Ex Parte Adler et al

Board of Patent Appeals and Interferences

May 4, 2012

10097096 (B.P.A.I. May. 4, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte DORON ADLER, OFRA ZINATY, DAPHNA LEVY, and
ARKADY GLUKHOVSKY
__________

Appeal 2010-012509
Application 10/097,096
Technology Center 3700
__________

Before TONI R. SCHEINER, DEMETRA J. MILLS, and ERIC GRIMES,
Administrative Patent Judges.

GRIMES, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to methods
and systems for displaying information received from a swallowable device.
The Examiner has rejected the claims as obvious. We have jurisdiction
under 35 U.S.C. § 6(b). We affirm.
STATEMENT OF THE CASE
The Specification discloses “a system for detection of blood within a
body lumen,” which “includes a swallowable capsule having an in-vivo
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imager for obtaining images from within the body lumen” (id. at 3:28-30).
“In a preferred embodiment of the present invention, received images are
analyzed for color content. Based on this analysis, … determination as to the
presence or absence of a colorimetric abnormality may be made…
[E]xamples of pathologies which may be detected based on the red part of
the spectrum include active bleeding, blood clots,” etc. (Spec. 6.)
Claims 57, 59, 61, 63-67, and 71 are on appeal. Claim 57 is
representative and reads as follows:
57. A method for displaying in-vivo information, the method
comprising:
receiving at a data processor data generated by a swallowable in-vivo
device traversing a GI tract, the data comprising a set of in-vivo images of
the GI tract;
the data processor comparing values of the received images to a
reference value of blood and to a reference value of healthy tissue;
the data processor causing to be displayed the images as a color video;
and
the data processor further, based on the comparison, causing to be
displayed an indication of the position in the GI tract of a change in the level
of red color content, the change correlating to the presence of blood.

All of the claims on appeal stand rejected under 35 U.S.C. § 103(a)1
based on either Meron2 and Hirata3 or Iddan4 and Hirata.

