Ex Parte Kenknight et al

Board of Patent Appeals and Interferences

Jan 22, 2009

10324659 (B.P.A.I. Jan. 22, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte BRUCE H. KENKNIGHT and SCOTT THOMAS MAZAR
____________

Appeal 2008-3268
Application 10/324,659
Technology Center 2600
____________

Decided: January 22, 2009
____________

Before JOSEPH F. RUGGIERO, ROBERT E. NAPPI,
and KARL D. EASTHOM, Administrative Patent Judges.

RUGGIERO, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from the Final Rejection of
claims 1, 8-24, 27-32, 36-42, and 45-59. We have jurisdiction under 35
U.S.C. § 6(b).
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Appellants’ invention relates to the multi-dimensional representation
of a patient’s health in which patient health data is graphically presented
such that the structure of the graphical form illustrates the clinical
significance of the medical data. (Spec. 3:20-23).
We affirm.
Claim 1 is illustrative of the invention and reads as follows:
1. A system for visualizing multi-dimensional time-varying
physiological patient health data comprising:
a. a data management module adapted to receive and store time-
varying physiological patient health data;
b. an analysis module adapted to analyze the patient health data;
c. a presentation engine adapted to present the patient health data as a
multi-dimensional visual representation in which the representation displays
the patient health data corresponding to a particular time period and the
morphology of the representation is a function of the patient health data over
the particular time period; and
d. user means to resolve and manipulate the multi-dimensional
representation of analyzed patient health data.

The Examiner relies on the following prior art references to show
unpatentability:
Lancaster US 5,311,880 May 17, 1994
Young US 5,960,443 Sep. 28, 1999
He US 6,198,791 B1 Mar. 6, 2001
Hsieh US 6,639,965 B1 Oct. 28, 2003
(filed Sep. 30, 1999)

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Robbins US 6,819,344 B2 Nov. 16, 2004
(filed Mar. 12, 2001)
Murao US 6,925,199 B2 Aug. 2, 2005
(filed Mar. 28, 2001)

Claims 1, 8-24, 27-32, 36-42, 46, 51, 53, 55, and 57-59 stand rejected
under 35 U.S.C. § 103(a) as being unpatentable over Robbins in view of
Young, Murao, and He.1
Claims 47-50, 52, and 54 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Robbins in view of Young, Murao, He, and Hsieh.
Claim 56 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Robbins in view of Young, Murao, He, and Lancaster.
Rather than reiterate the arguments of Appellants and the Examiner,
reference is made to the Briefs and Answer for the respective details. Only
those arguments actually made by Appellants have been considered in this
decision. Arguments which Appellants could have made but chose not to
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
(i) Under 35 U.S.C. § 103(a), with respect to appealed claims 1, 8-24,
27-32, 36-42, 45, 46, 51, 53, 55, and 57-59, would one of ordinary skill in
the art at the time of the invention have found it obvious to combine

1 Although the Examiner, in the final Office action, had made a 35
U.S.C. § 112, second paragraph, indefiniteness rejection of claims 10, 40,
45, 49, and 51-56, no mention of this rejection is made in the Examiner’s
Answer. We conclude, therefore, that this rejection has been withdrawn.
See Ex parte Emm, 118 USPQ 180, 181 (Bd. Pat. App. & Int. 1958).

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Robbins, Young, Murao, and He to render the claimed invention
unpatentable?
(ii) Under 35 U.S.C. § 103(a), with respect to appealed claims 47-50,
52, and 54, would one of ordinary skill in the art at the time of the invention
have found it obvious to modify the combination of Robbins, Young,
Murao, and He by adding the teachings of Hsieh to render the claimed
invention unpatentable?
(iii) Under 35 U.S.C. § 103(a), with respect to appealed claim 56,
would one of ordinary skill in the art at the time of the invention have found
it obvious to modify the combination of Robbins, Young, Murao, and He by
adding the teachings of Lancaster to render the claimed invention
unpatentable?

The pivotal issues before us are whether the Examiner erred in finding
that the Robbins and Young references disclose the helical representation of
time-varying patient health data, and whether Robbins, Young, and the other
cited secondary references are from analogous arts so as to form an
underlying basis for their proposed combination.

