Ex Parte Pekar et al

Patent Trial and Appeal Board

Dec 29, 2016

13581512 (P.T.A.B. Dec. 29, 2016)

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.
13/581,512 08/28/2012 Vladimir Pekar 2010P00360WOUS 1680
24737 7590 01/03/2017
PTTTT TPS TNTFT T FfTTTAT PROPFRTY fr STANDARDS
EXAMINER
465 Columbus Avenue HE, WEIMING
Suite 340
Valhalla, NY 10595 ART UNIT PAPER NUMBER
2612
NOTIFICATION DATE DELIVERY MODE
01/03/2017 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):
marianne. fox @ philips, com
debbie.henn @philips .com
patti. demichele @ Philips, com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte VLADIMIR PEKAR and ARISH A. QAZI
Appeal 2016-001305
Application 13/581,5121
Technology Center 2600
Before THU A. DANG, JOHN D. HAMANN, and ALEX S. YAP,
Administrative Patent Judges.
HAMANN, Administrative Patent Judge.
DECISION ON APPEAL
Appellants file this appeal under 35 U.S.C. § 134(a) from the
Examiner’s Final Rejection of claims 1, 3—8, and 10-23. We have
jurisdiction under 35 U.S.C. § 6(b). We affirm-in-part.
THE CLAIMED INVENTION
Appellants’ claimed invention relates to image segmentation for
medical diagnostic imaging for delineating target volumes, organs, and the
like. Spec. 1. Claims 1 and 17 are illustrative of the subject matter of the
appeal and are reproduced below.
1 According to Appellants, the real party in interest is Koninklijke
Philips Electronics NV. App. Br. 1.
Appeal 2016-001305
Application 13/581,512
1 . A system for segmenting current diagnostic images
comprising:
one or more workstations which segment a volume of
interest in previously generated diagnostic images of a selected
volume of interest generated from a plurality of patients;
one or more processors programmed to:
register the segmented previously generated
images, and merge the segmented previously generated
images into a probability map which depicts a probability
that each voxel represents the volume of interest, a
probability that each voxel represents background, and a
mean segmentation boundary;
a segmentation processor which registers the probability
map with a current diagnostic image of the volume of interest in
a current patient to generate a transformed probability map, the
segmentation processor being programmed to register the
probability map with the current image by performing the steps
of:
registering the mean segmentation boundary to the
volume of interest of one of the current image and a
model registered to the current image;
determining a transform by which the mean
segmentation boundary was transformed to be registered
to the current image or model;
transforming the probability map with the
determined transform to generate the transformed
probability map; and
a segmentation boundary processor which determines a
segmentation boundary for the volume of interest based on the
transformed probability map.
17. A probability map generated by the method of claim 10.
2
Appeal 2016-001305
Application 13/581,512
REJECTIONS ON APPEAL
(1) The Examiner rejected claims 1, 3—8, 10-18, and 22 under
35 U.S.C. § 103(a) as being unpatentable over the combination of O.
Commowick et al., Atlas-based delineation of lymph node levels in head and
neck computed tomography images, 87 Radiotherapy and Oncology 281
(2008) (hereinafter “Commowick”) and Gering et al. (US 2009/0226060 Al;
published Sept. 10, 2009) (hereinafter “Gering”).2
(2) The Examiner rejected claims 19-21 and 23 under 35 U.S.C.
§ 103(a) as being unpatentable over the combination of Commowick,
Gering, and Koptenko et al. (US 2008/0008369 Al; published Jan. 10, 2008)
(hereinafter “Koptenko”).
(3) The Examiner rejected claim 17 under 35 U.S.C. § 101 as being
directed to non-statutory subject matter.
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
contentions that the Examiner erred. In reaching our Decision, we consider
all evidence presented and all arguments made by Appellants. We below
address specific findings and arguments relating to each of the Examiner’s
rejections Appellants are appealing.
(1) Generate the transformed probability map
Appellants argue the combination of Commowick and Gering fails to
teach or suggest “transforming the probability map with the determined
2 Appellants did not provide arguments for the patentability of independent
claims 16—18 for the Examiner’s § 103 rejection. Accordingly, we
summarily sustain the § 103 rejection for these claims.
3
Appeal 2016-001305
Application 13/581,512
transform to generate the transformed probability map,” as recited in claims
1 and 22, and similarly (at least in relevant part) recited in claim 10. See
App. Br. 15—16, 18, 20-21; Reply Br. 2—3, 8. Specifically, Appellants argue
Commowick instead teaches “(i) constructing] a mean image from an image
database; (ii) then calculating] a probability of each voxel of the mean
image; and (iii) finally automatically segmenting] a new patient image.”
App. Br. 15 (citing Commowick 283—84); Reply Br. 2. As to Gering,
Appellants argue it also instead teaches constructing a mean image,
