Ex Parte Chen et al

Patent Trial and Appeal Board

Sep 14, 2017

13092574 (P.T.A.B. Sep. 14, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
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APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/092,574 04/22/2011 Shigao Chen 630666.00289.MMV-2010-108 6855
26710 7590 09/18/2017
QUARLES & BRADY LLP
Attn: IP Docket
411 E. WISCONSIN AVENUE
SUITE 2350
MILWAUKEE, WI 53202-4426
EXAMINER
BRUTUS, JOEL F
ART UNIT PAPER NUMBER
3786
NOTIFICATION DATE DELIVERY MODE
09/18/2017 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):
pat-dept@quarles.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SHIGAO CHEN and JAMES F. GREENLEAF
(Applicant: MAYO Foundation for Medical Education and Research)
Appeal 2016-000969
Application 13/092,574
Technology Center 3700
Before KEN B. BARRETT, JAMES P. CALVE, and
SEAN P. O’HANLON, Administrative Patent Judges.
O’HANLON, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
MAYO Foundation for Medical Education and Research (Appellant)
appeals under 35 U.S.C. § 134 from the Examiner’s September 18, 2014,
non-final decision (“Non-Final Act.”) rejecting claims 1—18. We have
jurisdiction over this appeal under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
Appeal 2016-000969
Application 13/092,574
SUMMARY OF THE INVENTION
Appellant’s disclosure is directed to “systems and methods for shear
wave dispersion ultrasound vibrometry (‘SDUV’).” Spec. 1 3. Claims 1 and
15 are independent. Claim 1, reproduced below from page A-l (Claims
Appendix) of the Appeal Brief, is illustrative of the claimed subject matter:
1. A method for measuring a mechanical property of a
subject with an ultrasound system, the steps of the method
comprising:
a) producing a shear wave that propagates outward from
a vibration origin in the subject by applying to the vibration
origin with an ultrasonic transducer during each of a plurality of
successive push cycles, a set of ultrasonic push pulses
comprising a plurality of ultrasonic push pulses spaced apart in
time by a push pulse repetition period with each push pulse set
being spaced apart in time by a push pulse set repetition period
that is longer than the push pulse repetition period;
b) acquiring echo signal data from at least two motion
detection points in the subject by applying to the at least two
motion detection points with the ultrasonic transducer, a
plurality of ultrasonic detection pulses spaced apart in time by a
detection pulse repetition period;
c) detecting a signal indicative of the shear wave
produced in step a) by analyzing the echo signal data acquired
in step b);
d) determining at least one of a phase and an amplitude
of the signal detected in step c);
e) calculating a mechanical property of the subject using
the at least one of a phase and an amplitude determined in step
d); and
wherein successive ones of the plurality of ultrasonic
detection pulses are interleaved in time with successive ones of
the plurality of ultrasonic push pulses.
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Application 13/092,574
REFERENCES
The Examiner relies on the following prior art references in rejecting
the claims on appeal:
Angelsen US 2006/0052699 A1 Mar. 9,2006
Palmeri US 2008/0249408 A1 Oct. 9,2008
Shigao Chen et al., Shearwave Dispersion Ultrasound Vibrometry (SDUV)
for Measuring Tissue Elasticity and Viscosity, 56 no. 1 IEEE Transactions
on Ultrasonics, Ferroelectrics, and Frequency Control 55—62 (Jan. 2009)
(hereinafter “Chen”)
REJECTIONS
Claims 1—12 and 15—18 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Chen.
Claim 13 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Chen and Angelsen.
Claim 14 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Chen, Angelsen, and Palmeri.
ANALYSIS
Rejection Based on Chen
Claims 1, 2, 4, 6—9, 11, and 12
The Examiner finds that Chen discloses a method for measuring a
mechanical property of a subject substantially as recited in claim 1, but “may
not explicitly mention ... a set of push pulses that are interleaved with
detection pulses, wherein each set of push pulses is spaced apart in time by a
longer duration than the repetition period of the individual push pulses in the
set.” Non-Final Act. 2—3. However, the Examiner notes that “[Chen]
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Application 13/092,574
disclose[s] a push sequence typically consists of 10 tonebursts . . . every 10
millisecond[s] (ms)” and “acquisition at consecutive locations was delayed
by 2 s(seconds).” Id. at 3. The Examiner interprets this two second delay to
correspond to the recited push pulse set repetition period, and reasons that it
would have been obvious to one of ordinary skill
to have a plurality of push pulses spaced apart in time by a push
pulse repetition period and a set of push pulses that are
interleaved with detection pulses, wherein each set of push
pulses is spaced apart in time by a longer duration than the
repetition period of the individual push pulses in the set[,] in
order to increase tissue displacement.
