Ex Parte Avinash et al

Patent Trial and Appeal Board

Jun 28, 2013

10723859 (P.T.A.B. Jun. 28, 2013)

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.
10/723,859 11/26/2003 Gopal B. Avinash 139943/YOD GEMS:0256 9691
68174 7590 07/01/2013
GE HEALTHCARE
c/o FLETCHER YODER, PC
P.O. BOX 692289
HOUSTON, TX 77269-2289
EXAMINER
MEHTA, PARIKHA SOLANKI
ART UNIT PAPER NUMBER
3737
MAIL DATE DELIVERY MODE
07/01/2013 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte GOPAL B. AVINASH and PRATHYUSHA K. SALLA
__________

Appeal 2012-003722
Application 10/723,859
Technology Center 3700
__________

Before DEMETRA J. MILLS, LORA M. GREEN, and
FRANCISCO C. PRATS, Administrative Patent Judges.

MILLS, Administrative Patent Judge.

DECISION ON APPEAL

This is an appeal under 35 U.S.C. § 134. The Examiner has rejected
the claims for anticipation and obviousness. We have jurisdiction under 35
U.S.C. § 6(b).
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STATEMENT OF CASE
Representative Claims

1. A method for gating image data, comprising the steps of:
acquiring a set of motion data during a breath hold using an imaging system;
deriving one or more attributes of motion from the set of motion data;
deriving an initiation threshold and a termination threshold from the one or
more attributes;

generating a set of gated image data using one or more gating
intervals derived from the initiation threshold and the termination threshold;
and
displaying or storing an image generated from the set of gated image
data.

6. The method as recited in claim 1, wherein generating the set of
gated image data comprises selecting the set of gated image data from a set
of image data such that selection begins when a first measurement of motion
decreases below the initiation threshold and selection ceases when a second
measurement of motion increase above the termination threshold.

10. The method as recited in claim 1, wherein generating the set of
gated image data comprises:

determining if one or more scan parameters are satisfied; and

acquiring the set of gated image data if the one or more scan
parameters are satisfied.

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Cited References
Riederer et al. US 5,363,844 Nov. 15, 1994

Grounds of Rejection
Claims 1-8, 10-20 and 22-32 are rejected under 35 U.S.C. § 102(b) as
being anticipated by Riederer.
Claims 9 and 21 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Riederer.

FINDINGS OF FACT
The Examiner’s findings of fact are set forth in the Answer at pages 4-
6. The following facts are highlighted,
1. According to the Specification page 1, “One technique that may
be employed to minimize or prevent [image] artifacts related to
respiration is respiration gating, i.e., acquiring or selecting image
data associated with low-motion phases of the respiratory cycle.”
2. The specification page 12 discloses, “The gated image data 58
represent image data acquired during one or more breath-holds or
the quiet periods associated with those breath-holds. The gated
image data 58 may be reconstructed to generate medically useful
images with a reduced incidence of motion artifacts related to
respiration.”
3. The specification page 11, defines “motion attributes” as the
“periodicity of the respiratory cycles and/or the range of the
measured parameter, such as chest wall motion or impedance, may
be determined.”
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Discussion Anticipation
ISSUE
The Examiner concludes that Riederer teaches each element claimed.
In particular, the Examiner argues that
The present specification fails to redefine the term
"gating", and thus the term is not afforded any narrower
interpretation than its ordinary meaning in the art, so
application of such ordinary meaning is in fact reasonable.
Furthermore, Appellant clearly discloses that, while the
specification shows certain specific embodiments, "it should be
understood that the invention is not intended to be limited to the
particular forms disclosed" (Specification p. 17). This
disclosure actually supports the Examiner's position that
Appellant did not, at the time of filing, intend to redefine the
term "gate" to only those gating embodiments described in the
examples disclosed; in other words, the applied ordinary
meaning of the term is also reasonable, contrary to the
Appellant's assertions.

