Ex Parte Brunner et al

Board of Patent Appeals and Interferences

Jun 25, 2009

11284235 (B.P.A.I. Jun. 25, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte THOMAS BRUNNER, KLAUS KLINGENBECK-REGN,
MICHAEL MASCHKE, ALOIS NOTTLING, ERNST-PETER
RUHRNSCHOPF, BERNHARD SCHOLZ, BERND SCHREIBER,
NORBERT KARL STROBEL, KARL WIESENT and MICHAEL
ZELLERHOFF
____________

Appeal 2009-002211
Application 11/284,235
Technology Center 2800
____________

Decided:1 June 25, 2009
____________

Before MAHSHID D. SAADAT, ROBERT E. NAPPI
and KARL D. EASTHOM, Administrative Patent Judges.

SAADAT, Administrative Patent Judge.

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
Appeal 2009-002211
Application 11/284,235

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DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a Final Rejection of
claims 19-24 and 26-29. Claims 1-18 and 25 have been canceled. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.
STATEMENT OF THE CASE
Appellants’ invention relates to an angiographic x-ray diagnostic
device for correcting physical effects and/or inadequacies in the recording
system for soft tissue display of the image (Spec. 2). Claim 19, which is
representative of the claims on appeal, reads as follows:
19. An angiographic x-ray diagnostic device for rotation
angiography, comprising:

an x-ray emitter configured to be moved along a circular path
around a patient located on a patient support table;

an image detector unit configured to be moved along the
circular path, the image detector facing the x-ray emitter;

a digital image system for recording a plurality of projection
images by rotation angiography;

an image processing device for reconstructing a three-
dimensional volume image from the projection images; and

a correction device connected to the digital image system for
correcting unwanted physical effects or inadequacies related to the
digital image system, the correction device configured to enhance
recording of soft tissue such that an image quality of the projection
images recorded from the soft tissue and the corresponding three-
dimensional volume image is improved.

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The Examiner relies on the following prior art reference:
Klotz US 5,852,646 Dec. 22, 1998
Roos US 6,041,097 Mar. 21, 2000
Ohishi US 2003/0031299 A1 Feb. 13, 2003

Claims 19-21, 24, 26, and 29 stand rejected under 35 U.S.C. § 102(b)
as being anticipated by Ohishi.
Claims 22 and 23 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Ohishi and Klotz.
Claims 27 and 28 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Ohishi and Roos.2
Rather than repeat the arguments of Appellants or the Examiner, we
make reference to the Briefs and the Answer for their respective details.
Only those arguments actually made by Appellants have been considered in
this decision. Arguments that Appellants did not make in the Briefs have
not been considered and are deemed to be waived. See 37 C.F.R.
§ 41.37(c)(1)(vii).

ISSUES
Rejection over Ohishi
Appellants argue that Ohishi does not anticipate because the “beam
hardening corrector 34” of Ohishi is not the same as the “correction device,”
as recited in claim 19 (App. Br. 5). Appellants specifically argue that Ohishi
only discloses correcting beam hardening effects caused by the contrast
agent, and not the claimed “correction device connected to the digital image

2 The Final Rejections of the claims are repeated on pages 3-6 of the
Examiner’s Answer.
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system for correcting unwanted physical effects or inadequacies related to
the digital image system” (id.). Therefore, Appellants’ arguments present
the following first issue:
Have Appellants shown that the Examiner erred in finding that Ohishi
anticipates the rejected claims by teaching “a correction device connected to
the digital image system for correcting unwanted physical effects or
inadequacies related to the digital image system”?
Rejection over Ohishi and Klotz
Appellants argue that the “correction for geometrical distortion” of
Klotz is not the same as the claimed calibration, as recited in claim 22 (App.
Br. 10). Therefore, Appellants’ arguments present the following second
issue:
Have Appellants shown that the Examiner erred in finding that the
combination of Ohishi and Klotz render claims 22 and 23 obvious by
teaching the claimed calibration?
Rejection over Ohishi and Roos
Appellants merely argue that Roos does not compensate for the
deficiencies noted above with regard to Ohishi (App. Br. 11). Appellants
further make general allegations of patentability with respect to claims 27
and 28, stating that the combination of each claim “remains distinct and non-
obvious” (id.).
Therefore, Appellants’ arguments present no new issue other than the
first issue, allowing claims 27 and 28 to fall with claim 19.

