Ex Parte Mostafavi et al

Patent Trial and Appeal Board

Dec 28, 2015

12205431 (P.T.A.B. Dec. 28, 2015)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/205,431 09/05/2008
55499 7590 12/30/2015
Vista IP Law Group, LLP (Varian)
2160 Lundy Avenue
Suite 230
San Jose, CA 95131
FIRST NAMED INVENTOR
Hassan Mostafavi
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.
VM 08-020-US 6823
EXAMINER
CAO,PHATX
ART UNIT PAPER NUMBER
2817
NOTIFICATION DATE DELIVERY MODE
12/30/2015 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):
docketing@viplawgroup.com
ev@viplawgroup.com
sandra.roe@varian.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HASSAN MOST AF A VI and
SERGEY POVZNER 1
Appeal2014-000244
Application 12/205,431
Technology Center 2800
Before JASON V. MORGAN, JOSEPH P. LENTIVECH, and
JOYCE CRAIG, Administrative Patent Judges.
MORGAN, Administrative Patent Judge.
DECISION ON APPEAL
Introduction
This is an appeal under 35 U.S.C. § 134(a) from the Examiner's final
rejection of claims 1---6, 13-32, and 39-53. Claims 7-9 and 33-35 are
withdrawn. App. Br. 10-11, 14. The Examiner indicates claims 10-12 and
36-38 would be allowable if rewritten in independent form. Final Act. 7.
We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
1 Appellants identify Varian Medical Systems, Inc. of Palo Alto, California
as the real party in interest. App. Br. 2.
Appeal2014-000244
Application 12/205,431
Invention
Appellants disclose "methods and systems for monitoring activity of a
patient, such as a breathing activity of an infant." Spec. i-f 2.
Exemplary Claim
Claim 1; reproduced below with key 1 imitations emphasized, is
representative:
1. A method of determining a similarity with a portion of a
physiological motion, comprising:
obtaining a first image of an object;
obtaining a second image of the object;
determining a level of similarity between the first and
second images; and
correlating the determined level of similarity between the
first and second images with a portion of the physiological
motion.
Rejections
The Examiner rejects claims 1---6, 13-32, and 39-53 under 35 U.S.C.
§ 102(b) as being anticipated by Jeung (US 6,980,679 B2; Dec. 27, 2005).
Final Act. 3-5.
The Examiner rejects claims 1---6, 13-32, and 39-53 under 35 U.S.C.
§ 102(b) as being anticipated by Guem (US 5,107,845; Apr. 28, 1992).
Final Act. 5-7.
ISSUE
Did the Examiner err in finding Guem discloses "determining a level
of similarity between the first and second images; and correlating the
determined level of similarity between the first and second images with a
portion of the physiological motion," as recited in claim 1?
2
Appeal2014-000244
Application 12/205,431
ANALYSIS
In rejecting claim 1 as being anticipated by Guem, the Examiner finds
Guem's determination of whether an observed scene has changed by
determining whether curves a and b, representing gray levels viewed by
photodetectors at two instants, discloses determining a level of similarity
between first and second images. Final Act. 5---6 (citing Guem Figs. 4A-B,
col. 6, 1. 61---col. 7, 1. 11). The Examiner further finds Guem's successive
image gray levels comparison and detection of respiratory arrest in the
absence of significant variations or in the presence of abnormal variations in
compared successive image gray levels discloses correlating the determined
level of similarity between the first and second images with a portion of a
physiological motion. Final Act. 6 (citing Guem col. 2, 11. 43-68); Ans. 15
(further citing Guem col. 3, 11. 1-3).
Appellants contend the Examiner erred because "Guem specifically
teaches comparing gray scale levels of the two curves a, b by subtracting
these from each other to obtain difference curve c." App. Br. 7 (citing Guem
Figures 4A-B, col. 7, 11. 14--16). Thus, Appellants argue "the so-called
'comparison' of curves in Guem is to determine a difference curve, which is
not the same as determining a level of similarity between two images." App.
Br. 7; see also Reply Br. 8. However, Guem's comparison of curves a and b
ascertains whether a scene observed has not changed between two
observation instants. Guem col. 6, 1. 65---col. 7, 1. 1. Thus, Guem's
comparison distinguishes between whether two images are identical or
different-two levels of similarity (i.e., completely similar or not completely
similar). Therefore, we agree with the Examiner that Guem discloses
"determining a level of similarity between the first and second images."
3
Appeal2014-000244
Application 12/205,431
Appellants further contend the Examiner erred because "Guem
actually discloses comparing gray levels of corresponding points in images
to determine respiration disorder. There is nothing in the cited passage of
Guem that discloses or suggests correlating any level of similarity (between
images) with a portion of a physiological motion." App. Br. 8. In particular,
Appellants argue Guem's detection, "in the absence of significant variations
or in the presence of abnormal variations in the spatial distribution of the
gray levels of the points of brightness of success images compared" (Guem
col. 2, 1. 68---col. 3, 1. 1), of "respiratory insufficiency, apnoea or dyspnoea"
(id. at col. 2, 11. 67---68) does not disclose the claimed limitation, because
"[ n ]otably, 'respiratory insufficiency' is a medical condition, and is not any
portion of a physiological motion" (Reply Br. 11 ). However, mere attorney
argument is not evidence and is thus entitled to little probative value. In re
Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997). Thus, Appellants do not
provide persuasive arguments or evidence distinguishing the claimed portion
of a physiological motion from Guem's detection of respiratory
insufficiency. Therefore, we agree with the Examiner that Guem discloses
"correlating the determined level of similarity between the first and second
images with a portion of the physiological motion," as recited in claim 1.
Accordingly, we sustain the Examiner's 35 U.S.C. § 102(b) rejection
of claim 1 as being anticipated by Guem. We also sustain the Examiner's 35
U.S.C. § 102(b) rejection of claims 2-6, 13-32, and 39-53, which
Appellants argue are patentable for similar reasons. See App. Br. 8.
Our affirmance of the Examiner's 35 U.S.C. § 102(b) rejection based
on Guem is dispositive of the outstanding claims. Accordingly, we do not
reach the issues Appellants raise with respect to the Examiner's 35 U.S.C.
4
Appeal2014-000244
Application 12/205,431
§ 102(b) rejection based on Jeung. See, e.g., In re Gleave, 560 F.3d 1331,
1338 (Fed. Cir. 2009) (not reaching rejections based on obviousness when
claims already are rejected as anticipated).
DECISION
We affirm the Examiner's decision rejecting claims 1-6, 13-32, and
39-53.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 41.50(±).
AFFIRMED
PS
5