Ex Parte Fymat et al

Board of Patent Appeals and Interferences

Feb 21, 2012

11524866 (B.P.A.I. Feb. 21, 2012)

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.
11/524,866 09/21/2006 Alain L. Fymat 06/138 9372
7590 02/21/2012
LEON D. ROSEN
FREILICH, HORNBAKER & ROSEN
Suite 1220
10960 Wilshire Blvd.
Los Angeles, CA 90024
EXAMINER
HUNTLEY, DANIEL CARROLL
ART UNIT PAPER NUMBER
3737
MAIL DATE DELIVERY MODE
02/21/2012 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte ALAIN L. FYMAT, MAX HARRY WEIL, WANCHUN TANG,
JOE BISERA, and GIUSEPPE RISTAGNO
__________

Appeal 2011-005824
Application 11/524,866
Technology Center 3700
__________

Before LORA M. GREEN, JEFFREY N. FREDMAN, and
ERICA A. FRANKLIN, Administrative Patent Judges.

GREEN, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134 from the
Examiner’s rejection of claims 1, 2, 5, 8, 10, 11, and 13. We have
jurisdiction under 35 U.S.C. § 6(b).
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STATEMENT OF THE CASE
Claims 1 and 8 are the independent claims on appeal, and read as
follows:
1. A method for use in producing an image of blood that is flowing in
capillaries lying within living tissue, comprising:
directing a first beam of circularly polarized light that is circularly
polarized in a predetermined direction, primarily forwardly towards an outer
surface of the tissue and allowing the circularly polarized light to penetrate
forwardly deep into the tissue and, by light scattering, create a second beam
comprising a quantity of light that passes rearwardly through and outside the
tissue while illuminating the tissue it passes through and becoming partially
unpolarized;
passing the second beam of partially unpolarized light through a
depolarizing filter that blocks all except unpolarized light to produce an
unpolarized second beam portion;
focusing the unpolarized second beam portion onto a photodetector that
produces signals representing images of blood particles flowing through
capillaries in the tissue.

8. Apparatus for displaying an image of the flow of blood in capillaries
of living tissue, comprising:
means for directing polarized light primarily forwardly along a first
path toward an outer surface of the tissue to pass into the tissue, and for
passing rearwardly-moving light that emerges from said tissue outer surface
through an optic system that passes primarily only unpolarized light;
means for focusing the primarily unpolarized light onto a photo
detector and for displaying the image that is focused on the photo detector;
and
said means for displaying includes a lens that forms optical images of
the actual movement of actual spaces between blood platelets moving in a
capillary and of blood platelets that lie between said spaces.

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The following grounds of rejection are before us for review:
I. Claim 5 stands rejected under 35 U.S.C. § 112, first paragraph, as
failing to comply with the written description requirement (Ans.
3).
II. Claim 5 stands rejected under 35 U.S.C. § 112, second paragraph,
as being indefinite (Ans. 4).
III. Claims 1 and 5 stand rejected under 35 U.S.C. § 103(a) as being
rendered obvious by Alfano1 (Ans. 4).
IV. Claim 2 stands rejected under 35 U.S.C. § 103(a) as being rendered
obvious by the combination of Alfano and Booker2 (Ans. 5).
V. Claims 8 and 13 stand rejected under 35 U.S.C. § 103(a) as being
rendered obvious by the combination of Alfano and Gorti3 (Ans.
6).
VI. Claims 10 and 11 stand rejected under 35 U.S.C. § 103(a) as being
rendered obvious by the combination of Alfano and Gorti, as
further combined with Booker (Ans. 8).

