Ex Parte Van Pieterson et al

Patent Trial and Appeal Board

Aug 15, 2016

12304137 (P.T.A.B. Aug. 15, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/304,137 12/10/2008 Liesbeth Van Pieterson
24737 7590 08/17/2016
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.
2006P00624WOUS 2844
EXAMINER
HOFFA, ANGELA MARIE
ART UNIT PAPER NUMBER
3768
NOTIFICATION DATE DELIVERY MODE
08/17/2016 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):
marianne.fox@philips.com
debbie.henn@philips.com
patti. demichele@Philips.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LIESBETH VAN PIETERSON, MARGREET DE KOK,
SIMA ASV ADI, BERNARDUS HENDRIKUS WILHELMUS
HENDRIKS, GERHARDUS WILHELMUS LUCASSEN,
JACQUELINE VANDRIEL, and PAUL VAN DER SLUIS
Appeal2014-007952
Application 12/304,137
Technology Center 3700
Before DONALD E. ADAMS, JEFFREY N. FREDMAN, and
TIMOTHY G. MAJORS, Administrative Patent Judges.
PER CURIAM
DECISION ON APPEAL
This is an appeal 1 under 35 U.S.C. § 134 involving claims to a skin
monitoring device. The Examiner rejected the claims as obvious. We have
jurisdiction under 35 U.S.C. § 6(b). We affirm.
1 Appellants identify the Real Party in Interest as Koninklijke Philips N.V.
(see App. Br. 2).
Appeal2014-007952
Application 12/304,137
Statement of the Case
Background
Appellants' invention "relates to a skin monitoring device" for
"monitoring the color of the skin" (Spec. 1: 1-2).
The Claims
Claims 1--4, 6, 7, 10-14, 16, 30-36, and 38 are on appeal.
Independent claim 1 is representative and reads as follows (emphasis
added):
1. A skin monitoring device for application near a skin,
compnsmg:
a plurality of light units each having an emitting mode for
emitting light towards the skin and a detecting mode for detecting
at least one approximate wavelength of light reflected by the
skin;
a signal receiving circuit configured to receive a first
signal from a first light unit of the plurality of light units and a
second signal from a second light unit of the plurality of light
units operating in the detecting mode, and to determine an
amount of current excited by the light received by the first light
unit and the second light unit; and
a processing circuit configured to convert the determined
amount of the current into skin data by comparing the determined
amount of the current with reference current values associated
with predetermined skin data, and to selectively operate the
plurality of light units in the emitting mode and the detecting
mode to generate a map of the skin using said skin data;
wherein the first light unit includes a first lens and the
second light unit includes a second lens, the first lens being
configured to directly focus light from the first unit at a first
depth of a desired location, and the second lens being configured
to directly focus light from the second unit at a second depth of
the desired location, the first depth being a different depth of the
skin than the second depth.
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Application 12/304,137
The Issues
The Examiner rejected claims 1-3, 7, 10-14, 16, 30-36, and 38 under
35 U.S.C. § 103(a) as obvious over Genoe,2 Yamashita,3 and Kurtz4 (Ans. 2-
11).
The Examiner rejected claims 4 and 6 under 35 U.S.C. § 103(a) as
obvious over Genoe, Yamashita, Kurtz, and Liess5 (Ans. 11-12).
Because the same issues are dispositive for both rejections, we will
consider them together.
The Examiner finds that Genoe teaches "a plurality of light units each
having an emitting mode for emitting light towards the skin and a detecting
mode for detecting at least one approximate wavelength of light reflected
and/or emitted by the skin (sensors units repeated in a two-dimensional
array, par. 0101 )," "a signal receiving circuit," "a processing circuit
configured to convert the determined amount of the current into skin data
(par. 0125, intended use of the device is to monitor wound healing process),"
and "a frequency regulating circuit" (Ans. 3--4).
The Examiner concludes that it would have been obvious
[as a] matter of design choice to provide predetermined skin data
in order to track the progress of the wound healing as suggested
by Genoe. It is common in the optical art to compare obtained
measurement values to predetermined standard or reference
2 Genoe et al., US 2008/0312517 Al, published Dec. 18, 2008.
3 Yamashita et al., US 6,240,309 Bl, issued May 29, 2001.
4 Kurtz, US 2006/0241495 Al, published Oct. 26, 2006.
5 Liess et al., WO 02/37410 Al, published May 10, 2002.
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Application 12/304,137
values in order to map the measured value to a meaningful
measurement.
