Ex Parte Yuan et al

Patent Trial and Appeal Board

Mar 20, 2018

14161796 (P.T.A.B. Mar. 20, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/161,796 01/23/2014
116 7590 03/22/2018
PEARNE & GORDON LLP
1801EAST9TH STREET
SUITE 1200
CLEVELAND, OH 44114-3108
FIRST NAMED INVENTOR
Zhijia Yuan
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.
TPCN-51909 1023
EXAMINER
AMARA, MOHAMED K
ART UNIT PAPER NUMBER
2886
NOTIFICATION DATE DELIVERY MODE
03/22/2018 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):
patdocket@peame.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ZHIJIA YUAN, ZHENGUO WANG, CHARLES A. REISMAN,
and KINPUI CHAN
Appeal2017-006975
Application 14/161, 796
Technology Center 2800
Before ROMULO H. DELMENDO, BRIAND. RANGE, and
MERRELL C. CASHION, JR., Administrative Patent Judges.
DELMENDO, Administrative Patent Judge.
DECISION ON APPEAL
The Applicant (hereinafter "Appellant") 1 appeals under 35 U.S.C.
§ 134(a) from the Primary Examiner's final decision to reject claims 1-27.2
We have jurisdiction under 35 U.S.C. § 6(b ).
We affirm.
The Appellant is the Applicant, "Kabushiki Kaisha Topcon," which,
according to the Brief, is the real party in interest (Appeal Brief filed Sept.
16, 2016, hereinafter "Appeal Br.," 2).
2 Appeal Br. 6-15; Reply Brief filed Mar. 27, 2017, hereinafter "Reply Br.,"
2-8; Final Office Action entered Mar. 11, 2016, hereinafter "Final Act.," 3-
16; Examiner's Answer entered Dec. 8, 2016, hereinafter "Ans.," 3-18.
Appeal2017-006975
Application 14/161,796
I. BACKGROUND
The subject matter on appeal relates to optical coherence tomography
(OCT) imaging methods and apparatuses, and, in particular, to a method for
detecting missampling (i.e., data point loss) in a swept source OCT imaging
system (Specification filed Jan. 23, 2014, hereinafter "Spec.," i-fi-f l, 28).
Representative claim 1 is reproduced from the Claims Appendix to the
Appeal Brief (Appeal Br.), with key limitations emphasized, as follows:
1. A method for optical coherence tomography (OCT)
imaging, comprising the steps of:
providing at least one optical component comprising at
least one optical element to an OCT imaging system, the at least
one optical component configured for generating at least two
wavenumber reference signals, wherein the wavenumber
reference signals comprise attenuated or enhanced
interferogram signals;
generating light from a light source;
using an optical detector to obtain a plurality of
interferograms generated by the light;
aligning each of the plurality of interferograms according
to one of the at least two wavenumber reference signals;
determining a sample number corresponding to another of
the at least two wavenumber reference signals for each of the
plurality of interferograms;
for each interferogram of the plurality of interferograms,
identifying the interferogram as missampled if the determined
sample number corresponding to the other wavenumber
reference signal does not match the determined sample number
for the other wavenumber reference signal for a statistically
significant number of interferograms; and
correcting, replacing, or discarding the identified
interfero grams.
II. REJECTIONS ON APPEAL
On appeal, the Examiner maintains two rejections as follows:
A. Claims 1-27 under 35 U.S.C. § 112(b) as indefinite; and
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B. Claims 1-27 under 35 U.S.C. § 103 as unpatentable over Choi
et al., "Phase-Sensitive Swept-Source Optical Coherence
Tomography Imaging of the Ruma Retina With a Vertical
Cavity Surface-Emitting Laser Light Source," 38 Optics
Letters, Vol. 38, No. 3, 338-340 (2013) (hereinafter "Choi").
(Ans. 3-18; Final Act. 3-16.)
III. DISCUSSION
Rejection A. Focusing primarily on claims 1, 15, and 19 as a
collective group, the Appellant does not argue any claim separately pursuant
to the requirements set forth in 37 C.F.R. § 41.37(c)(l)(iv). Therefore, as
provided by this rule, we confine our discussion to claim 1, which we select
as representative. All other claims stand or fall with claim 1.
The Examiner states that the recitations "the other wavenumber
reference signal" in claim 1 (two occurrences) render claim 1 to be indefinite
because it is unclear whether "the clauses ... refer to the same wavenumber
reference signal or to two different 'other wavenumber reference signal[s]'
of the 'at least two wavenumber signals"' (Ans. 4 (emphasis added); see
also Final Act. 6-7). According to the Examiner, an amendment that would
overcome the rejection was suggested to the Appellant but was not accepted
(Ans. 4).
