Ex Parte Cathier

Patent Trial and Appeal Board

Apr 11, 2013

10915047 (P.T.A.B. Apr. 11, 2013)

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.
10/915,047 08/10/2004 Pascal Cathier 2003P12257 US01 7326
7590 04/12/2013
Siemens Corporation
Intellectual Property Department
170 Wood Avenue South
Iselin, NJ 08830
EXAMINER
WANG, CLAIRE X
ART UNIT PAPER NUMBER
2666
MAIL DATE DELIVERY MODE
04/12/2013 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 PASCAL CATHIER1
____________

Appeal 2010-009045
Application 10/915,047
Technology Center 2600
____________

Before KEVIN F. TURNER, RAMA G. ELLURU, and JAMES B. ARPIN,
Administrative Patent Judges.

ARPIN, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1-5, 7-14, and 16. Claims 6 and 15 are cancelled. Br. 1.2
We have jurisdiction under 35 U.S.C. § 6(b). We affirm.

1 Siemens Medical Solutions USA, Inc. is the real party in interest.
2 Throughout this opinion, we refer to (1) the Appeal Brief (Br.) filed
September 8, 2008, as supplemented by the Response to Notification of
Appeal 2010-009045
Application 10/915,047

2

INVENTION
Appellant’s invention relates to methods and program storage devices
for identifying spherical objects in digital images. See generally Abstract.
Claim 1 is illustrative and is reproduced below with disputed limitations
emphasized:
1. A method of identifying spherical objects in a digital image,
wherein said image comprises a plurality of 3D surface points, said
method comprising the steps of:
computing, at each point in a domain of the image, a gradient of
the image;
computing an elementary structure tensor at each point in the
domain of the image;
determining a structure tensor for each point in the domain of
the image;
finding the eigenvalues of the structure tensors; and
analyzing said eigenvalues to determine the sphericity of a
structure in said image, wherein the eigenvalues are analyzed by
dividing a smallest eigenvalue by a largest eigenvalue to calculate an
isotropy measure, wherein the isotropy measure for a spherical object
is equal to unity.

The Examiner relies on the following as evidence of unpatentability:
H. Haußecker, A Tensor Approach for Local Structure Analysis in Multi-
Dimensional Images, 3D IMAGE ANALYSIS AND SYNTHESIS, 171-78 (1996)
(hereinafter “Haußecker”)
Bourland
Gallagher
Sivaramakrishna
US 6,201,988 B1
US 6,275,605 B1
US 2004/0086161 A1
Mar. 13, 2001
Aug. 14, 2001
May 6, 2004

Non-Compliant Appeal Brief filed November 13, 2009; and (2) the
Examiner’s Answer (Ans.) mailed March 15, 2010.
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THE REJECTIONS
1. The Examiner provisionally rejected claims 1-5, 7-14, and 163 under
the judicially-created doctrine of obviousness-type, double patenting
as unpatentable over U.S. Patent Application No. 10/945,022 (the
’022 Appl’n). Ans. 4-8.
2. The Examiner rejected claims 1, 3, 7, 10, 12, and 16 under 35 U.S.C.
§ 103(a) as unpatentable over Haußecker and Sivaramakrishna. Id. at
8-11.
3. The Examiner rejected claims 2, 4, 11, and 13 under 35 U.S.C. §
103(a) as unpatentable over Haußecker, Sivaramakrishna, and
Gallagher. Id. at 12-13.
4. The Examiner rejected claims 5 and 14 under 35 U.S.C. § 103(a) as
unpatentable over Haußecker, Sivaramakrishna, and Bourland. Id. at
14.
5. The Examiner rejected claims 8 and 9 under 35 U.S.C. § 103(a) as
unpatentable over Haußecker, Sivaramakrishna, Gallagher, and
Bourland. Id. at 14-17.

