Ex Parte Van Muiswinkel et al

Board of Patent Appeals and Interferences

Oct 10, 2008

10150136 (B.P.A.I. Oct. 10, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte ARIANNE VAN MUISWINKEL and JOHAN VAN DEN BRINK
__________

Appeal 2008-4211
Application 10/150,136
Technology Center 3700
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Decided: October 10, 2008
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Before TONI M. SCHEINER, DONALD E. ADAMS, and JEFFREY N.
FREDMAN, Administrative Patent Judges.

FREDMAN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a method
for determining scan parameters for a current scan volume which the
Examiner has rejected as anticipated. We have jurisdiction under 35 U.S.C.
§ 6(b). We reverse.

Appeal 2008-4211
Application 10/150,136

Background
“In medical imaging, such as magnetic resonance imaging (MRI) or
computer tomography (CT), an image of a section or slice of a region of
interest of a patient is reconstructed from the magnetic resonance signals
(MRI) or the X-ray beam projections (CT)” (Spec. 1). The Specification
notes that “[b]ecause of the variability in the selection of the most
appropriate angulation and off-center parameters of the imaging planes it is a
difficult task to achieve good reproducibility for scans of the same patient
which are repeated at different examination sessions at different times”
(Spec. 1).
Appellants teach “an improved technique for the prescription of
scanning parameters for tomographic imaging” (Spec. 3).
Statement of the Case
The Claims
Claims 9-15 and 21-25 are on appeal. We will focus on claim 9,
which is representative and reads as follows:

9. A method for determining scan parameters of a scanner for a
current scan volumetric image such that the current scan volumetric
image will match a prior scan volumetric image, the method
comprising:
generating a current reference scan image of a subject;
retrieving a prior scan volumetric image of said subject and
corresponding scan parameters of the scanner used to generate the
prior scan volumetric image from memory;
comparing the current reference scan image with the prior scan
volumetric image to determine orientational and positional differences
therebetween;
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modifying the retrieved prior scan parameters of the scanner in
accordance with the determined orientational and positional
differences;
conducting a diagnostic imaging scan of the subject using the
modified scan parameters of the scanner to generate the current scan
volumetric image that is matched with the prior scan volume images.

The prior art
The Examiner relies on the following prior art reference to show
unpatentability:
Xu et al. US 6,363,163 B1 Mar. 26, 2002

The issues
The rejection as presented by the Examiner is as follows:
Claims 9-15 and 21-25 stand rejected under 35 U.S.C. § 102(e) as
anticipated by Xu (Ans. 3).

35 U.S.C. § 102(e) anticipation rejection over Xu
The Examiner argues that the “Xu reference teaches an iterative
matching of the two sets of images where the scanner has the capability of
image reconstructing based on a number of input parameters” (Ans. 4). The
Examiner further contends that the “current application does not explicitly
claim the step of generating a separate third scan. The step of ‘conducting a
scan using the modified parameters’ does not distinguish the application
claims from the Xu reference, which clearly teaches the steps of iterative
matching and the image reconstruction process” (Ans. 4).
Appellants argue that “[o]nce the patient has been scanned using the
Xu procedure, the patient leaves the scanner and the scanner is used to scan
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a new patient” (App. Br. 11). Appellants contend that “[b]y contrast, while
using the technique of the present application, the patient must remain in the
scanner after the patient is scanned and a first current image, particularly a
reference or survey image, is generated” (App. Br. 11). Appellants argue
that “[c]laim 9 emphasizes these distinctions over Xu by referencing three
images produced by three different scans: a prior scan image . . . a current
reference scan image . . . and a current scan volumetric image” (App. Br.
12).
In view of these conflicting positions, we frame the anticipation issue
before us as follows:
Does the disclosure of Xu teach a diagnostic method for determining
scan parameters which includes “conducting a diagnostic imaging scan of
the subject using the modified scan parameters of the scanner”?
Findings of Fact
1. Xu teaches a method “related to temporal analysis of medical
images and, in particular, to the analysis of computed tomographic images
using automated temporal subtraction” (Xu, col. 1, ll. 37-40).
2. Xu teaches that “First (step 10) and second (step 11) three-
dimensional images of a patient are obtained. The first and second images
typically correspond to current and previous images of the same subject.
The first and second images may also be two previous images of the same
subject” (Xu, col. 4, ll. 58-62).
3. Xu teaches that the “images may be obtained directly from a
scanner or may be obtained from a storage device. Typically the previous
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section images are from an earlier scan and have been stored” (Xu, col. 5, ll.
8-11).
4. Xu teaches that “[o]nce the portions of the images that contain
the anatomic feature are identified, the correspondence between the first and
second images is determined” (Xu, col. 6, ll. 27-29).
5. Xu teaches that “[a]fter the establishment of the one-to-one
section correspondence in the current and previous images . . . the initial
registration of the paired section images is performed. . . . The initial
registration of the corresponding section images in the two scans included
two steps: a rotation correction and the determination of vertical and
horizontal shifts of the previous section image relative to the current section
image” (Xu, col. 7, ll. 34-44).
6. Xu teaches that the “input parameters may be adjusted to
produce a better match of the current and previous images” (Xu, col. 10, ll.
1-2).
Discussion of 35 U.S.C. § 102(e) anticipation rejection over Xu
While Xu teaches obtaining reference scans and comparing a
reference scan with a current scan (FF 1-6), we agree with Appellants that
Xu fails to anticipate claim 9 because Xu does not teach the final step of
“conducting a diagnostic imaging scan of the subject using the modified
scan parameters of the scanner to generate the current scan volumetric image
that is matched with the prior scan volume images” (Claim 9). In order to
anticipate, the prior art must teach all of the limitations of the claim. See In
re Omeprazole Patent Litigation, 483 F.3d 1364, 1371 (Fed. Cir. 2007).
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Application 10/150,136

(“Anticipation requires disclosure of each and every claim limitation in a
single prior art reference, either explicitly or inherently.”)
We are not persuaded by the Examiner’s argument that the
“reconstruction step is based on the modified parameters to generate newly
reconstructed images (col. 9 lines 65-67, col. 10 lines 1-3) and this
adequately meets the claimed subject matter of conducting a scan using
modified parameters to generate a new image” (Ans. 4). The portion of Xu
cited by the Examiner refers to reconstructing the images, not “conducting a
diagnostic imaging scan of the subject using modified scan parameters” as
required by claim 9. In fact, Xu does not modify the parameters on the
scanner prior to the scan, as in claim 9, instead, Xu matches already scanned
images (see Xu, col. 8, ll. 10-34).
We are also not persuaded by the Examiner’s argument that “Xu
further teaches repeating the method with the newly reconstructed images”
(Ans. 5). Xu taught repetition so that the “input parameters may be adjusted
to produce a better match of the current and previous images” (Xu, col. 10,
ll. 2-3). Xu did not teach repetition in order to “conduct[] a diagnostic
imaging scan of the subject using the modified scan parameters” (claim 9).
We therefore reverse the 35 U.S.C. § 102(e) anticipation rejection of
claims 9-15 and 21-25 as anticipated by Xu.
CONCLUSION
In summary, we reverse the 35 U.S.C. § 102(e) anticipation rejection
of claims 9-15 and 21-25 as anticipated by Xu.

REVERSED
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