Ex Parte Miyazaki

Patent Trial and Appeal Board

Jun 21, 2016

12923891 (P.T.A.B. Jun. 21, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/923,891 10/13/2010
23117 7590 06/23/2016
NIXON & V ANDERHYE, PC
901 NORTH GLEBE ROAD, 11 TH FLOOR
ARLINGTON, VA 22203
FIRST NAMED INVENTOR
Mitsue Miyazaki
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.
LSN-4813-100 5278
EXAMINER
KISH, JAMES M
ART UNIT PAPER NUMBER
3737
NOTIFICATION DATE DELIVERY MODE
06/23/2016 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):
PTOMAIL@nixonvan.com
pair_nixon@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MITSUE MIYAZAKI
Appeal2014-007288
Application 12/923,891
Technology Center 3700
Before DONALD E. ADAMS, JEFFREY N. FREDMAN, and
JACQUELINE T. HARLOW, Administrative Patent Judges.
PER CURIAM.
DECISION ON APPEAL
This is an appeal 1 under 35 U.S.C. § 134 involving claims to a
computer-implemented method and apparatus for generating an MR image.
The Examiner rejected the claims on the grounds of anticipation and
obviousness. We have jurisdiction under 35 U.S.C. § 6(b). We affirm.
1 Appellant identifies the Real Party in Interest as Kabushiki Kaisha Toshiba
and Toshiba Medical Systems Corporation (see App. Br. 3).
Appeal2014-007288
Application 12/923,891
Statement of the Case
Background
Appellant's invention "relates generally to magnetic resonance
imaging (MRI) processes" that "involve enhancements to Tl images of
tissue for computer-aided diagnostics (CAD) of imaged patient tissue"
(Spec. 1 :2-5).
The Claims
Claims 1-20 are on appeal. Independent claim 1 is representative and
reads as follows (emphasis added):
1. A computer-implemented method for generating an
MR image especially useful for computer-guided diagnostics,
said method comprising the use of at least one programmed
computer to:
acquire an MR-image of Tl or Tl-weighted values for
a patient volume containing at least one predetermined tissue
type having a respectively corresponding predetermined
range of expected Tl values;
generate a color-coded Tl-image from said MR-image
by (a) assigning a first color or spectrum of colors to those
pixels having a value falling within said predetermined range
of expected values and (b) assigning a second color or
spectrum of colors to those pixels having a value falling
outside said predetermined range of expected values; and
display said color-coded Tl-image for use m
computer-aided diagnosis of said patient tissue.
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The Issues
A. The Examiner rejected claims 1and11under35 U.S.C. § 102(b) as
being anticipated by Lowen2 (Final Act. 3--4 ).
B. The Examiner rejected claims 2 and 12 under 35 U.S.C. § 103(a) as
obvious over Lowen and Stork3 (Final Act. 5).
C. The Examiner rejected claims 3, 4, 6, 13, 14, and 16 under 35 U.S.C.
§ 103(a) as obvious over Lowen and Brasch4 (Final Act. 5---6).
D. The Examiner rejected claims 5, 7-10, 15, and 17-20 under 35 U.S.C.
§ 103(a) as obvious over Lowen, Brasch, and Daw5 (Final Act. 6-8).
A. 35 U.S.C. § 102(b) over Lowen
The Examiner finds that Lowen teaches
"color magnetic resonance imaging using both a magnetic
resonance property and a function of the magnetic resonance
property ... includ[ing] color imaging of estimates of [the
chosen MR property] to distinguish between regions of a
sample containing homogenous tissue and regions containing
mixtures of tissue by spatial variation in the hue, brightness,
or saturation of the colors (see Abstract)." The disclosure of
Lowen discusses the use of T 2 as the magnetic resonance
property, however, Lowen teaches the property may also be
T 1 (see column 2, lines 38-40; ... therefore, the remainder of
this rejection will replace T 2 with T 1 when directly quoting
Lowen). "The function of the magnetic resonance property
can be a function of fit of the [T 1] data to a reference curve.
