Ex Parte Sabol et al

Board of Patent Appeals and Interferences

Aug 31, 2012

10323800 (B.P.A.I. Aug. 31, 2012)

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.
10/323,800 12/18/2002 John M. Sabol 132311/YOD GEMS:0222 7567
68174 7590 09/04/2012
GE HEALTHCARE
c/o FLETCHER YODER, PC
P.O. BOX 692289
HOUSTON, TX 77269-2289
EXAMINER
CARTER, AARON W
ART UNIT PAPER NUMBER
2624
MAIL DATE DELIVERY MODE
09/04/2012 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte JOHN M. SABOL, GOPAL B. AVINASH,
and MATTHEW J. WALLER
____________________

Appeal 2009-012155
Application 10/323,8001
Technology Center 2600
____________________

Before: LANCE LEONARD BARRY, MARC S. HOFF, and
CARL W. WHITEHEAD, JR., Administrative Patent Judges.

HOFF, Administrative Patent Judge.

DECISION ON APPEAL

1 The real party in interest is GE Medical Systems Information
Technologies, Inc.
Appeal 2009-012155
Application 10/323,800

2
STATEMENT OF THE CASE
Appellant(s) appeal under 35 U.S.C. § 134(a) from a final rejection
of claims 1-73. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.
Appellants’ invention is directed to reconciling the results of
independent image evaluation processes or “reads.” Two or more reads of an
image data set provided by two or more respective readers are integrated.
One or more discrepancies or concurrences exist between the two or more
reads. An integrated data set is formed comprising the one or more
discrepancies or concurrences. In another embodiment, the one or more
discrepancies are resolved by application of one or more automated routines
(Spec. 3).
Independent claim 1, reproduced below, is representative of the
subject matter on appeal.
1. A method, comprising:

integrating two or more reads of an image data set provided by
two or more respective readers, wherein one or more discrepancies or
concurrences exist between the two or more reads; and

forming an integrated data set comprising to one or more
discrepancies or concurrences.

REFERENCES
The Examiner relies upon the following prior art in rejecting the
claims on appeal:
Rogers US 6,556,699 B2 Apr. 29, 2003
Kaufman US 2003/0016850 A1 Jan. 23, 2003

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REJECTIONS
Claims 1-6, 8-12, 44-49, and 51-55 stand rejected under 35 U.S.C.
§ 102(e) as being anticipated by Rogers.
Claims 7, 13-43, 50, and 56-73 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Rogers in view of Kaufman.

ISSUES
With respect to the § 102 rejection, Appellants argue that Rogers fails
to teach integrating two or more reads of an image data set provided by two
or more respective readers, because Rogers teaches that a radiologist
assesses the suspicious regions found by a computer aided detection (CAD)
algorithm before those suspicious regions are integrated with the
radiologist’s own read results (App. Br. 11-12).
With respect to the § 103 rejection, Appellants further argue, inter
alia, that neither Kaufman nor Rogers resolves one or more discrepancies by
application or one or more automated routines. Appellants point out that
because Kaufman teaches illustrating “changes that may have occurred
between the baseline scan and follow up scan,” Kaufman compares reads of
two different data sets (App. Br. 18-19).
Appellants’ arguments present us with the following issues:
1. Does Rogers teach integrating two or more reads of an image data
set provided by two or more respective readers?
2. Does the combination of Rogers and Kaufman teach or fairly
suggest resolving the one or more discrepancies by application of one or
more automated routines?
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PRINCIPLES OF LAW
“A rejection for anticipation under section 102 requires that each and
every limitation of the claimed invention be disclosed in a single prior art
reference.” See In re Buszard, 504 F.3d 1364, 1366 (Fed. Cir. 2007)
(quoting In re Paulsen, 30 F.3d 1475, 1478-79 (Fed. Cir. 1994)).
Section 103(a) forbids issuance of a patent when ‘the differences
between the subject matter sought to be patented and the prior art are
such that the subject matter as a whole would have been obvious at
the time the invention was made to a person having ordinary skill in
the art to which said subject matter pertains.’

