Raoul Florent

Patent Trials and Appeals Board

Dec 4, 2019

14412051 - (D) (P.T.A.B. Dec. 4, 2019)

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.
14/412,051 12/30/2014 Raoul Florent 2012P00681WOUS 2706
24737 7590 12/04/2019
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
465 Columbus Avenue
Suite 340
Valhalla, NY 10595
EXAMINER
KWON, YONG JOON
ART UNIT PAPER NUMBER
2486
NOTIFICATION DATE DELIVERY MODE
12/04/2019 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):
katelyn.mulroy@philips.com
marianne.fox@philips.com
patti.demichele@Philips.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RAOUL FLORENT
Appeal 2019-000058
Application 14/412,051
Technology Center 2400
Before MAHSHID D. SAADAT, ALLEN R. MacDONALD, and
NABEEL U. KHAN, Administrative Patent Judges.
SAADAT, Administrative Patent Judge.
DECISION ON APPEAL

Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–6, 8–11, and 13–16.2 We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a) (2017). Appellant identifies the real party in interest as
Koninklijke Philips N.V. Appeal Br. 2.
2 Claims 7 and 12 have been canceled previously.
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STATEMENT OF THE CASE
Introduction
Appellant’s invention relates to an “apparatus or system to support
medical personnel during embolization or similar intervention procedures.”
Spec. ¶ 1:30–31.
Representative Claim
Representative claim 1 under appeal read as follows;
1. An image processing apparatus, comprising:
a processor;
a first channel and a second channel which are
operationally coupled to the processor; and
a memory operationally coupled to the processor, wherein
the processor is configured to:
receive from the first channel a stream of projection
images of an object acquired along a first projection direction
and from the second channel a stream of projection images of the
object acquired along a second projection direction, the images
in both the first and second channels acquired while a material
volume of a material resident in the object undergoes a
configuration change;
perform an identification operation to identify, based on i)
a pair of an earlier first channel image and a later first channel
image and on ii) a pair of an earlier second channel image and a
later second channel image, image portions, one in the later first
channel image and one in the later second channel image, said
image portions indicative of the configuration change and
indicative to a position where in the material volume said change
occurred;
reconstruct, only upon the identifier successfully
identifying said image portions, from the identified image
portions a 3D image volume element, the reconstructed 3D
image volume element representative only of said identified
image portions; and
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output the reconstructed 3D image volume element,
wherein the identification operation fails when at least one
of a size and signal-to-noise ratio of one of the image portions in
one of the subsequent first channel image and the subsequent
second channel image is less than a boundary value, and
wherein the identification operation is successful when the
at least one of the size and the signal-to-noise ratio of both an
image portion in the subsequent first channel image and an image
portion in the subsequent second channel image are larger than
the boundary value.
REFERENCES AND REJECTIONS3
Claim 4 stands rejected under 35 U.S.C. § 112, second paragraph as
being indefinite for failing to particularly point out and distinctly claim the
subject matter which the applicant regards as the invention. See Final
Act. 4.
Claims 1, 3, 5, 6, 10, 11, 13, 15, and 16 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Lasenby (US 2013/0002832 A1; pub.
Jan. 3, 2013), Berlinger (US 9,014,424 B2; iss. Apr. 21, 2015), and
Murashita (US 2009/0024029 A1; pub. Jan. 22, 2009). See Ans. 3–5; see
also Final Act. 5–8, 12–14.4

