Ex Parte Claus et alDownload PDFPatent Trial and Appeal BoardOct 24, 201310881649 (P.T.A.B. Oct. 24, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARKOFFICE 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. 10/881,649 06/30/2004 Bernhard Erich Hermann Claus 135219-1/YOD (GERD:0113) 1431 41838 7590 10/24/2013 GENERAL ELECTRIC COMPANY (PCPI) C/O FLETCHER YODER P. O. BOX 692289 HOUSTON, TX 77269-2289 EXAMINER TANINGCO, ALEXANDER H ART UNIT PAPER NUMBER 2844 MAIL DATE DELIVERY MODE 10/24/2013 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 General Electric Co. (Inventors: Bernhard Erich Hermann Claus and Jeffrey Wayne Eberhard) ____________________ Appeal 2011-006802 Application 10/881,649 Technology Center 2880 ____________________ Before RICHARD E. SCHAFER, RICHARD TORCZON and JOHN G. NEW, Administrative Patent Judges. SCHAFER, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-006802 Application 10/881,649 2 General Electric Company (Applicant) appeals from an Examiner’s decision rejecting claims 1-10, 12-32, and 34-50. 35 U.S.C. §§ 6(b) and 134(a). We affirm-in-part and enter a new ground of rejection. The Claimed Subject Matter The invention is directed to a process for generating data representing a three-dimensional image. Applicant has directed claims to methods and systems for generating the data and to tangible machine-readable media having the code to process the data. Claims 1, 26, 36-40, and 44 are the pending independent claims. The claims require “directly reconstructing” a set of projected images to form three-dimensional image data. The claims also require “processing” data representing a set of projected images based upon “an acquisition geometry associated with the acquisition” of the images. The “processing” may be done pre- or post-reconstruction. Claims 1, 36, and 44 are representative and reproduced below: 1. A method for generating a three-dimensional image data set, comprising: pre-processing a set of projection images based upon an acquisition geometry associated with the acquisition of the set of projection images; and directly reconstructing the set of projection images to generate a three-dimensional image data set. 36. A tangible, machine-readable media [sic], comprising: code adapted to pre-process a set of projection images based on an acquisition geometry associated with the acquisition of the set of projection images; and code adapted to directly reconstruct the set of projection images to generate a three-dimensional data set. Appeal 2011-006802 Application 10/881,649 3 44. An image processing system, comprising: processing circuitry configured to process each projection image of a set of projection images based upon an acquisition geometry; and reconstruction circuitry configured to directly reconstruct the set of processed projection images to generate a three- dimensional image data set. Rejections In the Answer the Examiner maintained two groups of rejections. One group relied on a publication by Dobbins, alone and combined with other references. The other group relied on a publication by the named inventors (Claus and Eberhard) either alone or combined with another reference. The Examiner maintained the following rejections: 1. Claims 1-7, 10, 12-14, 18-32, 34-46, and 48-50 under 35 U.S.C. § 102(a) as anticipated by Dobbins;1 2. Claims 8 and 9 under 35 U.S.C. § 103(a) over the combined teachings of Dobbins and Eberhard;2 3. Claims 15 and 16 under 35 U.S.C. § 103(a) over the combined teachings of Dobbins and Nambu;3 4. Claim 17 under 35 U.S.C. § 103(a) over the combined teachings of Dobbins and Pearlman;4 5. Claim 47 under 35 U.S.C. § 103(a) over the combined teachings of Dobbins and Tsujii;5 1 James T. Dobbins III & Devon J. Godfrey, Digital X-Ray Tomosynthesis: Current State of the Art and Clinical Potential, 48 PHYSICS MED. & BIOLOGY R65 (2003). 2 U.S. Patent Application Publication 2003/0095624 A1 published May 22, 2003. 3 U.S. Patent 6,196,715 B1 issued Mar. 6, 2001. 4 U.S. Patent 5,602,891 issued Feb. 11, 1997. 5 U.S. Patent Application Publication 2003/0190010 A1 published Oct. 9, 2003. Appeal 2011-006802 Application 10/881,649 4 6. Claims 1, 3, 4, 6-9, 10, 15, 19, 20, 22, and 24 under 35 U.S.C. §102(b) as being anticipated by Claus;6 and 7. Claim 12 under 35 U.S.C. § 103(a) over the combined teachings of Claus and Baetz.7 ANALYSIS In deciding this appeal we confine our comments to the contested limitations. See Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (“The panel . . . reviews the obviousness rejection for error based upon the issues identified by appellant, and in light of the arguments and evidence produced thereon.”) Rejections based upon Dobbins The outcome of the rejections relying on the Dobbins reference turns on the meaning of the phrase “an acquisition geometry.” Applicant argues the phrase “the application geometry” is defined as the geometry of the source, the detector, and the volume of interest during the acquisition of signals as well as the shape and orientation of the object and/or the detector. Brief 12-13. We understand Applicant’s argument to be that processing based on “an acquisition geometry” requires that at least the above-listed collection of specified parameters be used in processing the data. The Examiner does not agree that the phrase has this limited definition. The Examiner finds that the Specification does not set out an alleged special definition of the phrase “acquisition geometry” explicitly and with [“]reasonable 6 Bernhard E.H. Claus & Jeffrey W. Eberhard, A New Method for 3D Reconstruction in Digital Tomosynthesis, in 4684 MEDICAL IMAGING 2002: IMAGE PROCESSING 814 (Milan Sonka, & J. Michael Fitzpatrick eds., 2002). 