Ex Parte Sakai

Patent Trial and Appeal Board

Oct 13, 2016

12676582 (P.T.A.B. Oct. 13, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/676,582 03/04/2010
74384 7590
Cheng Law Group, PLLC
1133 13th St. N.W.
Suite C2
Washington, DC 20005
10/13/2016
FIRST NAMED INVENTOR
Takihito Sakai
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.
SUT-0470 3529
EXAMINER
PATEL,NEHA
ART UNIT PAPER NUMBER
3686
MAILDATE DELIVERY MODE
10/13/2016 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte T AKIHITO SAKAI
Appeal2014-004058 1
Application 12/676,582
Technology Center 3600
Before ANTON W. PETTING, MICHAEL W. KIM, and AMEE A. SHAH,
Administrative Patent Judges.
KIM, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF CASE
This is an appeal from the final rejection of claims 1-10. We have
jurisdiction to review the case under 35 U.S.C. §§ 134 and 6.
The invention relates generally to a radiographic apparatus that carries
out radiographic imaging using a subtraction process. Spec. 1.
1 The Appellants identify "Shimadzu Corporation" as the real party in
interest. App. Br. 2.
Appeal2014-004058
Application 12/676,582
Claim 1 is illustrative:
1. A radiographic apparatus having a radiation emitting
device for emitting radiation toward a patient, and a radiation
detecting device for detecting radiation transmitted through the
patient, to carry out radiation image pickup by obtaining
radiographic images based on the detected radiation, the
radiation emitting device being constructed to emit, as switched
back and forth, radiation corresponding to a first voltage value
and radiation corresponding to a second voltage value lower than
the first voltage value, the radiation detecting device being
constructed to detect alternately the radiation corresponding to
the first voltage value and the radiation corresponding to the
second voltage value, and to output alternately radiation
detection signals corresponding to the first voltage value and
radiation detection signals corresponding to the second voltage
value, the apparatus comprising a high-voltage image acquiring
device for acquiring high-voltage images based on the radiation
detection signals corresponding to the first voltage value
detected, a low-voltage image acquiring device for acquiring
low-voltage images based on the radiation detection signals
corresponding to the second voltage value detected, a composite
image generating device for generating a composite high=voltage
image for every time of the same first voltage as a frame in time
between a plurality of frames to be composite, or generating a
composite low-voltage image for every time of the same second
voltage as a frame in time between a plurality of frames to be
composite, and a subtraction processing device for carrying out
a subtraction process concerning the high-voltage images and the
low-voltage images in the frames same in time, thereby to
acquire subtraction images.
Claims 1-10 are rejected under 35 U.S.C. § 112, second paragraph,
for indefiniteness; and
Claims 1-10 are rejected under 35 U.S.C. § 102(b) as anticipated by
Endo (US 2006/0289774 Al, pub. Dec. 28, 2006).
We REVERSE.
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Appeal2014-004058
Application 12/676,582
ANALYSIS
Indefiniteness Rejection of Claims 1-10
We are persuaded the Examiner erred in asserting that the recited
relative terms recited in independent claim 1, "high-voltage" and "low-
voltage," are indefinite. App. Br. 4--5; Reply Br. 1-2. The Examiner asserts
that "[t]he terms 'a high-voltage' and 'a low-voltage' are relative terms
which renders the claim indefinite. The terms 'a high-voltage' and 'a low-
voltage' are not defined by the claim .... " Ans. 4. While we agree that
"high-voltage" and "low-voltage" are relative terms, we disagree that they
are not defined by the claims. Specifically, independent claim 1 recites
"radiation corresponding to a first voltage value and radiation corresponding
to a second voltage value lower than the first voltage value" and "a high-
voltage image acquiring device for acquiring high-voltage images based on
the radiation detection signals corresponding to the first voltage value
detected, a low-voltage image acquiring device for acquiring low-voltage
images based on the radiation detection signals corresponding to the second
voltage value detected." Emphases added. Thus, when the aforementioned
claim limitations are considered in the aggregate, the "high-voltage" needs
to be higher than the "low-voltage." While that may be broad, that is not
indefinite. In re Gardner, 427 F.2d 786, 788 (1970).
We are persuaded also that the Examiner erred in asserting that
various usages of the phrase "frame in time" is indefinite in the following
limitation of independent claim 1:
a composite image generating device for generating a composite
high-voltage image for every time of the same first voltage as a
frame in time between a plurality of frames to be composite, or
generating a composite low-voltage image for every time of the
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Appeal2014-004058
Application 12/676,582
same second voltage as a frame in time between a plurality of
