Ex Parte Mullick et al

Board of Patent Appeals and Interferences

Aug 29, 2011

11045838 (B.P.A.I. Aug. 29, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte RAKESH MULLICK, CHRISTOPHER JUDSON HARDY,
ROBERT DAVID DARROW, RAGHU KOKKU and TIMOTHY POSTON
____________

Appeal 2010-005090
Application 11/045,838
Technology Center 3700
____________

Before STEVEN D.A. McCARTHY, PHILLIP J. KAUFFMAN and
MICHAEL C. ASTORINO, Administrative Patent Judges.

ASTORINO, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2010-005090
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STATEMENT OF THE CASE 1
The Appellants appeal under 35 U.S.C. § 134 from the Examiner’s 2
decision finally rejecting claims 1-13 and 19-21 under 35 U.S.C. § 102(b) as 3
being anticipated by Ahmed (US 2005/0203367 A1, publ. Sep. 15, 2005) 4
and claims 14-18 under 35 U.S.C. § 103(a) as being unpatentable over 5
Ahmed. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). 6
We AFFIRM. 7
Claims 1, 8, 14 and 19 are independent claims. Claim 1 is illustrative 8
of the apparatus claims on appeal. 9
1. An imaging system comprising: 10
a data acquisition system for obtaining a 11
three-dimensional image of an object; and 12
a processor coupled to the data acquisition 13
system, the processor configured for receiving a 14
user interface input based on interaction with the 15
three-dimensional image, and for providing a 16
plurality of parameters to the data acquisition 17
system based on the user interface input, the 18
plurality of parameters being used for further 19
acquisition by the data acquisition system. 20
(Italics added). 21
Claim 14 recites an MR imaging system including “a data acquisition 22
system for obtaining a three-dimensional representation of the region of 23
interest from the magnetic resonance signals detected by the at least one 24
detecting coil” and a virtual user interface including a “processor being 25
configured . . . to provide a plurality of parameters to the data acquisition 26
system based on the user interface input, the plurality of parameters being 27
used for further acquisition by the data acquisition system.” 28
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ISSUES 1
The Appellants argue against the rejection of independent claims 1, 8 2
and 19, under § 102(b) as a group. (Br. 6-8). We select claim 1 as the 3
representative claim from the group pursuant to 37 C.F.R. § 41.37(c)(1)(vii). 4
The Appellants separately argue against the rejection of independent claim 5
14. (Br. 8-9). The Appellants submit that dependent claims 2-7, 9-13, 15-6
18, 20 and 21 are allowable by virtue of their dependency of their base 7
claims, as well as for the subject matter they separably recite. (Br. 8, 9). In 8
accordance with § 41.37(c)(1)(vii), since the latter submission is not 9
considered an argument for purposes of appeal, the dependent claims stand 10
or fall with the independent claim from which they depend. This appeal 11
turns on the following issues. 12
First, does Ahmed disclose the “data acquisition system” and 13
“processor” as properly construed in claim 1? (See generally Br. 6-8). 14
Second, would the combination of Ahmed’s teachings and the 15
knowledge of one of ordinary skill in the art have rendered obvious 16
the “data acquisition system” and “processor” as properly construed 17
in claim 14? (See generally Br. 8-9). 18
19
FINDINGS OF FACT 20
The record supports the following findings of fact (“FF”) by a 21
preponderance of the evidence. 22
1. We adopt and incorporate by reference the Examiner’s findings 23
in the Examiner’s Answer at page 3, lines 9-20 “Ahmed teaches a system . . . 24
7-8 and 10).” (Emphasis omitted). 25
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2. Ahmed discloses a medical guide system that uses a planning 1
procedure and then a surgical procedure. The planning procedure includes 2
taking image scans of a patient, for example MRI scans, which are used 3
during the operating procedure. (Ahmed, paras. [0032]-[0034]). 4
3. Ahmed discloses the guide system includes an LCD head 5
mounted display (HMD) 1, a computer 11, a microscope 3 supported on a 6
structure 5, a probe 9, and an optical tracking unit 7. The optical tracking 7
unit 7 tracks the positions of objects, using two cameras and reflective 8
spherical markers attached to objects, and a patient 21, using skin markers 9
(fiducials) attached to the patient. (Ahmed, paras. [0033]-[0035]). A 10
registration procedure is used so that a surgeon can perceive 3D data to be 11