3 The Examiner incorrectly indicates that claims 6 and 15 also stand rejected
under the judicially-created doctrine of obviousness-type, double patenting.
Ans. 5. Nevertheless, as noted above, these claims are cancelled. We treat
the inclusion of these claims in this rejection, as well as the inclusion of
claim 15 in the subsequent obviousness rejection (Ans. 9), as mere
typographical errors.
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Application 10/915,047

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OBVIOUSNESS-TYPE, DOUBLE PATENTING REJECTION
The Examiner provisionally rejected claims 1-5, 7-14, and 16 on the
ground of the judicially-created doctrine of obviousness-type, double
patenting in view of Appellant’s ’022 Appl’n. Ans. 4-8. Appellant does not
raise an argument against the double patenting rejection in the Appeal Brief.
Nevertheless, this provisional rejection is not yet ripe for review by the
Patent Trial and Appeal Board. Therefore, we do not reach here the
Examiner’s provisional obviousness-type, double patenting rejection.4

OBVIOUSNESS REJECTION OVER HAUßECKER AND
SIVARAMAKRISHNA
Regarding representative claim 1, the Examiner finds that Haußecker
teaches all of the limitations of Appellant’s claim 1, except that Haußecker
does not teach the disputed limitations identified above. Ans. 9-10.
Nevertheless, the Examiner finds that Sivaramakrishna teaches these missing
limitations and that a person of ordinary skill in the relevant art at the time of
the invention would have had reason to combine the teachings of these
references to achieve Appellant’s recited invention. Id. at 10.
Appellant argues that Sivaramakrishna does not teach all of the
limitations of claim 1, in particular, using eigenvalue ratios to determine
sphericity or using a matrix representation of partial derivatives to determine
structure tensors. Br. 6-8. Further, Appellant argues that the Examiner has

