Ex Parte Yan et al

Patent Trial and Appeal Board

Jul 24, 2017

13433361 (P.T.A.B. Jul. 24, 2017)

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.
13/433,361 03/29/2012 Shikui Yan 2011P12833US01 6910
28524 7590 07/26/2017
SIEMENS CORPORATION
INTELLECTUAL PROPERTY DEPARTMENT
3501 Quadrangle Blvd Ste 230
EXAMINER
VALENTINER, JEREMY SCOTT
Orlando, EL 32817 ART UNIT PAPER NUMBER
2884
NOTIFICATION DATE DELIVERY MODE
07/26/2017 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):
ipdadmin.us@siemens.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SHIKUI YAN, JUNJUN DENG,
and THOMAS BRUCKBAUER
Appeal 2016-004477
Application 13/433,361
Technology Center 2800
Before N. WHITNEY WILSON, JULIA HEANEY,
and MERRELL C. CASHION, JR., Administrative Patent Judges.
HEANEY, Administrative Patent Judge.
DECISION ON APPEAL1
Appellants2 seek our review pursuant to 35 U.S.C. § 134(a) of the
Examiner’s Final Rejection of claims 2-4, 7, and 11—23 of Application
13/433,361. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 This Decision refers to the Specification filed March 29, 2012 (“Spec.”),
Final Office Action dated April 2, 2015 (“Final Act.”), Appeal Brief filed
August 28, 2015 (“App. Br.”), Examiner’s Answer dated January 20, 2016
(“Ans.”), and Reply Brief filed March 21, 2016 (“Reply Br.”).
2 Appellants identify the real party in interest as Siemens Medical Solutions
USA, Inc. App. Br. 1.
Appeal 2016-004477
Application 13/433,361
BACKGROUND
The subject matter on appeal relates to tuning of an x-ray computed
tomography (CT) scanner in order to correct for beam hardening artifacts in
a CT image that result from attenuation of low-energy x-rays as a
polychromatic x-ray beam passes through an object. App. Br. 2. According
to the Specification, prior art algorithms for beam hardening correction
required scanning multiple test objects composed of a material of known
density (i.e., phantoms) in different sizes to obtain the attenuation coefficient
of the material. Spec. 11—12. Appellants observed, however, that the tip
of a conically shaped phantom (illustrated as 302 in Spec. Fig. 7) has a
negligible beam hardening effect because of its small size in relation to the
conical portion. Spec. 142. Appellants thereafter describe a calibration
method using a specially shaped (e.g., conical) phantom comprising a
calibration tip, which obviates the need to perform separate scans of
phantoms in different sizes. Id. Tffl 42-46. Claim 11, reproduced below with
disputed terms italicized, is illustrative of the subject matter on appeal:
11. A method comprising:
scanning a phantom, wherein said phantom comprises a
calibration tip and a portion having a proximal end and a distal
end wherein said proximal end of said portion is attached to said
distal end of said calibration tip, said portion has a diameter that
increases incrementally from said proximal end of said portion
towards said distal end of said portion;
reconstructing an image of said phantom;
calculating an x-ray path length and estimated attenuation
coefficient;
calculating a sum of expected coefficients', and
generating an algorithm for beam hardening coefficients.
Independent claim 2 describes the shape of the phantom in slightly different
terms:
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Application 13/433,361
2. A phantom comprising:
a calibration tip having a proximal end and a distal end;
and
a portion having a proximal end and a distal end wherein
said proximal end of said portion is attached to said distal end of
said calibration tip;
wherein said portion has one of a substantially conical
shape, a substantially convex shape, and a substantially concave
shape.
App. Br. 11 (Claims App.).
THE REJECTIONS
The Examiner maintains the following rejections on appeal:
1. Claims 11—13, 15, 17—21, and 23 are rejected under 35 U.S.C.
§ 102(b) as anticipated by Urchuk.3
2. Claims 2-4 are rejected under 35 U.S.C. § 103(a) as unpatentable
over the combination of Robertson4 and Vermandel.5
3. Claim 7 is rejected under 35 U.S.C. § 103(a) as unpatentable over
the combination of Robertson, Vermandel, and Aydinlioglu.6
4. Claims 14, 16, and 22 are rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Urchuk and Vermandel.
3Urchuk et al., US 6,148,057 (iss. Nov. 14, 2000) (“Urchuk”).
