Ex Parte Kristofferson et al

Patent Trial and Appeal Board

Nov 14, 2016

11412614 (P.T.A.B. Nov. 14, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
111412,614 0412712006
45436 7590 11/16/2016
DEAN D, SMALL
THE SMALL PA TENT LAW GROUP LLC
225 S. MERAMEC, STE. 725T
ST. LOUIS, MO 63105
FIRST NAMED INVENTOR
Kjell Kristofferson
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.
213762 (553-1293) 8121
EXAMINER
GUPTA,VANI
ART UNIT PAPER NUMBER
3777
NOTIFICATION DATE DELIVERY MODE
11/16/2016 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):
Docket@splglaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KJELL KRISTOFFERSON and SEV ALD BERG
Appeal2014-006418
Application 11/412,614
Technology Center 3700
Before LINDA E. HORNER, LISA M. GUIJT, and PAUL J. KORNICZKY,
Administrative Patent Judges.
KORNICZKY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF CASE
Appellants, Kjell Kristofferson et al., 1 appeal under 35 U.S.C. § 134
from the Examiner's decision rejecting claims 1--44. 2 We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
Appellants identify General Electric Company as the real party in
interest. Br. 3.
2 The Office Action Summary states that claims 1--43 are pending, but
the Final Action (Final Act. 14, 17), Appellants' Brief (Br. 26-27), and
Examiner's Answer (Ans. 18, 28) address claim 44. We treat the statement
in the Office Action Summary as a typographical error.
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Application 11/412,614
THE CLAIMED SUBJECT MATTER
The claims are directed to "diagnostic ultrasound systems, and more
particularly, to [a] method and system for measuring flow through a heart
valve." Spec. i-f 1. Claims 1, 7, and 15 are independent. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. A system for presenting multiple parallel slices,
compnsmg:
a display for displaying ultrasound data over time, the
ultrasound data formed from a plurality of scan planes acquired
by an array of transducers defining a face, the plurality of scan
planes intersecting the face of the array;
a user interface for defining a proximal plane and a distal
plane within the ultrasound data that are parallel to one another,
the proximal and distal planes intersecting multiple scan planes
and not intersecting the face of the array, the proximal and distal
planes defining a region of interest (ROI), the user interface
receiving a user input to adjust an orientation of one of the
proximal plane or distal plane to change the ROI, wherein a
positional relationship between the proximal plane and distal
plane is maintained, including at least one of an angular
orientation or a distance therebetween; and
a signal processor for automatically extracting a plurality
of intermediate slices from the ultrasound data within the ROI
and between the proximal and distal planes, the plurality of
intermediate slices being parallel with respect to each other, the
plurality of intermediate slices intersecting multiple scan planes
and not intersecting the face of the array, the plurality of
intermediate slices being displayed on the display.
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REFERENCES
In rejecting the claims on appeal, the Examiner relied upon the
following prior art:
Yanof
Roundhill ' 194 3
Taylor
Abuhamad
Roundhill '853
us 5,371,778
US 6,602, 194 B2
US 2002/0198452 Al
US 2005/0251036 Al
US 2006/0098853 Al
REJECTIONS
The Examiner made the following rejections:
Dec. 6, 1994
Aug. 5, 2003
Dec. 26, 2002
Nov. 10, 2005
May 11, 2006
1. Claims 1-6, 23-32, and 34--36 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Roundhill '194, Taylor, Yanof, and
Abuhamed. 4, 5
2. Claims 7, 12, 21, and 22 stand rejected under 35 U.S.C § 103(a) as
being unpatentable over Roundhill '853, Taylor, and Yanof.
3 The Examiner also references U.S. 5,720,291 (pub. Feb. 24, 1998)
(hereinafter "Schwartz") which is cited in Roundhill '194.
