Ex Parte Lorenz et al

Patent Trial and Appeal Board

Dec 9, 2015

12741837 (P.T.A.B. Dec. 9, 2015)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
121741,837 05/07/2010 Cristian Lorenz
24737 7590 12/11/2015
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
P.O. BOX 3001
BRIARCLIFF MANOR, NY 10510
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
2007P01422WOUS 1282
EXAMINER
PATEL,NEHA
ART UNIT PAPER NUMBER
3686
NOTIFICATION DATE DELIVERY MODE
12/11/2015 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):
debbie.henn@philips.com
marianne.fox@philips.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CRISTIAN LORENZ, JENS VON BERG, THOMAS BUELOW,
and RAFAEL WIEMKER
Appeal2013-007453
Application 12/741,837
Technology Center 3600
Before HUBERT C. LORIN, BRADLEY B. BAY AT, and
MATHEWS. MEYERS, Administrative Patent Judges.
BAY AT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 1-17 under 35 U.S.C. § 102(b) as being
anticipated by Chan (US 2005/0207630 Al, pub. Sept. 22, 2005). We have
jurisdiction under 35 U.S.C. § 6(b ).
Appellants' claimed "invention relates to a method for analyzing a
medical image data set from a medical imaging modality." Spec. 1 :2-3.
Claim 1, reproduced below, is illustrative of the subject matter on appeal.
1 Appellants identify the real party in interest as "Koninklijke Philips
Electronics N.V." Appeal Br. 2.
Appeal2013-007453
Application 12/741,837
1. A method for analyzing a medical image data set, the
method comprising the steps of:
a) segmenting the medical image data set using an
anatomical model,
b) analyzing the segmented data for characteristics of a
disease resulting in a set of analysis data, and
c) evaluating the set of analysis data with respect to the
disease,
wherein at least one of the above steps a), b) and c)
comprises as an input a position dependent probability (P _r) for
the disease.
Appeal Br. 7, Claims Appendix.
FINDINGS OF FACT
We have determined that the findings of fact in the Analysis section
below are supported at least by a preponderance of the evidence. 2
ANALYSIS
Appellants argue claims 1-15 as a group, and select claim 1 as being
representative. Appeal Br. 5. Thus, the remaining claims stand or fall with
claim 1. 37 C.F.R. § 41.37(c)(l)(iv). Appellants contend that Chan fails to
anticipate claim 1 because Chan does not disclose the limitation "wherein at
least one of the above steps a), b) and c) comprises as an input a position
dependent probability (P _r) for the disease." Appeal Br. 3 (emphasis
omitted).
The Examiner's position is that
the claimed term ''position dependent probability (P J) for the
disease" is taught [in Chan] as [the] probability of [a] nodule in
2 See Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988)
(explaining the general evidentiary standard for proceedings before the
Patent Office).
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Appeal2013-007453
Application 12/741,837
[the] lung as being either benign or malignant. If [a] nodule is
benign there is zero or less probability of having disease and if
[a] nodule is malignant[,] there is 100% or more probability of
having disease. In paragraphs [0070], [0075] and [0098] of
Chan, it clearly disclose [ s] that detecting [a] nodule [to] be
either benign or malignant depends upon the location of [the]
nodule in the lung. Paragraph [0098] teaches how information
of location [of] nodule[s] detected in [the] lung [are] use[d] for
detecti[ on] of true nodules. Examiner considers use of this
information in segmenting, analyzing and evaluating as position
dependent probability (P J) for the disease.
Answer2-3.
Appellants contend that the Examiner's interpretation of the claim
language is contrary to how the claims would be understood by one of skill
in the art because the Specification "provides an example of how the
position dependent probability for the disease is used .. .if the probability is
below a predetermined limit for a certain region, this region can be excluded
from segmentation, analysis, and/or evaluation." Appeal Br. 5, citing Spec.
8:3-9.
Further, even if it were to be understood that the probability of
disease being 100% if a nodule is malignant and 0% if a nodule
is benign is understood to constitute "a position dependent
probability (P _r) for the disease," as asserted by the Examiner,
Chan still does not disclose "using position dependent
probability (P _r) for the disease as an input in at least one of the
above steps a), b) and c )," as recited in claim 1, because the
probabilities cited by the Examiner are outcomes of a diagnosis
method, rather than being used as an input into a method in
anyway.
Reply Brief. 4.
During examination, claims are to be given their broadest reasonable
