Ex Parte Long

Patent Trial and Appeal Board

Feb 12, 2018

13427018 (P.T.A.B. Feb. 12, 2018)

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.
13/427,018 03/22/2012 James Mark Long 2012P04699US 7153
28524 7590 02/14/2018
SIEMENS CORPORATION
INTELLECTUAL PROPERTY DEPARTMENT
3501 Quadrangle Blvd Ste 230
EXAMINER
IGYARTO, CAROLYN
Orlando, EL 32817 ART UNIT PAPER NUMBER
2884
NOTIFICATION DATE DELIVERY MODE
02/14/2018 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):
ipdadmin.us@siemens.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAMES MARK LONG
Appeal 2017-002521
Application 13/427,018
Technology Center 2800
Before CATHERINE Q. TIMM, CHRISTOPHER C. KENNEDY, and
JANE E. INGLESE, Administrative Patent Judges.
TIMM, Administrative Patent Judge.
DECISION ON APPEAL1
1 In explaining our Decision, we cite to the Specification dated March 22,
2012 (Spec.), the Final Office Action dated June 22, 2015 (Final), the After-
Final Amendment dated August 24, 2015 (After-Final Arndt.), the Advisory
Action dated September 11, 2015 (Advisory Act.), the claims appendix
within the Response to Notification of Non-Compliant Appeal Brief dated
April 15, 2016 (Claims Appendix), the Appeal Brief dated January 4, 2016
(Appeal Br.), the Examiner’s Answer dated October 3, 2016 (Ans.), and the
Reply Brief dated December 5, 2016 (Reply Br.).
Appeal 2017-002521
Application 13/427,018
STATEMENT OF CASE
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 3, 4, 6—9, 20-22, 24, and 25.3 We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
The claims on appeal are directed to a nuclear medical imaging
system (see, e.g., Claims Appendix, claim 3), a method of encoding
scintillation events detected by a radiation detector (see, e.g., Claims
Appendix, claim 20), and a non-transitory computer readable storage
medium (see, e.g., Claims Appendix, claim 25).
The Examiner maintains the following rejections (Ans. 2):
A. The rejection of claims 3, 4, and 6—9 under 35 U.S.C. §112 12 as
indefinite;
2 Appellant identifies the real party in interest as Siemens Medical Solutions
USA, Inc. Appeal Br. 1.
3 Claim 26 is pending, but its status is unclear. During prosecution, claim 26
was variously treated as either withdrawn from consideration as being
directed to a non-elected invention, as subject to a rejection on the merits for
lack of written descriptive support along with claim 25, or as no longer
subject to a rejection for lack of written description based on persuasive
arguments overcoming the rejection (see, e.g., Final, office action summary
5, 7 and detailed action 3,5; Advisory Act. H 5, 15). In the Answer, the
Examiner repeats the rejection of claim 25 under 35 U.S.C. § 11211
without listing claim 26 as rejected (Ans. 2), but then reproduces the
rejection including claim 26 (Ans. 5). Appellant lists claim 26 as withdrawn
from further consideration subject to restriction. Appeal Br. 2. A petition
requesting reconsideration of the restriction requirement was denied.
Decision on Petition dated November 24, 2015. Thus, we treat the claim as
withdrawn.
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Application 13/427,018
B. The rejection of claims 3, 4, 6—8, 20, 21, and 24 under 35 U.S.C.
§ 103(a) as obvious over Cho4 in view of Daghighian;5
C. The rejection of claims 3, 9, 20, 22, and 24 under 35 U.S.C.
§ 103(a) as obvious over Rousso6 in view of Daghighian;
D. The rejection of claim 25 under 35 U.S.C. § 112 | 1 as lacking
written descriptive support;
E. The rejection of claim 25 under 35 U.S.C. § 102(b) as anticipated
by or, in the alternative, under 35 U.S.C. § 103(a) as obvious over
Rousso.
OPINION
A. The rejection of claims 3, 4, and 6—9 under 35 U.S.C. §112 f 2 as
indefinite
The Examiner maintains the rejection of claims 3, 4, and 6—9 as
indefinite under 35 U.S.C. § 112 12. Ans. 2.
In the Final Office Action, the Examiner states that “[t]he claims are
replete with errors” and provides examples of language in claim 3 the
Examiner determined to be unclear, inexact, or verbose. Final 6.