The Appellant contends that the claim is not indefinite because "'the
other' grammatically finds antecedence in the original recitation of
'another"' (Appeal Br. 6). According to the Appellant, "this is no different
than using 'first' and 'second' to describe the at least two signals" (id. at 7).
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The Appellant's arguments are insufficient to identify any reversible
error in the Examiner's rejection. In re Jung, 637 F.3d 1356, 1365 (Fed. Cir.
2011).
In the examination context, our reviewing court stated that "claims are
required to be cast in clear-as opposed to ambiguous, vague, indefinite-
terms" as "[i]t is the claims that notify the public of what is within the
protections of the patent, and what is not." In re Packard, 751F.3d1307,
1313 (Fed. Cir. 2014). When an examiner provides "a well-grounded
identification of clarity problems" during the examination process, an
applicant must provide a satisfactory response. Id. at 1313-14. The
response must "focus on the claim-language difficulties" and may "propose
clarifying changes or show why, on close scrutiny, the existing claim
language really was as reasonably precise as the circumstances permitted."
Id. at 1314.
Applying these principles, we conclude that the Examiner's rejection
is based on "a well-grounded identification of clarity problems" and the
Appellant's arguments on appeal fail to "show why, on close scrutiny, the
existing claim language really was as reasonably precise as the
circumstances permitted." Id. at 1313-14. Specifically, claim 1 recites
"generating at least two wavenumber reference signals" (emphasis added).
Thus, when more than two wavenumber reference signals are generated
(e.g., three wavenumber reference signals), one skilled in the relevant art
would be unable to ascertain to which specific wavenumber reference signal
the recitation "the other wavenumber reference signal" refers.
The Appellant's arguments that "'the other' grammatically finds
antecedence in the original recitation of 'another"' (Appeal Br. 6) and that
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"this is no different than using 'first' and 'second' to describe the at least
two signals" (id. at 7) appear to misconstrue claim 1 's scope as being limited
to an embodiment in which only two wavenumber reference signals are
generated. But claim 1 is not limited to such an embodiment.
Accordingly, we uphold the Examiner's rejection.
Rejection B. The Examiner finds that Choi would have suggested a
method for OCT imaging as recited in claim 1 (Final Act. 10-16), including
the "aligning," "determining," and "identifying" steps (id. at 12). With
respect to the disputed limitation "at least one optical component configured
for generating at least two wavenumber reference signals, wherein the
wavenumber reference signals comprise attenuated or enhanced
interferogram signals" recited in claim 1, the Examiner finds that Choi
discloses these limitations (id. at 11, 13-14 ).
The Appellant disagrees with the Examiner's finding, arguing that
"Choi does not teach, suggest, or otherwise render obvious 'generating at
least two wavenumber reference signals, wherein the wavenumber reference
signals comprise attenuated or enhanced interferogram signals' as recited by
claim 1" (Appeal Br. 7). The Appellant also argues that Choi does not
disclose or suggest the "determining" and "identifying" steps (id. at 7-8).
Specifically, the Appellant contends that Choi does not teach or render
obvious generating at least two wavenumber reference signals because,
contrary to the Examiner's finding, "the signal generated by the optical
clock would not be understood as a reference signal comprising attenuated
or enhanced interferogram signals" (id. at 8). According to the Appellant,
"one of ordinary skill in the art would understand the phrase 'attenuated or
enhanced interferogram signals' to be related to interferogram signals of the
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OCT system generating the claimed interferograms, not an interferometer in
an optical clock of the OCT system (as is the case with the Mach-Zehnder
interferometer)" and that the "clock signal itself is not attenuated or
enhanced interferogram signal[] as in the claims" (id.). The Appellant
further argues that "Choi is directed to an A-scan 'jitter' problem" but that
"the present claims are additionally directed to a missampling problem ...
that is unrecognized in Choi or any other prior art" (id. at 9). Furthermore,
the Appellant argues that even if it is assumed that Choi teaches two
wavenumber reference signals, Choi still fails to teach or suggest correcting
the missampling problem (id. at 10).
The Appellant's arguments are insufficient to identify reversible error
in the Examiner's rejection of claim 1. Jung, 637 F.3d at 1365.
