Ex Parte Sehnert et al

Patent Trial and Appeal Board

Aug 22, 2018

13608163 (P.T.A.B. Aug. 22, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/608,163 09/10/2012 William J. Sehnert
70523 7590 08/22/2018
Carestream Health, Inc.
ATTN: Patent Legal Staff
150 Verona Street
Rochester, NY 14608
UNITED ST A TES OF AMERICA
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.
95354A 9227
EXAMINER
MOYER, ANDREW M
ART UNIT PAPER NUMBER
2667
MAIL DATE DELIVERY MODE
08/22/2018 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 WILLIAM J. SEHNERT, XIAOHUI WANG, and SAMUEL
RICHARD
Appeal2018-000810
Application 13/608, 163 1
Technology Center 2600
Before JOHN A. JEFFERY, LARRY J. HUME, and CARLL.
SILVERMAN, Administrative Patent Judges.
SILVERMAN, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 2-20, which constitute all pending claims. We
have jurisdiction under 35 U.S.C. § 6(b ).
We affirm.
STATEMENT OF THE CASE
The invention relates to medical imaging and particularly to a method
for control of components of a fluoroscopic imaging apparatus according to
1 The real party in interest is identified as Carestream Health, Inc. Br. 1.
Appeal2018-000810
Application 13/608,163
identification of a region of interest. Abstract, Spec. 1 :9--12, 2:3--4, Fig. 7.
Claim 2, reproduced below, is exemplary of the subject matter on appeal
( emphasis added):
2. A method for acquiring a fluoroscopic image of a subject using
a fluoroscopic imaging system, comprising:
displaying, on a display, a basis image for a fluoroscopic
1magmg sequence;
accessing one or more viewer instructions for the displayed
basis image;
defining a region of interest for the displayed basis image
responsive to the accessed one or more viewer instructions;
adjusting the position of one or more components of the
fluoroscopic imaging system responsive to the defined region of
interest;
while maintaining the adjusted position of the one or more
components, acquiring the fluoroscopic imaging sequence using the
fluoroscopic imaging system, the acquired fluoroscopic imaging
sequence comprised of a plurality of fluoroscopic images; and
displaying, on the display, the basis image, the defined region
of interest within the basis image being image data from one of the
acquired fluoroscopic images displayed at a higher contrast than
background portions of the basis image outside the defined region of
interest.
Br. 14 (Claims Appendix).
THE REJECTIONS
Claims 2-9 and 20 are rejected under pre-AIA 35 U.S.C. I03(a) as
being unpatentable over Ogawa (US 2004/0127789 Al; pub. July 1, 2004)
("Ogawa") in view of Conrad et al., (US 2006/0126910 Al; pub. June 15,
2006) ("Conrad"). Final Act. 6-11.
2
Appeal2018-000810
Application 13/608,163
Claim IO is rejected underpre-AIA 35 U.S.C. I03(a) as being
unpatentable over Ogawa, Conrad and Keller et al. (US 2011/0025682 Al;
pub. February 3, 2011) ("Keller"). Final Act. 11-12.
Claims 11 and 13-19 are rejected under pre-AIA 35 U.S.C. I03(a) as
being unpatentable over Ogawa, Conrad, and Besson (US 2004/0202360 Al;
pub. October 14, 2004) ("Besson"). Final Act. 12-19.
Claim 12 is rejected underpre-AIA 35 U.S.C. I03(a) as being
unpatentable over Ogawa, Conrad, Besson, and Keller. Final Act. 19-20.
ANALYSIS
Appellants argue the Examiner errs in finding the combination of
Ogawa and Conrad teaches the limitations of independent claim 2. Br. 7-9.
According to Appellants, Ogawa employs a specified collimator opening
that is used for multiple images of the lower limb and, therefore, Ogawa's
collimator positions change for each imaging position/ROI (Region of
Interest). Id. at 7 (citing Ogawa ,r,r 59, 60, Fig. 4B). Appellants then argue
"[a]s such, Ogawa does not teach maintaining the adjusted position of the
one or more components while acquiring the fluoroscopic imaging sequence
using the fluoroscopic imaging system," and "even if ... Ogawa was
combined with Conrad, Claim 2 would not result since neither reference
teaches this claimed feature." Id. at 7.
