Ex Parte Diakides et al

Board of Patent Appeals and Interferences

Jun 29, 2011

11222947 (B.P.A.I. Jun. 29, 2011)

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.
11/222,947 09/12/2005 Nicholas A. Diakides NAD-05/01 7599
7590 06/29/2011
NICHOLAS A. DIAKIDES
6353 CROSSWOODS DRIVE
FALLS CHURCH, VA 22044
EXAMINER
RAJ, RAJIV J
ART UNIT PAPER NUMBER
3686
MAIL DATE DELIVERY MODE
06/29/2011 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte NICHOLAS A. DIAKIDES and MARY DIAKIDES
____________

Appeal 2010-004921
Application 11/222,947
Technology Center 3600
____________

Before: MURRIEL E. CRAWFORD, BIBHU R. MOHANTY, and
MICHAEL W. KIM, Administrative Patent Judges.

KIM, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2010-004921
Application 11/222,947

2
STATEMENT OF THE CASE
This is an appeal from the final rejection of claims 1-4. We have
jurisdiction to review the case under 35 U.S.C. §§ 134 and 6 (2002).
The claimed invention is directed to systems and method for detecting
abnormalities in medical screenings and, more specifically, to a method for
comparing an image obtained during a body scan to stored images in a
medical imaging database, whereby abnormalities in the image will be
automatically determined by using an iterative algorithm (Spec. 1). Claim 1,
reproduced below, is further illustrative of the claimed subject matter.
1. A method for detecting medical abnormalities,
including the steps of:
a) medically screening a patient in a medical screening
center to obtain an image of a suspected medical abnormality;
b) electronically transmitting the resultant image to a
processing center;
c) attaching an identification code to the image for
maintaining the security of the image, the location of the user
and for retrieving the image for future comparative analysis, if
necessary;
d) evaluating the image for quality control to assure that
the image subscribes to a predetermined level of specificity;
e) reviewing the image to assure that the image
subscribes to the proper protocol;
f) storing the image in an archive database for future
reference, while simultaneously processing and analyzing the
image for medical abnormalities by an iterative algorithm;
g) electronically returning the screening results to the
originator, with a determination and classification of
abnormalities, if detected.

Appeal 2010-004921
Application 11/222,947

3
Claims 1-3 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Brady (US Pat. 7,200,612 B2, iss. Apr. 3, 2007) in view of Metz (US
Pub. 2004/0102689 A1, iss. May 27, 2004) and Inga (US Pat. 5,384,643, iss.
Jan. 24, 1995); and claim 4 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Brady in view of Metz, Inga, and Shapiro (US Pub.
2005/0075544 A1, pub. Apr. 7, 2005).
We REVERSE.

ANALYSIS
We are persuaded the Examiner erred in asserting that a combination
of Brady, Metz, and Inga renders obvious “f) storing the image in an archive
database for future reference, while simultaneously processing and analyzing
the image for medical abnormalities by an iterative algorithm; g)
electronically returning the screening results to the originator, with a
determination and classification of abnormalities, if detected,” as recited in
independent claim 1 (App. Br. 10-15). The Examiner sets forth the
following for rendering obvious the “iterative” algorithm recited in
independent claim 1:
[w]hile neither Brady nor Metz explicitly recite the term
“iterative” the Office takes the position that the instant
invention is simply using a known technique (e.g.[,] performing
iterations of an algorithm) to improve the combined teachings
of Brady in view of Metz in order to result in an improved
method for detecting medical abnormalities. Since “iterative
methods” are merely any process of successive approximations
used to solve problems, it is within the capabilities of one of
ordinary skill in the field of medical imaging to use an iterative
technique in order to improve a process for screening to detect

Appeal 2010-004921
Application 11/222,947

4
medical abnormalities and using an iterative technique results
in a predicted result of obtaining more precise and accurate data
on various medical abnormalities.
(Exam’r’s Ans. 9-10). As an initial matter, we note that the Examiner has
not provided any references to support either the proposed modification of
Brady and Metz, or the rationale for modifying Brady and Metz.
Accordingly, in the absence of such supporting references, the Examiner
must show a convincing line of reasoning as to why modifying the
abnormality detection algorithm in paragraph [0028] of Metz to be
“iterative” would have been obvious. See In re Oetiker, 977 F.2d 1443,
1447 (Fed. Cir. 1992). The Examiner has not done so.
An “iterative” algorithm, as defined by Appellants’ Specification, is a
process where “[a]s new images become available, they function as an on-
going enhancement to the algorithm as they are added to the database, where
blocks of image data or ordered subsets are iteratively incorporated into the
algorithm to accelerate the development, dependability and perfection of the
SMART algorithm” (4:20-24) (emphasis added). See Vitronics Corp. v.
Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996) (the specification is
always highly relevant to the claim construction analysis. Usually, it is
dispositive; it is the single best guide to the meaning of a disputed term). By
contrast, the Examiner defines “iterative methods” as “performing iterations
of an algorithm” and “any process of successive approximations used to
solve problems” (Exam’r’s Ans. 9). Accordingly, Appellants use iteration to
alter the algorithm used to obtain results, while the Examiner uses multiple
iterations of the same algorithm to obtain results. Thus, the Examiner has
not met the proper construction of “iterative algorithm.”

Appeal 2010-004921
Application 11/222,947

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The Examiner then attempts to take this definition along the path to
using iterations to “improve a process for screening to detect medical
abnormalities and using an iterative technique results in a predicted result of
obtaining more precise and accurate data on various medical abnormalities”
(Exam’r’s Ans. 9-10). However, the Examiner does not set forth how using
multiple iterations of the same algorithm improves the process itself. See
Oetiker, 977 F.2d at 1445 (during examination, the examiner bears the initial
burden of establishing a prima facie case of obviousness). And even if we
were to take a construction most favorable to the Examiner by taking the
position that generic “iterative techniques” are used to “improve the
process,” the Examiner still has not shown how such iterative techniques
would improve the process.
The decision of the Examiner to reject claims 1-4 is REVERSED.

REVERSED

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