Including this characteristic of the [T 1] data in the color image
allows a viewer to distinguish between a voxel with a single
type of tissue with a particular [T 1] and a voxel with different
tissues that together yield that [T1] (see column 3, lines 1-6)."
2 Lowen, US 6,804,384 B2, issued Oct. 12, 2004.
3 Stork et al., US 6,674,880 Bl, issued Jan. 6, 2004 (hereinafter "Stork").
4 Brasch et al., US 6,009,342, issued Dec. 28, 1999 (hereinafter "Brasch").
5 Daw, US 7, 155,043 B2, issued Dec. 26, 2006.
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The remainder of column 3 provides specific equations that,
when the function of fit of [T 1] data to a reference curve is
utilized as the magnetic resonance property as stated by
Lowen provide predetermined hue, saturation and brightness
assignments for a single type of tissue having a particular
[T 1]. "The color image data are in RGB format. This renders
the data suitable for convenient display on computer monitors
(see column 3, lines 57-58)."
(Final Act. 4.)
The issue with respect to this rejection is: Does the evidence of record
support the Examiner's findings that Lowen anticipates Appellant's claimed
invention?
Findings of Fact
1. The Specification teaches
The following tables are taken from de Bazelaire, et al.,
"MR Imaging Relaxation Times of Abdominal and Pelvic
Tissues Measured in Vivo at 3.0T: Preliminary Results,"
Radiology 230:3, pages 652-659, March 2004. As those in
the art will appreciate, there are other sources of similar data
readily available in the literature. For example, see Stanisz,
et al, "T 1, T 2 Relaxation and Magnetization Transfer in Tissue
at 3T," MRIM 54:507-512 (2005).
(Spec. 4:15-20; see also Ans. 4--5.)
2. The Specification teaches "Table 1: Average Tl Relaxation
Times at 1.5 Tesla and 3.0 Tesla" (Spec. Table 1, 5:1-20), and
As shown by Table 1 above of published Tl-parameter
values for various tissues (including ranges of expected
variation), it is possible to determine threshold ranges of Tl
values so as to distinguish between various organs and/ or
tissues. It is now proposed that such ranges of T 1 values be
color-coded (e.g., with a given color for a certain range of Tl
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values or for a whole spectrum of colors to be assigned to a
particular range of Tl values).
(Spec. 7: 17-22; see also Ans. 4--5.)
3. Lowen teaches
color magnetic resonance imaging using both a magnetic
resonance property and a function of the magnetic resonance
property. These enhanced color images provide greater
informational content to the viewer. Applications include
color imaging of estimates of T 2 to distinguish between
regions of a sample containing homogeneous tissue and
regions containing mixtures of tissue by using spatial
variation in the hue, brightness, or saturation of the colors.
(Lowen Abstract; see also Final Act. 4.)
4. Lowen teaches
MR images are generated from the FID signals. These
images are often in black and white. Techniques are also
known for producing gray scale images using Ti, T2, and
proton density data, see, e.g., Ronald T. Droege et al.,
"Nuclear Magnetic Resonance: A Gray Scale Model for Head
Images," Radiology, 148:763-771 (1983). There are also
methods for generating color images. One approach is to
convert a monochrome image into one that is in color, see
U.S. Pat. No. 4,998,165. Other approaches to producing color
images take both Ti and T 2 data as inputs and use specified
methods to render color images, ...
(Lowen 1 :52---62; see also Ans. 4--5.)
5. Lowen teaches that "[t]he magnetic resonance property can be
an estimate ofT2, Ti, or thermal relaxation" (Lowen 2:38--40; see also Final
Act. 4.)
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6. Lowen teaches
The function of the magnetic resonance property can
be a function of fit of the T 2 data to a reference curve.
