Ex Parte Clark et al

Patent Trial and Appeal Board

Jun 22, 2018

13508709 (P.T.A.B. Jun. 22, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/508,709 05/08/2012 Dennis Dean Clark
24737 7590 06/26/2018
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
465 Columbus A venue
Suite 340
Valhalla, NY 10595
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.
2009P01575WOUS 4421
EXAMINER
IP,JASONM
ART UNIT PAPER NUMBER
3737
NOTIFICATION DATE DELIVERY MODE
06/26/2018 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):
patti. demichele@Philips.com
marianne.fox@philips.com
katelyn.mulroy@philips.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DENNIS DEAN CLARK, BARRY C. SCHEIRER,
RY AN MANNING, and HAIFENG WANG 1
Appeal2017-007224
Application 13/508,709
Technology Center 3700
Before ERIC B. GRIMES, RICHARD M. LEBOVITZ, and
DAVID COTTA, Administrative Patent Judges.
GRIMES, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a high
intensity focused ultrasound transducer, which have been rejected as
obvious. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.
STATEMENT OF THE CASE
The "invention relates to medical diagnostic ultrasound systems and,
in particular, to ultrasonic transducers which are used for controlled heating
1 Appellants identify the Real Party in Interest as KONINKLIJKE PHILIPS
ELECTRONICS N V. Appeal Br. 3.
Appeal2017-007224
Application 13/508,709
of body tissues by high intensity focused ultrasound, known as HIFU."
Spec. 1 :4--8. "The HIFU technique can be used to selectively destroy
unwanted tissue within the body." Id. at 1:18-20.
Claims 1-14 and 16-21 are on appeal. Claim 1 is illustrative and
reads as follows (emphasis added):
1. A curved high intensity focused ultrasound (HIFU) transducer
compnsmg:
a curved piezoelectric array comprising opposite convex and concave
surfaces, the concave surface being a transmitting surface, the curved
piezoelectric array further comprising a plurality of acoustic transmission
areas;
a plurality of electrodes located on the surfaces of the curved
piezoelectric array for applying electrical transmit signals to the acoustic
transmission areas; and
a unitary, continuously formed curved matching layer sheet pre-
formed to a desired curvature of the curved transducer array and bonded to
the entire transmitting surface of the curved piezoelectric array, thereby
providing acoustic matching and electrical isolation for the transmitting
surface of the curved piezoelectric array, wherein the curved matching layer
includes a convex surface bonded to the transmitting surface of the curved
piezoelectric array.
Claim 21, the only other independent claim, is also directed to a high
intensity focused ultrasound (HIFU) transducer that comprises "a unitary,
continuously formed curved matching layer sheet pre-formed to a desired
curvature of the curved transducer array and bonded to the entire
transmitting surface of the curved piezoelectric array."
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Appeal2017-007224
Application 13/508,709
The claims stand rejected as follows:
Claims 1---6, 9-12, 14, 16, 19, and 20 under 35 U.S.C. § 103(a) as
obvious based on Kushculey, 2 Finsterwald, 3 and Kikuchi4 (Ans. 3);
Claims 7 and 8 under 35 U.S.C. § 103(a) as obvious based on
Kushculey, Finsterwald, Kikuchi, and Martin5 (Ans. 7);
Claim 13 under 35 U.S.C. § 103(a) as obvious based on Kushculey,
Finsterwald, Kikuchi, and Izumi 6 (Ans. 8);
Claims 17, 18, and 21under35 U.S.C. § 103(a) as obvious based on
Kushculey, Finsterwald, Kikuchi, and Erikson7 (Ans. 8-9).
DISCUSSION
The Examiner has rejected all of the claims on appeal as obvious
based on Kushculey, Finsterwald, and Kikuchi, by themselves or combined
with either Martin, Izumi, or Erikson. The same issue is dispositive for all
of the rejections.
The Examiner finds that Kushculey discloses a curved HIFU
transducer comprising a convex surface and a concave transmitting surface,
a plurality of acoustic transmitting areas, and a plurality of electrodes, but
does not disclose the matching layer sheet recited in the claims. (Ans. 3.)
The Examiner finds that Finsterwald teaches a matching layer bonded to the
transmitting surface (id.), but "[n]either Kushculey et al nor Finsterwald et al
2 Kushculey et al., US 2009/0230822 Al, pub. Sept. 17, 2009.
3 Finsterwald et al., US 5,637,800, iss. June 10, 1997.
4 Kikuchi et al., US 5,438,999, iss. Aug. 8, 1995.
5 Martin et al., US 2003/0171700 Al, pub. Sept. 11, 2003.
6 Izumi, US 5,743,862, iss. Apr. 28, 1998.
7 Erikson et al., US 2003/0018267 Al, pub. Jan. 23, 2003.
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Appeal2017-007224
