Ex Parte Lloyd

Patent Trial and Appeal Board

Aug 27, 2013

11599958 (P.T.A.B. Aug. 27, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte CHARLES FREDERICK LLOYD
__________

Appeal 2012-003172
Application 11/599,958
Technology Center 3700
__________

Before LORA M. GREEN, JEFFREY N. FREDMAN, and
ERICA A. FRANKLIN, Administrative Patent Judges.

GREEN, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal1 under 35 U.S.C. § 134 from the
Examiner’s rejection of claims 1-7, 11-17, 21, and 23-26. We have
jurisdiction under 35 U.S.C. § 6(b).
We reverse.

1 The Real Party in Interest is General Electric Company (App. Br. 2).
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STATEMENT OF THE CASE
The Specification discloses “systems and methods for automated
tracker-driven image selection” for use in image-guided surgery (Spec. 2, ¶
04).
Claims 1, 11 and 21, the only independent claims, read as follows
(emphasis added):
1. A method for automated tracker-driven image selection, the
method including:
determining a location of a tracked device;
using a processor to determine proximity of the location of the tracked
device to a plurality of images in a stored image set by comparing the
tracked device location to location information associated with each of the
plurality of stored images;
using the processor to sort the stored image set such that the plurality
of images is arranged in an order based at least in part on the determined
proximity of each image to the location of the tracked device;
identifying the image that is closest to the location of the tracked
device; and displaying the identified image that is closest to the location of
the tracked device.

11. A non-transitory computer readable storage medium including a
set of instructions for execution on a computer, the set of instructions
including:
a tracking routine configured to determine a location of a tracked
device;
a routine configured to determine proximity of the location of the
tracked device to a plurality of images in a stored image set by comparing
the tracked device location to location information associated with each of
the plurality of stored images;
a routine configured to sort the stored image set such that the plurality
of images is arranged in an order based at least in part on the determined
proximity of each image to the location of the tracked device;
a routine configured to identify an image that is closest to the location
of the tracked device; and
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a routine configured to display the identified image that is closest to
the location of the tracked device.

21. A system for automated tracker-driven image selection, the
system including:
a processor configured to receive a location of a tracked device, the
processor configured to determine proximity of the location of the tracked
device to a plurality of images in a stored image set by comparing the
tracked device location to location information associated with each of the
plurality of stored images,
the processor configured to sort the stored image set such that the
plurality of images is arranged in an order based at least in part on the
determined proximity of each image to the location of the tracked device,
the processor configured to identify an image that is closest to the
location of the tracked device; and
a display configured to display the identified image that is closest to
the location of the tracked device.

The Examiner has rejected claims 1, 2, 11, 12, and 21 under 35 U.S.C.
§ 103(a) as obvious in view of Bucholz2 and Papier3 (Ans. 4). The
Examiner has also rejected, under 35 U.S.C. § 103(a), claims 3-5, 7, 13-15,
17, 23, 24, and 26 in view of Bucholz, Papier and Simon4 (Ans. 5) and
claims 6, 16 and 25 in view of Bucholz, Papier and Shaw5 (Ans. 6). Since
the same issue is dispositive for all three rejections, we will consider them
together.
The Examiner finds that Bucholz “discloses a method and apparatus
for automated tracker-driven image selection” (Ans. 4). The Examiner finds
that the Bucholz method includes the steps of “determining a location of a

