Ex Parte Belei et al

Patent Trial and Appeal Board

Jul 30, 2018

14116151 (P.T.A.B. Jul. 30, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/116,151 11/07/2013 Peter Belei
24737 7590 08/01/2018
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
465 Columbus A venue
Suite 340
Valhalla, NY 10595
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
2011P00426WOUS 6449
EXAMINER
STOFFA, WYATT A
ART UNIT PAPER NUMBER
2881
NOTIFICATION DATE DELIVERY MODE
08/01/2018 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):
patti. demichele@Philips.com
marianne.fox@philips.com
katelyn.mulroy@philips.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PETER BELEI and BART CARELSEN
Appeal2017-010024
Application 14/116, 151
Technology Center 2800
Before ROMULO H. DELMENDO, CHRISTOPHER L. OGDEN, and
JENNIFER R. GUPTA, Administrative Patent Judges.
GUPTA, Administrative Patent Judge.
DECISION ON APPEAL 1
Appellants2 appeal under 35 U.S.C. § 134(a) from the Examiner's
final decision rejecting claims 3, 6-8, 10, 15-19, 21, 22, 24--26, 28, and 30.
We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM-IN-PART.
1 In this Decision, we refer to the Specification filed November 7, 2013
("Spec."), the Final Office Action dated September 28, 2016 ("Final Act."),
the Advisory Action dated December 15, 2016 ("Advisory Act."), the
Appeal Brief filed February 27, 2017 ("Appeal Br."), the Examiner's
Answer dated May 19, 2017 ("Ans."), and the Reply Brief filed July 18,
2017 ("Reply Br.").
2 Appellants identify the real party in interest as Koninklijke Philips
Electronics N.V. Appeal Br. 1.
Appeal2017-010024
Application 14/116, 151
REJECTIONS
The Examiner maintains the following rejections on appeal: 3
1. Claims 3, 6-8, 10, 15, 21, 22, and 24 under pre-AIA 35 U.S.C.
§ I02(b) as anticipated by Okoda (US 2005/0047549 Al, published
March 3, 2005); and
2. Claims 16-19, 25, 26, 28 and 30 under pre-AIA 35 U.S.C.
§ I03(a) as unpatentable over Okoda in view of Liu (US 2011/0050403 Al,
published March 3, 2011) ("Liu").
ANALYSIS
The subject matter of the claims on appeal relates to an orientation
reference system for medical imaging. Spec. 4, 11. 10-16.
Rejection 1: Claims 3, 6-8, 15, 21, 22, and 24
Claim 3, reproduced below with emphasis to highlight key disputed
limitations, is illustrative of the claims on appeal.
3. A medical imaging apparatus comprising:
an X-ray imaging device with an X-ray source and an X-
ray detector, and an output unit configured to provide image
data;
wherein the X-ray imaging device is positionable in
relation to an imaged object in at least two movement
directions, and configured to acquire the image data from the
different directions;
3 The Examiner indicates that the rejection of claim 19 under 35 U.S.C.
§ 112, first paragraph, and the rejection of claim 22 under 35 U.S.C. § 112,
second paragraph, are withdrawn. Ans. 2.
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Application 14/116, 151
a display device configured to display on a display
screen: a diagnostic image based on the image from the x-ray
imaging device and second movement direction indicators;
first movement direction indicators configured to
indicate possible movement directions of the X-ray imaging
device in relation to the imaged object, the first movement
direction indicators being provided on a sidewall of a housing
of the X-ray detector, and/or next to a control interface for
accomplishing the positioning,
the first movement direction indicators and the second
movement direction indicators being equivalent and
presentable to different users, thereby forming a common
orientation reference system.
Appeal Br. 19 (Claims App.).
Independent claim 15 is directed to a method for positioning a
medical imaging system, and like claim 3, includes first and second
movement direction indicators, where the first movement direction
indicators are configured to indicate "possible movement directions of the
X-ray imaging device in relation to the imaged object" and "the first and
second movement direction indicators are equivalent."
The dispositive issue before us on appeal is: Has the Examiner
reversibly erred in finding that Okoda teaches "first movement direction
indicators" capable of indicating "possible movement directions of the X-ray
imaging device in relation to the imaged object" as recited in claims 3 and
15. On this record, we answer this question in the negative.
The Examiner rejects independent claims 3 and 15 under 35 U.S.C.
§ 102(b) as being anticipated by Okoda. In order for a prior art reference to
serve as an anticipatory reference, it must disclose every limitation of the
claimed invention, either explicitly or inherently. In re Schreiber, 128 F.3d
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Application 14/116, 151
1473, 1477 (Fed. Cir. 1997). In making our determination, we apply the
preponderance of the evidence standard. See, e.g., Ethicon, Inc. v. Quigg,
849 F .2d 1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary
standard for proceedings before the Office).
