Ex Parte Keller et al

Patent Trial and Appeal Board

Mar 28, 2014

11732538 (P.T.A.B. Mar. 28, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte CHARLES KELLER, III and ALI N. BAHADUR
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Appeal 2011-011284
Application 11/732,538
Technology Center 2600
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Before JOSEPH L. DIXON, JAMES R. HUGHES, and ERIC S. FRAHM,
Administrative Patent Judges.

FRAHM, Administrative Patent Judge.

DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
rejections of claims 1-18. Br. 1; Ans. 2. Claim 19 is canceled. Id. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.

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REJECTIONS
The Examiner rejected claims 1 and 2 under 35 U.S.C. § 103(a) as
unpatentable over U.S. Patent No. 6,909,913 B2 to Vining, U.S. Patent No.
6,389,236 B1 to Western, and Raikes, “Floral Radiography: Using X [R]ays
to Create Fine Art,” RadioGraphics, Vol. 23, No.5, September-October
2003, pages 1149-1154. Ans. 4-6.
The Examiner rejected claims 3-6 under 35 U.S.C. § 103(a) as
unpatentable over Vining, Western, Raikes, and Computer Hope, “How [D]o
I [A]djust the Windows [B]ackground?” 2004. Id. at 7-8.
The Examiner rejected claims 7 and 8 under 35 U.S.C. § 103(a) as
unpatentable over Vining, Western, Raikes, and Photoshop 911, “Mirror
[I]mages,” 2004. Id. at 9.
The Examiner rejected claim 9 under 35 U.S.C. § 103(a) as
unpatentable over Vining, Western, Raikes, and U.S. Pub. No.
2003/0098872 A1 to Georgiev. Id. at 10.
The Examiner rejected claims 10 and 11 under 35 U.S.C. § 103(a) as
unpatentable over Vining, Western, Raikes, and U.S. Patent No. 4,555,461
to Shiba. Id. at 11.
The Examiner rejected claims 12, 13, 15-17 under 35 U.S.C. § 103(a)
as unpatentable over Vining, Western, Raikes, and U.S. Pub. No.
2004/0257368 A1 to Anderson. Id. at 12-15.
The Examiner rejected claim 14 under 35 U.S.C. § 103(a) as
unpatentable over Vining, Western, Raikes, Anderson, and U.S. Pub. No.
2003/0007593 A1 to Heuscher. Id. at 15-16.
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The Examiner rejected claim 18 under 35 U.S.C. § 103(a) as
unpatentable over Vining, Western, Raikes, Anderson, and U.S. Patent No.
7,129,943 B2 to Zhang. Id. at 16-17.
ILLUSTRATIVE CLAIM
Illustrative claim 1 is reproduced below.
1. A graphic arts image development process comprising:
generating a computer tomography scan of an object to
yield a computer data file representative of a three-dimensional
volume X-ray density of said object, said object being from the
group consisting of: invertebrate animals, plants, inanimate
natural structures, and manmade substances;
performing computer algorithms to said computer data
file to yield an object rendering as a three-dimensional array of
false colored pixels; and
applying a graphic arts technique to said rendering within
a two-dimensional image space to yield a graphic arts image,
said graphic arts technique selected from the group consisting
of: duplication, symmetry inversion, contrast inversion,
superposition of a second image, and distortion.
COMBINED TEACHINGS OF
VINING, WESTERN, AND RAIKES
All claims are rejected over a combination of Vining’s, Western’s,
and Raikes’ teachings. Though the Examiner characterizes the combination
as modifying Vining in view of Western and Raikes (Ans. 4), the
combination is best understood as automating Western’s anaglyph process
for a computer tomography (CT) object – that is, for an object generated by
a CT scan – in view of Vining and Raikes. Cf., Br. 10 (“[T]he outstanding
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rejection proposes taking a data file per Vining and manipulating the data set
according to Western to produce an anaglyph.”).
An anaglyph is a two-color composite image that, when viewed
through spectacles of correspondingly filtered lenses, appears to the viewer
as a three-dimensional (3-D) image. Western, col. 1, ll. 11-35. Western’s
cited process photographs left and right perspectives 40L, 40R of an object
70 and, then, superposes the left and right images 10L, 10R to form an
anaglyph. Id. at col. 2, l. 8 – col. 3, l. 4. Western describes the
photographing of left and right perspectives as equivalent to “ray mapping,”
stating:
Anaglyph 10 on surface 20 comprises a left anaglyph
image 10L and a right anaglyph image 10R. Left image 10L is
equivalent to ray mapping object 70 onto surface 20 in a first
