiologic activity is not at issue. What is missing in the Examiner’s
rejection is a sufficient teaching, suggestion, or persuasive explanation
demonstrating that it would have been obvious to apply an eye-tracking
device, such as described in Prokoski, to a user reviewing and interpreting
images from an MRI scan, X-rays, etc. obtained during a radiological
application.
Even if the combination of Prokoski and Jung taught the use of an eye
movement detection apparatus in a “radiological application,” we are
unpersuaded the combination teaches or suggests other claim limitations.
6 In “Background,” Prokoski does teach that problems such as fatigue,
anxiety, etc. are not limited to pilots and soldiers, but are “most acute in jobs
involving shift work, high stress, physically demanding, or repetitive or
boring tasks.” (Prokoski 2:13—22.) Among a list of professions, Prokoski
also lists “medical operations center personnel” and “surgeons.” (Id. at 2:6—
7 and 27—32.) This arguably suggests Prokoski’s device would be useful for
medical professionals. But the Examiner neither points this out nor provides
persuasive findings and reasoning to explain why Prokoski teaches or makes
obvious the use of its device for medical professionals viewing medical
images.
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(Ans. 11—12.) In particular, claim 1 requires “creating ... an automated
visual display protocol of said workflow of said user,” which is “provided on
said display, such that said user can review said medical images using said
automated visual display protocol.” (App. Br. 27 (emphasis added).)
Neither the Examiner nor Appellant provide a satisfactory explanation of
what this limitation means. The Examiner focuses on the word “automated”
and finds that Prokoski’s device is “automated” because it automatically
extracts points that correspond to specific anatomical locations on, for
example, a subject’s face. (Ans. 35 (citing Prokoski 21:35—39 (“[U]se of
automated minutiae extraction to determine and track specific anatomical
locations in spite of head movements and facial expression changes.”).) But
we disagree the relevant claim limitation reads on this aspect of Prokoski.
Instead, the claimed “automated visual display protocol of said workflow”
relates to something specific and different, as the Specification demonstrates
and we discuss below.
The Specification explains, in greater detail, what an automated visual
display protocol is, and what function it plays in the overall invention. (See
Spec. 1103.) The Specification describes creation of a user-specific
database that “leads to the creation of automated visual display viewing
protocols” for that particular user. (Id.) According to the Specification,
“[a]n automated display viewing protocol is a visual alternative to an
automated workflow template, which effectively creates ‘hands free’
navigation.” (Id.) Thus, the Specification discloses:
The automated visual display viewing protocol would
effectively create a movie in which the end-user’s eyes could
remain fixed on a central point and the data would effectively
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Application 12/998,554
move to recreate the normal sequence of eye movements
performed on a stationary imaging set.
(Id.) These disclosures are definitional, and we conclude an “automated
visual display protocol” of said workflow of said user requires the above-
described features and functionality. The Examiner identified nothing like
this in the prior art. And we are unpersuaded on the present record that the
cited prior art teaches this limitation of claim 1,7
We conclude the Examiner did not establish by a preponderance of
the evidence that claim 1 would have been obvious over Prokoski and Jung.
The Examiner has not shown that Reiner makes up for any of the above-
described deficiencies in Prokoski and Jung. We thus reverse the rejection
of claim 1 for the reasons explained above, and reverse the rejection of
claims 27, 28, and 29 for similar reasons. We also reverse the rejection of
the dependent claims. In re Fritch, 972 F.2d 1260, 1266 (Fed. Cir. 1992)
(“[Djependent claims are nonobvious if the [] claims from which they
depend are nonobvious.”)
SUMMARY
We reverse the rejection of claims 1—3, 5, 7—13, 17—23, 25, and 27—29
as obvious over Prokoski and Jung. We also reverse the rejection of claims
4, 6, 14—16 and 24 as obvious over Prokoski, Jung, and Reiner.
REVERSED
7 Substantially the same limitation appears in independent claims 27, 28,
and 29. (App. Br. 27—34.)
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