Ex Parte Lysyansky et al

Patent Trial and Appeal Board

Aug 10, 2017

12410924 (P.T.A.B. Aug. 10, 2017)

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
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APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
12/410,924 03/25/2009 Peter Lysyansky 236127 (553-1484) 4173
45436 7590
DEAN D. SMALL
THE SMALL PATENT LAW GROUP LLC
225 S. MERAMEC, STE. 725T
ST. LOUIS, MO 63105
EXAMINER
PARK, PATRICIA JOO YOUNG
ART UNIT PAPER NUMBER
3777
NOTIFICATION DATE DELIVERY MODE
08/14/2017 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
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PETER LYSYANSKY, ZVI FRIEDMAN,
ANDREAS HEIMDAL, and GUNNAR HANSEN
Appeal 2016-004140
Application 12/410,9241
Technology Center 3700
Before ERIC B. GRIMES, JOHN E. SCHNEIDER, and
RACHEL H. TOWNSEND, Administrative Patent Judges.
TOWNSEND, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35U.S.C. § 134 involving claims to a method
for functional ultrasound imaging and an ultrasound imaging system, which
have been rejected as obvious. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
STATEMENT OF THE CASE
When using ultrasound systems to generate images of a heart, usually
several different images are acquired along three different imaging planes.
(Spec. 12.) “The three images may be combined to generate a combined
1 Appellants identify the Real Party in Interest as General Electric Company.
(Br. 3.)
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Application 12/410,924
image that shows the function of the entire myocardium or left ventricle.”
(Id.)
“Systems are also known that perform imaging to generate functional
information, for example of the myocardium, using three-dimensional
tracking.” (Id. 13.)
Appellants’ invention is directed to “ultrasound imaging systems
providing anatomical functional imaging, especially for cardiac imaging”
and a method for functional ultrasound imaging. (Id. H 1, 4.)
Claims 1—14, 16—29, and 31—33 are on appeal. Claims 1 and 21 are
representative and read as follows:
1. A method for functional ultrasound imaging, the method
comprising:
scanning a plurality of two-dimensional(2D) slices of an
imaged object using a 3D ultrasound probe, the 2D slices
sharing a common axis, the plurality of 2D slices corresponding
to a plurality of individual scan planes separated from one
another by an angular spacing to collectively define a 3D
dataset that is less than a full volume 3D dataset;
determining functional image information for the imaged
object by directly applying 2D tracking within each of the 2D
slices;
generating functional ultrasound image data for the
imaged object using the functional image information from
each of the 2D slices; and
displaying the functional ultrasound image data, wherein
the displaying further comprises configuring the functional
ultrasound image data as a bullseye plot having a plurality of
segments based on the plurality of 2D slices corresponding to
the plurality of individual scan planes separated from one
another by the angular spacing to define less than the full
volume 3D dataset.
(Br. 27.)
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21. An ultrasound imaging system comprising;
a 3D ultrasound probe configured to scan a plurality of
2D slices of an imaged object, the 2D slices sharing a common
axis, the plurality of 2D slices corresponding to a plurality of
individual scan planes separated from one another by an
angular spacing to collectively define a 3D dataset less than a
full volume 3D dataset and
a processor having a functional imaging module
configured to determine functional image information by
directly applying 2D tracking within each of the 2D slices and
generate functional ultrasound image data using the functional
image information from each of the 2D slices; and
a display to display the functional ultrasound image data
as a bullseye plot having a plurality of segments based on the
plurality of 2D slices corresponding to the plurality of
individual scan planes separated from one another by the
angular spacing to define that define less than the full volume
3D dataset.
(Br. 30.)
The following grounds of rejection by the Examiner are before us on
review:
Claims 1—3, 6, 16, 17, 19, 21, 32, and 33 under 35 U.S.C. § 103(a) as
unpatentable over Abe2 and Kawagishi.3
Claims 4, 5, 8—12, 18, 24, and 27—29 under 35 U.S.C. § 103(a) as
unpatentable over Abe, Kawagishi and Steen.4
Claims 7, 20, and 23 under 35 U.S.C. § 103(a) as unpatentable over
Abe, Kawagishi, and Belohlavek.5
2 Abe et al., US 2007/0038087 Al, published Feb. 15, 2007.
3 Kawagishi et al., US 2008/0077013 Al, published Mar. 27, 2008.
4 Eric Norman Steen, US 2005/0283078 Al, published Dec. 22, 2005.
5 Marek Belohlavek, US 5,871,019, issued Feb. 16, 1999.
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Claim 13 under 35 U.S.C. § 103(a) as unpatentable over Abe,
Kawagishi, Steen, and Belohlavek.