(Ans. 6.)

Appellants allege that Examiner has made a legal error by improperly
relying upon extrinsic evidence to define a term “gating” "already fully
explained" in the pending specification (Appeal Brief, p. 9).
Appellants contend that the Riederer ('844) reference makes no
suggestion that imaging terminates when the diaphragm begins moving, as is
relied upon by Examiner in the current grounds of rejection (Appeal Brief p.
10-11.) Specifically, Appellants purport that “all instances in the Riederer
reference appear to characterize the data acquisition as continuing for a set
time period.”
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Appellants argue that, “there is no termination threshold based on
motion in the Riederer reference, and that termination of data acquisition
instead appears to be based upon a set time.” (Reply Br. 7.)
Appellants argue that with respect to claims 6 and 18, “the Riederer
reference does not disclose that the set of gated image data is selected from a
set of existing image data, i.e., that selection is retrospective based on
already-acquired data.” (Br. 17; Reply Br. 9.)
Appellants further argue with respect to claims 10 and 22, that “the
Riederer reference does not disclose “determining if one or more scan
parameters are satisfied.” (Br. 18; Reply Br. 10.)
The issue is: Does the cited prior art teach the invention as claimed?

PRINCIPLES OF LAW
In order for a prior art reference to serve as an anticipatory reference,
it must disclose every limitation of the claimed invention, either explicitly or
inherently. See In re Schreiber, 128 F.3d 1473, 1477(Fed. Cir. 1997). To
anticipate, every element and limitation of the claimed invention must be
found in a single prior art reference, arranged as in the claim. Karsten Mfg.
Corp. v. Cleveland Golf Co., 242 F.3d 1376, 1383 (Fed. Cir. 2001). ]
“In rejecting claims under 35 U.S.C. § 103, the examiner bears the
initial burden of presenting a prima facie case of obviousness. Only if that
burden is met, does the burden of coming forward with evidence or
argument shift to the applicant.” In re Rijckaert, 9 F.3d 1531, 1532 (Fed.
Cir. 1993) (citations omitted). In order to determine whether a prima facie
case of obviousness has been established, we consider the factors set forth in
Graham v. John Deere Co., 383 U.S. 1, 17 (1966): (1) the scope and content
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of the prior art; (2) the differences between the prior art and the claims at
issue; (3) the level of ordinary skill in the relevant art; and (4) objective
evidence of nonobviousness, if present.
“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).