The Examiner finds that Okoda's Figures 1 and 2 teach the first and
second movement direction indicators of claim 3. Final Act. 5; Ans. 3.
Okoda discloses a method of using indicators for guiding an image taker
where to position and arrange an object in a detection plane of a
transportable X-ray device in order to take an X-ray image with "more
ease." Okoda ,r,r 51, 73. Specifically, the Examiner finds that indicators
106-1 through 106-4, reproduced below in Okoda's Figure 1, on the top
portions of the sidewalls of transportable X-ray image taking apparatus 101
teach the first movement direction indicators and indicators 202 and 203, in
Okoda's Figure 2 reproduced below, teach the second movement direction
indicators displayed on the monitor 201. Final Act. 5; see also Ans. 3.
FIG. 2
FIG. 1
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Figure 1 illustrates an embodiment of Okoda's transportable X-ray
image taking apparatus, and Figure 2 illustrates displaying the image from
the X-ray image taking apparatus of Figure 1 on monitor 201.
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Application 14/116, 151
The Examiner finds Okoda's indicators 106-1 through 106-4
"demonstrate the directions of the axes of the X-Y plane that defines the
detector surface thereof, and act as indicators for the discrimination of
rotation direction of the imaged object." Ans. 3. In addition, the Examiner
finds that because Figure 1 's X-ray image taking apparatus is transportable,
it is "positionable in any number of movement directions." Ans. 5 ( citing
Okoda ,r 44 ). The Examiner points out that Okoda discloses that its
indicators help with arranging an object in the center portion of the detection
plane of the image taking apparatus. Ans. 4, 5 (citing Okoda ,r 73). The
Examiner finds that one of ordinary skill in the art reading this disclosure
would have reasonably understood that Okoda's indicators indicate possible
movement directions of its imaging taking apparatus (i.e., the ability to
move the detector) in at least two orthogonal directions relative to the
imaged object to center the object in the detection plane. See Ans. 4--5.
Appellants argue that "Okoda teaches indicating a detection plane,
and not a movement direction indicator." Appeal Br. 7 ( emphasis omitted).
According to Appellants, "the direction of a detection plane does not show
the direction of a movable component." Reply Br. 2. Specifically,
Appellants' position is that Okoda's indicators are only for establishing a
frame of reference for rotating the object and therefore only teach
movement/rotation directions for the object according to a direction of a
detection plane, whereas the first movement direction indicators of
Appellants' imaging apparatus indicate possible movement directions for
moving the imaging device relative to the imaged object. Reply Br. 2.
Although Appellants acknowledge that Okoda's X-ray apparatus is
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Application 14/116, 151
transportable, Appellants contend that the components of the X-ray
apparatus are not "moveable relative to each other." Appeal Br. 8.
Appellants' arguments are not persuasive of reversible error. We give
claims on appeal their broadest reasonable interpretation consistent with the
Specification. In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed.
Cir. 2004). Claim 3 requires that the first movement direction indicators be
"configured to indicate possible movement directions of the X-ray imaging
device in relation to the imaged object." The express language of claim 3
only requires first movement direction indicators that are configured to
indicate possible movement directions of the X-ray imaging system in
relation to an imaged object, and does not require actual movement of the X-
ray imaging device relative to the imaged object.
A preponderance of the evidence supports the Examiner's finding that
Okoda teaches indicators ("first movement direction indicators") configured
to indicate possible movement directions of the X-ray imaging device in
relation to the imaged object. See Ans. 3-5. As the Examiner finds,
Okoda's indicators indicate to the image taking person the coordinate system
of the detection plane thereby enabling the image taking person to be
"capable of recognizing a direction in which he/she would arrange the object
with respect to the X-ray image taking apparatus 101" (Ans. 6 (citing Okoda
,r 46) in order "correctly position the object" (Okoda ,r 50). In addition,
Okoda teaches that "it is possible to conceive various appropriate image
taking directions depending on the arrangement of apparatuses ... the
moving paths of a subject and an operator ... and the like" (id. at ,r 51 ). A
person of ordinary skill in the art would have understood Okoda' s movement
indicators to indicate either a possible movement of the object itself or an
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Application 14/116, 151
equivalent movement of the X-ray apparatus in relation to the object.
Consequently, Okoda's indicators are configured to provide positioning
information to a person working the X-ray image taking apparatus on
possible movement directions of the X-ray imaging device relative to the
imaged object.
It is of no import that Okoda teaches actually moving the object rather
than the X-ray image taking apparatus to correctly take the X-ray because as
discussed above, claim 3 does not require actual movement of the X-ray
imaging device in relation to the imaged object. Accordingly, a
preponderance of the evidence supports the Examiner's determination that
Okoda teaches indicators ("first movement direction indicators") configured
to indicate possible movement directions of the X-ray imaging device in
relation to the imaged object.