color from left viewpoint 40L. Right image 10R is equivalent
to ray mapping object 70 onto surface 20 in a contrasting color
from right viewpoint 40R. In ray mapping, an image of object
70 is transferred to surface 20 where a ray 45 or an extension
45E of a ray 45 between viewpoint 40L, 40R and object 70
contacts surface 20.
Id. at col. 2, ll. 42-50; see also col. 1, ll. 4-9, 34-42; col. 3, ll. 9-14.
As explained by the Examiner, Vining evidences that the above
process can be performed for a CT object, particularly insofar as teaching
that a CT object can be converted to 3-D wireframe model and then “ray-
traced” to form a corresponding two-dimensional image. Vining col. 13, ll.
27-20 (cited at Ans. 18). According to Vining:
Images of three-dimensional objects (wireframe models) in
world coordinates (X, Y, Z) are projected to two-dimensional
screen coordinates using ray-tracing techniques. Imaginary
rays sent from a user’s viewpoint pass through a viewing plane
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(referenced to a monitor screen) and into the object (wire frame
model). If a ray intersects an object, the corresponding viewing
plane pixel is painted with a color; if no intersection is found,
the pixel is painted as background.
Id. at col. 13, ll. 27-35. The above teaching is prima facie evidence that it
was within the skill in the art to automate Western’s ray-mapping and form
corresponding left/right perspective images for a CT object.
As also explained by the Examiner, Western teaches that left/right
perspective images can be superposed “mathematically or by a software
program.” Western col. 4, ll. 8-31 (cited at Ans. 19). This teaching is prima
facie evidence that it was within the skill in the art to automate Western’s
superposing step and thereby form an anaglyph of the above-described
left/right perspective images for a CT object.
Finally, as explained by the Examiner, Raikes teaches that x-rays can
image natural structures such as flowers. Raikes 1150 (cited at Ans. 19).
This teaching is prima facie evidence that it was within the skill in the art to
form a CT object of the claimed “object being from the group consisting of:
invertebrate animals, plants, inanimate natural structures, and manmade
substances.” See also Vining col. 6, ll. 8-9 (“For CT images the physical
property measured is x-ray attenuation . . .”).
In light of the above, the Examiner presents a prima facie case of
obviousness for creating a CT object of a natural structure (cf., claimed
generating step), converting the CT object to a 3-D wireframe model (cf.,
claimed performing step), ray-tracing the 3-D wireframe model to form
left/right perspective images of the model (cf., claimed applying step), and
superposing the left/right perspective images to form an anaglyph (cf.,
claimed superposition).
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ANALYSIS
Rejection of Claims 1 and 2
Appellants argue that the above combination of Vining, Western, and
Raikes teachings is “scientifically dubious” because:
Western relies on different angular projections created by light
interacting with an opaque object projected onto a two-
dimensional plane with two such images as shown, for
example, in Fig. 1 of Western constituting an anaglyph. As a
result, the image projections onto surface 20 in Western of a left
anaglyph image 10L and a right anaglyph image 10R are taught
to be operative with visible light cameras and an actual three-
dimensional object. Western fails to afford a teaching as to
how an anaglyph as an exemplary graphic art technique would
be applied to a three-dimensional array of false colored pixels.
Br. 10. The argument establishes only that Western does not provide a step-
by-step recipe for forming anaglyphs of CT objects. “[O]ne cannot show
non-obviousness by attacking references individually where, as here, the
rejections are based on combinations of references.” In re Keller, 642 F.2d
413, 426 (CCPA 1981).
Appellants also argue:
While the images provided in Raikes represent the X-ray
density through the entire column of space occupied by a flower
laid on the photographic plate, it is impossible for Raikes’
images to provide information about the X-ray density of a
flower in anyone given plane parallel to the photographic plate
because the image is a summation of all such photographic
plate parallel planes (in the column). In contrast, such sectional