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FINDINGS OF FACT
The following findings of fact (FF) are relevant to the issues
involved in the appeal.
Ohishi
1. Ohishi relates to an image processing apparatus and a medical
imaging modality, both of which provide images of the internal structure of
an object to be examined, being capable of correcting beam hardening due to
a contrast agent injected into the object. (¶ [0002].)
2. Ohishi describes a problem with 3D imaging based on the
angiography system. For imaging an aneurysm having a larger diameter as
shown in FIG. 1B, reconstructed values at pixels residing within the
aneurysm itself are likely to reduce, causing a certain inner area of an
aneurysm to be displayed without pixel values, that is, in a hollow state.
Concurrently with this, other blood vessels that run around the aneurysm are
displayed thinner than their true diameters. (¶ [0009].)
3. The cause is considered one type of beam hardening
phenomenon, in which projection data based on a specific region of the X-
ray spectrums that contributes largely to the absorption of a contrast agent
decrease greater compared to projection data based on the remaining region
of the X-ray spectrums. Various types of correction techniques have been
proposed concerning this beam hardening toward such elements as bones
and soft tissues. (¶ [0010].)
4. As depicted in Figure 2, the beam hardening corrector 34
corresponds to the correcting unit, the 3D-reconstucting processor
corresponds to the reconstructing unit, and the subtractor 31 corresponds to
the processing unit. (¶ [0048].)
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5. The beam hardening corrector 34 is placed to correct the beam-
hardening phenomenon caused primarily by a contrast agent injected into an
object. Ohishi uses a correction table 34A, which is stored in the beam
hardening correlator 34, defining the correlation relationship between the
actual and the correcting values. (¶ [0066].)
6. Although the first embodiment of Ohishi takes only the
influences of a contrast agent into account, some other factors, such as
locations (a bone or a soft tissue), are identified to have a large influence on
measured data. For example, in the case of measuring the head, its bone
influences the measurement largely, whereas in measuring the abdomen, the
soft tissue is a more influential factor. (¶ [0092].)
7. In a third embodiment, Ohishi discloses that the beam-
hardening corrector 34 of Figure 2 has one or more correction tables 34A, in
which correction data for the bone and/or the soft tissue, each having typical
amount of densities, are stored. (¶ [0093].)
Klotz
8. Klotz relates to an X-ray image method for obtaining an
enhanced, quasi three-dimensional impression of the position of the structure
related to the diagnosis, for example a tumor, in relation to the anatomy
reproduced in the X-ray images. (Col. 1, l. 66 – col. 2, l. 4.)
9. Klotz describes correcting or calibrating the X-ray images by a
calibration member for removing the geometric distortions caused during the
imaging process. (Col. 5, l. 43 – col. 6, l. 21.)

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PRINCIPLES OF LAW
Anticipation
In rejecting claims under 35 U.S.C. § 102, a single prior art reference
that discloses, either expressly or inherently, each limitation of a claim
invalidates that claim by anticipation. Perricone v. Medicis Pharmaceutical
Corp., 432 F.3d 1368, 1375-76, 77 (Fed. Cir. 2005), citing Minn. Mining &
Mfg. Co. v. Johnson & Johnson Orthopaedics, Inc., 976 F.2d 1559, 1565
(Fed. Cir. 1992). Also See In re Paulsen, 30 F.3d 1475, 1478-79 (Fed. Cir.
1994). Anticipation of a claim requires a finding that the claim at issue
reads on a prior art reference. Atlas Powder Co. v. IRECO, Inc., 190 F.3d
1342, 1346 (Fed. Cir. 1999) (quoting Titanium Metals Corp. of America
v. Banner, 778 F.2d 775, 781 (Fed. Cir. 1985)).
It is well settled that if a prior art device inherently possesses the
capability of functioning in the manner claimed; anticipation exists
regardless of whether there was recognition that it could be used to perform
the claimed function. See, e.g., In re Schreiber, 128 F.3d 1473, 1477 (Fed.
Cir. 1997).
Obviousness
The test for obviousness is what the combined teachings of the
references would have suggested to one of ordinary skill in the art. See In re
Kahn, 441 F.3d 977, 987-988 (Fed. Cir. 2006), In re Young, 927 F.2d 588,
591 (Fed. Cir. 1991) and In re Keller, 642 F.2d 413, 425 (CCPA 1981). The
initial burden of establishing reasons for unpatentability rests on the
examiner. In re Oetiker, 977 F.2d 1443, 1446 (Fed. Cir. 1992).
The Examiner can satisfy this burden by showing some articulated
reasoning with some rational underpinning to support the legal conclusion of
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obviousness. KSR Int’l. v. Teleflex Inc., 550, U.S. 398, 418 (2007) (quoting
In re Kahn, 441 F.3d at 988 (Fed. Cir. 2006)).