7 U.S. Patent 6,341,156 B1 issued Jan. 22, 2002. Appeal 2011-006802 Application 10/881,649 5 clarity, deliberateness and precision” to require that the phrase be accorded the specific definition asserted by appellant. Answer 17. Thus, we have Applicant and the Examiner differing on their interpretation of the scope of the claim language. It is necessary therefore, to interpret the phrase. Our interpretation necessarily starts with the contested language itself. Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc). The claims require that specified processing be based upon “an acquisition geometry.” The ordinary reading of the phrase connotes the spatial configuration of the relevant components used to acquire the images. However, Applicant points to ¶ 16 of its written description as providing its proffered definition. Brief 13. In relevant part, Paragraph 16 provides: In accordance with one or more aspects of the present technique, the computer 36 may include pre-processing circuitry configured to pre-process the projection images based upon the geometry of the source 12, the detector 22, and the volume of interest during the acquisition of signals. In particular, the pre-processing may be based on the relative position of the source 12, the detector 22, and the volume of interest (or the imaged object) during each exposure, as well as the collection of the respective positions for the full acquisition. Furthermore, the pre-processing may also be based on the shape and orientation of the object as well as the detector. We refer to all these different factors collectively as, the “acquisition geometry” of the acquisition. Written Description 6-7 (emphasis added). During prosecution before the PTO pending claims must be interpreted as broadly as their terms reasonably allow. However, when the applicant states the meaning that the claim terms are intended to have, the claims are examined with Appeal 2011-006802 Application 10/881,649 6 that meaning. In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989). We agree with Applicant that it has provided an express definition of “an acquisition geometry.” We find that the phrase requires processing using at least the collection of parameters that includes geometry of the source, the detector, and the volume of interest. In addition, the collection may optionally include the shape and orientation of the detector as well as of the object to be imaged. Written Description ¶ 16. The Examiner finds that the use of the phrase “may be” in Applicant’s definition of “an acquisition geometry” does not explicitly provide a special definition of the phrase with reasonable clarity, deliberateness, and precision to require that the phrase be accorded the specific definition asserted by appellant. Answer 17. We disagree. When read in context, we think the recitation of “may be” reflects the disclosure that not all embodiments require pre- or post-processing. The express statement that the specified factors “collectively” constitute “an acquisition geometry” provides a definition narrower that the ordinary meaning of that phrase would connote. Looking to the Dobbins reference, although we see where it teaches pre- and post-processing and direct reconstruction of projected image data, we fail to see where the reference teaches either pre- or post-processing using the specific collection of factors required by Applicant’s definition of the phrase “an acquisition geometry.” More specifically as to pre-processing, the Examiner directs us to Dobbins’ abstract and Section 3.1 at pages R71-R72 (e.g., Answer 4). We fail to see any specific teaching as to pre- or post-processing in the abstract. Section 3.1 does describe pre-processing using a logarithmic transform. That transform may rely on Appeal 2011-006802 Application 10/881,649 7 some factors that would fall within the ordinary meaning of “an acquisition geometry,” (e.g., the diameter of the object (nodule) to be imaged), but the reference does not describe the collection of specific factors required by Applicant’s more limited definition of “an acquisition geometry.” See Dobbins R71-R72. The Examiner also directs us to Dobbins Figure 2 at R72. Answer 18-19. Referring to that drawing, the Examiner finds: the intensity values obtained vary as a function of the location of the detector as well as the tube position, resulting in a non- constant path length through the object (page R72 see Fig. 2). As such, a pre-processing is necessary to ensure alignment of the region of interest and the overlying structures prior to a shift-and-add reconstruction resulting in images with a linear relationship to the particular object in a plane of interest and the overlying structures, wherein the step of pre-processing is performed to correct for the varying path length through the object, such that each pixel value corresponds to an average attenuation along the path ray (i.e. the projection images are proportional to the line integral of attenuation coefficients along respective rays through an object as the angle of orientation of the detector is moved with respect to the object of interest) (page R71 see 3.1 Logarithmic transform). Id. at 18-19. We fail to see support for the Examiner’s finding of a teaching of pre- processing to align the region of interest prior to the shift and add reconstruction. Rather, the realignment is done as part of the shift-and-add reconstruction: “After performing a shift of the two images so as to