Id. at 4.
Appellant traverses, first making arguments regarding features of
Appellant’s disclosure that are not reflected in the claims. For example,
Appellant argues that “[t]he invention recited in claim 1 . . . allows for an
increase in the amplitude of vibratory motion in a subject while remaining
within FDA safety limits of ultrasound intensity” (Br. 5—6) and “Chen fails
to teach or suggest to a person having ordinary skill in the art that a single
push pulse could be replaced with a set of multiple push pulses each having
a shorter duration than the original single pulse” {id. at 9-10). These
arguments are not persuasive because limitations not appearing in the claims
cannot be relied upon for patentability. In re Self, 671 F.2d 1344, 1348
(CCPA 1982).
Appellant also argues that
Chen fails to teach or suggest applying a set of push pulses that
contains multiple push pulses that are each spaced apart in time
by a pulse repetition period, PRPt, that is shorter than the pulse
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Application 13/092,574
repetition period, PRPp, by which each set of push pulses [is]
spaced apart in time.
Br. 7. Continuing, Appellant asserts that “Chen is limited to teaching that
only a single push pulse be applied per push cycle, as illustrated in FIG. 3 of
Chen,” and that “[t]he only reasonable interpretation of Chen is that each
and every push pulse applied in Chen is spaced apart by the same pulse
repetition period, PRPp.” Id. at 8.
These arguments fail to apprise us of error because they do not
address the rejection as set forth by the Examiner. As summarized above,
the Examiner interprets Chen’s group of ten tonebursts (the first two of
which are shown in Figure 3) as corresponding to the recited set of
ultrasonic push pulses having a pulse repetition period of 10 ms, and the two
second delay between acquiring echo pulses at consecutive locations as
corresponding to the recited push pulse set repetition period. See Non-Final
Act. 2-4; see also Chen 57—59. As correctly noted by Appellant (Br. 8),
Chen discloses that each of its ten tonebursts is spaced apart by the same
period. See Chen 57. As correctly noted by the Examiner (Non-Final Act.
3), Chen discloses that acquisitions at consecutive locations, which are
acquired by additional sets of ten tonebursts, are delayed by two seconds.
See id. at 58—59. Thus, the Examiner’s interpretation that Chen teaches
consecutive push pulse sets spaced apart by a longer period than the spacing
of the individual push pulses within the sets is supported by a preponderance
of the evidence.
Appellant also argues that Chen does not disclose or teach applying a
plurality of push pulse cycles to a single vibration origin. Br. 10. Rather,
according to Appellant, “Chen teaches that. . . multiple measurements are
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Application 13/092,574
made after moving the push transducer to different lateral positions in 1
millimeter increments.” Id.
We agree that, in the experiments discussed in Chen, “[t]he push
transducer was moved laterally ... to change the shear wave propagation
distance.” Chen 58. However, Chen discloses that such push transducer
movement is an alternative to keeping the push transducer stationary and
detecting the shear wave at two locations. See id. at 56. Chen also explains
that the use of separate transducers is “to simulate a single array transducer
because currently we have no access to control the operation of a
commercial array transducer.” Id. at 58. The Examiner’s reference to “one
array transducer” (Non-Final Act. 3) indicates that the Examiner is
interpreting the separate transducers mentioned in Chen to be separate ones
of a transducer array, as disclosed by Chen, which would not require any
transducer to be moved. Thus, we find Appellant’s arguments to be
unpersuasive of error.
Accordingly, for the foregoing reasons, we sustain the Examiner’s
rejection of claim 1 and its dependent claims 2, 4, 6—9, 11, and 12, which are
not argued separately, as being unpatentable over Chen.