4Robertson, US 4,873,707 (iss. Oct. 10, 1989).
5Vermandel et al., US 2012/0201438 Al (publ. Aug. 9, 2012)
(“Vermandel”).
6 Atif Aydinlioglu et al., Mathematical Relations between the Lengths
of the Metacarpal Bones and Phalanges: Surgical Significance, 185
Tohoku J. Exp. Med., 209-16 (1998) (“Aydinlioglu”).
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Application 13/433,361
DISCUSSION
Anticipation Rejection: Claims 11—13, 15, 17—21, and 23
Appellants argue independent claims 11 and 18 as a group and do not
present separate argument for dependent claims 12—13, 15, 17, 19—21, and
23. App. Br. 4—7. We choose claim 11 as representative; dependent claims
stand or fall with the claim from which they depend. See 37 C.F.R. §
41.37(c)(l)(iv).
Appellants argue that Urchuk does not anticipate claim 11 because the
phantom disclosed in Urchuk is missing the claimed elements of “a portion
having a proximal end and a distal end wherein said proximal end of said
portion is attached to said distal end of said calibration tip” and “said portion
has a diameter that increases incrementally from said proximal end of said
portion towards said distal end of said portion.” App. Br. 4—5. Appellants
further argue that Urchuk does not disclose “generating an algorithm for
beam hardening coefficients” or “calculating a sum of expected
coefficients.” Id. at 5.
Appellants’ arguments are not persuasive of reversible error.
Appellants’ arguments relating to the shape of the phantom are based on the
contention that the broadest reasonable interpretation of “a portion” as
recited in claim 11 does not encompass the individual stacked slabs 104
disclosed in Urchuk’s Figures 3 A—3B and relied upon by the Examiner.
Reply Br. 3^4. Specifically, Appellants’ argue “there is no basis upon which
it could be concluded that a person skilled in the art would consider multiple
stacked slabs a ‘a portion’” (App. Br. 5) and that the Examiner’s
interpretation of “a portion” is “inconsistent with the use of the term in the
specification and drawings, and is inconsistent with the interpretation that
those skilled in the art would reach, from reading the specification.” Id. at 4.
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Appellants do not direct us to any evidence in the Specification, however, to
support their contention, nor do we find a definition for “a portion” in the
Specification. Further, although Appellants appear to contend that the
Examiner’s interpretation is baseless because “a portion” is singular and,
therefore, should not be interpreted as encompassing multiple portions, the
general rule of claim interpretation for the article “a” is that it means “one or
more.” See KCJ Corp. v. Kinetic Concepts, Inc., 223 F.3d 1351, 1356 (Fed.
Cir. 2000) (“This court has repeatedly emphasized that an indefinite article
‘a’ or ‘an’ in patent parlance carries the meaning of ‘one or more” in open-
ended claims containing the transitional phrase ‘comprising’”). For these
reasons, using the broadest reasonable interpretation of the claim, we find
Appellants’ argument unpersuasive.
Appellants further argue that the Examiner’s interpretation of “a
diameter” as “a straight line passing from side to side of any figure or body,
through its center” is unreasonable and not in accordance with the
Specification and claims which use the term “in its usual and typical
definition of a width of a circle or sphere.” App. Br. 4—5; Reply. Br. 2—3.
Specifically, Appellants argue that a straight line passing from side to side
either vertically or horizontally through the center of Urchuk Figure 2 would
not “increase” as required by claim 11. Reply Br. 2—3. Appellants’
argument essentially depends on their argument regarding “a portion;” the
horizontal “Line B” shown in Appellants’ annotation of Urchuk Figure 2
(Reply Br. 3) passes through only a single slab of the phantom in Urchuk
Figure 2. Having rejected Appellants’ argument that “a portion” is limited
to a single slab, we reject Appellants’ argument regarding the interpretation
of “a diameter” for the same reasons.