3 In the Examiner’s Answer, the Examiner withdrew the rejection of claims
1–16 under 35 U.S.C. § 101. See Ans. 3.
4 In the Final Office Action, the Examiner originally rejected claims 1, 3, 5,
6, 10, 11, 13, 15, and 16 under 35 U.S.C. § 103(a) as being unpatentable
over Lasenby and Berlinger, and separately rejected claims 7 and 12 under
35 U.S.C. § 103(a) as being unpatentable over Lasenby, Berlinger, and
Murashita. See Final Act. 5–8, 12–14. In response, Appellant amended
claims 1, 10, and 16 to include the limitations of one of claims 7 and 12, and
canceled claims 7 and 12. See “Amendment Under §1.116,” filed on
October 9, 2017. In the Examiner’s Answer, the Examiner modified the
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Claims 2 and 4 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Lasenby, Berlinger, Murashita, and Ohishi
(US 2007/0104317 A1; pub. May 10, 2007). See Final Act. 11–12; see also
Ans. 3–5.
Claims 8, 9, and 14 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Lasenby, Berlinger, Murashita, and Royalty
(US 2013/0190615 A1; pub. July 25, 2013). See Final Act. 14–15; see also
Ans. 3–5.
ANALYSIS
Rejection Under 35 U.S.C. §112, Second Paragraph
The Examiner found claim 4 is indefinite because the claim lacked
antecedent basis for the limitation “said previous image volume element.”
See Final Act. 4. In response, Appellant amended claim 4 to replace “said
previous image volume element” with “said previously reconstructed
volume element.” See “Amendment Under §1.116,” filed on October 9,
2017. In its Appeal Brief, Appellant contended the amendment to claim 4
effectively overcame the rejection. See Appeal Br. 14–15. However, it is
unclear from the record whether the Examiner agreed with Appellant’s
contention, and whether the Examiner withdrew the rejection. See Ans. 3–9.
In light of the ambiguous record, we summarily sustain the Examiner’s
rejection of claim 4 under 35 U.S.C. § 112, second paragraph.5

rejection of claims 1, 3, 5, 6, 10, 11, 13, 15, and 16 to include Murashita.
See Ans. 3–5.
5 Should there be subsequent prosecution of the application, we suggest the
Examiner address Appellant’s contention that the above-mentioned
amendment to claim 4 overcame the rejection of the claim under
35 U.S.C. § 112, second paragraph.
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Rejection Under 35 U.S.C. §103(a)
We have reviewed the Examiner’s rejections under 35 U.S.C. § 103(a)
in light of Appellant’s arguments in Appellant’s Appeal Brief and Reply
Brief that the Examiner has erred. We are unpersuaded by Appellant’s
contentions and concur with the findings and conclusions reached by the
Examiner as explained below.
The Examiner found independent claims 1, 10, and 16 would have
been obvious to a person of ordinary skill in the art, at the time of the
claimed invention, in light of the combination of Lasenby, Berlinger, and
Murashita. See Ans. 3–9. The Examiner’s findings regarding the specific
references are discussed below in turn.
The Examiner found Lasenby teaches or suggests, inter alia,
“[receiving] from [a] first channel a stream of projection images of an object
acquired along a first projection direction and from [a] second channel a
stream of projection images of the object acquired along a second projection
direction, the images in both the first and second channels acquired while a
material volume of a material resident in the object undergoes a
configuration change,” as recited in claim 1, and similarly recited in claims
10, and 16. As found by the Examiner, Lasenby discloses a method of
monitoring a three-dimensional object that includes recording first and
second image data that is representative of the object at first and second time
instants, and calculating differential data that is representative of a change in
the configuration of the object between the first and second time instants.
See Final Act. 6 (citing Lasenby ¶¶ 77–80, Fig. 1); see also Ans. 3–4.
According to the Examiner, Lasenby’s recording of first and second data
teach or suggests the aforementioned limitation of the claims.
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The Examiner further found Berlinger, when combined with Lasenby,
teaches or suggests, inter alia, “[reconstructing], only upon [a] identifier
successfully identifying said image portions, from the identified image
portions a 3D image volume element, the reconstructed 3D image volume
element representative only of said identified image portions,” as recited in
claim 1, and similarly recited in claims 10 and 16. As found by the
Examiner, Berlinger discloses a method for tracking image sections which
represent indicator body parts of a monitored patient that includes acquiring
image sections of an indicator body part that has changed direction and
calculating a three-dimensional position of the body part based on the
acquired image sections. Final Act. 7–8 (citing Berlinger 11:61–12:3,
15:61–67, 21:34–46, and Figs. 6a, 6b); see also Ans. 4–5. According to the
Examiner, Berlinger’s calculation of a three-dimensional position teaches or
suggests the aforementioned limitation of the claims.
The Examiner additionally found Murashita, when combined with
Lasenby and Berlinger, teaches or suggests “wherein an identification
operation fails when at least one of a size and signal-to-noise ratio of one of
the image portions in one of the subsequent first channel image and the
subsequent second channel image is less than a boundary value,” and
“wherein the identification operation is successful when the at least one of
the size and the signal-to-noise ratio of both an image portion in the
subsequent first channel image and an image portion in the subsequent
second channel image are larger than the boundary value,” as recited in
claim 1, and similarly recited in claims 10 and 16. As found by the
Examiner, Murashita discloses an ultrasound diagnostic apparatus that
determines whether a detected object within a living organism is greater than
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or less than a predetermined size, and identifies the object either as a
bloodstream or noise based on the determination. See Final Act. 13 (citing
Murashita ¶ 16); see also Ans. 5–6.
According to the Examiner, in light of Murashita’s disclosure of an
identification operation that succeeds or fails based on a boundary value, the
aforementioned limitations recite a specific solution from a finite number of
predictable solutions that would have been obvious for one of ordinary skill
in the art to try with a reasonable expectation of success. See Ans. 6–8.
This is because the aforementioned limitations merely apply Murashita’s
identification operation to the two image portions disclosed by the
combination of Lasenby and Berlinger, and condition the success of the
identification operation on the size of both image portions being greater than
a boundary value, as opposed to the size of only one of the image portions to
be greater than a boundary value.6 See id.
Appellant raises several contentions in its Appeal Brief and Reply
Brief regarding the rejection of claims 1, 10, and 16.7 We group Appellant’s
contentions into three categories: Appellant’s contentions addressing
Lasenby (see Reply Br. 3–4), Appellant’s contentions addressing Berlinger