frames to be composite, a subtraction processing device for
carrying out a subtraction process concerning the high-voltage
images and the low-voltage images in the frames same in time,
thereby to acquire subtraction images.
App. Br. 5---6; Reply Br. 2. The Examiner asserts that "[i]t is unclear to the
examiner that how composite image for same voltage (i.e. either high or low
voltages) can be in same frame. Since claim does not define the term
'frame', examiner interprets, frame as time frame and hence how can the
frames can be in same in time." Ans. 4. When read in light of the
Specification, however, the aforementioned claim limitation becomes clear.
Specifically, Figure 7 of the Specification discloses the following:
Figure 7 is a schematic view showing data flows.
Thus, when we annotate the aforementioned claim limitation in light of
Figure 7, we arrive at the following:
a composite image generating device for generating a composite
high-voltage image [H' at 2m+ 1] for every time of the same first
voltage as a frame in time between a plurality of frames to be
composite [Hat 2m] [Hat 2m+2], or generating a composite low-
voltage image [L' at 2m] for every time of the same second
voltage as a frame in time between a plurality of frames to be
composite [L at 2m-1] [L at 2m+ 1], a subtraction processing
device for carrying out a subtraction process concerning the
high-voltage images [Hat 2m] and the low-voltage images [L' at
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Appeal2014-004058
Application 12/676,582
2m] in the frames same m time [2m], thereby to acqmre
subtraction images [BJ.
For the last phrase, because the term "or" is used earlier, it could also be
annotated as "a subtraction processing device for carrying out a subtraction
process concerning the high-voltage images [H' at 2m+ lJ and the low-
voltage images [Lat 2m+ lJ in the frames same in time [2m+ lJ, thereby to
acquire subtraction images [BJ." In any case, however, we are persuaded
that the aforementioned claim limitation is definite for these reasons.
We do not sustain the rejection of claims 1-10 under 35 U.S.C. § 112,
second paragraph, for indefiniteness.
Anticipation Rejection of Claims 1-10
We are persuaded the Examiner erred in asserting Endo anticipates
independent claim 1. App. Br. 6-13. As an initial matter, the Appellant and
the Examiner agree essentially that Endo discloses the following:
"""d·X "'< ~... . . ...:, """'f""'"··"""···"'"~ r······.·.·.·.·.···1
~-ss- "'o~ .. ~ph,.,,t~-i Vl ! l V2. !
:>.m.~ge:;;s ! ""'"' ~ ! -"'~ : t ....... ,.............. ....... ...... 1 ......
$U~~~~~~::.~~ ·'"1r-!-w."'"'""~J i~1a9~~ . .,,. : · --~: ~
r· ... -. .... v ......... 1 f""""""""""'I:
!Vi~ \v2!
L..r.J LT".l
·c;~}[~J
The Figure shows a schematic view of purported data flows of Endo.
App. Br. 10. Where the Examiner and the Appellant disagree is as to
whether the aforementioned disclosure of Endo corresponds properly to the
following limitation of independent claim 1:
a composite image generating device for generating a composite
high-voltage image for every time of the same first voltage as a
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Appeal2014-004058
Application 12/676,582
frame in time between a plurality of frames to be composite, or
generating a composite low-voltage image for every time of the
same second voltage as a frame in time between a plurality of
frames to be composite, a subtraction processing device for
carrying out a subtraction process concerning the high-voltage
images and the low-voltage images in the frames same in time,
thereby to acquire subtraction images.
Emphasis added. The Appellant asserts that the aforementioned claim
limitation is illustrated essentially in Figure 7 of the Specification as follows,
and that a comparison of the two figures show clearly that they are not the
same, particular with respect to the recited limitation "in the frames same in
time":
(ol.~ 2.u~> :(~;.·?:." .2'm~~-1 }i((Yt.' lm·+~i)\ ~) .. t· ,.~w..-~-3 }){¢rt.. 2$:~·-t-~}
r··········: r"·--~-----...->~
~ ~~ ] ~~
: ........... -: :~ .......... ~
Figure 7 is a schematic view showing data flows.
The Examiner asserts essentially that the ambiguity with respect to the claim
"in the frames same in time" renders it indefinite, and that when construed
broadly, in the face of that ambiguity, for the purposes of evaluating the art,
Endo' s subtraction images B is the result of an operation for voltage images
measured "in the frames same in time."
We agree with the Appellant. As set forth above, we are unpersuaded
that the aforementioned claim limitation is indefinite, and agree with the
Appellant that Endo clearly discloses a subtraction process using images
from frames in different times, e.g., VI at 2m-1 and V2 at 2m, and not "in
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Appeal2014-004058
Application 12/676,582
the frames same in time," e.g., Hat 2m and L' at 2m, as required by
independent claim 1.
We do not sustain the rejection of independent claim 1, or claims 2-
10 each of which depend ultimately therefrom.
DECISION
We REVERSE the rejection of claims 1-10.
REVERSED
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