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As to Appellants’ argument concerning “generating an algorithm for
beam hardening coefficients,” Appellants argue they are “unable to identify
any part of the cited passages [relied upon by the Examiner] where Urchuk
discloses generating an algorithm for beam hardening coefficients (eg*. see
the present application at paragraph [0067].” App. Br. 5 (citing Urchuk 6:6—
23, 8:27—9:34). Paragraph 67 of the Specification identifies a third degree
polynomial as an example of an algorithm for correction of artifacts due to
beam hardening. In response, the Examiner finds that the Specification does
not provide a special definition for “algorithm” or “beam hardening
coefficients” and that Urchuk discloses numerous ways of obtaining path
lengths or attenuations in connection with correcting for beam hardening
effects. Ans. 9—11 (providing citations to Urchuk’s disclosure of four ways
of determining beam hardening coefficients). Appellants respond that the
Examiner improperly relies on “speculative assumptions regarding the
meaning of a claim” but do not dispute the findings or direct us to a special
definition of “algorithm” in the Specification. Reply Br. 4. Therefore, using
the broadest reasonable interpretation of the claim, we determine a
preponderance of the evidence supports the Examiner’s conclusion for the
reasons expressed by the Examiner in the Answer, which we adopt as our
own.
Appellants’ argument concerning “calculating a sum of expected
coefficients” appears to be based on an assertion that Urchuk’s equations
(l)-(4) do not perform a summation of expected coefficients. App. Br. 6—7.
In response, the Examiner finds that “equations (1) and (3) include
summation series which inherently disclose a sum and since each equation is
performed for ‘each detector’ and ‘this procedure is repeated over the
detector array’ the effects on each detector are summed together.’” Ans. 14
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(providing citations to Urchuk). The Examiner further finds that the
Specification does not provide a special definition or disclose any particular
method for “calculating the sum.” Id. at 12. Appellants do not dispute the
findings or direct us to a special definition of “calculating a sum” in the
Specification. Reply Br. 4. Therefore, using the broadest reasonable
interpretation of the claim, we determine that a preponderance of the
evidence supports the Examiner’s conclusion for the reasons expressed by
the Examiner in the Answer, which we adopt as our own.
Obviousness Rejections: Claims 2—4, 7, 14, 16, and 22
Appellants present argument against the rejection of independent
claim 2 based on the combination of Robertson and Vermandel, and do not
separately argue dependent claims 3^4. App. Br. 7—8. With regard to
dependent claims 14 and 22, Appellants rely on their arguments against the
rejection of claim 2 {id. at 9). Appellants address the rejection of claims 7
and 16 separately {id. at 8—9), but those arguments do not rise to the level of
a separate argument for patentability. See In re Lovin, 652 F.3d 1349, 1357
(Fed. Cir. 2011) (“[W]e hold that the Board reasonably interpreted Rule
41.37 to require more substantive arguments in an appeal brief than a mere
recitation of the claim elements and a naked assertion that the corresponding
elements were not found in the prior art”). Accordingly, we only address
claim 2.
The Examiner finds that Robertson teaches a phantom having
diameters with “gradual variations that could correspond to a substantially
conical shape” and meeting all of the limitations of claim 2, except that
Robertson “does not specifically disclose what form the different shapes and
sizes could take.” Final Act. 16—17 (providing citations to Robertson). The
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Examiner determines it would have been obvious to a person of ordinary
skill in the art to combine Robertson’s teachings with Vermandel, which
discloses using a combination of cylindrical, concave, and convex shapes
adjacent to each other to measure and correct geometric distortions in
images based on anatomical shapes, in order to better approximate geometric
distortions. Final Act. 17—18 (providing citations to Vermandel).
Appellants argue that Robertson teaches a phantom which
corresponds to the shape and contour of the surface of an existing object,
such as a femur bone, and that if Robertson’s phantom were changed in
shape, it would be unsatisfactory for its intended purpose. App. Br. 7—8.
We do not find Appellants’ argument persuasive, because it relies solely on
a specific embodiment from Robertson and does not consider Robertson’s
teaching as a whole. Robertson generally relates to using phantoms of
numerous shapes and sizes to approximate and correct distortions in CT
imaging of various human bone structures. Robertson 1:5—11, 3:50-6:6,
6:3 3—55, 13:14—20. Thus, the Examiner’s reasoning that Robertson’s
teaching of using phantoms of various sizes and shapes to estimate various
bone structures would have led a person of ordinary skill in the art to use
Vermandel’s cylindrical and conical shapes to provide more accurate
phantoms for anatomical structures supports a determination of obviousness.
Accordingly, we affirm the rejection.
SUMMARY
We affirm the rejection of claims 11—13, 15, 17—21, and 23 under 35
U.S.C. § 102(b).
We affirm the rejections of claims 2-4, 7, 14, 16, and 22 as
unpatentable under 35 U.S.C. § 103(a).
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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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