Ex Parte YAMAGUCHI et al

Patent Trial and Appeal Board

Aug 28, 2018

13533882 (P.T.A.B. Aug. 28, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/533,882 06/26/2012 Hiroshi Y AMA GU CHI
21254 7590 08/28/2018
MCGINN INTELLECTUAL PROPERTY LAW GROUP, PLLC
8321 OLD COURTHOUSE ROAD
SUITE 200
VIENNA, VA 22182-3817
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.
KP-12578 6438
EXAMINER
MEHL, PATRICK M
ART UNIT PAPER NUMBER
3737
MAIL DATE DELIVERY MODE
08/28/2018 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 HIROSHI YAMAGUCHI and TAKAAKI SAITO
Appeal2017-007596
Application 13/533,882
Technology Center 3700
Before MICHAEL J. FITZPATRICK, SUSAN L. C. MITCHELL, and
RICHARD J. SMITH, Administrative Patent Judges.
FITZPATRICK, Administrative Patent Judge.
DECISION ON APPEAL
Hiroshi Yamaguchi and Takaaki Saito ("Appellants") 1 appeal under
35 U.S.C. § 134(a) from a decision finally rejecting claims 1, 3-8, 12-15,
17, and 18. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.
STATEMENT OF THE CASE
The Specification
According to Appellants, the claimed invention "relates to a blood
information measuring apparatus and method for measuring blood
1 The real party in interest is Fujifilm Corporation. App. Br. 1.
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Application 13/533,882
information from an image signal of a blood vessel." Spec. 1:5-7. The
invention is well summarized as follows:
[A] blood information measuring apparatus according to the
present invention includes a lighting section, an imaging
section, a wavelength tunable element, a blood information
calculation section, a monitor, a wavelength set switching
section, a wavelength set determination section, and a control
section. The lighting section applies illumination light to a
body portion having a blood vessel. The imaging section
performs photoelectric conversion of reflected light from the
body portion irradiated with the illumination light and outputs
an image signal. The wavelength tunable element narrows a
wavelength band of the illumination light to be applied to the
body portion or the reflected light to be incident on the imaging
section. The blood information calculation section calculates
blood information based on the image signal. The monitor
displays the blood information. The wavelength set switching
section drives the wavelength tunable element to switch among
a plurality of wavelength sets. Each wavelength set includes a
plurality of types of light that penetrate to a similar depth into
the body portion. The wavelength set determination section
chooses one of the wavelength sets as an actual imaging
wavelength set to be used in actual imaging operation based on
the image signal obtained in preliminary imaging operation.
The control section performs the preliminary imaging operation
and the actual imaging operation. In the preliminary imaging
operation, preliminary images are captured while the
wavelength set switching section switches among the
wavelength sets. In the actual imaging operation, an actual
image is captured with use of the actual imaging wavelength
set.
The blood in formation is preferably an oxygen
saturation level of hemoglobin. The wavelength set
determination section preferably creates a histogram of the
oxygen saturation level of each preliminary image
independently from one wavelength set to another, and
determines the actual imaging wavelength set based on the
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histograms. One of the wavelength sets corresponding to the
histogram having a maximum variance or a maximum standard
deviation is preferably chosen as the actual imaging wavelength
set.
Id. at 3:10-4:14.