Including this characteristic of the T 2 data in the color image
allows a viewer to distinguish between a voxel with a single
type of tissue with a particular T 2 and a voxel with different
tissues that together yield that T 2. This fit, E, can be calculated
usmg:
[A] function of intensity. Display of intensity information
permits one to distinguish readily between voxels containing
mostly air and those containing tissue. The intensity, IN, can
be calculated using:
[B]oth a function of fit of the first data to a reference
curve and a function of intensity. The preceeding [sic]
equations can be used to calculate them, or a threshold
measure can be used to eliminate a pre-determined range of
values. This provides the user with the useful information
provided by both characteristics of the T 2 data. The estimate
of T 2, the fit of the first data to the reference curve, and the
intensity are used to calculate hue, saturation, and brightness.
Using these three parameters, the color images provide a
greater depth of information than available in grayscale
images. The hue, H; saturation, S; and brightness, V, are
calculated using:
The color image data [] in RGB format. This renders
the data suitable for convenient display on computer monitors
and storage in cross-platform image files (e.g., JPEG, TIFF,
PPM files). The individual color values in the color image
data []given by:
These equations can be adjusted to enhance the user's
ability to distinguish between different types of tissues, e.g.,
white and gray matter in the human brain. The images can
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also be used to ascertain the porosity of T 2 data or investigate
samples described by the Arrhenius equation.
(Lowen 3:1--4:11; see also Final Act. 4, Ans. 2-3.)
Principles of Law
A prior art reference can only anticipate a claim if it discloses all the
claimed limitations "arranged or combined in the same way as in the claim."
Wm. Wrigley Jr. Co. v. Cadbury Adams USA LLC, 683 F.3d 1356, 1361
(Fed. Cir. 2012) (internal quotations and citation omitted).
Where . . . the claimed and prior art products are
identical or substantially identical . . . the PTO can require an
applicant to prove that the prior art products do not
necessarily or inherently possess the characteristics of his
claimed product. . . . Whether the rejection is based on
'inherency' under 35 U.S.C. § 102, on "prima facie
obviousness" under 35 U.S.C. § 103,jointly or alternatively,[]
the burden of proof is the same, and its fairness is evidenced
by the PTO' s inability to manufacture products or to obtain
and compare prior art products.
In re Best, 562 F.2d 1252, 1255 (CCPA 1977) (citations and footnote
omitted).
Analysis
We adopt the Examiner's findings of fact and reasoning regarding the
scope and content of the prior art (Final Act. 3-8; Ans. 2-14; FF 1-11) and
agree that claims 1 and 11 are anticipated by Lowen. We address
Appellant's arguments below.
Appellant contends that "Lowen does disclose coloration of an MR-
image as a function, inter alia, of an MRI parameter (e.g., Tl or T2).
However, Lowen's colorization is of an entirely different type and result
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than that required by the claimed invention" (App. Br. 8). Appellant argues
that "Appellant has taken advantage of the fact that there are now known
predetermined ranges of expected T 1 values corresponding to predetermined
tissue types" (id. at 9). More particularly, Appellant argues that
Lowen does not mention a predetermined tissue type
having a respectively corresponding predetermined range of
expected Tl-values. It will be appreciated that Appellant's
claims require colorization based on a predetermined range of
expected T 1 values corresponding to at least one
predetermined tissue type. This teaching is not found in
Lowen.
(Id. at 10; see also Reply Br. 2-8.)
We are not persuaded. We agree with the Examiner that:
Since equations for H, S, and V are predetermined (see
column 3, lines 45-50), certain tissue types, which would
have specific T 1 values, will create predetermined
colorization (it is known to those of skill in the art that hue
defines the color and as can be seen, hue is specifically based
on the T 1 (or T2) data). This teaches that there is a pre-
determined colorization of expected Tl (or T2) values
corresponding to specific (predetermined) tissue types.
Furthermore, Lowen states (see column 3, line 34--37), "The
preceding equations can be used to calculate them (i.e., a
function of fit to a reference curve & a function of intensity),
or a threshold measure can be used to eliminate a pre-
determined range of values." This teaches to remove
predetermined ranges of values based on thresholding,
thereby teaching that only a predetermined range will remain.
