Ex Parte ROCQUE et al

Patent Trial and Appeal Board

Oct 25, 2018

14228349 (P.T.A.B. Oct. 25, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/228,349 03/28/2014 Mukul Julius ROCQUE
24737 7590 10/29/2018
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
465 Columbus A venue
Suite 340
Valhalla, NY 10595
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.
2013P00079US01 2090
EXAMINER
HOFFMAN, JOANNE M
ART UNIT PAPER NUMBER
3793
NOTIFICATION DATE DELIVERY MODE
10/29/2018 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):
patti. demichele@Philips.com
marianne.fox@philips.com
katelyn.mulroy@philips.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MUKUL JULIUS ROCQUE and JENS MUEHLSTEFF
Appeal2017-010709 1
Application 14/228,349
Technology Center 3700
Before RICHARD M. LEBOVITZ, FRANCISCO C. PRATS, and
MICHAEL J. FITZPATRICK, Administrative Patent Judges.
LEBOVITZ, Administrative Patent Judge.
DECISION ON APPEAL
This appeal involves claims to an apparatus for determining
respiration signals from a subject. The apparatus comprises a camera,
processor, and display.
The Examiner finally rejected the claims under 35 U.S.C. § l 12(f) and
as obvious under 35 U.S.C. § 103. Pursuant to 35 U.S.C. § 134, Appellants
appeal the Examiner's determination that the claims are unpatentable. We
have jurisdiction under 35 U.S.C. § 6(b ). The rejections are affirmed.
1 The Appeal Brief ("Appeal Br.") (filed Mar. 20, 2017), page 1, lists
Koninklijke Philips N.V. as the real-party-in-interest.
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STATEMENT OF THE CASE
Claim 1, 3, 5, 6, and 8-21 stand finally rejected by the Examiner as
follows:
1. Claims 1, 3, 5, 6, 8-14, and 17 under 35 U.S.C. § 112(f). Ans. 2
(the Examiner included canceled claims in the statement of the rejected
claims; we did not include the canceled claims in this statement of the
rejection).
2. Claims 1, 3, 5, 6, and 8-21 under 35 U.S.C. § 103 as obvious in
view of Sato et al. (U.S. Pat. Appl. Publ. 2006/0279428 Al, published Dec.
14, 2006) ("Sato"), Porikli (U.S. Pat. Appl. Publ. 2012/0226152 Al,
published Sept. 6, 2012) ("Porikli"), and Droitcour et al. (U.S. Pat. Appl.
Publ. 2010/0152600 Al, published June 17, 2010) ("Droitcour"). Ans. 4.
Appellants did not provide a response to the§ 112 rejection. We,
therefore, summarily affirm the rejection for the reasons set forth by the
Examiner. The only rejection addressed in this decision is the rejection
based on 35 U.S.C. § I03(a)
Claim 1, which is representative of the rejected claims, is reproduced
below (bracketed numbering is added for reference to the limitations in the
claims):
1. An apparatus for determining respiration signals from a
subject, comprising:
[ 1] a camera configured to receive image data determined
from the subject in a field of view and [2] configured to identify
image sections and generate a motion vector for each image
section, the at least one vector being related to motion of a
portion of the subject in the field of view;
at least one processor programmed to:
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[3] evaluate the image data by generating a
different alternating signal from each motion vector
corresponding to vital sign information;
[ 4] determine a plurality of different alternating
signals from the motion vectors corresponding to vital sign
information of the subject from a plurality of different areas of
the field of view on the basis of movement pattern;
[5] define a plurality of image sections in the
image data;
[ 6] determine one alternating signal corresponding
to the vital sign information from each of the image sections on
the basis of movement pattern detection;
[7] evaluate the different alternating signals; and
[8] determine a plurality of different respiration
signals from the subject on the basis of the different alternating
signals determined from the different areas of the field of view;
[9] determine at least one spectral parameter of the
alternating signals determined from the different image sections
by performing frequency analysis of the alternating signals; and
[ 10] select different image sections on the basis of
the spectral parameter as the different areas to determine the
different respiration signals; and
[ 11] a display configured to display the plurality of
different respiration signals from the subject.
§ 103 REJECTION
Examiner's Rejection
Sato teaches that "a monitoring apparatus [ was known in the prior art]
for monitoring the breath of a sleeping person on a bed by projecting a
pattern onto the sleeping person on the bed, continuously taking an image of
the projected pattern, and calculating the shift amount of the pattern from the
image taken continuously" Sato ,r 2. Such apparatus accomplishes the same
objective as the claimed apparatus, which is described in the Specification as
an apparatus "for determining respiration signals from a subject[, i.e., 'the
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breath' of a person as in Sato]," where the "image data determined from the
subject in a field of view is received and the respiration signals are
determined on the basis of movement pattern determined in the image data."
