Ex Parte Gazdzinski

Patent Trial and Appeal Board

Oct 12, 2016

13305654 (P.T.A.B. Oct. 12, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/305,654 11/28/2011
27299 7590 10/12/2016
GAZDZINSKI & ASSOCIATES, PC
16644 WEST BERNARDO DRIVE
SUITE 201
SAN DIEGO, CA 92127
FIRST NAMED INVENTOR
Robert F. Gazdzinski
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
RFG.006CP2DV1Cl 1057
EXAMINER
ROY, BAISAKHI
ART UNIT PAPER NUMBER
3777
MAILDATE DELIVERY MODE
10/12/2016 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 ROBERT F. GAZDZINSKI
Appeal2015-000215
Application 13/305,654
Technology Center 3700
Before JAMES P. CAL VE, WILLIAM A. CAPP, and
ARTHUR M. PESLAK, Administrative Patent Judges.
CAL VE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from the Final rejection of
claims 30-41 and 47---61. Appeal Br. 1. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM-IN-PART and enter a NEW GROUND OF
REJECTION.
Appeal2015-000215
Application 13/305,654
CLAIMED SUBJECT MATTER
Claims 30, 38, 47, 52, and 56 are independent. Claim 30 is
reproduced below.
30. A method of evaluating image data generated by at
least one sensor of a autonomous intestinal probe, comprising:
providing a plurality of said image data obtained from
said at least one sensor of said probe while said probe moved
autonomously through an intestinal tract of a living being;
displaying said plurality of image data on at least one
display apparatus having a plurality of display portions thereof,
each display portion displaying a different segment of said
plurality of collected image data; and
evaluating said displayed plurality of collected image
data in order to identify a physiologic condition of said living
being;
wherein efficiency of said act of evaluating is increased
by simultaneous display of said plurality of image data across
said plurality of display portions of said single display
apparatus.
REJECTIONS 1
Claims 30, 36, 38, 39, 47, 49, 50, 52, 53, and 54 are rejected on the
ground of non-statutory obviousness-type double patenting as unpatentable
over claims 1-3, 10, 13-15, 17-19, 22, 26, 29-34, 37, 41, and 42 of U.S.
Patent No. 8,068,897.
Claims 30, 31, 33, 36, 38, 39, 47, and 49-61 are rejected on the
ground of non-statutory obviousness-type double patenting as unpatentable
over claims 1-15, 26, 28, 32, 37, and 38 of U.S. Patent No. 7,914,442.
Claims 30, 31, and 33 are rejected under 35 U.S.C. § 102(e) as
anticipated by Yokoi (US 6,951,536 B2, iss. Oct. 4, 2005).
1 The Examiner withdrew the rejection of claims 58 and 60 under 35 U.S.C.
§ 112, second paragraph, as being indefinite. Ans. 2.
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Application 13/305,654
Claims 32, 34, 35--41, 47-54, 56, 57, 59, and 61 are rejected under 35
U.S.C. § 103(a) as unpatentable over Yokoi and Glukhovsky (US 6,944,316
B2, iss. Sept. 13, 2005).
Claim 55 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Yokoi, Glukhovsky, and Madar (US 7,515,953 B2, iss. Apr. 7, 2009).
ANALYSIS
Claims 30, 31, and 33 as anticipated by Yokoi
The Examiner found that Y okoi discloses the claimed method that
includes displaying a plurality of image data on single display 13 6 with
plural display portions displaying different segments of the collected image
data. Final Act. 7. The Examiner interpreted "different segment of [said
plurality of] collected image data" as not requiring different parts of the
intestinal tract. Id. at 2. The Examiner interpreted "segment" to "refer to a
different set of image data collected by the probe as it travels through the
intestinal tract." Id.; Ans. 10. The Examiner found that Yokoi discloses the
simultaneous display of two sets of image data on a single display - captured
and database images - and compares the two sets of images. Final Act. 2.
Appellant argues that Y okoi successively displays captured images
alongside an image from a disease database rather than displaying different
segments of a plurality of collected image data that are derived in situ from
the same living subject in the same traversal of the probe. Appeal Br. 7-8.
Appellant argues that disease database images of Y okoi are not different
segments of the plurality of collected image data that is obtained from at
least one sensor of the probe rather than a database of similar past disease
images. Id. at 8-9. Appellant argues that the past images are not derived
from the same sensor traversing a person's intestinal tract. Id.; Reply Br. 2.
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Application 13/305,654
Appellant's arguments are not commensurate with claim 30, which
does not require the image data to be provided as the probe moves through
the same intestinal tract of the same living being in a single pass of the
probe. Claim 30 merely requires providing image data that was obtained
from at least one sensor of a probe while the probe "moved autonomously
through an intestinal tract of a living being." Claim 31, which depends from
claim 30, further recites that the "act of providing a plurality of image data
comprises collecting a continuous stream of data." Thus, we do not read this
limitation into claim 30 or require the image data of claim 30 to be collected
as a continuous stream of data from the same person or same intestinal tract.
Indeed, Appellant discloses that a user may be presented with two parallel
video streams, one from stored data and one in real time. See Spec. 126:5-8.
Appellant's arguments also are unpersuasive because Yokoi discloses
images in disease database 137 as past endoscopic disease images. Yokoi,
2:15-20; 18:13-18. Therefore, Yokoi displays images taken by sensors of a
probe as it passes through the intestinal tract of a person beside images taken
by an endoscopic probe as it passed through a diseased intestinal tract of a
person. These images are provided image data, as recited in claim 30.
Even if we interpret ''providing ... image data" to require image data
to be obtained from the same person in one traversal, claim 30 only requires
"displaying a different segment of said plurality of collected image data."
There is no antecedent basis for said plurality of collected image data. We
do not read this feature into claim 30 because it is recited in claim 31 as
discussed above. Thus, the collected data can include image data collected
from other persons on other occasions.
Accordingly, we sustain the rejection of claim 30.
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Claim 33
Claim 33 depends from claim 30 and recites "said act of providing a
plurality of image data comprises collecting data relating to infrared (IR)
band (wavelength) images." The Examiner found that Yokoi discloses this
feature by setting different frequencies for the transmission of image signals
from the endoscope. Final Act. 7. The Examiner also found that Y okoi
discloses the use of infrared radiation communication and setting different
transmission frequencies. Id.; Ans. 11. The Examiner reasoned that image
data is collected relating to infrared band because frequency ranges are set
on the probe using an infrared communication port. Ans. 11.
Appellant argues that Y okoi discloses an infrared radiation port that
allows communication between the endoscopic probe and rewriting unit 149.
Appeal Br. 10. Therefore, Appellant argues that Y okoi does not use an
infrared band to collect data images but rather to communicate with an
external device. Id. We agree.
The Examiner's interpretation of "collecting data relating to infrared
(IR) band (wavelength) images" in claim 33 to encompass collecting images
on non-IR wavelengths that are selected using an IR communication port is
unreasonably broad and inconsistent with Appellant's Specification, which
discloses that the imaging array includes an IR imaging sensor array. Spec.,
14:26-28, 19:29-20:2, 100:26-101:2. In contrast to Appellant's disclosed
and claimed use of IR wavelengths to image intestinal tract tissue, Y okoi
discloses that rewriting unit 149 can configure capsule-type endoscope 101H
and arrange settings of illumination and image pickup timing using IR port
168 and infrared radiation communication. Yokoi, 24:31--47, Fig. 32.
Thus, we do not sustain the rejection of claim 33.
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Application 13/305,654
Claim 31
Appellant argues that claim 31 is patentable due to its dependency
from claim 30. Appeal Br. 11. Because we sustain the rejection of claim 30,
this argument is not persuasive. We sustain the rejection of claim 31.
Claims 32, 34, 35--41, 47-54, 56, 57, 59, and 61 as unpatentable over Yokoi
and Glukhovsky
The Examiner found that Y okoi teaches a method, apparatus, and
computer program as recited in independent claims 38, 47, 52, and 56, that
includes displaying a plurality of image data on a single display 13 6 with
plural display portions displaying different segments of the collected data by
comparing captured image data to previous disease images from a database.
Final Act. 8. The Examiner found that Glukhovsky teaches displaying plural
image data on plural displays and displaying differing portions of a single,
continuous stream of video data obtained by a probe in Figures 2A and 2B.
Id. at 9. The Examiner also found that Glukhovsky teaches receiving in real
time a substantially continuous stream of data relating to a single image as a
probe travels through an intestinal tract and displaying two streams on a
single display in multiple windows or display portions by dividing the data
into two portions that relate to portions of a finite period of time in which the
probe travels through the GI tract. Id. at 9-10.
Independent Claims 3 8
Appellant argues that claim 38 recites a method of "receiving in real
time a continuous stream of data relating to a single image," and "dividing
said continuous stream of data into at least two stream portions." Appeal
Br. 13-14. Appellant argues that Yokoi and Glukhovsky do not display two
stream portions contemporaneously on a single display. Appeal Br. at 14.
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Application 13/305,654
NEW GROUND OF REJECTION
We determine that claim 3 8 is indefinite and enter a new ground of
rejection under 35 U.S.C. § 112, second paragraph. We find the limitation
"receiving in real time a continuous stream of data relating to a single image,
said data obtained using said probe while said probe travels autonomously
through an intestinal tract of a human being" to be indefinite. It is unclear
and confusing as to how a continuous stream of data can be obtained using a
probe that travels through an intestinal tract and have that entire stream of
data relate "to a single image" as claimed. The stream of data comprises a
plurality of images so that it is unclear how a continuous stream of data can
relate to a single image of a single portion of the intestinal tract through
which the probe passes. Appellant discloses that the stream of data is made
up of a plurality of images of different portions of an intestinal tract that the
probe passes through. Spec., 125:4--127:20, Fig. 35A.
Because we determine that claim 3 8 is indefinite, we cannot compare
claim 3 8 or its dependent claims 3 9--41 to the prior art. We do not sustain
the rejections of 38--41under35 U.S.C. § 103(a) as unpatentable over Yokoi
and Glukhovsky. See In re Wilson, 424 F.2d 1382, 1385 (CCPA 1970) ("If
no reasonably definite meaning can be ascribed to certain terms in the claim,
the subject matter does not become obvious-the claim becomes indefinite.");
In re Steele, 305 F.2d 859, 862---63 (CCPA 1962) (determinations of
obviousness cannot be made for claims where the determination of the claim
scope requires considerable speculation and assumptions). We do not reach
the issue of whether Y okoi and Glukhovsky would render obvious a claim
having a definite scope.
Thus, we reverse pro form a the prior art rejection of claims 3 8--41.
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Appeal2015-000215
Application 13/305,654
Independent Claims 47, 52, and 56
Appellant argues that Yokoi and Glukhovsky do not display at least
two stream portions from the same probe as part of the same stream of data
during the same traversal of a probe. Appeal Br. 14. Appellant also argues
that the temporal segments recited in claims 4 7 and 52 only can be obtained
from a probe as it moves autonomously through an intestinal tract of a living
being and not from a database of images of Y okoi. Id. at 15; Reply Br. 5.
Appellant's arguments are not persuasive for claims 47 and 52, which
recite a plurality of data obtained from a probe that moves autonomously
through an intestinal tract of a living being, formatting/dividing the data into
a plurality of different temporal portions, and displaying different temporal
portions of the data simultaneously as a mosaic or portions of a partitioned
display screen. As discussed above, Y okoi discloses these features in that a
probe obtains a plurality of data as it passes through an intestinal tract of a
human being and the data is divided into different temporal segments of the
captured images of one patient and previously-captured disease images of
other patient(s). Yokoi also displays these different temporal segments on a
single display simultaneously (Figs. 17 A, 17B) as discussed above. Claims
47 and 52 do not require the images to be taken of the same intestinal tract
of the same being during the same traversal of the intestinal tract.
Appellant's arguments are persuasive as to claim 56, which divides
the plurality of image data "into at least two temporally contiguous streams
of image data" and displays "said at least two temporally contiguous streams
of image data on at least one display apparatus having a plurality of display
portions." Y okoi does not display temporally contiguous streams of image
data, but instead displays image data taken at different times.
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Application 13/305,654
Thus, we sustain the rejection of claims 47 and 52, but we do not
sustain the rejection of claim 56.
Claims 34 and 49
The Examiner found that Glukhovsky teaches the ability to enlarge
selected portions of the image data as recited in claims 34 and 49 by freezing
one frame to view, speeding up, skipping sections, or any other method for
viewing an image may be applied. Ans. 12 (citing Glukhovsky, 5:25-32).
Appellant argues that neither Yokoi nor Glukhovsky teaches having
an ability to enlarge selected portions of image data in at least one display
portions for closer examination as recited in dependent claims 34 and 49.
Appeal Br. 11. Appellant argue that column 5, lines 25-32 of Glukhovsky is
silent as to enlarging selected portions of the data for closer examination and
that the Examiner has not explained how Glukhovsky teaches or suggests
this feature. Reply Br. 3--4. Appellant also acknowledges that Glukhovsky
discloses freezing a frame; speeding up the video rate; reversing the rate; and
skipping portions at column 5, lines 30-33, but contends that Glukhovsky is
completely silent as to enlarging selected portions of image data. Id. at 4.
We agree.
The Examiner has not explained sufficiently how Glukhovsky's
teaching of manipulating a display to freeze a frame, speed up, skip sections,
and use other methods for viewing an image (col. 5, lines 25-32) "clearly
allows the user to zoom in or enlarge or freeze a portion of the image data
for closer examination" as claimed. Ans. 12. We find no express disclosure
of enlarging selected portions of image data in this portion of Glukhovsky.
The Examiner has not established that this feature is disclosed inherently.
Thus, we do not sustain the rejection of claims 34 and 49.
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Application 13/305,654
Claim 36
The Examiner found that Glukhovsky teaches a simultaneous display
of differing portions of a single continuous stream of video data obtained by
the probe as recited in dependent claim 36. Final Act. 9 (citing Glukhovsky,
Figures 2A and 2B). The Examiner also found that Glukhovsky teaches the
display of two stream portions contemporaneously on a single display 18 in
multiple windows or display portions for displaying the moving image and
other parameters tied to the moving image. Id. at 10; Ans. 12. In addition,
the Examiner reasoned that a moving image necessarily includes multiple
portions of a single continuous stream of video data and display of a moving
image therefore necessarily includes simultaneous display of different
portions of a single continuous stream of video data, as claimed. Ans. 12.
Finally, the Examiner found that Y okoi teaches simultaneous display of the
different portions of image data in Figure 17 and the combined teachings of
Glukhovsky and Yokoi therefore meet this limitation. Id. at 12-13.
Appellant argues that the series of frames illustrated in Figures 2A
and 2B of Glukhovsky are not actual images to be displayed but represent
how a low or high motility capsule would capture frames and Glukhovsky is
silent with respect to simultaneous display of differing portions of a single
continuous stream of video data obtained by a probe. Appeal Br. 12-13.
Appellant also argues that Glukhovsky uses multiple windows of a display
to display the moving image and other parameters tied to the moving image
such as motility values, elapsed time, relative motility versus time but does
not display different portions of image data contemporaneously. Reply Br.
4. Appellant further argues that Y okoi only displays images captured by the
endoscope with disease images from a database. Id. We agree.
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Application 13/305,654
Figures 2A and 2B of Glukhovsky illustrate the "concept" that image
data frames taken by a probe with low motility will show very little variation
(Fig. 2A) compared to image data frames taken by probes with high motility
(Fig. 2B). Glukhovsky, 5:2-24. The Examiner's finding that these figures
display differing portions of a single continuous stream of video data taken
by a probe is not supported by a preponderance of evidence. Glukhovsky
teaches that these individual images can be combined consecutively to form
a moving image that may be displayed in a window on monitor 18 or may be
processed by data processor 14 to compare each image to its predecessor
image to determine the motility of the capsule. Id. at 5:25--43.
Glukhovsky's teaching to display a window with an image frame or a
moving image and another window( s) with motility data or other data related
to the position and movement of the capsule does not teach simultaneous
display of differing portions of a single continuous stream of video data of
images obtained by the probe as recited in claim 36. See id. at 5:59-6:14.
Thus, we do not sustain the rejection of claim 36.
Claims 32, 35, 37, 48, 50, 51, 53, 54, 57, 59, and 61
Appellants argue that claims 32, 35, 37, 48, 50, 51, 53, 54, 57, 59, and
61 are patentable over the prior art of record at least due to their dependency
on one of independent claims 30, 38, 47, 52, and 56. Appeal Br. 17.
These arguments are not persuasive as to claims 32, 35, 37, 48, 50, 51,
53, and 54 because we sustain the rejection of claims 30 and 47 from which
these claims depend. These arguments are persuasive for claims 57, 59, and
61 because we do not sustain the rejection of claim 56 from which these
claim depend. Thus, we sustain the rejection of claims 32, 35, 37, 48, 50,
51, 53, and 54, and we do not sustain the rejection of claims 57, 59, and 61.
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Claim 55 as unpatentable over Yokoi, Glukhovsky, and Madar
Appellant argues that claim 55 is patentable based on its dependency
on independent claim 52. Appeal Br. 17. Because we sustain the rejection
of claim 52, this argument is not persuasive. We sustain the rejection of
claim 55.
Claims 30, 31, 33, 36, 38, 39, 47, and 49-61 for Double Patenting
The Examiner rejected claims 30, 31, 33, 36, 38, 39, 47, and 49---61
for obviousness-type double patenting over various claims of U.S. Patent
Nos. 8,068,897 and 7,914,442. Final Act. 5---6. Appellant do not present
arguments to traverse the Examiner's double patenting rejection. Instead,
Appellants request that a decision on all double patenting rejections be held
in abeyance until the examination of the subject claims has been resolved.
Appeal Br. 4--5. In the absence of any arguments by Appellant, we sustain
the double patenting rejections summarily. MPEP §§ 1205.02, 1215.03 (9th
Ed. Rev. 7; Nov. 2015); see 37 C.F.R. § 41.37(c)(iv).
DECISION
We AFFIRM the prior art rejections of claims 30-32, 35-37, and 47-
55 and REVERSE the prior art rejections of claims 33, 34, 38--41, 49, and
56---61.
We AFFIRM the obviousness-type double patenting rejections of
claims 30, 31, 33, 36, 38, 39, 47, and 49---61.
As discussed above, we enter NEW GROUNDS OF REJECTION of:
Claims 38--41 are rejected under 35 U.S.C. § 112, second paragraph,
for indefiniteness.
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Regarding an affirmed rejection, 37 C.F.R. § 41.52(a)(l) provides
"Appellant may file a single request for rehearing within two months from
the date of the original decision of the Board."
37 C.F.R. § 41.50(b) provides that "[a] new ground of rejection
pursuant to this paragraph shall not be considered final for judicial review."
37 C.F.R. § 41.50(b) also provides that the Appellant, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new grounds of rejection to
avoid termination of the appeal as to the rejected claims:
( 1) Reopen prosecution. Submit an appropriate amendment of the
claims so rejected or new Evidence relating to the claims so rejected, or
both, and have the matter considered by the examiner, in which event the
proceeding will be remanded to the examiner ....
(2) Request rehearing. Request that the proceeding be reheard under
§ 41.52 by the Board upon the same record ....
Should 1A .. ppellants elect to prosecute further before the Examiner
pursuant to 37 C.F.R. § 41.50(b)(l), in order to preserve the right to seek
review under 35 U.S.C. §§ 141or145 with respect to affirmed rejections,
the effective date of the affirmance is deferred until conclusion of the
prosecution before the Examiner unless, as a mere incident to the limited
prosecution, the affirmed rejections are overcome.
If Appellants elect prosecution before the Examiner and this does not
result in allowance of the application, abandonment or a second appeal, this
case should be returned to the Patent Trial and Appeal Board for final action
on the affirmed rejections, including any timely request for a rehearing.
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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)(l )(iv).
AFFIRMED-IN-PART; 37 C.F.R. § 41.50(b)
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