The Rejected Claims
Of the pending and finally rejected claims, claims 1 and 18 are
independent. App. Br. 17-21. Claim 1 is representative and reads as
follows:
1. A blood information measunng apparatus
compnsmg:
a light source which applies illumination light to a body
portion having a blood vessel;
an imaging device which performs photoelectric
conversion of reflected light from said body portion irradiated
with said illumination light and outputting an image signal;
a wavelength tunable element which narrows a
wavelength band of said illumination light to be applied to said
body portion or said reflected light to be incident on said
imaging section; and
a processor, said processor configured for:
calculating oxygen saturation information based on
said image signal;
driving said wavelength tunable element to switch
among a superficial layer wavelength set having a
plurality of types of narrow band light in a blue
wavelength band, a middle layer wavelength set having a
plurality of types of narrow band light in a green
wavelength band and a deep layer wavelength set having
a plurality of types of narrow band light in a red
wavelength band;
performing preliminary imaging operation, in said
preliminary imaging operation, a preliminary image of
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said body portion in each of said wavelength sets is
captured while automatically switching among said
superficial layer wavelength set, said middle layer
wavelength set and said deep layer wavelength set;
automatically choosing one of said wavelength sets
as an actual imaging wavelength set to be used in actual
imaging operation by analyzing a pattern of hypoxic and
hyperoxic regions of each of said preliminary images,
said actual imaging set wavelength corresponding to said
preliminary image in which a mixed degree of said
hyperoxic region and said hypoxic region is highest
among said preliminary images;
performing said actual imaging operation in which
an actual image is captured with use of said actual
imaging wavelength set; and
displaying on a monitor said oxygen saturation
information measured in said actual imaging operation,
wherein the processor detects a location of said body
portion in a body cavity, and chooses one of said superficial
layer wavelength set, said middle layer wavelength set and said
deep layer wavelength set as an abnormality detection
wavelength set in accordance with said location, and
wherein said processor starts said preliminary imaging
operation if a mean value of said oxygen saturation level
obtained with said abnormality detection wavelength set is less
than a threshold value.
Id. at 17-18.
The Appealed Rejections
The following rejections are before us for review:
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(1) Claims 1, 3-5, 14, and 18 under 35 U.S.C. § I03(a) as
unpatentable over Nakamura, 2 Zvuloni, 3 Bard, 4 and Maxim5 (Final Act. 7-
8);
(2) Claims 6 and 7 under 35 U.S.C. § I03(a) as unpatentable over
Nakamura, Zvuloni, Bard, Maxim, and Shibuya6 (Final Act. 16);
(3) Claim 8 under 35 U.S.C. § I03(a) as unpatentable over
Nakamura, Zvuloni, Bard, Maxim, and Rana7 (Final Act. 18);
(4) Claim 12 under 35 U.S.C. § I03(a) as unpatentable over
Nakamura, Zvuloni, Bard, Maxim, and Lifsitz8 (Final Act. 19);
(5) Claim 13 under 35 U.S.C. § I03(a) as unpatentable over
Nakamura, Zvuloni, Bard, Maxim, Yoshida,9 and Lambert 10 (Final Act. 20);
2 US 5,001,556 (issued Mar. 19, 1991) ("Nakamura").
3 US 6,905,492 B2 (issued June 14, 2005) ("Zvuloni").
4 Bard, Martin P. L., et al., Measurement of Hypoxia-related Parameters in
Bronchial Mucosa by Use of Optical Spectroscopy, 171 AM. J. RESPIR. CRIT.
CARE MED. 1178-84 (2005) ("Bard").
5 Maxim, Peter G., et al., Optical Detection of Tumors In Vivo by Visible
Light Tissue Oximetry, 4 TECH. CANCER RES. TREATMENT 227-34 (2005)
("Maxim").
6 Shibuya, K., et al., High magnification bronchovideoscopy combined with
narrow band imaging could detect capillary loops of angiogenic squamous
dysplasia in heavy smokers at high risk for lung cancer, 58 THORAX 989-95
(2003) ("Shibuya").
7 Rana, Dipen, Integration of Hyperspectral Imaging System For Optimized
Data Acquisition And Control To Revolution Pathology Applications, Ph.D.
Thesis Dissertation University of Texas in Arlington (2008) ("Rana").
8 US 2011/0144462 Al (published June 16, 2011) ("Lifsitz").
9 Yoshida, Tatsuya, et al., Narrow-band imaging system with magnifying
endoscopy for superficial esophageal lesions, 59 GASTROINTESTINAL
ENDOSCOPY 288-295 (2004) ("Yoshida").
10 Lambert, R., et al., Narrow-Band Imaging in Digestive Endoscopy, 7 THE
SCIENTIFIC WORLD 449-465 (2007) ("Lambert").
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(6) Claim 15 under 35 U.S.C. § I03(a) as unpatentable over
Nakamura, Zvuloni, Bard, Maxim, and Patwardhan 11 (Final Act. 22);
(7) Claim 17 under 35 U.S.C. § I03(a) as unpatentable over
Nakamura, Zvuloni, Bard, Maxim, Shibuya, Gheorghe, 12 and Fawzy 13 (Final
Act. 23).