overlaid directly on the actual patient and can be used at different angles 12
while the viewer is changing position. (Ahmed, para. [0036]). 13
4. We adopt the Examiner’s findings in the Examiner’s Answer at 14
page 7, line 20 – page 8, lines 6 “Ahmed's system can employ an imaging 15
system (abstract, figure 1) comprised of actual (i.e. CT, MR, Optical; see 16
figures 5 and 6b) and virtual interface (figures 1, element 1, 2 and 6c, and 17
0033) and image (figure 6c) components. One embodiment utilizes a 18
microscope to supply real patient images coupled with a computer-based 19
virtual interface and computer-controlled acquisition (generation) of virtual 20
images (0037-0039 and 0040-0041) to form an augmented reality 21
microscopy system (MAAR). The MAAR incorporates virtual and real 22
image updates via adjustment of zoom and/or focus parameters all directed 23
through the system's virtual interface (0039).” (See also Ahmed, paras. 24
[0059]-[0061] and figs 5, 6a, 6b, 6c). 25
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5. Ahmed describes that “the interaction with the virtual objects is 1
possible in real-time by using the tracked probe 9, which is displayed as a 2
virtual probe within the computer-generated images presented to the user by 3
the HMD 1.” (Ahmed, para. [0040]). Lastly, Ahmed describes that “an 4
alternative within the scope of the invention is to overlaying the 3D 5
computer-generated data directly onto the view through the microscope 3 by 6
using an LCD based image ‘injection’ system into the microscope's optical 7
channels. In this case, there is no need for a separate HMD to perform 8
MAAR.” (Ahmed, para. [0041]) (emphasis omitted). 9
10
ANALYSIS 11
Claims 1 and 14 both recite the term “data acquisition system”, 12
thereafter each claim includes functional language to more specifically limit 13
the structure of the data acquisition system. Claim 1 recites an imaging 14
system including “a data acquisition system for obtaining a three-15
dimensional image of an object.” Claim 14 recites an MR imaging system 16
including “a data acquisition system for obtaining a three-dimensional 17
representation of the region of interest from the magnetic resonance signals 18
detected by the at least one detecting coil.” 19
It is the appellants’ burden to precisely define the invention, not the 20
PTO’s. In re Morris, 127 F.3d 1048, 1056 (Fed. Cir. 1997). In the absence 21
of an express definition of a claim term in the specification or a clear 22
disclaimer of scope, the claim term is interpreted as broadly as the ordinary 23
usage of the term by one of ordinary skill in the art reasonably would permit. 24
In re ICON Health & Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007); 25
Morris at 1054 (Fed. Cir. 1997). 26
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The term “data acquisition system” is not explicitly defined by the 1
Specification. The Specification discloses at paragraph [0022]1 and Figure 1 2
depicts, that the imaging system 10 includes a data acquisition system 14 3
coupled to a processor 16. The Specification in paragraph [0029] states 4
“[t]he imaging system 10 . . . may be an MRI system, . . . a microscope, . . . , 5
any other three-dimensional image acquisition system that is now or may 6
become available, or a combination thereof.” (See also Spec. para. [0036]). 7
The recitation of dependent claim 2 is of similar effect. Thus, the broadest 8
reasonable construction of “data acquisition system” includes images 9
acquired from a microscope, or a combination of an MRI system and a 10
microscope. 11
Further, claims 1 and 14 also recite a processor including functionality 12
with the recited data acquisition system. Claim 1 recites “a processor 13
coupled to the data acquisition system, the processor configured . . . for 14
providing a plurality of parameters to the data acquisition system based on 15
the user interface input, the plurality of parameters being used for further 16
acquisition by the data acquisition system.” Claim 14 recites “the processor 17
being configured . . . to provide a plurality of parameters to the data 18
acquisition system based on the user interface input, the plurality of 19
parameters being used for further acquisition by the data acquisition 20
system.” Each claim requires a plurality of parameters be provided to their 21
respective data acquisition system. As recited above the data acquisition 22
system of claim 1 is different than claim 14. 23