Therefore, the hue is calculated by the predetermined
equation based directly on the Tl (or T2), such that this is the
only variable term in that equation. And also, a second
interpretation by which Lowen reads on this subject matter is
the explicitly taught removal of a predetermined range of
values teaches a predetermined range of values will be
removed (i.e., given either one of a white or black color
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depending on which of these is representative of the absence
of data).
(Ans. 2-3.) We note that Appellant's Specification teaches that "[t]he
following tables are taken from de Bazelaire, et al., . . . . As those in the art
will appreciate, there are other sources of similar data readily available in the
literature" (FF 1), and that "[a]s shown by Table 1 above of published Tl-
parameter values for various tissues (including ranges of expected variation),
it is possible to determine threshold ranges of Tl values so as to distinguish
between various organs and/or tissues" (FF 2). Moreover, Lowen teaches
that
Techniques are also known for producing gray scale images
using Ti, T2, and proton density data, see, e.g., Ronald T.
Droege et al., . . . . There are also methods for generating
color images. One approach is to convert a monochrome
image into one that is in color. . . . Other approaches to
producing color images take both T 1 and T 2 data as inputs and
use specified methods to render color images.
(FF 4.) Lowen teaches
color magnetic resonance imaging using both a magnetic
resonance property and a function of the magnetic resonance
property. These enhanced color images provide greater
informational content to the viewer. Applications include
color imaging of estimates of T 2 to distinguish between
regions of a sample containing homogeneous tissue and
regions containing mixtures of tissue by using spatial
variation in the hue, brightness, or saturation of the colors.
(FF 3.) Therefore, because the T 1 values are known for tissue types as
admitted by Appellant and taught by Lowen, and Lowen further teaches
colorization based on these known data, Lowen necessarily teaches
colorization based on predetermined ranges of expected Tl values
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corresponding to at least one predetermined tissue type. See Jn re Best, 562
F.2d at 1255. Further, we note that "predetermined" represents intended use
of known data, and represents a mental step in determining data that the
evidence demonstrates was already known to the ordinary artisan (FF 1-2,
4). "[T]erms [that] merely set forth the intended use for, or a property
inherent in, an otherwise old composition ... do not differentiate the
claimed composition from those known [in] the prior art." In re Pearson,
494 F.2d 1399, 1403 (CCPA 1974).
Appellant contends that
Appellant's approach permits use of a Tl range index
that can be compared to normal tissue indices stored from
many normal tissues. For example, an irregular tissue Tl
index can be compared with a known T 1 index of tumors.
Known data can be accumulated from collected data that can
then be used to compare.
(App. Br. 10.) For the reasons discussed above, we are not persuaded.
Moreover, we agree with the Examiner that "this argument fails to address
any limitation found within claims 1 and 11" (Ans. 3). "[L ]imitations are
not to be read into the claims from the specification." In re Van Geuns, 988
F.2d 1181, 1184 (Fed. Cir. 1993). See also In re Self, 671F.2d1344, 1348
(CCPA 1982) ("[A]ppellant's arguments fail from the outset because ...
they are not based on limitations appearing in the claims").
Appellant argues that
Contrary to Lowen's disclosure, Appellant has
described a real-world situation where a single predetermined
type of tissue does not have an associated particular single
magnetic resonance property value. Instead, a predetermined
tissue type has a respectively corresponding predetermined
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range of expected Tl values. Appellant's colorization is
based upon such predetermined ranges of expected values.
(App. Br. 11 ). We do not find this argument persuasive for the reasons
discussed above. Accordingly, we agree with the Examiner that
although such a real-world situation has been described, this
fails to preclude Lowen from reading on the limitations of
claims as currently written. A single example of a real-world
situation in which the claim reads upon does not preclude a
broadest reasonable interpretation for which a prior art
reference positively reads on the claimed subject matter. In
this case, using Lowen' s methods on a patient who does not
have a tumor (in which Tl or T2 values of a specific tissue
have a specific value) reads on claims 1 and 11.
(Ans. 4.)
