Ex Parte Sirohey et alDownload PDFPatent Trial and Appeal BoardFeb 11, 201612118628 (P.T.A.B. Feb. 11, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/118,628 05/09/2008 45436 7590 02/16/2016 DEAN D, SMALL THE SMALL PA TENT LAW GROUP LLC 225 S. MERAMEC, STE. 725T ST. LOUIS, MO 63105 FIRST NAMED INVENTOR Saad Ahmed Sirohey 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. 227710 (553-1473) 1414 EXAMINER BRUTUS, JOEL F ART UNIT PAPER NUMBER 3777 NOTIFICATION DATE DELIVERY MODE 02/16/2016 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): Docket@splglaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte SAAD AHMED SIROHEY, PAULE. LICATO, GOP ALB. A VINASH, and TAMANNA N. BEMBENEK Appeal2013-010889 Application 12/118,628 Technology Center 3700 Before MICHAEL L. HOELTER, THOMAS F. SMEGAL, and ERIC C. JESCHKE, Administrative Patent Judges. JESCHKE, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Saad Ahmed Sirohey et al. (Appellants) seek review, under 35 U.S.C. § 134(a), of the Examiner's decision to reject claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b ). We AFFIRM-IN-PART. BACKGROUND The disclosed subject matter "relates generally to angiography, and more particularly to imaging of aneurysms." Spec. i-f 2. Claims 1, 8, and 17 are independent. Claim 1 is reproduced below: Appeal2013-010889 Application 12/118,628 1. A method to image a patient, the method compnsmg: accessing four-dimensional image data that tracks a flow of a previously injected contrast agent through a vasculature; determining vessel flow information of the vasculature; determining mechanical force attributes on a wall of an aneurysm from the vessel flow information using a fluid dynamics model wherein the mechanical force attributes vary in proportion to velocity of fluid in the vasculature in a direction perpendicular to a plane of shear in the vasculature; generating a three-dimensional image of the vasculature using the four-dimensional image data; and visually presenting the determined mechanical force attributes m the three- dimensional image using visual cues to indicate degree of mechanical force attributes. REJECTION ON APPEAL Claims 1-20 are rejected under 35 U.S.C. § 103(a) as unpatentable over Weese (US 2008/0294038 Al, published Nov. 27, 2008), Tang (US 2006/0149522 Al, published July 6, 2006), Murphy (US 2005/0187461 Al, published Aug. 25, 2005), and Hashimoto (US 6,500, 118 B 1, issued Dec. 31, 2002). 2 Appeal2013-010889 Application 12/118,628 DISCUSSION A. Independent Claims 1 and 8 (and Dependent Claims 2-7 and 9-16) Appellants contend that, in the rejection, the Examiner fails to address the limitation in claim 1 reciting "visually presenting the determined mechanical force attributes in the three-dimensional image using visual cues to indicate degree of mechanical force attributes." See Br. 12. Appellants argue that there is "absolutely no reference in the text of the Office Action to the visually presenting limitation of Claim 1." Id. at 12-13. Appellants thus contend that the Examiner has not set forth a prima facie case of obviousness for claim 1. Id. at 13. Appellants rely on a similar argument for independent claim 8, which recites, inter alia, "visually presenting the determined mechanical force attributes in three-dimensional rendition of the volumetric data using visual cues to indicate degree of mechanical force attributes." Id. at 19 (stating that "the Office Action has absolutely no reference to the claimed visual presenting feature of Claim 1 or Claim 8."). In response, the Examiner states: Examiner submits that rejections do not have to quote the claim limitations verbatim and points to at least pp.3--4 that has Tang teaching the very well-known limitation involving 3D imaging [more importantly, the elements of what are to be displayed are taught in the mechanical distribution that includes structural stress/strain distribution(s): see 0055---0057, 0101; measuring vessel stiffness of the wall of the aneurysm as shown in fig. 13 and 0100---0101]. A thorough reading of Tang would indicate that such a well-known teaching is present in the various figures and associated descriptions. Ans. 8. 1 1 With the statement regarding "pp.3--4," the Examiner appears to 3 Appeal2013-010889 Application 12/118,628 We agree with Appellants that the Examiner has not provided sufficient explanation of the findings regarding the "visually presenting" limitations to present a prima facie case of obviousness as to claims 1 and 8. Pages 3 and 4 of the Final Office Action, referenced by the Examiner (Ans. 8), provide, for example, that Tang "discloses computationally obtaining mechanical distribution( s ), such as stress/ strain distribution( s ), " and discloses "an output of stress distribution of selected locations" in vasculature. This discussion, however, addresses the "determining mechanical force attributes" limitations of claim 1 and claim 8, rather than the "visually presenting" limitations.2 Notably, in the paragraph preceding the findings relied upon, the Examiner discusses how Weese does not disclose the "determining mechanical force attributes" limitations. See id. at 3 (second full