4 In addition, we note that the ’022 Appl’n issued as Patent No. US
7,355,605 B2 on April 8, 2008, and that at least claim 1 of the ’022 Appl’n
was amended prior to issuance. Consequently, to the extent that a double
patenting rejection remains proper, the rejection should no longer be
provisional.
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not shown a reason to combine Haußecker and Sivaramakrishna in the
manner proposed. Id. at 7-8. For these reasons, Appellant also argues that
the rejections of claims 3, 7, 10, 12, and 16 should be withdrawn. Id. at 8.
ISSUES
(1) Under § 103(a), has the Examiner erred in rejecting claim 1 by
finding that Haußecker and Sivaramakrishna, collectively, teach or suggest
“analyzing said eigenvalues to determine the sphericity of a structure in said
image, wherein the eigenvalues are analyzed by dividing a smallest
eigenvalue by a largest eigenvalue to calculate an isotropy measure, wherein
the isotropy measure for a spherical object is equal to unity” (emphasis
added), as recited in claim 1?
(2) Is the Examiner’s reason to combine the teachings of these
references supported by articulated reasoning with some rational
underpinning to justify the Examiner’s obviousness conclusion?
ANALYSIS
Based on the record before us, we find no error in the Examiner’s
rejection of representative claim 1 which calls for, in pertinent part,
“analyzing said eigenvalues to determine the sphericity of a structure in said
image, wherein the eigenvalues are analyzed by dividing a smallest
eigenvalue by a largest eigenvalue to calculate an isotropy measure, wherein
the isotropy measure for a spherical object is equal to unity.” As noted
above, Appellant argues (1) that Sivaramakrishna does not teach using
eigenvalue ratios to determine sphericity (Sivaramakrishna, ¶ [0051]), (2)
that Sivaramakrishna does not teach using a matrix representation of partial
derivatives to determine structure tensor (id.), and (3) that the Examiner has
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not shown a reason to combine the teachings of Haußecker and
Sivaramakrishna. Br. 6-8. We disagree.
First, Appellant argues that Sivaramakrishna describes two classes
comprising the values of three features. Br. 6. A covariance matrix is
calculated for each class, and each class is modeled as a multivariate
Gaussian distribution with a probability density (pd) function. Id. The pd
functions are calculated for each class, and a log likelihood ratio (llr) value
for each detection is found. Id.; see Sivaramakrishna, ¶ [0013]. These llr
values then are compared to a predetermined threshold in order to classify a
nodule as a “true” nodule or as a “false” nodule. Id.
Sivaramakrishna describes that “[t]he features used in the preferred
embodiment are (1) the ratio of minimum and maximum eigenvalues of the
co-variance matrix of the pixel coordinates making up each nodule
candidate; (2) the maximum eigenvalue of the co-variance matrix; and, (3)
average gray value of the pixels in the nodule candidate.” Sivaramakrishna,
¶ [0051] (emphasis added). Further, Sivaramakrishna describes that “[t]he
eigenvalue features[, i.e., the above-listed features (1) and (2),] are used to
distinguish long thin structures (which are more indicative of bronchial false
positives) from true nodules (which are more likely to be round).” Id.
(emphasis added). Appellant argues that this use of eigenvalue features is
part of a Bayesian classifier and does not disclose the use of eigenvalue
ratios, as described in claims 1, 8, and 10. Br. 6-7.
The Examiner responds that Sivaramakrishna uses a ratio of
maximum to minimum eigenvalues to identify false positives in the
detection of lung nodules and that Sivaramakrishna “does not preclude
determining sphericity of observed objects.” Ans. 18. Further, we note that
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Sivaramakrishna clearly teaches distinguishing between long thin structures
and “round” structures. Sivaramakrishna, ¶ [0051]. Thus, we are persuaded
that the Examiner demonstrates that Sivaramakrishna teaches or suggests the
use of eigenvalue ratios to determine sphericity, as described in claim 1.
Second, Appellant argues that Sivaramakrishna does not teach using a
matrix representation of partial derivatives to determine structure tensors.
Br. 7. In particular, Appellant argues that a structure tensor has a specific
definition in the field of computer vision and that Sivaramakrishna does not
disclose such structure tensors. Appellant contends that (1) “[a] structure
tensor is not merely a ‘tensor’ (or matrix) that is operating on structured data
such as pixels or voxels, but is rather a matrix representation of the partial
derivatives of image intensity values.” Id. Appellant argues that, although
Sivaramakrishna deals with image pixel matrices and moments,
Sivaramakrishna does not teach or suggest a structure tensor that is a matrix
of partial derivatives of pixel values. Id.
Initially, we note that Appellant does not identify a source for its
specific definition of structure tensor in the Specification or elsewhere.
Further, in construing claim limitations, we apply the broadest reasonable
meaning of the words in their ordinary usage, as those words would be
understood by one of ordinary skill in the art, taking into account any
definitions supplied by Appellant’s Specification. In re Morris, 127 F.3d
1048, 1054 (Fed. Cir. 1997). Claim 1 merely recites a “structure tensor”
without further description. Compare Claim 8 (providing additional
description of the calculation of a structure tensor); Spec. 7:4-9 (describing a
preferred calculation of a structure tensor). Although the claims are
interpreted in light of the Specification, we do not necessarily limit the claim
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language to preferred embodiments described in the Specification. See In re
Van Geuns, 988 F.2d 1181, 1184-85 (Fed. Cir. 1993). Moreover, the
Examiner relies upon Haußecker, not Sivaramakrishna, to supply the
teaching for structures tensors with respect to claim 1. Ans. 9, 19. Thus, we
conclude that Appellant’s arguments regarding the structure tensors recited
in claim 1 are not commensurate with the scope of the claim and fail to
demonstrate that the Examiner erred in relying upon Haußecker, rather than
Sivaramakrishna, to teach or suggest structure tensors with respect to claim
1. Therefore, for the foregoing reasons, we are not persuaded that the
Examiner erred in rejecting claim 1 by finding that Haußecker and
Sivaramakrishna, collectively, teach or suggest the disputed limitations.
Finally, Appellant argues that that the Examiner has failed to
articulate any reasoning with rational underpinning to combine the teachings
of Haußecker and Sivaramakrishna. Br. 7. In particular, given the allegedly
different physical origins of the eigenvalues of each reference and
Appellant’s narrow definition of structure tensor, Appellant argues that a
person of ordinary skill in the relevant art would not expect the Examiner’s
combination of the teachings of these references to yield a correct result in
detecting lung nodules or colon polyps. Id. at 7-8. In view of the foregoing
remarks concerning the Examiner’s reliance on the teachings of Haußecker
and Sivaramakrishna and the interpretation of the term “structure tensor,” as
recited in claim 1, we are not persuaded by Appellant’s arguments.
The Examiner finds that both Haußecker and Sivaramakrishna are in
the same field and that Sivaramakrishna is used to demarcate false positives
from spherical objects (e.g., nodules). Ans. 20 (citing Sivaramakrishna, ¶
[0051]). Further, the Examiner concludes that a person of ordinary skill in
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the relevant art would have reason to combine the teachings of Haußecker
and Sivaramakrishna (1) to distinguish between true nodules and false
positives (Final Rej. 10; Ans. 18) and (2) to minimize the complexity of the
analysis (Final Rej. 10; Ans. 10). As the U.S. Supreme Court has explained,
If a person of ordinary skill can implement a predictable variation,
§ 103 likely bars its patentability. For the same reason, if a technique
has been used to improve one device, and a person of ordinary skill in
the art would recognize that it would improve similar devices in the
same way, using the technique is obvious unless its actual application
is beyond his or her skill.