Appellant contends that "[i]n addition, Lowen does not teach that the
eliminated 'predetermined range of values' has any relationship to a
predetermined patient tissue type" (App. Br. 12). We are not persuaded for
the reasons discussed above. We note that Lowen teaches "[i]ncluding this
characteristic of the T 2 data in the color image allows a viewer to distinguish
between a voxel with a single type of tissue with a particular T 2 and a voxel
with different tissues" and that "[t]hese equations can be adjusted to enhance
the user's ability to distinguish between different types of tissues, e.g., white
and gray matter in the human brain" (FF 6). We further agree with the
Examiner that
Lowen does not need to make such a statement. As
stated on page 9, lines 3-4 of the Appeal Brief, "Appellant has
taken advantage of the fact that there are now known pre-
determined ranges of expected T 1 values corresponding to
predetermined tissue types." This statement makes it clear
that it is a fact that predetermined tissue types have
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predetermined ranges of expected T 1 values. The other fact
found within this statement is that this first fact may have
been determined by the Appellant. However, this does not
mean that pre-determined ranges of expected T 1 values did
not correspond to predetermined tissue types prior to such
discovery. In other words, the Appellant's determination that
predetermined tissue types have predetermined ranges of
expected Tl values does not mark the first time [in] history
that such phenomenon occurred. This is a natural and
inherent characteristic of tissues. The only variable in the
equation provided by Lowen is the Tl (or T2) value.
Therefore, it is inherent that a predetermined range of hues
(for example, a spectrum of blues for one tissue type, or a
spectrum of reds for another tissue type - as claim 1 states
that "a first/second color or a spectrum of colors) corresponds
to predetermined types of tissues. Furthermore, the
elimination of a predetermined range of values (i.e., Tl or T2
values) would inherently be related to values of a
predetermined tissue type, based on the threshold and
elimination techniques taught by Lowen.
(Ans. 4--5.) See In re Best, 562 F.2d at 1255.
We recognize, but are not persuaded by Appellant's contention that
Firstly, the Examiner fails to recognize that the Lowen
teaching at 3 :34 et seq. deals with eliminating a
predetermined range of values from one or more of the
intermediate parameters used, later, to determine colorization.
Still further, the predetermined eliminated range of
intermediate parameter values taught by Lowen has no
disclosed relationship to any respectively corresponding
patient tissue type .
. . . . In particular, the Lowen colorization formulae
depend upon at least two input variables so eliminating some
predetermined range of values from an input (intermediate)
variable is not the same as assigning colorization to pixels
based on whether the Tl pixel value falls in or outside of a
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predetermined range of expected T 1 values respectively
corresponding to a predetermined tissue type.
(App. Br. 15.) As the Examiner explains,
By Lowen' s teaching of eliminating a predetermined range of
values, Lowen's final image would inherently show those
pixel locations by either black or white (or some other
predetermined color that signifies zero data). Such "zero data
color" would be applied to pixels falling within the range that
is outside of the threshold value, while the other pixels would
have a color granted by the hue equation, thereby having a
non-"zero data color." Therefore, this explicitly reads on the
claimed subject matter. With regard to "[] ... no disclosed
relationship to any respectively corresponding patient tissue
type," it is again noted that it is a matter of fact that tissue has
a known predetermined range of T 1 (or T2) values associated
therewith.
(Ans. 6.) See In re Best, 562 F.2d at 1255.
Accordingly, we affirm the rejection of claims 1 and 11.
B. 35 U.S.C. § 103(a) over Lowen and Stork
Appellant states that "Appellant agrees that acquisition of image data
by retrieval of stored image data was itself known in the art" (App. Br. 16).
Having affirmed the anticipation rejection, we therefore, affirm the
obviousness rejection of claims 2 and 12 for the reasons given by the
Examiner.
C. 3 5 U.S. C. § 103 (a) over Lowen and Brasch
The Examiner concludes that
it would have been obvious to one of ordinary skill in the art
at the time the invention was made to utilize the teachings of
Brasch, i.e., obtaining multiple pre-contrast images in order
to generate a curve for that illustrates "normal" relaxation
times for normal and tumorous tissue, with the system and
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methods of Lowen because Lowen teaches comparing
relaxation values to a reference curve but fails to teach how
to obtain such a curve.