(Ans. 4.) The Examiner concludes that it would have been obvious to use
Yamashita' s "pulsed light unit in an emitting mode in the system of Genoe
to achieve the predictable result of reducing or eliminating interference
between measured signals" and finds that "Yamashita teaches [] focus[ing]
the emitting light (85-1, 85-2, fig. 24) but the light is not directly focused
onto the skin. Instead, it is focused and travels through fiber optic channels
onto the skin (8-1, 8-2, fig. 24)" (Ans. 4--5).
The Examiner further concludes that it would have been obvious to
provide lens focusing optics directly onto the skin as taught by
Kurtz in order to produce the predictable result of equivalently
focusing the light onto the skin at different depths as to the
methods used by Genoe in view of Yamashita. Kurtz further
teaches that advantages to using lenses to focus the light at the
desired depth include an increase in signal to noise ratio and
simpler post-processing (par. 0075).
(Ans. 5.)
The issue with respect to these rejections is: Does the evidence of
record support the Examiner's conclusion that Genoe, Yamashita, and Kurtz
render the claims prima facie obvious?
Findings of Fact
1. Genoe teaches a "sensor [that] is designed for treatment of
periodic measurement signals" (Genoe i-f 15; see also Ans. 4), and that "each
sensor unit further comprises at least one light emitting diode for
illuminating the measurement elements, for example by reflection on human
tissue" (Genoe i-f 17; see also Ans. 3).
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Application 12/304,137
2. Genoe teaches that
combinations of LEDs, detectors, circuitry and switching
elements, called a sensor unit, can be repeated to cover a larger
area, such that parallel measurements over a larger area become
possible. The sensors units can be repeated in a one- or a two-
dimensional array or in other geometrical configurations.
(Genoe i-f 101; see also Ans. 3--4.)
3. Genoe teaches that "one could put a first LED generating light
at a first frequency (e.g., red light of a first freq.), a second LED generating
light at a second frequency (e.g., red light of a second frequency or infrared
(IR) light)" (Genoe i-f 98; see also Ans. 3), and that "[a] first detector absorbs
light in a first frequency range (e.g., the first light frequency), and a second
detector absorbs light in a second frequency range (e.g., the second light
frequency)" (Genoe i-f 100; see also Ans. 3).
4. Genoe teaches "reading the charges out in a sequential manner
to obtain an image of the characteristic. Each sensor unit can correspond to
one pixel of the image" (Genoe i-f 106; see also Ans. 3).
5. Yamashita teaches
an optical measurement instrument for a living body, comprising
light incident means for simultaneously applying incident light
of a wavelength in a visible-infrared region to a plurality of
incident positions on the surface of a subject, light detection
means for simultaneously detecting lights obtained by allowing
the incident light to pass through the subject, at a plurality of
detection positions on the surface of the subject, and imaging
means for imaging information on the inside of the subject using
detected signals outputted from the light detection means. The
light incident means includes light modulation means for
intensity-modulating the incident light applied to the plurality of
incident positions with modulation frequencies respectively
different every [of] the respective incident positions. The light
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detection means includes selection and detection means for
selecting and detecting transmitted light components of
modulation frequencies respectively different every respective
detection positions from the transmitted lights relative to the
plurality of detection positions.
(Yamashita Abstract; see also Ans. 4.)
6. Figure 24 of Yamashita is reproduced below:
FIG,, 24
Figure 24 shows that "the respective wavelength-range lights are
respectively introduced into and transmitted to incident optical fibers 8-1
and 8-2 through lenses 85-1and85-2, followed by application to a subject
(living body) 9" (Yamashita 25:60-64; see also Ans. 4).
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7. Yamashita teaches that "if a switch or the like is used so as to
successively switch between the incident positions every measurement
positions on a time-sequence basis, such crosstalk is prevented from
occurring" (Yamashita 3:6-9; see also Ans. 4).
8. Yamashita teaches
light of a specific modulation frequency, which has been detected
at a specific detection portion, corresponds to only an incident
light launched from a specific incident portion irradiated with the
light of the specific modulation frequency. Thus, information on
the living body at a specific measurement portion in the subject,
which is determined in association with the specific incident and
detection portions referred to above, can be obtained without
crosstalk. As a result, living-body information about a plurality
of measurement portions in the subject can be obtained
simultaneously and without crosstalk and hence a simultaneous
multichannel measurement can be carried out. Further, an
optical measurement on a wide spatial region including the
plurality of measurement portions in the subject can be carried
out with high efficiency and satisfactory accuracy.
