Ex Parte Yared

Patent Trial and Appeal Board

Dec 7, 2016

11643758 (P.T.A.B. Dec. 7, 2016)

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.
11/643,758 12/21/2006 Wael I. Yared 2010466-0035 1641
24280 7590 12/09/2016
CHOATE, HALL & STEWART LLP
TWO INTERNATIONAL PLACE
BOSTON, MA 02110
EXAMINER
IP, JASON M
ART UNIT PAPER NUMBER
3777
NOTIFICATION DATE DELIVERY MODE
12/09/2016 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):
patentdocket @ choate. com
jnease@choate.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WAEL I. YARED
Appeal 2015-004030
Application 11/643,758
Technology Center 3700
Before DONALD E. ADAMS, JEFFREY N. FREDMAN, and
TIMOTHY G. MAJORS, Administrative Patent Judges.
PER CURIAM
DECISION ON APPEAL
This is an appeal1 under 35 U.S.C. § 134 involving claims to a
combined x-ray and optical tomographic imaging system and a method for
creating optical tomographic images. The Examiner rejected the claims on
the ground of obviousness. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 Appellant identifies the Real Party in Interest as VisEn Medical, Inc. (see
App. Br. 2).
Appeal 2015-004030
Application 11/643,758
Statement of the Case
Background
Appellant’s invention relates to “a combined x-ray and optical (light-
based) tomographic imaging system that yields more accurate functional
information than can be achieved by optical tomography alone” (Spec. 119).
The Claims
Claims 1, 4, 5, 7—39, and 88—107 are on appeal. Independent claim 1
is representative and reads as follows (emphasis added):
1. A system for creating an optical tomographic image of
a target volume of an object, the system comprising:
an x-ray source configured to direct x-ray radiation into
the object;
an x-ray detector configured to detect x-ray radiation
transmitted through the object;
a light source configured to direct light into the object;
a light detector configured to detect light transmitted
through and/or emitted from the object, wherein
the x-ray detector is configured to detect x-ray
radiation at a first plurality of angular projections,
collecting one or more images of an x-ray scan data set
at each of the first plurality of angular projections, and
the light detector is configured to detect light at
a second plurality of angular projections, collecting one
or more images of a light scan data set at each of the
second plurality of angular projections;
a memory for storing code that defines a set of
instructions; and
a processor for executing the set of instructions to
create a three-dimensional optical absorption map of the
target volume based at least in part on the x-ray scan data set
and to use the optical absorption map and light scan data set
to construct a forward problem and solve an inverse problem
2
Appeal 2015-004030
Application 11/643,758
in optical tomographic reconstruction, thereby creating the
three dimensional optical tomographic image, wherein the
optical absorption map reflects anatomical information
obtained from the x-ray scan data by distinguishing a plurality
of tissues of various densities within the object,
wherein the absorption map comprises a plurality of
absorption coefficients assigned to regions of different
densities, where each of the plurality of absorption
coefficients is a perturbation from a background absorption
coefficient and is computed as a function of an x-ray-derived
measure of density.
The Issues
A. The Examiner rejected claims 1, 5, 13—16, 25—27, 30-34, 88, and
101—107 under 35 U.S.C. § 103(a) as obvious over Li2 and Mori3 (Ans. 3—
7).
B. The Examiner rejected claim 4 under 35 U.S.C. § 103(a) as obvious
over Li, Mori, and Navab4 (Ans. 7).
C. The Examiner rejected claims 7, 17—24, and 35—39 under 35 U.S.C.
§ 103(a) as obvious over Li, Mori, and Ntziachristos5 (Ans. 7—11).
D. The Examiner rejected claims 8—12 under 35 U.S.C. § 103(a) as
obvious over Li, Mori, and Geng6 (Ans. 11).
E. The Examiner rejected claims 28 and 29 under 35 U.S.C. § 103(a) as
obvious over Li, Mori, and Mihara7 (Ans. 11—12).
2 Li et al., Tomographic optical breast imaging guided by three-dimensional
mammography, 42 Applied Optics 25:5181—5190 (2003) (“Li”).
