Ex Parte Tulipano et al

Patent Trial and Appeal Board

Sep 10, 2018

13498503 (P.T.A.B. Sep. 10, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/498,503 04/24/2012 Paola Karina Tulipano
24737 7590 09/12/2018
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.
2009P01419WOUS 1735
EXAMINER
HOLCOMB, MARK
ART UNIT PAPER NUMBER
3626
NOTIFICATION DATE DELIVERY MODE
09/12/2018 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 PAOLA KARINA TULIP ANO, YUECHEN QIAN, MERLIJN
SEVENSTER, and DIETER GELLER
Appeal2017-004270
Application 13/498,503
Technology Center 3600
Before ERIC S. FRAHM, SCOTT B. HOWARD, and JOHN D. HAMANN,
Administrative Patent Judges.
FRAHM, Administrative Patent Judge.
DECISION ON APPEAL 1
Appellants2 appeal under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 1-8 and 10-29. Claims 9, 13, 17, 19, 21, 23, and
25-29 have been canceled. Therefore, only the rejections of claims 1-8, 10-
12, 14--16, 18, 20, 22, and 24 are before us. We have jurisdiction under 35
U.S.C. § 6(b).
1 Throughout this Decision we refer to the Final Office Action mailed
March 2, 2016 ("Final Act."); the Appeal Brief filed August 1, 2016 ("App.
Br."); the Examiner's Answer mailed November 16, 2016 ("Ans."); and the
Reply Brief filed January 12, 2017 ("Reply Br.").
2 Appellants identify Koninklijke Phillips N.V. as the real party in interest.
App. Br. 3.
Appeal2017-004270
Application 13/498,503
We AFFIRM.
STATEMENT OF THE CASE
Introduction
Appellants' invention relates to the validation of medical images
using predefined templates and the augmentation of those images with
medical findings, along with display of various reports to a user. Spec. 1: 3-
2 :24; Title; Abstract; claims 1, 14, 18, 20, 22, 24. Claims 1 and 14,
reproduced below with bracketed lettering and emphases added, are
illustrative of the invention.
1. A medical information system, comprising:
a report memory configured to store one or more reports
which include image findings generated based on a diagnostic
image of anatomical structures produced by an imaging
apparatus, and medical findings;
a computer processor programmed to:
retrieve a first report including the image findings
and a second report including the medical findings;
[A] validate the image findings in the first report
with each of a set of predefined templates and processed
data related to the image findings generated based on the
set of predefined templates;
augment the first report with information from the
second report;
store the augmented first report in the report
memory;
deliver a notification related to results of the first
and augmented reports to a user;
obtain a set of predetermined findings from the
second report;
apply logic to process the first report and the
second report in accordance with one or more rules; and
2
Appeal2017-004270
Application 13/498,503
based on the logic, send a notification indicative of
results of processing the first report and the second report
in accordance with one or more of the rules, the logic
being processed based on a rule to at least one of:
determine whether findings in the first report are
inconclusive; and
[BJ determine whether there is a second report
having information relevant to the first report and
augment the first report with the information; and
a user display configured to display the first and
augmented reports.
14. A non-transitory computer readable medium having
computer executable instructions stored thereon, which
instructions, when executed by a computer processor, control
the processor to:
[CJ validate findings in a first report with each of a set of
predefined templates and process data generated based on the
set of predefined templates;
augment the first report with information from a second
report generated with medical findings; and at least one of:
store the augmented first report in a memory; and
display the augmented first report on a monitor.
The Examiner's Rejections
Claims 10-12 were rejected under 35 U.S.C. § 112, second paragraph,
as being indefinite for failing to particularly point out and distinctly claim
the subject matter which Appellants regard as the invention, due to an
improper dependency of claim 10. Final Act. 3. Because this rejection has
been withdrawn by the Examiner (see Ans. 14), this rejection is not before
us on appeal.
Claims 1-8, 10-12, 14--16, 18, 20, 22, and 24 are rejected under
35 U.S.C. § 101 as being directed to patent-ineligible subject matter. Final
Act. 4--7; see also Ans. 2-6, 14--26.
3
Appeal2017-004270
Application 13/498,503
Claims 1-8, 10-12, 14--16, 18, and 24 are rejected under 35 U.S.C.
§ I03(a) as being unpatentable over the combination of Datta (US
2006/0064328 Al; published March 23, 2006) and Avinash (US
2004/0122787 Al; published June 24, 2004). Final Act. 8-15; see also Ans.
