Ex Parte ReinerDownload PDFPatent Trial and Appeal BoardOct 2, 201712998554 (P.T.A.B. Oct. 2, 2017) Copy Citation 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; 2 Appeal 2016-008326 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. 3 Appeal 2016-008326 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.) 4 Appeal 2016-008326 Application 12/998,554 “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.”).) 5 Appeal 2016-008326 Application 12/998,554 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 6 Appeal 2016-008326 Application 12/998,554 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 7 Appeal 2016-008326 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. 8 Appeal 2016-008326 Application 12/998,554 (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 9 Appeal 2016-008326 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.) 10 Copy with citationCopy as parenthetical citation