Ex Parte McCulloch et al

Patent Trial and Appeal Board

Apr 24, 2017

13252072 (P.T.A.B. Apr. 24, 2017)

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.
13/252,072 10/03/2011 Colin Craig McCulloch 250530-3/120718-00503 3800
6147 7590 04/26/2017
GENERAL ELECTRIC COMPANY
GLOBAL RESEARCH
ONE RESEARCH CIRCLE
BLDG. K1-3A59
NISKAYUNA, NY 12309
EXAMINER
HARWARD, SOREN T
ART UNIT PAPER NUMBER
1631
NOTIFICATION DATE DELIVERY MODE
04/26/2017 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
haeckl@ge.com
gpo.mail@ge.com
Lori.e.rooney @ ge.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte COLIN CRAIG McCULLOCH, CHRISTOPHER J. SEVINSKY,
and FIONA GINTY
Appeal 2016-001180
Application 13/252,0721
Technology Center 1600
Before DONALD E. ADAMS, RACHEL H. TOWNSEND, and
DEVON ZASTROW NEWMAN, Administrative Patent Judges.
TOWNSEND, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a method
of and system for analyzing tissue features, which have been rejected as
being directed to patent ineligible subject matter and as obvious. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.
STATEMENT OF THE CASE
Studying tissue specimens using labelled antibodies or antibody
surrogates as biomarkers is well known, including testing “for the
1 Appellants identify the Real Party in Interest as the General Electric
Company. (Appeal Br. 2.)
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“expression of numerous biomarkers.” (Spec. 3, 5.) “The techniques of
tissue treatment and examination have been refined so that the level of
expression of a given biomarker in a particular cell or even a compartment
of the given cell such as the nucleus, cytoplasm or membrane can be
quantitatively determined.” (Id. at 14.) “Commonly the treated tissue is
examined with digital imaging and the level of different signals emanating
from different biomarkers can consequently be readily quantified.” (Id. )
According to Appellants, the claimed invention “involve[s] distinct
processes for analyzing a dataset.” (Id. at 116.)
Claims 1, 2, 6—15, 17, 18, and 21—30 are on appeal.2 Claims 1 and 17
are representative and read as follows:
1. A method of analyzing tissue features based on multiplexed
biometric images comprising:
receiving cell profile data comprising multiplexed
biometric images capturing the expression of a plurality of
biomarkers with respect to a field of view in which individual
cells are delineated and segmented into compartments;
assigning respective individual cells in the field of view
to respective single clusters of a plurality of clusters of similar
cells in a selected set of clusters, wherein each cluster in the
selected set of clusters comprises cells having a plurality of
selected attributes more similar to the plurality of selected
attributes of other cells in that cluster than to the plurality of
selected attributes of cells in other clusters in the set such that at
least two individual cells in the field of view may be assigned
to different clusters;
determining a proportion of the cells assigned to each
cluster in the selected set of clusters;
2 Claims 16 and 31—35 are also pending but have been withdrawn from
consideration. (Appeal Br. 19 and 23—24.)
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generating and displaying a montage of the first cell
wherein the montage comprises a portion of a plurality of the
multiplexed biometric images of the first cell’s expression of
the plurality of biomarkers; and
determining a diagnosis, a prognosis, or a response to
treatment of a condition or a disease based on the proportion
and a known association of the selected set of clusters with at
least one piece of meta-information including a field of view
level assessment or a patient-level assessment.
(Appeal Br. 15—16.)
17. A system for analyzing tissue features based on
multiplexed biometric image data comprising:
a storage device storing cell profile data comprising
multiplexed biometric images capturing the expression of a
plurality of biomarkers with respect to a field of view in which
individual cells are delineated and segmented into
compartments;
and at least one processor for executing code that causes
the at least one processor to perform the steps of:
accessing the cell profile data;
assigning respective individual cells in the field of view
to respective single clusters of a plurality of clusters of similar
cells in a selected set of clusters, wherein each cluster in the
selected set of clusters comprises cells having a plurality of
selected attributes more similar to the plurality of selected
attributes of other cells in that cluster than to the plurality of
selected attributes of cells in other clusters in the set such that at
least two individual cells in the field of view may be assigned
to different clusters;
determining a proportion of the cells assigned to each
cluster in the selected set of clusters;
generating and displaying a montage of an individual cell
in a first cluster of the selected set of clusters, wherein the
montage comprises a portion of a plurality of the multiplexed
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biometric images of the individual cell's expression of the
plurality of biomarkers; and
determining a diagnosis, a prognosis, or a response to
treatment of a condition or a disease based on the proportion
and a known association of the selected set of clusters with at
least one piece of meta-information including a field of view
level assessment or a patient-level assessment.