Appellants argue the Examine concedes Ogawa does not disclose the
feature of displaying the defined region of interest ("ROI") at a higher
contrast than background portions of the defined outside the region of
interest, and incorrectly relies on the combination of Ogawa and Conrad for
this limitation because it would not have been obvious to combine these
3
Appeal2018-000810
Application 13/608,163
references. Id. at 7-8. According to Appellants, Ogawa does not
distinguish between an imaging position/ROI and a background portion
because each imaging position/ROI is part of the entire lower limb so there
is no "background portion" which is of lower/less interest. Id. at 8 ( citing
Ogawa ,r 60, 69, Fig. 4B). Appellants argue the areas outside of the dotted
rectangular region are not part of Ogawa's captured/acquired images and,
therefore, not the claimed "background portion." Id. at 8. Therefore,
Appellants argue "Ogawa would not look to Conrad to display its
"background portion" at a different contrast level since Ogawa does not have
a "background portion." Id. at 9.
The Examiner finds Ogawa teaches the claim 2 limitations except
"displaying, on the display, the basis image, the defined region of interest
within the basis image being image data from one of the acquired
fluoroscopic images displayed at a higher contrast than background
portions of the basis image outside the defined region of interest" and relies
on Conrad for this limitation. Final Act. 6-8.
In the Answer, the Examiner finds Ogawa discloses displaying a basis
image and a separate acquired fluoroscopic imaging sequence comprising
regions of interest and background portions. Ans. 18 ( citing Ogawa ,r,r 58-
60, 74, Figs. 4B, 9, lOA, lOB). The Examiner finds Ogawa discloses
capturing multiple sequences wherein "[ t ]he first full sequence before
introducing the contrast agent is the basis image" and "[t]he sequence after
introducing the contrast agent is the newly acquired fluoroscopic imaging
sequence." Id. at 18-19.
4
Appeal2018-000810
Application 13/608,163
The Examiner determines that the broadest reasonable interpretations,
in light of the Specification, of the claim terms, "region of interest" is any
region that is interesting and "background portions" is everything outside the
region of interest. Id. at 19. With these interpretations, the Examiner finds
Ogawa discloses the claimed region of interest and background portions. Id.
For example, the Examiner finds Ogawa discloses a "region of interest" as
one or more arteries carrying contrast agent as defined by Figures 9--1 OB,
and discloses "background portions" as backgrounds outside the one or more
arteries carrying contrast agent as defined by Figures 9-lOB. Id. The
Examiner additionally finds Conrad also discloses "regions of interest" and
"background portions." Id. at 19 (citing Conrad Abstract, ,r,r 5, 9, Figs. 3, 4).
The Examiner finds Ogawa discloses adjusting the position of one of
more components of the fluoroscopic imaging system responsive to the
defined region of interest. Id. (citing Ogawa ,r 60, Figs. 2, 4B). And, the
Examiner finds Ogawa discloses the limitation "while maintaining the
adjusted position of the one or more components, acquiring the fluoroscopic
imaging sequence using the fluoroscopic imaging system, the acquired
fluoroscopic imaging sequence comprised of a plurality of fluoroscopic
images." Id. (citing Ogawa ,r,r 60, 61, Figs. 1, 2, 4B, 11). Regarding
Appellants' argument that Ogawa's collimator is moved to acquire the
images, rather than maintained, the Examiner notes the claim language only
requires that at least one component is maintained while acquiring the
images and, moreover, Ogawa discloses that the collimator openings may be
the same as others. Id. at 20 (citing Ogawa ,r 61, 80); see also Ogawa,
Fig. 4B.
5
Appeal2018-000810
Application 13/608,163
The Examiner finds Ogawa's purpose for introducing the contrast
agent is to increase the contrast of regions of interest, such as arteries
containing the contrast agent. Id. at 20-21 ( citing Ogawa Abstract, ,r 80,
Figs. 9--lOB). The Examiner finds Conrad teaches a touchscreen technique
that predictably uses image processing to further increase the contrast of any
region of interest. Id. at 21 ( citing Conrad, Figs. 3, 4, Abstract, ,r,r 5, 9).
According to the Examiner:
It would have been obvious to one of ordinary skill in the art at
the time of the invention to have Ogawa's operator's instructions
and input devices include Conrad's touch screen and/or mouse to
indicate a region of interest "for better recognition of image
details" (see Conrad Abstract). It is predictable that a viewer
would want to select portions of the image to be processed in the
manner disclosed by Conrad so that more details of the region of
interest would become apparent to the viewer. Typically, greater
detail in images is desired by viewers of an image, particularly
when one wants to make a medical diagnosis based on an image.
Id. at 21.
We are not persuaded by Appellants' arguments and agree, instead,
with the Examiner's findings, claim interpretation, and conclusions. On the
record before us, we find no persuasive arguments that the Examiner's
findings and claim interpretation are unreasonable, overbroad, or
inconsistent with Appellants' Specification. Additionally, we note
Appellants do not rebut the Examiner's findings and conclusions as
presented in the Examiner's Answer, discussed supra. Claim terms in a
patent application are given the broadest reasonable interpretation consistent
with the specification, as understood by one of ordinary skill in the art. In re
Crish, 393 F.3d 1253, 1256 (Fed. Cir. 2004).