Spec. 1 :5-9.
The Examiner found that Sato describes an apparatus for determining
respiration signals from a patient comprising a camera with the claimed
configuration to identify "image sections" and generate "motion vectors" as
recited in the claims. Final Act. 5. The motion vectors, as found by the
Examiner, correspond to the up and down movement of the patient's body
when breathing, as illustrated in the arrows shown in Figure 8 of Sato. Id.
The Examiner also found that Sato' s apparatus has a processor that
carries out the recited steps of claim 1 (steps [3]-[8]), where the alternating
signals are the illuminated light spots that move up and down as the patient
breathes. Final Act. 5.
The Examiner found that Sato does not explicitly disclose that the
motion information regarding the light and patient movement is a "motion
vector" as required by all the rejected claims, but found that Porikli teaches a
camera, as claimed, configured to detect motion vectors of the parts of the
skin surface that move when a patient is breathing. Final Act. 6.
The Examiner acknowledged that Sato does not describe frequency
analysis of the alternating signals as recited in step [9] of claim 1. Final Act.
6. However, the Examiner found that Droitcour describes frequency
analysis of alternating signals based on the motion of the chest. Id. The
Examiner determined it would have been obvious to one of ordinary skill in
the art to have performed frequency analysis of Sato' s alternating signals to
identify the portions of the signals which are "wanted." Id. at 6-7.
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Discussion
Motion vectors
Appellants contend that Sato does not describe generating motion
vectors. Appeal Br. 8. Appellants argue that the sensors of Sato move in
only one direction along the y-axis and, thus, a motion vector would not be
generated. Id.
This argument is not persuasive. Claim 1 recites the camera is "[2]
configured to identify image sections and generate a motion vector for each
image section, the at least one vector being related to motion of a portion of
the subject in the field of view." A vector is not defined in the Specification.
We, thus, adopt its ordinary definition as it appears in a general purpose
dictionary to mean "a quantity that has magnitude and direction and that is
commonly represented by a directed line segment \vhose length represents
the magnitude and whose orientation in space represents the direction.'"-~
(Emphasis added.)
The Examiner relied upon various disclosures in Sato for describing a
motion vector, including paragraph 75 (Final Act. 5) which reads in part as
follows:
The area with movement in the upward phase and that
with movement in the downward phase are applied with
different patterns in this example, but may be colored
differently (for example, blue upward and red downward). The
phase of movement may be indicated by an arrow (shown by
the broken line in the drawing), for example. This facilitates
recognition of which part of the body of the person 2 is moving
upward or downward . ... Data representing changes in the
2 Merriam-Webster.com, https://www.merriam-
webster.com/dictionary/vector (last visited Oct. 21, 2018).
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heights, obtainable by integrating the changes in the sampling-
point-moves, may also be processed in the same manner.
Sato ,r 75.
Sato' s discussion is with reference to Figure 8 which is reproduced
below (the arrow had a visibility problem in the reproduced image; it is
enhanced herein by darkening the dotted lines and making the lines solid to
increase their visibility):
Figure 8(a)
Figure 8(b)
Each small rectangle in Figures 8(a) and (b) of Sato reproduced above
represents an image section. Compare Figures 8(a) and (b) of Sato with
Figure 5 of the Specification which depicts rectangles 48 as image sections.
Spec. 11 :5. Sato explains:
FIG. 8(a) shows a case where the abdomen of the person 2 is
moving downward, more specifically exhalation in abdominal
breathing. Meanwhile, FIG. 8(b) shows a case where the thorax
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of the person 2 is moving upward, more specifically inhalation
in thoracic breathing.
Sato ,r 74 (emphases omitted).
Thus, Sato shows a downwardly moving arrow in Figure 8(a) that has
direction ( downward) and magnitude ( the height or distance the arrow
moves in the downward direction) and is, therefore, a vector. Figure 8(b)
shows an upwardly moving arrow that has direction (upward) and magnitude
( the height or distance the arrow moves in the upward direction) and is,
therefore, also a vector. It is, thus, not dispositive whether Sato used the
term "vector" to describe the up and down movements, since the image
movements described by Sato meet the definition of a vector.