interpretation consistent with the specification, and the language should be
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Appeal2013-007453
Application 12/741,837
read in light of the specification as it would be interpreted by one of ordinary
skill in the art. In re Amer. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364
(Fed. Cir. 2004) (citations omitted). Appellants' Specification states:
In the context of the present invention, it is also to be
understood that the term "disease" is to construe broadly, and
comprising in particular the situation where an anomalous
structure of examined tissue is not malignant i.e. the anomalous
structure may be benign. One example may be the finding of a
tumour that is benign, such a tumour also being a "disease" in
the context of the present invention.
In one embodiment, the disease may be a tumour and the
corresponding position dependent probability (P _r) may then be
the probability for having a tumour at that position (P _r_tum).
In that case, the position dependent probability for having a
tumour (P _r_tum) may be combined with a probability that the
tumour is malignant (P _r_tum_M) and/or benign (P _r_tum_B).
Thus, there is introduced two levels of probabilities with
respect to tumours in lungs for example. Similarly, the multiple
levels of probabilities may be introduced within the teaching of
the present invention.
Spec. 3:33--4:3, 4:26-33.
We disagree with Appellants' contention that the Examiner's
interpretation of the claim language is inconsistent with the Specification.
The features of the embodiment cited from the Specification by Appellants
are not recited in claim 1, and limitations from the Specification are not read
into the claims. "Though understanding the claim language may be aided by
the explanations contained in the written description, it is important not to
import into a claim limitations that are not a part of the claim. For example,
"a particular embodiment appearing in the written description may not be
read into a claim when the claim language is broader than the embodiment."
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Appeal2013-007453
Application 12/741,837
SuperGuide Corp. v. DirecTV Enters, Inc., 358 F.3d 870, 875 (Fed. Cir.
2004) (citing Electro Med. Sys. S.A. v. Cooper Life Sci., Inc., 34 F.3d 1048,
1054 (Fed. Cir. 1994)). That is the case here. The Specification provides
numerous examples featuring position dependent probability for the disease
but the claim language is broader than many of these embodiments.
Furthermore, under the broadest reasonable interpretation of the claim
language in light of the Specification, we agree with the Examiner that Chan
describes using position dependent probability data as input or criteria for
detecting or evaluating disease. Chan discloses:
In order to effectively reduce the detection of false positive
objects (i.e., objects that are not actual nodules), different
filtered images or combinations of filtered images and different
thresholds may be defined for the pixel similarity analysis
technique described above for each of the different subregions
of the lungs, as defined by the step 70 .... the best criteria that
maximizes the detection of true nodules and that minimizes the
false positives may change from lung region to lung region and,
therefore, may be selected based on the lung regions in \~1hich
the detection is occurring").
Chan i-f 98. In other words, because the Specification describes benign or
malignant tumors or nodules as being a disease, Chan describes using
position dependent probability (P _r) as criteria for detection of true nodules.
Therefore, we are not persuaded that the Examiner erred in finding
that Chan describes the contested limitation of claim 1. Thus, we sustain the
rejection of claim 1 and the remaining claims that fall with claim 1.
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Appeal2013-007453
Application 12/741,837
Appellants do not separately argue the patentability of independent
claims 16 and 17 (see Appeal Br. 5), and thus, we sustain the rejection of
these claims for the reasons provided above. 3
DECISION
The Examiner's decision to reject claims 1-17 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). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
rvb
3 In their Reply Brief, however, Appellants argued the separate patentability
of claim 16. See Reply Br. 4. These arguments, which were presented for
the first time in the Reply Brief without showing good cause, are untimely
and will not be considered. By not presenting separate arguments thereto in
their original brief, the Appellants elected to have claim 16 stand or fall with
claim 1. See 3 7 C.F .R. § 1.192( c )(7) (2003 ).
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