Ex Parte XuDownload PDFPatent Trial and Appeal BoardMay 9, 201814613471 (P.T.A.B. May. 9, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/613,471 02/04/2015 30743 7590 05/10/2018 WHITHAM, CURTIS & COOK, P.C. 11491 SUNSET HILLS ROAD SUITE 340 RESTON, VA 20190 FIRST NAMED INVENTOR Tianning Xu 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. 13240001Bl 6617 EXAMINER PENG, BO JOSEPH ART UNIT PAPER NUMBER 3786 MAIL DATE DELIVERY MODE 05/10/2018 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 TIANNING XU 1 Appeal2017-007953 Application 14/613 ,4 71 Technology Center 3700 Before DANIEL S. SONG, FREDERICK C. LANEY, and ARTHUR M. PESLAK, Administrative Patent Judges. SONG, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE The Appellant appeals under 35 U.S.C. § 134 the Examiner's final rejection of claims 22, 23, 26, 33-35, and 38--40 in the present application (App. Br. 4). Claims 1-21, 24, 25, 27-32, 36, and 37 have been canceled (id.). We are informed that this application is related to Serial No. 14/607,294 (App. Br. 3), which is the subject of Appeal No. 2017-008359. We have jurisdiction under 35 U.S.C. §§ 6(b) and 134. We AFFIRM-IN-PART. 1 Referred to as "Appellant" herein. The real party in interest is DermaGenesis, LLC (Appeal Brief (hereinafter "App. Br.") 2). Appeal2017-007953 Application 14/613,471 The claimed invention is directed to a method for measuring a wound (Abstract; Field of the Invention). Claims 23, 33, and 34 read as follows (App. Br. 19--20, Claims App'x): 23. A wound measurement method, comprising steps each of which is performed by an automated system that is a phone with an on-board camera, of: initializing the camera including initialized buffers for . . image processmg; obtaining captured frame data and converting to Bitmap form, converting to a gray picture and filtering out noise, edge detection processing, comprising using an obtained finger-touched point as a wound sample, and using neighboring location of a set of square marker objects as a normal skin sample, and performing Watershed edge detection; contour finding, followed by choosing all convex contours, drawing a result on a scratch buffer, finding a contour that encloses all other contours, and using the found contour as a boundary of the wound; finding the square marker objects and computing an average area of the square marker objects; computing an area of the wound, comparing the computed area to an average area of the square marker objects, and obtaining an absolute wound area measurement; displaying the absolute wound area measurement as a displayed result. 33. The method of claim 23, wherein the automated system includes a display screen that is finger-paintable. 34. The method of claim 33, wherein the automated system performs steps of displaying a highlighted area proposed as the wound area on the display screen, followed by receiving a finger- 2 Appeal2017-007953 Application 14/613,471 painted command from a medical staff person whereby the displayed highlighted area is revised. The Examiner rejects claims 22, 23, 26, 33-35, and 38--40 under 35 U.S.C. § I03(a) as obvious over the combination of Tarallo2 in view of Xu, 3 Riley, 4 Osterweil, 5 Ma, 6 and Suzuki7 (Final Office Action (hereinafter "Final Act.") 3). ANALYSIS Only those arguments actually made by the Appellant have been considered in this decision. Arguments that the Appellant could have made but chose not to make have not been considered and are deemed to be waived. See 37 C.F.R. § 4I.37(c)(l)(iv); In re Jung, 637 F.3d 1356, 1365- 66 (Fed. Cir. 2011); Ex parte Frye, 94 USPQ2d 1072, 1075-76 (BPAI 2010) (precedential). Claims 22, 23, 26, 35, and 38--40 The Examiner rejects claim 23, the sole independent claim on appeal, as unpatentable over Tarallo in view of Xu and Riley (Final Act. 3). The Examiner finds that both Tarallo and Xu disclose wound measurement 2 Processing of Digital Images of Cutaneous Ulcers Through Artificial Neural Networks, Brazilian Symposium on Computer Graphics and Image Processing, 20, Oct. 7-10, 2007. 3 US 2007/0276309 Al, pub. Nov. 29, 2007. 4 US 2012/0259230 Al, pub. Oct. 11, 2012. 5 US 6,567,682 B 1, iss. May 20, 2003. 6 US 2010/0063992 Al, pub. Mar. 11, 2010. 7 Estimating Object Region from Local Contour Configuration, 1st International Workshop on Visual Scene Understanding (2009). 3 Appeal2017-007953 Application 14/613,471 methods including most of the recited steps of claim 23 (Final Act. 3-5). The Examiner relies on Xu and Riley for disclosing use of markers and setting the region of interest, and Riley for disclosing a smart phone (Final Act. 4, 6). The Examiner also relies on Osterweil for disclosing initializing a camera, obtaining captured frame data, and converting to Bitmap format (Final Act. 6). The Examiner further relies on Ma for disclosing a smartphone used for manipulating a medical image (Final Act. 7). According to the Examiner, finger-touched/paint point (taught by Ma '992, or inherently and/or obvious by Riley '230), stylus shown by Xu '309 (fig. 2), and computer mouse inherently taught by Tarallo '2007 (page 1, the use of computer tools) are merely pointing devices for each system