1 Appellants also state that the Examiner’s objection to the claims is being
appealed (Appeal Br. 4), but claim objections are reviewed only by way of
petition, not appeal. See MPEP § 706.01.
2 Meron et al., WO 00/22975, Apr. 27, 2000.
3 Masaru Hirata et al., Study of new prognostic factors of esophageal
variceal rupture by use of image processing with a video endoscope, 116
SURGERY 8-16 (1994).
4 Iddan et al., US 5,604,531, Feb. 18, 1997.
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I.
Issue
The Examiner has rejected all of the claims on appeal as being
obvious in view of Meron and Hirata. Claims 59, 61, 63-67, and 71 have not
been argued separately and therefore stand or fall with claim 57. 37 C.F.R.
§ 41.37(c)(1)(vii).
The Examiner finds that Meron discloses a capsule “that moves
through the gastrointestinal (GI) tract in order to generate a map of the GI
tract” (Answer 4). The Examiner finds that Meron discloses that “[s]pecific
locations in which surgery are to be performed are recognized in an
analyzing unit, by analysis of the map…. The location of the imaging device
can be determined based on the map.” (Id.) The Examiner finds that
Meron’s “device can additionally include any known sensor element, such as
… means for sensing the presence of blood” (id.).
The Examiner finds that Hirata discloses “a study of factors
[indicative] of esophageal variceal rupture by use of image processing with a
video endoscope” (id.). The Examiner finds that Hirata discloses a
comparison “between bleeders and non-bleeders in terms of endoscopic
findings and … image processing data, especially variceal color tone and red
color sign” (id. at 4-5). The Examiner finds that Hirata discloses that
“electronic video endoscopy has allowed colorimetric analysis at the level of
the mucosa.… Red color signs were classified in a minor degree, which
indicated negative or mild…, and a major degree, which indicated moderate
or severe.” (Id. at 5.) The Examiner concludes that it would have been
obvious to one of ordinary skill in the art to incorporate Hirata’s “processor
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for the colorimetric analysis of video endoscopic data … in order to
determine the presence of blood, as stated by Meron because Meron … fails
to provide the [detection] specifics … while Hirata provides a method and a
processor capable” of detecting blood (id.).
Appellants argue that cited references would not have made obvious a
data processor “comparing values of the received images to a reference
value of blood and to a reference value of healthy tissue” and “based on the
comparison, causing to be displayed an indication of the position in the GI
tract of a change in the level of red color content, the change correlating to
the presence of blood,” as recited in claim 57. (App. Br. 5.)
The issue presented is: Does the evidence of record support the
Examiner’s conclusion that the cited references would have made obvious
using a data processor to “compar[e] values of the received images to a
reference value of blood and to a reference value of healthy tissue” and
“based on the comparison, causing to be displayed an indication of the
position in the GI tract of a change in the level of red color content, the
change correlating to the presence of blood,” as recited in claim 57?
Findings of Fact
1. Meron discloses that there “are numerous pathologies of the
gastrointestinal tract, such as lesions causing chronic gastrointestinal tract
blood loss” (Meron 1:10-11)
2. Meron discloses a method that “combines identifying and
localizing a pathology in the gastrointestinal tract with administrating [sic]
treatment to the location of the pathology” (id. at 8:3-5).
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3. Meron discloses “a sensing and utility device which is inserted into
the gastrointestinal tract, either by swallowing it or by placing it in the
gastrointestinal tract” (id. at 8:6-7).
4. Meron discloses that the “sensing and utility device may comprise
… any one or any combination of a video camera, which generates an image
of the gastrointestinal tract, or sensing means, such as temperature, pressure
or pH sensors or means for sensing the presence of blood, microorganisms,
parasites or pathological indications” (id. at 5:23 to 6:3).
5. Meron discloses that as the device “moves through the digestive
system (gastrointestinal tract) 62, in its first pass, it views the walls of the
digestive system …, and transmits the resultant images to a reception system
64 typically located outside a patient” (id. at 11:16-19).
6. Meron discloses that the “reception system 64 receives a
multiplicity of versions of the images … and either stores the received
signals in the storage unit 68 or provides the received signals … to the data
processor 66” (id. at 11:19-23).
7. Meron discloses that the “data processor 66 typically operates two
monitors, a position monitor 63, on which the current location of the capsule
60 within the digestive system is recorded, and, optionally, displayed and an
image monitor 61, on which the image currently viewed by the capsule 60 is
displayed” (id. at 11:23 to 12:2).
8. Hirata discloses that “[b]leeding from esophageal varices is one of
the most serious complications of portal hypertension. Endoscopic
examination can be used to reveal the bleeding point.” (Hirata 8, left col.)
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9. Hirata discloses that gastrointestinal “[e]lectronic video endoscopy
… makes it possible to quantify areas of the electronic image, allowing
colorimetric analysis … of the mucosa” (id. at 8, right col.).
10. Hirata “analyzed electronic images of esophageal varices in an
attempt to devise some improved diagnostic criteria for predicting variceal
hemorrhage” (id. at 9, left col.).
11. Hirata discloses that “image processing was performed on the
esophageal mucosa within 5 cm from the esophagogastric junction … where
variceal rupture occurs most frequently” (id. at 13, left col.).
12. Hirata discloses that color tone was analyzed by comparing the
color tone of a defined varices region with the color tone of a defined normal
esophageal region (id. at 11, left col.).
13. Hirata discloses that the area of red color sign was also
determined for a defined varices region (id.).
14. Hirata discloses that, using image processing, both color tone
results and area of red color sign results could be used to select patients with
varices that have a higher risk of rupture (id., abstract).
Analysis
Claim 57 is directed to a method which comprises receiving at a data
processor images generated by a swallowable in-vivo device as it traverses a
GI tract, comparing values of the images to reference values of blood and
healthy tissue, displaying the images as a color video, and indicating the
position in the GI tract of a change in the level of red color content that
correlates to the presence of blood.
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Meron discloses a method of identifying a pathology in the
gastrointestinal tract, including those associated with bleeding, that uses a
swallowable device that comprises a video camera and a sensing means,
including a means for sensing the presence of blood. Hirata discloses that
endoscopy can be used to identify bleeding points in the GI tract, and that
electronic video endoscopy allows colorimetric analysis of the GI tract
mucosa for the purpose of assessing pathological conditions. Thus, it would
have been obvious to one of ordinary skill in the art to apply Hirata’s
method of colorimetric analysis to Meron’s method for identifying a
pathology associated with bleeding because Meron suggests including a
means to sense the presence of blood in its device and Hirata’s method
allows image processing to detect areas with different red color values,
which those of skill in the art would understand to include detection of
blood.
Appellants argue that the cited references would not have made it
obvious to use a data processor to compare images and, “based on the
comparison, causing to be displayed an indication of the position in the GI
tract of a change in the level of red color content, the change correlating to
the presence of blood,” as recited in claim 57 (Appeal Br. 5-6). Appellants
argue that “Hirata is directed to a study where an endoscope was used to
view varices (blood vessels) in the gastrointestinal (GI) tract, rather than
blood.… No actual bleeding was detected by image analysis; rather bleeding
was detected by direct observation.” (Id. at 6.)
This argument is not persuasive. Although neither Meron nor Hirata
expressly discloses the use of image comparison to detect blood, Meron
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discloses the use of a video camera to detect abnormalities in the GI tract
that may be associated with bleeding and also suggests the use of a sensor
for blood. Hirata discloses diagnosis using image comparisons to detect
changes in the red color spectrum in the GI tract. Based on these
disclosures, we agree with the Examiner that it would have been obvious to
one of ordinary skill in the art to combine Hirata’s image comparison
technique with Meron’s diagnostic system as another means to detect blood.
Appellants also argue that “Hirata did not teach comparing images to
a reference value of blood, and … a reference value of a healthy tissue”
(Appeal Br. 6) or disclose a processor that does so (id. at 7). This argument
is not persuasive. Hirata discloses comparing the color tone of a known
variceal region with the color tone of a known healthy esophageal region
(FF 12). Thus, it would have been obvious to use Hirata’s processor to
compare the color tone of an image with a reference value for healthy tissue
and a reference value for blood in order to detect the presence of blood, as
suggested by Meron (FF 4).
Appellants argue that there “would be no reason or motivation to
combine a system including an internal, in-vivo blood detector in a
swallowable capsule (Meron) with a system for predicting bleeding based on
a human decision after image analysis from an endoscope” (Appeal Br. 8).
This argument is not persuasive. Although Meron’s system was not
designed to automatically provide a diagnostic result, modifying it to include
the image comparison disclosed by Hirata, and recited in the claims, would
have been obvious for the reasons discussed above.
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Conclusion of Law
The evidence of record supports the Examiner’s conclusion that the
cited references would have made obvious using a data processor to
“compar[e] values of the received images to a reference value of blood and
to a reference value of healthy tissue” and “based on the comparison,
causing to be displayed an indication of the position in the GI tract of a
change in the level of red color content, the change correlating to the
presence of blood,” as recited in claim 57.
II.
The Examiner has also rejected claims 57, 59, 61, 63-67 and 71 under
35 U.S.C. § 103(a) as being obvious in view of Iddan and Hirata. Since we
have concluded that these claims are unpatentable based on Meron and
Hirata, as discussed above, we do not reach the rejection based on Iddan and
Hirata.
SUMMARY
We affirm the rejection of claims 57, 59, 61, 63-67 and 71 under 35
U.S.C. § 103(a).
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

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