In response to the Examiner’s rejection, Appellant amended claim 3 to
remove the specifically exemplified issues of indefmiteness raised by the
Examiner. After-Final Arndt. 2. The amendment was entered. Advisory
Act. 17. In the Advisory Action, the Examiner states that “[t]he amendment
has corrected the examples of issues regarding 35 USC 112, second
4 Cho et al., US 4,980,552, issued Dec. 25, 1990.
5 Daghighian, US 7,750,311 B2, issued July 6, 2010.
6 Rousso et al., US 2009/0152471 Al, published June 18, 2009.
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Application 13/427,018
paragraph.” Advisory Act. continuation of 1 5. However, in the Answer,
the Examiner maintains the rejection. Ans. 2. According to the Examiner,
although the After-Final Amendment corrected some of the indefmiteness
issues, the claims remain replete with errors and Appellant was advised to
carefully revise the claims to correct the numerous errors, not merely the
examples provided. Ans. 4.
The Examiner must provide notice of the grounds of rejection stating
the reasons for the rejection together with information as may be useful to
the applicant in judging the propriety of continuing prosecution of the
application. 35 U.S.C. § 132 (2010). Because the Examiner has not
specifically pointed out what language in the claims remains indefinite and
what the Examiner determines is indefinite is not readily apparent on the
face of the claims, we conclude that Appellant was not given adequate notice
of the rejection. Thus, we do not sustain the rejection as to claims 3, 4, and
6—9.7
B. The rejection of claims 3, 4, 6—8, 20, 21, and 24 under 35 U.S.C.
§ 103(a) as obvious over Cho in view of Daghighian
The Examiner rejects claims 3, 4, 6—8, 20, 21, and 24 under 35 U.S.C.
§ 103(a) as obvious over Cho in view of Daghighian. We discuss claims 3
and 20 separately. No other claims are argued separately by Appellant.
Appeal Br. 6—8.
Claim 3
Claim 3, with emphasis on the limitation at issue, reads as follows:
7 We note claim 6 depends from claim 1, a canceled claim, and, thus, is
improperly dependent under 35 U.S.C. § 112 14.
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Application 13/427,018
3. A nuclear medical imaging system, comprising:
a plurality of stationary detector units configured to
encircle a patient to be imaged, said plurality of stationary
detector units being responsive to radiation photons emitted by
a radiopharmaceutically doped organ tissue mass of the patient
to output a signal indicative of a radiation photon event[];
a plurality of angular orientation-sensing accelerometers
each mounted on a respective stationary detector unit, each of
said plurality of angular orientation-sensing accelerometers
being configured to provide an angular position of the
respective detector unit on which it is mounted, wherein a
radiation photon event signal outputted by a stationary detector
unit is tagged with a respective angular position provided by a
respective angular orientation-sensing accelerometer; and
an image processor configured to receive radiation
photon event signals tagged with angular position information
and to use said tagged signals to reconstruct an image of the
doped organ tissue mass.
Claims Appendix (emphasis added).
Claim 3 requires “a plurality of stationary detector units.” Claims
Appendix. The issue with regard to claim 3 is: Has Appellant identified a
reversible error in the Examiner’s finding that Cho describes a nuclear
medical imaging system including detector units that are stationary?
Appellant has identified such an error.
The Examiner acknowledges that Cho teaches rotating the detectors.
Final 8. As shown by arrow 300 in Cho’s Figure 3, Cho’s ring array of
detectors (DET 1-23) rotate around a central image volume 302. Cho col. 9,
11. 8—11. This rotation is either continuous or incremental. Cho col. 9,
11. 46-50.
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It is the Examiner’s position that claim 3 does not require the detector
units to be prevented from ever rotating or moving and Cho’s detectors can
be stationary. Ans. 4. In essence, the Examiner determines that Cho’s
incrementally moved detectors are stationary detectors within the meaning
of claim 3.
Appellant contends the Examiner has misconstrued the claimed
subject matter: Stationary detectors, as that phrase is used in the claims,
does not encompass incrementally moved detectors, but is limited to
immobile detectors not intended to move. Appeal Br. 6—7. Appellant cites
portions of the Specification supporting Appellant’s interpretation of the
claim language. Id., citing Spec. Tflf 4—6.
The portions of the Specification cited by Appellant distinguish
detectors that remain stationary from those that rotate intermittently. Spec.
