Ex parte Alfano et al.

Board of Patent Appeals and Interferences

Sep 30, 1998

08189124 (B.P.A.I. Sep. 30, 1998)

Application for patent filed January 28, 1994. 1
According to applicants, the application is a continuation of
Application 07/927,566, filed August 10, 1992.
1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today
(1) was not written for publication in a law journal and
(2) is not binding precedent of the Board.
Paper No. 20
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte ROBERT R. ALFANO,
KWONG M. YOO, SAMIR AHMED,
ZHI-WEI ZANG AND FENG LIU
_____________
Appeal No. 95-3911
Application 08/189,1241
______________
ON BRIEF
_______________
Before HAIRSTON, KRASS, and TORCZON, Administrative Patent
Judges.
HAIRSTON, Administrative Patent Judge.
Appeal No. 95-3911
Application No. 08/189,124
2
DECISION ON APPEAL
This is an appeal from the final rejection of claims 1
through 4 and 6 through 8.
The disclosed invention relates to a method and apparatus
for imaging a luminescent object in or behind a scattering
medium. The method and apparatus include means (i.e., an
absorbing dye) added to the scattering medium for making the
scattering medium preferentially absorbing of luminescent
light emitted by the object. As a direct result of the means
added to the scattering medium, the multiple scattered
component of the luminescent light is absorbed by the
scattering medium as compared to the ballistic (i.e.,
unscattered) component of the luminescent light.
Claim 1 is illustrative of the claimed invention, and it
reads as follows:
1. A method for imaging an object in or behind a
scattering medium comprising the steps of:
(a) making the object to be detected luminescent;
(b) illuminating the object through the scattering medium
with a beam of illuminating light, the illuminating light
being of a sufficient wavelength to cause the object to
luminesce;
(c) whereby luminescent light is emitted from the object
Appeal No. 95-3911
Application No. 08/189,124
3
into the scattering medium, the luminescent light comprising a
ballistic component and a multiple scattered component;
(d) making the scattering medium preferentially absorbing
of the luminescent light emitted by the object so that the
multiple scattered component of the luminescent light is
preferentially absorbed by the scattering medium as compared
to the ballistic component of the luminescent light;
(e) filtering out illuminating light from light emergent
from the scattering medium; and
(f) forming an image of the filtered light.
The references relied on by the examiner are:
Modell 5,022,757 June 11,
1991
Makino et al. (Makino) 5,097,135 Mar. 17,
1992
Yoo et al. (Yoo) 5,140,463 Aug. 18,
1992
(filed Mar. 8, 1990)
Claims 1 through 4 and 6 through 8 stand rejected under
35 U.S.C. § 103 as being unpatentable over Makino in view of
Yoo.
Claims 1 through 4 and 6 through 8 stand rejected under
35 U.S.C. § 103 as being unpatentable over Modell in view of
Yoo.
Reference is made to the briefs and the answer for the
respective positions of the appellants and the examiner.
OPINION
Appeal No. 95-3911
Application No. 08/189,124
4
We have carefully considered the entire record before us,
and we will reverse the obviousness rejections of claims 1
through 4 and 6 through 8.
Makino discloses a fluorescent microscope system (Figures
6 and 7) that uses fluorescence to determine a calcium
concentration in a sample cell 10. A fluorescent probe (e.g.,
fura-2) is administered to the sample cell 10, and the sample
cell 10 then emits fluorescence light by radiation of the
excitation light from illumination apparatus 1 (column 8,
lines 7 through 19). The fluorescence light is analyzed to
determine the calcium concentration (column 8, lines 20
through 23; column 10, lines 32 through 34). A printer 17
produces a hard copy of color image data, a computer 15 stores
the color image data, and monitor 16 provides a view of the
color image data (column 10, lines 27 through 35).
Modell discloses a system and method for sensing a target
substance within a tumor 86 (Figure 2). A photodynamic
sensitizer (e.g., a dye such as hematoporphin derivative
(HPD)) is injected into the area where the tumor is located.
When the area is irradiated with light, the higher
concentrations of photodynamic sensitizer within the malignant
Appeal No. 95-3911
Application No. 08/189,124
