Ex Parte Nebosis et al

Patent Trial and Appeal Board

Feb 27, 2018

14009371 (P.T.A.B. Feb. 27, 2018)

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.
14/009,371 10/28/2013 Rainer Nebosis 55505.309 1598
60405 7590
AGFA
c/o KEATING & BENNETT, LLP
1800 Alexander Bell Drive
SUITE 200
Reston, VA 20191
EXAMINER
HANSEN, JONATHAN M
ART UNIT PAPER NUMBER
2886
NOTIFICATION DATE DELIVERY MODE
03/01/2018 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):
JKEATING@KBIPLAW.COM
u spto @ kbiplaw. com
sfunk@kbiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RAINER NEBOSIS, GEERT WELLENS, and
WOLFGANG SCHORRE
Appeal 2017-005369
Application 14/009,371
Technology Center 2800
Before JEFFREY T. SMITH, DONNA M. PRAISS, and
JENNIFER R. GUPTA, Administrative Patent Judges.
GUPTA, Administrative Patent Judge.
DECISION ON APPEAL1
Appellants2 appeal under 35 U.S.C. § 134(a) from the Examiner’s
final decision rejecting claims 22-32 and 35^15. We have jurisdiction under
35 U.S.C. § 6(b).
We REVERSE.
1 In this Decision, we refer to the Specification filed October 2, 2013
(“Spec.”), the Final Office Action mailed April 12, 2016 (“Final Act.”), the
Appeal Brief filed September 2, 2016 (“Appeal Br.”), the Examiner’s
Answer mailed December 7, 2016 (“Ans.”), and the Reply Brief filed
February 6, 2017 (“Reply Br.”).
2 Appellants identify the real party in interest as Agfa Healthcare NV.
Appeal Br. 2.
Appeal 2017-005369
Application 14/009,371
The subject matter of the claims on appeal relates to a system and
method for performing optical coherence tomography. Spec. 1,11. 7-8.
Claim 22, reproduced below from the Claims Appendix of the Appeal Brief,
with key disputed limitations highlighted in italicized text, is representative
of the claims on appeal.
22. A method for optical coherence tomography, the method
comprising the steps of:
displaying at least one parameter on a display device, the
at least one parameter relating to a property of an object to be
examined, and enabling a user to change and/or to select the at
least one parameter displayed on the display device;
acquiring a first image in a region of a first plane of the
object in real time using optical coherence tomography
equipment;
acquiring a second image in a region of a second plane of
the object in real time using the optical coherence tomography
equipment, the second plane of the object being different from
the first plane of the object;
simultaneously rendering the first image as a real time
image and the second image as a still image on the display device
when a control command entered by an operator indicates to
operate the optical coherence tomography equipment in a first
operating mode; and
simultaneously rendering the second image as a real time
image and the first image, which has already been acquired
previously in real time, as a still image on the display device
when the control command entered by the operator indicates to
operate the optical coherence tomography equipment in a second
operating mode; wherein
during the step of acquiring the first image and/or the step
of acquiring the second image, detecting light reflected or
backscattered from a certain depth of the object and adjusting a
focal point of a sample objective, which is located in a sample
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Application 14/009,371
arm of the optical coherence tomography equipment, such that
the focal point of the sample objective is located in a region of
the certain depth in the object from which the light reflected or
backscattered is detected, and the adjusting the focal point of the
sample objective is based on the at least one parameter being
changed and/or selected by the user.
App. Br. 12 (Claims App.).
Claim 37, the other independent claim on appeal, recites “[a] system
for performing optical coherence tomography” comprising limitations
similar to those highlighted above in reproduced claim 22. Id. at 15-16
(Claims App.).
DISCUSSION
The Examiner maintains the rejection of claims 22-32 and 35^15
under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Nariyuki et al.
(US 2010/0042084 Al, published February 18, 2010) (“Nariyuki”) in view
of Dastmalchi et al. (US 2008/0100612 Al, published May 1, 2008)
(“Dastmalchi”), and further in view of Nebosis (US 2010/0027020 Al,
published February 4, 2010). Ans. 2.
We focus on representative claim 22 in deciding this appeal.
The dispositive issue before us in this appeal is:
Has the Examiner reversibly erred in finding that the combination of
Nariyuki, Dastmalchi, and Nebosis taught or would have suggested a
method for optical coherence tomography that includes displaying at least
one parameter on a display device, “the at least one parameter relating to a
property of an object to be examined, and enabling a user to change and/or
to select the at least one parameter displayed on the display device,” and
adjusting a focal point of a sample objective where “the adjusting the focal
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Application 14/009,371
point of the sample objective is based on the at least one parameter being
changed and/or selected by the user,” as recited in claim 22? We answer this
question in the affirmative.
Although neither Appellants nor the Examiner expressly interpret