2 Bucholz, US 5,383,454, issued Jan. 24, 1995.
3 Papier et al., US 2002/0021828 A1, published Feb. 21, 2002.
4 Simon et al., US 2005/0165292 A1, published Jul. 28, 2005.
5 Shaw, US 2004/0068423 A1, published Apr. 8, 2004.
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tracked device … [and] using a processor to determine proximity of the
location of the tracked device to a plurality of images in a stored image set
by comparing the tracked device location to location information associated
with each of the plurality of stored images” (id. at 4-5). The Examiner finds
that the Bucholz method further includes the steps of “identifying the image
that is closest to the location of the tracked device; and displaying the
identified image” (id. at 5). The Examiner finds that Bucholz “fails to
disclose sorting the stored image set based … on the proximity to the tracked
device” (id.). The Examiner finds that Papier discloses “sorting a series of
images based on closeness of view” (id.). The Examiner concludes that it
would have been obvious to one of ordinary skill in the art to modify the
Bucholz method “with sorting the entire image series on the closeness of
view of Papier … [in order to] provide [a] display of the entire image series
based on a tracked device” (id.).
Appellant contends that the cited references would not have rendered
obvious the method of claim 1, which requires the step of “‘using the
processor to sort the stored image set such that the plurality of images is
arranged in an order based at least in part on the determined proximity of
each image to the location of the tracked device’” (App. Br. 11). Appellant
argues that Papier does not disclose a tracked device or “‘determin[ing]
proximity of each image to the location of the tracked device’” (id. at 12).
Appellant argues that Papier discloses sorting images “based on ‘closeness
of view’ … in reference to sorting based on how close an object appears
within an image (i.e., zoom level)” (id. at 12-13).
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The Examiner responds that the claim only requires that “the images
are sorted ‘at least in part on the determined proximity’” (Ans. 7). The
Examiner responds further that Papier is drawn to “the same medical field of
endeavor [as Bucholz], images in a stack (plurality of images) that may be
sorted using a routine and using a processor based on closeness of view and
body location” (Ans. 8).
We agree with Appellant that the Examiner has not adequately
explained how the cited references would have made obvious the claimed
method for tracker-driven image selection that comprises the step of using a
processor to sort the stored image set such that the plurality of images is
arranged in an order based at least in part on the determined proximity of
each image to the location of the tracked device, such that the image that is
closest to the location of the tracked device is identified.
Bucholz discloses “a system which can determine the position of a
probe within a head and display an image corresponding to the determined
position” (Bucholz, col. 1, ll. 37-39). Papier discloses “a system and method
for aiding diagnoses … wherein an image-centered database is cross-
referenced with textual database information” (Papier 1, ¶ 0005). Papier
discloses a visual diagnostic embodiment that “assembles textual and visual
knowledge, thereby creating the ability to ‘presort’ and display images so
that a user can more effectively engage in pattern matching” (id. at 1-2, ¶
0013). Papier discloses that, in “one embodiment, the images associated
with a particular diagnosis are related as a ‘stack.’ The images in a stack
may be sorted based on closeness of view, body location and lesion type”
(id. at 12, ¶ 0165). Thus, Papier discloses a system for displaying images
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that are relevant to a particular diagnosis rather than images associated with
the location of tracked device.
In KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 415 (2007), while the
Supreme Court emphasized “an expansive and flexible approach” to the
obviousness question, it also reaffirmed that “rejections on obviousness
grounds cannot be sustained by mere conclusory statements; instead, there
must be some articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness.” Id. at 418 (quoting In re Kahn,
441 F.3d 977, 988 (Fed. Cir. 2006) (emphasis added). The Supreme Court
also reaffirmed that, despite the importance of a flexible and commonsense
approach when evaluating obviousness, fact finders “should be aware, of
course, of the distortion caused by hindsight bias and must be cautious of
arguments reliant upon ex post reasoning.” KSR, 550 U.S. at 421.
Here, neither of the cited references discloses sorting images based on
proximity to a tracked device, much less identifying the image that is closest
to the location of the tracked device. Moreover, the Examiner has not
provided any fact-based reasoning as to why one of skill in the art would
have found it obvious to apply Papier’s general concept of sorting images
(i.e., based on closeness of view or body location for arriving at a diagnosis)
to the Bucholz system. The Examiner’s rationale in the Answer, that sorting
based on proximity to the tracked device would “provide a user with the
most pertinent images” (Ans. 9) lacks any factual support, since the
Examiner hasn’t established that the prior art recognized that the closest
images to the tracked device are also the most pertinent images. Thus, we
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reverse the rejection of independent claim 1 and dependent claim 2 as being
obvious in view of Bucholz and Papier.
Independent claim 11 is directed to a computer readable storage
medium including a set of instructions that include a “routine configured to
determine a location of a tracked device … [and] a routine configured to sort
the stored image set … in an order based at least in part on the determined
proximity of each image to the location of the tracked device.” Since we
have concluded, as discussed above, that the Examiner has not adequately
explained how the cited references would have made obvious the sorting of
an image set based on proximity to a tracker, we also reverse the rejection of
independent claim 11 and dependent claim 12 as being obvious in view
Bucholz and Papier.
Independent claim 21 is directed to a system for automated tracker-
driven image selection that includes, among other things, “a processor
configured to receive a location of a tracked device … and configured to sort
the stored image set … in an order based at least in part on the determined
proximity of each image to the location of the tracked device.” Since we
have concluded, as discussed above, that the Examiner has not adequately
explained how the cited references would have made obvious the sorting of
an image set based on proximity to a tracker, we also reverse the rejection of
claim 21 as being obvious in view Bucholz and Papier.
With regard to the rejection of dependent claims 3-5, 7, 13-15, 17, 23,
24 and 26 in view of Bucholz, Papier and Simon and the rejection of claims
6, 16 and 25 in view of Bucholz, Papier and Shaw, the Examiner relies on
Bucholz and Papier, as discussed above, and the Examiner relies on Simon
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and Shaw only to supply dependent claim limitations. Thus, we also reverse
these rejections for the reasons discussed above.
SUMMARY
We reverse the rejection of claims 1-7, 11-17, 21 and 23-26 under
35 U.S.C. § 103(a).

REVERSED

cdc