(Appeal Br. 19—20.)
The following grounds of rejection by the Examiner are before us on
review:
1. Claims 1, 2, 6—15, 17, 18, and 21—30 under 35 U.S.C. § 101 as
being directed to non-statutory subject matter.
2. Claims 1, 2, 6—10, 13—15, 17, 18, 21—25, and 28—30 under 35
U.S.C. § 103(a) as unpatentable over Gough3 and Hunter.4
3. Claims 11, 12, 26, and 27 under 35 U.S.C. § 103(a) as
unpatentable over Gough, Hunter, and Theodoridis.5
DISCUSSION
Patent Ineligible Subject Matter
The Examiner finds that the claimed method is an abstract idea that
fails to meet the standard for statutory eligibility because the method, which
involves tissues and cells, concerns data manipulation steps pertaining to
collected information from cells without transforming the cells or being tied
to any particular machine. (Ans. 2; Final Action 4.) Similarly, the Examiner
3 Gough et al., US 2009/0298703 Al, published Dec. 3, 2009.
4 Hunter et al., US 2008/0144895 Al, published June 19, 2008.
5 Sergios Theodoridis & Konstantinos Koutroumbas, Pattern Recognition:
Chapter 14: Clustering Algorithms III 631—35 (Academic Press, 2006).
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finds that the claimed system does not “amount to significantly more than
the abstract idea of an algorithm that analyzes biometric images.” (Ans. 3;
Final Action 5.) The Examiner indicates that the claims recite “generic
computer structures (e.g.[,] ‘a storage device’ and a ‘processor’) that
perform only well-understood, routine and conventional acts in the art” and
that, viewed individually and as a whole, the method “do[es] not provide
meaningful limitations to transform the abstract idea . . . (Id. )
We agree with the Examiner’s factual findings and conclusion that the
method and system claims on appeal are patent ineligible abstract ideas.
a. Abstract Idea
Appellants’ argument that the claims are not an abstract idea because
analyzing biometric images is not “a fundamental economic practice, a
method of organizing human activities, an idea ‘of itself,’ or a mathematical
relationship/formula” (Reply Br. 3), is unavailing. “[T]he category of
abstract ideas is not limited to economic or commercial practices or methods
of organizing human activity.” Intellectual Ventures ILLCv. Symantec
Corp., 838 F.3d 1307, 1313 (Fed. Cir. 2016).
“The Supreme Court has not ‘delimit[ed] the precise contours of the
‘abstract ideas’ category.’” Content Extraction & Transmission LLC v.
Wells Fargo Bank, Nat’l Ass ’n, 776 F.3d 1343, 1346 (Fed. Cir.
2014) (quoting Alice Corp. Pty. Ltd. v. CLSBankInt’l, 134 S. Ct. 2347,
2357 (2014)). Our reviewing Court has held “information as such is an
intangible” and thus, has “treated collecting information, including when
limited to particular content (which does not change its character as
information), as within the realm of abstract ideas.” Elec. Power Grp., LLC
v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016) (collecting cases).
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Likewise it has “treated analyzing information by steps people go through in
their minds, or by mathematical algorithms, without more, as essentially
mental processes within the abstract-idea category.” Id. at 1354 (collecting
cases). And, it has “recognized that merely presenting the results of abstract
processes of collecting and analyzing information, without more (such as
identifying a particular tool for presentation), is abstract as an ancillary part
of such collection and analysis.” Id. (collecting cases).
The method at issue concerns a multistep process that starts with
receiving image data from the expression of cell biomarkers and ends with
determining “a diagnosis, a prognosis, or a response to treatment of a
condition or a disease” based on organization of that data. The analytics
recited to make the determination require an assignment based on observed
characteristics, assessing a “proportion” based on the assignment, and
generating a montage of images from the received data. In short, the method
collects information and analyzes it and does nothing to change its character
as collected information; the collected information is simply organized in a
particular way to display it in a particular way. The system claims are
similar in that they include a storage device to store data, and a “processor
for executing code that causes the at least one processor to perform” the
steps that are also recited in the process claims. We agree with the Examiner
that these claims fall into the category of an abstract idea. See, e.g., Elec.