We reverse.
Rejections Under Sections 112
Claim 5 recites the method of claim 8 wherein “said step of directing
a first beam includes directing primarily light that has a wavelength that is

1 Alfano et al., U.S. 5,847,394, issued Dec. 8, 1998
2 Booker et al., U.S. 5,262,646, issued Nov. 16, 1993
3 Gorti, U.S. 5,954,658, issued Sep. 21, 1999
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Application 11/524,866

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absorbed by blood platelets in a greater percent than the percent absorbed by
any other frequencies of light.”
The rejection finds that the Specification “does not provide sufficient
information for determining the wavelength of light that is absorbed by
blood platelets in a greater percent than the percent absorbed by other
frequencies of light” (Ans. 3), the Examiner thus concluding that claim 5
does not meet the requirements of 35 U.S.C. § 112, first paragraph (id.).
Similarly, as to the requirement of 35 U.S.C. § 112, second paragraph, the
Examiner finds that “it is unclear as to what frequency or range of
frequencies the applicant intends to include or exclude with the statement, ‘ .
. . primarily light that has a wavelength that is absorbed by blood platelets in
a greater percent than the percent absorbed’” (id. at 4).
Appellants respond that page 7 of the Specification suggests “using a
band from 525 n. (light green) and then from 550 to 600 nm to see which
produces the clearest image of blood platelets” (App. Br. 6). Specifically,
the Specification teaches:
The tunable spectral filter allows different wavelengths of light
to pass and become part of the first and second beams. For
example, light of a range from 420 nanometers (blue-purple
light) to 810 nanometers (red to near infrared) may be emitted
from the light source. The filter may be tuned to different
frequency bands such as to pass only a band from 525 to 575
nanometers (light green) and later a band of 550 to 600
nanometers to see which band produces the clearest image of
blood platelets. Applicant notes that oxy-hemoglobin is
maximally absorbed at about 420 nanometers (blue purple)
while deoxyhemoglobin exhibits multiple scatters in deeper
regions at 810 nanometers (red to infrared). A compromise is
green light at about 548 nanometers (a majority of light
between 500 nanometers and 600 nanometers). The wavelength
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directed forwardly into the tissue can be a wavelength that is
tuned to the absorption bands of a particular blood component,
such as oxygen, nitrous dioxide and/or nitrous oxide.

(Spec. 7).
We conclude that, based on the Specification, the skilled artisan
would have understood that Appellants had possession of the subject matter
of claim 5. We further conclude that the skilled artisan would understand
the metes and bounds of the claimed subject matter. We thus reverse the
rejection of claim 5 under 35 U.S.C. § 112, first paragraph, as failing to
comply with the written description requirement, as well as under 35 U.S.C.
§ 112, second paragraph, as being indefinite.

Rejections under Section 103
Appellants essentially argue that Alfano does not teach the use of a
depolarizing filter, such that an unpolarized beam potion is focused onto a
photodetector to produce a signal as required by independent claims 1 and 8
(see, e.g., App. Br. 4-7).
We agree. As to the method of claim 1, the Examiner notes that
Alfano “does not expressly teach passing the second beam of partially
unpolarized light through a depolarizing filter that blocks all except
unpolarized light to produce an unpolarized second beam portion” (Ans. 5).
The Examiner finds, however, that Alfano describes “an analyzer placed in
from of the photodetector (CCD) (figure 7, items 21 and 19), which is also
referred to as a polarizer with multiple functions including settings for
parallel and perpendicular polarization (col. 6, ll. 10-25)” (id.). According
to the Examiner,
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Alfano(’394)’s polarizer separates out the surface reflections
(polarized light) from the subsurface tissue reflections
(depolarized light), by passing only one type of light depending
on the selected setting. The examiner interprets this as
equivalent to the depolarizing filter used to block out polarized
light scattered from the surface as claimed in the present
application. It would have been obvious to one of ordinary skill
in the art to use the analyzer described in Alfano (’394) as a
depolarizing filter as disclosed in the present application in
order to reject polarized light.