4 Although the Examiner's summary statement of the rejection does not
refer to claims 27-32, 35, and 36, the Examiner's substantive explanation of
the rejection (Final Act. 2-8) and Appellants' brief (Br. 24--25) address these
claims. Thus, we understand the summary statement's failure to explicitly
recite claim 27-32, 35, and 36 is a typographical error.
5 On page 8 of the Final Action, the rejections of claims 32, 34, and 35
reference, without explanation, Roundhill '853. Because the Examiner's
summary statement of the rejections (Final Act. 2), the Appellants' Brief
(Br. 24--25), and the Examiner's Answer (Ans. 24--26) do not refer to or
address Roundhill '853, we understand that the references to Roundhill '853
in the rejections of claims 32, 34, and 35 are typographical errors.
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3. Claims 8-11, 13, 14, 33, and 37--40 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Roundhill '853, Taylor, Yanof, and
Roundhill ' 194. 6
4. Claims 15-20 and 41--44 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Roundhill '853, Roundhill '194, Yanof, and
Abuhamed.
Appellants seek our review of these rejections.
ANALYSIS
The Rejection of Claims 1-6, 23-32, and 34-36 as
Unpatentable Over Roundhill '194, Taylor, Yanof, and Abuhamed
Claims 1-3, 26-30, 32, and 34
Appellants argue claims 1-3, 26-30, 32, and 34 as a group. Br. 14--
25. We select claim 1 as the representative claim, and claims 2-3, 26-30,
32, and 34 stand or fall with claim 1. 37 C.F.R. § 41.37(c)(l)(iv). The
remaining claims 4--6, 23-25, 31, 35, and 36 are addressed below.
With respect to claim 1, the Examiner finds that Roundhill ' 194
suggests a user interface (28) capable of allowing an operator to
define a proximal plane and a distal plane within the ultrasound
data that are parallel to one another, the proximal and distal
planes intersecting multiple scan planes and not intersecting the
face of the array (the proximal and distal planes defining a region
of interest (ROI)).
Final Act. 2. The Examiner also finds that:
6 The Examiner made a finding that Roundhill ' 194 discloses the
subject matter of claim 33, but failed to explicitly list claim 33. Final Act.
14 (findings as to claim 37). Thus, we understand that claim 33 was
inadvertently omitted from the Final Action. Adv. Act. mailed August 15,
2013.
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Via incorporation of Schwartz ... as stated in column 7, line 52,
Roundhill [' 194] describes elaborate features of the ( c) a signal
processor (image processor, 22). Based on this description,
Roundhill [' 194] explains being able to automatically extract[] a
plurality of intermediate slices from the ultrasound data within
the ROI and between the proximal and distal planes, the plurality
of intermediate slices being parallel with respect to each other,
the plurality of intermediate slices being displayed on the
display.
Final Act. 3. The Examiner further finds that:
as Abuhamed explains (paragraph [OJ 04]), it would be obvious
to one skilled in the art, having the teachings of Roundhill (' 194)
via incorporation of Schwartz and Y anof et al. ... to modify the
3D Doppler multiple slice extraction teachings of Roundhill
(' 194) via incorporation of Schwartz with the teachings of Y anof
et al. so that one could extract from these 3D projections multiple
slices to pinpoint specific portions of an anatomy not available
through the volumetric-regions of interest of Yanof et al.
Final Act. 5.
Appellants present several arguments asserting that "the combination
of Roundhill '194, Taylor, Yanof, and Abuhamad does not describe, teach,
or suggest all of the limitations in claim 1." Br. 14. First, in response to the
Examiner's findings that Roundhill '194 discloses extracting and displaying
intermediate slices, Appellants initially assert that:
Roundhill ' 194 [does not] describe, teach, or suggest extracting
any planes between image slices that result from using/adjusting
planes 82 and 84 .... As can be seen ... in Fig. 9 of Roundhill
'194, the only planes that are extracted for display correspond
to the two horizontal planes 82 and 84. Thus, a user is able to
move these two planes 82 and 84 up or down as viewed in Fig. 9
to select image planes for display. Accordingly, Roundhill '194
only teaches using two planes that may be moved to select
images for display.