planes are produced according to the present invention that
apply graphic arts techniques to a three-dimensional array of
false colored pixels to achieve image effects impossible in the
prior art combination as evidenced by application Fig. 5 and
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indeed the partially transparent effects seen in Figs. 1-4 of the
pending application.
Br. 10. The argument neglects that the Examiner does not propose to
generate an anaglyph from Raikes’ images. Rather, the Examiner proposes
to generate an anaglyph from Vining’s CT object and, particularly, the
corresponding 3-D wireframe model. See supra (addressing Ans. 18-19).
Appellants also argue:
[A]pplying imaging techniques of either Western or Raikes to a
data set according to Vining destroys the three-dimensional
information content by irreversibly summing all the columnar
points in a line between the lighting source and the imaging
plane.
Br. 10. The argument presents no evidence, as required, that Vining’s ray-
tracing destroys the CT object or corresponding 3-D wireframe model. See
In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997) (“An assertion of what
seems to follow from common experience is just attorney argument and not
the kind of factual evidence that is required to rebut a prima facie case[.]”
(Citations omitted)); In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974)
(“Attorney’s argument in a brief cannot take the place of evidence.”).
Appellants also argue that the Examiner “fails to identify the level of
ordinary skill in the pertinent art[.]” Br. 11. The argument neglects that –
unless Western, Vining, and Raikes are directed to non-analogous arts – the
requisite skill for achieving the proposed combination can be evidenced by
the references themselves. As established above, the references are clear
evidence that the proposed combination of teachings is indeed within the
skill in the art, as each of the references to Western, Vining, and Raikes are
directed to graphic arts and imaging. Appellants have not presented contrary
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evidence of the level of skill in the art or that the references’ used in the
combination of teachings are not analogous.
For the foregoing reasons, the rejection of claims 1 and 2 is sustained.
Rejections of Claims 3-11 and 14 and 18
Appellants present remarks under separate headings for the rejections
of claims 3-6 (Br. 12-13), claims 7 and 8 (id. at 13), claim 9 (id.), claims 10
and 11 (id. at 14), and claims 14 and 18 (id. at 16). The remarks
unpersuasively incorporate the arguments presented against the rejection of
claims 1 and 2; and merely allege (i.e., without accompanying evidence or
reasoning) that the Examiner impermissibly relies upon reconstructive
hindsight.
Accordingly, the rejections of claims 3-11, 14 and 18 are sustained.
Rejection of Claims 12, 13, and 15-17
Appellants present remarks under separate headings for the rejection
of claims 12, 13, and 15-17. Id. at 14. These remarks also incorporate the
arguments presented against the rejection of claims 1 and 2, which we found
unpersuasive, and present a general allegation that the Examiner
impermissibly relied upon reconstructive hindsight. Id.
As reflected below, Appellants further argue that the Examiner fails to
adequately address the steps of “associating a plurality of data points within
said [CT object] data file to yield a grouping movable relative to a plurality
of remaining data points; and animating a motion of said grouping” (claims
12 and 15). The Examiner finds this feature is suggested by: Vining’s
division of a CT object into portions; and Anderson’s dividing of a computer
model into portions for selective movement and corresponding animation of
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the model. Ans. 12, 26 (citing Vining col. 3, ll. 6-8, 35-44; col. 13, ll. 41-43
and Anderson ¶¶ [0006-7, 45]; Figs. 6A-C).
Appellants particularly argue:
One of ordinary skill in the art attempting to apply the
techniques of Anderson to a volume filled three-dimensional
data set of Vining or indeed the pending claims is submitted to
represent a computationally much more difficult task on the
basis that a volume filled data set has an additional dimension
but with data points which must be grouped and moved relative
to others. As such, one of ordinary skill in the art would
