Ex Parte Schroecker

Patent Trial and Appeal Board

May 4, 2017

13338888 (P.T.A.B. May. 4, 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.
13/338,888 12/28/2011 Gerald Schroecker 256140UL 1783
118525 7590 05/04/2017
GE Healthcare-McCoy Russell LLP
806 SW Broadway
Suite 600
Portland, OR 97205-3335
EXAMINER
CHEN, FRANK S
ART UNIT PAPER NUMBER
2611
MAIL DATE DELIVERY MODE
05/04/2017 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 GERALD SCHROECKER
Appeal 2016-004198
Application 13/338,888
Technology Center 2600
Before JOSEPH L. DIXON, NORMAN H. BEAMER, and
SCOTT B. HOWARD, Administrative Patent Judges.
DIXON, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2016-004198
Application 13/338,888
STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from a rejection of
claims 1, 3—14, 16—19, 21—26, 28, and 30-36. The Examiner indicates that
claims 27 and 29 are allowable over the prior art if rewritten in independent
form. (Ans. 4.) Claims 2, 15, and 20 have been canceled. We have
jurisdiction under 35 U.S.C. § 6(b).
We reverse.
The claims are directed to a method and system for indicating light
direction for a volume-rendered image. Claim 1, reproduced below, is
illustrative of the claimed subject matter:
1. A method of volume-rendering 3D medical imaging data
comprising:
generating a volume-rendered image from a 3D dataset
acquired with a medical imaging device, wherein the volume-
rendered image is shaded from a light direction;
displaying the volume-rendered image;
displaying a model of a solid at the same time as the
volume-rendered image; and
displaying a light direction indicator with respect to the
model of the solid, wherein the position of the light direction
indicator with respect to the model of the solid corresponds to
the light direction used for shading the volume-rendered image.
1 Appellant indicates that General Electric Company is the real party in
interest. (Br. 3.)
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REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Jensen US 2002/0085681 Al July 4, 2002
Yoshioka US 2003/0037111 Al Feb. 20, 2003
Goto US 2004/0075658 Al Apr. 22, 2004
Sevastianov et al. US 2006/0066616 Al Mar. 30, 2006
(hereinafter “Sevastianov”)
Thomas et al. US 2009/0181769 Al July 16, 2009
(hereinafter “Thomas”)
Bamford et al. US 2012/0284671 Al Nov. 8, 2012
(hereinafter “Bamford”)
Eyewideopenmedia 1, Blender 3D Animation — Spinning Globe with Red Cube
Semi - Transparent, YOUTube (Mar. 31, 2009),
https://www.youtube.com/watch?v=pl 8hHatvUQg (hereinafter “Blender”).
3dcognition, 3ds Max — Lighting 1, YouTube (Nov. 29, 2008),
https://www.youtube.com/watch?v=70HxlnSwFDw (hereinafter “Video”).
REJECTIONS
The Examiner made the following rejections:
Claims 1, 3, 5—14, 16—19, 23, 31, and 36 stand rejected under pre-AIA
35 U.S.C. § 103(a) as being unpatentable over Jensen, Blender, in view of
Video and further in view of Sevastianov.
Claim 4 stands rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Jensen in view of Blender in view of Video in view of
Sevastianov and further in view of Yoshioka.
Claims 21, 32, 33, and 35 stand rejected under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over Jensen in view of Blender in view of
Video in view of Sevastianov and further in view of Thomas.
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Claim 24 stands rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Jensen in view of Blender in view of Video in view of
Sevastianov and further in view of Bamford.
Claims 22, 25, 26, 28, 30, and 34 stand rejected under pre-AIA 35
U.S.C. § 103(a) as being unpatentable over Jensen in view of Blender in
view of Video in view of Sevastianov and further in view of Goto.
ANALYSIS
With respect to independent claims 1, 14, and 19, Appellant presents
arguments to the claims together. We find the limitations of the three
independent claims to contain similar limitations. Therefore, we address
independent claim 1 as the illustrative claim for the group.
