Baxter International Inc. et al.Download PDFPatent Trials and Appeals BoardMay 29, 20202019001656 (P.T.A.B. May. 29, 2020) Copy Citation 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. 14/606,582 01/27/2015 Armin Kappeler 3712044-04829 3610 29200 7590 05/29/2020 K&L Gates LLP-Chicago Baxter P.O. Box 1135 Chicago, IL 60690-1135 EXAMINER YOUNG, PATRICIA I ART UNIT PAPER NUMBER 2488 NOTIFICATION DATE DELIVERY MODE 05/29/2020 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): USpatentmail@klgates.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ARMIN KAPPELER, AGGELOS K. KATSAGGELOS, GEORGIOS ANDREA BERTOS, KIRK ANDREW ASHLINE, and NEAL ANTHONY ZUPEC Appeal 2019-001656 Application 14/606,582 Technology Center 2400 Before BARBARA A. BENOIT, JON M. JURGOVAN, and PHILLIP A. BENNETT, Administrative Patent Judges. BENNETT, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1–38. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real parties in interest as Baxter International Inc., Baxter Healthcare S.A., and Northwestern University. Appeal Br. 4. Appeal 2019-001656 Application 14/606,582 2 CLAIMED SUBJECT MATTER The claims are directed to a visual inspection system for automated detection of particulate matter in flexible medical containers. Claim 1, reproduced below with the key limitation in italics, is illustrative of the claimed subject matter: 1. A method for automated detection and classification of objects in a receptacle containing a fluid utilizing a machine vision system, comprising: detecting, using a processor of the machine vision system, a first object in the fluid contained by the receptacle that appears in a plurality of sequential frames of digital image data of the receptacle; determining, using a processor of the machine vision system, at least one motion parameter corresponding to movement of the first object through the fluid in the plurality of sequential frames; and classifying, using a processor of the machine vision system, the first object into one of a predetermined plurality of object classes at least partially based on the at least one motion parameter of the first object. Appeal Br. 34 (Claims Appendix). REFERENCES2 The prior art relied upon by the Examiner is: Name Reference Date Taylor US 2005/0221269 A1 Oct. 6, 2005 Hing US 2012/0044342 A1 Feb. 23, 2012 Kim US 2012/0274816 A1 Nov. 1, 2012 2 References listed below are identified with reference to the first named inventor. Appeal 2019-001656 Application 14/606,582 3 Zhang US 2014/0002617 A1 Jan. 2, 2014 Bageshwar US 2015/0160338 A1 June 11, 2015 Voigt US 7,560,720 B2 July 14, 2009 REJECTIONS Claims 1–4, 7–11, 13–15, 17–21, 23–25, and 28–34 stand rejected under 35 U.S.C. § 102(a)(1) as being anticipated by Voigt. Final Act. 5–9. Claims 5 and 6 stand rejected under 35 U.S.C. § 103 as being unpatentable over Voigt and Kim. Final Act. 34. Claims 12, 16, and 22 stand rejected under 35 U.S.C. § 103 as being unpatentable over Voigt and Bageshwar. Final Act. 35–38. Claims 26 and 27 stand rejected under 35 U.S.C. § 103 as being unpatentable over Voigt and Hing. Final Act. 38–41. Claims 35–37 stand rejected under 35 U.S.C. § 103 as being unpatentable over Voigt and Taylor. Final Act. 41–42. Claim 38 stands rejected under 35 U.S.C. § 103 as being unpatentable over Voigt and Zhang. Final Act. 43–44. ISSUE Has the Examiner erred in finding Voigt discloses “determining, using a processor of the machine vision system, at least one motion parameter corresponding to movement of the first object through the fluid in the plurality of sequential frames,” as recited in independent claim 1? ANALYSIS The Examiner rejects claim 1 as anticipated by Voigt. Claim 1 generally relates to a process in which objects in a fluid-containing Appeal 2019-001656 Application 14/606,582 4 receptacle are detected and classified based on the movement of the object within the container. Appellant argues, inter alia, that Voigt does not anticipate claim 1 because it does not disclose the limitation “determining . . . [a] motion parameter corresponding to movement of the first object through the fluid in the plurality of sequential frames.” Appeal Br. 18–22 (emphasis omitted). With respect to this disputed limitation, the Examiner finds as follows: [Voigt discloses] determining, using a processor (Voigt: i.e. vision system 116, acquisition controller 102, particles inspection unit 104, constituted by a computer - fig. 7, col. 18, 1. 