KSR Int'l Co. v. Teleflex, Inc., 550 U.S. 398, 406 (2007). The question of
obviousness is resolved on the basis of underlying factual determinations
including (1) the scope and content of the prior art, (2) any differences
between the claimed subject matter and the prior art, (3) the level of skill in
the art, and (4) where in evidence, so-called secondary considerations.
Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966). See also KSR, 550
U.S. at 407, (“While the sequence of these questions might be reordered in
any particular case, the [Graham] factors continue to define the inquiry that
controls.”)

ANALYSIS
CLAIMS 1-6, 8-12, 44-49, AND 51-55
We select claim 1 as representative of this group of claims, pursuant
to our authority under 37 C.F.R. § 41.37(c)(1)(vii).
Rogers teaches that a radiologist examines a mammography image
and reports a set of suspicious regions designated as S1 (col. 17, ll. 56-59).
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A computer aided detection (CAD) system also operates on the image and
reports a set of suspicious regions designated as S2 (col. 17, ll. 59-61). The
radiologist examines set S2 and accepts or rejects members of set S2 as
suspicious, forming a third set denoted as S3, which is a subset of S2 (col.
17, l. 61 – col. 18, l. 1). The radiologist then creates a set of workup regions
designated as S4 which is the union of sets S1 and S3 (col. 18, ll. 1-3).
Appellants assert that Rogers’ second read of the image data, by the
CAD system, is not a second respective read because the radiologist accepts
or rejects suspicious regions found by the CAD system before the two reads
are integrated (App. Br. 11).
We are not persuaded by Appellants’ argument. We agree with the
Examiner’s finding that Rogers teaches a first reader (the radiologist) and a
second reader (the CAD system) (Ans. 11). We find that Rogers teaches two
respective readers because the radiologist cannot enter suspicious regions
into set S2, or subset set S3. No suspicious region can become a member of
set S2, and thus set S3, unless it is initially identified by the CAD system.
We therefore find that the Examiner did not err in rejecting claims
1-6, 8-12, 44-49, and 51-55 as being anticipated by Rogers. We will sustain
the Examiner’s § 102 rejection.
CLAIMS 13-43, 50, AND 56-73
Independent claims 13 and 32 “resolving the one or more
discrepancies by application of one or more automated routines.”
Independent claim 56 recites “a routine for automatically resolving the one
or more discrepancies.” Independent claim 65 recites “reconciling the one or
more features of the integrated data set . . . via an automated algorithm.”
Independent claim 22 recites “data processing circuitry configured to
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integrates two or more reads of the image data set.” Independent claim 42
recites “data processing circuitry configured to process the image data set
. . . and means for resolving discrepancies between two or more reads of the
image data set.”
The Examiner finds that Kaufman teaches resolving one or more
discrepancies by the application of one or more automated routines (Ans. 6),
as well as the similar limitations noted supra. We do not agree with the
Examiner’s finding. The Examiner’s citation of Kaufman paragraph [0080]
fails to support the rejection. Kaufman teaches that “comparison module 48
illustrates to the operator any changes that many have occurred between the
baseline scan and follow up scan” (¶ [0080]). Kaufman is thus directed to
resolving discrepancies between reads of two distinct image data sets
obtained at different times, rather than between two reads of one image data
set, as the claims require.
Accordingly, we find that the combination of Rogers and Kaufman
fails to teach all the limitations of claims 13-43, 50, and 56-73. We will not
sustain the Examiner’s §103 rejection of claims 13-43, 50, and 56-73.
CLAIM 7
In contrast to claim 13, discussed supra, claim 7 does not recite the
application of one or more automated routines. Claim 7 requires only that
“one or more concurrences are excluded from the integrated data set.”
Appellants present no separate argument for the patentability of claim
7. We find that the Examiner has stated reasons for combining Rogers and
Kaufman having a rational underpinning (Ans. 5). Accordingly, we conclude
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that the Examiner did not err in rejecting claim 7 under § 103 over the
combination of Rogers and Kaufman. We will sustain the Examiner’s
rejection.

CONCLUSION
1. Rogers teaches integrating two or more reads of an image data set
provided by two or more respective readers.
2. The combination of Rogers and Kaufman does not teach or fairly
suggest resolving the one or more discrepancies by application of one or
more automated routines.

DECISION
The Examiner’s decision rejecting claims 1-12, 44-49, and 51-55 is
affirmed. The Examiner’s decision rejecting claims 13-43, 50, and 56-73 is
reversed.
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)(2010).

AFFIRMED-IN-PART

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