paragraph). Although the Examiner highlights disclosures in Tang that generally relate to visualization (Ans. 8 (citing, e.g., Tang i-fi-f 100 and 101 (discussing Figs. 16-18), Fig. 13)), the Examiner does not make sufficiently specific findings to provide notice of how teachings or knowledge in the art allegedly satisfy the entirety of the "visually presenting" limitations. See In re Jung, 637 F.3d 1356, 1362 (Fed. Cir. 2011) (stating that the Office "satisfies its initial burden of production by 'adequately explain[ing] the shortcomings it perceives so that the applicant is properly notified and able to respond'" refer to pages 3 and 4 of the Final Office Action, which contain certain findings regarding Tang. 2 Although pages 2 through 5 of the Final Office Action do not address claim 8, the Examiner relies on that discussion for the relevant language in claim 8. See Final Act. 7. 4 Appeal2013-010889 Application 12/118,628 (quoting Hyatt v. Dudas, 492 F.3d 1365, 1370 (Fed. Cir. 2007))). Thus, on the current record, we do not sustain the decision to reject claims 1 and 8, and also do not sustain the decision to reject claims 2-7 (which depend from claim 1) and claims 9-16 (which depend from claim 8). B. Dependent Claim 18 Claim 18 (which depends from claim 17) additionally recites "an apparatus operable to visually display the mechanical force attributes in three-dimensional rendition of the volumetric data using visual cues to indicate a degree of mechanical force attributes." Br. 24 (Claims App.). For this limitation, the Examiner relies on the same deficient findings and conclusions with regard to Tang as relied upon to address the "visually presenting" limitations in claims 1 and 8 (see supra Section A). See Final Act. 2-5 (addressing claims 1-3 and 17-20). Thus, for the same reasons discussed above, we do not sustain the decision to reject claim 18. C. Independent Claim 17 (and Dependent Claim 20) Although Appellants contend that "[t]he combined teachings of Weese, Tang, Murphy and Hashimoto fail to render obvious independent Claim[] 17" based on, inter alia, the arguments related to the "visually presenting" limitation in claim 1 (Br. 19), claim 17 does not recite a limitation similar to the "visually presenting" limitations (id. at 23-24 (Claims App.)). Instead, as discussed above (see supra Section B), claim 18 (which depends from claim 17) recites a limitation similar to the "visually presenting" limitations. Thus, the basis to reverse the rejection of claims 1- 16 discussed above does not apply to claim 17. We tum now to arguments addressing claim 1 that are, based on similar language recited in claim 17, relied upon to argue the patentability of claim 17. 5 Appeal2013-010889 Application 12/118,628 First, Appellants contend that the relied-upon prior art does not satisfy the "mechanical force analyzer" limitation recited in the last clause of claim 17 for the same reasons that the art allegedly does not satisfy the "determining mechanical force attributes" limitation recited in the third clause of claim 1. Br. 19-20. In the relevant arguments for claim 1, Appellants contend that the Examiner errs by relying on Tang to satisfy this limitation because "[t]he systems of Weese and Tang are so fundamentally different that the analysis technique implemented in Tang could not utilize the data collected by Weese to perform the process described in Tang, and instead would render Weese inoperative for its intended purpose." Id. at 13. Appellants argue that "Tang's mechanical analysis process significantly differs from the model of Weese" because "Tang's mechanical analysis process is configured to operate upon a different type of data and to identify a different characteristic of the human anatomy." Id. at 14. Appellants argue that "Weese describes a model based analysis system and method that is premised upon a particular type of data, namely the collection of CT data or X-ray data" whereas "Tang does not teach or suggest any manner by which Tang's 3D organ model may be constructed utilizing X-ray or CT data" and, instead, the "models and the image data [in Tang] are premised upon the assumption that the underlying data sets provide the types of information available through Ultrasound or MRI imaging." Id. at 13, 15. Appellants argue that the Examiner "has failed to reconcile the fact that the applied references fail to provide any explanation or suggestion as to how Tang's 3D PSI models would be utilized with the specific X-ray data collected by Weese" and thus "no legitimate reason has been set forth with a rational underpinning as to why the person of ordinary skill would entirely 6 Appeal2013-010889 Application 12/118,628 replace Weese's existing model based flow analysis algorithm with the 3D model analysis of Tang." Id. at 15. The Examiner states that "the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references." Ans. 9. "Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art." Id. The Examiner states that Weese "disclose[ s] the advancement of contrast agent in a vasculature system can be imaged by various modalities such as interventional x-ray, MRI and ultrasound, just as Tang's data can also be ultrasound or MRI." Id. (citing Weese i-fi-15, 12, 48 and Tang i-f 48, claim 9). 