Choi teaches a swept-source OCT system and method in which
Figures l(C) and l(D) show "FBG [fiber Bragg grating] traces in the OCT
interferogram before and after numerical trigger jitter correction" (Choi 339,
left column). Specifically, Choi teaches (id. at 339, right column; emphasis
added):
The trigger fluctuation in the OCT interferograms can be
numerically compensated during postprocessing by shifting the
individual interferogram by an integer number of samples as
shown in Figs. l(C) and l(D). This is possible because both the
optical clock and the FB signal are generated at fixed
wavenumbers, and therefore any A-line trigger fluctuation can
only result in an integer number sample shift. This operation
is computationally efficient because the number of samples to be
shifted can be determined simply by using a threshold on a small
number of samples around the FBG signal as shown in Figs. 1 (C)
and l(D).
These teachings, as well as others discussed by the Examiner, support the
Examiner's findings that Choi describes using two wavenumber reference
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signals. Therefore, Choi would have suggested a method including every
step recited in claim 1.
The Appellant's mere arguments to the contrary are entitled to little or
no probative weight because they are unsupported by any objective evidence
(e.g., a sworn, fact-based declaration from an expert). In re Geisler, 116
F.3d 1465, 1470 (Fed. Cir. 1997) ("An assertion of what seems to follow
from common experience is just attorney argument and not the kind of
factual evidence that is required to rebut a prima facie case of
obviousness."); In re Lindner, 457 F.2d 506, 508 (CCPA 1972) ("[M]ere
conclusory statements in the specification and affidavits are entitled to little
weight when the Patent Office questions the efficacy of those statements.").
The Appellant appears to be arguing that an optical clock of an OCT
system would not be considered as part of the OCT system (Appeal Br. 8)
("one of ordinary skill in the art would understand the phrase 'attenuated or
enhanced interferogram signals' to be related to interferogram signals of the
OCT system generating the claimed interferograms, not an interferometer in
an optical clock of the OCT system (as is the case with the Mach-Zehnder
interferometer)"; emphasis added). We discern no reasonable basis for the
Appellant's argument because, as the Examiner finds (Ans. 6-7), Choi's
OCT system uses an optical clock interferogram and "any interferogram
generated in the prior art [OCT] system, such as around the FBG or by the
optical clock, teaches the claimed general interferogram signals."
Regarding the Appellant's argument that "the present claims are
additionally directed to a missampling problem" that is not addressed by
Choi, we agree with the Examiner's position in the Answer (Ans. 9), which
we adopt as our own. Moreover, "[ t ]he question is not whether the
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[claimed] combination was obvious to the [Applicant] but whether the
combination was obvious to a person with ordinary skill in the art." KSR
Int'! Co. v. Teleflex Inc., 550 U.S. 398, 420 (2007). "Under the correct
analysis, any need or problem known in the field of endeavor at the time of
invention and addressed by the [prior art] can provide a reason for
combining the elements in the manner claimed." Id. See also In re Kemps,
97 F.3d 1427, 1430 (Fed. Cir. 1996) (the motivation or reason in the prior art
need not be the same as that of the applicant).
With respect to claim 7, the Examiner provides specific factual
findings and reasoning in support of an obviousness conclusion (Final Act.
14--16; Ans. 13-15). Therefore, the Appellant is incorrect in arguing that the
Examiner's "logic is entirely conclusory and without analysis" (Appeal Br.
12). Other than criticizing the Examiner's usage of the term "trivial" (id.),
the Appellant does not identify any alleged error in the Examiner's core
factual findings and analysis that it would have been within the level of a
person having ordinary skill in the art "to divide the output of the element or
notch filter by its transmission ratio to recalculate the input intensity of the
interferograms and the reference signals for a proper correction of the
fluctuations" (Ans. 14; Appeal Br. 12). Perfect Web Techs., Inc. v. InfoUSA,
Inc., 587 F.3d 1324, 1329 (Fed. Cir. 2009) (an analysis of obviousness "may
include recourse to logic, judgment, and common sense available to the
person of ordinary skill that do not necessarily require explication in any
reference or expert opinion").
The Appellant's argument against claim 8 is similarly ineffective
because it fails to identify specific reasons why the Examiners' factual
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findings and analysis (Final Act. 13-16; Ans. 15-16) are erroneous (Appeal
Br. 13).
With respect to the remaining arguments presented for claims 9-26
and 28 (Appeal Br. 13-15), they are based on arguments presented in
support of claim 1, which we found unpersuasive above, or are based on
skeletal arguments that do not require our separate consideration. As stated
in 37 C.F.R. § 41.37(c)(l)(iv), merely reciting what a claim recites and/or
providing a skeletal argument that the prior art references do not disclose or
suggest certain claim limitations are not arguments that require our separate
consideration. Cf In re Lovin, 652 F.3d 1349, 1356-57 (Fed. Cir. 2011).
IV. SUMMARY
Rejections A and Bare sustained. Therefore, the Examiner's final
decision to reject claims 1-27 is affirmed.
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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