(Yamashita 4:43-58; see also Ans. 4.)
9. Kurtz teaches "[a] polarization based diagnostic device (200)
for optically examining the medical condition of tissue (290) comprises an
illumination optical system (205), comprising a light source (220) and beam
shaping optics. An optical detection system (210) comprises imaging optics
and an optical detector array, which detects light from the tissue" (Kurtz
Abstract, see also Ans. 5).
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10. Figure 7c of Kurtz is reproduced below:
Figme 7c
Figure 7c shows a "polarization diagnostic device 200" having"[ o ]bjective
lens 240 (Kurtz i-f 71, see also Ans. 5).
11. Kurtz teaches
that images can be obtained at various depths into the tissue by
having a light source provide wavelength sequential output,
where the variable tissue absorption and light penetration with
wavelength, along with image processing by controller 215, is
used to provide images at different depths. Of course, as the
wavelengths are varied, the plane of best focus in the tissue will
change as well. The image quality provided by polarization
diagnostic device 200 might be improved if the device is
equipped with a best focus adjustment, such as an auto-focus or
zoom capability. As an example, the device of FIG. 7c is
depicted with an arrow adjacent to objective lens 240 to indicate
the potential for a variable focus adjustment. The motion of
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objective lens 240 would nominally be controlled by a
mechanism (not shown) and controller 215. The use of a variable
focus may improve the dynamic range (signal to noise) of the
device. Variable focus could also allow the device to be
simplified while obtaining good image quality with tissue depth,
as the light source may need to provide fewer wavelengths (for
example, maybe just 630 nm and 830 nm) or even just one
wavelength for tissue examination. Also, while the controller
215 would need variable focus control capabilities, it might need
less software and image processing algorithms to provide quality
imagery of the collagen network at different tissue depths.
(Kurtz i-f 75, see also Ans. 5.)
12. Kurtz teaches that "the condensing lenses 230 and the objective
lens 240 work together such that the illumination light will nominally
illuminate a larger area than the image area examined by detection system
210 for all focal positions of objective lens 240" (Kurtz i-f 76, see also Ans.
5), and that "the detection subsystem" can comprise "lens 242 [and] field
lens 245" (Kurtz i-f 73).
Principles of Law
"The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results."
KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). "If a person of
ordinary skill can implement a predictable variation, § 103 likely bars its
patentability." Id. at 417.
Analysis
We adopt the Examiner's findings of fact and reasoning regarding the
scope and content of the prior art (Ans. 2-14; FF 1-12) and agree that the
claims are obvious over Genoe, Yamashita, and Kurtz. We address
Appellants' arguments below.
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Appellants contend that "Kurtz achieves various depths by changing
wavelengths, and not by having different lenses" (App. Br. 8; see also Reply
Br. 2).
We find this argument unpersuasive because Kurtz achieves various
depths by using focal adjustments. Specifically, Kurtz teaches that
"objective lens 240 to indicate the potential for a variable focus adjustment"
(FF 11 ). Kurtz further teaches that "[v] ariable focus could also allow the
device to be simplified while obtaining good image quality with tissue
depth" and that "while the controller 215 would need variable focus control
capabilities, it might need less software and image processing algorithms to
provide quality imagery of the collagen network at different tissue depths"
(FF 11 ). Therefore, we agree with the Examiner
that Kurtz combines the wavelength approach with the lens or
alternatively, provides only the lens as the means for focusing
the light at a desired depth. Kurtz further teaches that advantages
to using lenses to focus the light at the desired depth include an
increase in signal to noise ratio and simpler post-processing (par.
0075).
(Ans. 13; see also FF 11.)
Appellants contend that "[h ]aving two light units and two lenses for
focusing light at same location may appear to be redundant and thus counter-
intuitive" (App. Br. 9; see also Reply Br. 3).
We do not find this argument persuasive. Yamashita teaches the use
of two optical fibers with two lenses (FF 6) and Genoe teaches that "one
could put a first LED generating light at a first frequency (e.g., red light of a
first freq.), a second LED generating light at a second frequency (e.g., red
light of a second frequency or infrared (IR) light)" (FF 3; see also FF 1-2).
