Baxter International Inc. et al.

Patent Trials and Appeals Board

May 29, 2020

2019001656 (P.T.A.B. May. 29, 2020)

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.
14/606,582 01/27/2015 Armin Kappeler 3712044-04829 3610
29200 7590 05/29/2020
K&L Gates LLP-Chicago
Baxter
P.O. Box 1135
Chicago, IL 60690-1135
EXAMINER
YOUNG, PATRICIA I
ART UNIT PAPER NUMBER
2488
NOTIFICATION DATE DELIVERY MODE
05/29/2020 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):
USpatentmail@klgates.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ARMIN KAPPELER, AGGELOS K. KATSAGGELOS,
GEORGIOS ANDREA BERTOS, KIRK ANDREW ASHLINE, and
NEAL ANTHONY ZUPEC
Appeal 2019-001656
Application 14/606,582
Technology Center 2400
Before BARBARA A. BENOIT, JON M. JURGOVAN, and
PHILLIP A. BENNETT, Administrative Patent Judges.
BENNETT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–38. We have jurisdiction under
35 U.S.C. § 6(b).
We reverse.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42(a). Appellant identifies the real parties in interest as Baxter
International Inc., Baxter Healthcare S.A., and Northwestern University.
Appeal Br. 4.
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Application 14/606,582

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CLAIMED SUBJECT MATTER
The claims are directed to a visual inspection system for automated
detection of particulate matter in flexible medical containers. Claim 1,
reproduced below with the key limitation in italics, is illustrative of the
claimed subject matter:
1. A method for automated detection and classification of
objects in a receptacle containing a fluid utilizing a machine
vision system, comprising:
detecting, using a processor of the machine vision system,
a first object in the fluid contained by the receptacle that appears
in a plurality of sequential frames of digital image data of the
receptacle;
determining, using a processor of the machine vision
system, at least one motion parameter corresponding to
movement of the first object through the fluid in the plurality of
sequential frames; and
classifying, using a processor of the machine vision
system, the first object into one of a predetermined plurality of
object classes at least partially based on the at least one motion
parameter of the first object.
Appeal Br. 34 (Claims Appendix).
REFERENCES2
The prior art relied upon by the Examiner is:
Name Reference Date
Taylor US 2005/0221269 A1 Oct. 6, 2005
Hing US 2012/0044342 A1 Feb. 23, 2012
Kim US 2012/0274816 A1 Nov. 1, 2012