align the position of the nodule in each, and assuming each image has been logarithmically processed before the shift-and-add reconstruction . . . .” Dobbins R71 (emphasis added). We fail to see a disclosure in Dobbins of using “an acquisition geometry” as defined by Applicant to pre-process the projected image data before reconstruction. Appeal 2011-006802 Application 10/881,649 8 With respect to post-processing, the Examiner refers us to Dobbins pages R69-R71 as teaching post-processing using the acquisition geometry data. Answer 6-7. While Dobbins teaches post-processing including deblurring (Dobbins R69- 71 and R81-91) we do not see where the reference describes using the “acquisition geometry,” as defined, in manipulating the reconstructed data. The Examiner has not adequately explained how the various post-processing techniques described by Dobbins use the acquisition geometry data to modify the reconstructed data. We reverse the rejection of Claims1-7, 10, 12-14, 18-32, 34-46, and 48-50 as anticipated by Dobbins. Because the rejections based upon the combination of Dobbins’ teachings and the teachings of other references depend on the Examiner’s finding that Dobbins teaches processing of data using an acquisition geometry, we also reverse the rejections of Claims 8, 9, 15-17 and 47 under § 103(a). Rejections based on Claus The Examiner rejected the subject matter of claims 1, 3, 4, 6-9, 10, 15, 19, 20, 22, and 24 as anticipated by Claus and of Claim 12 as obvious over the combined teachings of Claus and Baetz. Applicant argues: Appellants submit that Claus does not disclose each and every element of the invention, as claimed in independent claim 1. Specifically, the cited reference does not disclose “direct reconstruction of the set of projection images to generate a three-dimensional image data set”. Brief 15. Applicant further argues that Claus does not describe direct reconstruction, rather there is a second update step in order to arrive at the final reconstruction. “The first step in the proposed reconstruction method is a simple backprojection with an order statistics-based operator (e.g., minimum) used for combining the backprojected images into a reconstructed slice . . . .” Id. Applicant goes on to contend that Appeal 2011-006802 Application 10/881,649 9 Claus further discloses an additional step of shift, scale and add/average operation before arriving at the final reconstructed image. Id. at 16. Applicant concludes its argument: Appellants respectfully submit that the claims of the present application do not require an additional step of shift, scale and add/average operation before arriving at the final reconstructed image. Thus, Appellants respectfully assert that Claus fails to disclose “direct reconstruction of the set of projection images to generate a three-dimensional image data set.” Id. at 17 (first emphasis added). We do not agree that the phrase “directly reconstructing” serves to distinguish the claimed subject matter from Claus. Applicant has not posited a specific definition of “directly reconstructing.” As noted by the Examiner (Answer 20), Applicant’s Specification says that “direct reconstruction” includes shift-and- add algorithms. See Written Description ¶ 4. Because Claus teaches using shift- and-add algorithms (Claus 817), it implicitly teaches using direct reconstruction. Additionally, Applicant teaches that direct reconstruction includes CT reconstruction algorithms using order statistics based backprojection (OSBP). Written Description ¶ 34. Claus teaches the use of the same type of algorithms. Claus 815. Thus, Claus teaches using a direct reconstruction of the image data. Applicant’s argument that its claims do not “require” additional steps prior to arriving at the final reconstructed image is irrelevant. Applicant’s claims do not exclude such steps. Indeed, Applicant’s Specification indicates additional steps may be included “before arriving at the final reconstructed image.” Brief 16. Applicant refers to its Figure 2 as “a flowchart describing exemplary steps for direct reconstruction of tomosynthesis image data, in accordance with aspects of the present technique.” Written Description ¶ 8. Applicant additionally Appeal 2011-006802 Application 10/881,649 10 characterizes Figure 2 as “a flowchart . . . that describes exemplary steps of a direct reconstruction process, in accordance with one or more aspects of the present technique.” Id.at ¶ 20. The flowchart includes a step captioned: “Directly reconstruct projection images to generate three-dimensional image data set.” The numeral 56 is used to identify that step. Applicant teaches that several steps may be performed prior to reaching the final image. Applicant teaches: reconstructing the set of projection images comprises backprojecting the preprocessed projection images and combining the backprojected projection images to directly generate a three-dimensional image data set. . . . Also, a number of techniques may be employed in accordance with the present technique to combine the backprojected images, such as summation, averaging, weighted averaging, order-statistics based operations or weighted order-statistics based operations. Furthermore, one or more constraints may be applied . . . to the combined set of backprojected projection images. For example, the backprojected images may be combined using the result of a skin line detection step (that typically includes “background” detection) to set the reconstruction to zero, when one or more backprojected images indicate “background” for that location. Id. at ¶ 21. The