3 Mori et al., US 6,829,324 B2, issued Dec. 7, 2004 (“Mori”).
4 Navab et al., US 2004/0247076 Al, published Dec. 9, 2004 (“Navab”).
5 Ntziachristos et al., US 6,615,063 Bl, issued Sept. 2, 2003
(“Ntziachristos”).
6 Geng, US 2005/0088515 Al, published Apr. 28, 2005 (“Geng”).
7 Mihara et al., US 2003/0076921 Al, published Apr. 24, 2003 (“Mihara”).
3
Appeal 2015-004030
Application 11/643,758
F. The Examiner rejected claims 89-94 and 97—100 under 35 U.S.C.
§ 103(a) as obvious over Li, Mori, and Gaudette8 (Ans. 12—13).
G. The Examiner rejected claims 95 and 96 under 35 U.S.C. § 103(a) as
obvious over Li, Mori, Ntziachristos, and Gaudette (Ans. 13).
Because the same issue is dispositive for all seven rejections (A—G),
we will consider them together. Appellant does not argue the claims
separately, we thus select claim 1 as representative.
The Examiner finds that Li teaches
a system and method for creating an optical tomographic
image of a target volume of an object, the system comprising:
an x-ray source configured to direct x-ray radiation into the
object; an x-ray detector configured to detect x-ray radiation
transmitted through the object; a light source configured to
direct light into the object; a light detector configured to
detect light transmitted through and/or emitted from the
object (p. 5185, “3-D tomosynthesis x-ray mammography
system” and “diffuse optical imaging system”), wherein
the x-ray detector is configured to detect x-ray radiation at a
first plurality of angular projections, collecting one or more
images of an x-ray scan data set at each of the first plurality
of angular projections, and the light detector is configured to
detect light at a second plurality of angular projections,
collecting one or more images of a light scan data set at each
of the second plurality of angular projections (p. 5185, “11
projections taken over a 50° angular range with a 5°
angular step”, see cited references 24 and 25 of Niklason et
al[.] and Wu, respectively); a memory for storing code that
defines a set of instructions; and a processor for executing the
set of instructions to create a three-dimensional optical
absorption map of the target volume based at least in part on
8 Gaudette et al., A comparison study of linear reconstruction techniques for
diffuse optical tomographic imaging of absorption coefficient, 45 Phys.
Med. Biol. 1051-1070 (2000) (“Gaudette”).
4
Appeal 2015-004030
Application 11/643,758
the x-ray scan data set and to use the optical absorption map
and light scan data set (p. 5187; Fig. 7c) to construct a
forward problem and solve an inverse problem (p. 5182) in
optical tomographic reconstruction, thereby creating the three
dimensional optical tomographic image, wherein the optical
absorption map reflects anatomical information obtained
from the x-ray scan data by distinguishing tissues of various
densities within the object (p. 5187, Figs. 7 and 9).
(Ans. 3—4.)
The Examiner acknowledges that “Li et al[.] do not explicitly disclose
that there is a plurality of tissues being distinguished” {id. at 4). The
Examiner concludes that
given that Li et al[.] clearly teach[] the use of X-ray imaging
data (Fig. 6), it would have been obvious to one of ordinary
skill in the art of X-ray image analysis to consider the
elucidation of densities inherently afforded by X-ray images
in an effort to discern different types of tissue both soft and
hard.
{Id.)
The Examiner acknowledges that
Li et al[.] also do not explicitly disclose an absorption map
that comprises a plurality of absorption coefficients assigned
to regions of different densities, where each of the plurality of
absorption coefficients is a perturbation from a background
absorption coefficient and is computed as a function of an x-
ray derived measure of density.
{Id.)
The Examiner turns to Mori and finds that it teaches that “X-ray
absorption coefficients are used to produce density images (1:15—32)” {id.).
The Examiner concludes that it would have been obvious to “apply
the density imaging of Mori et al[.] to the imaging of Li et al[.], as to provide
a quantitative measure of tissue density in X-ray CT scanning” {id.).