claim 22, we begin our analysis with claim construction. During
prosecution, the PTO gives the language of the proposed claims “the
broadest reasonable meaning of the words in their ordinary usage as they
would be understood by one of ordinary skill in the art, taking into account
whatever enlightenment by way of definitions or otherwise that may be
afforded by the written description contained in the applicant’s
specification.” In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997).
Appellants’ Specification does not expressly define “at least one
parameter relating to a property of an object to be examined,” but describes
examples of such a parameter as “the moisture content” or “the skin type” of
the object to be examined. Spec. 7,1. 27-8,1. 4; see also claim 43 (“wherein
the at least one parameter relates to a skin type of a skin of the object to be
examined.”) and claim 44 (“wherein the at least one parameter relates to a
moisture content of a skin of the object to be examined.”). Notably,
Appellants’ Specification also distinguishes a parameter relating to a
property of an object to be examined from a parameter relating to a position
of the object to be examined. Spec. 8,11. 23-24 (“[alternatively or in
addition ... the at least one parameter relates to a position of the first or
second plane of the object”); see also Spec. 38,11. 11-26 (describing depth
selection and a property of the object to be examined, e.g., characterization
of the moisture of the skin of a respective patient, as two different types of
parameters displayed on a monitor). Thus, in the context of Appellants’
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Application 14/009,371
Specification, the broadest reasonable interpretation of the claim phrase “at
least one parameter relating to a property of an object to be examined,” is a
characteristic or property of the object being examined, and not the position
of the object.
The Examiner finds that Nariyuki’s paragraph 65 discloses adjusting
the imaging depth of the tomographic imaging system according to the
characteristics of the inner wall of a blood vessel and Nariyuki’s
paragraphs 75, 76, 83, 84, and 86 disclose adjusting an axial imaging
direction of the tomographic system based on a desired or designated
treatment area of the blood vessel or object. Ans. 2. The Examiner finds
that “the axial imaging direction and the imaging depth are ‘parameters
relating to a property of an object.’” Ans. 3. Additionally, the Examiner
finds that Nebosis discloses a focus tracking system for adjusting a focal
point of a sample objective, and provides a reason for including Nebosis’s
focus tracking system in Nariyuki’s apparatus—“for the advantage of
obtaining interference images with maximal sharpness for all of the selected
depths and regions of interest within the sample.” Final Act. 7-8; Ans. 4;
Nebosis 73, 76.
Nariyuki’s paragraph 65 discloses obtaining tomographic images at
various depths of a sample. Despite the Examiner’s finding, paragraph 65
does not disclose adjusting the depth according to characteristics of the
bloodvessel. Ans. 2; Nariyuki ^65. Nariyuki’s paragraphs 75 and 76
disclose a console controller (71) that displays a menu on a monitor (76) for
guiding the operation of a laser treatment apparatus. Nariyuki 75, 76.
Nariyuki’s paragraphs 83, 84, and 86 disclose displaying a tomographic
image (72), a parallel tomographic image (73), and a 3D image (74) on a
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monitor, and using reference lines 91a, 91b, and 91c on tomographic image
(72), parallel tomographic image (73), and 3D image (74), respectively, to
indicate the positional relation or correspondence among the 3 tomographic
images (72, 73, 74). Nariyuki H 76, 83, 84, 86, Fig. 4. Reference line 91a
is rotatable and movable and reference lines 91b and 91c are movable. Id.
11 84, 86.
As Appellants persuasively argue, the Examiner has not adequately
explained how either adjusting imaging depth of a sample or adjusting the
axial direction of an image as described in Nariyuki’s paragraphs 65, 75, 76,
83, 84, and 86 fall within the scope of a “parameter relating to a property of
an object,” such as moisture content or skin type of an object. Reply Br. 2-
4; Appeal Br. 8. Nor has the Examiner established that Nariyuki’s
paragraphs 65, 75, 76, 83, 84, and 86, alone or in combination with
Dastmalchi and/or Nebosis, teach or suggest displaying data regarding the
imaging depth or the axial imaging direction, rather than just the images
themselves, on the monitor.
Moreover, as Appellants persuasively argue, on this record, the
Examiner has not established Narikyuki in combination with Nebosis
teaches or suggests adjusting a focal point of a sample objective based on at
least one parameter relating to a property of an object to be examined.
Reply Br. 5; Appeal Br. 8-10.
As a result, we do not sustain the Examiner’s rejection of claims 22-
32 and 35^15 as unpatentable of Nariyuki, Dastmalchi, and Nebosis.
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DECISION
For the above reasons, the rejection of claims 22-32 and 35-45 is
reversed.
REVERSED
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