appreciate this to be a much more difficult and involved
computational process which is exactly opposite to the stated
motivation of “increased efficiency in generating animations in
a reasonable time without consuming undue resources[.]”
Br. 15-16. The argument is not persuasive, for each of two reasons.
First, the argument presents no evidence that the proposed
combination of Vining’s and Anderson’s teachings – that is, movement of a
CT object’s “sub-volume” in view of Anderson (Ans. 12, 16) – would have
been “uniquely challenging or difficult for one of ordinary skill in the art.”
See Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed.
Cir. 2007); see also supra 7 (ineffectiveness of unsupported attorney
argument.). The argument merely alleges that an ordinarily skilled artisan
would have great difficulty animating a “volume filled data set.” Br. 15-16
(above block quote). Notably, the Appeal Brief cites – albeit in the
summary of claimed subject matter – a single Specification paragraph as
addressing animation of a CT object’s interior. Br. 3 (citing Spec. ¶ [0036]
as support for claim 13’s “said animation is throughout the three-
dimensional volume X-ray density of said object”). The cited paragraph
does not, however, disclose a novel means or overcome difficulty of
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animating a CT object’s interior; nor disclose any such animation,
whatsoever. Rather, the cited paragraph merely recommends using a CT
object “as a basis to animate portions of a resultant rendering relative to the
other portions[;]” e.g., using a CT scan to “rapidly provide[] a wire point
structure inclusive of anatomical limitations” for animation. Spec. ¶ [0036]
(emphasis added). Incidentally, Vining evidences (at the very least) that
such animating of a 3D wireframe model was within the skill in the art.
Vining col. 13, ll. 43-45 (“Surface rendering calculations are fast enough to
allow interactive manipulation (i.e., virtual reality) of the volume.”).
Second, the argument is incommensurate with the scope of claims 12
and 15. The claimed animations do not require moving the data points of the
CT object. Rather, the claimed data points are unspecified. Thus, for
example, the claimed animations may entail moving only data points of the
CT object’s “rendering as a three-dimensional array of pixels” (claims 1
(from which claim 12 depends) and 15). Notably, moving the claimed
array’s data points is the most reasonable construction, particularly because
there is no other apparent purpose of generating the array. Further, moving
the claimed array’s data points is most consistent with the Specification,
particularly because the disclosed animation is summarily described as
“provided to animate a shell of data points over a three-dimensional
volume.” Spec. ¶ [0007] (emphasis added); accord Spec. ¶ [0035]
(addressed above). And finally, by reciting “said animation is throughout
the three-dimensional volume X-ray density of said object,” claim 13
implicitly indicates that the animating of claims 12 and 15 does not require
moving data points of the CT object. See Free Motion Fitness, Inc. v. Cybex
Int’l, Inc., 423 F.3d 1343, 1351 (Fed. Cir. 2005) (Under the doctrine of
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claim differentiation, “dependent claims limiting the claim to a single cable
confirm that the independent claims may encompass more than one cable.”).
Appellants also argue that “Vining in investigating three-dimensional
renderings of patient organs derives no benefit from having one portion of
body anatomy relative to another for diagnosis or any other stated purpose.”
Br. 16. The argument neglects that Vining teaches segregating and
animating of volumes. Vining col. 3, ll. 6-8, 35-44; col. 13, ll. 41-43. It is
mere common sense that a user of Vining’s technology would, at times,
prefer to segregate and animate one volume portion while maintaining a
view of the remaining portions. See KSR Int’l Co. v. Teleflex Inc., 550 U.S.
398, 421 (2007) (“Rigid preventative rules that deny factfinders recourse to
common sense, however, are neither necessary under our case law nor
consistent with it.”).
For the foregoing reasons, the rejection of claims 12, 13, and 15-17 is
sustained.

DECISION
The Examiner’s decision rejecting claims 1-18 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

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