Ex Parte Homegger

Patent Trial and Appeal Board

Jun 27, 2013

11089251 (P.T.A.B. Jun. 27, 2013)

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.
11/089,251 03/24/2005 Joachim Homegger 2003P18604US 8159
7590 06/28/2013
SIEMENS CORPORATION
INTELLECTUAL PROPERTY DEPARTMENT
170 WOOD AVENUE SOUTH
ISELIN, NJ 08830
EXAMINER
WANG, CLAIRE X
ART UNIT PAPER NUMBER
2666
MAIL DATE DELIVERY MODE
06/28/2013 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 PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte JOACHIM HOMEGGER
____________________

Appeal 2011-001352
Application 11/089,251
Technology Center 2600
____________________

Before THU A. DANG, JAMES R. HUGHES, and
GREGORY J. GONSALVES, Administrative Patent Judges.

DANG, Administrative Patent Judge.

DECISION ON APPEAL

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I. STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from a Final Rejection of
claims 13-25. Claims 1-12 have been canceled. We have jurisdiction under
35 U.S.C. § 6(b).
We affirm.

A. INVENTION
Appellant’s invention relates to local 3-Dimensional (3D)
reconstruction of an object area of an examination object from 2D image
data of several 2D X-ray images of the examination object which were
registered using an X-ray apparatus in chronological order with different
known projection geometries (Spec. 1, ll. 6-10).

B. ILLUSTRATIVE CLAIM
Claim 13 is exemplary:
13. A method of reconstructing a medical three-
dimensional image of an in-body examination area of a patient
using two-dimensional image data, comprising:
recording a plurality of two-dimensional images of the
in-body examination area in chronological order using an x-ray
device, the two-dimensional images having different projection
geometries;
selecting a feature of an in-body sub-area identified in
one of the two-dimensional images;
assigning an initial position to the selected feature of the
in-body sub-area;
determining a movement of the in-body sub-area of the
in-body examination area based on position information solely
obtained from at least some of the two-dimensional images,
wherein the determining of the movement of the in-body sub-
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area comprises spatially tracking in said at least some of the
two-dimensional images movement of the in-body sub-area
relative to the initial position of the selected feature of the in-
body sub-area;
compensating for the determined movement by
modifying two-dimensional image data included in the two-
dimensional images, the modifying of the two-dimensional
image data based on the determined movement of the in-body
sub-area; and
reconstructing a three-dimensional image of the in-body
examination area using the modified two-dimensional image
data, wherein the determining of the movement of the sub-area
includes:
identifying the sub-area in at least one of the two-
dimensional images, determining a number of positions of the
sub-area within a number of two-dimensional images other than
the at least one two-dimensional image, and
calculating the movement of the sub-area using the
determined number of positions and the projection geometries.

C. REJECTION
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Anderson US 2002/0168618 A1 Nov. 14, 2002
Hebecker US 6,771, 734 B2 Aug. 3, 2004
Gilboa US 2007/0232896 A1 Oct. 4, 2007
Claims 13, 20, and 22 stand rejected under 35 U.S.C. § 102(b) as
being anticipated by Hebecker.
Claims 14, 15, 17, 21, and 23-25 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Hebecker and Gilboa.
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Claim 16 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Hebecker.
Claims 18 and 19 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Hebecker and Anderson.

II. ISSUE
The dispositive issue before us is whether the Examiner has erred in
finding that the Hebecker teaches “selecting a feature of an in-body sub-area
identified in one of the two-dimensional images” and “determining a
movement of the in-body sub-area of the in-body examination area based on
position information” (claim 13).

