Ex Parte Reisman

Patent Trial and Appeal Board

Nov 20, 2017

13851612 (P.T.A.B. Nov. 20, 2017)

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.
13/851,612 03/27/2013 Charles A. Reisman 13857.0020 3398
42292 7590 11/22/2017
Pliip.sa Shahinian Rr friantnmasii PP
EXAMINER
Attn: Jeffrey M. Weinick AMARA, MOHAMED K
One Boland Drive
West Orange, NJ 07052 ART UNIT PAPER NUMBER
2886
NOTIFICATION DATE DELIVERY MODE
11/22/2017 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
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHARLES A. REISMAN
(Applicant: KABUSHIKI KAISHA TOPCON)1
Appeal 2016-007678
Application 13/851,612
Technology Center 2800
Before ROMULO H. DELMENDO, JULIA HEANEY, and
MICHAEL G. McMANUS, Administrative Patent Judges.
DELMENDO, Administrative Patent Judge.
DECISION ON APPEAL
The Appellant appeals under 35 U.S.C. § 134(a) from the Primary
Examiner’s final decision to reject claims 1—10, 15—24, and 29-41.2 We
have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 Kabushiki Kaisha Topcon is identified as the applicant (hereinafter
“Appellant”) and the real party in interest (Application Data Sheet filed
March 27, 2013; Appeal Brief filed September 1, 2015 (as revised
November 20, 2015), hereinafter “Appeal Br.,” 1).
2 Appeal Br. 6—30; Reply Brief filed August 9, 2016, hereinafter “Reply
Br.,” 1—5; Final Office Action entered May 18, 2015, hereinafter “Final
Act.,” 2-40; Examiner’s Answer entered June 16, 2016, hereinafter “Ans.,”
3-22.
Appeal 2016-007678
Application 13/851,612
I. BACKGROUND
The subject matter on appeal, in one aspect, relates to a non-transitory
computer-readable medium that stores a computer program for use in optical
coherence tomography (OCT) (Specification filed March 27, 2013,
hereinafter “Spec.,” 11). According to the Appellant, “OCT is an
interference-based technique that can be used to penetrate beyond a surface
of an observed light-scattering object (e.g., biological tissue) so that sub­
surface images can be obtained” {id. 12).
Representative claim 38 is reproduced from page 8 of the Claims
Appendix to the Appeal Brief, with key limitations emphasized, as follows:
38. A non-transitory computer-readable medium
storing computer program instructions for obtaining intensity
maps from optical coherence tomography interferogram data,
which, when executed on a processor, cause the processor to
perform operations comprising:
translating a particular one filtered output of a set of
filtered outputs, the set of filtered outputs being filtered from a
set of outputs representing optical coherence tomography
interferogram data, into a single estimated intensity value in a
depth direction Z for a particular X-Y plane location by
calculating an inverse cumulative distribution function for a pre­
selected probability to determine a corresponding value of the
particular one filtered output of the set of outputs, wherein each
particular one filtered output of the set of filtered outputs is
generated using a select frequency of a plurality offrequencies
representative of the beam of light and one or more single
estimated intensity values corresponding to one or more X-Y
plane locations are used for generating a two-dimensional image
intensity map of the object; and
translating a particular one filtered output of the set of
outputs into a three-dimensional data set with depth direction Z
intensity information for the particular X-Y plane location,
wherein one or more three-dimensional data sets are used for
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Application 13/851,612
generating one or more OCT cross-sectional images of the
object.
II. REJECTIONS ON APPEAL
The only rejections before us on appeal are:
A. Claims 38—40 under 35 U.S.C. § 102(a)(1) (AIA) as anticipated
by Bower et al.3 (hereinafter “Bower”);
B. Claims 1—6, 8—10, 15—20, 22—24, 29-37, and 414 under
35 U.S.C. § 103 (AIA) as unpatentable over Bower in view of
Wang et al.5 (hereinafter “Wang”); and
C. Claims 7 and 21 under 35 U.S.C. § 103 as unpatentable over
Bower, Wang, and Knighton et al.6 (hereinafter “Knighton”).
(Final Act. 8-40; Ans. 3.)
III. DISCUSSION
Rejection A. The Appellant relies on the same arguments for claims
38-40 (Appeal Br. 7—17). Therefore, we confine our discussion to claim 38,
which we select as representative pursuant to 37 C.F.R. § 41.37(c)(l)(iv).
As provided by this rule, claims 39 and 40 stand or fall with claim 38. In
addition, “any arguments or authorities not included in the appeal brief will
be refused consideration by the Board for purposes of the present appeal,” as
stated in the rule. Cf. In re Baxter Travenol Labs., 952 F.2d 388, 391 (Fed.
Cir. 1991) (“It is not the function of this court to examine the claims in
3 US 2011/0216956 Al, published September 8, 2011.
4 The statement of the rejection (Final Act. 13) includes claim 26. Claim 26,
however, has been canceled (Amendment filed March 23, 2015).
5 US 2011/0044524 Al, published February 24, 2011.
6 US 7,301,644 B2, issued November 27, 2007.
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Application 13/851,612
greater detail than argued by an appellant, looking for nonobvious
distinctions over the prior art.”).
The Examiner finds that Bower describes every limitation recited in
claim 38 (Final Act. 8—11). In particular, the Examiner finds, inter alia, that
Bower discloses using spectral domain OCT, which is a technique known to
use spectral data, i.e., interferogram data (spectral realm) (id. at 9).
The Appellant argues that Bower teaches “volume data” (image
realm)—not “optical coherence tomography interferogram data” (spectral
realm), as required by claim 38 (Appeal Br. 7). According to the Appellant,