Claim 14 under 35 U.S.C. § 103(a) as unpatentable over Abe,
Kawagishi, Steen, and Detmer.6
Claim 22 under 35 U.S.C. § 103(a) as unpatentable over Abe,
Kawagishi, and Detmer.
Claims 25 and 26 under 35 U.S.C. § 103(a) as unpatentable over Abe,
Kawagishi, Steen, and Goffmet.7
Claim 31 under 35 U.S.C. § 103(a) as unpatentable over Abe,
Kawagishi, Steen, and Friedman.8
DISCUSSION
Obviousness over Abe and Kawagishi
The Examiner finds that Abe teaches a method for functional
ultrasound imaging as claimed except for the display of the functional
ultrasound image data being configured as a bullseye plot having a plurality
of segments based on the plurality of 2D slices corresponding to the plurality
of individual scan planes separated from one another by the angular spacing
to define less than the full volume 3D dataset. (Non-Final Action 5—6.) The
Examiner explains in the Answer that Abe teaches “multi plane acquisition
using 2-4 slices” which is less than a full volume 3D dataset, and mapping
motion information on a generated 2D image using 2D speckle tracking on a
tissue image. (Ans. 21.) The Examiner also explains that Abe specifically
6 Paul Ross Detmer, US 6,443,896 Bl, issued Sept. 3, 2002.
7 C. Goffmet et al., Speckle Tracking Echocardiography, Tech. & Servs.
Section, European Cardiovascular Disease, 1—3 (2007).
8 Friedman et al., US 2007/0258631 Al, published Nov. 8, 2007.
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teaches at paragraph 121 that its mapping process can employ “any image
data that is acquired at each point on the tissue” and that, at paragraphs 51
and 57, “Abe specifically teaches image data such as tissue image data
corresponding to each time phase and two dimensional image data can be
stored as raw image data for later processing.” (Id.) In light of the
foregoing, the Examiner notes that, although Abe teaches embodiments in
which volume data is obtained in order to carry out the mapping process,
“Abe’s invention also includes its use of mapping and further processing
directly from 2D slices, without forming the volume data and teaches
determining functional image information for the imaged object by directly
applying 2D tracking within each 2D slice[].” (Id.)
The Examiner further explains that, although Abe does not teach a
bullseye plot, Abe teaches that the mapping images can include polar
coordinates. (Id.; Non-Final Action 6.) The Examiner notes that Kawagishi,
which also teaches a functional ultrasound image system, teaches displaying
the functional image data as a bullseye plot where the polar map quantifies
the motion state of a partial region of the heart, and that this type of plot
“results in improved reliability and effectiveness of the diagnosis.” (Non-
Final Action 6.) The Examiner concludes that it would have been obvious to
one of ordinary skill in the art to include a bullseye plot in the method of
Abe, because such plots are well known in the art and are “suitable for
quantitatively evaluating the changes in motion state, and result[] in
improved reliability and effectiveness of the diagnosis.” (Id.)
We agree with the Examiner’s factual findings and conclusion that the
claimed invention set forth in independent claims 1,19, and 21 would have
been obvious from the teachings of Abe and Kawagishi.
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a. Determining functional image information for the imaged object by
directly applying 2D tracking within each of the 2D slices
In their Appeal Brief, Appellants argue that “[throughout Abe’s
explanation of each and every embodiment, a fundamental presumption is
that a volumetric data set is generated from the TSI images” either by
acquiring “a volumetric scan, or by scanning individual scan planes and then
interpolating between the scan planes to form an interpolated volumetric
data set” prior to orthogonal mapping. (Br. 14—15 (emphasis omitted).)
Appellants note that in the orthogonal mapping process of Abe in which
volumetric data is determined from a few slices, an arbitrary short or long
axis slice is designated from the full 3D volume data that was interpolated
from the actual scanned slices. (Id. at 15—16.) Appellants argue that this is
different from what is set forth in the independent claims, which “require
that the functional image information be obtained directly by applying 2D
tracking within each of the 2D slices [that were scanned].” (Id. at 16.)
Moreover, Appellants argue that Kawagishi “does not make up for the above
deficiencies” because “Kawagishi does not acquire[] individual 2D slices at
select planar acquisition angles, nor determine functional image information
within individual 2D slices.” (Id. at 17.) We do not find the foregoing
arguments persuasive.
We agree with the Examiner (Ans. 21), that Abe specifically
acknowledges that although the exemplification in the Specification
demonstrates the invention using the volume data acquired by
three-dimensional scanning or interpolation from a few slices, the invention
does not “always require the volume data.” (Abe 121.) In particular, Abe
states:
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For a concrete explanation, each embodiment described above
has exemplified the case wherein the volume data of a TSI
image associated with a diagnosis target is generated by using
the volume data acquired by three-dimensional scanning or the
like, and orthogonal mapping processing is performed by using
the generated volume data. However, orthogonal mapping
processing does not always require the volume data of a TSI
image associated with a diagnosis target. That is, it suffices for
this orthogonal mapping processing if there is image data from
which motion information in a direction orthogonal to a slice
can be acquired at each point on the tissue displayed on a short
axis view or long axis view selected for the generation of a
mapping image.
