Ex Parte Bonner

Patent Trial and Appeal Board

Feb 26, 2013

10962146 (P.T.A.B. Feb. 26, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte MICHAEL GEORGE BONNER
__________

Appeal 2011-006500
Application 10/962,146
Technology Center 3700
__________

Before DEMETRA J. MILLS, FRANCISCO C. PRATS, and
SHERIDAN K. SNEDDEN, Administrative Patent Judges.

SNEDDEN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to methods
of scanning a patient using a medical imaging. The Examiner has rejected
the claims as obvious. We have jurisdiction under 35 U.S.C. § 6(b). We
reverse.

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Application 10/962,146

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STATEMENT OF THE CASE
Appellant’s invention relates to ―a method and system for controlling
the scan time of a PET system based on the noise in the acquired data‖
(Specification 2, ¶ [0011]). ―The embodiments utilize signal-to-noise ratio
(SNR) to predict the quality of the image and in turn control the scan time
based on the SNR of the acquired data‖ (Specification 2-3, ¶ [0011]).
Claims 1-11 are on appeal. Claims 1 and 7 are representative and read
as follows:
1. A method of scanning a patient using a medical imaging system,
said method comprising:
measuring a signal-to-noise ratio of an accumulated total
acquired data;
comparing the measured signal-to-noise ratio to a selectable
signal-to-noise ratio threshold; and
controlling a remainder of the scan using the comparison.

7. A method of imaging a patient, said method comprising:
acquiring a plurality of frames of acquired data of the patient
wherein each frame of acquired data is acquired at a different position
along a longitudinal axis of the patient;
measuring a signal-to-noise ratio of the acquired data in frames
that include a selectable volume of interest;
comparing the measured signal-to-noise ratio to a selected
signal-to-noise ratio threshold; and
acquiring additional acquired data in frames that include the
selected volume of interest until the measured signal-to-noise ratio is
greater than or equal to the selected signal-to-noise ratio threshold.

The claims stand rejected as follows:
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I. Claims 1 and 3-6 under 35 U.S.C. § 103(a) over the combination
of Brendler
1
and Tapiovaara.
2

II. Claim 2 under 35 U.S.C. § 103(a) over the combination of
Brendler, Tapiovaara and Fleming-Dahl.
3

III. Claims 7 and 10-11 under 35 U.S.C. § 103(a) over the combination
of Brendler, Tapiovaara and Ross.
4

IV. Claim 8 under 35 U.S.C. § 103(a) over the combination of
Brendler, Tapiovaara, Ross and Sehgal.
5

V. Claim 9 under 35 U.S.C. § 103(a) over the combination of
Brendler, Tapiovaara, Ross and Kaufman.
6

The Examiner withdrew, on appeal, the rejection of claims 1-11 under
35 U.S.C. § 101 (Ans. 10).
The same issue is dispositive for all of the rejections on appeal.

Issue
The Examiner finds that ―[a]lthough Brendler does not explicitly
disclose measuring the signal-to-noise component, Brendler does disclose

1
Brendler et al., US 2002/0191741 A1, published Dec. 19, 2002.
2
Markku J. Tapiovaara and Michael Sandborg, Evaluation of image quality
in fluoroscopy by measurements and Monte Carlo calculations, 40 PHYS.
MED. BIOL 589-607 (1995).
3
Fleming-Dahl, US 6,442,495 B1, issued Aug. 27, 2002.
4
Ross et al., US 7,173,248 B2, issued Feb. 6, 2007.
5
Sehgal, US 2003/0092991 A1, published May 15, 2003.
6
Kaufman, US 2004/0208276 A1, published Oct. 21, 2004.
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that the radiation/dose rate is related to the [signal-to-noise ratio (SNR)]‖
(Ans. 11, citing Brendler at ¶ [0004]). The Examiner concludes that
it would have been obvious to one of ordinary skill in the art at
the time of the invention that Brendler indirectly measures the
SNR of an accumulated total acquired data; compares the
measured signal-to noise ratio to a selectable signal-to-noise
ratio threshold and acquiring additional acquired data in frames
that include the selected volume of interest until the measured
SNR is greater than or equal to the selected SNR threshold
(Id.).
Appellant contends that ―[b]ecause Brendler, as admitted, does not
teach measuring a SNR, Brendler cannot teach comparing the measured
signal-to-noise ratio to a selectable signal-to-noise ratio threshold‖ (App. Br
13.) Rather, ―Brendler is merely stating that the dose rate to a patient is
related to the signal-to-noise ratio‖ (id. at 15.) However,
The dose measured by Brendler is NOT obtained by
measuring the dose rate of an accumulated total acquired data.
In contrast, Brendler clearly describes that the dose rate is
measured on the photosensor 31. The dose rate measured at the
photosensor 31 is then used to adjust the exposure time or tube
voltage. Brendler does not measure or utilize a SNR to perform
quality enhancement of an image.

(Id. at 16.)
―Appellant further submits that Tapiovaara fails to make up for the
deficiencies of Brendler stated above‖ (id. at 18). Specifically, ―Tapiovaara
does not describe using accumulated total data to evaluate image quality and
dynamically adjusting the imaging system according to SNR as asserted in
the Office Action‖ (id.).

