Ex Parte Vosniak et al

Patent Trial and Appeal Board

Jun 26, 2017

13093249 (P.T.A.B. Jun. 26, 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.
13/093,249 04/25/2011 KENNETH VOSNIAK 247764 (553-1666) 8367
45436 7590 06/28/2017
DEAN D. SMALL
THE SMALL PATENT LAW GROUP LLC
225 S. MERAMEC, STE. 725T
ST. LOUIS, MO 63105
EXAMINER
WONG, LESLIE
ART UNIT PAPER NUMBER
2164
NOTIFICATION DATE DELIVERY MODE
06/28/2017 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):
Docket @ splglaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KENNETH VOSNIAK,
SCOTT DAVID WOLLENWEBER,
and
ROBERT JOHNSEN
Appeal 2017-003584
Application 13/093,2491
Technology Center 2100
Before CARLA M. KRIVAK, HUNG H. BUI, and JON M. JURGOVAN,
Administrative Patent Judges.
JURGOVAN, Administrative Patent Judge.
DECISION ON APPEAL
Appellants seek review under 35 U.S.C. § 134(a) from a Final
Rejection of claims 1—6, 8—14, and 16—25, which are all the claims pending
in the application. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.2
1 Appellants identify General Electric Company as the real party in interest.
(Br. 3.)
2 Our Decision refers to the Specification (“Spec.”) filed Apr. 25, 2011, the
Final Office Action (“Final Act.”) mailed Nov. 3, 2015, the Appeal Brief
Appeal 2017-003584
Application 13/093,249
CLAIMED INVENTION
The claims are directed to systems and methods for providing a scan
protocol to perform imaging scans. Spec. 11; Title; Abstract. The systems
and methods compare a current scan protocol for a scan of a patient to a
stored scan protocol, to identify and display differences between the
protocols. Abstract.
Claims 1, 9, and 17 are independent. Claim 1, reproduced below, is
illustrative of the claimed subject matter:
1. A method for displaying a scan protocol for an imaging
system, the method comprising:
receiving a current scan protocol for acquiring scan data
of a patient, the current scan protocol for a scan of the patient to
be performed, wherein the current scan protocol includes scan
parameters related to acquisition of the scan data;
accessing a stored scan protocol from a memory, the
stored scan protocol including scan parameters related to
acquisition of scan data for a previous scan of the same patient
from the current scan protocol;
comparing the current scan protocol to the stored scan
protocol;
identifying any differences based on the comparison of the
current scan protocol to the stored scan protocol and generating
a recommended scan protocol based on the comparison of the
current scan protocol and the stored scan protocol; and
indicating the differences of the current scan protocol and
the stored scan protocol, and indicating the recommended scan
protocol, on a display.
(Br. 20 (Claims App’x).)
(“Br.”) filed Apr. 18, 2016, and the Examiner’s Answer (“Ans.”) mailed
Nov. 2, 2016.
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Application 13/093,249
REJECTION & REFERENCES
Claims 1—6, 8—14, and 16—25 stand rejected under 35 U.S.C. § 103(a)
based on Cohen-Solal (US 2013/0311472 Al, Nov. 21, 2013) and Gotman
(US 8,712,798 B2, Apr. 29, 2014). (Final Act. 2-14.)
ANALYSIS
Claims 1—6, 8—14, and 16—24
Appellants state that independent claim 1 recites comparing current
and stored scan protocols “of the same patient,” the protocols including
respective “scan parameters related to acquisition of the scan data.” (Br. 7,
10-11,20.)
The Examiner relies on both Cohen-Solal and Gotman for teaching
Appellants’ claimed comparison of current and stored scan protocols. In
particular, the Examiner finds Cohen-Solal discloses comparing current and
stored scan protocols, the protocols including scan parameters related to
acquisition of the scan data for the respective scans. (Final Act. 3 (citing
Cohen-Solal 3, 6—7, 12, 14, 37); Ans. 14—15 (citing Cohen-Solal 38—
39, 48—51, 63, 70, 75).) And the Examiner finds Gotman discloses
comparing current and stored scan protocols of the same patient, the
protocols including scan parameters related to acquisition of the scan data
for the respective scans. (Final Act. 5 (citing Gotman col. 3,1. 64—col. 4,1.
21, col. 6,11. 6-13 and 11. 23-33); Ans. 26-30).)