Burden on Appeal
The allocation of burden requires that the United States Patent and
Trademark Office (USPTO) produce the factual basis for any rejection in
order to provide an applicant with notice of the reasons why the applicant is
not entitled to a patent on the claim scope sought — the so-called “prima
facie case.” In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992); In re
Piasecki, 745 F.2d 1468, 1472 (Fed. Cir. 1984) (the initial burden of proof is
on the USPTO “to produce the factual basis for its rejection of an application
under sections 102 and 103” (quoting In re Warner, 379 F.2d 1011, 1016
(CCPA 1967))). The “prima facie case” serves as a procedural mechanism
that shifts the burden of going forward to the applicant, who must produce
evidence and/or argument rebutting the case of unpatentability. See Oetiker,
977 F.2d at 1445; Piasecki, 745 F.2d at 1472.
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The Patent Trial and Appeal Board’s role on appeal is to, “review
adverse decisions of examiners upon applications for patents.” 35 U.S.C.
§ 6(b) (2014). An appellant has the opportunity on appeal to the Board to
demonstrate error in the Examiner’s position. See In re Kahn, 441 F.3d 977,
985—86 (Fed. Cir. 2006) (“On appeal to the Board, an applicant can
overcome a rejection by showing insufficient evidence ofprima facie
obviousness or by rebutting the prima facie case with evidence of secondary
indicia of nonobviousness.” (quoting In re Rouffet, 149 F.3d 1350, 1355
(Fed. Cir. 1998)).
Standard of review
The Examiner has the initial burden to set forth the basis for any
rejection so as to put the patent applicant on notice of the reasons why the
applicant is not entitled to a patent on the claim scope that he seeks — the
so-called “prima facie case.'1'’ Oetiker, 977 F.2d at 1445. An appellant may
attempt to overcome an examiner’s rejection on appeal to the Board by
submitting arguments and/or evidence to show that the examiner made an
error in either (1) an underlying finding of fact upon which the final
conclusion was based, or (2) the reasoning used to reach the legal
conclusion. See Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)
(precedential). The panel then reviews the rejection for error based upon the
issues identified by appellant, and in light of the arguments and evidence
produced thereon. See Oetiker, 977 F.2d at 1445; see also Frye, 94 USPQ2d
at 1075.
The question of obviousness is “based on underlying factual
determinations including . . . what th[e] prior art teaches explicitly and
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inherently.” In reZurko, 258 F.3d 1379, 1383 (Fed. Cir. 2001). “The Patent
Office has the initial duty of supplying the factual basis for its rejection. It
may not. . . resort to speculation, unfounded assumptions or hindsight
reconstruction to supply deficiencies in its factual basis.” In re Warner, 379
F.2d 1011, 1017 (CCPA 1967).
As an introduction, Appellant presents arguments and discussion of a
3D (three dimensional) volume rendered image with respect to the
Specification and a prior declaration under 37 CFR § 1.132. (Br. 10-13.)
We note that the declaration was directed to a prior combination of
references. In response to the declaration evidence, the Examiner modified
the combination of prior art references and added the Jensen reference which
teaches 3D medical imaging generally. (Non-Final Act. 3—7.)
We agree with Appellant that the Examiner’s rejection is not based
upon a proper combination and statement of reasoning for the combination
and is based upon hindsight reconstruction. (Br. 16.)
Additionally, we find the Examiner’s line of reasoning for the
combination of the four prior art references to be based upon speculation and
conjecture. Furthermore, we find the limited teachings of the Video and
Blender references provide insufficient technical detail regarding the
rendering process to achieve the end results of shading either two-
dimensional or three-dimensional objects. We find the Video and Blender
references do not identify whether the references are 3D volume rendering
or merely surface rendering of images. As identified by Appellant’s
declaration, there is a recognized difference between the types of rendering
technology and the Examiner has not provided any persuasive response in
the Examiner’s Answer to Appellant’s argument.