Power Grp., 830 F.3d at 1353—54 (explaining that an invention directed to
collection, manipulation, and display of data was an abstract process);
Content Extraction, 116 F.3d at 1346-47 (finding with respect to method
claims that “1) collecting data, 2) recognizing certain data within the
collected data set, and 3) storing that recognized data in a memory” is an
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abstract idea and explaining that is because “[t]he concept of data collection,
recognition, and storage is undisputedly well-known. Indeed, humans have
always performed these functions”).
We find, similar to what our reviewing Court found in Electric Power,
the claimed method and system is not an improvement in computers as tools
but are abstract ideas that use computers as tools. Elec. Power, 830 F.3d at
1354.
b. No inventive concept beyond the claimed abstract idea
Because we find the claims on appeal are directed to an abstract idea,
we turn to the second step in the framework set forth by the Supreme Court
in Mayo Collaborative Servs. v. Prometheus Labs, Inc., 132 S. Ct. 1289
(2012), and Alice Corp. Pty. Ltd., 134 S. Ct. 2347, for “distinguishing
patents that claim laws of nature, natural phenomena, and abstract ideas
from those that claim patent-eligible applications of those concepts.” Alice,
134 S. Ct. at 2355. Step two is “a search for an inventive concept—i.e., an
element or combination of elements that is sufficient to ensure that the
patent in practice amounts to significantly more than a patent upon the
ineligible concept itself.” Id. (internal quotations, brackets, and citation
omitted). In the second step, we examine the elements of the claim to
determine whether the claim contains an inventive concept sufficient to
“transform” the claimed abstract idea into a patent eligible application.
Mayo, 132 S. Ct. at 1294. We conclude that neither the practice of the
method claims nor the system claims result in such an inventive concept.
As our reviewing court recently noted, “[precedent has recognized
that specific technologic modifications to solve a problem or improve the
functioning of a known system generally produce patent-eligible subject
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matter.” Trading Techs. Int’l, Inc. v. CQG, Inc., Appeal No. 2016-1616,
2017 WL 192716, at *3 (Fed. Cir. Jan. 18, 2017) (non-precedential). Thus,
for example “[abstraction is avoided or overcome when a proposed new
application or computer-implemented function is not simply the generalized
use of a computer as a tool to conduct a known or obvious process, but
instead is an improvement to the capability of the system as a whole.” Id. at
8 (citing Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1336 (Fed. Cir.
2016)). On the other hand, “ineligible claims generally lack steps or
limitations specific to solution of a problem, or improvement in the
functioning of technology.” Id.
Notwithstanding that the claims require the use of “specialized
machines,” i.e., “specialized image acquisition machines and imaging
hardware” (Reply Br. 4), we find the claimed invention is much like the
method claims found to be directed to patent ineligible subject matter in
Mayo in that “[t]he upshot [of the claimed method] is that the . . . [recited]
steps simply tell doctors to gather data from which they may draw an
inference in light of the correlations.” Mayo, 132 S. Ct. at 1298. The
system claims merely append generic computer elements, i.e., a storage
device and a processor to effect the analytics. We find the claimed “steps,
when viewed as a whole, add nothing significant beyond the sum of their
parts taken separately.” Id.
Appellants’ arguments to the contrary are unavailing. Appellants
argue that the claims are not directed to an abstract idea because the method
improves the analysis of medical images by “improving determination of
cell similarity based on cell attributes in the context of several possible
attributes.” (Appeal Br. 7—8.) According to Appellants,
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[particular clusters of biomarker expression may be associated
with particular disease prognosis. However, it may be difficult
to determine how to sort such clusters and to determine how
many groups should be generated. Too few groups may result
in cells with distinctive characteristics being grouped together,
while too many groups may result in complicated analysis.
(Appeal Br. 7.) Appellants explain that “assigning an individual cell to a
cluster based on the recited steps and then generating and displaying a
montage of expression of biomarkers from a plurality of multiplexed
images” offers “improvements in diagnosis without adding undesirable
computational complexity via the designation of too many clusters” and also
“improve[s] the functioning of a computer performing the recited method or
a system as recited.” {Id. at 9—10.)