Appellants argue Cohen-Solal and Gotman fail to disclose
“comparing” current and stored protocols “of the same patient,” the
protocols including “scan parameters related to acquisition of the scan data,”
as recited in claim 1. (Br. 11—12, 15—16.) Appellants assert Gotman’s
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Application 13/093,249
“reviewed parameters ... are height and weight, which are, at most,
parameters a protocol may be selected based upon, but are not scan
parameters that are part of a scan protocol,” and “are not [parameters]
related to acquisition of scan data.” (Br. 16.) Regarding the claimed
“comparing,” Appellants assert Cohen-Solal “compares the execution of a
given protocol with the protocol for different patients,” not “for the same
patient” (Br. 12); and Gotman merely discloses “‘adjusting’ parameters by
an operator” via a “side by side display . . . [of] only images, not protocols,”
which “fails to teach comparing a current scan protocol with a stored
protocol” (Br. 15—16).
We do not find Appellants’ arguments persuasive and commensurate
with the scope of Appellants’ claim 1. Rather, we find the Examiner has
provided a comprehensive response to Appellants’ arguments supported by a
preponderance of evidence. (Ans. 3—34.) For additional emphasis, we note
Appellants’ claim 1 does not exclude a patient’s height and weight and
“parameters a protocol may be selected based upon” (see Br. 16), from the
claimed “scan parameters related to acquisition of the scan data.” (Ans. 9,
18.) In addition, Appellants’ Specification broadly describes scan
parameters related to acquisition of a protocol’s scan data as “various
parameters, such as a height and weight of the patient, an injection site of a
radioactive agent, an uptake time of the radioactive agent, and/or the
acquisition and reconstruction techniques such as scan duration,
reconstruction iterations, subsets, and filters,” and “various blood levels of
the patient, for example, glucose levels of the patient.” (See Spec. ^fl[ 3, 22
(emphasis added).) Appellants’ Specification further provides that “the
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Application 13/093,249
parameters listed herein are exemplary only and are not to be considered
limiting.” (See Spec. 122 (emphasis added).)
Thus, we agree with the Examiner Gotman’s parameters—including
“various scan parameters such as the kV and mA for the protocol selected by
the protocol selection means. . . . scanning mode, scan duration, patient
dose” and “parameters [that] were entered when the patient was previously
scanned, e.g. age, weight”—are commensurate with the broad description of
“scan parameters related to acquisition of the scan data” in Appellants’
Specification. (Ans. 13, 18, 28—30 (citing Spec. 13; Gotman col. 5,1. 61-
col. 6,1. 36).)
Additionally, we agree with the Examiner’s findings that “Gotman
allows the physician to compare current and past scans of the same patient,”
thereby teaching “comparing the current scan protocol to the stored scan
protocol” for the same patient, as required by claim 1. (Ans. 13, 17—18, 29-
30 (citing Gotman col. 6,11. 6—36).) In particular, Gotman discloses the
following:
[A] pre-fetch means 152 searches a previous scan database 154
residing at the hospital database 18 for earlier scans of the same
patient. The pre-fetch means 152 retrieves previous scans,
which have been stored from previous exams from the same or
different modality, into the workstation on which the physician
examines the current scans of the patient. . . . Preferably, the
earlier images are directly sent to the physician’s workstation and
registered by using one of known pre-registration techniques to
display earlier and current scans side by side on the monitor 22.
The previously used parameters and protocols are offered to the
operator to be used in conjunction with the protocol selection and
parameter optimizing steps. The operator reviews what
parameters were entered when the patient was previously
scanned, e.g. age, weight, etc. Preferably, the operator uses the
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Application 13/093,249
same parameters or, as an alternative, the operator adjusts the
previously entered parameters.
(Gotman col. 6,11. 6—33 (emphasis added).)
Appellants further argue the combination of Cohen-Solal and Gotman
fails to disclose that “differences between the current scan protocol and the
stored scan protocol are identified and used to generate a recommended scan
protocol,” as required by claim 1. (Br. 11.) In particular, Appellants argue
Cohen-Solal does not identify differences based on comparing protocols “of
the same patient” as claimed, and “Gotman fails to teach either an
identification of differences, an indication of the differences on a display, or
a recommendation of a protocol based on the comparison on the display.”
(Br. 12, 15-16.)