6-13.
ISSUES
Based on Appellants' arguments in the Appeal Brief (App. Br. 15-32)
and the Reply Brief (Reply Br. 3-8), the following issues are presented on
appeal:
(l)Did the Examiner err in rejecting claims 1-8, 10-12, 14--16, 18,
20, 22, and 24 under 35 U.S.C. § 101 as being directed to patent-
ineligible subject matter?
(2)Did the Examiner err in rejecting claims 1-8, 10-12, 14--16, 18,
and 24 under 35 U.S.C. § 103 as being unpatentable over the
combination of Datta and Avinash? This involves whether or not
the Examiner erred in finding:
(a) Avinash's algorithms for detecting/matching features
teaches or suggests the recited "predefined templates" as
recited in independent claims 1, 14, 18, and 24 (see e.g.,
limitation [A] recited in claim 1 and limitation [ CJ recited in
claim 14, supra); and/or
(b) Datta determines whether there is a second report having
information relevant to a first report and if so, augment the
first report with the information, as recited in independent
4
Appeal2017-004270
Application 13/498,503
claims 1, 18, and 24 (see e.g., limitation [BJ recited in claim
1 supra).
ANALYSIS
We have reviewed Appellants' arguments (App. Br. 15-32; see also
Reply Br. 3-8), the Examiner's rejections (Final Act. 4--15; Ans. 2-13), and
the Examiner's response to Appellants' arguments (Ans. 14--36).
Appellants' arguments have not persuaded us of error in the Examiner's
conclusions that (i) the claims are directed to patent-ineligible subject
matter; and (ii) claims 1-8, 10-12, 18, and 24 are unpatentable as obvious
over the combination of Datta and Avinash. Due to the differing scope of
independent claim 14, we are, however, persuaded of error in the
Examiner's obviousness rejection of claims 14--16.
Issue (1): Rejection Under 35 US.C. § 101
We disagree with Appellants' arguments (App. Br. 15-20; Reply Br.
3---6) as to the patent-eligibility of independent claims 1, 14, 18, 20, 22, and
24. With regard to representative independent claim 1, we adopt as our own
( 1) the findings, conclusions, and reasons set forth by the Examiner in the
Final Office Action from which this appeal is taken (Final Act. 4--7; Ans. 2-
6), and (2) the reasons set forth by the Examiner in the Examiner's Answer
in response to the Appellants' Appeal Brief (Ans. 14--26).
The Examiner determines, and we agree, the claims are drawn to
the abstract ideas of comparing new and stored information
(report information and rules and predefined templates) and
using rules to identify options ( validation routines,
augmentation routines, logic processing routines); and/or using
categories to organize, store and transmit information
5
Appeal2017-004270
Application 13/498,503
( categories of various data processed by the system to organize
the data into new data that is stored and transmitted).
Ans. 5; see also Final Act. 6-7. We also agree with the Examiner's
comparison of the abstract ideas recited in the claims of the instant case to
the claims found patent-ineligible by the Federal Circuit in SmartGene, Inc.
v. Advanced Biological Labs., SA, 555 F. App'x 950 (Fed. Cir. 2014)
(invalidating a claim to computerized application of a mental process for
treating medical patients that "doctors do routinely") and Electric Power
Goup., LLC v. Alstrom S.A., 830 F.3d 1350, 1351-53 (Fed. Cir. 2016)
( collecting information, analyzing it, and displaying results is an abstract
idea). See Ans. 15-19. Notably, Appellants do not contest these
comparisons in the Reply Brief. See generally Reply Br. 3---6.
The Examiner further concludes, and we agree, that the additional
elements or combination of elements in claim 1 other than the abstract idea
per se do not provide meaningful limitations to transform the abstract idea
into a patent-eligible application of the abstract idea. Final Act. 7; see also
Ans. 5---6, 19-21. The Examiner finds, and we agree, that the claims merely
recite a generic computer structure that performs functions that are well-
understood, routine, and conventional. Final Act. 7; Ans. 5---6, 19-26.