Application 13/508,709
explicitly disclose that the curved matching layer is unitary and continuously
formed." Id. at 4.
The Examiner finds that "Kikuchi teaches a unitary and continuous
acoustic matching layer (Fig. 3)" and concludes that it would have been
obvious "to apply the unitary and continuous matching layer of Kikuchi to
the system of Kushculey et al and Finsterwald et al, as to provide a matching
layer with appropriate construction." Id.
Appellants argue that:
Kikuchi does not teach or suggest the first matching layer 3
being continuous over an array of piezoelectric elements. At
most, Kikuchi teaches that an array may be formed by slicing
the piezoelectric element 1 into strips. See Kikuchi, col. 4, lines
64-68. As seen in Figure 3, of Kikuchi, the cut lines (not
numbered) extend through the second matching layer 4, the first
matching layer 3, the piezoelectric element 1, and partially
through the backing member 2. Accordingly, as taught by
Kikuchi, cutting the piezoelectric element 1 into strips to form
the array destroys the continuity of the first matching layer 3.
Appeal Br. 5.
We agree with Appellants that the rejections are not supported by a
preponderance of the evidence. Kikuchi discloses "an ultrasonic transducer
which can exhibit a frequency characteristic having a wide band without
being affected by attenuation caused by the acoustic lens, and which can
enhance the sensitivity." Kikuchi 1 :49-52. The transducer "comprises a
concave piezoelectric element 1 ... , a backing member 2 ... [and] a first
acoustic matching layer 3 laid on the ... concave surface." Id. at 2:57----66.
Kikuchi' s Figures 1 and 3 are reproduced below:
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Appeal2017-007224
Application 13/508,709
FIG. FIG.
2
Figure 1 shows a "sectional view illustrating an ultrasonic transducer
in a first embodiment" and Figure 3 shows "an array of ultrasonic
transducers as shown in FIG. 1." Kikuchi 2:38--45. Kikuchi states that
"although it has been explained that the single piezoelectric element 1 is
used in the ultrasonic transducer in this embodiment, the so-called array type
ultrasonic transducer in which the piezoelectric element 1 is divided into
several strips can also exhibit the same effects." Id. at 4:63---68 (emphasis
added).
The Examiner notes that "there is no citation within Kikuchi to the
unnumbered 'cuts' that the Appellant is referring to and thus there is no
detailed explanation as to what the unnumbered lines in Figure 3 may be."
Ans. 12. However, "the examiner bears the initial burden, on review of the
prior art or on any other ground, of presenting a prima facie case of
unpatentability." In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992).
"After evidence or argument is submitted by the applicant in response,
patentability is determined on the totality of the record, by a preponderance
of evidence with due consideration to persuasiveness of argument." Id.
Here, Kikuchi states that its Figure 3 shows "an array of ultrasonic
transducers" and that a "single piezoelectric element" can be "divided into
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Application 13/508,709
several strips" to form a "so-called array type ultrasonic transducer."
Kikuchi 2:46 and 4:64--66. Thus, Kikuchi implies, even though it does not
expressly state, that the array of transducers shown in its Figure 3 was made
by dividing a single piezoelectric element into strips, meaning that the
acoustic matching layer 3 is not "a unitary, continuously formed curved
matching layer sheet ... bonded to the entire transmitting surface of the
curved piezoelectric array," as required by claim 1.
Kikuchi is ambiguous regarding the meaning of the unnumbered lines
shown in its Figure 3 but ambiguity does not support a prima facie case of
obviousness. "[W]hen obviousness is at issue, ... [t]he examiner, and if
later involved, the Board, retain the ultimate burden of persuasion on the
issue. If, as a matter of law, the issue is in equipoise, the applicant is entitled
to the patent." In re Oetiker, 977 F.2d at 1449 (J. Plager, concurring).
We therefore reverse the rejection of claim 1, and dependent claims
2-6, 9-12, 14, 16, 19, and 20, under 35 U.S.C. § 103 based on Kushculey,
Finsterwald, and Kikuchi. The rejections of claims 7, 8, 13, 17, 18, and 21
also rely on the Examiner's finding that Kikuchi discloses a unitary and
continuous matching layer in its Figure 3. Ans. 7-10. We therefore reverse
the other rejections on appeal for the reasons discussed above.
SUMMARY
We reverse all of the rejections on appeal.
REVERSED
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