5
Appeal 2015-004030
Application 11/643,758
The issue with respect to these rejections are: Does the evidence of
record support the Examiner’s conclusion that Li and Mori render the claims
prima facie obvious?
Findings of Fact
1. The Specification teaches that
the term “map” is understood to mean a visual display, or any
data representation that may be interpreted for visual display,
which contains spatially-correlated information. For
example, a three-dimensional map of a given volume may
include a dataset of values of a given quantity that varies in
three spatial dimensions throughout the volume, and the
three-dimensional map may be displayed in two-dimensions.
(Spec. 191.)
2. The Specification teaches that “tissues of various densities can
be distinguished by the x-ray tomographic subsystem and an optical
absorption map can be produced. The optical absorption map is then used in
the optical tomographic reconstruction, thereby improving how propagation
of light through the object is modeled” (Spec. 121).
3. Li teaches “three-dimensional x-ray mammography as a prior in
the diffuse optical tomography reconstruction” (Li Abstract; see also Ans. 3,
14—15).
4. Li teaches that “[t]he most straightforward way is to assume
that optical perturbation comes mostly from the region of interest (ROI)
shown in the US [ultrasound]; MRI, or x-ray structural images” (Li 5181,
col. 2; see also Ans. 3—4,).
5. Li teaches “simultaneously acquired clinical 3-D x-ray
mammography and optical breast imaging data” (Li 5182, col. 1; see also Li
5185, col. 2, Ans. 3—4).
6
Appeal 2015-004030
Application 11/643,758
6. Figure 7c of Li is reproduced below
(c;
S lO 15 5 10 IS S lO 15 5 10 15
Figure 7c shows “[t]he reconstruction of the clinical data by use of the
spatial prior from (b) for regularization” in which (b) are “3-D x-ray images
after a threshold was assigned to define the spatial prior” (Li 5187; Ans. 4).
7. Mori teaches
As is well known, X-ray computed tomography (CT)
is an imaging technique of producing density images based
on X-ray absorption coefficients. An X-ray is radiated toward
an object along various radiation angles to scan a section of
the object so that resultant X-ray transmission amounts are
measured, and X-ray absorption coefficients at each position
in the object’s section are computed. Using the coefficients,
density images are produced. From a different viewpoint, it
can be said that the X-ray CT makes use of the fact that the
living body is composed of various tissues different in their
X-ray absorption coefficients.
In performing the X-ray CT imaging, some regions in
a scanned object’s section, such as bones, provide higher X-
ray absorption coefficients. Such regions are also subjected to
X-ray measurement, but amounts of X-ray from the regions,
which are detected by an X-ray detector, are extremely low,
thereby frequently causing a considerable amount of
reduction in the SNR.
(Mori 1:15—32; see also Ans. 4.)
Principles of Law
“[Cjlaims in an application are to be given their broadest reasonable
interpretation consistent with the specification and that claim language
7
Appeal 2015-004030
Application 11/643,758
should be read in light of the specification as it would be interpreted by one
of ordinary skill in the art.” In re Sneed, 710 F.2d 1544, 1548 (Fed. Cir.
1983).
Analysis
We adopt the Examiner’s findings of fact and reasoning regarding the
scope and content of the prior art (Ans. 3—15; FF 1—7) and agree that claim 1
would have been obvious. We address Appellant’s arguments below.
We begin with claim interpretation, since before a claim is properly
interpreted, its scope cannot be compared to the prior art. The limitation in
dispute is the requirement for “an optical absorption map” as required by
claim 1 (see App. Br. 8, Ans. 14).
Appellant does not appear to provide a definition for this term other
than referring to the limitations in the claims:
Independent claim 1 recites, inter alia, “a processor for
executing the set of instructions to create a three-dimensional
optical absorption map of the target volume based at least in
part on the x-ray scan data set.” Independent claim 1 further
recites, inter alia, “use the optical absorption map and light
scan data set to construct a forward problem and solve an
inverse problem in optical tomographic reconstruction,
thereby creating the three dimensional optical tomographic
image . . . wherein the absorption map comprises a plurality
of absorption coefficients assigned to regions of different
densities, where each of the plurality of absorption
coefficients is a perturbation from a background absorption
coefficient and is computed as a function of an x-ray-derived
measure of density.” Similar recitations are also present in
claim 88.