Appellants have not demonstrated their claims provide a "solution ...
necessarily rooted in computer technology in order to overcome a problem
specifically arising in the realm of computer networks," as explained by the
Federal Circuit in DDR Holdings, LLC v. Hotels.com, LP, 773 F.3d 1245,
1257 (Fed. Cir. 2014), or provide an "unconventional technological solution
... to a technological problem" that "improve[ s] the performance of the
6
Appeal2017-004270
Application 13/498,503
system itself," as explained in Amdocs (Israel) Ltd. v. Openet Telecom, Inc.,
841 F.3d 1288, 1300, 1302 (Fed. Cir. 2016).
In view of the foregoing, we sustain the Examiner's rejection under
35 U.S.C. § 101 of representative claim 1, as well as claims 2-8, 10-12, 14--
16, 18, 20, 22, and 24 grouped therewith.
Issue (2): Rejection Under 35 USC§ 103
Issue (2)(a): Avinash's Algorithms
The Examiner finds (Final Act. 10-11; Ans. 6-10, 27-29), and we
agree, that Avinash's algorithms for detecting/matching features teach or
suggest the recited use of "predefined templates" for validation of image
findings, as recited in independent claims 1, 14, 18, and 24 (see e.g.,
limitation [A] recited in claim 1 and limitation [CJ recited in claim 14,
supra). Specifically, we agree with the Examiner's reasoning and
conclusion (Ans. 27-29) that the "predefined templates," recited in claims 1
and 14 as performing the function of validating image findings, encompass
A vinash' s algorithms which perform the identical function of feature
detection and classification for verifying image findings using an "algorithm
verification step" (Avinash ,r 383). Appellants' arguments that Avinash fails
to validate image findings with predefined templates (App. Br. 21-23; Reply
Br. 6-7), are therefore not persuasive of Examiner error.
Issue (2)(b): Datta and the Disputed Determining Step
We are persuaded by Appellants' argument (App. Br. 7) that Datta
discloses always adding the lab results (i.e., the recited second report) to the
image findings (i.e., the recited first report), and therefore, Datta fails to
disclose determining whether there is a second report having information
7
Appeal2017-004270
Application 13/498,503
relevant to a first report and if so, augmenting the first report with the
information, as recited in independent claims 1, 18, and 24 (see e.g.,
limitation [BJ recited in claim 1 supra).
The Examiner has not sufficiently explained how Datta's teaching of
adding lab results to image findings (see Datta Fig. 5, steps 560, 570; ,r,r 50-
52), teaches the disputed determining step. See Final Act. 10; see also Ans.
8, 30. The Examiner's finding ( e.g., that Datta's addition of lab results is
pursuant to a rule that must explicitly or impliedly determine the existence
of the lab results) is not supported by the express disclosure of Datta and
relies upon conjecture. Such conjecture would require us to resort
improperly to speculation, unfounded assumptions, or improper hindsight
reconstruction. See In re Warner, 379 F.2d 1011, 1017 (CCPA 1967). We
will not resort to such speculation or assumptions to cure the deficiencies in
the factual basis in order to support the Examiner's rejections.
However, independent claim 14, as well as claims 15 and 16
depending therefrom, do not require the disputed determining step, which is
recited in independent claims 1, 18, and 24. 3 Therefore, Appellants'
arguments regarding the determining step are not persuasive as to claims 14--
16.
3 In other words, claims 14--16 do not require determining whether there is a
second report having information relevant to the first report of image findings,
and then augmenting the first report with the information, as recited in each
of independent claims 1, 18, and 24.
8
Appeal2017-004270
Application 13/498,503
Smnmary
In view of the foregoing, we sustain the Examiner's rejection of
claims 14--16, and we do not sustain the Examiner's rejection of claims 1-8,
10-12, 18, and 24, under 35 U.S.C. § 103(a).
DECISION
We affirm the Examiner's rejection of claims 1-8, 10-12, 14--16, 18,
20, 22, and 24 under 35 U.S.C. § 101.
We affirm the Examiner's obviousness rejection of claims 14--16, and
reverse the Examiner's obviousness rejection of claims 1-8, 10-12, 18, and
24 under 35 U.S.C. § 103(a).
Because we affirm at least one ground of rejection with respect to
each claim on appeal, we affirm the Examiner's decision to reject claims 1-
8, 10-12, 14--16, 18, 20, 22, and 24. See 37 C.F.R. § 4I.50(a)(l) ("The
affirmance of the rejection of a claim on any of the grounds specified
constitutes a general affirmance of the decision of the examiner on that
claim, except as to any ground specifically reversed.").
No time period for taking any subsequent action in connection with this
appeal maybe extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 4I.50(f).
AFFIRMED
9