5
tissue exhibit a fluorescence at a color substantially
different from the light pink appearance of normal tissue.
Optical equipment and techniques are used to measure this
fluorescence.
In summary, both Makino and Modell sense fluorescent
light emitted from an object in a sample cell. The examiner
recognizes (Answer, pages 3 and 4) that Makino and Modell use
a “backscattering geometry” as opposed to a “transmission
geometry” as disclosed and claimed by appellants. Appellants
have not challenged the examiner’s conclusion (Answer, pages 3
and 4) that it would have been obvious to one of ordinary
skill in the art to use a “transmission geometry” in both
Makino and Modell in lieu of the “backscattering geometry.”
Yoo discloses techniques for improving the signal-to-
noise ratio of an image formed of an object hidden in or
behind a semi-opaque random media. In the disclosed
techniques, the ballistic or unscattered portion of a pulse is
the signal, and the scattered portion of the pulse is the
noise. One of the techniques disclosed by Yoo involves the
introduction of an absorbing dye into a random medium to
reduce the noise or multiple scattered light (column 8, lines
Appeal No. 95-3911
Application No. 08/189,124
6
47 through 53). According to Yoo (column 8, line 67 through
column 9, line 2), “the introduction of a dye into a random
medium will preferentially absorb the multiple scattered light
component over the ballistic portion.”
Based upon the absorption teachings of Yoo, the examiner
is of the opinion that it would have been obvious to one of
ordinary skill in the art to provide that the scattering
medium cell of Makino and the scattering medium tissue in
Modell “absorb the luminescent emission” of the object in view
of the “improved imaging through the suppression of scattered
light components as suggested by Yoo et al” (Answer, pages 3
and 4). In response to appellants’ arguments in the brief,
the examiner concludes (Answer, page 5) that “[a]ppellant[s]
can point to no physical reason why the absorptive quality of
a dye would cease if the light were a fluorescent emission
rather than a reflection or scattering.”
In response, appellants argue (Reply Brief, pages 1 and
2) that:
Appellants respectfully disagree with the Examiner’s
assertion that the absorptive quality of a dye would
be unaffected if the light to be absorbed were a
fluorescent emission rather than a reflection or
scattering of illuminating light. As apparently
Appeal No. 95-3911
Application No. 08/189,124
7
noted by the Examiner, the absorbing dye of Yoo et
al. preferentially absorbs light of the illuminating
wavelength and not of the fluorescing wavelength.
Accordingly, the absorbing dye of Yoo et al. could
not be used and was not used in the present
invention since it does not preferentially absorb
light of the fluorescing wavelength. Therefore, as
can readily be seen, to arrive at the claimed
invention using Makino et al. or Modell and Yoo et
al., one must take several inferential leaps which
are neither taught nor suggested by the prior art,
not the least of which is that the disclosure in Yoo
et al. of a dye that absorbs illuminating light
renders obvious the use of a dye that absorbs
fluorescing light, especially where no need for a
dye that absorbs fluorescing light is apparent from
Makino et al. or Modell.
We agree with appellants’ arguments. To establish a
prima facie case of obviousness, the examiner has the initial
burden of demonstrating by evidence or a convincing line of
reasoning why the absorptive dye in Yoo would absorb a
fluorescent light in addition to the scattered or reflected
light (Answer, page 5). In the absence of such evidence in
the record or a convincing line of reasoning by the examiner,
the burden is not on the appellants to prove that the dye used
in Yoo will not absorb fluorescent light. Consequently, the
obviousness rejections are reversed.
DECISION
The decision of the examiner rejecting claims 1 through 4
Appeal No. 95-3911
Application No. 08/189,124
8
and 6 through 8 under 35 U.S.C. § 103 is reversed.
REVERSED
KENNETH W. HAIRSTON )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
ERROL A. KRASS ) APPEALS AND
Administrative Patent Judge ) INTERFERENCES
)
)
)
RICHARD TORCZON )
Administrative Patent Judge )
svt
Edward M. Kriegsman
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