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Br. 15; see also Br. 16 ("Roundhill '194 does not describe, teach, or suggest
that any intermediate slices can be extracted."); Br. 22 ("There is no
description, teaching or suggestion within the Roundhill '194 to extract
intermediate slices.").
However, in responding to the Examiner's determination "that one of
ordinary skill in the art would want to extract or obtain singular slices in
cases where pin-pointed data of a region of interest is needed and only
singular slices would provide this information," Appellants subsequently
admit that "Roundhill '194 already provides this ability by allowing a user to
move the horizontal planes 82 and 84 to positions within the volume to
where pin-pointed data of a region of interest is needed and only singular
slices would provide this information." Br. 21. Thus, Appellants concede
that Roundhill ' 194 extracts or selects intermediate slices between the
proximal and distal planes of the region of interest.
Further, as the Examiner correctly finds, Figure 9 of Roundhill '194
discloses (1) a wedge-shaped region of interest in the left diagram and
(2) intermediate slices extracted and displayed in the two middle diagrams.
Ans.22-24(citingtoRoundhill '194, 7:58-8:16). Roundhill '194,for
example, explains that "horizontal planes 82 and 84 can be moved up and
down through the volumetric region (as indicated by the arrows) ... until
they intersect horizontal planes of the volume which are to be selectively
displayed in images 92 and 94" (col. 8, 11. 1---6), and "images 92, 94 and 96
can be processed by the 2D beamformer to produce highly diagnostic 2D
images of planar regions where accurate, detailed and precise diagnoses are
being performed" (col. 8, 11. 12-16).
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For these reasons, Appellants do not identify error in the Examiner's
findings that Roundhill ' 194 extracts or selects intermediate slices between
the proximal and distal planes of the region of interest. Additionally,
Appellants do not address the Examiner's finding (Final Act. 5) that
Abuhamed discloses extracting and displaying intermediate slices, as recited
in claim 1 .
In a second argument addressing Schwartz, Appellants contend that
Schwartz does not remedy the purported deficiencies of Roundhill '194. Br.
1 7. Appellants argue that "it is clear that Schwartz is only describing an
image processing technique and not any type of extraction of intermediate
slices as required by claim 1," and "there is nothing to suggest that any
individual slices should be automatically extracted and displayed." Br. 17;
see also Br. 17-21. In response to the Examiner's determination that "by
reverse engineering, one may rely on (or extract) the image planes of
Schwartz individually," Appellants submit that "reverse engineering is not
the proper standard to support an obviousness rejection." Br. 21. Appellants
also argue that the "planes of Schwartz intersect the face of the array" so
that Schwartz "cannot [disclose] intermediate slices intersecting multiple
scan planes that do not intersect the face of the array," as recited in claim 1.
Br. 22. However, as discussed above, the Examiner finds that Roundhill
'194, not Schwartz, discloses these allegedly missing limitations.
With regard to the "automatically" extracting limitation, the Examiner
relies on Roundhill's incorporation of Schwartz. Final Act. 3 (finding that
based on the description in Roundhill '194 of Schwartz's method,
"Roundhill (' 194) explains being able to automatically extract[] a plurality
of intermediate slices ... "). Appellants' argument fails to address the
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rejection as articulated by the Examiner, which modifies the extraction of
slices as disclosed in Roundhill '194 in view of Schwartz' automatic
processing technique.
Next, Appellants argue that the Examiner used "impermissible
hindsight reconstruction to reverse engineer Applicants' application." Br.
22. However, as discussed above, the Examiner's findings regarding
extracting and displaying intermediate slices are supported by explicit
teachings in Roundhill ' 194 and Abuhamed. Appellants do not identify any
knowledge relied upon by the Examiner that was gleaned only from
Appellants' disclosure and that was not otherwise within the level of
ordinary skill at the time of the invention, thereby obviating Appellants'
assertion of hindsight. See In re McLaughlin, 443 F.2d 1392, 1395 (CCPA
1971 ). Thus, Appellants do not apprise us of error.