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The issue presented is:
Does the evidence of record support the Examiner’s findings that the
cited prior art renders independent claims 1 and 7 obvious?
Findings of Fact
The following findings of fact (―FF‖) are supported by a
preponderance of the evidence of record.
FF1. Brendler discloses
a method of the kind set forth which includes the following
steps: presetting for an exposure a maximum exposure time
(Tmax) which may in principle may not be exceeded; presetting
an exposure kV start voltage for an X-ray tube in dependence
on an object to be examined; starting the X-ray exposure and
measuring an X-ray absorption of the object; controlling the
exposure by changing the exposure kV start voltage at the
maximum exposure time (Tmax) when the X-ray absorption is
higher than or equal to a first threshold value (B), or
controlling the exposure by changing the exposure time at a
constant exposure kV start voltage when the X-ray absorption is
less than the first threshold value (B).

(Brendler ¶ [0009].) (Emphasis added.)
FF2. Brendler discloses as follows:
The invention relates to a method for X-ray exposure
control, notably for exposures carried out during dynamic X-
ray examinations of an object....
For X-ray examination of the human body and its organs
it is necessary to carry out a large number of settings for an
X-ray generator so as to achieve an optimum exposure of the
examination zone. ... In order to ensure a safe examination
of the patient while applying an as small as possible
radiation dose, furthermore, in practically all countries there
are official regulations which allow given parameters to be
adjusted or changed only within given limits.
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...
On the one hand, the dose rate of the X-ray tube (that is,
essentially the exposure kV voltage) determines the contrast
and the contrast range of the objects imaged. The radiation
dose, however, first of all determines the signal-to-noise
ratio of the image whereas, in order to optimize the image
sharpness notably in the case of moving objects, the
exposure time may not exceed a given maximum value.

(Brendler ¶¶ [0001], [0002] and [0004].) (Emphasis added.)
FF3. Tapiovaara discloses that ―[e]quation (1) gives the SNR in a
static Image. It can be easily generalized to dynamic imaging, e.g.
fluoroscopy, by replacing the two-dimensional spatial quantities by their
three-dimensional spatiotemporal counterparts and integrating over the
three-dimensional frequency space‖ (Tapiovaara 591).
FF4. Tapiovaara discloses ―[t]he digitized image data (8 bits/pixel)
were read by the microcomputer and used for SNR and NPS measurements
according to the methods of Tapiovaara and Wagner (1993)‖ (id. at 592).

Principles of Law
When determining whether a claim is obvious, an examiner must
make ―a searching comparison of the claimed invention — including all its
limitations — with the teachings of the prior art.‖ In re Ochiai, 71 F.3d
1565, 1572 (Fed. Cir. 1995). As the Supreme Court pointed out in KSR Int’l
Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007), ―a patent composed of several
elements is not proved obvious merely by demonstrating that each of its
elements was, independently, known in the prior art.‖ Rather, the Court
stated:
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[I]t can be important to identify a reason that would have
prompted a person of ordinary skill in the relevant field to
combine the elements in the way the claimed new invention
does … because inventions in most, if not all, instances rely
upon building blocks long since uncovered, and claimed
discoveries almost of necessity will be combinations of what, in
some sense, is already known.
Id. at 418-419 (emphasis added); see also id. at 418 (requiring a
determination of ―whether there was an apparent reason to combine the
known elements in the fashion claimed by the patent at issue‖) (emphasis
added). Similarly, as our reviewing court has stated, ―obviousness requires a
suggestion of all limitations in a claim.‖ CFMT, Inc. v. Yieldup Intern.
Corp., 349 F.3d 1333, 1342 (Fed. Cir. 2003).
Moreover, as the Supreme Court recently stated, ―there must be some
articulated reasoning with some rational underpinning to support the legal
conclusion of obviousness.‖ KSR Int’l v. Teleflex Inc., 550 U.S. at 418
(quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006).
Analysis
We agree with Appellant that the cited references do not support a
prima facie case of obviousness. Like Appellant, we are unable to find
where Brendler suggests comparing the measured signal-to-noise ratio to a
selectable signal-to-noise ratio threshold (see, e.g., App. Br. 13-16.)
Brendler measures X-ray absorption in order to control the level of radiation
exposure, not the signal-to-noise ratio (FF1). The Examiner has not
persuasively argued or presented supporting evidence that measuring X-ray
exposure is the same or substantially the same as measuring signal-to-noise
ratio. For example, while the evidence of record establishes that signal-to-
noise ratio is related to absorption (FF2), there is no evidence to establish
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that the signal-to-noise ratio is related directly to absorption in a manner that
would allow us to conclude that the two parameters are equivalent.
Furthermore, the Examiner has not adequately explained where in
Tapiovaara it is taught to measure the SNR of the accumulated total acquired
data and then control a remainder of the scan based on the measured SNR of
the accumulated total acquired data. Rather, we find that Tapiovaara
describes measuring the SNR from a single image and then utilizing
mathematical modifiers to determine the SNR for a three-dimensional image
(see, e.g., FF4 – FF5).
Since all claim limitations are not taught or suggested by the applied
prior art, the Examiner has failed to establish a prima facie case for the
obviousness of independent claims 1 and 7. None of Fleming-Dahl, Ross,
Sehgal and Kaufman cure the deficiencies of the combination of Brendler
and Tapiovaara.
Conclusion of Law
The preponderance of the evidence of record does not support the
Examiner’s conclusion that the combination of Brendler and Tapiovaara
discloses a method having all limitations of independent claims 1 and 7 and
dependent claims thereto (claims 2-6 and 8-11). We thus reverse the
rejections under 35 U.S.C. § 103(a) that rely on the teachings of Brendler
and Tapiovaara.

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SUMMARY
We reverse all of the rejections on appeal.

REVERSED

cdc