DISCUSSION
Rejection 1
The Examiner rejected claims 1, 3-5, 14, and 18 under 35 U.S.C.
§ I03(a) as unpatentable over Nakamura, Zvuloni, Bard, and Maxim. Final
Act. 7-8.
The Prior Art
Nakamura teaches an endoscope with "a light source part emitting a
light" and "whereby the observing wavelength range can be selected in
response to an object to be observed." Nakamura, at [57] (Abstract).
Nakamura states:
An endoscope body has an elongated insertable part having an
observing window and illuminating window in the tip part, a
light transmitter transmitting the light of the light source part
and emitting the light to the object from the illuminating
window and an image forming optical system receiving the
returning light from the object entering through the observing
window and forming an object image. The object image
formed by the image forming optical system is imaged on a
11 US 2009/0137908 Al (published May 28, 2009) ("Patwardhan").
12 Gheorghe, Cristian, Narrow-Band Imaging Endoscopy for Diagnosis of
Malignant and Premalignant Gastrointestinal Lesions, 15 J. GASTROINTEST.
LIVER DIS. 77-82 (2006) ("Gheorghe").
13 Fawzy, Yasser, Quantification of mucosa oxygenation using three
discrete spectral bands of visible light, 12 J. BIOPHOTON. 744--49 (2009)
("Fawzy").
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solid state imaging device. An electric signal is output from the
solid state imaging device and is processed by a signal
processing circuit and a picture image is displayed. The object
image is separated into a plurality of wavelength ranges by
wavelength range separating filters. A selecting apparatus
selects a picture image based on the wavelength range clearly
representing the state of the object from among the picture
images obtained by a plurality of separated wavelength ranges.
Id. Nakamura also acknowledges that it was "known to be useful for the
early discovery or the like of a disease to know the amount of hemoglobin
and the distribution of the oxygen saturation degree in a blood" and that they
could be determined "from picture images in a plurality of specific
wavelength ranges." Id. at 1 :54---63.
Zvuloni teaches the use of both preliminary and real-time imaging to
assist a cryoablation procedure. Zvuloni, at [57] (Abstract).
Bard teaches "differential path-length spectroscopy (DPS)" to
measure "hypoxia-related parameters in the superficial microvasculature of
tissue." Bard, Abstract. Bard teaches the tissue oxygen saturation (St02) as
being lower for cancer or hypoxic tissue than normal and as being higher or
hyperoxic for metaplastic/dysplasia mucosa for neovascularization sign for
the presence of adenocarcinoma than for normal tissue. Id. at 1182
(Table 1).
Maxim teaches tumor tissue oximetry with visible light for early
detection of gastrointestinal neoplasms. Maxim, Abstract. Maxim discloses
histograms for the oxygen saturation of the measured tissues. Maxim, 232
(Fig. 4a).
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Analysis
The Examiner pieces together the cited teachings ( as well as his
explicit interpretations of those teachings) to assert a prima facie case of
obviousness of independent claims 1 and 18. Final Act. 8-14.
Appellants argue that the combination fails to meet at least four
limitations of claims 1 and 18. Appeal Br. 11-12. Appellants do not dispute
that the prior art teaches a blood information measuring apparatus having the
same physical components as required by claims 1 and 18, namely a light
source, an imaging device, a wavelength tunable element, and a processor.
Id. at 11-16. Rather, the dispute is about whether a person of ordinary skill
in the art would have configured a processor in the manner required of the
claims.
One of Appellants' arguments is that the Examiner has not shown that
a person of ordinary skill in the art would have configured a processor to
perform the steps of
automatically choosing one of said wavelength sets as an
actual imaging wavelength set to be used in actual imaging
operation by analyzing a pattern of hypoxic and hyperoxic
regions of each of said preliminary images, said actual imaging
set wavelength corresponding to said preliminary image in
which a mixed degree of said hyperoxic region and said
hypoxic region is highest among said preliminary images; [ and]
performing said actual imaging operation in which an
actual image is captured with use of said actual imaging
wavelength set,
as recited by claim 1 (and the very similar limitations recited in claim 18).
Appeal Br. 13-14. We agree.