Finally, Appellants argue that "while the horizontal planes 82 and 84
of Roundhill '194 may define image planes for display, these planes do not
define any [region of interest] ROI as required by claim 1." Br. 23. The
Examiner correctly finds that Figure 9, for example, illustrates a "volumetric
region of the body" which is studied and imaged by a clinician.
Roundhill '194, 7:58-8: 17; see Ans. 22-24. Appellants' contention that
Roundhill '194 does not define a "region of interest" is wrongly premised on
the fact that Roundhill '194 does not use the same terminology as claim 1.
In re Bond, 910 F.2d 831, 832 (Fed. Cir. 1990) (There is no ipsissimis verbis
test for determining whether a reference discloses a claim element, i.e.,
identity of terminology is not required.). Appellants' arguments do not show
error by the Examiner.
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For these reasons, we sustain the rejection of claim 1, and claims 2-3,
26-30, 32, and 34 fall with claim 1.
Claims 4 and 6
With respect to claim 4, Appellants argue:
There is nothing that would suggest that any of the processes
described in Roundhill '194 necessarily use interpolation. In
fact, the specific algorithms and equations are not described in
Roundhill '194. It is just a[ s] likely that other types of
mathematical operations are used instead of interpolation. Thus,
it is submitted that the required interpolation limitation is not
inherently taught by Roundhill '194.
Br. 24. However, the Examiner finds that Schwartz, the processor of which
Roundhill '194 teaches can be used in the system of Roundhill '194,
discloses the interpolation limitation. See Final Act. 5-6 (citing Schwartz,
4:37---65, 5:45-7:4); Ans. 24--25 (citing Schwartz, 5:9---67, 6:1-17). Thus,
Appellants do not address the rejection as articulated by the Examiner, and
do not apprise us of Examiner error. We sustain the rejection of claim 4.
With respect to claim 6, Appellants argue that claim 6 is patentable
for the same reasons presented for claim 4. Br. 25. For the same reasons
that the rejection of claim 4 is sustained, the rejection of claim 6 is sustained.
Claim 5
With respect to claim 5, Appellants merely argue that "neither
Roundhill '194 [nor] Schwartz describe[] any tracking of like anatomical
structures as required by claim 5." Br. 24--25. 37 C.F.R. § 41.37 requires
"more substantive arguments in an appeal brief than a mere recitation of the
claim elements and a naked assertion that the corresponding elements were
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not found in the prior art." In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir.
2011); see generally Ex parte Belinne, No. 2009-004693, 2009 WL 2477843
(BP AI 2009) (informative) ("[W]e find that the Examiner has made
extensive specific fact finding ... with respect to each of the argued claims.
Appellants' argument ... repeatedly restates elements of the claim language
and simply argues the elements are missing from the reference. However,
Appellants do not present any arguments to explain why the Examiner's
explicit fact finding is in error."). Appellants fail to apprise us of error in the
Examiner's findings. We sustain the rejection of claim 5.
Claim 23
Claim 23 (emphasis added) recites "the signal processor is configured
to maintain a relative distance between each of the plurality of intermediate
planes when a location of one of the proximal and distal planes is changed."
Appellants argue that:
While Schwartz describes that the image planes retain a spatial
orientation to each other by being stored in the time or spatial
sequence in which the planes were obtained, this is not the same
as maintaining a relative distance. Schwartz is merely describing
that the arrangement of the slices is maintained in order in time
or sequence, but does not describe marinating [sic] a relative
distance between planes.
Br. 25. Appellants are correct - spatial orientation between planes is not
the same as relative distance between planes. Because the Examiner does
not identify where Roundhill '194 or Schwartz discloses that the signal
processor maintains the "relative distance" between the planes when the
proximal or distal planes are changed, we cannot sustain the rejection of
claim 23.