Claim 3
Claim 3 depends from claim 1 and further requires that “at least two
of the plurality of ultrasonic push pulses are applied between successive
ones of the plurality of ultrasonic detection pulses.” Br. A-2 (Claims App.).
The Examiner finds that “[Chen] disclose[s] at least two of the plurality of
ultrasonic push pulses are applied between successive ones of the plurality
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of ultrasonic detection pulses.” Non-Final Act. 4 (citing Chen, Fig. 3, 57);
see also Ans. 12.
Chen discloses multiple detection pulses between each push pulse, but
does not disclose multiple push pulses between successive detection pulses.
See Chen Fig. 3. Thus, we agree with Appellant that Chen fails to teach or
suggest the pulse sequence recited in claim 3. See Br. 11—12.
Accordingly, we do not sustain the Examiner’s rejection of claim 3 as
being unpatentable over Chen.
Claim 5
Claim 5 depends from claim 1 and further requires that “the plurality
of ultrasonic push pulses and the plurality of ultrasonic detection pulses are
interleaved in time such that an equal duration of time exists between each
successive ultrasonic pulse.” Id. at A-2 (Claims App.). The Examiner finds
that “[Chen] disclose[s] the plurality of ultrasonic push pulses (from the
push transducer) and the plurality of ultrasonic detection pulses (from the
detect transducer) are interleaved in time such that an equal duration of time
(each toneburst has a duration 0.3 ms) exists between each successive
ultrasonic pulse (10 tonebursts were transmitted).” Non-Final Act. 5 (citing
Chen 59); see also Ans. 13.
Chen discloses multiple detect beams (i.e., detection pulses) between
successive push beams (i.e., push pulses), such that the amount of time
between successive pulses, which includes both detection and push pulses, is
non-uniform. See Chen Fig. 3. Thus, we agree with Appellant that Chen
fails to teach or suggest the pulse sequence recited in claim 5. See
Br. 12-13.
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Accordingly, we do not sustain the Examiner’s rejection of claim 5 as
being unpatentable over Chen.
Claim 10
Claim 10 depends from claim 1 and further requires that “the push
pulse repetition period and the detection pulse repetition period are equal.”
Id. at A-3 (Claims App.). The Examiner finds that “[Chen] disclose[s] the
push pulse repetition period and the detection pulse repetition period are
equal (each toneburst has a duration 0.3 ms).” Non-Final Act. 6 (citing
Chen 59); see also Ans. 13.
For the same reasons as discussed above regarding the rejection of
claim 5, we agree with Appellant that Chen fails to teach or suggest the
pulse sequence recited in claim 10. See Br. 14—15.
Accordingly, we do not sustain the Examiner’s rejection of claim 10
as being unpatentable over Chen.
Claims 15—18
Claim 15 recites a method for measuring a mechanical property of a
subject that is substantially similar to the method recited in claim 1. Id. at
A-5 (Claims App.). Appellant presents arguments for the patentability of
claim 15 that are substantially similar to those discussed above with respect
to the rejection of claim 1. Id. at 15—16.
Accordingly, for the same reasons as discussed above, we sustain the
rejection of claim 15 and its dependent claims 16—18, which are not argued
separately, as being unpatentable over Chen.
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Rejection Based on Chen and Angelsen
Appellant does not separately address the rejection of claim 13, which
depends from claim 1. See id. at 4—16. Accordingly, Appellant has waived
any argument of error, and we summarily sustain the rejection of this claim
as being unpatentable over Chen and Angelsen. See Hyatt v. Dudas, 551
F.3d 1307, 1314 (Fed. Cir. 2008) (explaining that summary affirmance
without consideration of the substantive merits is appropriate where an
appellant fails to contest a ground of rejection).
Rejection Based on Chen, Angelsen, and Palmeri
Appellant does not separately address the rejection of claim 14, which
depends from claim 1. See id. at 4—16. Accordingly, Appellant has waived
any argument of error, and we summarily sustain the rejection of this claim
as being unpatentable over Chen, Angelsen, and Palmeri.
DECISION
The Examiner’s decision to reject claims 1—18 is affirmed as to claims
1, 2, 4, 6—9, and 11—18, and is reversed as to claims 3, 5, and 10.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED-IN-PART
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