to control graphical user interface in computer systems which includes PDA, smartphone or computer. (Final Act. 7). In that regard, the Examiner finds that Xu discloses the use of an obtained touch point as a wound sample, and finding contours (Final Act. 8). The Examiner also relies on Suzuki for finding contours and performing Watershed edge detection (Final Act. 8). Based on the above findings with respect to the various prior art references, the Examiner concludes: It would have been prima facie obvious to one of ordinary skills in the art at the time of invention to modify the method/device of Tarallo [] to include the square finding features of Xu [] and Riley [] in order to identify the template and set the region of interest associated with the reference features on the template, to include the processing power of a smart phone of Riley [] in order to allow all smart phone user to have the ability to measure object size with their smart phone, and to including the bitmap format of Osterweil [] in order to use one common imaging file type, and to include the manipulation features of Ma 4 Appeal2017-007953 Application 14/613,471 [] in order to provide better imaging view, and to include watershed edge detection of Suzuki [] in order to ensure the segmentation is an enclosed contour. (Final Act. 8). The Appellant disputes the Examiner's findings and conclusion of obviousness with respect to claim 23 for various reasons. The Appellant does not separately argue dependent claims 22, 26, 8 35, and 38--40, and thus, these claims stand or fall with claim 23. We find the Appellant's arguments unpersuasive for the reasons discussed infra. Smartphones The Appellant argues that Tarallo fails to disclose any step recited in claim 23 on a smart phone (App. Br. 9), and that Tarallo's system architecture differs in various ways, including that it does not allow finger- touch point input, and requires a library of wound/non-wound colors for comparison (App. Br. 11 ). However, such arguments are unpersuasive because they are directed to Tarallo individually. As pointed out, the Examiner relies on Xu for disclosing a smart, portable device that can be used to detect features of a wound, and Riley that teaches a smart phone for recording wound features (Ans. 12). Moreover, as the Examiner explains, "finger-touched/paint point was taught by [smartphone of] Ma[], or is inherently and/or obvious by [smartphone of] Riley[], or stylus shown by Xu[] (fig. 2)." (Ans. 14). 8 We observe that claim 26 depends from claim 25, but claim 25 is not subject to the present appeal. 5 Appeal2017-007953 Application 14/613,471 Cameras The Appellant argues that "Tarallo relied on a Sony Cyber shot P-93 camera with 5.1 mega pixels, 3X optical zoom and 12X digital zoom," whereas Xu mentions a digital camera of 320x240 pixels, which is "technologically very different" than the camera of Tarallo (App. Br. 11 ). The Appellant argues that a person of ordinary skill in the art "would recognize that phone cameras are not equivalent to the Sony Cyber shot P- 93," because they are too small, and image quality would not be the same for use in "Sobel edge detection, RGB color analysis and pixel-by-pixel analysis on which Tarallo relies." (App. Br. 12). However, the Appellant appears to miss the point of the rejection, which is that digital cameras on cell phones are capable of taking images of wounds and a person of ordinary skill in the art would utilize an appropriate camera sufficient for the desired function as evidenced by the cameras disclosed in Tarallo and Xu. In that regard, as the Examiner explains, "both them are cameras. It is the idea of using camera for a specific purposes like taking a picture of a wound." (Ans. 19). Matlab The Appellant argues that "Tarallo's system built using Matlab 7.0 is inherently unable to phone-perform the steps of Claim 23" (App. Br. 10), is incapable of being loaded and used on a phone, and Matlab Mobile does not perform its calculations on a phone (App. Br. 14). The Appellant also points out that "no secondary reference teaches Matlab usage." (App. Br. 13). 6 Appeal2017-007953 Application 14/613,471 These arguments are misdirected because, as the Examiner explains, Examiner did NOT cite Matlab 7 running on smart phone as one of the requirement. Rather, the mathematical computation and the teachings of how to segment and how to detect the wound are obvious to one of ordinary skill in the art. And one of ordinary skill in the art could program such detection algorithms with programing languages that is compatible to the processor of a smartp hone. (Ans. 17; see also id. at 21). In addition, the Appellant's argument appears to be based on bodily incorporating the prior art systems together. However, "[ c ]ombining the teachings of references does not involve an ability to combine their specific structures." In re Nievelt, 482 F.2d 965,968 (CCPA 1973); see also In re Keller, 642 F.2d 413,425 (CCPA 1981) ("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. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art."). Contour-Finding The Appellant argues that "Tarallo fails to disclose contour-finding," and the Examiner "mistakenly confuses the Sobel edge detector (used in Tarallo) with contour-finding." (App. Br. 15). The Appellant points out that "Tarallo is completely silent about contours, and none of his figures reflect contour-finding having been performed" (App. Br. 16), and that "in 'contour finding', the computer looks for a curve shape," while "in 'edge detection', 7 Appeal2017-007953 Application 14/613,471 the computer looks, pixel-by-pixel, for discontinuities in brightness." (Reply Br. 2). The Examiner finds that the Appellant "NEVER positively define[ d] a specific way of contour-finding. Hence, edge detection shown and taught by Tarallo can be viewed as one way of contour-finding. Appellant has failed to specifically define to what extend [sic] the contour-finding is different than Tarallo's Sobel edge detector." (Ans. 22). According to the Examiner, Tarallo teaches "contour finding (page 5, post-processing, i.e. Sobel edge detector, fig. 4, fig. 5)." (Ans. 14). We disagree with this analysis because the Examiner is applying Sobel edge detection to satisfy both "edge detection processing" and "contour finding" steps recited in claim 23. Nevertheless, that error in the analysis is not dispositive because the Examiner also rejected claim 23 finding that "Suzuki [] also teaches finding contours and choosing all convex contours (page 3, 3. Object region likelihood estimation from boundary fragments)." (Final Act. 8; Ans. 15; see also id. at 22-23). Indeed, Suzuki is titled "Estimating Object Region from Local Contour Configuration," and the cited portion thereof supports Examiner's finding that contour-finding in an image and identifying its boundaries is a well-known method in the art of image processing (Suzuki, pg. 3). In that regard, the Appellant does not dispute the Examiner's finding that Suzuki teaches finding contours. Secondary References Unlike Tarallo The Appellant argues that the rejection is improper because "Tarallo's work depends on RGB color analysis, pixel-counting and MATLAB usage, but the secondary references do not." (App. Br. 16). According to the 8 Appeal2017-007953 Application 14/613,471 Appellant, Matlab/non-Matlab technology, non-phone/phone technology, pixel-counting/non-pixel-counting technology "do not intermix in the mind of one of ordinary skill in the art in the manner hypothesized by the Final Rejection." (App. Br. 16-17). The Appellant's argument regarding a person of ordinary skill is unpersuasive as it is unsupported by evidence and discounts the skill of one of ordinary skill. We agree with the Examiner that each of the references pertains to a system and method for image processing a picture acquired from a camera (Ans. 23). As also explained by the Examiner, a person of ordinary skill in the art would "know various imaging processing methods with different computational system and different edge detection/contour finding methods with pictures obtained with different camera devices." (Ans. 24). The Appellant's argument also relegates a person of ordinary skill in the art to an automaton, and overlooks the "skill" and creativity possessed by those of ordinary skill and their ordinary level of creativity. KSR Int 'l v. Teleflex, Inc., 550 U.S. 398, 421 (2007) ("A person of ordinary skill is also a person of ordinary creativity, not an automaton."). Touch Point The Appellant argues that Tarallo does not disclose obtaining "finger- touched point as a wound sample" (App. Br. 1 O; see also id. at 11; Reply Br. 4). However, this argument does not address the Examiner's alternative basis for this rejection, finding that this feature "is inherently and/or obvious by [smartphone of] Riley[], [or] stylus shown by Xu[] (fig. 2)." (Final Act. 7; Ans. 14). Indeed, the Examiner specifically finds that Xu teaches "using an obtained touch point as a wound sample, using neighboring location of 9 Appeal2017-007953 Application 14/613,471 the squares as a normal skin sample (0022, 0024, 0043, 0071)." (Final Act. 8). While the stylus disclosed in Xu is not a finger, the Examiner is correct that the computer mouse of Tarallo, stylus disclosed in Xu, and finger input inherent in the smart phone of Riley are all input devices/methods for allowing a user to control the respective systems (Final Act. 7). As such, we agree with the Examiner that "it is obvious that a smartphone can replace the function of the PDA, and when replaced, the finger touching function of the smartphone also replaces the stylus touching of the PDA." (Ans. 18). Accordingly, we further agree with the Examiner that with the combined references, one of ordinary skill in the art knowing that a desktop with a camera can measure a wound, knowing that a PDA with a stylus can also measure a wound, and knowing the existence of a smartphone with a camera that can take medical images, could combine such teaching into a smartphone with a camera [to] measure a wound because measuring a wound only requires a processor, a camera, and a mathematic algorithm and all three type of systems, computer, PDA and smartphone all have the capability to do so. (Ans. 19). Therefore, in view of the above considerations, we agree with the Examiner that the invention of claim 23 would have been obvious to one of ordinary skill in the art, and we affirm the rejection thereof. The Appellant does not submit separate arguments directed to claims 22, 26, 9 35, and 38- 40, and thus, these claims fall with claim 23. 