We do not find this argument persuasive. “[D]tiring examination
proceedings, claims are given their broadest reasonable interpretation
consistent with the specification.” In re Hyatt, 211 F.3d 1367, 1372 (Fed.
Cir. 2000). “[W]hile it is true that claims are to be interpreted in light of the
specification and with a view to ascertaining the invention, it does not follow
that limitations from the specification may be read into the claims.” Sjolund
v. Musland, 847 F.2d 1573, 1581 (Fed. Cir. 1988). The recited process for
analyzing image data is to assign cells to a cluster, determine a proportion of
cells assigned to each cluster of a selected set of clusters, and generate and
display a montage of images. In short, the process steps are recited at a very
high level of abstraction, i.e., generically. The system claims recite a
generic storage device and processor that executes code to analyze the data.
As explained in Appellants’ Specification “[examination of tissue
specimens that have been treated to reveal the expression of biomarkers is a
known tool for biological research and clinical studies.” (Spec. 13.)
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“Commonly the treated tissue is examined with digital imaging and the level
of different signals emanating from different biomarkers” is “readily
quantified.” {Id. at || 4—14.) The known prior art processes include using
computers to assist in storing collected information about the tissue
specimen including the segmentation “of individual cell units and their
subcellular compartments (including membrane, cytoplasm and nucleus)”
{Id. at 19), “grouping . . . cells together which have similar biomarker
expression attributes” {Id. at || 10-11), “could be examined to identify any
cell attribute which is associated with the diagnoses or prognoses of a given
condition or disease or with the response to a given therapy for a given
condition or disease,” as well as “generat[ing] various expression profiles
that are then overlaid on an image of the tissue of interest.” {Id. at || 7, 12.)
The steps involved in Appellants’ generic process claims, like the
prior art, analyze collected data without changing its character as collected
information; the information is not transformed, it is simply organized into a
new form (abstracted portions of stored images). Thus, while Appellants
argue that the claims are analogous to the “Digital Image Processing”
example provided by the USPTO with the 2014 Interim Eligibility Guidance
(Appeal Br. 8—10; Reply Br. 6—8), we disagree. In that example, the
information was transformed. As the Guidance notes:
The claim, when taken as a whole, does not simply describe the
generation of a blue noise mask via a mathematical operation
and receiving and storing data, but combines the steps of
generating a blue noise mask with the steps for comparing the
image to the blue noise mask and converting the resulting
binary image array to a halftoned image. By this, the claim
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goes beyond the mere concept of simply retrieving and
combining data using a computer.
(Subject Matter Eligibility Examples: Abstract Ideas: 3. Digital Image
Processing at 8, available at https://www.uspto.gov/patent/laws-and-
regulations/ examination-policy/subj ect-matter-eligibility.)
For the same reason, we find that Appellants’ claims are not
analogous to those found patent eligible in McRO, Inc. v. Bandai Namco
Games Am. Inc., 837 F.3d 1299, 1313—16 (Fed. Cir. 2016). Unlike in
McRO, the claims on appeal are not limited to specific, claimed features of
recited rules with specific characteristics that renders information into a
specific format that is then used and applied to create desired results
allowing for realization of computer automation that was not possible prior
to the claimed invention. See McRO, 837 F.3d at 1313—16.
Without additional limitations, a process that employs
mathematical algorithms to manipulate existing information to
generate additional information is not patent eligible. “If a claim
is directed essentially to a method of calculating, using a
mathematical formula, even if the solution is for a specific
purpose, the claimed method is nonstatutory.” Parker v.
Flook, 437 U.S. 584, 595 (1978) (internal quotations omitted).
Digitech Image Tech’s v. Elecs. for Imaging, 758 F.3d 1344, 1351 (Fed. Cir.
2014). The steps of the claims on appeal generically recite a process of
combining data to determine a diagnosis, prognosis or response to treatment;
it does not claim the use of that data to transform the collected data.
Moreover, whether or not the claimed process results in “improvements in
diagnosis without adding undesirable computational complexity via the
designation of too many clusters” (Appeal Br. 9—10), there is no argument or
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evidence demonstrating that the claimed process provides for computers to
do what could not be done previously, in contrast to the facts in McRO.