H 4—6. The Specification uses the terms “immobile,” “stationary and not
intended to move,” “remain stationary,” “immobile/stationary,” and
“stationary” to mean the same thing, i.e., structures that do not rotate, but
remain immobile. Spec. Tflf 3—6, 34. Thus, as used in the Specification,
“stationary detector units” means detector units that have no apparatus
associated with them that serves to move any of the detector units
intentionally.
This interpretation is further supported by the purpose of the
accelerometers described in the Specification. The accelerometers
determine the angular orientation and location of the detectors when the
entire scanner is moved to another location, e.g., such as when moving the
entire scanner to another room or building, or when individual detectors are
replaced. Spec. 1 6. This use is different from using accelerometers to
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determine the angular orientation and location of the detectors as they rotate
around a patient during the scan. The difference in use is further evidence
that stationary detectors are different structurally from incrementally rotating
detectors. Stationary detector units have no parts that allow the detector
units to move intentionally.
Appellant has identified a reversible error in the Examiner’s rejection
of claim 3. We do not sustain the rejection of claim 3, or the rejection of
claims 4 and 6—8, that depend from claim 3, under 35 U.S.C. § 103(a) as
obvious over Cho in view of Daghighian.
Claim 20
Claim 20 is directed a method and does not require stationary detector
units. Claim 20 reads:
20. A method of encoding scintillation events detected by
a radiation detector, comprising:
providing an angular orientation value from an angular
orientation sensing accelerometer associated with said radiation
detector;
associating said angular orientation value with
information concerning a detected scintillation event from said
radiation detector; and
transmitting said associated information to a processor
configured to reconstruct a radiation image from said associated
information.
Claims Appendix.
Appellant contends “none of the prior art references relied on in the
rejection discloses tagging location information from the angular orientation
sensing accelerometers to radiation or scintillation event information and
sending it to the imaging system for image reconstruction” and
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“[consequently, no modification of Cho with Daghighian could result in the
subject matter of claim 20.” Appeal Br. 8.
Claim 20 recites “associating said angular orientation value with
information concerning a detected scintillation event” and “transmitting said
associated information to a processor.”
The “associating” is described in the Specification as tagging:
Position information (i.e., at least “X-axis” and “Y-axis”
data (and optionally “Z-axis” data (e.g., Z-axis data can be used
when the accelerometers 208 are mounted on the detectors 204
to provide the location of a ring))) is compared with data stored
in memory (e.g., a look-up table). By comparing the acquired
position information with the data stored in memory the angle
of inclination of the DEA units 202 are determined. Thus, by
measuring the angle of inclination of the DEA unit 202, the
location of the DEA unit 202 can be determined, and that
location information can be tagged to each event detected by
the detector unit, for which the information concerning the
detector unit is sent to the imaging system processing computer
(not illustrated).
Spec. 135 (emphasis added). Claim 20 requires tagging or associating a
location value (angular orientation value) with information concerning a
detected scintillation event.
The Examiner finds that Cho teaches the required associating of the
angular orientation value with information concerning a detected
scintillation event. Final 11; Ans. 5, citing Cho claim 30.
Cho’s claim 30 seeks to exclude others from making and using a
method with steps including acquiring coincidence position emission data
(emission data is information concerning a detected scintillation event) at
each of plural rotational positions of the ring array (angular orientation
values) and rebinning the data at each of the positions into sets of
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Application 13/427,018
substantially equally spaced substantially parallel rays of PET projection
image data. Cho describes this rebinning as involving the use of pre­
assigned lookup tables. Cho col. 12,11. 16—18. As shown in Figures 15A
and 15B, gantry positions are associated with emission data from specific
detectors. Although Cho does not disclose using an accelerometer as the
angular orientation sensor, the Examiner relies on Daghighian to support the
finding of a reason to use an accelerometer in Cho’s apparatus and Appellant
does not dispute this finding.
Appellant does not address the Examiner’s specific findings and, thus,
has not identified a reversible error in the Examiner’s rejection of claim 20.
Appellant does not separately argue the rejection of claims 21 and 24. We
sustain the rejection of claims 20, 21, and 24 under 35 U.S.C. § 103(a) as
obvious over Cho in view of Daghighian.
C. The rejection of claims 3, 9, 20, 22, and 24 under 35 U.S.C. § 103(a) as
obvious over Rousso in view of Daghighian
The Examiner rejects claims 3, 9, 20, 22, and 24 under 35 U.S.C.