FINDINGS OF FACT
The relevant facts are:
1. Appellants have invented a method and system for graphically
representing a multi-dimensional view of patient health data. A helical
display of time-varying patient data enables a user to view a comprehensive
representation of patient health. Further, commonly available three-
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dimensional visualization tools may be used to view fine-grain or
customized representations of the patient health data. (Spec. 3:20-31).
2. Robbins discloses an approach to solving the problem of
displaying time-based data which exists in conventional linear visualization
techniques by using a helical representation format to display the time-based
data. (Robbins, col. 1, ll. 25-67, col. 7, ll. 56-67, and col. 8, ll. 46-61).
3. Robbins also discloses (col. 8, l. 62 through col. 9, l. 26) that
warping and animation techniques are employed to represent changes in data
over periods of time providing a representation that has a changing
morphology as a function of the represented data.
4. As another example of the changing morphology of the data
representation, Robbins discloses (col. 6, l. 64 through col. 7, l. 6, col. 7, ll.
27-29, and Figures 4 and 5) that a center-of-interest region 246 can move up
and down the helical path effectively warping the geometry of the
representation.
5. Young discloses (col. 17, ll. 52-55) the changing of the
morphology of the patient health data representation as a function of the
patient health data by changing the pitch between the helical revolutions
dependent on the number of patient data sets.
6. Young also discloses (col. 15, l. 63-65 and col. 16, ll. 13-19)
the collection over time of data indicative of the biochemistry of a patient, as
well as anatomical patient data, using a collected series of measurements.
7. Murao discloses (col. 5, ll. 57-67 and col. 6, ll. 1-19) a helical
CT (Computerized Tomography) image representation with a changing
morphology based on brightness values that identifies the disease state of a
patient.
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8. He discloses (col. 5, l. 60, Figure 3) a helical representation of
CT (computerized Tomography) data.
9. Hsieh discloses (Abstract) a CT (Computerized Tomography)
imaging system which includes patient heart rate as a measured data
parameter.
10. Lancaster discloses (Abstract) the measurement of patient body
weight as a measured patient health data parameter.

PRINCIPLES OF LAW
In rejecting claims under 35 U.S.C. § 103, it is incumbent upon the
Examiner to establish a factual basis to support the legal conclusion of
obviousness. See In re Fine, 837 F.2d 1071, 1073 (Fed. Cir. 1988). In so
doing, the Examiner must make the factual determinations set forth in
Graham v. John Deere Co., 383 U.S. 1, 17 (1966). “[T]he examiner bears
the initial burden, on review of the prior art or on any other ground, of
presenting a prima facie case of unpatentability.” In re Oetiker, 977 F.2d
1443, 1445 (Fed. Cir. 1992). Furthermore,
“there must be some articulated reasoning with some
rational underpinning to support the legal conclusion of
obviousness” . . . [H]owever, the analysis need not seek out
precise teachings directed to the specific subject matter of the
challenged claim, for a court can take account of the inferences
and creative steps that a person of ordinary skill in the art
would employ.

KSR Int’l Co. v. Teleflex Inc., 127 S. Ct. 1727, 1741 (2007)(quoting In

re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)).

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ANALYSIS
I. THE REJECTION OF CLAIMS 1, 8-24, 27-32, 36-42, 45, 46,
51, 53, 55, AND 57-59 BASED ON THE COMBINATION OF
ROBBINS, YOUNG, MURAO, AND HE.2

Claims 1, 8, 9, 11-20, 22-24, 27, 28, 30-32, 36-42, 46, and 57-59

At the outset, we note that the limitations calling for the specific
content of the displayed data representation, namely that the data is
representative of physiological patient health data, essentially constitutes
non-functional descriptive material as these limitations do not further limit
the claimed invention either functionally or structurally. Such non-
functional descriptive material does not patentably distinguish over prior art
that otherwise renders the claims unpatentable.3 Nevertheless, as we discuss
infra, we find the cited prior art amply teaches or suggests all the limitations
of the rejected claims.
With respect to the Examiner’s stated obviousness rejection of
independent claims 1, 36, and 46, Appellants’ arguments in response assert a
failure by the Examiner to establish a prima facie case of obviousness since
all of the claimed limitations are not taught or suggested by the applied
Robbins, Young, Murao, and He references. Initially, Appellants attack
(App. Br. 12) the Examiner’s reliance on Robbins by contending that, in
contrast to the claimed invention, the helical data representation of Robbins