ANALYSIS
1. 35 U.S.C. § 102(b) Rejection
Appellants’ arguments that the Examiner erred in rejecting claim 19
as being anticipated by Ohishi are not persuasive. Specifically, Appellants
focus on one aspect of the disclosure of Ohishi and ignore the reference
disclosure as a whole. While Ohishi describes the first disclosed
embodiment in terms of correcting beam hardening due to the presence of a
contrast agent (FF 1-5), contrary to Appellants’ arguments (App. Br. 4-6),
the reference does not preclude correcting the image data related to imaging
of the soft tissue. In that regard, as argued by the Examiner (Ans. 9), the
beam hardening corrector 34 in Ohishi also performs correction for images
related to the bone and/or soft tissue (FF 6-7). Correcting for the soft tissue
influences is disclosed as a correction in addition to the correction performed
due to the influences of a contrast agent (FF 6).
Additionally, we also disagree with Appellants’ argument (Reply Br.
3 that Ohishi is limited to correcting beam hardening caused by a contrast
agent. Ohishi, in fact, recognizes that a variety of correction techniques are
available for the beam hardening corresponding to soft tissue (see FF 3) and
focuses on a technique to address correcting beam hardening caused due to a
contrast agent (FF 4-5). However, Ohishi discloses a situation where the
correction is performed for the bone and/or soft tissue, in addition to the
beam hardening due to the presence of a contrast agent (FF 6-7).
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We also remain unpersuaded by Appellants’ argument (App. Br. 6-7)
that, unlike Ohishi, the claimed correction is performed for the effects or
inadequacies related to the digital image system. As argued by the Examiner
(Ans. 7), the breadth of the claimed requirement merely calls for correcting
one of the possible corrections to the imaging system. In that regard, the
correction disclosed by Ohishi concerns correcting the beam hardening
which is the same as “correcting unwanted physical effects or inadequacies
related to the digital image system,” as recited in claim 19.
Regarding the rejection of claim 20, we also agree with the Examiner
(Ans. 9) that one of the recited corrections relates to enhancing recording of
soft tissue image. Contrary to Appellants’ assertion (App. Br. 8), Ohishi’s
correction relates to beam hardening due to the influence of soft tissue
imaging (FF 6-7).
Appellants present no separate argument for claims 21, 24, 26, and 29
and argue their patentability based on the same arguments made supra with
respect to claim 19 (App. Br. 8-9). In view of the above discussions, since
all of the claimed limitations are shown to be present in the disclosure of
Ohishi, the Examiner’s 35 U.S.C. § 102(b) rejection of claims 19 and 20, as
well as claims 21, 24, 26, and 29 which fall with claim 19, is sustained.
2. 35 U.S.C. § 103(a) Rejections
With respect to claims 22 and 23, Appellants acknowledge (App. Br.
10) the Examiner’s reliance on Klotz for providing a “distortion calibration,”
which was identified as missing in Ohishi. Appellants, however, argue (id.)
that it is improper to assume that any correction for geometrical distortion is
the same as the claimed calibration. As stated by the Examiner (Ans. 12-
13), Klotz does disclose correcting or calibrating for removing the geometric
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distortions caused by the image processing in an X-ray imaging system (FF
8-9). Thus the limitations of claims 22 and 23 are taught by the combination
of Ohishi and Klotz.
Additionally, Appellants argue patentability of claims 27 and 28 by
relying on the same arguments made with respect to claim 19 (App. Br. 11),
which we found to be unpersuasive. Therefore, for the reasons discussed
above, we sustain the 35 U.S.C. § 103(a) rejections of claims 22 and 23 over
Ohishi and Klotz and of claims 27 and 28 over Ohishi and Roos.

CONCLUSION
On the record before us, Appellants have failed to show that the
Examiner erred (1) in finding that Ohishi anticipates the rejected claims by
teaching “a correction device connected to the digital image system for
correcting unwanted physical effects or inadequacies related to the digital
image system” and (2) in finding that the combination of Ohishi and Klotz
render claims 22 and 23 obvious by teaching the claimed calibration.

ORDER
The decision of the Examiner rejecting claims 19-24 and 26-29 is
affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. 1.136(a)(1)(iv).

AFFIRMED

Appeal 2009-002211
Application 11/284,235

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