Appeal 2006-2514
Application 10/233,562
Appellants contend that one of ordinary skill in the art would not have
found the motivation to combine the applied references to achieve the
presently claimed invention because Gilhuijs is concerned with breast
tumors whereas Kennedy is concerned with the brain (Br. 4-6).
We affirm.
ISSUE
Have the Appellants shown that the skilled artisan would not have
combined the teachings of the applied references to arrive at the claimed
subject matter?
FINDINGS OF FACT
Appellants’ invention takes a three-dimensional image of an organ
(e.g., the brain or nervous system), and identifies at least one biomarker (Fig.
1). A quantitative measurement is made of the biomarker, and the results are
stored in a storage medium (Figs. 1 and 4).
In an appeal of Appellants’ related application Serial Number
10/241,763 (Appeal Number 2005-2414), the Board found the following
facts about the teachings of Gilhuijs in a decision dated October 27, 2005:
Notwithstanding the examiner’s mixing of volume
and surface, we find that the examiner’s findings
of fact (answer, pages 3 and 4) also points out
tumor extent/shape (column 1, lines 14 through 16)
as a biomarker. Gilhuijs derives “at least one
quantitative measurement of the at least one
biomarker” by “quantification of the tumor
surface” (column 6, lines 61 through 64). We
additionally find that the “radius” is also a
quantitative measurement of the extent/shape
tumor biomarker and is also a quantitative
measurement of the malignant lesion with a
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