(App. Br. 9.)
The Examiner contends that “‘optical absorption’ has been taken to
mean absorption of a type of optical radiation” and that “optical [is] defined
8
Appeal 2015-004030
Application 11/643,758
as ‘used to help a person see’ and ‘relating to or using light’ by Merriam-
Webster [Dictionary]” such that “optical absorption map can be a map of x-
ray absorption” (Ans. 15).
We find that the Examiner has the better position. The Specification
does not appear to provide an explicit definition for “an optical absorption
map.”
The Specification teaches that
the term “map” is understood to mean a visual display, or any
data representation that may be interpreted for visual display,
which contains spatially-correlated information. For
example, a three-dimensional map of a given volume may
include a dataset of values of a given quantity that varies in
three spatial dimensions throughout the volume, and the
three-dimensional map may be displayed in two-dimensions.
(FF 1.) The Specification further explains that “tissues of various densities
can be distinguished by the x-ray tomographic subsystem and an optical
absorption map can be produced” (FF 2), suggesting that an “optical
absorption map” is based upon X-ray density information, but “then used in
the optical tomographic reconstruction” (FF 2).
We conclude that the broadest reasonable interpretation of the phrase
“optical absorption map” in claim 1 is a visual display, or any data
representation that may be interpreted for visual display, which contains
spatially-correlated information which includes data related to light
absorption, including X-ray data tomographic data.
We next turn to Appellant’s arguments.
Appellant contends that “[t]he cited art, including Li and Mori, does
not suggest or teach ‘an optical absorption map,’ as recited in each of instant
claims 1 and 88” (App. Br. 8; see also Reply Br. 4).
9
Appeal 2015-004030
Application 11/643,758
We are not persuaded. Because we concluded that “an optical
absorption map” is a visual display, or data representation that may be
interpreted for visual display, that contains spatially-correlated information
including light absorption data, we agree with the Examiner that “an optical
absorption map can be a map of x-ray absorption, which is clearly taught by
Mori” (Ans. 15; see also FF 7). This interpretation is consistent with
Appellant’s own Specification, where “tissues of various densities can be
distinguished by the x-ray tomographic subsystem and an optical absorption
map can be produced” (FF 2).
Further, Fi teaches “three-dimensional x-ray mammography as a prior
in the diffuse optical tomography reconstruction” (FF 3), and
“simultaneously acquired clinical 3-D x-ray mammography and optical
breast imaging data” (FF 5). Fi’s Figure 7c show images relating to “[t]he
reconstruction of the clinical data by use of the spatial prior from (b) for
regularization” in which (b) are “3-D x-ray images after a threshold was
assigned to define the spatial prior” (FF 6).
We thus agree with the Examiner that
Fi discloses the creation of an optical absorption map in the
form of a 3D x-ray mammogram and the use of this map along
with light scan data in the form of diffuse optical tomography
to perform a forward-inverse optical tomographic
reconstruction process (p.5182, 1st column), which is a
fundamental idea in this art, not even necessarily requiring a
processor to perform.
(Ans. 14.)
Appellant contends that
Li, at page 5187, Fig. 7(c). . . discloses a final reconstructed
image rather than “a three-dimensional optical absorption
map” that is used to create the “three dimensional optical
10
Appeal 2015-004030
Application 11/643,758
tomographic image,” as recited in each of instant claims 1 and
88. Indeed, Fig. 7(c) of Li is a “reconstruction of the clinical
data by use of the spatial prior from (b) for regularization.”
(App. Br. 10-11 ; see also Reply Br. 5—7.)
This argument is unpersuasive. The claims do not differentiate “a
three-dimensional optical absorption map” from a reconstructed image.