As noted above, the method collects information and analyzes it but
does nothing to change its character as collected information; the collected
information is simply organized in a particular way for display.
Furthermore, “the use of generic computer elements like a
microprocessor or user interface do not alone transform an otherwise
abstract idea into patent-eligible subject matter.” FairWarning IP, LLC v.
Iatric Sys., Inc., 839 F.3d 1089, 1096 (Fed. Cir. 2016). The system claims
here are unlike those in DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d
1245, 1257 (Fed. Cir. 2014), where the Court found the claims that included
a computer process programmed in a particular way to carry out a particular
function included an inventive concept in modification of conventional
mechanics behind website display to produce dual-source integrated hybrid
display. And the claims here are unlike the “data storage and retrieval
system” claims in Enfish, 822 F.3d at 1336, 1339 where the Court found the
claims that included “means for” executing certain things included an
inventive concept in improving “the way a computer stores and retrieves
data in memory.” And the claims are unlike the system claims in B as com
Global Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341, 1350
(Fed. Cir. 2016), where the Court found the claims included an inventive
concept in the ordered combination of system components including a local
client computer and a remote ISP server connected to the client computer
and Internet computer network providing for “the installation of a filtering
tool at a specific location, remote from the end-users, with customizable
filtering features specific to each end user.”
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Thus, contrary to Appellants’ arguments (see Reply Br. 6—8), we find
that the claim limitations, analyzed alone and in combination, fail to add
“something more” to “transform” the claimed abstract idea of collecting and
analyzing information to determine a diagnosis, prognosis, or a response to
treatment into “a patent-eligible application.” See Alice, 134 S. Ct. at 2354,
2357.
c. Pre-emption
Appellants argue that the claims should not be found to be patent
ineligible under 35 U.S.C. § 101 because the claimed invention does not
“pre-empt others from utilizing ideas necessary for future innovation in
other technology fields,” contending that “[o]ther parties are still free to use
clustering for other techniques and/or in other fields of endeavor, for
example.” (Appeal Br. 8.) Appellants further contend that the limitations
are “tied to specialized image acquisition machines and imaging hardware”
and “there is no reasonable interpretation whereby these claims could be
viewed as attempting to ‘tie up’ an abstract concept in its entirety.” (Reply
Br. 4—5.) We do not find either point persuasive. “[T]he absence of
complete preemption does not demonstrate patent eligibility.” Ariosa
Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015).
“Where a patent’s claims are deemed only to disclose patent ineligible
subject matter under the Mayo framework, as they are in this case,
preemption concerns are fully addressed and made moot.” Id.
II
Obviousness
The Examiner finds that Gough teaches a method and system as
claimed except that while Gough teaches classifying cells from multiplexed
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cellular images into response classes, it does not teach the delineation and
segmenting of individual cells into compartments. (Ans. 3—4.) The
Examiner finds that Hunter teaches a method of analyzing cellular
fluorescence micrographs where the fluorescent signals are indicative of the
amount and location of various biomarkers within each cell. (Ans. 4.) The
Examiner further finds that the images are segmented into individual cells
and cellular compartments and can be used for measuring cytological
characteristics. (Ans. 5.) The Examiner concludes that it would have been
obvious to one of ordinary skill in the art to “combine the image analysis
teachings of Hunter — in which individual cells are delineated and
segmented into compartments — with the cell profile analysis method of
Gough, because Gough teaches creating a cell profile based on image
features, but does not actually teach how to calculate those image features.”
(Ans. 6.)
We agree with the Examiner’s factual findings and conclusion of
obviousness.
Appellants argue that neither Gough nor Hunter disclose generating
and displaying “a montage” as required by claims 1 and 17 because Gough’s
separate images from each channel of a multiplexed high content screen, are
not “a series of superimposed or juxtaposed portions'1'’ of the multiplexed
biometric images, and there is no indication in Gough that the images are
“displayed.” (Appeal Br. 11—12 (emphasis added); Reply Br. 8.) First, we
note that the claimed method does not require the montage be a series of
superimposed or juxtaposed portions of the multiplexed images. Rather, the
method requires the montage “comprises a portion of a plurality of the
multiplexed biometric images of the first cell’s expression of the plurality of
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biomarkers [with respect to a field of view].” We agree with the Examiner
that a set of juxtaposed images such as provided in Gough’s Figure 6 meets
the claimed montage requirement. We also agree with the Examiner that the
images of Gough’s Figure 6 meet the “field of view” requirement because a
field of view can simply be “the area of the microscopic sample captured by
an image” (Ans. 9 (citing Spec. | 54)). It is well known in the art to take
images of the same physical portion of the sample using different
biomarkers. (See, e.g., Gough || 41, 48—50, 58—59, 73, 78—79, 89, 160,
166-86, 207-26.)
