KONINKLIJKE PHILIPS N.V. et al.

Patent Trials and Appeals BoardDec 24, 2021

2021002176 (P.T.A.B. Dec. 24, 2021)

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. 15/104,432 06/14/2016 Huijun CHEN 2013P01861WOUS 9747 24737 7590 12/24/2021 PHILIPS INTELLECTUAL PROPERTY & STANDARDS 1600 Summer Street 5th Floor Stamford, CT 06905 EXAMINER PENG, BO JOSEPH ART UNIT PAPER NUMBER 3793 NOTIFICATION DATE DELIVERY MODE 12/24/2021 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): katelyn.mulroy@philips.com marianne.fox@philips.com patti.demichele@Philips.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte HUIJUN CHEN, JINNAN WANG, and CHUN YUAN ____________ Appeal 2021-002176 Application 15/104,432 Technology Center 3700 ____________ Before STEFAN STAICOVICI, BENJAMIN D. M. WOOD, and MICHAEL J. FITZPATRICK, Administrative Patent Judges. STAICOVICI, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE. Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s decision in the Non-Final Office Action (dated Mar. 11, 2020, hereinafter “Non-Final Act.”) rejecting claims 1, 3–6, and 8–13.2 We have jurisdiction over this appeal under 35 U.S.C. § 6(b). 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Tsinghua University, Koninklijke Philips N.V., and University of Washington are identified as the real parties in interest in Appellant’s Appeal Brief (filed Aug. 7, 2020, hereinafter “Appeal Br.”). Appeal Br. 3. 2 Claims 2, 7, and 14–20 are canceled. Appeal Br. 26–28. Appeal 2021-002176 Application 15/104,432 2 SUMMARY OF DECISION We REVERSE. INVENTION Appellant’s invention is directed to an imaging system that “detect[s] subject motion through an optical motion sensing system.” Spec. 1, ll. 1–2. Claim 1, the sole independent claim, is representative of the claimed invention and reads as follows: 1. An imaging system, comprising: a subject support configured to support a subject in an examination region; an optical source configured to project an optical pattern on a portion of the subject in the examination region; a detector configured to detect first and second reflected optical patterns reflected off the portion of the subject in response to the projected optical pattern and generate first and second signals based, respectively, on the first and second reflected optical patterns; at least one processor configured to detect a difference between the first and the second signals and generate a motion data based on the difference, wherein the projected optical pattern is created to have the motion data generated at a plurality of points along the portion of the subject; and a console configured to control at least one of data acquisition and reconstruction based on the motion data. Appeal Br. 26 (Claims App.). Appeal 2021-002176 Application 15/104,432 3 REJECTIONS I. The Examiner rejects claims 1, 3–6, and 8–12 under 35 U.S.C. § 102(a)(1) as being anticipated by Hassan.3 II. The Examiner rejects claims 1, 3–6, and 8–12 under 35 U.S.C. § 103 as being unpatentable over Hassan. III. The Examiner rejects claim 13 under 35 U.S.C. § 103 as being unpatentable over Hassan and Sachs.4 ANALYSIS Rejection I Independent claim 1 recites, inter alia, “an optical source configured to project an optical pattern on a portion of the subject” and “a detector configured to detect first and second reflected optical patterns reflected off the portion of the subject in response to the projected optical pattern.” See Appeal Br. 26 (Claims App.) (emphasis added). The Examiner determines that Hassan’s infrared illuminator 602 with LEDs 604 is the claimed “optical source.” Non-Final Act. 4 (citing Hassan, paras. 47, 55, Figs. 1, 6b). According to the Examiner, “it would be inherent that this IR with LED in circular spiral patterns is the optical source that projects an optical pattern.” Id (emphasis added). The Examiner further determines that Hassan’s “CCD camera is the [claimed] detector as obvious and as inherent,” which “detects first . . . and second reflected optical 3 Mostafavi, US 2004/0116804 Al, published June 17, 2004. As both the Examiner and Appellant refer to this reference as “Hassan,” for convenience, we shall also refer to it as “Hassan.” See Non-Final Act. 4; Appeal Br. 5. 4 Sachs et al., US 2013/0310655 Al, published Nov. 21, 2013. Appeal 2021-002176 Application 15/104,432 4 patterns . . . reflected off the portion of the subject . . . in response to the projected optical pattern.” Id. (citing Hassan, paras. 