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If the Examiner intends the rejection to be based upon the underlying
software packages of the Video and Blender references, the Examiner should
provide a different, more detailed reference that supports the functionality
the Examiner proffers in the statement of the rejection.
Moreover, the Examiner clearly recognizes the difference in the
technologies and modified the grounds of rejection in the Non-Final Office
Action to include the Jensen reference. Here, the Examiner has not
addressed the proffered difference in the additional references that more
likely than not appear to be directed to surface rendering of a three-
dimensional object rather than volume rendering of a three-dimensional
object.
We further agree with Appellant that one of ordinary skill in the art
would have appreciated the difference between surface rendering and
volume rendering. Appellant contends:
[a] fundamental misunderstanding relates to the meaning of
generating a volume-rendered image from a 3D dataset acquired
with a medical imaging device. Such operation is different in
kind from generating images with polygonal (e.g., surface)
rendering. This is because in surface rendering, objects are
created using surface representations such as polygonal wire
meshes. More specifically, vertices of the meshes typically form
polygons or triangles that form an outer shell. Objects formed
using surface rendering are surface representations and lack
internal matter, meaning that they are essentially empty inside.
On the other hand, generating a volume-rendered image from a
3D dataset acquired with a medical imaging device provides for
representing a filled object including internal data of the object.
(Declaration 14.)
The Examiner generally addressed, in the Non-Final Office Action,
Appellant’s arguments regarding the declaration under 37 CFR § 1.132 by
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the addition of the Jensen reference into the rejection. The Examiner
maintains that:
While Jensen does not explicitly disclose, Blender
discloses displaying a model of a solid (In every page of
Blender there is a transparent/semi-transparent virtual earth that
surrounds rotating cube. The virtual earth corresponds to the
solid and the cube corresponds to the volume-rendered image.)
It would have been obvious for a person of ordinary skill
in the art at the time of the claimed invention to modify the
teachings of Jensen so a solid semi-transparent or transparent
object such as a sphere maybe placed around the rotating
rendered volume of an anatomical part of the patient. This allows
the image to be viewed in a comprehensive 3D manner.
While the combination of Jensen and Blender does not
explicitly disclose, Video discloses displaying the volume-
rendered image; (Page 6 of Video shows the solid sphere which
can be considered a volume-rendered image after all of the light
and shading are in effect. However, sphere can be replaced with
what 3D image constructed by Jensen using medical imaging
device. Blender provides a framework in which a semi­
transparent graphical object can be placed outside a small
graphical volume.)
(Non-Final Act. 4—5). We disagree with the Examiner’s finding and find no
corresponding description to support the Examiner’s position regarding the
3D volume rendering from the limited screen shots of the Blender and Video
references. Moreover, we find error in the Examiner’s position that the
Blender reference discloses “virtual earth corresponds to the solid [model]
and the cube corresponds to the volume-rendered image.”
From our review of the teachings of the Blender and Video references,
we agree with Appellant that the Blender and Video references are more
likely than not directed to three-dimensional (3-D) surface rendering rather
than volume rendering of objects with internal volume data because the
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images appear to be merely combined surface renderings without internal
volume data. (From a brief review of the YouTube postings for “3ds Max -
Lighting” (Video reference) and “Blender 3D Animation” (Blender
reference), it is more likely than not that these software application packages
are addressing surface 3D renderings rather than volumetric rendering as
proffered by the Examiner.) Consequently, we find the Examiner’s
combination to be unpersuasive regarding the volumetric analysis and
display of independent claim 1.
Alternatively, if the image of the globe/earth in the Blender reference
were to be viewed as a model of a solid volume with a volume rendered
image of solid volume cube on the inside, the skilled artisan would have no
corresponding disclosure within the Blender reference to support the
proffered contention. While we may speculate that there is a void of
material between the exterior globe surface and the interior cube surface, we
have no underlying factual findings or any disclosure to support this
position.