Appellants attempt to distinguish Sato based on the motion of the
sensor device, which is moving in the y-direction in order to capture the
upward and downward movement of the patient's abdomen. Appeal Br. 8.
However, while the discussion in Sato refers to movement along the y-axis
(Sato ,r,r 48-50), the movement is of the sensor and the purpose of the
calculations involving the sensor movement, which is described in these
paragraphs, is to determine the height of the object, namely, the movement
of the body surface in the upward or downward direction (id. ,r,r 50, 51 ("the
object is to detect sampling-point-moves in the height direction of the person
2")) ( emphasis omitted).
The Examiner also cited paragraphs 56-59 of Sato as describing the
upward and downward motion of the vectors of interest. Final Act. 5. The
Examiner's findings are supported by a preponderance of the evidence.
Specifically, Sato teaches:
In this manner, the area definition section 22 defines areas with
upward sampling-point-moves and those with downward
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sampling-point-moves on the person 2. That is, both/either
areas with sampling-point-moves in the upward phase and/or
those with sampling-point-moves in the downward phase can
be defined. Defining areas with sampling-point-moves in the
same phase using the area definition section 22 as described
above allows one to know which part of the body of the person
2 is moving upward or downward.
Sato ,r 59 ( emphases omitted).
Appellants did not identify a deficiency in this disclosure as it relates
to a description of determining motion vectors which have magnitude
( distance moved) and direction (up or down).
As found by the Examiner, Porikli also teaches motion vectors in a
system for measuring respiration. Porikli teaches projecting light on the skin
surface. Porikli ,r 73. Porikli teaches that images are acquired by cameras
and that the images are used to determine the motion signals which
constitute the motion vectors:
While the pattern is projected, cameras 412 and 413, arranged
at different angles with respect to the skin surface 105, acquire
images of the skin surface 105 by acquiring light reflected from
the skin surface 105. The images of the skin surface 105 are
used to triangulate positions of points on the skin surface 105.
The images are taken over the time with a specified periodicity,
such that the motion signal for each point is determined.
Id. ,I 74.
In sum, the Examiner's determination that it was known in the art to
generate motion vectors for image sections when assessing a patient's
respiratory signals is fact-based and supported by a preponderance of the
evidence. Appellants have not persuasively demonstrated an error in the
Examiner's fact-based determination.
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Image sections
Claim 1 also recites "[ 1] a camera configured to receive image data
determined from the subject in a field of view and [2] configured to identify
image sections and generate a motion vector for each image section."
Substantially the same limitation appears in claim 1 7.
Appellants contend:
Porikli discloses determining different portions of a patient to
take images of (e.g., with cameras or a laser tracking system).
However, claim 1 recites that image sections are identified in
the image data, and then a motion vector is generated for each
section. In other words, Porikli discloses determining portions
(i.e., sections) of a patient to take images of and then takes the
images, while claim 1 recites that the images are taken, and
then the sections are identified from the taken images.
Appeal Br. 9 ( emphasis added).
This argument does not persuade us that the Examiner erred. As
stated by the Examiner, both Sato and Porikli teach acquiring image data.
Sato ,r,r 28-29; Porikli ,r 75. The claim requires the camera to receive image
data and to identify image sections, but as discussed by the Examiner, the
claim does not specify the order in which the steps are accomplished (Ans.
11-12), only that the camera is configured to do both. In other words, image
data can be acquired individually for each image section, rather than
acquiring image data and then afterwards identifying the image sections
within the image data. Appellants have not pointed to language in the claim
that would require the image sections to be identified from the image data
acquired by the camera.
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Alternating signals
Claim 1 recites: "[3] evaluate the image data by generating a different
alternating signal from each motion vector corresponding to vital sign
information."
Appellants also argue that Sato does not:
disclose a processor configured to evaluate the image data,
wherein the processor is configured to generating a different
alternating signal from each motion vector corresponding to
vital sign information of the subject from a plurality of different
areas of the field of view on the basis of movement pattern, as
recited in claim 1.
Appeal Br. 9.
We disagree. The Examiner specifically pointed to paragraphs 35-39
and 58---63 of Sato as describing alternating signals corresponding to the up
and down movement of the image sections which in tum correspond to the
"vital sign information" of respiration. Final Act. 5. Sato states that
waveforms showing the up and down movement can be obtained. Sato
discloses:
A waveform (for example, shift amount of the bright
spots and sum total) obtained by measuring shifts of the bright
spots based on images at two different time points, namely at
and slightly before any time point, represents the differential of
distance, or changes in speed. If it is desired to obtain a
waveform representing changes in height, for example, the
above-described waveform can be integrated into a waveform
representing the distance, or changes in height.