§ 103(a) as obvious over Rousso in view of Daghighian. We discuss claims
3 and 20 separately. No other claims are argued separately by Appellant.
Claim 3
The issue is analogous to that of the rejection of claim 3 over Cho in
view of Daghighian: Has Appellant identified a reversible error in the
Examiner’s finding that Rousso describes a nuclear medical imaging system
including detector units that are stationary?
Appellant has identified such an error and, again, the error is in the
Examiner’s interpretation of “a plurality of stationary detector units” as
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Application 13/427,018
recited in claim 3. Claim 3 (emphasis added). As we determined above, the
Specification uses the terms “immobile,” “stationary and not intended to
move,” “remain stationary,” “immobile/stationary,” and “stationary” to
mean the same thing, i.e., structures that remain immobile during use and are
not intended to be moved. Spec. 3—6, 34. The stationary detector units
do not move at any time during the use of the machine; the purpose of the
angular orientation-sensing motion providers is not to sense orientation
during movement, but only to provide orientation information when the
entirety of the machine is relocated, for instance, to another room, or a
detector unit is replaced, for instance, when one becomes defective. The
detector units remain stationary, immobile, and not intended to move.
Rousso, as correctly found by the Examiner, teaches a stationary
dynamic SPECT camera that contains detector units. Rousso Tflf 189—208.
But even though the camera is described as stationary, the detecting units 12
are moved by assembly motion provider 40 prior to the acquisition of
radioactive-emission data. Rousso Tflf 196—200. The Examiner has not
established that Rousso’s detector units 12 lack structures that allow the
units to be moved intentionally. Thus, the Examiner has not established that
Rousso’s detector units 12 are “stationary detector units” within the meaning
of that phrase as it is used by Appellant in claim 3.
We do not sustain the rejection of claims 3 and 9 under 35 U.S.C.
§ 103(a) as obvious over Rousso in view of Daghighian.
Claim 20
Again, claim 20 does not require stationary detector units. Appellant
argues that “none of the prior art references relied on in the rejection
discloses tagging location information from the angular orientation sensing
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Application 13/427,018
accelerometers to radiation or scintillation event information and sending it
to the imaging system for image reconstruction,” and “[consequently, no
modification of Rousso with Daghighian could result in the subject matter of
claim 20.” Appeal Br. 9—10. But Appellant does not address the specific
findings of the Examiner pointing to Rousso’s disclosure in paragraphs 21—
24 as teaching associating angular orientation values and transmitting them,
or the Examiner’s findings and conclusion with regard to the obviousness of
using an accelerator in Rousso’s method to provide the angular orientation
values. Appellant has not identified a reversible error in the Examiner’s
rejection of claim 20.
We sustain the rejection of claims 20, 22, and 24 under 35 U.S.C.
§ 103(a) as obvious over Rousso in view of Daghighian.
D. The rejection of claim 25 under 35 U.S.C. § 112 f 1 as lacking written
descriptive support
The Examiner rejects claim 25 under 35 U.S.C. § 112 | 1 as lacking
written descriptive support.
Claim 25 is directed to a software program stored on a storage
medium. The instructions of the program cause a computer processor to
perform actions. Specifically, the instructions cause the processor to receive
information signals from the detectors and reconstruct an image using the
signals. According to claim 25, each of the plurality of information signals
includes (1) a detected scintillation event from a detector and (2) an angular
orientation value from the accelerometer associated with that detector.
Claim 25 reads:
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25. A non-transitory computer readable storage medium
having stored thereon computer executable instructions that
when executed cause at least one processor to:
receive a plurality of information signals from a radiation
detector unit, each of said plurality of information signals
including a detected scintillation event from a radiation detector
of said radiation detector unit and an angular orientation value
from an angular orientation sensing accelerometer associated
with said radiation detector; and
reconstruct a radiation image using said plurality of
information signals.
Claim Appendix.
The Examiner finds that the written description provides support for
compiling detected events from detector units 12 along with associated
detector orientations, but there is no original support for each of said
plurality of information signals received from a single radiation detector unit
including both a detected scintillation event from a radiation detector of said
radiation detector unit and an angular orientation value from an angular
orientation sensing accelerometer associated with the particular detector.
Ans. 3. In other words, there is no support for the data to be received
together in each signal. Id.
Appellant identifies program memory 506 as the non-transitory
computer readable storage medium of claim 25. Appeal Br. 4. According to
Appellant, the program on memory 506 includes instructions that cause the
receiving of the recited plurality of information signals described in
paragraphs 24—26 of the Specification. Appeal Br. 4—5.