Thus, the Examiner’s finding that of the Video and Blender references
teach or suggest the disputed limitation of claim 1 is in error because it is not
supported by a preponderance of the evidence. See In re Caveney, 761 F.2d
671, 674 (Fed. Cir. 1985) (Examiner’s burden of proving non-patentability is
by a preponderance of the evidence); see also In re Warner, 379 F.2d at
1017 (“The Patent Office has the initial duty of supplying the factual basis
for its rejection. It may not, because it may doubt that the invention is
patentable, resort to speculation, unfounded assumptions or hindsight
reconstruction to supply deficiencies in its factual basis.”).
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Additionally, whether it would have been obvious for a person of
ordinary skill in the art to combine two or more references is a flexible
inquiry. A factfinder “need not seek out precise teachings directed to the
specific subject matter of the challenged claim” and “can take account of the
inferences and creative steps that a person of ordinary skill in the art would
employ.” KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007).
Nevertheless, obviousness cannot be established “by mere conclusory
statements; instead, there must be some articulated reasoning with some
rational underpinning to support the legal conclusion of obviousness.” Id.
(quoting In re Kahn, 441 F.3d at 988).
Furthermore, we find the Examiner has not provided a sufficient
rationale for the combination of the prior art teachings relied upon and the
Examiner has relied upon speculation and conjecture regarding the limited
teachings of the Blender and Video references. As a result, we cannot agree
with the Examiner that, more likely than not, independent claim 1 would
have been obvious to one of ordinary skill in the art at the time of the
invention based upon the limited disclosures of the prior art references relied
upon.
We find the Blender and Video references contain no specific
disclosure rather than merely images of the end result of some rendering of
some 3D objects. Consequently, we are left to speculate as to whether these
3D renderings are merely surface renderings of 3D objects or volumetric
renderings. The Examiner has added the Jensen reference during the
prosecution which takes two dimensional slices of a three-dimensional
object and constructs a three-dimensional volume based upon the two-
dimensional fluoroscopic images. (Jensen Abstract, || 9-10.)
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Appellant contends that there is no evidence to support that any of the
cited references disclose displaying a model of a solid at the same time as
the volume-rendered image. (Br. 17.) Appellant further contends that the
Examiner has relied upon the Blender and Video references individually for
each of the rendered images. (Br. 17.)
The Examiner maintains:
Blender discloses a semi-transparent sphere which corresponds
to the model of a solid because it is a model of a solid sphere and
it is transparent/semi-transparent. Inside the semitransparent
sphere is another 3D geometric volume. Therefore, Blender
clearly discloses that an additional 3D graphical model can be
placed within the sphere. This is irrefutable evidence as
disclosed in Blender. The Examiner further cites to the solid
sphere in Video as the corresponding volume rendered image.
This volume rendered image is a 3D volume and it can be placed
within the semi-transparent sphere of Blender because Blender
already discloses having another 3D object with the semi­
transparent sphere at the same time. Therefore, Video modified
by Blender discloses a volume rendered image placed within the
model of a solid at the same time.
(Ans. 5—6.) Appellant contends that the Examiner has not made a proper
showing in the prior art relied upon teaches “displaying a model of a solid at
the same time as the volume-rendered image” We further find the
Examiner’s line of reasoning to be based upon hindsight reconstruction. The
Examiner maintains that both of the renderings in the Blender reference are
models and then contends that the sphere in the Video reference is a volume
rendered image which can be placed within the semi-transparent sphere of
the Blender reference because the Blender already has two rendered images
together. We disagree with the Examiner’s findings and conclusion. Rather,
we find that the single two-part image of the Blender reference is a single
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rendered image and the Video reference is a single rendered image.
Consequently, we find no disclosure of a rendered image and a separate
model of a solid at the same time as required by the language of independent
claim 1.