determining voxel probabilities, and segmenting a current image. See App.
Br. 15—16 (citing Gering || 73—74, 90); Reply Br. 3. Appellants contend
Commowick and Gering’s teachings are in contrast to the disputed
limitation, which requires “transforming a probability map to generate [a]
transformed probability map.” App. Br. 16.
The Examiner finds the combination of Commowick and Gering
teaches or suggests the disputed limitation. Ans. 3^4. As to Commowick,
the Examiner finds it teaches constructing a mean image and a mean
segmentation boundary, and thus, “probabilities of each voxel as belonging
to a given structure can be appropriately evaluated.” Ans. 3 (citing
Commowick 283—84). The Examiner also finds Commowick teaches “the
generated mean segmentation boundary is adapted (registered) to a patient (a
current image) using global affine transformation and local registration
techniques.” Id. (emphasis omitted) (citing Commowick 284). The
Examiner finds “the generated mean segmentation boundary is the
probability map” (i.e., the probability of each voxel belonging to each
structure) and transformations (i.e., a global affine transformation and a local
transformation) “are [] applied to the mean segmentation boundary
4
Appeal 2016-001305
Application 13/581,512
(probability map) to generate a transformed probability map.” Id. (citing
Commowick 284).
As to Gering, the Examiner finds it also teaches the disputed
limitation. Ans. 3^4. Specifically, the Examiner finds Gering teaches or
suggests creating a mean image, determining voxel probabilities, and
creating a mask (i.e., a probability map), and transforming the mask. Id.
(citing Gering H 63, 73-74, 80, 83-88, 90).
Based on this record, we are constrained to agree with Appellants.
We disagree with the Examiner’s finding that Commowick’s mean
segmentation boundary is a probability map — for example, the claim
language clearly provides a probability map depicts a probability that each
voxel represents the volume of interest and a probability that each voxel
represents background, in addition to a mean segmentation boundary. App.
Br. 26—27. The cited portions of Commowick fail to teach or suggest that a
transformed probability map is generated — rather, once a patient image is
registered, a patient image is automatically segmented. See Commowick
284. Furthermore, Commowick fails to teach or suggest the transformed
probability map is generated “with the determined transform” because there
is no teaching that the mean segmentation boundary is used to register the
probability map and the new patient image, as is recited in the claim
language. See id.', App. Br. 26—27. We also find that the cited portions of
Gering fail to teach or suggest generating a transformed probability map
based on the determined transform. Gering || 63, 73—74, 80, 83—88, 90.
Furthermore, the Examiner’s findings fail to explain sufficiently how
Gering’s mask meets the requirements of a probability map.
5
Appeal 2016-001305
Application 13/581,512
(2) Probability may
Appellants argue claim 17 claims statutory subject matter under
§101. Specifically, Appellants argue (i) “claim 17 depends from claim 10,
and thus contains all of the limitations of claim 10” and (ii) the Examiner
has provided no evidence to support the rejection and what is provided is
conclusory. (App. Br. 23).
The Examiner finds claim 17 is directed to an abstract idea “because
the cited ‘a probability map’ is only an arrangement of data and is neither
process, machine, manufacture, nor composition of matter.” Final Act. 4;
Ans. 2.
We agree with the Examiner’s findings and adopt them as our own.
Claim 17 is not a dependent claim, but rather is a product-by-process claim.
“[Ejven though product-by-process claims are limited by and defined by the
process, determination of patentability is based on the product itself. The
patentability of a product does not depend on its method of production.” In
re Thorpe, 111 F.2d 695, 698 (Fed. Cir. 1985) (citations omitted). We agree
a probability map is an abstract idea and is only an arrangement of data. We
find the Examiner’s reasoning is sufficiently expressed.
CONCLUSION
Based on our above findings, we do not sustain the Examiner’s § 103
rejection of claims 1 and 10 (and claims 3—8 and 11—15, which depend
therefrom respectively), as well as claim 22. The Examiner does not show
that Koptenko cures the deficiencies of Commowick and Gering, and thus,
we also do not sustain the Examiner’s §103 rejection of claims 19—21 and 23
over Commowick, Gering, and Koptenko. We summarily sustain the
6
Appeal 2016-001305
Application 13/581,512
Examiner’s § 103 rejection of independent claims 16—18. We sustain the
Examiner’s § 101 rejection of claim 17 based on the above discussion.
DECISION
We reverse the Examiner’s § 103 rejections of claims 1, 3—8, 10-15,
and 19-23.
We affirm the Examiner’s § 103 rejection of claims 16—18.
We affirm the Examiner’s § 101 rejection of claim 17.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED-IN-PART
7