3 On the record here, Appellants have not shown error in the Examiner's position that the systems disclosed in both Weese and Tang can utilize MRI and ultrasound data. See Ans. 9; see also Tang i148, Weese i15. Because the first set of arguments rely on the alleged different types of data used by Weese and Tang as a factual premise, we are not apprised of error based on these arguments. See Br. 13-15. Second, Appellants contend that the relied-upon prior art does not satisfy the "vessel flow analyzer" limitation recited in the fifth clause of claim 17 for the same reasons that the art allegedly does not satisfy the "four-dimensional image data" limitation recited in the first clause of claim 1. Br. 19. The Examiner relies on Murphy for these limitations. Final Act. 4. Appellants contend that "[t]he reference to Murphy does not provide any 3 Appellants did not file a reply brief. 7 Appeal2013-010889 Application 12/118,628 legitimate reason to modify Weese' s system to utilize four dimensional image data, as opposed to the X-ray data that Weese originally describes." Br. 19. In the relevant arguments for claim 1, Appellants similarly contends that the Examiner "offers no legitimate reason or manner by which a person of ordinary skill would utilize 4 D image data in connection with the models of Weese or Tang" and, rather, "simply alleges that because 4D information is known for other uses, such as by Murphy, that it would be obvious to use 4D data in place of Weese's 3D data." Id. at 16. Appellants also contend that "Weese and Tang only describe how to use their data sets, not a 4D data set that tracks contrast agent through vasculature" and that "Murphy does not describe a method for determining vessel flow information or mechanical forces based on 4D image data." Id. The Examiner responds that "it is well-known that four dimensional images are 3D images with the component of time, which would provide better qualitative and quantitative information to diagnose effectively all planes of view since the temporal component is an important element in diagnosis." Ans. 10. We are not apprised of error based on Appellants' second set of arguments. Although Appellants contend that the Examiner has failed to provide any "legitimate reason" to modify Weese and Tang with the teachings of Murphy (Br. 16, 19), Appellants do not persuasively address the reasoning provided by the Examiner (Final Act. 5 (stating that "using four dimensional image[s]" "completes examination through increased perspective from volume data, better qualitative and quantitative information to diagnose effectively and all planes of view reproducible"); Ans. 10). We determine that the Examiner's reasoning supports a prima facie case of 8 Appeal2013-010889 Application 12/118,628 obviousness of claim 17. See Jn re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). By not persuasively addressing the Examiner's reasoning, Appellants have not shown error in the relevant findings or the conclusion as to obviousness. As to the arguments regarding the teachings of Weese and Tang compared with those of Murphy, nonobviousness cannot be established by attacking references individually when the rejection is based on a combination of prior art. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986); Ans. 11. Moreover, Appellants have not shown that the proposed modifications are beyond the level of skill of one of ordinary skill in the art. See KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 417-18 (2007). Third, addressing the rejection of claim 1, Appellants contend that "there is absolutely no legitimate reason with any rational underpinning as to why one of ordinary skill would modify Weese's system to generate 3D images from []4D image data (which Weese does not have) based on Hashimoto's use of 3D images from a 4D volumetric memory of ultrasound data." Br. 16-17. 4 In support, Appellants argue that "Hashimoto concerns 4 The Examiner addresses claims 1-3 and 17-20 collectively, finding, inter alia, that Hashimoto "discloses an image processor for forming a three- dimensional image from []four-dimensional image data." Final Act. 4 (citing Hashimoto, col. 6, 11. 5-7, col. 8, 11. 46-48, col. 11, 11. 33--40). Claim 1 recites "generating a three-dimensional image of the vasculature using the four-dimensional image data"; claim 17, however, does not have a similar limitation. Br. 21, 23-24 (Claims App.). Although Appellants generally state that "[t]he combined teachings of Weese, Tang, Murphy and Hashimoto fail to render obvious independent Claim[] 17 for the reasons set forth above in connection with Claim 1," Appellants do not summarize this argument addressing Hashimoto when arguing the patentability of claim 1 7. 9 Appeal2013-010889 Application 12/118,628 3D Ultrasound imaging, in which 3D Ultrasound images are formed from a four dimensional volume memory file" and "has absolutely nothing to do with model based flow analysis, nor image based computational mechanical analysis, as in Weese and Tang." Id. at 16. In response, the Examiner states that "Hashimoto discloses an image processor for forming a three-dimensional image from []four-dimensional image data." Ans. 11 (citing Hashimoto, col. 6, 11. 