III. FINDINGS OF FACT
The following Findings of Fact (FF) are shown by a preponderance of
the evidence.
Hebecker
1. Hebecker discloses generating a volume dataset representing a
subject, wherein Hebecker’s Figure is reproduced below:
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The Figure discloses a C-arm X-ray apparatus 1 comprising a C-arm 7
with an X-ray source 5 and an X-ray receiver 6 (col. 3, ll. 28-34), wherein
2D projections of body regions of the patient P or a volume dataset of a body
region of the patient P is acquired with the C-arm X-ray apparatus (col. 3, ll.
38-40) and the position of orientation of a referencing base 30 firmly
attached to the bone K of the patient P is determined using the position
acquisition system 20 (col. 3, ll. 52-58).
2. For acquiring a volume dataset of the bone K of the patient P,
2D projections of the bone are acquired from different projection directions,
and, in order to take the respiration-produced movements of the bone K into
consideration, the position and orientation of the referencing base 3 is
determined by the position acquisition system 20 substantially
simultaneously with the exposure of each 2D projection (col. 4, ll. 7-18).
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IV. ANALYSIS
Claims 13, 20, and 22
Although Appellant concedes that “Hebecker uses position
information” (App. Br. 5), Appellant contends that “in Hebecker the position
information is determined from optical position acquisition system 20 and
referencing base 30 (not an x-ray device, as recited in the claimed
invention)” (App. Br. 6). However, the Examiner finds that “Hebecker
teaches a referencing base that is attached firmly to the bone of the patient in
order to determine the position of the bone,” and that “the referencing base
is considered to be an in-body sub-area that is used to determine movement
of the bone” (Ans. 13). The Examiner points out that “the claim language
does not exclude the use of other imaging devices to obtain said 2D images”
(id.).
We will not read limitations from the Specification into the claims. In
re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993). Although Appellant
contends that Hebecker’s the position information is determined “not [from]
an x-ray device, as recited in the claimed invention” (App. Br. 6), such
contention is not commensurate in scope with the recited language of the
claims since the claims do not recite any such determination by an x-ray
machine. We agree with the Examiner that “the claim language does not
exclude the use of other imaging devices to obtain said 2D images” (Ans.
13). That is, claim 13 merely recites “determining a movement of the in-
body sub-area of the in-body examination area based on position
information solely obtained from at least some of the two-dimensional
images”.
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Additionally, we give the claim its broadest reasonable interpretation
consistent with the Specification. See In re Morris, 127 F.3d 1048, 1054
(Fed. Cir. 1997). We note that determining movement “based on position
information solely obtained from at least some of the two-dimensional
images” may comprise basing the determination on information solely
obtained by 2D images in addition to other information. That is, the
language does not preclude basing the determination on other information as
long as it is also based on information obtained by 2D images.
Nevertheless, by contending that “in Hebecker the position
information is determined from optical position acquisition system 20 and
referencing base 30, (not an x-ray device, as recited in the claimed
invention)” (App. Br. 6), we find Appellant’s principal argument urging
patentability is predicated on non-functional descriptive material (i.e., the
type or content of the data that is being used to determine movement). That
is, the “position information” is the type/content of the data being used to
determine a movement, but the type of data being used does not change the
functionality of or provide an additional function to the “determining” step.
The informational content of non-functional descriptive material is not
entitled to weight in the patentability analysis. See In re Lowry, 32 F.3d
1579, 1583 (Fed. Cir. 1994) (“Lowry does not claim merely the information
content of a memory . . . . Nor does he seek to patent the content of
information resident in a database.”). See also Ex parte Nehls, 88 USPQ2d
1883, 1887-90 (BPAI 2008) (precedential); Ex parte Curry, 84 USPQ2d
1272 (BPAI 2005) (informative) (Federal Circuit Appeal No. 2006-1003),
aff’d, Rule 36 (June 12, 2006)); Ex parte Mathias, 84 USPQ2d 1276 (BPAI
2005) (informative), aff’d, 191 Fed. Appx. 959 (Fed. Cir. 2006).
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Here, the informational content of the data that is used to determine a
movement is entitled to no weight in the patentability analysis. Accordingly,
we conclude that claim 13 merely requires selecting an in-body sub-area
identified in a 2D image and determining movement of the in-body sub-area
based on received information/data.
Hebecker discloses an X-ray apparatus, wherein 2D projections of
body regions of a patient or a volume dataset of a body region of the patient
is acquired with the X-ray apparatus, and the position of orientation of a
referencing base firmly attached to the bone of the patient is determined
using a position acquisition system (FF 1). For acquiring a volume dataset
of the bone of the patient, 2D projections of the bone are acquired from
different projection directions, and, in order to take the respiration-produced
movements of the bone into consideration, the position and orientation of the
referencing base is determined substantially simultaneously with the
exposure of each 2D projection (FF 2).
We find no error in the Examiner’s finding that “the referencing base
is considered to be an in-body sub-area that is used to determine movement
of the bone” (Ans. 13). Thus, we find Hebecker discloses selecting an in-
body sub-area identified in a 2D image and determining movement of the in-
body sub-area based on received information/data, as required by claim 13.
Further, Hebecker discloses that the exposure of the 2D projections is
determined substantially simultaneously with position and orientation of the
referencing base in order to take the respiration-produced movements of the
bone into consideration (FF 2). Thus, even if we were to give “based on
information solely obtained from at least some of the two-dimensional
images” consideration, we find Hebecker also discloses determining
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movement based on such information as well as from the position and
orientation of the referencing base, as required by claim 13.
Accordingly, we find that Appellant has not shown that the Examiner
erred in rejecting claim 13 over Hebecker. Further, independent claim 22
and claim 20 depending from claim 13 have not been argued separately
(App. Br. 4-6), and thus, fall with claim 13.
Claims 14-19, 21, and 23-25
As for claims 14, 15, 17, 21, 23, and 24, Appellant merely contends
that “Gilboa fails to remedy the fundamental deficiencies of Hebecker”
(App. Br. 6-7). Similarly, as to claim 16, Appellant merely contends that
“the rejection of this claim should be reversed based on the substantial
deficiencies of Hebecker” (App. Br. 7). Since we find no deficiencies with
respect to Hebecker, Appellant does not show error in the Examiner’s
rejections of claims 14, 15, 17, 21, 23, and 24 over Hebecker in further view
of Gilboa, and of claim 16 over Hebecker.
Because Appellant does not provide arguments for claims 18, 19 and
25, Appellant also does not show error in the Examiner’s rejection of claim
25 over Hebecker in further view of Gilboa, and of claims 18 and 19 over
Hebecker in further view of Anderson.

V. CONCLUSION AND DECISION
The Examiner’s rejections of claims 13, 20, and 22 under 35 U.S.C.
§ 102(b) and of claims 14-19, 21, and 23-25 under 35 U.S.C. § 103(a) are
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).
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AFFIRMED

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