Sato ,r 39.
The waveforms, thus, correspond to the up and down movement of
the image sections and constitute alternating signals. The waveforms
represent the breaths the patients takes. Sato ,r 53.
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Thus, the factual evidence in Sato cited by the Examiner outweighs
Appellants' conclusory statements to the contrary.
Spectral parameter
Claim 1 recites: "[9] determine at least one spectral parameter of the
alternating signals determined from the different image sections by
performing frequency analysis of the alternating signals." Appellants
dispute that the light utilized in Sato corresponds to a spectral parameter of
alternating signals. Appeal Br. 9-10.
The Specification does not define "spectral parameter." Thus, we
adopt the ordinary dictionary definition of "spectral" to mean relating to a
spectrum, which can be a color, electromagnetic, or radio spectrum. 3
Consistently, the Specification refers to the "spectral component of the
electromagnetic radiation." Spec. 7 :20. Light is electromagnetic radiation. 4
The light utilized in Sato is projected on the body surface in a pattern
and then subsequently measured to determine a shift in the pattern in the
height direction (Sato ,r,r 9, 23, 24) is, therefore, a spectral parameter as
determined by the Examiner.
Appellants further argue that the light is from a projector and not a
spectral parameter of the alternating signal. Appeal Br. 10. This argument
is not persuasive. As indicated above, the claim requires a step in which [9]
3 Merriam-Webster.com, https://www.merriam-
webster.com/dictionary/spectrum (last visited Oct. 21, 2018).
4 Merriam-Webster.com, https://www.merriam-webster.com/dictionary/light
(last visited Oct. 21, 2018).
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"at least one spectral parameter of the alternating signals" is "determined
from the different image sections by performing frequency analysis of the
alternating signals." Sato projects a light (e.g., from a laser) and then
captures the light using a device, such as a CCD image sensor (Sato ,r,r 29,
30). The captured light corresponds to the claimed "spectral signal." Sato
teaches:
The image capturing apparatus 12 preferably includes a
filter 12b (see FIG. 5) for attenuating light components not
having wavelengths around that of the laser beam L 1 generated
by the light beam generation section 105 (see FIG. 3) described
above. The filter 12b is typically an optical filter such as
interference filter, and preferably disposed on the optical axis of
the imaging optical system 12a. With this construction, the
image capturing apparatus 12 can relatively increase the
intensity of light of the pattern I la projected by the projection
device 11 out of the light received by the image sensor device
15, and hence can reduce the influence of ambient light.
Sato ,r 30 ( emphases omitted).
Thus, light - which is "at least one spectral parameter" - of the
alternating signals - which is the upward and down directions resulting
from the patient's breathing- is determined from the image sections-
which are the sections shown in Figs 8(a) and (b) of Sato reproduced above.
Consequently, the Examiner's determination that spectral parameters are
measured by Sato is supported by a preponderance of the evidence.
Appellants dispute the Examiner's finding that Droitcour describes a
processor which is configured to "[9] ... [perform] frequency analysis of the
alternating signals" as recited in claim 1. Appellants contend that
"Droitcour discloses using spectral power as an input for a frequency
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analysis, while claim 1 recites that a spectral parameter is an output of a
frequency analysis." Appeal Br. 10.
The Examiner cited paragraphs 349 and 658---61 of Droitcour as
describing the claimed limitation. Final Act. 6.
Paragraph 349 of Droitcour describes a breathing signal as having
alternating peaks and values, which corresponds to the alternating signal of
the claims. The peaks and valleys correspond to a measured signal, which is
shown in Figure 10 ofDroitcour as a "Radar Signal." Droitcour ,r,r 7, 27,
59. Appellants do not dispute that the radar signals disclosed in Droitcour
are spectral parameters. Consistently, Droitcour specifically discloses
sensing motion based on electromagnetic radiation. Id. ,r 31.
Droitcour discloses that signals from the radar aimed on the patient
are collected by an antenna. Droitcour ,r,r 631, 657---60. The received
signals are radar signals and, thus, constitute spectral parameters. Id. ,r 647.
Droitcour describes performing frequency analysis on the signals (which are
spectral parameters). Id. ,r,r 658---67. Droitcour teaches the purpose of
performing such frequency analysis:
The filtered signal can be sampled by an analog to digital
converter (ADC) followed by signal processing, which can
isolate the physiological motion signal from noise, interference,
and non-physiological motion. The physiological motion signal
can be processed to determine the cardiopulmonary
parameter( s) of interest.