“[L]imitations are not to be read into the claims from the specification.” In
re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993). See also In re Self,
671 F.2d 1344, 1348 (CCPA 1982) (“[Ajppellanf s arguments fail from the
outset because . . . they are not based on limitations appearing in the
claims.”). Moreover, we observe that the Specification teaches that “tissues
of various densities can be distinguished by the x-ray tomographic
subsystem and an optical absorption map can be produced. The optical
absorption map is then used in the optical tomographic reconstruction,
thereby improving how propagation of light through the object is modeled”
(FF 2 (emphasis added)). Thus, it appears that Appellant’s optical
absorption map is also used for reconstruction in a similar manner as that of
Li (see FF 2, 6).
Appellant argues that
Li, at page 5187, Fig. 7(b). . . shows 3-D x-ray images
after a threshold was assigned to define the spatial prior.
However, in Li, the threshold is arbitrarily selected and, thus,
the image does not comprise coefficients that are (i) “a
perturbation from a background absorption coefficient” and
(ii) “computed as a function of an x-ray-derived measure of
density,” as recited in each of instant claims 1 and 88.
(App. Br. 11.) Appellant also argues that
“X-ray absorption coefficients” as disclosed in Mori are not
the same as “absorption coefficients” of an “optical
absorption map,” as recited in each of instant claims 1 and 88.
11
Appeal 2015-004030
Application 11/643,758
X-ray absorption characteristics of tissues are not the same as,
nor equivalent to, optical absorption characteristics of the
tissue.
Mori is silent as to “each of the plurality of absorption
coefficients” being “a perturbation from a background
absorption coefficient and is computed as a function of an x-
ray-derived measure of density,” as recited in each of instant
claims 1 and 88.
{Id. at 13; see also Reply Br. 8—11.)
These arguments are also unpersuasive. As the Examiner explains,
Mori is used to teach the use of absorption coefficients
assigned to regions of different densities. As for absorption
coefficients being perturbations from a background
absorption - essentially a natural phenomenon, one of
ordinary skill would have found it obvious that when
compared to a background, the absorption coefficients at hand
would qualify as changes compared to the normal, or
background, state. Additionally, Li actually mentions optical
perturbation from x-ray data on p.5181.
(Ans. 14—15; see also FF 4, 7.) “Non-obviousness cannot be established by
attacking references individually where the rejection is based upon the
teachings of a combination of references []. [The reference] must be read,
not in isolation, but for what it fairly teaches in combination with the prior
art as a whole.” In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
See also In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997) (“[Attorney
argument [is] not the kind of factual evidence that is required to rebut a
prima facie case of obviousness”).
Appellant presents no additional argument based on the teachings of
Navab, Ntziachristos, Geng, Mihara, and Gaudette, and rely on the same
arguments addressed above {see App. Br. 14—15; Reply Br. 11). For the
reasons discussed above, we thus affirm the Examiner’s rejections
12
Appeal 2015-004030
Application 11/643,758
SUMMARY
In summary, we affirm the rejection of claims 1 and 88 under
35 U.S.C. § 103(a) as obvious over Li and Mori. Claims 5, 13—16, 25—27,
30—34, 101—103, and 107 fall with claim 1, and claims 104—106 fall with
claim 88.
We affirm the rejection of claim 4 under 35 U.S.C. § 103(a) as
obvious over Li, Mori, and Navab.
We affirm the rejection of claims 7, 17—24, and 35—39 under
35 U.S.C. § 103(a) as obvious over Li, Mori, and Ntziachristos.
We affirm the rejection of claims 8—12 under 35 U.S.C. § 103(a) as
obvious over Li, Mori, and Geng.
We affirm the rejection of claims 28 and 29 under 35 U.S.C. § 103(a)
as obvious over Li, Mori, and Mihara.
We affirm the rejection of claims 89-94 and 97—100 under 35 U.S.C.
§ 103(a) as obvious over Li, Mori, and Gaudette.
We affirm the rejection of claims 95 and 96 under 35 U.S.C. § 103(a)
as obvious over Li, Mori, Ntziachristos, and Gaudette.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
13