Solentim Ltd

Patent Trials and Appeals BoardSep 3, 2021

2020003940 (P.T.A.B. Sep. 3, 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. 15/593,143 05/11/2017 Aaron Figg 18573/002001 1601 153320 7590 09/03/2021 FBFK 3200 Southwest Freeway, Suite 3200 Houston, TX 77027 EXAMINER HUANG, FRANK F ART UNIT PAPER NUMBER 2485 NOTIFICATION DATE DELIVERY MODE 09/03/2021 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): docketing@fbfk.law jhathaway@fbfk.law rlord@fbfk.law PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte AARON FIGG and YONGGANG JIANG ____________ Appeal 2020-003940 Application 15/593,143 Technology Center 2400 ____________ Before KARL D. EASTHOM, KARA L. SZPONDOWSKI, and SCOTT B. HOWARD, Administrative Patent Judges. EASTHOM, Administrative Patent Judge. DECISION ON APPEAL I. STATEMENT OF THE CASE Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s decision finally rejecting claims 1–4, 6, 7, 11, and 16–21.2 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Solentim Ltd. Appeal Br. 4. 2 Appellant elected claims 1–4, 6, 7, 11, and 16–21 in response to the Examiner’s restriction. Final Act. 6. Although claims 5, 8–10, 12–15, and 22–24 are still pending, those claims will be withdrawn if any of the elected claims are found to be patentable. Id. at 3. Appeal 2020-003940 Application 15/593,143 2 II. DISCLOSED AND CLAIMED SUBJECT MATTER The Specification discloses a technique in “the field of sample imaging and deblurring of images.” Spec. ¶ 2. Specifically, the technique “improve[s] the speed at which such imaging processes can be performed while still making it possible to perform analysis on the resulting images.” Id. ¶ 3. The Specification explains that “a sample holder . . . hold[s] a sample to be imaged” and “an image capture device having a field of view . . . capture[s] an image of the field of view.” Spec. ¶ 4. Then, “a controller . . . control[s an] actuator to cause relative movement between the sample holder and the image capture device at a given speed and at a given direction during an exposure time of the image capture device such that.” Id. Finally, “a processor . . . perform[s] a deblur algorithm to deblur the image using the given speed and the given direction.” Id. Independent claim 1 follows: 1. An apparatus, comprising: a sample holder to hold a sample to be imaged; an image capture device having a field of view, to capture an image of the field of view; an actuator; a controller to control the actuator to cause relative movement between the sample holder and the image capture device at a given speed and at a given direction during an exposure time of the image capture device such that, in use, the sample moves across at least a portion of the field of view during the exposure time; and a processor to perform a deblur algorithm to deblur the image using the given speed and the given direction. Appeal 2020-003940 Application 15/593,143 3 III. REFERENCES The prior art relied upon by the Examiner as evidence in rejecting the claims on appeal follows: Name Reference Date Ben-Ezra et al. (“Ben-Ezra”) US 2005/0047672 A1 Mar. 3, 2005 Wakui EP 3,457,192 A1 Mar. 20, 2019 (filed Mar. 3, 2017) IV. REJECTION Claims 1–4, 6, 7, 11, and 16–21 stand rejected under 35 U.S.C. § 103 as unpatentable over Wakui and Ben-Ezra. Final Act. 10. V. OPINION The Examiner rejects claims 1–4, 6, 7, 11, and 16–21 as obvious over the combined teachings as set forth above. See Final Act. 10–11. Appellant treats the claims as a group and relies on arguments it presents for claim 1. See Appeal Br. 16. Therefore, claim 1 represents the claims on appeal. See 37 C.F.R. § 41.37(c)(iv) (2020). Claim 1 recites “a controller to control the actuator to cause relative movement between the sample holder and the image capture device at a given speed and at a given direction during an exposure time of the image capture device” and “a processor to perform a deblur algorithm to deblur the image using the given speed and the given direction.” The Examiner relies on Wakui’s scanning controller and direction of motion to teach causing relative movement at a given speed and at a given direction as claimed. Final Act. 10 (citing Wakui Figs. 1, 5). Specifically, the Examiner finds that Wakui’s performance of high-speed image capture Appeal 2020-003940 Application 15/593,143 4 and correcting a shake caused by movement teaches shake correction based on speed and direction of the movement. Ans. 7–8 (citing Wakui, Abstract, ¶ 16). The Examiner relies on Wakui’s shake correction to teach deblurring an image using the given speed and the given direction as claimed. Final Act. 11 (citing Wakui Fig. 8, ¶¶ 7, 37, 40–45, 56–59). Specifically, the Examiner finds that Wakui’s deblur is “according to movement speed and direction of the camera/object.” Ans. 8 (citing Wakui ¶ 58). Wakui supports the Examiner’s findings. For example, at cited paragraph 16, Wakui discloses that “the shake correction unit includes the correction filter according to a movement speed of at least one of the stage or the imaging optical system in the main scanning direction.” Wakui ¶ 16. Appellant argues that the references do not teach “that the given speed and the given direction are known,” or “to deblur the image using the given speed and the given direction.” Appeal Br. 10. Specifically, Appellant argues that “Wakui does not disclose deblurring using the given speed and the given direction, as claimed.” Id. at 13. This argument does not undermine the Examiner’s showing. Appellant fails to explain clearly why claim 1 precludes Wakui’s “shake correction” that takes places “according to a movement speed” and “in a main scanning direction.” Appellant contends that Wakui’s “shake correction does not necessitate knowledge of the speed or direction of movement, as claimed.” Reply Br. 4. Specifically, Appellant argues that “the fact that shake caused by movement is corrected does not necessitate that particular information is used to correct that shake.” Id. at 4–5. Contrary to this argument, Wakui