Droitcour ,r 654.
Droitcour describes the frequency analysis cited by the Examiner as
"an algorithm for separating multi physiological signals." Id. ,r 658.
Droitcour carries out the processing, as indicated above, to separate wanted
(related to the respiration of the patient) and unwanted (e.g., noise,
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interference, non-physiological motion) signals from each other. Id. ,r,r 654,
667. The output is necessarily a wanted spectral signal because Drouitcour
separates out unwanted signals and picks the wanted signals. Thus, while
the input in Droitcour is spectral signals, so too is the output.
When Sato' s signals are used in Droitcour' s frequency analysis, the
output would be a light signal because the purpose of frequency analysis is
to separate out wanted light signals associated with respiration from
unwanted light signals associated with noise, etc. Ans. 10-11. Appellants
do not provide evidence to the contrary, but rather make only a conclusory
statement that Droitcour is deficient. Appeal Br. 10.
Appellants contend that Porikli is deficient because "Porikli discloses
determining sections of the patient to take images of (i.e., portions of the
skin that reflects light), and then takes the images. By contrast, claim 1
recites that the spectral parameter is taken from the image data, not from the
patient." Appeal Br. 11.
Appellants appear to be referring to the limitation of claim 1 of "[9]
determine at least one spectral parameter of the alternating signals
determined from the different image sections by performing frequency
analysis of the alternating signals." This limitation, as explained above, was
found by the Examiner to be met by Droitcour, not Porikli.
Reason to combine
In making an obviousness determination, "it can be important to
identify a reason that would have prompted a person of ordinary skill in the
relevant field to combine the elements in the way the claimed new invention
does." KSR Int 'l Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007). Appellants
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contend that the "the motivation to combine Droitcour with Sato to 'be able
to identify what is wanted" is not a clear articulation of reasons," but is
conclusory. Appeal Br. 11. We do not agree. As explained above, the
Examiner relied upon the frequency analysis described in Droitcour to meet
the limitation of claim 1 of a processor configured to "[9] determine at least
one spectral parameter of the alternating signals determined from the
different image sections by performing frequency analysis of the alternating
signals." The reason Droitcour performed this analysis was to eliminate
unwanted noise, interference, etc., from the wanted signals associated with
the movement indicative of respiration. The Examiner explained the reason
to apply the analysis to Sato: "The motivation to do this would be to find
different portions of a response or signal and therefore be able to identify
what is wanted." Final Act. 6-7. It is clear that what is wanted is the
movement associated with the patient's breathing. We can find no
deficiency in this statement for the purpose of establishing a reason to
combine Sato with Droitcour.
Appellants also assert that the Examiner "does not explain what type
of 'frequency analysis' could possibly be applied to that alternating signal to
determine the light of Sato." Appeal Br. 11 ( emphasis omitted). However,
as explained by the Examiner, "the 'frequency analysis' of the claims is not
given as a specific type of frequency analysis, but is broad in scope as the
claim just says that frequency analysis is done to the signals." Ans. 11.
Appellants have not provided a reason as to why Droitcour's frequency
analysis could not be applied to Sato.
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Arguments based on references individually
Appellants also make arguments based on the cited publications
individually, identifying deficiencies in the publications as they relate to the
claimed subject matter. Appeal Br. 9, 11. However, the rejection is based
on a combination of the publications. "Non-obviousness cannot be
established by attacking references individually where the rejection is based
upon the teachings of a combination of references." In re Merck & Co., Inc.,
800 F.2d 1091, 1097 (Fed. Cir. 1986). The Examiner did not find that all
elements of the rejected claims are found in a single publication, but rather
relied on a combination of publications.
Claims 3, 5, 6, and 8-21
Claims 3, 5, 6, and 8-21 were addressed in separate sections of the
Appeal Brief. However, the arguments made for these claims are either the
same as were made for claim 1, and/or Appellants simply stated the
limitations in the claims, and made conclusory statements that such
limitations are not described in the cited prior art, without identifying a
deficiency in the Examiner's rejection (Final Act. 7-9). Consequently,
claims 3, 5, 6, and 8-21 fall with claim 1. 37 C.F.R. § 4I.37(c)(l)(iv).
Summary
For the foregoing reasons, the obviousness rejection of claims 1, 3, 5,
6, and 8-21 is affirmed.
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TIME PERIOD
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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