2 References listed below are identified with reference to the first named
inventor.
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Zhang US 2014/0002617 A1 Jan. 2, 2014
Bageshwar US 2015/0160338 A1 June 11, 2015
Voigt US 7,560,720 B2 July 14, 2009
REJECTIONS
Claims 1–4, 7–11, 13–15, 17–21, 23–25, and 28–34 stand rejected
under 35 U.S.C. § 102(a)(1) as being anticipated by Voigt. Final Act. 5–9.
Claims 5 and 6 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Voigt and Kim. Final Act. 34.
Claims 12, 16, and 22 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Voigt and Bageshwar. Final Act. 35–38.
Claims 26 and 27 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Voigt and Hing. Final Act. 38–41.
Claims 35–37 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Voigt and Taylor. Final Act. 41–42.
Claim 38 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Voigt and Zhang. Final Act. 43–44.
ISSUE
Has the Examiner erred in finding Voigt discloses “determining, using
a processor of the machine vision system, at least one motion parameter
corresponding to movement of the first object through the fluid in the
plurality of sequential frames,” as recited in independent claim 1?
ANALYSIS
The Examiner rejects claim 1 as anticipated by Voigt. Claim 1
generally relates to a process in which objects in a fluid-containing
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receptacle are detected and classified based on the movement of the object
within the container. Appellant argues, inter alia, that Voigt does not
anticipate claim 1 because it does not disclose the limitation “determining
. . . [a] motion parameter corresponding to movement of the first object
through the fluid in the plurality of sequential frames.” Appeal Br. 18–22
(emphasis omitted). With respect to this disputed limitation, the Examiner
finds as follows:
[Voigt discloses] determining, using a processor (Voigt: i.e.
vision system 116, acquisition controller 102, particles
inspection unit 104, constituted by a computer - fig. 7, col. 18,
1. 63-col. 19, l. 8) of the machine vision system (Voigt: i.e.
inspection machine 10 – fig. 1, col. 11, ll. 56–64), at least one
motion parameter corresponding to movement (Voigt: i.e.
contrast within a small area of interest (AOI), is declared to be
part of a particle or anomaly, except if it remains on (nearly) the
same position in all images of the sequence (static anomalies, e.g.
dirt on the container surface). Some contrast means that the
difference between the brightest and darkest pixel lies above a
certain threshold -Table Parameters, col. 13, l. 30 –col. 14, l. 33)
of the first object (Voigt: i.e. set of objects, OBJ_SET [N], for
each image an object set will be created. Each object in the set
(static anomalies are not included) will be classified, whether it
is considered as a particle or not – col. 14, ll. 12–15) through the
fluid (Voigt: i.e. container 16 with fluid and material – abstract,
col. 12, ll. 21–23) in the plurality of sequential frames (Voigt:
i.e. sequence of images recorded by a camera 36, 38, 120, 122,
124, 126, 132, 134, 144, IM_PROTO: prototype image, used as
reference for placing AOI's alignment of images within an image
sequence, IM_SRC [N]: the recorded image sequence –set of
grey value images (of a container)- figs. 1, 9a, 9b, 9c, 10, 11, 12,
col. 12, ll. 25–32, col. 13, ll. 38–39, 44–45, col. 22, ll. 48–66,
col. 23, ll.. 4–5, 14–15).
Final Act. 7–8 (boldface omitted). Thus, the Examiner determines that the
operation of Voigt’s vision system to find unwanted foreign objects in a
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receptacle, and specifically the identification of areas of interest by detecting
contrast within a sequence of images taken of the receptacle, discloses the
disputed limitation. The Examiner finds that Voigt discloses that when
contrast is shown in an area of the container, it is determined to be a particle
or an anomaly unless the area of contrast remains in the same location in all
of the images of the sequence. If the location of the contrast area does not
move and remains the same throughout the image sequence, the anomaly is
considered a static anomaly indicative of dirt on the container surface. A
moving contrast area, on the other hand, is a particle or anomaly within the
container.
Appellant argues the disclosure of Voigt “merely describes that
contrast between pixels is used to identify particles or anomalies, and . . .
does not teach determining a motion parameter of an object though the fluid,
such as a particle, which is used to later classify the object based on the
motion parameter.” Appeal Br. 19. Appellant further asserts “the only
portion of the above disclosure of Voigt having any relationship to
motion . . . is for static anomalies, such as dirt on the container surface,
which are not classified.” Appellant further contends the detection static
anomalies differs from the claim because the static anomalies are on the
container surface. Because they do not move, and are not in the fluid,
Appellant asserts that generated information corresponding to static
anomalies cannot be considered a “motion parameter corresponding to
movement of the first object through the fluid,” as recited in claim 1. We
agree.
Anticipation is a test of strict identity. Trintec Indus., Inc. v. Top-
U.S.A. Corp., 295 F.3d 1292, 1296 (Fed. Cir. 2002). That is, to meet the
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strict identity test for anticipation, all elements must be disclosed in exactly
the same way as they are arranged or combined in the claim. Therasense,
Inc. v. Becton, Dickinson & Co., 593 F.3d 1325, 1332 (Fed. Cir. 2010). In
this instance, the Examiner’s findings fail to meet this exacting standard.
Voigt’s particle detection method “inspects the containers 16 for
determining if any unwanted objects or foreign matter is present inside the
containers.” Voigt col. 11, ll. 56–60. Containers are loaded onto a track and
“are rotated so as to re-suspend the fluid and/or material found in the fluid in
the container.” Voigt col. 12, ll. 22–24. Cameras are positioned to inspect
each container from different angles and take digital images of the container.
Voight col. 13, ll. 1–26. The digital images are analyzed for contrast—the
presence of which in an area is flagged as an area of interest indicative of
some kind of particle or anomaly either within the fluid or on the surface of
the container. Voigt col. 13, ll. 30–34. If the particle or anomaly remains in
the same position in all images taken by the camera, it is assumed to be a
stationary particle or anomaly, such as dirt on the surface of the container.
Id. Voigt describes a group of data objects and parameters which are used to
evaluate and process the images from the cameras. Voigt col. 13, l. 37–col.
14, l. 34.
The Examiner points to three of these data objects as corresponding to
the recited “motion parameter corresponding to movement of the first object
through the fluid”—OBJ_SET[N], IM_SRC[N], and IM_PROTO. The
Examiner’s rationale appears to be that because stationary objects are
identified as static anomalies and excluded, the other detected objects are in
movement, and tracking information about the other, moving objects
necessarily corresponds to “motion parameter corresponding to movement
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of the first object.” Appellant’s Specification demonstrates that “motion
parameters” reflect how the object moves through the fluid, and not the mere
fact that there is or is not movement. Voigt discloses detecting the absence
of motion of objects. In Voigt, the lack of motion for an object results in its
exclusion from any further analysis. Actual motion of an object is not
considered or otherwise analyzed in Voigt. The parameters identified by the
Examiner merely reflect the existence of objects in the fluid—not the
specific movement of the objects through the fluid. Accordingly, as the
disclosure of Voigt is not exactly the same as the claimed invention, it fails
to meet the exacting standard required for rejections under § 102, and we do
not sustain the anticipation rejection of claim 1. For the same reason, we
also do not sustain the rejection of independent claim 28, which recites a
commensurate limitation.
Claim 38
Claim 38 is independent. The Examiner rejects claim 38 as
unpatentable over Voigt and Zhang. Claim 38 recites the limitation of “a
motion analysis module to determine at least one motion parameter
corresponding to movement of the first object through the fluid in the
plurality of sequential frames of digital image data.” Appeal Br. 40 (Claims
Appendix). In finding this limitation taught in the prior art, the Examiner
makes the same findings with respect to Voigt as were made in connection
with claim 1. For the same reasons, these findings are not supported by the
evidence. The Examiner does not make any findings with respect to Zhang
that would cure the deficiency in Voigt. We do not sustain the rejection of
claim 38 under § 103.
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Remaining Claims
The remaining dependent claims 2–27 and 29–37 depend from claims
1 and 28, respectively. Most of these claims are rejected as anticipated by
Voigt, and the reasoning above applies equally to those rejections. Other
dependent claims are rejected under § 103 as obvious over Voigt and
additional applied references. However, the Examiner makes no finding
with respect to the additional applied references which would cure the
deficiencies identified in Voigt above. We do not sustain the rejections of
the dependent claims for the same reasons discussed above.
CONCLUSION
The Examiner’s rejections are reversed.
DECISION SUMMARY
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–4, 7–11,
13–15, 17–
21, 23–25,
28–34
102 Voigt 1–4, 7–11,
13–15, 17–
21, 23–25,
28–34
5–6 103 Voigt, Kim 5–6
12, 16, 22 103 Voigt, Bageshwar 12, 16, 22
26, 27 103 Voigt, Hing 26, 27
35–37 103 Voigt, Taylor 35–37
38 103 Voigt, Zhang 38
Overall
Outcome
1–38

REVERSED