reconstruction step 56 may also be repeated or iterated to improve image quality before arriving at the final reconstructed image. Id. at ¶ 24. Thus, Applicant teaches: For example, in cases that include a nonlinear processing step in the reconstruction process, an iterative update step may be employed to improve the image quality of the reconstruction. In accordance with one embodiment of the present technique, the iterative update step includes reprojection of the three- dimensional dataset for a projection geometry that corresponds to the acquisition geometry for one of the originally acquired projection images, and then taking the difference to the true projection image at that geometry or projection angle. In this embodiment, the iterative update includes performing a backprojection of the difference and updating the three- Appeal 2011-006802 Application 10/881,649 11 dimensional data set. The update may be anyone of an additive update, a multiplicative update, or an update based on a probabilistic rule, or any other suitable update. In addition, the iterative update may be performed with one or more projection images at a time, or with one or more sub regions of at least one projection image. Id. Applicant also emphasizes that “the reconstruction step 56 may be performed a specific number of times or until some threshold condition is fulfilled, such as satisfying the reprojection constraint.” Id. at ¶ 25. We hold that the phrase “directly reconstructing” does not exclude the use of additional steps “before arriving at the final reconstructed image.” The Examiner’s decision to reject Claims 1, 3, 4, 6-9, 10, 15, 19, 20, 22, and 24 under § 102(b) as anticipated by Claus is affirmed. Claim 12 was rejected under 35 U.S.C. § 103(a) as unpatentable over the combined teachings of Claus and Baetz. With respect to Claim 12, Applicant does not challenge the Examiner’s obviousness conclusion based on Baetz. Applicant only argues that “Beetz [sic] does not overcome this deficiency of [Claus].” Brief 18. Since we did not find Claus deficient, we also affirm the Examiner’s rejection of Claim 12. The Examiner’s decision to reject Claim 12 under § 103(a) is affirmed. NEW GROUND OF REJECTION We enter a new ground of rejection of Claims 1-10, 12-32, 34-39, and 44-50 under 35 U.S.C. § 101. Those claims are directed to the broad basic concept of performing calculations on (processing) certain specified data and then performing one or more additional calculations on the previously calculated data. The subject matter is not tied to a particular machine and does not require the physical transformation of something into a different state or thing. Thus, the subject matter does not qualify for the safe harbor of the machine or transformation test. The Appeal 2011-006802 Application 10/881,649 12 claims do not specify an algorithm or formula used to process the data. Rather, the claims characterize the calculations functionally. For example, the claims define one calculation as “based upon an acquisition geometry associated with the acquisition of the set of projection images.” The claims also specify “directly reconstructing the set of projection images to generate a three-dimensional image data set.” These are simply abstract concepts that may be performed by the human mind. The Federal Circuit has held that “a method that can be performed by human thought alone is merely an abstract idea and is not patent-eligible under § 101.” CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1373 (Fed. Cir. 2011). While the claims are directed to “generating a three-dimensional image data set,” limiting an abstract idea to a particular field of use does not convert the abstract idea into patent eligible subject matter. Bilski v Kappos, 561 U.S. ___, ___; 130 S.Ct. 3218, 3231 (2010). We also fail to see any distinction for the purposes of § 101 in this case between the method, tangible media, and system claims. Each is simply a different expression of the method. Under the particular circumstances of this appeal, to treat them differently would elevate form over substance. Under these circumstances we feel it appropriate to enter a new ground of rejection shifting the burden to Applicant to demonstrate that the rejected claims are not merely directed to abstract concepts. Summary The rejections of Claims 1-10, 12-32, and 34-50 under 35 U.S.C. §§ 102(a) and 103(a) relying on the Dobbins publication are reversed. The rejection of Claims 1, 3, 4, 6-9, 10, 12, 15, 19, 20, 22, and 24 under 35 U.S.C. §§ 102(b) and 103(a) relying on the Claus reference are affirmed. Appeal 2011-006802 Application 10/881,649 13 We have entered a new ground of rejection of the subject matter of Claims 1-10, 12-32, 34-39, and 44-50 under 35 U.S.C. § 101. 37 CFR § 41.50(b). Notice Section 41.50(b) provides that the applicant, WITHIN TWO MONTHS FROM THE DATE OF THE DECISION, must exercise one of the following two options with respect to the new ground of rejection to avoid termination of the appeal as to the newly rejected claims: (1) Reopen prosecution. Submit an appropriate amendment of the claims so rejected or new evidence relating to the claims so rejected, or both, and have the matter reconsidered by the Examiner, in which event the proceeding will be remanded to the Examiner. . . . (2) Request rehearing. Request that the proceeding be reheard under § 41.52 by the Board upon the same record. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136. AFFIRMED-IN-PART NEW GROUND OF REJECTION 37 C.F.R. § 41.50(b) bar Copy with citationCopy as parenthetical citation