Ex Parte Claus et al

Patent Trial and Appeal Board

Oct 24, 2013

10881649 (P.T.A.B. Oct. 24, 2013)

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

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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.

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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.
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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.
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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
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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
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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.
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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
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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
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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-
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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
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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.
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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