63-col. 19, l. 8) of the machine vision system (Voigt: i.e. inspection machine 10 – fig. 1, col. 11, ll. 56–64), at least one motion parameter corresponding to movement (Voigt: i.e. contrast within a small area of interest (AOI), is declared to be part of a particle or anomaly, except if it remains on (nearly) the same position in all images of the sequence (static anomalies, e.g. dirt on the container surface). Some contrast means that the difference between the brightest and darkest pixel lies above a certain threshold -Table Parameters, col. 13, l. 30 –col. 14, l. 33) of the first object (Voigt: i.e. set of objects, OBJ_SET [N], for each image an object set will be created. Each object in the set (static anomalies are not included) will be classified, whether it is considered as a particle or not – col. 14, ll. 12–15) through the fluid (Voigt: i.e. container 16 with fluid and material – abstract, col. 12, ll. 21–23) in the plurality of sequential frames (Voigt: i.e. sequence of images recorded by a camera 36, 38, 120, 122, 124, 126, 132, 134, 144, IM_PROTO: prototype image, used as reference for placing AOI's alignment of images within an image sequence, IM_SRC [N]: the recorded image sequence –set of grey value images (of a container)- figs. 1, 9a, 9b, 9c, 10, 11, 12, col. 12, ll. 25–32, col. 13, ll. 38–39, 44–45, col. 22, ll. 48–66, col. 23, ll.. 4–5, 14–15). Final Act. 7–8 (boldface omitted). Thus, the Examiner determines that the operation of Voigt’s vision system to find unwanted foreign objects in a Appeal 2019-001656 Application 14/606,582 5 receptacle, and specifically the identification of areas of interest by detecting contrast within a sequence of images taken of the receptacle, discloses the disputed limitation. The Examiner finds that Voigt discloses that when contrast is shown in an area of the container, it is determined to be a particle or an anomaly unless the area of contrast remains in the same location in all of the images of the sequence. If the location of the contrast area does not move and remains the same throughout the image sequence, the anomaly is considered a static anomaly indicative of dirt on the container surface. A moving contrast area, on the other hand, is a particle or anomaly within the container. Appellant argues the disclosure of Voigt “merely describes that contrast between pixels is used to identify particles or anomalies, and . . . does not teach determining a motion parameter of an object though the fluid, such as a particle, which is used to later classify the object based on the motion parameter.” Appeal Br. 19. Appellant further asserts “the only portion of the above disclosure of Voigt having any relationship to motion . . . is for static anomalies, such as dirt on the container surface, which are not classified.” Appellant further contends the detection static anomalies differs from the claim because the static anomalies are on the container surface. Because they do not move, and are not in the fluid, Appellant asserts that generated information corresponding to static anomalies cannot be considered a “motion parameter corresponding to movement of the first object through the fluid,” as recited in claim 1. We agree. Anticipation is a test of strict identity. Trintec Indus., Inc. v. Top- U.S.A. Corp., 295 F.3d 1292, 1296 (Fed. Cir. 2002). That is, to meet the Appeal 2019-001656 Application 14/606,582 6 strict identity test for anticipation, all elements must be disclosed in exactly the same way as they are arranged or combined in the claim. Therasense, Inc. v. Becton, Dickinson & Co., 593 F.3d 1325, 1332 (Fed. Cir. 2010). In this instance, the Examiner’s findings fail to meet this exacting standard. Voigt’s particle detection method “inspects the containers 16 for determining if any unwanted objects or foreign matter is present inside the containers.” Voigt col. 11, ll. 