5-7, col. 8, 11. 46-48, col. 11, 11. 33--40); see also Final Act. 4 (same finding). To the extent this argument applies to the rejection of claim 17 (see supra note 4), we are not apprised of error. Similar to the prior set of arguments, here, Appellants contend that the Examiner has failed to provide any "legitimate reason" to apply the teachings of Hashimoto, but do not persuasively address the reasoning provided (Final Act. 5 (stating that one of ordinary skill in the art would have modified Weese, Tang, and Murphy with the relied-upon teachings of Hashimoto "in order to diagnose the vasculature with an increase[ d] visualization"). We determine that the Examiner's reasoning supports a prima facie case of obviousness of claim 17. See Oetiker, 977 F.2d at 1445. By not persuasively addressing the Examiner's reasoning, Appellants have not shown error in the relevant findings or the conclusion as to obviousness. As to the arguments regarding the teachings of Weese and Tang compared with those of Hashimoto, nonobviousness cannot be established by attacking references individually when the rejection is based on a See Br. 19-20. Regardless, for completeness, we address this argument in the context of the rejection of claim 1 7. 10 Appeal2013-010889 Application 12/118,628 combination of prior art. See Jn re Merck & Co., 800 F.2d at 1097. Moreover, Appellants have not shown that the proposed modifications are beyond the level of skill of one of ordinary skill in the art. See KSR, 550 U.S. at 417-18. For these reasons, we sustain the decision to reject claim 17. Because Appellants do not separately argue claim 20, which depends from claim 17 (Br. 20), we also sustain the decision to reject claim 20. D. Dependent Claim 19 Claim 19 (which depends from claim 17) additionally recites "wherein the fluid dynamics model further comprises: a Navier-Stokes fluid dynamics model." Br. 24 (Claims App.). Addressing this limitation (and the same limitation in claim 2), the Examiner finds, "Tang discloses the fluid dynamics [model] is Navier-Stokes." Final Act. 4 (citing Tang i-fi-153, 122). Appellants contend that "[ t ]he Office Action recognizes that Weese' s model based flow analysis algorithm differs from the claimed method" and that the Examiner "seeks to entirely remove Weese's model based flow algorithm and replace it with a Navier-Stokes model taught by Tang." Br. 17 (addressing claim 2); see also id. at 20 (relying on the same argument for claim 19). Appellants contend that "Weese is concerned with developing custom-built flow models (see for example, paragraph 0038) for specific areas of the vasculature" and that "[t]here is simply no rational reason to replace the custom-built models described by Weese which are specifically tailored for specific areas of the vasculature with the non-customized Navier-Stokes fluid dynamics model." Id. at 17. According to Appellants, "modifying Weese as suggested in the Office Action would instead render Weese inoperative for its intended purpose." Id. 11 Appeal2013-010889 Application 12/118,628 The Examiner responds that "an ordinary artisan would recognize [that] the well-known Navier Stokes fluid dynamic model can be substituted in order to assess the disease." See Ans. 11 (citing Tang i-fi-147, 58). Similar to the third set of arguments regarding claim 17, here, Appellants contend that the Examiner has failed to provide any "rational reason" to modify Weese with Tang as proposed, but do not persuasively address the reasoning provided by the Examiner (Ans. 11 ). We determine that the Examiner's reasoning supports a prima facie case of obviousness of claim 19. See Oetiker, 977 F.2d at 1445. By not persuasively addressing the Examiner's reasoning, Appellants have not shown error in the relevant findings or the conclusion as to obviousness. As to the argument that the proposed modification would render Weese inoperative for its intended purpose, we are not apprised of error because we do not agree that the "intended purpose" of the device( s) disclosed in Weese is the use of "custom-built" (as opposed to "non- customized") models, as asserted by Appellants. See Br. 17 (citing Weese i138). Here, Appellants have identified an apparent difference in the manner in which the purpose of Weese would, in the modified device, be performed, but have not shown that the proposed modification would undermine the purpose of Weese-providing analysis of blood flow in vessels (Weese Abstract, i-fl). Cf In re Gordon, 733 F.2d 900, 902 (Fed. Cir. 1984) (reversing a rejection because modifying the prior art by turning a filter upside down would render it incapable of filtering). For these reasons, we sustain the decision to reject claim 19. 12 Appeal2013-010889 Application 12/118,628 DECISION We REVERSE the decision to reject claims 1-16 and 18 under 35 U.S.C. § 103(a), and AFFIRM the decision to reject claims 17, 19, and 20 under 35 U.S.C. § 103(a). 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 Ssc 13 Copy with citationCopy as parenthetical citation