9 As noted previously, we observe that claim 26 depends from claim 25, but claim 25 is not subject to the present appeal. In a footnote, the Appellant also asserts that Tarallo does not disclose the limitation recited in claim 26 (App. Br. 10 n.1 ). However, a statement which merely points out what a claim recites will not be considered an argument for separate patentability of 10 Appeal2017-007953 Application 14/613,471 Claims 33 and 34 The Examiner also rejects dependent claim 33, concluding that "it would have been obvious that a smart phone's display screen[] is finger- paintable." (Final Act. 9). In rejecting claim 34, the Examiner relies on Ma for teaching that: a user or client can utilize a device ( e.g., a laptop, a desktop, a machine, a smartphone, a portable digital assistant (PDA), a gaming device, a web browser, a gaming device, a portable gaming device, a gaming console, a media player, a cellular device, etc.) to manipulate ( e.g., rotate, zoom, pan, window/level, edit, crop, etc.) an image (medical image, see para 0021) hosted by a server in which each stage between the client and the server can be isolated with respective processing threads for enhanced and improved performance, throughput, and scalability (0025). (Final Act. 9). Accordingly, the Examiner concludes that it would have been obvious "to include the manipulation features of Ma [] in order to provide better imaging view." (Final Act. 10). The Appellant argues that "Tarallo is without teaching of any aspect in which a user finger-paints onto a display screen. None of Tarallo's data is received via a user finger-painting onto a display screen." (App. Br. 17). However, this argument is unpersuasive because it again argues Tarallo separately. The Appellant also argues that "finger-painting capability of a the claim. 37 C.F.R. § 4I.37(c)(l)(iv). This general allegation that the art does not teach any of the claim limitations is no more than merely pointing out the claim limitations. In addition, to any extent that this footnote can be considered an argument, the Appellant argues Tarallo separately and does not address the rejection, which relies on the teachings of Xu (see Final Act. 8-9). 11 Appeal2017-007953 Application 14/613,471 smart phone is, in the mind of the person of ordinary skill in the art at the time of the invention, completely unconnected to Tarallo." (App. Br. 17). However, this argument is unpersuasive for reasons already discussed supra in that each of the applied prior art references pertains to a system and method for image processing a picture acquired from a camera. As to claim 33, which recites that "the automated system includes a display screen that is finger-paintable" (App. Br. 20, Claims App'x), we observe that Ma discloses a smart phone (Ma ,r 25). Accordingly, the combination of prior art as applied in the rejection results in a method that utilizes a smart phone, and correspondingly, has "a display screen that is finger-paintable." Therefore, the Examiner's rejection of claim 33 is affirmed. Nonetheless, we are of the view that the Examiner erred in rejecting claim 34, which recites the steps of "displaying a highlighted area proposed as the wound area on the display screen, followed by receiving a finger- painted command from a medical staff person whereby the displayed highlighted area is revised." (App. Br. 20, Claims App'x). As generally argued by the Appellant, Tarallo does not suggest "anything being done on- screen to the photographed wound." (App. Br. 17). The Examiner does not set forth adequate factual support and analysis directed to the recited step of revising a proposed wound area by a finger-painting command. While Ma does disclose a smart phone, and thus, a display screen that is finger- paintable as discussed supra, we do not view its disclosure of manipulating an image as satisfying the limitation requiring receiving a finger painted command to revise the displayed highlighted area (Ma ,r 25). Ma's disclosure that the smart phone can be used to "manipulate (e.g., rotate, 12 Appeal2017-007953 Application 14/613,471 zoom, pan, window/level, edit, crop, etc.)" merely indicates editing of the photograph itself, and does not indicate revision of a displayed highlighted area attained through processing of the photograph. The Examiner has not directed us to where the prior art has established the step of revising a displayed highlighted area. The Examiner's articulated reason, which is to "provide better imaging view" (Final Act. 10) is inadequate to address the actual limitation. Accordingly, the Examiner's rejection of claim 34 is reversed. CONCLUSIONS 1. The Examiner's rejection of claims 22, 23, 26, 33, 35, and 38- 40 is AFFIRMED. 2. The Examiner's rejection of claim 34 is REVERSED. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(l )(iv). AFFIRMED-IN-PART 13 Copy with citationCopy as parenthetical citation