56–60. Containers are loaded onto a track and “are rotated so as to re-suspend the fluid and/or material found in the fluid in the container.” Voigt col. 12, ll. 22–24. Cameras are positioned to inspect each container from different angles and take digital images of the container. Voight col. 13, ll. 1–26. The digital images are analyzed for contrast—the presence of which in an area is flagged as an area of interest indicative of some kind of particle or anomaly either within the fluid or on the surface of the container. Voigt col. 13, ll. 30–34. If the particle or anomaly remains in the same position in all images taken by the camera, it is assumed to be a stationary particle or anomaly, such as dirt on the surface of the container. Id. Voigt describes a group of data objects and parameters which are used to evaluate and process the images from the cameras. Voigt col. 13, l. 37–col. 14, l. 34. The Examiner points to three of these data objects as corresponding to the recited “motion parameter corresponding to movement of the first object through the fluid”—OBJ_SET[N], IM_SRC[N], and IM_PROTO. The Examiner’s rationale appears to be that because stationary objects are identified as static anomalies and excluded, the other detected objects are in movement, and tracking information about the other, moving objects necessarily corresponds to “motion parameter corresponding to movement Appeal 2019-001656 Application 14/606,582 7 of the first object.” Appellant’s Specification demonstrates that “motion parameters” reflect how the object moves through the fluid, and not the mere fact that there is or is not movement. Voigt discloses detecting the absence of motion of objects. In Voigt, the lack of motion for an object results in its exclusion from any further analysis. Actual motion of an object is not considered or otherwise analyzed in Voigt. The parameters identified by the Examiner merely reflect the existence of objects in the fluid—not the specific movement of the objects through the fluid. Accordingly, as the disclosure of Voigt is not exactly the same as the claimed invention, it fails to meet the exacting standard required for rejections under § 102, and we do not sustain the anticipation rejection of claim 1. For the same reason, we also do not sustain the rejection of independent claim 28, which recites a commensurate limitation. Claim 38 Claim 38 is independent. The Examiner rejects claim 38 as unpatentable over Voigt and Zhang. Claim 38 recites the limitation of “a motion analysis module to determine at least one motion parameter corresponding to movement of the first object through the fluid in the plurality of sequential frames of digital image data.” Appeal Br. 40 (Claims Appendix). In finding this limitation taught in the prior art, the Examiner makes the same findings with respect to Voigt as were made in connection with claim 1. For the same reasons, these findings are not supported by the evidence. The Examiner does not make any findings with respect to Zhang that would cure the deficiency in Voigt. We do not sustain the rejection of claim 38 under § 103. Appeal 2019-001656 Application 14/606,582 8 Remaining Claims The remaining dependent claims 2–27 and 29–37 depend from claims 1 and 28, respectively. Most of these claims are rejected as anticipated by Voigt, and the reasoning above applies equally to those rejections. Other dependent claims are rejected under § 103 as obvious over Voigt and additional applied references. However, the Examiner makes no finding with respect to the additional applied references which would cure the deficiencies identified in Voigt above. We do not sustain the rejections of the dependent claims for the same reasons discussed above. CONCLUSION The Examiner’s rejections are reversed. DECISION SUMMARY Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–4, 7–11, 13–15, 17– 21, 23–25, 28–34 102 Voigt 1–4, 7–11, 13–15, 17– 21, 23–25, 28–34 5–6 103 Voigt, Kim 5–6 12, 16, 22 103 Voigt, Bageshwar 12, 16, 22 26, 27 103 Voigt, Hing 26, 27 35–37 103 Voigt, Taylor 35–37 38 103 Voigt, Zhang 38 Overall Outcome 1–38 REVERSED Copy with citationCopy as parenthetical citation