(Final Act. 6.)
The issue with respect to this rejection is: Does the evidence of record
support the Examiner's conclusion that Lowen and Brasch render the claims
obvious?
Findings of Fact
7. Brasch teaches
in MR imaging, from the change in relaxation rates,
parameters important to determining the microvascular
permeability are determined. Precontrast relaxation rates (R1)
(1/T 1) estimates for normal tissue and tumor are obtained by
curve fittings based on more than two, preferably 5
unenhanced three dimensional image sets with TR' s varying
from 50 msec to 2000 msec. Postcontrast Rl values are
calculated based on signal intensity and knowledge of
precontrast values.
(Brasch 10:63-11:4; see also Final Act. 6.)
8. Brasch teaches that "[p]recontrast SPGR sequences included
multiple TR of 50-2000 msec for calculating baseline relaxation rates (R1 =
1/T 1)[.] Dynamic postcontrast images were performed with TR fixed at 50
msec" (Brasch 14:64---67; see also Ans. 8).
Principles of Law
"The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results."
KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). "If a person of
ordinary skill can implement a predictable variation, § 103 likely bars its
patentability." Id. at 41 7.
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Analysis
We agree with the Examiner that Lowen and Brasch render the claims
obvious. We address Appellant's arguments below.
Appellant contends that "in the context of colorization based on
predetermined ranges of expected Tl values respectively corresponding to
predetermined tissue types, these claims when considered 'as a whole' (as is
required under 35 U.S.C. § 103) are novel and not suggested or taught even
by the combination of Lowen/Brasch" (App. Br. 17; see also Reply Br. 6-8).
We remain unpersuaded regarding the issue of "predetermined" for the
reasons discussed above, and agree with the Examiner that claims 3, 4, 13,
and 14 are obvious over Lowen and Brasch (see Ans. 7).
In regard to claims 6, and 16, Appellant argues that
The Examiner apparently misconceives the claimed
subject matter of claims 6, 16 as somehow being analogous
to derivation of a "reference curve" in Lowen. . . . The recited
subject matter is part of the process of acquiring a Tl value
for that pixel (e.g., depending upon the exponential curve
time decay factor required for a fitting to the acquired data, a
Tl value is determined). This is the antithesis of fitting the
acquired data to a "reference curve". . . . In other words,
claims 6, 16 deal with derivation of the T 1 image values - not
to any "reference curve" that might be involved in
colorization ala Lowen's teaching.
(App. Br. 18-19; see also Reply 10.) We are not persuaded for the reasons
discussed above regarding the teachings of Lowen. We further agree with
the Examiner that
the Examiner incorporated Brasch as a more defined use of
"curve fitting" since the use of curve fitting by Lowen is not
well defined. The curve fitting used by Brasch specifically
teaches contrast and pre-contrast imaging to determine
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relaxation times (Tl and T2) to provide estimates for normal
tissue and tumorous tissue. Therefore, by incorporating this
curve fitting into the teachings of Lowen, it would have been
obvious to one of skill in the art that removing a certain range
of values would and could relate to removing either one of
normal tissue or tumorous tissue values.
(Ans. 7-8; FF 7-8). That is, the Examiner reasonably relies upon Brasch to
evidence that methods of curve fitting using different intervals was known in
the prior art (FF 7-8) and that the ordinary artisan would have been
motivated to apply these known methods to optimize the curve fitting
disclosed by Lowen (FF 6).
D. 35 U.S.C. § 103(a) over Lowen, Brasch, and Daw
The Examiner concludes that
[i]t would have been obvious to one of ordinary skill in the art
at the time the invention was made to incorporate the user
interface taught by Daw with the system and methods taught
by the combination of Lowen with Brasch, because "without
use of [techniques taught by Daw]; the radiologist may spend
a great deal of time studying [multiple] slices in an attempt to
locate matching tissue in order to be assured of the proper
scope and boundary of the tumor under study (see column 15,
lines 21-25)."