1 See replacement paragraph [0022] in the Amendment to the Specification
filed July 28, 2008. For all other citations to the Appellant’s Specification in
this opinion refer to the Specification filed Jan. 28, 2005.
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The Appellants contend that Ahmed fails to disclose “generating new 1
images by the data acquisition system based on a plurality of parameters 2
derived from user interface inputs,” as claims 1 and 14 require. (Br. 7; see 3
Br. 9). In addition, the Appellants contend Ahmed fails to disclose that the 4
data acquisition system is a scanner. (See Br. 7). The Examiner correctly 5
construes claims 1 and 14 to not require the data acquisition system to 6
include new images from a scanner. (Ans. 7). 7
The Examiner correctly finds the combination of Ahmed’s MAARs 8
microscope and MRI scans correspond with the data acquisition system as 9
recited in claims 1 and 14. (Ans. 7-8). The Examiner also correctly finds 10
Ahmed discloses that the microscope in the MAARs system includes 11
zooming features controlling images overlaying the patient image; and that 12
disclosure corresponds to the “processor configured . . . for providing a 13
plurality of parameters to the data acquisition system based on the user 14
interface input, the plurality of parameters being used for further acquisition 15
by the data acquisition system” as recited in claim 1. In other words, as the 16
microscope zooms in and out a plurality of parameters (magnification 17
parameters) are used to acquire MRI images that overlay the images on the 18
patient image in the HMD 1. (FF 3-5). 19
As discussed above, the “data acquisition system” of claim 14 is 20
different than claim 1. Claim 14 recites an MR imaging system including “a 21
data acquisition system for obtaining a three-dimensional representation of 22
the region of interest from the magnetic resonance signals detected by the at 23
least one detecting coil.” However, since the broadest reasonable 24
construction of “data acquisition system” includes images acquired from a 25
combination of an MRI system and a microscope, claim 14 as properly 26
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construed, does not forego the possibility that the data acquisition system 1
includes MRI scans from an MRI-based imaging system and microscope 2
images. As for the processor of claim 14 being configured “to provide a 3
plurality of parameters to the data acquisition system based on the user 4
interface input, the plurality of parameters being used for further acquisition 5
by the data acquisition system[,]” that limitation does not forego the 6
possibility that the plurality of parameters are directed to microscope 7
zooming functions, not MRI scans, because the “data acquisition system” is 8
not limited to a MRI-based system. 9
The Examiner finds Ahmed discloses the data acquisition system 10
includes the microscope and scans from an MRI device. (Ans. 5-6, 7-8; FF 11
1, 4). The Examiner reasons “Ahmed fails to explicitly disclose the specific 12
components of an MRI-based 3-D imaging system. However, it would 13
[have] be[en] obvious to one of ordinary skill to recognize that the structural 14
elements/apparatus cited in the instant application's claims are standard for 15
an MRI system and are common knowledge in the art.” (Ans. 6). KSR Int'l 16
Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007), citing In re Kahn, 441 F.3d 17
977, 988 (Fed. Cir. 2006) (“[R]ejections on obviousness grounds cannot be 18
sustained by mere conclusory statements; instead, there must be some 19
articulated reasoning with some rational underpinning to support the legal 20
conclusion of obviousness.”) The Examiner’s conclusion of obviousness is 21
supported by reasoning articulated with rational underpinnings. 22
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CONCLUSION 1
First, Ahmed discloses the “data acquisition system” and “processor” 2
as properly construed in claim 1. We sustain the rejection of claims 1-13 3
and 19-21 under § 102(b) as being anticipated by Ahmed. 4
Second, the combination of Ahmed’s teachings and the knowledge of 5
one of ordinary skill in the art would have rendered obvious the “data 6
acquisition system” and “processor” as properly construed in claim 14. We 7
sustain the rejection of claims 14-18 under § 103(a) as being unpatentable 8
over Ahmed. 9
10
DECISION 11
We AFFIRM the Examiner’s decision rejecting claims 1-21. 12
No time period for taking any subsequent action in connection with 13
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. 14
§ 1.136(a)(1)(iv). 15
16
AFFIRMED 17
18
Klh 19