(Id. (emphasis added).) According to the Examiner, the foregoing
emphasized portion of Abe in combination with the fact that Abe teaches
“image data such as tissue image data corresponding to each time phase and
two dimensional image data can be stored as raw image data for later
processing ([0051] and [0057]),” and that speckle tracking is determined
directly on a 2D slice (referring to Abe H 79-82), means that Abe’s
invention “also includes its use of mapping and further processing directly
from 2D slices, without forming volume data and teaches determining
functional image information for the imaged object by directly applying 2D
tracking within each 2D slices.” (Ans. 21.) Appellants do not dispute what
is stated in Abe 1121, nor the Examiner’s interpretation of what one of
ordinary skill in the art would have understood from that paragraph in
combination with the other cited teachings in Abe, especially regarding
directly applying 2D speckle tracking on a 2D slice.
b. The claimed display of data configured as a bullseye plot
Appellants argue next that “[t]here is no teaching or suggestion in
Kawagishi of any technique for generating a polar map 4040 having
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segments based on data from particular scan planes” and that “[i]t must be
recognized, that in order to generate the polar maps 4040, Kawagishi
assumes that a volumetric data set is available from which to generate
MPR[, multi-planar reconstruction,] images.” (Br. 19.) Appellants further
contend that “[g]iven that Abe acquires a full volumetric data set, any
combination of Kawagishi and Abe would utilize the full volumetric data set
in Abe (as used in Kawagishi) to form MPR images from slabs of volumetric
data and then to generate polar maps 4040 also from slabs of volumetric
data.” {Id. at 20.)
We do not find Appellants’ argument persuasive as it does not take
into consideration Abe’s teaching that the full volumetric data set is not
necessary. (Abe 121.) That Kawagishi may obtain a full volumetric set is
not decisive either, as the Examiner relies on Abe for a process that does not
rely on obtaining a full volumetric set.
Appellants’ argument that one of ordinary skill in the art “would not
generate the claimed type of bull’s-eye plots from a sparse data set made
only from 2D slices that are separated from one another” (Br. 18) is also not
persuasive. “An assertion of what seems to follow from common experience
is just attorney argument and not the kind of factual evidence that is required
to rebut a prima facie case of obviousness.” In re Geisler, 116 F.3d 1465,
1470 (Fed. Cir. 1997).
As the Examiner explained, and Appellants do not contest, a “[bjull’s
eye plot is widely used in presenting data, especially in presenting functional
image data.” (Ans. 22.) Moreover, Kawagishi indicates that such a plot is
also known as a “polar map” (Kawagishi 1146) and Abe teaches that
displaying a projection image can be “a developed image based on polar
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coordinates” (Abe 1124). We do not understand Abe’s teaching regarding
polar coordinates to only be applicable to a process that involves obtaining a
full volume set as this teaching in Abe comes after Abe’s teaching that using
volume data is not necessary.
In light of the foregoing, Appellants do not persuade us that the
Examiner erred in rejecting claim 1 as being obvious over Abe and
Kawagishi.
Appellants do not argue independent claims 19 and 21 or dependent
claims 2, 6, 16, 17, 32, and 33 separately from claim 1 and, therefore, those
claims fall with claim 1. 37 C.F.R. § 41.37(c)(l)(iv).
c. Obviousness of claim 3
Appellants contend that the Examiner’s rejection of claim 3 is in error
because “Abe does not teach or suggest to perform 2D tracking to determine
the functional image information where the 2D tracking performs 2D
speckle tracking in the 2D slices for left ventricular function.” (Br. 22.)
Appellants again rely on the assertion that Abe is directed to a process that
requires first obtaining a volume data set and then selects an arbitrary slice
from the interpolated data volume data determined from a few scan slices.
(Id. at 20—21.) For the reasons discussed above, we do not find this
argument persuasive.
d. Obviousness of claims 4, 5, 8—12, 18, 24, and 27—29
Appellants contend that claims 4, 5, 8—12, 18, 24, and 27—29 “are
patentable for reasons set forth above in connection with independent claims
1,19 and 21.” (Br. 23.) We do not find this argument persuasive for the
reasons discussed with respect to claim 1 above.
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e. Obviousness of claims 7, 20, and 23
Appellants contend that claims 7, 20, and 23 “are patentable for
reasons set forth above in connection with independent claims 1,19 and 21.”
(Br. 23.) We do not find this argument persuasive for the reasons discussed
with respect to claim 1 above.