6 We do not reach the Examiner’s findings that the aforementioned
limitations of claim 1, 10, and 16 are contingent limitations (Ans. 8–9), as it
is not necessary to reach these findings to resolve the appeal.
7 In light of the Examiner’s decision to modify the rejection of claims 1, 3, 5,
6, 10, 11, 13, 15, and 16 to include Murashita in the Examiner’s Answer, we
have considered Appellant’s arguments first raised in its Reply Brief even
though Appellant did not previously raise these arguments in its Appeal
Brief. See 37 C.F.R. § 41.41(b) (“Any argument raised in the reply brief
which was not raised in the appeal brief, or is not responsive to an argument
raised in the examiner’s answer . . . will not be considered by the Board for
purposes of the present appeal, unless good cause is shown.”).
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(see Reply Br. 4–5), and Appellant’s contentions addressing Murashita (see
Appeal Br. 15–19; see also Reply Br. 6–9). We address Appellant’s
contentions below in turn.
Regarding Lasenby, Appellant contends Lasenby fails to teach or
suggest receiving image data from two different channels. See Reply Br. 4.
We are not persuaded by this argument. Lasenby explicitly discloses the
monitoring apparatus that implements the monitoring method includes at
least two video cameras. See Lasenby ¶¶ 83–84, Fig. 2 (illustrating
monitoring apparatus 10 comprising two 200Hz, 640x480 resolution
cameras 24). Lasenby further discloses that the disclosed image data
comprises captured image data from each camera of the at least two video
cameras. See Lasenby ¶ 89. As Lasenby’s image data captured from the at
least two video cameras teaches or suggests at least two video channels, we
agree with the Examiner that Lasenby teaches or suggests receiving images
of an object from first and second channels, as substantially recited in claims
1, 10, and 16.
Appellant additionally contends Lasenby merely discloses monitoring
a configuration change to an object itself, rather than a change in a material
resident in an object that undergoes a configuration change. See Reply
Br. 4. This argument is not persuasive either. Lasenby discloses monitoring
a change of a configuration of an object using calculated differential data,
where the differential data may present a change of surface, shape, position,
volume, and/or three-dimensional shape of an object being monitored. See
Lasenby ¶ 80. Lasenby further discloses that the method may be applied to
monitor a change of configuration of a part of an object, rather than of the
whole object. See id. In light of these disclosures of Lasenby, we agree
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with the Examiner that Lasenby teaches or suggests receiving images
acquired while a material volume of a material resident in an object
undergoes a configuration change, as substantially recited in claims 1, 10,
and 16.
With respect to Berlinger, Appellant contends Berlinger merely
disclosed detecting movement of a body part, and does not disclose
reconstructing any three dimensional images from any identified image
portions, let alone doing so “only upon the identifier successfully identifying
said image portions,” as recited in claim 1, and similarly recited in claims 10
and 16. See Reply Br. 5. This argument is not persuasive. The claims do
not recite reconstructing a three-dimensional image; instead, claim 1 recites
“[reconstructing] . . . a 3D image volume element . . . representative only of
said identified image portions,” and claims 10 and 16 recite similar
limitations. Berlinger discloses calculating a three-dimensional position of a
treatment body part from two respective positions of the treatment body part
in two images of the treatment body part generated from two different
directions. See Berlinger 15:62–16:3. As Berlinger’s three-dimensional
position teaches or suggests the claimed three-dimensional image volume
element, we agree with the Examiner that Berlinger teaches or suggests
reconstructing, only upon identification of image portions, from the
identified image portions a three-dimensional image volume element
representative only of the identified image portions, as substantially recited
in claims 1, 10, and 16.
Appellant further contends Berlinger merely discloses images of
monitored body parts and does not teach or suggest images that include
material resident in an object that undergoes a configuration change. See