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Neither the Final Action nor the Examiner's Answer adequately
shows how the asserted combination of art satisfies all claim language,
including the requirement of a processor configured for performing two
separate imaging operations, namely a "preliminary imaging operation,"
with all of its claim-specified requirements followed by an "actual imaging
operation," which utilizes a wavelength determined by the preliminary
imaging operation.
In the Final Action, the Examiner asserts that it is "known to be
routine and conventional in the art to use preliminary or preparatory imaging
technology for planning medical protocol for identifying the targeted area to
be imaged in realtime as taught by Zvuloni (abstract)." Final Act. 10. But,
the Examiner does not explain how this general concept would, in
combination with the other prior art teachings, render the claims obvious. In
particular, the Examiner does not explain why a person of ordinary skill in
the art, after obtaining images and selecting the best among them pursuant to
Nakamura, would thereafter utilize the wavelength corresponding to the best
image, and perform a second imaging operation using that wavelength.
As argued by Appellant, "Zvuloni makes a three-dimensional model
of a lesion from images acquired by US or MRI before a cryosurgery and
use it for a simulation of a probe insertion." Appeal Br. 13. Indeed, the
cited Zvuloni abstract, in its entirety, states the following:
Systems and methods for planning a cryoablation procedure
and for facilitating a cryoablation procedure utilize integrated
images displaying, in a common virtual space, a three-
dimensional model of a surgical intervention site based on
digitized preparatory images of the site from first imaging
modalities, simulation images of cryoprobes used according to
an operator-planned cryoablation procedure at the site, and real-
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time images provided by second imaging modalities during
cryoablation. The system supplies recommendations for and
evaluations of the planned cryoablation procedure, feedback to
an operator during cryoablation, and guidance and control
signals for operating a cryosurgery tool during cryoablation.
Methods are provided for generating a nearly-uniform cold field
among a plurality of cryoprobes, for cryoablating a volume
with smooth and well-defined borders, thereby minimizing
damage to healthy tissues.
Zvuloni, at [57].
In other words, Zvuloni teaches preparatory imaging for surgery. It
does not teach preparatory imaging merely to facilitate further imaging.
Indeed, despite referring to both "preparatory images" and "real-time images
provided by second imaging modalities during cryoablation," Zvuloni does
not teach an interrelationship between the two.
In the Examiner's Answer, the Examiner stated:
Nakamura teaches an automatic switching of the
wavelength sets for the different considered layers for acquiring
images to produce S02 level images for comparison towards the
selection of the most suitable wavelength range for the
observation of the blood oxygenation level within the tissue
(Nakamura col.9 1st iD, which strongly suggest the first set of
images as defining the preliminary images.
Ans. 4 ( emphasis added).
We are not persuaded that Nakamura, with or without Zvuloni, can be
interpreted fairly to teach or suggest a first set of images defining the
preliminary images and also
automatically choosing one of said wavelength sets as an
actual imaging wavelength set to be used in actual imaging
operation by analyzing a pattern of hypoxic and hyperoxic
regions of each of said preliminary images, said actual imaging
set wavelength corresponding to said preliminary image in
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which a mixed degree of said hyperoxic region and said
hypoxic region is highest among said preliminary images; [ and]
performing said actual imaging operation in which an actual
image is captured with use of said actual imaging wavelength
set,
as recited in claims 1 and 18. Rather, Nakamura teaches a single imaging
operation and choosing the best image or images captured. See, e.g.,
Nakamura, Abstract ("A selecting apparatus selects a picture image based on
the wavelength range clearly representing the state of the object from among
the picture images obtained by a plurality of separated wavelength ranges.").
Accordingly, the rejection of claims 1, 3-5, 14, and 18 under
35 U.S.C. § 103(a) as unpatentable over Nakamura, Zvuloni, Bard, and
Maxim cannot be sustained.
Rejections 2-7
The remaining rejections cite additional references to meet limitations
introduced by dependent claims 6-8, 12, 13, 15, and 17. Final Act. 16-24.
The rejections of these dependent claims, which all depend from claim 1, do
not rely on the additional references to cure the deficiency of the Examiner's
rejection of claim 1. Id. Accordingly, the rejection of claims 6-8, 12, 13,
15, and 17 likewise cannot be sustained.
SUMMARY
For the reasons discussed, we reverse the Examiner's rejection of all
claims on appeal.
REVERSED
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