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Application 12/304,137
Kurtz teaches that the detection system can comprise multiple focal lengths
at multiple depths (FF 10-12). Therefore, we agree with the Examiner that
it would have been obvious to
provide lens focusing optics directly onto the skin as taught by
Kurtz in order to produce the predictable result of equivalently
focusing the light onto the skin at different depths as to the
methods used by Genoe in view of Yamashita. Kurtz further
teaches that advantages to using lenses to focus the light at the
desired depth include an increase in signal to noise ratio and
simpler post-processing (par. 0075).
(Ans. 5; see also FF 11.) The combined teachings of Genoe, Yamashita, and
Kurtz regarding using lenses to focus light at the desired depth would yield
predictable results of providing a sensor system that has multiple LED light
sources and detectors, that can "allow the device to be simplified while
obtaining good image quality with tissue depth" or "provide quality imagery
of the collagen network at different tissue depths" (FF 11 ).
We recognize; but are not persuaded by Appellants' contention that
"Kurtz discloses varying the wavelength of a single light source 220" (App.
Br. 9), which fails to account for Genoe's and Yamashita's contributions to
the combination as discussed above (FF 1-3, 5, 6). We recognize, but are
not persuaded by Appellants' contention that "Genoe is completely silent
about any light sources with lenses having different focus at different depths
of the skin" (Reply Br. 3), which fails to account for Kurtz' s contributions to
the combination as discussed above (FF 11 ). "The test for obviousness is
what the combined teachings of the references as a whole would have
suggested to those of ordinary skill in the art." In re Keller, 642 F.2d 413,
425 (CCPA 1981). See also In re Merck & Co., Inc., 800 F.2d 1091, 1097
(Fed. Cir. 1986) ("Non-obviousness cannot be established by attacking
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references individually where the rejection is based upon the teachings of a
combination of references .... [The reference] must be read, not in isolation,
but for what it fairly teaches in combination with the prior art as a whole.").
Appellants argue that "[t]wo light units with two lenses that directly
focus light from the light units at different depths of the same desired
location the skin are nowhere disclosed or suggested Genoe, Yamashita, and
Kurtz, alone or in combination" (App. Br. 8; see also Reply Br. 2, 4).
Claim 1 does not define the "desired depth." Accordingly, we agree
with the Examiner that
the claim language does not specify that the "desired location"
be a location representing a point, a line, an area, or a volume. In
the context of Genoe, the "desired location" is considered to be
a volume of skin tissue (i.e. data is measured over an area at
points of depth in a region of interest). The term "desired
location" is given its broadest reasonable interpretation.
(Ans. 14.)
Appellants argue that
At best, the combination of Genoe and Kurtz disclose or
suggest that each light sources or detectors in the Genoe array
has the same type oflens, namely, a variable focus lens for auto-
focus, where the lenses are configured to focus at one depth,
but are movable to change the focal point using additional control
circuitry to move the lenses to provide the auto-focus.
(Reply Br. 4.)
We are not persuaded. In light of Kurtz' s express teaching that using
lenses to focus light at the desired depth can "allow the device to be
simplified while obtaining good image quality with tissue depth" or "provide
quality imagery of the collagen network at different tissue depths" (FF 11)
for light sources similar to that of Genoe or Yamashita, we find Appellants'
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arguments, lacking supporting evidence, insutlicient to rebut the express
teaching of Kurtz. See In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997)
(" [A ]ttomey argument [is] not the kind of factual evidence that is required to
rebut a prima facie case of obviousness").
Conclusion of Law
The evidence of record supports the Examiner's conclusion that
Genoe, Yamashita, and Kurtz render claim 1 prima facie obvious.
Appellants do not argue separately the claims for this obviousness rejection.
Therefore, claims 2, 3, 7, 10-14, 16, 30-36, and 38 fall with claim 1.
Appellants present no additional argument based on the teachings of
Liess, and rely on the same arguments addressed above with regard to
Genoe, Yamashita, and Kurtz. For the reasons discussed above, therefore,
we affirm the rejection of claims 4 and 6.
SUMMARY
In summary, we affirm the rejection of claim 1 under 35 U.S.C.
§ 103(a) as obvious over Genoe, Yamashita, and Kurtz. Claims 2, 3, 7, 10-
14, 16, 30-36, and 38 fall with claim I.
We affirm the rejection of claims 4 and 6 under 35 U.S.C. § 103(a) as
obvious over Genoe, Yamashita, Kurtz, and Liess.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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