We do not find Appellants’ arguments persuasive because Appellants
improperly attack Cohen-Solal and Gotman individually where the rejection
is based on a combination of Cohen-Solal and Gotman. In particular, the
Examiner relies on Gotman, not Cohen-Solal, as teaching comparing
protocols “of the same patient,” as claimed. (Ans. 18.) And the Examiner
relies on Cohen-Solal as teaching the claimed identifying differences based
on a comparison, generating a recommended scan protocol based on the
comparison, and indicating the differences and the recommended scan
protocol on a display. (Ans. 14—17.) “[0]ne cannot show non-obviousness
by attacking references individually where ... the rejections are based on
combinations of references.” In re Keller, 642 F.2d 413, 426 (CCPA 1981).
Additionally, we agree with the Examiner that Cohen-Solal identifies
deviations between a prior scan protocol executed on previously scanned
patients and a current protocol for a patient to be scanned, recommends a
candidate updated protocol based on the deviations, and displays the
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candidate updated protocol and the deviations’ information on a display.
(Ans. 15—17 (citing Cohen-Solal Tflf 38—39, 48—52, 102, 122, Figs. 4—5).)
Thus, Cohen-Solal teaches “identifying” and “indicating” steps based on
“comparing,” and Gotman teaches “comparing” can be performed for
protocols of the same patient. (Ans. 6, 10-11, 17—18, 23, 31.)
Appellants disagree with the Examiner’s combination of Gotman with
Cohen-Solal, arguing that the Examiner’s proposed modification of Cohen-
Solal to “compare a current scan protocol for a particular patient with a
stored scan protocol for the same patient” changes Cohen-Solal’s principle
of operation and renders Cohen-Solal unsatisfactory for its intended purpose.
(Br. 12—13.) Appellants argue Cohen-Solal’s principle of operation is “to
work with standardized protocols” and protocols “for different patients,” by
“comparing protocols for groups of patients and/or utilizing standardized
protocols.” (Br. 12—13 (citing Cohen-Solal Tflf 28, 37—38, Fig. 11).)
We do not agree. Rather, we agree with the Examiner that Cohen-
Solal’s principle of operation is not limited to protocols of different patients,
rather Cohen-Solal recommends a patient protocol by data mining protocol
clusters for previously scanned patients based on similarity of medical
concepts between the current patient and the previously scanned patients.
(Ans. 22, 26 (citing Cohen-Solal Tflf 12, 63, 70, 75, Figs 4—5).) Additionally,
Cohen-Solal’s protocol clusters could include past protocols of the current
patient, if the current patient was previously scanned. (Ans. 10, 26.) Thus,
we do not consider that modifying Cohen-Solal to compare and analyze
protocols of the same patient, as taught by Gotman, changes the principle of
operation or defeats the purpose of Cohen-Solal.
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For these reasons, we sustain the Examiner’s rejection of independent
claim 1 and the Examiner’s rejection of independent claims 9 and 17 on the
same basis as claim 1 (see Br. 18—19).
No separate arguments are presented for dependent claims 2—6, 8, 10—
14, 16, and 18—24. (See Br. 17—19). Accordingly, for the reasons stated
with respect to independent claims 1, 9, and 17, we sustain the rejection of
these dependent claims. See 37 C.F.R. § 41.37(c)(l)(iv).
Claim 25
With respect to dependent claim 25, Appellants contend Cohen-Solal
does not teach or suggest “setting the current scan protocol as the
recommended scan protocol if the scan to be performed is not a follow-up
scan.” (Br. 17—18 (citing Cohen-Solal Tflf 125, Fig. 13).) Appellants assert
Cohen-Solal is “silent with respect to determining if the scan is a follow-up
scan in the first place.” (Br. 17.)
We do not agree. Appellants’ arguments do not address the
Examiner’s findings regarding what paragraph 13 of Cohen-Solal would
have suggested to one of ordinary skill in the art. (Ans. 35—36 (citing
Cohen-Solal 113, Abstract).) Particularly, Cohen-Solal’s paragraph 13
teaches that a processor performs “at least one of generate an update
recommendation for a protocol corresponding to one of the previously
performed imaging protocols based on the obtained information or generate
one or more candidate new imaging protocols based on the obtained
information.” (See Cohen-Solal 113 (emphasis added).) Based on this
disclosure, we agree with the Examiner that Cohen-Solal teaches or suggests
setting a new current scan protocol as the recommended scan protocol if the
scan to be performed is not a follow-up scan “corresponding to one of the
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previously performed imaging protocols.” (See Cohen-Solal 113; Ans. 35—
36.)
In light of the above, we sustain the Examiner’s rejection of claim 25.
DECISION
We affirm the Examiner’s decision rejecting claims 1—6, 8—14, and
16-25 under 35 U.S.C. § 103(a).
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
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