KSR Int’l Co. v. Teleflex Inc., 550 US 398, 417 (2007). Therefore, we
conclude that the Examiner’s finding that a person of ordinary skill in the
relevant art would have had reason to combine the teachings of Haußecker
and Sivaramakrishna is supported by articulated reasoning with some
rational underpinning to justify the Examiner’s obviousness conclusion.
For the foregoing reasons, Appellant has not persuaded us of error in
the rejection of: independent claim 1; independent claim 10 which includes
limitations corresponding to those of claim 1 (Br. 2 (“claim 10 is a
Beauregard version of claim 1”)); and claims 3, 7, 12, and 16, which are not
argued separately with particularity (id. at 8). Thus, we sustain the rejection
of these claims.

OBVIOUSNESS REJECTION OVER HAUßECKER,
SIVARAMAKRISHNA, AND GALLAGHER OR BOURLAND
Although the Examiner rejects claims 2, 4, 5, 11, 13, and 14 under
§ 103(a) as unpatentable over Haußecker and Sivaramakrishna, in
combination with either Gallagher or Bourland, each of these claims
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depends, directly or indirectly, from one of independent claim 1 or 10; and
Appellant does not argue any of these claims separately with particularity.
Br. 8-9 (stating that neither Gallagher nor Bourland rectifies the alleged
deficiencies in the combination of Haußecker and Sivaramakrishna). For the
same reasons that Appellant has not persuaded us of error in the rejection of
independent claims 1 and 10, discussed above, we are not persuaded of error
in the rejections of dependent claims 2, 4, 5, 11, 13, and 14. Thus, we
sustain the obviousness rejections of these claims.

OBVIOUSNESS REJECTION OVER HAUßECKER,
SIVARAMAKRISHNA, GALLAGHER, AND BOURLAND
Although the Examiner rejects claims 8 and 9 under § 103(a) as
unpatentable over Haußecker, Sivaramakrishna, Gallagher, and Bourland;
Appellant argues that its “structure tensor is calculated from the image
intensity gradient, while Sivaramakrishna’s uses a covariance matrix of pixel
coordinates.” Br. 10. Because Appellant argues that neither Haußecker, nor
Gallagher, nor Bourland rectifies the alleged deficiencies in
Sivaramakrishna, which we discussed above with respect to claim 1,
Appellant also argues that this combination of references fails to teach all of
the limitations of independent claim 8. Id. Further, Appellant argues that
the Examiner fails to demonstrate any reasoning with rational underpinning
to combine Haußecker and Sivaramakrishna, in the manner proposed by the
Examiner. Id. For reasons discussed above with respect to independent
claim 1, Appellant has not persuaded us of error in the rejection of
independent claim 8 or of dependent claim 9 which Appellant does not argue
separately with particularity. Id. at 11. Thus, we are not persuaded of error
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in the rejection of claims 8 and 9. Therefore, we sustain the obviousness
rejection of these claims.

CONCLUSION
The Examiner did not err in rejecting claims 1-5, 7-14, and 16 under
§ 103(a).

DECISION
The Examiner’s decision rejecting claims 1-5, 7-14, and 16 is
affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

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