Appellants argue that independent claim 15 is patentable over Okoda
for essentially the same reasons as discussed above with respect to
independent claim 3-"nothing in Okoda suggests Okoda's 106-1 to 106-4
would indicate a direction of a moveable component." Appeal Br. 12. Thus,
for the same reasons as discussed above, we determine that Appellants have
not identified reversible error in the Examiner's anticipation rejection of
independent claim 15.
Appellants do not present separate arguments for the patentability of
dependent claims 6-8, 21, 22, and 24, but instead rely on the same
arguments discussed above in regards to independent claims 3 and 15.
Appeal Br. 9-12.
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Application 14/116, 151
In view of the foregoing, we sustain the rejection of claims 3, 6-8, 15,
21, 22, and 24 as anticipated by Okoda. Separately argued dependent
claim 10 is discussed below.
Re} ection 1: Claim 10
Dependent claim 10 is reproduced below from the Claims Appendix
of the Appeal Brief:
10. The medical imaging apparatus according to
claim 3, wherein the first movement direction indicators are
configured to indicate spatial movement in relation to an image
plane; and
wherein the first movement direction indicators include
one of:
a) numerical indicators on a virtual dice, wherein the
dice has n faces; and wherein the numerical indicators are
arranged such that the sum of opposing numerical indicators is
n+l; and
b) colors of a spherical color model.
Appeal Br. 20 (Claims App.).
Appellants argue that "Okoda's indicators 106 are not necessarily part
of a spherical color model." Appeal Br. 11.
Appellants' argument is persuasive of reversible error. Appellants'
Specification discloses that "spatial movement can also result in spatial
orientation coding in [the] form of a spherical colour model," wherein
"complementary colours are oriented on opposing sides of the spherical
colour model." Spec. 12, 11. 27-29. Okoda teaches that its indicators each
include red and blue lamps. Okoda ,r 45. The indicators perform light
emission in red or blue to indicate different sides as the positive direction of
the X-axis. Id. ,r,r 45--46. The Examiner finds that because a color model
includes all the colors, Okoda's red and blue indicators "are colors of a
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spherical color model." Ans. 8. The Examiner, however, has not
established that Okoda teaches a spherical color model where its red and
blue lamps are oriented on opposing sides of the model. Accordingly, we do
not sustain the rejection of claim 10 as anticipated by Okoda.
Rejection 2: Claims 16, 17, 25, 26, and 30
Similar to independent claim 3, independent claim 16 is directed to a
medical imaging apparatus that includes first and second movement
direction indicators, wherein the first movement direction indicators are
configured "to indicate each of a plurality of movement directions in which
the diagnostic imaging apparatus is movable" and "the second movement
direction indicators [are] configured to indicate the same plurality of
movement directions as the first movement indicators." Appeal Br. 21
(Claims App.).
Appellants present no additional arguments against the rejection of
independent claim 16 aside from those already discussed above in relation to
independent claim 3. Appeal Br. 13-14. Consequently, we sustain the
rejection of independent claim 16 as obvious over Okoda for the reasons
discussed above.
Likewise, Appellants do not present additional arguments for the
patentability of dependent claims 17, 25, 26, and 30, which depend from
claim 16. Appeal Br. 13-17. Accordingly, we sustain the rejection of
dependent claims 17, 25, 26, and 30 as obvious over Okoda for the same
reasons as discussed above.
Separately argued dependent claims 18, 19, and 28 are discussed
below.
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Application 14/116, 151
Re} ection 2: Claims 18 and 19
Dependent claims 18 and 19 are reproduced below from the Claims
Appendix of the Appeal Brief.
18. The medical imaging apparatus according to
claim 16, wherein the first and second movement direction
indicators include numerical indicators which are arranged such
that a sum of all opposing pairs of numerical indicators are the
same.
19. The medical imaging apparatus according to
claim 16, wherein the second movement direction indicator
includes a chromatic circle.
Appeal Br. 21 (Claims App.).
With regards to claims 18 and 19, the Examiner determines that
numerical indicators and chromatic circles are aesthetic design choices
because "indicators using arrows, numbers, pictures of small animals, color
coordination, or any number of other ornamental choices all perform the
exact same function and relate to the substrate in the same fashion." Ans. 9.
Appellants argue that the limitations of claims 18 and 19 are not
merely aesthetic design choices, and perform a function of providing the
"possibility to identify the respective complementary direction" ( claim 18)
and "easy identification of directions" (claim 19). Appeal Br. 14, 15.
Informational indicators on an invention give rise to a patentable
distinction over the prior art only if they are functionally related to the
operation of the invention. Cf In re Gulack, 703 F.2d 1381, 1386 (Fed. Cir.