In response to Appellant’s arguments that the Blender reference does
not disclose displaying the volume-rendered image of Appellant’s
claim 1, the Examiner maintains:
the Examiner has explained many times previously and will
continue to do so for the remainder of this Answer, the volume-
rendered image is disclosed by Jensen which can replace the cube
disclosed in Blender. Video and Blender are used to modify
Jensen so a volume-rendered image of Jensen can be placed with
a model of a solid and be illuminated by a rotating light. Jensen
discloses generating a 3-D volume of object data based on 2-D
fluoroscopic images. Each portion of the 3-D volume of the
object data is considered a 3D dataset. Therefore, the entire 3-D
volume of object data is based on the 3D dataset acquired with
medical imaging of the 2-D fluoroscopic images. Not only does
the medical imaging device acquire the 2-D fluoroscopic images,
but it further transforms the 2-D fluoroscopic images into a 3-D
volume.
(Ans. 6—7.) The Examiner further maintains that:
In fact, paragraph [0010/ of Jensen recites “According to at least
one alternative embodiment, an image processor constructs a
computed tomography volume from a series of 2-D fluoroscopic
images. The image processor transforms multiple 2-D
fluoroscopic images into 3-D volumetric data sets. The image
processor may perform an iterative reconstruction technique to
construct the 3-D volume. Alternatively, the image processor
may perform a back projection technique to construct the 3-D
volume.” ([Ejmphasis added)[.] Therefore, the 2-D fluoroscopic
images are transformed into a 3-D volumetric data and then used
to construct the 3-D volume.
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. . . Jensen is related to a medical imaging field and
specifically pertains to medical personnel who use and view the
3D volumetric data. A person of ordinary skill in the art can be
a person in the medical imaging field who must have had
tremendous amounts of common experience with viewing real
life patients or medical objects using light sources. Thus, it
would have been obvious to that person of ordinary skill in the
medical imaging art at the time of the Appellant's claimed
invention to use lighting to get a better view of the 3D volume
rendered image. Moreover, that person of ordinary skill in the
art must know that the position of the lighting in real life affects
the viewing of a real life patient or medical objects. Therefore,
it would have been obvious to a person of ordinary skills at the
time of Appellant's claimed invention to want to know where the
source of the virtual light is with respect to the 3D volume
rendered image being viewed. The semi-transparent earth in
Blender has a surface that reflects some of the light from a light
source, thereby letting the viewer know where the light source is
located and where it is moving towards. Moreover, by viewing
the 3D volumetric image of Jensen within a semi­
transparent/transparent sphere with a moveable light source, the
person of ordinary skill in the art can better appreciate the
illuminated details of the 3D volumetric image and know where
the position of the light is, thereby getting a better understanding
of what the illumination is displaying. Appellant argues as if the
person of ordinary skill is an automaton devoid of creativity
and/or medical common sense experience when modifying
Jensen with the teachings of Blender and Video.
(Ans. 7—8.) We disagree with the Examiner’s factual findings and
conclusion regarding the combination of teachings, as discussed above.
Consequently, we cannot sustain the Examiner’s rejection of independent
claim 1 based upon obviousness. Independent claims 14 and 19 contain
similar limitations, and we cannot sustain the obviousness rejection of these
claims and the dependent claims 3—13, 16—18, 23, 31, and 36.
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With respect to dependent claims 21, 22, 24—26, 28, 30, and 32—35,
the Examiner has not identified how the additional references relied upon
remedy the deficiency in the base combination in the obviousness rejection
of the independent claims. As a result, we cannot sustain the rejection of
dependent claims 21, 22, 24—26, 28, 30, and 32—35.
CONCLUSION
The Examiner erred in rejecting 1, 3—14, 16—19, 21—26, 28, and 30-36
based upon obviousness under 35 U.S.C. § 103.
DECISION
For the above reasons, we reverse the Examiner’s rejections of claims
1, 3-14, 16-19, 21-26, 28, and 30-36.
REVERSED
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