47, 55, 68, 69, 71–73). Appellant argues that Hassan fails to disclose a detector as called for by independent claim 1. Appeal Br. 7. According to Appellant, “there is no mention [in Hassan] that the camera 108 detects first and second reflected optical patterns in response to the projected optical pattern.” Id. at 8 (citing Hassan, para. 55). The Examiner relies on paragraph 44 of Appellant’s published Specification to construe the term “pattern” “as any geometrical shape (i.e. rectangular bars, circular, elliptical, irregular shape, etc.), any pulsing optical signals, any graphical patterns, and any other patterns that can be contemplated.” Examiner’s Answer (dated Dec. 11, 2020, hereinafter “Ans.”) 11; see also Spec. 6, ll. 25–33 (filed June 14, 2016). Thus, the Examiner determines that “because the ‘LED elements 604 are organized as one or more circular or spiral patterns on the IR illuminator 602 surrounding the camera lens 606,’” Hassan’s “projected pattern is the illumination source that is organized as one or more circular or spiral patterns.” Id. at 12 (citing Hassan, paras. 49, 55). The Examiner further determines that because “Appellant has never defined or limit[ed] the scope of a first reflected optical patterns, or a second reflected optical patterns, in response to the projected optical patterns,” the limitation “first and second reflected optical patterns” is construed to mean “any two motion states that reflect[] light.” Ans. 13 (citing Spec., paras. 36, 47) (emphasis omitted). The Examiner explains that “because each marker [114 of Hassan] will always have an initial position, and a subsequent position during breathing or respiratory movement,” Hassan’s optical Appeal 2021-002176 Application 15/104,432 5 reflective markers 114 are “detected in more than one time instances.” Id. Thus, according to the Examiner, “Hassan, discloses a reflective pattern” because “at least two markers make a line pattern if pattern is a spatial/geometrical pattern” or “each marker can provide a temporal changing pattern, i.e. marker moving as result of breathing.” Id. “[C]laims under examination before the PTO are given their broadest reasonable interpretation consistent with the specification.” In re Abbott Diabetes Care Inc., 696 F.3d 1142, 1148 (Fed. Cir. 2012). In this case, an ordinary and customary meaning of the term “pattern” is “a repeated form or design.”5 Such a construction is consistent with Appellant’s Specification, which describes a “pattern” as a spatial (geometric) repeating design or form, such as, “a plurality of grayscale . . . or colored bars” or other shapes such as “circular, elliptical, triangular, hexagonal, irregular, pictures, etc.” Spec. 6, ll. 26–31 (emphasis added), Fig. 3. The Specification further describes a “pattern” as a time repeating design or form, in particular, an optical signal pulsed at a predetermined frequency. Spec. 6, ll. 32–33. As such, we construe the phrase “optical pattern,” as understood by a skilled artisan in light of Appellant’s Specification, to mean a spatial or time repeating optical design or form. Hassan discloses a system for monitoring the motion of a patient (subject) 106 including, inter alia, illuminator 602 with LED elements 604 arranged in a circular or spiral pattern for generating and projecting infrared light at patient 106 and camera 108 for detecting and capturing infrared light 5 The Merriam-Webster Dictionary, https://www.merriam- webster.com/dictionary/pattern. Appeal 2021-002176 Application 15/104,432 6 reflected from landmarks located on the body of patient 106. See Hassan, paras. 46, 47, 55, Figs. 1, 6a, 6b. “Inherent anticipation requires that the missing descriptive material is ‘necessarily present,’ not merely probably or possibly present, in the prior art.” Trintec Indus., Inc. v. Top-U.S.A. Corp., 295 F.3d 1292, 1295 (Fed. Cir. 2002) (quoting In re Robertson, 169 F.3d 743, 745 (Fed. Cir. 1999)). In this case, although we appreciate that Hassan discloses that LED elements 604 of illuminator 602 are arranged in a circular or spiral pattern, this does not mean that the infrared light projected at patient 106 is necessarily in a circular or a spiral pattern, as the Examiner asserts. See Non-Final Act. 4; Ans. 12. In particular, the Examiner does not sufficiently explain how LED elements 604 of Hassan’s illuminator 602 necessarily project an “optical pattern,” i.e., a spatial or a time repeating optical design or form, at patient 106. The Examiner’s finding that LED elements 604 of Hassan’s illuminator 602 project an “optical pattern” is mere speculation and conjecture based on an unfounded assumption that the circular or spiral pattern arrangement of LED elements 604 of Hassan’s illuminator 602 would necessarily project a circular or spiral pattern, i.e., an “optical pattern,” on patient 106. At most, LED elements 604 of Hassan’s illuminator 602 project infrared light at patient 106, but not necessarily in the form of an “optical pattern,” as called for by independent claim 1. See Hassan, para. 47. Hence, as LED elements 604 of Hassan’s illuminator 602 do not necessarily project an “optical pattern,” i.e., a spatial or a time repeating optical signal, at patient 106, it follows that the infrared light reflected from the landmarks located on the body of patient 106 does not constitute Appeal 2021-002176 Application 15/104,432 7 “reflected optical patterns . . . in response to the projected optical pattern,” as called for by independent claim 1. We agree with Appellant that even though camera 108 captures and detects the infrared light reflected from the landmarks located on patient 106, this does not mean that the reflected infrared light constitutes a “reflected optical pattern . . . in response to the projected optical pattern,” as per independent claim 1. Appeal Br. 8. Finally, we appreciate the Examiner’s position that “Hassan, discloses a reflective pattern” because “at least two markers [114] make a line pattern if pattern is a spatial/geometrical pattern” or “each marker [114] can provide a temporal changing pattern, i.e. marker moving as result of breathing.” Ans. 12. However, such reflective patterns formed by markers 114 do not constitute “reflected optical patterns . . . in response to the projected optical pattern”; rather, Hassan’s reflected spatial and time patterns are in response to the location of markers 114 and breathing of patient 106, respectively. In conclusion, for the foregoing reasons, we do not sustain the rejection of claims 1, 3–6, and 8–12 under 35 U.S.C. 102(a)(1) as anticipated by Hassan. Rejection II The Examiner determines that even if Hassan’s infrared illuminator 602 with LEDs 604, i.e., “optical source,” does not inherently “project an optical pattern,” as called for by independent claim 1, nonetheless, it would have been obvious for a skilled artisan to modify Hassan’s infrared illuminator 602 with LEDs 604 to project an “optical pattern” on patient 106. Non-Final Act. 4 (citing Hassan, paras. 47, 55, 60, 61, Figs. 1, 6b). The Examiner reasons that such a modification would result in “reflection Appeal 2021-002176 Application 15/104,432 8 from one or more landmarks on the patient’s body in order to provide additional light detection pattern for measuring motion of the patient.” Id. Although Hassan, as modified, projects infrared light at patient 106 in the form of an “optical pattern,” the Examiner’s rejection does not adequately explain how the infrared light reflected from landmarks located on the body of patient 106 constitutes “reflected optical patterns . . . in response to the projected optical pattern,” as per independent claim 1. See Appeal Br. 26 (Claims App.). In particular, we appreciate the Examiner’s position that “Hassan, discloses a reflective pattern” because “at least two markers [114] make a line pattern if pattern is a spatial/geometrical pattern” or “each marker [114] can provide a temporal changing pattern, i.e. marker moving as result of breathing.” Ans. 12. However, such reflective patterns formed by markers 114 do not constitute “reflected optical patterns . . . in response to the projected optical pattern”; rather, the reflected spatial and time patterns of Hassan, as modified, are in response to the location of markers 114 and breathing of patient 106, respectively. Finally, we note that the reason proffered by the Examiner to modify the teachings of Hassan, namely, “to provide additional light detection pattern for measuring motion of the patient,” appears to already be adequately performed by LED elements 604 of Hassan’s illuminator 602. The Examiner has not provided any findings that Hassan recognized a problem with light detection for measuring motion of a patient. Without a persuasive articulated rationale based on rational underpinnings for modifying the reference as proposed, the Examiner’s rejection appears to be the result of hindsight analysis. See In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006). In particular, the Examiner fails to adequately explain why Appeal 2021-002176 Application 15/104,432 9 Hassan’s light detection pattern is insufficient such that a skilled artisan would modify Hassan to provide “additional light detection pattern” to measure the motion of the patient. Accordingly, for the foregoing reasons, we also do not sustain the rejection of claims 1, 3–6, and 8–12 under 35 U.S.C. § 103 as unpatentable over Hassan. Rejection III The Examiner’s use of the Sachs disclosure does not remedy the deficiency of Hassan discussed supra. See Non-Final Act. 8–9. Therefore, for the same reasons discussed above, we also do not sustain the rejection under 35 U.S.C. § 103 of claim 13 as unpatentable over Hassan and Sachs. CONCLUSION Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 3–6, 8–12 102(a)(1) Hassan 1, 3–6, 8–12 1, 3–6, 8–12 103 Hassan 1, 3–6, 8–12 13 103 Hassan, Sachs 13 Overall outcome 1, 3–6, 8–13 REVERSED