(Final Act. 7 .)
The issue with respect to this rejection is: Does the evidence of record
support the Examiner's conclusion that Lowen, Brasch, and Daw render the
claims obvious?
Findings of Fact
9. Daw teaches
the display of the image as part of the user interface includes
two separate windows on the visual display. Within one
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window of the visual display the main image under study is
shown. In another portion of the visual display, such as in an
upper, central portion of the screen, a window having a
plurality of miniature images is simultaneously displayed. In
each of these images, a mark is provided in the form of an
analysis indicator that indicates whether or not the image
analysis resulted in an image that has tissue which matches
the reference tissue under examination.
(Daw 2:16-25; see also Final Act. 7.)
10. Daw teaches
When a user is performing the first tissue classification
analysis, which is done in order to generate the results ... , or
desires to perform a second classification analysis on a
different type of tissue within the region of interest, he or she
will indicate the reference tissue on which the classification
is to take place and then input a command to the computer to
begin the classification analysis.
(Daw 16:44--51; see also Ans. 12.)
11. Daw teaches that "[p ]referably, a color is selected which is
easily detectable by the user, and optionally appears as an overlay on the
image so the features of the image can be seen underneath the color overlay.
Therefore, the user is allowed to toggle between a bright solid color" (Daw
2:63---67; see also Ans. 13).
Principles of Law
[E]vidence of a motivation to combine need not be found in
the prior art references themselves, but rather may be found
in "the knowledge of one of ordinary skill in the art or, in
some cases, from the nature of the problem to be solved." ...
When not from the prior art references, the "evidence" of
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motive will likely consist of an explanation of the well-known
principle or problem-solving strategy to be applied.
Dystar Textilfarben GmbH & Co. Deutschland KG v. C.H. Patrick Co., 464
F.3d 1356, 1366 (Fed. Cir. 2006) (emphases in original, quoting In re
Dembiczak, 175 F.3d 994, 999 (Fed. Cir. 1999)).
Analysis
We agree with the Examiner that Lowen, Brasch, and Daw render the
claims obvious. We address Appellant's arguments below.
We recognize, but are not persuaded by Appellant's contention that
claims 5 and 15 "additionally require first and second color-coded Tl-
images to be generated respectively (a) without and (b) with administration
of a contrast agent - and require both such differently color-coded T 1-
images to be displayed for use in computer-guided diagnosis of said patient
tissue" (App. Br. 19-20; see also Reply 10-11). As the Examiner explains,
Brasch has already been described for acquiring both pre-
contrast and post-contrast images . . . . Furthermore, Daw
specifically teaches that pre-contrast and post-contrast
sequence data may be acquired . . . . Furthermore, Daw
teaches that multiple images may be displayed
simultaneously to allow an operator to easily compare tissue
types amongst multiple images.
(Ans. 9; FF 7-11.)
In regard to claims 7 and 1 7, we recognize, but are not persuaded by
Appellant's contention that "one still does not find mention anywhere here
of a certain sub-range of T 1 pixel values not expected in normal tissue of the
particular predetermined tissue type - nor color coding to distinguish the
sub-range from the predetermined range of expected Tl values recited in
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parent claims 1, 11" (App. Br. 20; see also Reply 11). We note that claims 7
and 17 do not recite "sub-range of Tl pixel values." See In re Van Geuns,
988 F.2d at 1184 and In re Self, 671 F.2d at 1348. Accordingly, we are not
persuaded for the reasons discussed above and agree with the Examiner that
"Daw teaches that multiple images may be displayed simultaneously to
allow an operator to easily compare tissue types amongst multiple images
. . . . Therefore, it is obvious that one of these two images is a reference
image used for the comparison" (Ans. 9; FF 9).