image data expressed in the spectral realm, as in claim 38, has a third
dimension (i.e., an axis corresponding to a function of wavelength, wave
number, or frequency) that corresponds to frequency, whereas image data
expressed in the image realm, as in Bower, has a third dimension (i.e., an
axis corresponding to a function of distance or length) that corresponds to
distance (id.). In support of this argument, the Appellant relies on certain
description in the Specification (| 29) and Drawings (Fig. 2) (id. at 9).
The Appellant’s argument lacks discernible merit and, therefore, fails
to identify reversible error in the Examiner’s rejection. In re Jung, 637 F.3d
1356, 1365 (Fed. Cir. 2011).
As a preliminary matter, we find that the Appellant’s Figure 2 is
described merely as one embodiment of the invention (^f 19, 29).
Therefore, the Appellant’s reliance on the disclosures relating to Figure 2 to
limit claim 38’s scope is misplaced. In re ICON Health and Fitness, Inc.,
496 F.3d 1374, 1379 (Fed. Cir. 2007) (“[A]s applicants may amend claims
to narrow their scope, a broad construction during prosecution creates no
unfairness to the applicant or patentee.”); In re Zletz, 893 F.2d 319, 321
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Application 13/851,612
(Fed. Cir. 1989) (“[DJuring patent prosecution when claims can be amended,
ambiguities should be recognized, scope and breadth of language explored,
and clarification imposed.” (citations omitted)).
Even if we assume that claim 38’s scope is as argued by the
Appellant, we find no error in the Examiner’s finding (Ans. 9; Final Act. 9)
that Bower describes spectral domain or spectral realm OCT (Bower 116).
According to the Examiner, spectral domain OCT uses spectral domain data
with Fourier transforms being inherent to the technique, which would
involve spectral frequency, wavelength, or wave number in the spectral
domain (Ans. 9). In addition, the Examiner correctly finds that Bower
discloses “volume data” in the context of either three dimensional or higher
dimensional data {id. at 10; citing Bower 133), from which a person skilled
in the art would have drawn a reasonable inference that the data may
additionally correspond to frequency. Other than a naked assertion that
Bower does not describe frequency domain (Appeal Br. 8—9), the Appellant
does not address the Examiner’s findings in any meaningful way.
The Appellant contends—without citation to any evidence—that
“applying Bower’s technique in the frequency domain (i.e., interferogram
data) would result in the production of noise and no meaningful output” {id.
at 9). But mere lawyer’s arguments or conclusory statements, which are
unsupported by concrete factual evidence, are entitled to little probative
value. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997).
The Appellant contends (Appeal Br. 11):
Bower is void of any teaching with respect to generating,
processing and/or operating directly with OCT interferogram
data and/or where image intensity maps are produced from a
single filtered output, generated from the interferogram data, that
is translated to a single representative value — “a single estimated
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Application 13/851,612
intensity value” — for generating the 2D image intensity map, as
currently claimed by Applicant.
As the Examiner finds (Final Act. 10; Ans. 10), the Appellant is incorrect
because Bower explicitly teaches collapsing 3D or “higher dimensional
data” with OCT interferometric systems to 2D data (see, e.g., Bower H 3, 4,
33).
The Appellant states that even assuming Bower teaches “an inverse
cumulative distribution function,” as recited in claim 38, such is not fatal to
patentability because this limitation is “not the focus of the novel features of
the pending claims” (Appeal Br. 10). We find that this statement constitutes
a waiver of any argument based on this limitation. Therefore, we do not
address it further.
For these reasons, and those given by the Examiner, we uphold
Rejection A.
Rejection B. For claim 1, in addition to the arguments against Bower
(Appeal Br. 17), the Appellant argues that “a person skilled in the art would
not be motivated to combine the teachings of Bower and Wang to generate
these features of the currently pending independent claims given the
disparate nature of the respective data sets in each reference” (id. at 21).
The Appellant, however, does not explain why a mere difference in the
respective contents of the data sets demonstrates reversible error in the
Examiner’s articulated reasoning (Final Act. 18) for combining the
references. Cf. In reLovin, 652 F.3d 1349, 1356—57 (Fed. Cir. 2011)
(explaining that more than mere conclusory or skeletal arguments are
required to warrant separate consideration).
The Appellant also provides arguments for various claims under
separate sub-headings (Appeal Br. 22—26). The arguments, however, are not
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Application 13/851,612
sufficiently different from those previously offered for other claims, merely
point out what the claims recite, or are based on conclusory statements.
Therefore, we also uphold the rejection of these claims.
Rejection C. Again, the Appellant relies on arguments that are not
sufficiently different from those previously offered for other claims, merely
point out what the claims recite, or are based on conclusory statements.
Therefore, we also uphold the rejection claims 7 and 21.
IV. SUMMARY
Rejections A through C are affirmed. Therefore, the Examiner’s final
decision to reject claims 1—10, 15—24, and 29-41 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1).
AFFIRMED
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