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Claims 24, 25, and 31
With respect to claims 24, 25, and 31, Appellants argue that "because
no intermediate planes are described, taught, or suggested as discussed
above [with respect to claim 1 ], the limitations of claims 24, 25 and 31 with
respect to the intermediate planes likewise are not described, taught, or
suggested." Br. 25. For the same reasons that the rejection of claim 1 is
sustained, the rejection of claims 24, 25, and 31 is sustained.
Claims 3 5 and 3 6
Claim 3 5 (emphasis added) recites that "a positional relationship
between the plurality of intermediate slices and the proximal and distal
planes is maintained when the orientation of the proximal or distal plane is
adjusted." Claim 36 (emphasis added) recites "the plurality of intermediate
slices are parallel and have an equidistant relationship between the proximal
and distal planes. "7
With respect to claims 35 and 36, the Examiner finds that Roundhill
'194, via incorporation of Schwartz, and Y anof, disclose a plurality of
intermediate slices (e.g., planes 82 and 84) which are parallel and have an
equidistant relationship between proximal and distal planes. Final Act. 8
(citing Roundhill '194, Fig. 9, 7:58-8:16); Ans. 25-26. Appellants merely
argue that "maintaining a temporal or sequence order arrangement is not the
same, nor suggests any specific positioned orientation," and do not explain
why the Examiner's finding is incorrect. Br. 25.
7 We find that wording of claim 3 6 a bit confusing, and query how a
"plurality" of intermediate planes can have an "equidistant relationship"
between "proximal and distal planes," and whether claim 36 contains a
typographical error.
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With respect to claim 35, maintaining a parallel relationship between
planes 82 and 84, as disclosed in Schwartz, is maintaining a "positional
relationship," as broadly recited in claim 35. Thus, we sustain the rejection
of claim 3 5.
With respect to claim 36, parallel planes do not necessarily maintain
an "equidistant relationship" with each other, as broadly recited in claim 36.
Because the Examiner does not identify where Roundhill '194, Schwartz, or
Y anof disclose that the parallel planes maintain an equidistant relationship
with other, we cannot sustain the rejection of claim 36.
The Rejection of Claims 7, 12, 21, and 22 as
Unpatentable Over Roundhill '853, Taylor, and Yanof
Independent claim 7 recites, in part, "user selected planes intersecting
multiple scan planes and not intersecting the face of the array." Appellants
argue that the Examiner's rejection of claim 7 based on Roundhill '853 is
incorrect because "all of the planes in ... Fig. 3 of Roundhill '853 intersect
the source point at the face of the array." Br. 26. In response, the Examiner
agrees that the image planes through the apex in Fig. 3 in Roundhill '853
and the image plane (e.g., di) in Taylor intersect the face of the probe. Ans.
26. The Examiner correctly finds that the deficiencies of Roundhill '853 and
Taylor are remedied by Roundhill '194 which discloses image planes 82 and
84 in Figure 9 which do not intersect the face of the probe. Ans. 26.
However, Roundhill '194 is not cited in the rejection of claim 7. Thus, the
Examiner's rejection of claim 7 based upon Roundhill '853, Taylor and
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Yanof does not state a prima facie case ofunpatentability, and we cannot
sustain the rejection of independent claim 7, and claims 12, 21, and 22
which depend from claim 7.
The Rejection of Claims 8-11, 13, 14, 33, and 37-40 as
Unpatentable Over Roundhill '853, Taylor, Yanof, and Roundhill '194
Appellants merely argue that "[c]laims 8-11, 13, 14, and 37--40
depend from claim 7 and are patentable over the combination of Roundhill
'853, Taylor, Yanof and Roundhill '194 at least for the reasons set forth
above [with respect to claim 7]." Br. 26. However, although claim 7 may
be patentable over Roundhill '853, Taylor, and Yanof, the dependent claims
also stand rejected over Roundhill '194 which remedies the deficiencies of
Roundhill '853, Taylor, and Yanof. Appellants do not address the rejection
as articulated by the Examiner, and, thus, do not identify Examiner error.
