10882661 (P.T.A.B. Jun. 20, 2013)

Ex Parte Torre-Bueno et al

Patent Trial and Appeal BoardJun 20, 2013

10882661 (P.T.A.B. Jun. 20, 2013)

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. 10/882,661 06/30/2004 Jose De La Torre-Bueno 4062.29US01 2492 24113 7590 06/21/2013 PATTERSON THUENTE PEDERSEN, P.A. 4800 IDS CENTER 80 SOUTH 8TH STREET MINNEAPOLIS, MN 55402-2100 EXAMINER TSAI, TSUNG YIN ART UNIT PAPER NUMBER 2668 MAIL DATE DELIVERY MODE 06/21/2013 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 JOSE DE LA TORRE-BUENO and CYNTHIA B. PERZ ____________________ Appeal 2011-001799 Application 10/882,661 Technology Center 2600 ____________________ Before MARC S. HOFF, DAVID M. KOHUT, and JUSTIN BUSCH, Administrative Patent Judges. BUSCH, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-001799 Application 10/882,661 2 Appellants appeal under 35 U.S.C. § 134(a) from a non-final rejection of claims 1-25. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. Introduction According to Appellants, the invention “relates to storage and retrieval of large quantities of graphical data for computer image processing and display applications,” and more particularly to “a method of storing and retrieving digital images acquired by a computer-controlled digitizing microscope.” Spec. ¶ [0001]. STATEMENT OF THE CASE Exemplary Claim Claim 1, reproduced below, is illustrative of the claimed subject matter: 1 A method of storing a digital image acquired by a computer- controlled digitizing microscope, comprising: partitioning a microscopic image into a matrix of zelles, wherein each zelle comprises a discrete portion of the microscopic image and each zelle includes a plurality of pixels of the microscopic image; for each zelle, capturing attribute data descriptive of an associated zelle and capturing image data descriptive of a discrete portion of the microscopic image contained in the associated zelle; for each zelle, determining whether said zelle contains specimen content therein; classifying each zelle either partially or fully including specimen content therein as having information of interest and Appeal 2011-001799 Application 10/882,661 3 classifying each zelle not including any specimen content therein as not having information of interest; compressing the image data; storing the attribute data in a zelle database comprised of at least one zelle database file, each zelle database file being associated with at least one corresponding zelle; and storing the compressed image data in an image database comprised of at least one image file, wherein each image file is associated with a corresponding zelle database file. References Bacus Trueblood US 4,097,845 US 5,463,702 Jun. 27, 1978 Oct. 31, 1995 Foran Tadayon US 2002/0106119 A1 US 2003/0043852 A1 Aug. 8, 2002 Mar. 6, 2003 Rejections 1 Claims 1, 3-10, 12-17, 19-23, and 25 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Foran and Bacus. Ans. 7-14. Claims 2, 11, and 18 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Foran, Bacus, Trueblood, and Tadayon. Ans. 14-15. Claim 24 was only rejected under 35 U.S.C. § 112, second paragraph, which has been withdrawn, leaving no rejection before us. Ans. 15. 1 The rejection of claims 1-16 under 35 U.S.C. § 112, first paragraph and the rejection of claims 1-25 under 35 U.S.C. § 112, second paragraph have been withdrawn by the Examiner. Ans. 3. The Examiner erroneously included both rejections under 35 U.S.C. § 112 in the Grounds of Rejection section of the Answer. Ans. 5-6. However, in an Interview Summary, mailed on August 11, 2010, the Examiner stated “during preparing of the second Answer Examiner invariably copy the entire Final Office Action instead of just related grounds of rejection on appeal.” Examiner Interview Summary, mailed Aug. 11, 2010, p. 4. Therefore, we treat both rejections under 35 U.S.C. § 112 as withdrawn. Appeal 2011-001799 Application 10/882,661 4 ISSUE Among other arguments, Appellants assert neither Bacus nor Foran teach partitioning an image into a matrix of zelles or determining whether each zelle contains specimen content, as recited in claims 1, 10, and 17. App. Br. 13-18. Issue: Does the