/ Obviousness of claim 13
Appellants contend that claim 13 “is patentable for reasons set forth
above in connection with independent claim 1.” (Br. 23.) We do not find
this argument persuasive for the reasons discussed with respect to claim 1
above.
g. Obviousness of claim 14
Appellants contend that claim 14 “is patentable for reasons set forth
above in connection with independent claim 1.” (Br. 23.) We do not find
this argument persuasive for the reasons discussed with respect to claim 1
above.
h. Obviousness of claim 22
Appellants contend that claim 22 “is patentable for reasons set forth
above in connection with independent claim 19.” (Br. 24.) We do not find
this argument persuasive for the reasons discussed with respect to claim 1
above.
i. Obviousness of claims 25 and 26
The Examiner notes that Abe does not teach “details of the speckle
tracking for a left ventricle function.” (Non-Final Action 20.) The
Examiner notes, however, that Goffmet teaches that a speckle tracking
echocardiograph can be used to assess left ventricle function, “where speckle
tracking is performed from frame to frame” to “evaluate strain, velocity,
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rotation of left ventricles.” (Id. at 20—21.) The Examiner contends that it
would have been obvious to one having ordinary skill in the art to
incorporate the teachings of Goffmet of the known use of speckle tracking to
analyze left ventricle function into Abe as modified by Kawagishi and Steen
to provide “improved accuracy in analyzing the functional parameters of left
ventricle as well as improve spatial and temporal resolution.” (Id. at 21.)
Appellants dispute the Examiner’s conclusion because Abe “does not
assess left ventricular function” and there is “[n]o legitimate reason [extant]
for Abe to abandon its primary purpose, . . . tissue strain analysis, in favor of
an unrelated and separate diagnostic imaging physiologic analysis.” (Br.
22.) We do not find Appellants’ argument persuasive.
There is no dispute that Abe teaches speckle tracking. Moreover, as
Appellants concede, Abe describes the determination of torsional motion.
(Br. 21—22.) Goffmet teaches that speckle tracking “offers the unique
opportunity to assess torsional deformation of the LV.” (Goffmet 2.) Thus,
even though Abe does not “asses left ventricle function,” we agree with the
Examiner that it would have been obvious to do so in light of Goffmet’s
teaching that the same speckle tracking taught in Abe can be used to assess
left ventricle function to analyze a parameter that Abe teaches can be
determined. The test of obviousness is “whether the teachings of the prior
art, taken as a whole, would have made obvious the claimed invention.” In
re Gorman, 933 F.2d 982, 986 (Fed. Cir. 1991).
We do not agree that using speckle tracking to asses left ventricle
function would abandon Abe’s primary purpose, particularly, as there is
nothing in the claim language that prohibits both tissue strain analysis and
left ventricle function via torsion assessment. Appellants’ method claim 1,
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from which claims 25 and 26 depend, is a “comprising” claim. “The
transition ‘comprising’ in a method claim indicates that the claim is open-
ended and allows for additional steps.” Invitrogen Corp. v. Biocrest Mfg.,
L.P., 327 F.3d 1364, 1368 (Fed. Cir. 2003).
For the reasons discussed, Appellants do not persuade us that the
Examiner erred in rejecting claims 25 and 26 for obviousness over Abe,
Kawagishi, Steen, and Goffinet.
j. Obviousness of claim 31
Appellants contend that claim 31 “is patentable for reasons set forth
above in connection with independent claim 1.” (Br. 24.) We do not find
this argument persuasive for the reasons discussed with respect to claim 1
above.
SUMMARY
We affirm the rejection of claims 1—3, 6, 16, 17, 19, 21, 32, and 33
under 35 U.S.C. § 103(a) as unpatentable over Abe and Kawagishi.
We affirm the rejection of claims 4, 5, 8—12, 18, 24, and 27—29 under
35 U.S.C. § 103(a) as unpatentable over Abe, Kawagishi and Steen.
We affirm the rejection of claims 7, 20, and 23 under 35 U.S.C.
§ 103(a) as unpatentable over Abe, Kawagishi, and Belohlavek.
We affirm the rejection of claim 13 under 35 U.S.C. § 103(a) as
unpatentable over Abe, Kawagishi, Steen, and Belohlavek.
We affirm the rejection of claim 14 under 35 U.S.C. § 103(a) as
unpatentable over Abe, Kawagishi, Steen, and Detmer.
We affirm the rejection of claim 22 under 35 U.S.C. § 103(a) as
unpatentable over Abe, Kawagishi, and Detmer.
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We affirm the rejection of claims 25 and 26 under 35 U.S.C. § 103(a)
as unpatentable over Abe, Kawagishi, Steen, and Goffmet.
We affirm the rejection of claim 31 under 35 U.S.C. § 103(a) as
unpatentable over Abe, Kawagishi, Steen, and Friedman.
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).
AFFIRMED
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