2 The Examiner’s failure to include claim 45 in the summary list of claims
(Ans. 3) rejected on this ground is an apparent inadvertent error since the
Examiner has included a discussion of claim 45 in the detailed statement
(Ans. 12) of this ground of rejection.
3 See In re Ngai, 367 F.3d 1336, 1339 (Fed. Cir. 2004); see also Ex Parte
Nehls, No. 2007-1823, 2008 WL 258370 (BPAI 2008) (precedential), at *6-
10 (discussing cases pertaining to non-functional descriptive material).
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does not change its morphology as a function of the represented data.
Appellants further assert (id.) that Robbins is non-analogous art since
Robbins’ disclosure is directed to displaying information for an electronic
television programming guide and not to time-varying physiological patient
heath data as claimed.
We do not find Appellants’ arguments to be persuasive in convincing
us of any error in the Examiner’s stated position with respect to Robbins.
We agree with the Examiner (Ans. 35-36) that ample evidence exists within
the disclosure of Robbins to support the Examiner’s conclusion that
Robbins’ helical data representation has a changing morphology as a
function of the represented data. For example, Robbins suggests (col. 8, l.
62 through col. 9, l. 26) that warping and animation techniques are employed
to represent changes in data over periods of time. As another example,
Robbins suggests (col. 6, l. 64 through col. 7, l. 6, col. 7, ll. 27-29, and
Figures 4 and 5) that a center-of-interest region 246 can move up and down
the helical path effectively warping the geometry of the representation.
We also agree with the Examiner (Ans. 34-36) that, Appellants’
arguments to the contrary notwithstanding, Robbins’ disclosure of utilizing
helical representations to facilitate a user’s viewing of time-based data is
directly analogous to Appellants’ claimed invention. While Robbins’
disclosed invention is primarily illustrated by depicting data representative
of television electronic programming guide information, it is apparent from
the disclosure of Robbins that such information is only a non-limiting
example of the type of data that can be displayed in helical form. For
example, similar to the approach taken by Appellants, the disclosure of
Robbins is directed to solving the problem of displaying time-based data
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which exists in conventional linear visualization techniques by using a
helical representation format to display the time-based data. (Robbins, col.
1, ll. 25-67, col. 7, ll. 56-67, and col. 8, ll. 46-61).
We also find Appellants’ arguments with respect to the Young
reference to be equally unpersuasive. Appellants initially argue (Ans. 13)
that, in contrast to the claimed requirement that the morphology of the time-
varying physiological data representation changes as a function of the
patient health data, Young merely discloses a representation of static, not
time-varying, patient data.
We agree with the Examiner (Ans. 40-41), however, that, at the very
least, Young’s disclosure (col. 17, ll. 52-55) of providing a number of helical
revolutions depending on the amount of patient health parameters, as well as
the changing of the pitch between helical revolutions dependent on the
number of patient data sets involved satisfies the broadly claimed
requirement of changing morphology as “a function of the patient health
data….”
We also find no error in the Examiner’s finding (Ans. 37-39) that
Young’s disclosure of collecting patient health data over a time period
satisfies the claimed requirement of “time-varying physiological data.”
Further, Young’s disclosure (col. 15, ll. 63-65 and col. 16, ll. 27-29) of
collecting data indicative of the biochemistry of a patient, not just
anatomical patient data, as well as Young’s disclosure (col. 16, ll. 13-19) of
using “a freshly collected series of measurements” strongly suggests that
“time-varying physiological patient health data” is being represented as
presently claimed.
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Further, we find no error in the Examiner’s application of the helical
CT (Computerized Tomography) teachings of Murao and He to the
combination of Robbins and Young. In our view, the ordinarily skilled
artisan would have recognized and appreciated that the helical CT image
data measurement techniques of Murao and He would have served as an
obvious enhancement to the combined system of Robbins and Young.
For the above reasons, since it is our opinion that the Examiner has
established a prima facie case of obviousness which has not been overcome
by any convincing arguments from Appellants, the Examiner’s 35 U.S.C.
§ 103(a) rejection of independent claims 1, 36, and 46, as well as dependent
claims 8, 9, 11-18, 20, 22-24, 27, 28, 30-32, 37-42, and 57-59 not separately
argued by Appellants, is sustained.

Claims 40 and 45
The Examiner’s obviousness rejection of claims 40 and 45 is also
sustained. Independent claim 45 has similar limitations as previously
discussed independent claims 1, 36, and 46, but has the additional feature of
including concentrically arranged “doughnut-like” shapes as part of the data
representation structure, a feature also included in dependent claim 40. We
find no error in the Examiner’s finding (Ans. 12 and 48) that the helical
revolutions illustrated, for example, in Figures 5 and 6 of Robbins and
Figures 8a and 8b of Young are “doughnut-like” shapes concentrically
arranged around a central axis.

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Dependent claim 10
We also sustain the Examiner’s obviousness rejection of dependent
claim 10 which further limits the previously discussed “doughnut-like”
shapes feature by requiring that the shapes be in “closed loop” form.
Appellants contend (App. Br. 14) that the helical representations in Robbins
are continuous and open structures in which the structure ends do not close
on themselves.
We do not find Appellants’ arguments to be convincing of any error in
the Examiner’s stated position (Ans. 12). To whatever extent Appellants my
be correct in asserting that the revolutions which make up the helical data
representation in Robbins are part of an open-ended structure, it is
noteworthy that the Examiner has actually made reference to another part of
the Robbins’ structure, i.e., the “doughnut-like” closed loop “wheels” 326
which are arranged around a particular segment 328 of the helical path 320
as illustrated in Figure 11 of Robbins. Robbins further describes these
“wheels” as sliding around the track of the helical path 320 and which also
include multiple instantiations of the “wheels” which are concentrically
arranged around the helical path 320. (Robbins, Figure 11 and col. 9, l. 43
through col. 10, l. 16).