describes, in an example for the configuration of “control device 20 that . . . performs shake correction,” that Appeal 2020-003940 Application 15/593,143 5 “the observation region is scanned in a two-dimensional shape within the culture vessel 60 by repeatedly performing forward and backward movement in the X direction and movement in the Y direction.” Wakui ¶¶ 39, 44. In this case, “it is preferable that the movement speed of the observation region in the range of the culture vessel 50 is constant” and “the stage 51 is required to be accelerated until reaching a constant speed at the time of the start of the movement of the stage 51 in the X direction.” Id. ¶ 45. Appellant, for the first time in the Reply Brief, presents a website in an attempt to support its argument that “the lack of a need for direction or speed not being needed for ‘shake reduction.’” Reply Br. 6. However, Appellant’s presentation of this evidence for the first time in the Reply Brief is improper. See 37 CFR 41.41(b) (“A reply brief shall not include any new or non-admitted amendment, or any new or non-admitted affidavit or other [e]vidence.”). Regardless of Appellant’s improper new evidence, insofar as Appellant argues that Wakui’s shake reduction does not need movement direction or speed information, Appellant does not address the Examiner’s findings about what Wakui teaches. And nothing in claim 1, which recites “perform[ing] a deblur algorithm to deblur the image using the given speed and the given direction” for the “relative movement between the sample holder and the image capture device,” precludes Wakui’s shake correction for an image using a constant speed and movement direction (i.e., from repeatedly moving the culture vessel forward and backward at a constant speed). Appellant further argues that “Ben-Ezra teaches away from combining Wakui and Ben-Ezra.” Appeal Br. 14; see also Reply Br. 12. Specifically, Appeal 2020-003940 Application 15/593,143 6 Appellant argues that Ben-Ezra’s “technique is not suitable for application to an entire image.” Id. (citing Ben-Ezra ¶ 50). A reference’s “mere disclosure of more than one alternative does not constitute a teaching away from any of these alternatives because such disclosure does not criticize, discredit or otherwise discourage the solution claimed.” In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). Appellant’s assertion disregards the Examiner’s finding that Ben-Ezra teaches “deblurring of motion blur caused by camera shake.” Final Act. 11 (citing Ben-Ezra ¶¶ 46, 48); Ans. 9 (citing Ben-Ezra ¶¶ 46–48). Ben-Ezra discloses “a motion blur PFS” for “deblurring of motion blur caused by camera shake.” Ben-Ezra ¶ 46. As cited by Appellant, Ben-Ezra discloses that this deblurring operation “applied globally to an entire image may not be satisfactory for deblurring images in which blur is caused by moving objects in a scene.” Id. ¶ 50. This example merely provides that it is possible that applying the deblurring operation globally may not be satisfactory when an image includes multiple objects. However, claim 1 does not require multiple objects in an image. In addition, in the event an image includes multiple objects, Ben-Ezra solves this possible problem “by first separating or decoupling an image portion corresponding to the moving object from an image portion corresponding to the remainder of the scene” and deblurring the image portions “separately as necessary or desired” and “then superimpos[ing] to obtain a deblurred image of the entire scene.” Id. ¶ 51. Therefore, Ben-Ezra’s consideration of the possibility that the deblurring operation as applied globally may not be satisfactory, and Ben- Ezra’s solution to separate the image portions and then apply the deblurring Appeal 2020-003940 Application 15/593,143 7 operation, does not “criticize, discredit, or otherwise discourage” using the deblurring operation for motion blur. Furthermore, the claimed “perform[ing] a deblur algorithm to deblur the image” does not preclude Ben-Ezra’s separating image portions and deblurring the image portions separately to then obtain a deblurred image. In summary, Appellant does not persuasively explain how the Examiner erred in finding that the combination of Wakui and Ben-Ezra teaches or suggests “a controller to control the actuator to cause relative movement between the sample holder and the image capture device at a given speed and at a given direction during an exposure time of the image capture device” and “a processor to perform a deblur algorithm to deblur the image using the given speed and the given direction,” as recited in claim 1. Based on the foregoing discussion, Appellant does not show error in the Examiner’s findings and determination of the obviousness of claim 1. As noted above, Appellant does not challenge claims 2–4, 6, 7, 11, and 16– 21 independently from claim 1. Accordingly, claims 2–4, 6, 7, 11, and 16– 21 fall with claim 1.3 3 In the event of further prosecution, the Examiner may consider the propriety of a new rejection under 35 U.S.C. § 101 for claim 24, and whether the claim recitation (emphasis added) is directed to “software per se”: “A program for causing a computer to perform the method of claim 20.” The Examiner may consider whether this “program” claim is not directed to any of the statutory categories (processes, machines, manufactures and compositions of matter) as it is a “[p]roduct[] that do[es] not have a physical or tangible form, such as information (often referred to as ‘data per se’) or a computer program per se (often referred to as ‘software per se’) when claimed as a product without any structural recitations.” See Manual of Patent Examining Procedure (MPEP) § 2106.03(I). Appeal 2020-003940 Application 15/593,143 8 VI. CONCLUSION We affirm the Examiner’s decision rejecting claims 1–4, 6, 7, 11, and 16–21 under § 103. In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–4, 6, 7, 11, 16–21 103 Wakui, Ben-Ezra 1–4, 6, 7, 11, 16–21 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED