Ex Parte Ju et al

Patent Trial and Appeal Board

Sep 18, 2017

13509323 (P.T.A.B. Sep. 18, 2017)

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.
13/509,323 05/11/2012 Sang Gyu Ju 5413SLWF-1 8810
22442 7590
Sheridan Ross PC
1560 Broadway
Suite 1200
Denver, CO 80202
09/20/2017 EXAMINER
HOFFA, ANGELA MARIE
ART UNIT PAPER NUMBER
3768
NOTIFICATION DATE DELIVERY MODE
09/20/2017 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
e-docket @ sheridanross. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SANG GYU JU,
YOUNGYIH HAN, YONG CHAN AHN, and JIN SUNG KIM
Appeal 2016-0076871
Application 13/509,323
Technology Center 3700
Before FRANCISCO C. PRATS, TAWEN CHANG, and
DAVID COTTA, Administrative Patent Judges.
PRATS, Administrative Patent Judge.
DECISION ON APPEAL
This appeal under 35 U.S.C. § 134(a) involves claims to methods and
systems for controlling a therapy machine that irradiates radiation onto a
patient whose body is stabilized. The Examiner rejected the claims for
obviousness.
We have jurisdiction under 35 U.S.C. § 6(b). We affirm.
1 Appellants state that “Samsung Life Welfare Foundation is the owner of
the patent application and the real party in interest.” Appeal Br. 3.
Appeal 2016-007687
Application 13/509,323
STATEMENT OF THE CASE
The following rejections are before us for review:
(1) Claims 1—3, 5, 8, 9, 11, 13—16, and 18—20, under 35 U.S.C.
§ 103(a), for obviousness over Kagermeier2 and Mostafavi3 (Ans. 2—5); and
(2) Claims 4, 10, and 17, under 35 U.S.C. § 103(a), for obviousness
over Kagermeier, Mostafavi, and Mostafavi II4 (Ans. 5—6).
Claim is representative and reads as follows (Appeal Br. 11):
1. A method for controlling a therapy machine that
irradiates radiation onto a patient whose body is stabilized, the
method comprising:
acquiring a video signal comprising information on a
posture of the patient, said video signal comprising a plurality of
pixels;
converting the video signal to digital format, and
generating video data comprising information on a characteristic
value of each of the plurality of pixels;
calculating, based on the information, a number of pixels
from among the plurality of pixels, of which the characteristic
values lie outside a predetermined range; and
controlling the therapy machine based on the number; and
wherein the controlling includes determining whether the
number of pixels exceeds a predetermined reference value, and
confirming that the posture of the patient has changed when the
number exceeds the reference value.
OBVIOUSNESS
The Examiner’s Prima Facie Case
In rejecting claim 1—3, 5, 8, 9, 11, 13—16, and 18—20 over Kagermeier
2 US 2003/0225325 A1 (published Dec. 4, 2003).
3 US 2004/0116804 A1 (published June 4, 2004).
4 US 7,567,697 B2 (issued July 28, 2009).
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and Mostafavi, the Examiner found that Kagermeier described a method
having all of the steps and features required by the claims, except that
Kagermeier did “not expressly disclose wherein the controlling includes
determining whether the number of pixels exceeds a predetermined
reference value, and confirming that the posture of the patient has changed
when the number exceeds the reference value.” Ans. 4. The Examiner
noted, however, that “Kagermeier does suggest that an automated software
algorithm may provide this determination (minimize the number of pixels
lying outside the predetermined range, par. 0049).” Id.
The Examiner cited Mostafavi as evidence that the claimed subject
matter would have been obvious despite any differences that might be
present between the rejected claims and Kagermeier. Specifically, the
Examiner cited Mostafavi as teaching, “[i]n the same field of endeavor with
respect to maintaining a desired position of a patient within a radiation
therapy machine, . . . [that] a range of posture may be defined for a patient
(define boundaries step 402, fig. 4),” and that, “[i]f the patient moves outside
this range, the therapy machine is provided with a control signal (if
determined to outside boundaries step 406 provides control signal step 408,
fig. 4).” Id.
Based on the references’ combined teachings, the Examiner
concluded that an ordinary artisan would have considered it obvious “to
provide boundary limitations for a defined range of acceptable posture,
represented by the number of pixels that lie outside the predetermined range,
in the method of Kagermeier, as taught by Mostafavi to be a known control
process for achieving patient posture alignment in a therapy machine.” Id.
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Analysis
As stated in In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992):
[T]he examiner bears the initial burden ... of presenting a prima
facie case of unpatentability. . . .
After evidence or argument is submitted by the applicant
in response, patentability is determined on the totality of the
record, by a preponderance of evidence with due consideration
to persuasiveness of argument.
Appellants do not persuade us that a preponderance of the evidence
fails to support the Examiner’s prima facie case of obviousness.
Kagermeier discloses “a method for the repeated placement of a
patient into the same position in relation to the coordinate system of an
imaging diagnostic and/or radiation-therapeutic system.” Kagermeier 12.
Kagermeier explains that, “in connection with the use of radiation
therapy with ionizing radiation, [accurate patient placement ensures] that a
sufficiently high dose is administered to sick areas, while the surrounding
healthy areas are subjected to a substantially lesser radiation stress and are
therefore not, or only slightly damaged.” Id. 112.
Kagermeier discloses that accurate patient placement may be ensured
by obtaining an initial image of the patient, and comparing that image to a
second image obtained at the time when radiation therapy is to be
administered. Id. 1 8. Kagermeier explains that, “[i]f, in the [image
comparison] process, the originally filed reference images are superimposed
on the currently produced images, the difference between the original
positioning and the now current position of the patient becomes visible.” Id.
As to comparing the initial and second images, Kagermeier explains
further:
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[T]he subtraction method, known per se, has been shown to be
particularly advantageous, wherein the current image is
subtracted pixel by pixel from a background image, in this case
the reference image, so that the difference between the two
images become very clearly visible in the difference image
resulting from this operation. If such an image is placed on the
monitor used by the operator of such a system, it is very easy for
him to displace the patient until an optimal congruence between
the original position of the patient during the first session and the
now current position exists.
Id. 19.
Kagermeier explains the use of the subtraction method of image
comparison in the context of Figure 1 of the reference:
Both images are superimposed over each other in an image
processing system, wherein a subtraction method is used here,
wherein the image information from the image A is subtracted
pixel by pixel from the image information from the image B, so
that the result is the image C represented in the center. If the
images A and B are identical images, i.e. the patient is in the
identical position in the provided camera setting, a black
homogeneous surface results in the image C. However, if the
two images A and B differ, the differences are emphasized by
light shadings, as shown in this example. It can be clearly seen
in the represented image that the head of the patient takes up a
higher position in the second image B than in the first image, so
that the contour of the face in the front area stands out as a light
shadow.
Id. 138.
Kagermeier explains that the patient’s position may be corrected
manually, based on an image comparison performed using an appropriately
programmed computer:
[T]his correction is performed by an image processing device 14,
which has a computer system 15 with an appropriate program 16,
preferably by a subtraction method 14.1, in which a difference
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image C between an original reference image A and a current
image B is created.
By way of example, in FIG. 4, the reference image A is
compared with a fresh video recording B from the camera 3.2,
and the result is displayed as the difference image C on the
monitor 8. Because of the strong appearance of the positional
change in the difference image C, the operators can now change
the position of the patient by means of the positioning device 13
until the new positioning of the patient is optimized.
Id. || 47-48.
As the Examiner found, Kagermeier explains that, in addition to
manual control of the patient’s position using its computer-based system, the
patient’s position may be corrected automatically:
Besides this manual option of the positional change on the
basis of a visible image and the positional differences
represented, there is also the option of an automatic positional
correction in that, based on the image information, for example
the sum of the differences of the image information in a
difference image, the position of the patient is changed until this
difference sum has been minimized.
Id. 149.
Kagermeier discloses that, “[bjesides a visual check of the
superimposed images or difference images on a control monitor, it is also
possible to display purely computerized information regarding the
differences between the reference images and the current images in a
numerical or otherwise adequate form.” Id. 116.
Because Kagermeier, thus, discloses correcting its patient’s position
manually, based on an image comparison performed using an appropriately
programmed computer {id. || 47-48), we agree with the Examiner that, as
required by Appellants’ claim 1, Kagermeier discloses acquiring a video
signal that includes information about a patient’s posture, converting that
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signal to digital format for use by a computer, and generating video data that
includes information regarding the pixels.
Because Kagermeier discloses determining, using a pixel-by-pixel
subtraction method, the differences between an initial reference image and a
current image obtained at the time of treatment (id. H 9, 38), we agree with
the Examiner that Kagermeier also teaches claim 1 ’s step of calculating the
number of pixels in the subsequent image that lie outside a predetermined
range (the pixels in the initial reference image).
We acknowledge Appellants’ contention that, rather than an actual
calculation as required by claim 1, Kagermeier makes a simple
determination of the visual differences between the initial reference image of
the patient, and the subsequent image. Appeal Br. 7—8; Reply Br. 3—7.
Contrary to that assertion, however, and as noted above, Kagermeier
discloses that “[bjesides a visual check of the superimposed images or
difference images on a control monitor, it is also possible to display purely
computerized information regarding the differences between the reference
images and the current images in a numerical or otherwise adequate form.”
Kagermeier 116. Given this teaching of displaying, in numerical form,
purely computerized information regarding the differences between the
reference image and the subsequent image, Appellants do not persuade us
that Kagermeier fails to teach or suggest performing the calculating step of
Appellants’ claim 1.
Moreover, because Kagermeier teaches determining the numerical
difference between the reference image and the subsequent image, we agree
with the Examiner that Kagermeier suggests assigning values to the pixels,
as claim 1 requires, because assigning values to the pixels would allow a
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practitioner to determine the numerical difference between the compared
images, as Kagermeier teaches. Indeed, Kagermeier’s teaching of
determining the numerical difference between the reference image and the
subsequent image supports the Examiner’s contention that the “sum of the
differences of the image information in a difference image” (Kagermeier |
49) at the very least suggests a calculating step based on the number of
pixels in the compared images.
Lastly, because Kagermeier discloses correcting its patient’s position
manually or automatically, based on its image comparison (id. H 47-49),
which can involve a determination of the numerical differences between the
reference and subsequent images (id. 116), we agree with the Examiner that
Kagermeier teaches or suggests controlling its therapy machine based on the
number of pixels that exceed a predetermined range of pixels, (i.e., pixels
differing from Kagermeier’s reference image), as required by claim 1.
In that regard we note, in addition, the similar teachings in Mostafavi
regarding the importance of accurate positioning of a radiation
therapy-receiving patient. See Mostafavi 17. Mostafavi discloses,
moreover, that a device for administering radiation therapy can be turned on
or off, based on image data as to whether the patient is appropriately
positioned. See, e.g., id. 84—86.
As Appellants contend (Appeal Br. 9; Reply Br. 5—6), Mostafavi
might not expressly involve the pixel-based analysis taught in Kagermeier.
Nonetheless, we agree with the Examiner (Ans. 7—8) that Mostafavi, like
Kagermeier, suggests controlling a radiation therapy machine by
determining whether an obtained image contains image information outside
a predetermined range, such as the reference image described in Kagermeier.
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In sum, for the reasons discussed, Appellants do not persuade us that
the cited references fail to teach or suggest a process having all of the steps
and features recited in Appellants’ claim 1. Appellants, moreover, do not
advance secondary evidence of nonobviousness that outweighs the evidence
of prima facie obviousness, discussed above. Because a preponderance of
the evidence supports the Examiner’s conclusion that the process of claim 1
would have been obvious over Kagermeier and Mostafavi, we affirm the
Examiner’s rejection of claim 1 over those references. Because they were
not argued separately, claims 2 and 3 fall with claim 1. 37 C.F.R.
§ 41.37(c)(l)(iv).
Appellants present a number of arguments regarding claims 5, 11, and
18—20. See Appeal Br. 8—10; Reply Br. 4—7.
Technically, to present separate argument regarding claims, “[ujnder
each heading identifying the ground of rejection being contested, any
claim(s) argued separately or as a subgroup shall be argued under a separate
subheading that identifies the claim(s) by number.” 37 C.F.R.
§ 41.37(c)(l)(iv). Appellants have not presented argument as to separate
claims by providing a separate subheading, as required.
In any event, Appellants’ arguments regarding claims 5 and 11 are
substantially the same as those advanced against the Examiner’s rejection of
claim 1. See Appeal Br. 8—9 (arguing that Kagermeier discloses only a
visual inspection, rather than a pixel-based calculation); Reply Br. 4—7
(same).
As discussed above however, Kagermeier teaches displaying, in
numerical form, purely computerized information regarding the differences
between its reference image and subsequent image. Kagermeier 116. As
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also discussed above, because Kagermeier teaches determining the
numerical difference between the reference image and the subsequent image,
we agree with the Examiner that Kagermeier suggests assigning values to
the images’ pixels, because assigning values to the pixels would allow a
practitioner to determine the numerical difference between the compared
images, as Kagermeier teaches. Therefore, for similar reasons as to claim 1,
we do not find Appellants’ arguments persuasive as to claims 5 and 11.
Accordingly, we affirm the Examiner’s rejection of those claims also, as
well as their dependent claims 8, 9, and 13—16, which were not argued
separately.
As to claims 18—20, Appellants argue that “Kagermeier requires
changing the physical position of the patient as opposed to controlling a
machine upon which the patient is found. This is yet another fundamental
and clear distinction between the claimed invention and the cited prior art.”
Appeal Br. 9—10.
We are not persuaded.
Claim 18 recites “[t]he method for controlling a therapy machine of
claim 1, further comprising: stabilizing the patient on the therapy machine
to prevent movement of the patient.” Appeal Br. 13.
As the Examiner noted (Ans. 5), Kagermeier discloses supporting its
patient on a table (Kagermeier, Fig. 4), which would prevent movement of
the patient in at least one plane, which is all that claim 18 requires.
Moreover, given the importance of consistent patient positioning in radiation
therapy disclosed in both Kagermeier and Mostafavi, discussed above,
Appellants do not persuade us that the Examiner erred in concluding that it
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would have been obvious to stabilize the patient to prevent movement, as
required by claim 18.
We, therefore, affirm the Examiner’s rejection of claim 18 over
Kagermeier and Mostafavi. Claims 19 and 20, argued in the same grouping
as claim 18 (Appeal Br. 9-10), fall with claim 18. 37 C.F.R.
§ 41.37(c)(l)(iv).
As noted above, the Examiner also rejected claims 4, 10, and 17 for
obviousness over Kagermeier, Mostafavi, and Mostafavi II. Ans. 5—6. The
Examiner cited Kagermeier and Mostafavi for the teachings discussed
above, and cited Mostafavi II as evidence of the obviousness of generating
an alarm signal as required by claims 4, 10, and 17, each of which depends
directly or ultimately from claims 1, 5, and 11, discussed above. Id.
Appellants do not advance argument or evidence against this
rejection. Because Appellants, therefore, do not identify, nor do we discern,
error in the Examiner’s prima facie case as to claims 4, 10, and 17, we
affirm the Examiner’s rejection of those claims over the cited references.
SUMMARY
For the reasons discussed, we affirm both of the Examiner’s
rejections.
TIME PERIOD
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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