Specification paragraphs 24 and 25 describe the structure of a PET
detector system 10 with a ring of detector units 12 encircling a patient bed
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Application 13/427,018
14, the detector units 12 each including a direct-encoding, DC accelerometer
18 (DEA). Spec. 24—25.
Specification paragraphs 25 and 26 further disclose how each detector
unit 12 is tagged with its orientation around the circle. Spec. Tflf 25—26. For
example, the top detector unit (defined as the 0 detector in Fig. 1) has a
detector orientation of 180° (facing straight down). Thus, any detected
event that occurs at the topmost detector unit 0 is tagged with an orientation
of 180°. This tagging associates detector units with their orientation. This
portion of the Specification does not describe any signal or the informational
contents of any signal.
Paragraph 26 further describes a pairing of event and orientation
information, but it does not state that the paired information is in a single
signal. According to this paragraph, the detected events from all detector
units 12 can be compiled along with the associated detector orientations, and
by pairing essentially simultaneous events that have associated orientations
that are 180° apart from each other, one can generate lines of responses that
are used to generate an image. Spec. 126, as informed by Spec. 2, 9, 38.
Moreover, the written description describes the program memory 506,
which Appellant identifies as the non-transitory computer readable medium
recited in claim 25, not as receiving combined orientation/detecting signals,
but as simply determining location/orientation information. Spec. | 55.
According to paragraph 55, software routine 506 is stored in memory 504.
Id. The general-purpose computer 500 housing a processor 510 and memory
504 is suitable for performing the method 400 of Figure 4. Id. The method
of Figure 4 is a method of determining the location of DEA units 202 by
receiving position information from accelerometers, comparing the position
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information to predefined location parameters stored in memory, and using
the comparison to determine the location of the DEA units. There is no
specific disclosure of a processor receiving a plurality of information
signals, each of which contain a detected scintillation event as well as an
angular orientation value. There is only a disclosure of receiving angular
orientation values.
Appellant has not identified a reversible error in the Examiner’s
finding that claim 25 lacks written descriptive support. We sustain the
rejection of claim 25 under 35 U.S.C. § 112 11.
E. The rejection of claim 25 under 35 U.S.C. § 102(b) as anticipated by or,
in the alternative, under 35 U.S.C. § 103(a) as obvious over Rousso
The Examiner rejects claim 25 under 35 U.S.C. § 102(b) as
anticipated by or, in the alternative, under 35 U.S.C. § 103(a) as obvious
over Rousso. Final 15—16. According to the Examiner, Rousso teaches or
suggests instructions that cause the processor to receive a plurality of
information signals each including a detected scintillation event and an
angular orientation value as required by claim 25. Id., citing Rousso Tflf 99,
202.
Although Rousso teaches using position sensors to determine the
angular orientation of each detecting unit 12, Rousso 199, the Examiner has
not established that Rousso teaches or suggests that the information signals
include a detected scintillation event as well as an angular orientation value.
Neither paragraph cited by the Examiner describes such a combining of
information in a signal. Accordingly, we do not sustain the Examiner’s
rejection of claim 25 as anticipated by or obvious over Rousso.
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CONCLUSION
We do not sustain the rejection of claims 3, 4, and 6—9 under
35 U.S.C. § 112 12 as indefinite.
We do not sustain the rejection of claims 3, 4, and 6—8 under
35 U.S.C. § 103(a) as obvious over Cho in view of Daghighian.
We sustain the rejection of claims 20, 21, and 24 under 35 U.S.C.
§ 103(a) as obvious over Cho in view of Daghighian
We do not sustain the rejection of claims 3 and 9 under 35 U.S.C.
§ 103(a) as obvious over Rousso in view of Daghighian.
We sustain the rejection of claims 20, 22, and 24 under 35 U.S.C.
§ 103(a) as obvious over Rousso in view of Daghighian.
We sustain the rejection of claim 25 under 35 U.S.C. § 112 11 as
lacking written descriptive support.
We do not sustain the rejection of claim 25 under 35 U.S.C. § 102(b)
as anticipated by or, in the alternative, under 35 U.S.C. § 103(a) as obvious
over Rousso.
DECISION
The Examiner’s decision is affirmed-in-part.
TIME PERIOD FOR RESPONSE
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).
AFFIRMED-IN-PART
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