We recognize, but are not persuaded by Appellant's contention that
"[t]aking all of the above into account, there is still no teaching in Daw of
the claims 5, 15 requirement for display of both of two differently colorized
Tl-images, etc." (App. Br. 22; see also Reply 10-11). As the Examiner
explains,
there is no clear limitation that states that the two images are
"two differently colorized" images. Rather, one image is
\'l1ithout contrast agent \'l1hile the other is \'l1ith contrast agent.
It is noted ... that both Brasch and Daw teach acquisition of
both of these types of images, Lowen' s hue equation is a
predetermined equation and relies solely on the Tl (or T2)
value of the tissue region being imaged, and Daw teaches
display of multiple images for comparison purposes and
diagnostic purposes.
(Ans. 9-10; FF 6-9.)
We recognize, but are not persuaded by Appellant's contention that
"there is also still no teaching in Daw of the claim 7, 17 further requirement
of displaying, in addition to the colorized image of parent claim 1, a
reference MR-image of said patient tissue" (App. Br. 22; see also Reply 11 ).
As the Examiner explains, Daw "teaches display of two images comprising
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(a) the main image under study and (b) a plurality of miniature images
showing possible images that may or may not have a same tissue type
present" (Ans. 10; FF 9).
In regard to claims 8 and 18, we recognize, but are not persuaded by
Appellant's contention that
there does not appear to be any teaching or suggestion that the
colorization should distinguish between a sub-range (defining
abnormal values not expected in normal tissue of the
predetermined tissue type - followed by color coding
respectively corresponding pixels with a color or spectrum of
colors that is distinguished from the remainder of the imaged
tissue).
(App. Br. 23; see also Reply 11-13.) We note that the claims do not define
"sub-range." As the Examiner explains,
the invention of Lowen will distinguish between normal and
abnormal tissue types within its methods because the hue is
dependent only on the Tl (or T2) value. By viewing an image
where the abnormal tissue has a hue different from the
surrounding tissue, it is obvious that this different hue is
"within a subrange," and it is obvious that such an analysis
occurs because this is the method by which radiologists detect
tumors and cancers from medical images.
(Ans. 11-12; FF 6). See In re Best, 562 F.2d at 1255. See also Dystar
Textilfarben GmbH & Co. Deutschland KG v. C.H. Patrick Co., 464 F.3d at
1366.
In regard to claims 9 and 19, we recognize, but are not persuaded by
Appellant's contention that "the Examiner has not identified any specific
Daw text that actually teaches an operator capability to adjust a
predetermined range of expected TI -values corresponding to a
predetermined tissue type for colorization as required by parent claim 1"
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(App. Br. 24; see also Reply 13-14). As the Examiner explains, "Daw
teaches further that a user may characterize any number of tissue types based
on any desired sub-range of data types and values" (Ans. 12; FF 10). See
Dystar Textilfarben GmbH & Co. Deutschland KG v. C.H. Patrick Co., 464
F.3d at 1366.
In regard to claims 10 and 20, we recognize, but are not persuaded by
Appellant's contention that "these passages do not teach operator control for
both a first and a second color spectrum in the relevant context of parent
claim 1" (App. Br. 24; see also Reply 14--15). As the Examiner explains,
Daw teaches at column 2, lines 51---67 that the colorized
overlay may be selectable by a user - "preferably, a color is
selected which is easily detectable by the user ... [.]"
Furthermore, the passages at column 17, lines 54-58 and 64-
66 also teach that colors have been selected for particular
tissue types within the image.
(Ans. 13; FF 11.)
SUMMARY
In summary, we affirm the rejection of claims 1 and 11 under 35
U.S.C. § 102(b) as being anticipated by Lowen.
We affirm the rejection of claims 2 and 12 under 35 U.S.C. § 103(a)
as obvious over Lowen and Stark.
We affirm the rejection of claims 3, 4, 6, 13, 14, and 16 under 35
U.S.C. § 103(a) as obvious over Lowen and Brasch.
We affirm the rejection of claims 5, 7-10, 15, and 17-20 under 35
U.S.C. § 103(a) as obvious over Lowen, Brasch, and Daw.
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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).
AFFIRMED
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