Dependent claims 19 and 21
The Examiner’s obviousness rejection of dependent claims 19 and 21,
directed to the “texturing” feature of the helical representation structure, is
also sustained. We find no error in the Examiner’s finding (Ans. 49) that the
Figures 4-9 illustrations in Robbins depict the shadowed texturing of the
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data representation as does Young’s illustrations at Figures 3a, 3b, 4a, and
4c.

Dependent claim 29
We also find no error in the Examiner’s finding that Robbins discloses
a higher order representation of data in the form of another helical
representation and, accordingly, the Examiner’s obviousness rejection of
claim 29 is sustained. As pointed out by the Examiner (Ans. 50-51),
Robbins discloses a higher order data representation (col. 5, ll. 40-45) in the
form of an additional helical representation in a side-by-side arrangement.
We further agree with the Examiner that Robbins provides a fine detailed
data representation through the use of a “zooming” feature 48 (col. 6, ll. 6-
14).

Dependent claims 51, 53, and 55
The Examiner’s obviousness rejection of dependent claims 51, 53,
and 55 is also sustained. With respect to claim 51, Appellants’ arguments
(App. Br. 15) to the contrary notwithstanding, we agree with the Examiner
(Ans. 52), that Robbins discloses (Figures 15-21) the offset from a center
axis of the helical data representation as does the Young reference (Figures
3a-8b, and col. 12, ll. 30-42) which further provides for the representation of
additional dimensions of patient data through color shading and gradation.
With respect to claim 53, we also agree with the Examiner (Ans. 52)
that both Robbins (Figures 15-21) and Young (Figures 3a and 3b) disclose
the use of an inside radius or an outside radius of a helical representation to
represent additional dimensions of displayed data. We also find, as did the
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Examiner (Ans. 53) that Robbins provides a disclosure (Figures 3-5 and
cols. 9 and 10) the use of a width or thickness of the doughnut like helical
shapes to represent additional dimensions of displayed data as broadly set
forth in appealed claim 55.

II. THE REJECTION OF CLAIMS 47-50, 52, 54, AND 56
BASED ON THE COMBINATION OF ROBBINS, YOUNG,
MURAO, AND HE AS MODIFIED BY THE FURTHER
SEPARATE ADDITION OF HSIEH AND LANCASTER.

We also sustain the Examiner’s obviousness rejection of dependent
claims 47-50, 52, 54, and 56. Appellants’ arguments in response focus on
the alleged failure by the Examiner to establish a proper basis for the
proposed combination of references. According to Appellants (App. Br. 17-
19), the references applied by the Examiner are all from disparate and non-
analogous arts.
We do not find Appellants’ arguments to be persuasive. We note that
the test for non-analogous art is first whether the art is within the field of the
inventor's endeavor and, if not, whether it is reasonably pertinent to the
problem with which the inventor was involved. In re Wood, 599 F.2d 1032,
1036 (CCPA 1979). A reference is reasonably pertinent if, even though it
may be in a different field of endeavor, it logically would have commended
itself to an inventor's attention in considering his problem because of the
matter with which it deals. In re Clay, 966 F.2d 656, 659 (Fed. Cir. 1992).
As discussed earlier with respect to independent claims 1, 36, 45, and
46, we find that Robbins’ disclosure of utilizing helical representations to
facilitate a user’s viewing of time-based data is directly related to
Appellants’ claimed invention as well as to Young’s disclosure of proving a
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helical representation of patient health data. Reiterating our previous
discussion, we find, contrary to Appellants’ contention, the disclosures of
Robbins and Young are both directed to solving the problem of displaying
time-based data which exists in conventional linear visualization techniques
by using a helical representation format to display the time-based data.
Accordingly, we find no error in the Examiner’s finding that the
ordinarily skilled artisan would have logically consulted the teachings of
Robbins and Young in attempting to solve visualization problems associated
with displaying time varying patient health data. Similarly, we find, as did
the Examiner (Ans. 54-58) that the ordinarily skilled artisan would have
recognized and appreciated that the helical CT (Computerized Tomography)
imaging techniques disclosed by Murao, He, and Hsieh, as well as body
mass measuring techniques disclosed by Lancaster would have served as an
obvious enhancement to the combined system of Robbins and Young.

CONCLUSION OF LAW
Based on the findings of facts and analysis above, we conclude that
Appellants have not shown that the Examiner erred in rejecting claims 1, 8-
24, 27-32, 36-42, and 45-59 for obviousness under 35 U.S.C. § 103.

DECISION
The Examiner’s 35 U.S.C. § 103 rejection of claims 1, 8-24, 27-32,
36-42, and 45-59 all of the appealed claims, is affirmed.

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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)(1)(iv).

AFFIRMED

KIS

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