1983) ("[T]he critical question is whether there exists any new and
unobvious functional relationship between the printed matter and the
substrate."); Praxair Distribution, Inc. v. Mallinckrodt Hosp. Prod. IP Ltd.,
890 F.3d 1024, 1031 (Fed. Cir. 2018) ("Claim limitations directed to printed
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matter are not entitled to patentable weight unless the printed matter is
functionally related to the substrate on which the printed matter is applied.").
That is, the content of the information (i.e., whether the content is in the
form of arrows, numbers, shapes, etc.) must amount to more than a mere
design choice. In re Rice, 341 F.2d 309, 314 (CCPA 1965) (Design changes
that do not "result in a difference in function or give unexpected results" are
"no more than obvious variations consistent with the principles known in
th[e] art."); see also In re Chu, 66 F.3d 292, 298-99 (Fed. Cir. 1995)
( determining "design choice" is appropriate where "the applicant failed to
set forth any reasons why the differences between the claimed invention and
the prior art would result in a different function or give unexpected results").
Here, we disagree with the Examiner that the arrangement of the
numerical operators in claim 18 has no function. The claim discloses that
the numerical indicators are arranged "such that a sum of all opposing pairs
of numerical indicators are the same" which indicates performing a
particular mathematical operation in order to determine the arrangement of
the indicators and the resulting complementary direction. The Specification
clarifies that "the respective opposing faces sum up to the number of seven
to provide the possibility to identify the respective complementary
direction." Appeal Br. 14 (citing Spec. 12, 11. 22-24). As such, we find that
the arrangement of the numerical indicators is not interchangeable with
"arrows, numbers, pictures of small animals, color coordination, or any
number of other ornamental choices" as determined by the Examiner
because the claim language requires performing a specific function (i.e.
summing opposing pairs) to determine the arrangement of the numerical
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indicators and the subsequent complementary direction. Accordingly, we do
not sustain the rejection of claim 18 as obvious over Okoda.
Conversely, we agree with the Examiner that displaying the indicator
as a chromatic circle is merely a design choice. As the Examiner finds,
Figures 6A---6D of the present application show that the second movement
indicators can be interchangeably displayed as four colors, dot symbols,
letters and clock positions. Spec. 11, 1. 28-12, 1. 8. This supports the
Examiner's position that the chromatic circle of claim 19 is merely a design
choice and performs the same function regardless of what symbol/color is
used to depict it. Ans. 9-10. Accordingly, we do sustain the rejection of
claim 19 as obvious over Okoda.
Rejection 2: Claim 28
Dependent claim 28 is reproduced below from the Claims Appendix
of the Appeal Brief:
28. The medical imaging apparatus according to
claim 16, wherein the display device is further configured to
display indicators indicative of at least one of rotation and
depth relative to a plane defined by the plurality of motion
indicators.
Appeal Br. 23 (Claims App.).
The Examiner finds that the monitor in Okoda's Figure 2 is capable of
displaying indicators indicative of depth as demonstrated by Figure 2 's
display of the size of the hand relative to the screen, which can be indicative
of the hand's depth relative to a plane. Final Act. 14; see also Ans. 10.
Appellants argue that changing the size of the hand relative to the
screen in Okoda's Figure 2 is not a teaching of a display device configured
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to display indicators indicative of "at least one rotation and depth relative to
a plane defined by the plurality of motion indicators." Appeal Br. 16.
Appellants' argument is unpersuasive of error in the Examiner's
rejection. Claim 28 only requires at least one of the two types of indicators
(rotation and depth). We agree with Appellants that Okoda is silent as to
any discussion of indicators of depth relative to a plane defined by the
plurality of motion indicators. Figure 2, cited to by the Examiner, lacks a Z-
axis and does not indicate that the sizes of the hand and the screen are drawn
accurately to reflect the relationship of their sizes to one another. The
Examiner, however, finds that the monitor in Okoda's Figure 2 is configured
to display a diagnostic image of the X-rayed imaged object with indicators
indicative of rotation. Ans. 10 (citing Okoda ,r 47; Fig. 2). Appellants do
not dispute or identify error in the Examiner's finding. Appeal Br. 16;
Reply Br. 13. Accordingly, we sustain the rejection of claim 28.
The remaining arguments have been carefully considered but are
unpersuasive as to error in the rejection.
DECISION
The rejection of claims 3, 6-8, 15, 21, 22, and 24 under pre-AIA
35 U.S.C. § 102(b) as anticipated by Okoda, and the rejection of claims 16,
17, 19, 25, 26, 28, and 30 under pre-AIA 35 U.S.C. § 103(a) as unpatentable
over Okoda in view of Liu are affirmed.
The rejection ofclaim 10 underpre-AIA 35 U.S.C. § 102(b) as
anticipated by Okoda, and the rejection of claim 18 under pre-AIA
35 U.S.C. § 103(a) as unpatentable over Okoda in view of Liu are reversed.
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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-IN-PART
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