(Id.).
Alfano, is drawn to a method and apparatus for imaging objects based
upon the polarization or depolarization of light (Alfano, Abstract). Alfano
forms the image, however, not by filtering out the polarized light, but by
using a pulse of polarized light and then forming an image using pairs of
complementary polarization components (Alfano, col. 4, ll. 6-25), or when
two polarized pulses of light are used, using the normal components of the
partially depolarized first and second pulses of light (id. at col. 4, ll. 33-61).
Specifically, according to Alfano:
When polarized light travels through a scattering medium
(such as fog, smog, smoke, etc.), a gradual process of
depolarization takes place. The light completely loses its
polarization only after traveling a long distance into the smoke
or fog or smog. When partially polarized light illuminates the
object, the two polarization components of the reflected light
are different in intensity with the parallel component more
intense than the perpendicular. Similarly, unpolarized light
reflected off an object can give rise to different intensities for
the two polarization components (defined by the plane of
incidence of the light or the optical anisotropy axis of the
material) as discussed above. As the partially polarized
reflected light from the object travels through smoke or the like
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towards a detection system it continues to be depolarized. The
light that reaches the detection system, therefore, has been
depolarized greatly due to scattering in the smoke and due to
scattering in the object. However, the still polarized photons
are carrying the image information even though their relative
intensity with respect to the diffusive-unpolarized photons
decreases. As a result, the image quality decays and the image
is lost in the “white” background made up of the unpolarized
diffusive light. Subtraction of the two polarization image
components cancels-out the depolarized component as well as
the background light (which is unpolarized), and the generated
polarization-difference image is made up of the still polarized
photons that have undergone less scattering in the smoke and
contain the image information. In this way, the “white”
background from the diffusive photons is subtracted and the
image is revealed again. The visibility inside the fog or smog
or smoke is improved while the range at which the image is
observable depends on the density of the smoke or fog or smog
as well as on the detection system. In general, as long as there
are polarized photons reaching the detector, an image of the
object can be reconstructed using polarization difference
imaging.

(Alfano, col. 11, l. 54-col. 12, l. 22, emphasis added.) Thus, in the apparatus
of Alfano, as shown in Figure 7, the analyzer 21 does not filter out any
polarized light, but is used to select the parallel and perpendicular
components of the light (id. at col. 13, ll. 33-41).
Therefore, as we understand it, the analyzer 21 of Alfano does not
block all except unpolarized light to produce an unpolarized second beam
portion which is then focused onto a photodetector as required by the
method of claim 1. Rather, the analyzer 21 of Alfano selects certain
components of the polarized light, such as the parallel and perpendicular
components, and those polarized photons are used to reconstruct the image
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of the object. As the Examiner has not explained why one would replace the
analyzer 21 of Alfano with a filter that blocks all but unpolarized light, we
are compelled to reverse the rejection of claims 1 and 5 as being rendered
obvious by Alfano. Moreover, as the Examiner has not explained how
Booker overcomes that deficiency of Alfano (see Ans. 6), we are also
compelled to reverse the rejection of claim 2 as being rendered obvious by
the combination of Alfano and Booker.
Claim 8, the apparatus claim, requires “means for directing polarized
light primarily forwardly along a first path toward an outer surface of the
tissue to pass into the tissue, and for passing rearwardly-moving light that
emerges from said tissue outer surface through an optic system that passes
primarily only unpolarized light.” As the claim invokes 35 U.S.C. § 112,
sixth paragraph, we construe the claim as requiring a source of light (20 in
Figure 1), a circular polarizer (28), a beam splitter (22), and a depolarizing
filter (38) (Spec. 5). The depolarizing filter 38 “rejects circularly polarized
light and passes primarily only unpolarized light” (id. at 6).
Again, the Examiner has not explained why the ordinary artisan
would replace the analyzer 21 of Alfano, which is used to select certain
components of the polarized light, such as the parallel and perpendicular
components with the depolarizing filter as required by the apparatus of claim
8, nor explains how Gorti makes up that deficiency. We are also compelled
to reverse the rejection of claims 8 and 13 as being rendered obvious by the
combination of Alfano and Gorti. Moreover, we also reverse the rejection of
claims 10 and 11 as being rendered obvious by the combination of Alfano
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and Gorti, as further combined with Booker, as the Examiner has not
explained how Booker remedies the above deficiencies of Alfano.

SUMMARY
The rejections on appeal are reversed.

REVERSED

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