We sustain the rejection of claims 8-11, 13, 14, and 37--40, as well as the
like rejection of claim 7 encompassed therein. Although the Examiner did
not expressly include independent claim 7 in this ground of rejection under
35 U.S.C. § 103(a), the Examiner's rejection of claim 8, which depends from
and thus incorporates all the limitations of claim 7, inherently includes a
rejection of claim 7. See Ormco Corp. v. Align Tech., 498 F.3d 1307, 1319
(Fed. Cir. 2007) (when a dependent claim is "found to have been obvious,
the broader claims ... must also have been obvious").
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Claim 33
Appellants argue "that claim 33 is patentable over the cited references
for at least the reasons discussed above with respect to claim 1." Br. 27.
Because the rejection of claim 1 is sustained, the rejection of claim 33 is
sustained.
The Rejection of Claims 15-20 and 41-44 as Unpatentable
Over Roundhill '853, Roundhill '194, Yanof, and Abuhamed
Claim 15 recites, in part, "measuring a flow jet area based on a first
slice at a first time position and measuring a flow jet area based on a second
slice at a second time position; and interpolating the flow jet area on the
ultrasound data between the first and second time positions."
Appellants first argue that "claims 15-20 and 41--44 are patentable
over Roundhill '853, Roundhill '194, Yanof, and Abuhamad [sic] at least for
the reasons set forth above [with respect to claims 1-14 and 21--40]." Br.
26. Appellants' argument is unpersuasive because claims 1-14 and 21--40
have different limitations than claims 15-20 and 41--44, and are rejected
over different combinations of prior art.
Appellants also argue that the Examiner's finding that "paragraph
[0036] of Roundhill '853 teaches the required 'interpolating the flow jet area
on the ultrasound data between the first and second time positions'" is
incorrect. Br. 26-27. According to Appellants,
Paragraph [0036] of Roundhill '853 only describes a tracking
system that re-surveys an image to account for movement to
make adjustments. However, compensation for movement is not
the same as interpolating data between two time positions. For
example, in Roundhill '853 the data is known and used to correct
for motion instead of interpolating to determine additional data.
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Br. 27.
Although Rejection 1 identified other art (e.g., Schwartz) that may
disclose interpolation of certain types of data, the basis of the Examiner's
rejection of the disputed limitation in claim 15 is limited to paragraph 36 of
Roundhill '853. We agree with Appellants that Roundhill '853 merely
discloses "automatically re-survey[ing] the image every so often in a
continuous mode to account for movement of the thing being imaged,
movement of the transducer, etc." Roundhill '853 i-f 36. It does not disclose
data interpolation. Thus, on the present record, we cannot sustain the
rejection of claim 15, and claims 16-20 and 41--44 which depend from claim
15.
DECISION
For the above reasons, the Examiner's rejection of claims 1-6, 24--32,
34, and 35 under 35 U.S.C. § 103(a) as being unpatentable over Roundhill
'194, Taylor, Yanof, and Abuhamed is AFFIRMED.
The Examiner's rejection of claims 23 and 36 under 35 U.S.C.
§ 103(a) as being unpatentable over Roundhill '194, Taylor, Yanof, and
Abuhamed is REVERSED.
The Examiner's rejection of claims 7, 12, 21, and 22 under 35 U.S.C
§ 103(a) as being unpatentable over Roundhill '853, Taylor, and Yanof is
REVERSED.
The Examiner's rejection of claims 7-11, 13, 14, 33, and 37--40 under
35 U.S.C. § 103(a) as being unpatentable over Roundhill '853, Taylor,
Yan of, and Roundhill '194 is AFFIRMED.
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The Examiner's rejection of claims 15-20 and 41--44 under 35 U.S.C.
§ 103(a) as being unpatentable over Roundhill '853, Roundhill '194, Yanof,
and Abuhamed is REVERSED.
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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