Second, as to the requirement that the images be “displayed,” we find
no compelling argument by Appellants establishing that the images provided
in Figure 6 of Gough are not “displayed.” Gough provides images of
“multiplexed labeling of cells with a panel of biomarkers” that are “from
each channel of a multiplexed high content screen.” (Gough || 24 and 85
(describing what Figure 6 is)). Moreover, Gough teaches that the “the panel
of fluorescently labeled reagents indicate the presence, amount, location,
activity, distribution, or combination thereof, of the biomarkers in the
fluorescently labeled section and that this is part of the collected data of the
cellular systems biology profile that is stored in a database for reference”
and that “[v]arious methods can be used to compare the cellular systems
biology profile of the one or more further samples and the cellular systems
biology profile in the database, such as by graphical display, cluster
analysis, or statistical measure of correlation and combinations thereof’
(Gough || 46-47) (emphasis added) which “permits the identification of
similarities, differences, or a combination thereof, of the cellular systems
biology profile of the one or more further samples and the reference cellular
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systems biology profile” (Gough 146). The foregoing suggests that Gough
teaches displaying images which would permit comparisons to be made.
Appellants further argue that Gough and Hunter do not disclose
“assigning respective individual cells in the field of view to respective single
clusters” because “Gough’s clustering of heterogeneous cells does not
appear to be field-of-view based.” (Appeal Br. 12—13.) We agree with the
Examiner that Appellants’ argument is not persuasive. As discussed above,
“field of view” is interpreted to be the area in which the digital image is
obtained. And Gough teaches assessing a percentage of specific cells in the
specimen examined determined by their respective labels. (See, e.g., H
215—26.) As the Examiner notes, Appellants’ Specification indicates that
“the ‘attributes’ on which the cells are clustered are image features such as
‘a nucleus intensity ratio’ (0063) and other intensities that indicate
biomarker expression (0064).” (Ans. 10.) As the Examiner further explains:
Gough teaches that each cell from the sample is separately
classified into a single “response class” (0095). Since the
classification is performed on the basis of features extracted
from the images (0031, 0032; see also Hunter 0076), and since
each image is equivalent to “an individual field of view”,
Gough teaches that the cells “in the field of view” are assigned
to clusters. . . . [and] Gough teaches that the clustering
algorithm is particularly useful for resolving the cellular
heterogeneity of tissue composition (0095), further indicating
that one of the advantages of the clustering algorithm is that it
can assign different cells in a single image to different cell
clusters. So Gough teaches the contested limitation.
(Id. 10-11.)
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Claims 2, 6—15, 18, and 21—306 have not been argued separately and,
therefore, fall with claims 1 and 17. 37 C.F.R. § 41.37(c)(l)(iv).
SUMMARY
We affirm the rejection of claims 1, 2, 6—15, 17, 18, and 21—30 under
35 U.S.C. § 101 as being directed to non-statutory subject matter.
We affirm the rejection of claims 1, 2, 6—10, 13—15, 17, 18, 21—25,
and 28—30 under 35 U.S.C. § 103(a) as unpatentable over Gough and
Hunter.
We affirm the rejection of claims 11, 12, 26, and 27 under 35 U.S.C.
§ 103(a) as unpatentable over Gough, Hunter, and Theodoridis.
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
6 Appellants assert that “claims 11, 12, 26, and 27 are believed to be
allowable on the basis of its dependency from an allowable base claim, as
well as for the subject matter separately recited in these claims.” (Appeal
Br. 13.) Such an argument is not sufficient as a separate argument for
patentability of these claims. In reLovin, 652 F.3d 1349, 1357 (Fed. Cir.
2011) (noting that separately arguing a claim requires “more substantive
arguments in an appeal brief than a mere recitation of the claim elements and
a naked assertion that the corresponding elements were not found in the
prior art.”)
17