combination of Bacus and Foran teach “partitioning a microscopic image into a matrix of zelles,” as recited in independent claim 1 and similarly recited in independent claims 10 and 17? ANALYSIS We have reviewed the Examiner’s rejections in light of Appellants’ arguments that the Examiner has erred. We agree with Appellants’ conclusions. The Examiner initially found that Foran did not teach “partitioning a microscopic image into a matrix of zelles” and that Bacus taught this limitation. Ans. 9. Specifically, the Examiner found Bacus teaches breaking an image into “groups of pixels which form contiguous regions” (i.e., the pixels making up an individual red blood cell) and that each contiguous region is “arranged in a grid type.” Ans. 9. Appellants argue the Examiner’s construction is unreasonably broad and inconsistent with Appellants’ Specification. App. Br. 13-14. Appellants argue Bacus merely teaches a grouping of a blood cell’s boundary pixels from a portion of a viewed image. App. Br. 13. Appellants further assert that under the Examiner’s construction of zelle, there is no matrix of zelles and furthermore, there is no matrix of zelles that covers the entire scan region. App. Br. 13-14. Appeal 2011-001799 Application 10/882,661 5 In the Answer, the Examiner finds Foran teaches partitioning the image into a matrix of zelles and “Bacus is further evidenced that segmenting a microscopic image into ‘discrete portions’ or ‘zelles’ is well known and practiced.” Ans. 17-18. The Examiner apparently reads Appellants’ recited zelles on the “feature vectors” of Foran because the “search algorithm in Foran is viewed as a matrix computation.” Ans. 17. The Examiner states that a zelle “is a contiguous segment resulted from partitioning a scan region of a microscope slide into an array of segments . . . and all zelles collectively cover the entire area of the scan region.” Ans. 17. Appellants argue that the Examiner’s apparent construction of “zelle” continues to be both unreasonable and inconsistent with Appellants’ Specification. App. Br. 13-14; Reply 4. Appellants also point out that the claim recites that “each zelle comprises a discrete portion of the microscopic image and each zelle includes a plurality of pixels of the microscopic image.” Reply 4. Appellants argue Foran’s feature vectors are mathematical components of a model intended to identify a texture of a cell shape (rather than to segment an image) and cannot reasonably meet a limitation reciting a portion of an image, which includes pixels of that image. Reply 4. We agree with Appellants that neither Foran nor Bacus teaches partitioning an image into a matrix of zelles. According to the Examiner’s own construction, wherein each zelle includes multiple pixels and the matrix of zelles covers the entire area of the scan region (Ans. 17), the Examiner has not shown how either Foran’s feature vectors or Bacus’ pixels representing the red blood cells meet the recited limitation of “partitioning a microscopic image into a matrix of zelles.” Specifically, to the extent the Examiner finds that each red blood cell is a recited zelle, it is unclear what Appeal 2011-001799 Application 10/882,661 6 the Examiner asserts makes up the recited “matrix of zelles.” To the extent the Examiner relies on Foran for teaching a matrix of zelles, we do not see how Foran’s feature vectors, which are used as part of a mathematical model to determine textures, meet the recited zelles, each of which “comprises a discrete portion of the microscopic image and . . . includes a plurality of pixels.” Therefore, we do not sustain the Examiner’s rejection of claims 1, 10, and 17. Similarly, we do not sustain the rejection of dependent claims 2- 9, 11-16, 18-23, and 25, which each ultimately depends from one of independent claims 1, 10, and 17. DECISION For the above reasons, the Examiner’s rejection of claims 1-23 and 25 is reversed. 2 REVERSED ELD 2 As explained above, Claim 24 has no standing rejection in view of the Examiner’s withdrawal of the 35 U.S.C. § 112, second paragraph rejection, which was the only rejection made against claim 24 in the Non-Final Office Action mailed on September 21, 2009.