6
Appeal2018-000810
Application 13/608,163
Appellants argue the references individually while the rejection is
based on the combination of the teachings of the cited references. In re
Keller, 642 F.2d 413, 426 (CCPA 1981) ("[O]ne cannot show non-
obviousness by attacking references individually where, as here, the
rejections are based on combinations of references." ( citations omitted)); In
re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
Appellants also argue an unreasonably narrow teaching of the cited
references and an overly demanding standard of obviousness. The test for
obviousness is not whether the features of a secondary reference may be
bodily incorporated into the structure of the primary reference; nor is it that
the claimed invention must be expressly suggested in any one or all of the
references. Rather, the test is what the combined teachings of the references
would have suggested to those of ordinary skill in the art. Keller, 642 F.2d
at 425.
As stated by the Supreme Court, the Examiner's obviousness rejection
must be based on:
"[S]ome articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness." ... "[H]owever, the analysis
need not seek out precise teachings directed to the specific subject matter of
the challenged claim, for a court can take account of the inferences and
creative steps that a person of ordinary skill in the art would employ." KSR
Int'! Co. v. Teleflex Inc., 550 U.S. 398,418 (2007) (quoting In re Kahn, 441
F.3d 977, 988 (Fed. Cir. 2006)).
The Examiner's findings are reasonable because the skilled artisan
would "be able to fit the teachings of multiple patents together like pieces of
7
Appeal2018-000810
Application 13/608,163
a puzzle" since the skilled artisan is "a person of ordinary creativity, not an
automaton." KSR, 550 U.S. at 420-21.
Based upon the teachings of the references and the fact that each
claimed element was well-known in the art, we agree with the Examiner
because the combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results.
Id. at 415-16.
Furthermore, on this record, Appellants do not present sufficient or
persuasive evidence that the combination of the cited references was
"uniquely challenging or difficult for one of ordinary skill in the art" or
"represented an unobvious step over the prior art." Leapfrog Enters., Inc. v.
Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550
U.S. at 419-21). Nor have Appellants provided objective evidence of
secondary considerations, which our reviewing court guides "operates as a
beneficial check on hindsight." Cheese Sys., Inc. v. Tetra Pak Cheese &
Powder Sys., Inc., 725 F.3d 1341, 1352 (Fed. Cir. 2013).
In view of the above, we sustain the rejection of independent claim 2,
and dependent claims 3-10, and 20 as these claims are not argued
separately. See 37 C.F.R. § 4I.37(c)(l)(iv).
Regarding claims 11-19, Appellants rely on arguments discussed,
supra, for independent claim 2, supra, and additionally argue the Examiner
errs because the cited references do not teach "a collimator which is not fully
radiopaque" as Besson discloses a "'semi-opaque collimator' that is used to
reduce scatter, whereas the claimed collimator is used to adjust contrast
and/or resolution Br. 10-12. The Examiner notes "Applicant has not actually
8
Appeal2018-000810
Application 13/608,163
claimed that the collimator is used to adjust contrast and/or resolution of an
image" as "Applicant instead separately claims "a collimator which is not
fully radiopaque" and "wherein the region of interest from the obtained
image data displays at one or both of higher contrast and higher resolution."
Ans. 22. The Examiner states the broadest reasonable interpretation, in light
of the Specification, does not require the collimator to be used to adjust the
displayed image's contrast and/or resolution and the claim language covers
image processing to be used instead, as in Conrad. Id. ( citing Conrad Figs.
3, 4, Abstract, ,r,r 5, 9).
The Examiner finds Besson discloses a collimator which is not fully
radiopaque (semi-opaque) and "it would have been obvious to one of
ordinary skill in the art at the time of the invention to simply substitute
Ogawa's collimator with Besson's collimator, because both collimators may
be used to capture x-ray image data" and "[f]urthermore, Besson teaches and
suggests that Besson's collimator may be used in "high-resolution imaging"
thereby increasing the amount of data that can be captured with each image
and improving Ogawa's image collection." Id. at 22-23 ( citing Besson
i175).
We are not persuaded by Appellants' arguments and agree, instead,
with the Examiner's findings, claim interpretations. and conclusions.
Therefore, we sustain the rejection of independent claims 11 and 16, and
dependent claims 12-15, 17-19 as these claims are not argued separately.
See 37 C.F.R. § 4I.37(c)(l)(iv).
9
Appeal2018-000810
Application 13/608,163
DECISION
We affirm the Examiner's decision rejecting claims 2-20.
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). See 37
C.F.R. § 4I.50(f).
AFFIRMED
10