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Reply Br. 5. We are not persuaded by this argument either because the
Examiner relied upon Lasenby, rather than Berlinger, as teaching or
suggesting material resident in an object that undergoes a configuration
change. One cannot show non-obviousness by attacking references
individually when the rejection is based on a combination of references. See
In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986); see also In re
Keller, 642 F.2d 413, 425 (CCPA 1981).
Regarding Murashita, Appellant contends Murashita, whether
considered individually or in combination with Lasenby and Berlinger, does
not disclose or suggest determining success when a size of both image
portions are larger than a boundary value and determining failure when one
image portion is smaller than the boundary value, as substantially recited in
claims 1, 10, and 16. See Appeal Br. 18. However, the test for obviousness
is not whether the claimed invention is expressly suggested in any one or all
of the references. Rather, the test is what the combined teachings of those
references would have suggested to those of ordinary skill in the art. See
also In re Keller, 642 F.2d at 425. Thus, this argument is not persuasive in
light of the Examiner’ findings regarding the combination of Lasenby,
Berlinger, and Murashita, discussed above.
Appellant additionally contends Murashita identifies success and
failure based on a boundary value applied to a single image portion, and no
additional second image portion is used in Murashita to identify success or
failure. See Reply Br. 6–7. We are not persuaded by this argument either
because the Examiner relied upon Lasenby, not Murashita, for teaching or
suggesting receiving two image portions from two channels. Murashita
discloses an identification operation that succeeds or fails based on a
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boundary value corresponding to an image portion. We therefore agree with
the Examiner’s finding that Murashita, when combined with Lasenby and
Berlinger, teaches or suggests an identification operation that fails when at
least one of a size and signal-to-noise ratio of one of the image portions is
less than a boundary value, and that is successful when the at least one of the
size and signal-to-noise ratio of both image portions are larger than a
boundary value, as substantially recited in claims 1, 10, and 16.
Appellant further contends that even when two image portions are
compared to a threshold to determine success or failure, the combination of
Lasenby, Berlinger, and Murashita does not teach or suggest using different
image portions for determining success or failure (i.e., requiring a size of
only one image portion to be less than a boundary value to identify failure
while requiring a size of both image portions to be greater than a boundary
value to identify success). Reply Br. 7. This argument is also not
persuasive. We agree with the Examiner that requiring a size of both image
portions, rather than a size of only one image portion, to be greater than a
boundary value to identify success is merely one of “a finite number of
identified, predictable solutions, with a reasonable expectation of success,”
and thus does not patentably distinguish the claims from the combination of
references. KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 421 (2007); see
also Ans. 7–8.
Thus, we are not persuaded that the Examiner erred in finding
independent claims 1, 10, and 16 unpatentable in light of the combination of
Lasenby, Berlinger, and Murashita. No separate arguments are presented for
the dependent claims. See Appeal Br. 10; see also Reply Br. 2. Therefore,
we are not persuaded that the Examiner erred in finding claims 1–6, 8–11,
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and 13–16 unpatentable in light of the cited prior art references.
Accordingly, we sustain the rejection of claims 1–6, 8–11, and 13–16 under
35 U.S.C. § 103(a).
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
4 112, second
paragraph
Indefiniteness 4
1, 3, 5, 6,
10, 11, 13,
15, 16
103(a) Lasenby, Berlinger,
Murashita
1, 3, 5, 6,
10, 11, 13,
15, 16

2, 4 103(a) Lasenby, Berlinger,
Murashita, Ohishi
2, 4
8, 9, 14 103(a) Lasenby, Berlinger,
Murashita, Royalty
8, 9, 14
Overall
Outcome
1–6, 8–11,
13–16

TIME PERIOD FOR RESPONSE
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)(1)(iv).
AFFIRMED