ANALYSIS

We address these rejections together as Appellants do not provide
separate argument against the obviousness rejection other than that put forth
for the anticipation rejection. We agree with the Examiner’s fact finding,
statement of the rejection and responses to Appellants’ argument as set forth
in the Answer. We find that the Examiner has provided evidence to support
a prima facie case of anticipation. We provide the following additional
comment to the arguments set forth in the Answer.
As to claim interpretation, we find that Appellants have attempted to
define in context what is meant by the term “gating” as claimed. Appellants
define “gating” in the Specification as, “respiration gating, i.e., acquiring or
selecting image data associated with low-motion phases of the respiratory
cycle.” (FF1.) However, even accepting Appellants’ definition of gating,
we agree with the Examiner that Riederer teaches the concept of gating
respiration. The Examiner found that “gating” as commonly known in the
art means “only initiation and termination of a process based upon motion
data.” (Ans. 5, Br. 12.) Appellants argue that this is, in fact, the definition
of gating that they espouse. (id.)
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The Examiner finds that, “since Riederer ('844) uses motion cycle
data to determine the length of the patient's breath-hold, and subsequently
chooses to initiate and terminate imaging based on such determined
breathhold,” he reasonably "gates" the imaging sequence based upon the
motion data, as claimed. (Answer 7.) Riederer teaches “measurements of
the superior-inferior (S/I) position of the patient's diaphragm.” (Col. 5, ll.
52-53.) We agree with the Examiner, therefore, that Riederer teaches
“initiation and termination of a process based upon motion data” or “gating”
as claimed.
The specification page 11, defines “motion attributes” as the
periodicity of the respiratory cycles and/or the range of the measured
parameter, such as chest wall motion or impedance, may be determined.”
(FF3.) Appellants contend that the Riederer ('844) reference makes no
suggestion that imaging terminates when the diaphragm begins moving (an
attribute of motion). However, both Riederer and the claimed method derive
attributes of motion (the periodicity of the respiratory cycles) from the
motion data. (See, e.g. Riederer Figs 3 and 4; Answer page 8, first
paragraph.) Therefore we agree with the Examiner that Riederer discloses
“acquiring a set of motion data during a breath hold using an imaging
system; deriving one or more attributes of motion from the set of motion
data,” as claimed.
Appellants argue that, “there is no termination threshold based on
motion in the Riederer reference, and that termination of data acquisition
instead appears to be based upon a set time.” (Reply Br. 7.) We are not
persuaded. Riederer teaches “measurements of the superior-inferior (S/I)
position of the patient's diaphragm” (Col. 5, ll. 52-53; Answer, para.
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Bridging p. 4-5) which are both threshold values. While Riederer may
continue data acquisition for a “reasonable time period (e.g. up to 20
seconds)” (Riederer, col. 5, l. 42), that does not negate the fact that Riederer
also measures the superior-inferior (S/I) positions or thresholds of the
patient's diaphragm. Also, because Riederer’s ultimate objective is image
data acquisition during a period when the patient is relatively immobile (see
e.g id at Fig. 3), we are not persuaded that it was unreasonable for the
Examiner to find (see e.g. Ans.7-8) that the duration of the image acquisition
period and its termination would necessarily be based on motion.
Appellants argue with respect to claims 6 and 18, “that the Riederer
reference does not disclose that the set of gated image data is selected from a
set of existing image data, i.e., that selection is retrospective based on
already-acquired data.” (Br. 17; Reply Br. 9.) Again we are not persuaded.
Riederer also discloses that the motion measurements are acquired
concurrently with the image data (col. 5 lines 36-37). (Ans. 5.) Riederer
teaches that
[a] general object of the invention is to improve the registration
of MRI data acquired during a series of breath-holds. By using the
visual feedback of diaphragm position, patients are able to reproduce
diaphragm location from one breath-hold to the next within a 2 mm
range. This is equivalent to a tolerance of ±1 pixel for a typical image
with a 256 point, 260 mm field of view. A more specific object of the
invention is to improve the SNR (signal to noise ratio) of images
acquired during a single breath-hold. By accurately registering the
diaphragm, a series of NMR images can be acquired in a
corresponding series of breath-holds and the data may be averaged to
improve SNR.

(Col 2, ll. 28-35, Emphasis added.)

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Thus, we agree with the Examiner that Riederer generates a set of
gated image data by selecting the set of gated image data from a set of image
data such that selection begins when a first measurement of motion
decreases below the initiation threshold and selection ceases when a second
measurement of motion increase above the termination threshold, as in claim
6.
Appellants further argue with respect to claims 10 and 22, that “the
Riederer reference does not disclose “determining if one or more scan
parameters are satisfied.” (Br. 18; Reply Br. 10.)
According to the Specification page 15, “scan parameters” may
include the number of slices or images to be acquired during the breath hold
or quiet period and/or an exposure duration. We agree with the Examiner
that “gating” itself involves steps of “determining if one or more scan
parameters are satisfied; and acquiring the set of gated image data if the one
or more scan parameters are satisfied,” as in claim 10.
Having no other argument from the Appellants with respect to the
anticipation, and no argument with respect to the obviousness rejection other
than that put forth against the anticipation rejection, the rejections are
affirmed for the reasons of record. Arguments not made are waived.

CONCLUSION OF LAW
The cited references support the Examiner’s anticipation and
obviousness rejections.

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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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