Ex Parte CathierDownload PDFPatent Trial and Appeal BoardApr 11, 201310915047 (P.T.A.B. Apr. 11, 2013) 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. 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. Appeal 2010-009045 Application 10/915,047 3 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. Appeal 2010-009045 Application 10/915,047 4 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. Appeal 2010-009045 Application 10/915,047 5 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 Appeal 2010-009045 Application 10/915,047 6 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 Appeal 2010-009045 Application 10/915,047 7 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 Appeal 2010-009045 Application 10/915,047 8 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 Appeal 2010-009045 Application 10/915,047 9 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 Appeal 2010-009045 Application 10/915,047 10 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 Appeal 2010-009045 Application 10/915,047 11 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 tkl Copy with citationCopy as parenthetical citation