Ex Parte Pelissier et alDownload PDFPatent Trial and Appeal BoardDec 18, 201712703706 (P.T.A.B. Dec. 18, 2017) Copy Citation 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 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 12/703,706 02/10/2010 Laurent Pelissier ULT-10-7512 4645 (ANA1192-US) 23266 7590 12/20/2017 DRIGGS, HOGG, DAUGHERTY & DEL ZOPPO CO., L.P.A. 38500 CHARDON ROAD DEPT. DLBH WILLOUGBY HILLS, OH 44094 EXAMINER IP, JASON M ART UNIT PAPER NUMBER 3777 NOTIFICATION DATE DELIVERY MODE 12/20/2017 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): usptocommunications@driggslaw.com carole@driggslaw.com mwheeler @ driggslaw. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte LAURENT PELISSIER, KRIS DICKIE, CORINA LEUNG, and BO ZHUANG1 Appeal 2017-001290 Application 12/703,706 Technology Center 3700 Before ELIZABETH A. LaVIER, JOHN E. SCHNEIDER, and KRISTI L. R. SAWERT, Administrative Patent Judges, SCHNEIDER, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134(a) involving claims to an ultrasound system, which have been rejected as obvious. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. STATEMENT OF THE CASE “Ultrasound imaging is widely used in a range of medical applications. One area in which ultrasound imaging is used is to guide 1 Appellants identify the Real Party in Interest as Analogic Corporation. Appeal Br. 2. Appeal 2017-001290 Application 12/703,706 biopsy procedures.” Spec. 13. “A problem with the use of ultrasound to guide a needle or wire in any of these procedures, or like procedures, is that it may be difficult to determine the spatial relationship between the ultrasound image and the needle or wire.” Spec. 14. The Specification describes a trackable ultrasound probe for use in acquiring ultrasound data. Spec. 17. Claims 1—17 and 20 are on appeal.2 Claims 1,10 and 20 are the independent clams and read as follows: 1. A trackable ultrasound probe for use in acquiring ultrasound data, the probe comprising: a transducer element array for acquiring the ultrasound image; a mount supporting the transducer element array at a fixed location and orientation relative to a housing; a position marker enclosed within the housing, the position marker trackable relative to a reference coordinate system by a position sensing system; a fixture rigidly connected to the mount, the fixture, including: a recess, supporting the position marker and configured to substantially constrain a rotation of the position marker in at least two degrees of rotational freedom about a first axis and a second axis, wherein the first axis and the second axis are perpendicular to each other, and configured to substantially constrain a translational displacement of the position marker along the at least two degrees of translational freedom about the first axis and the second axis, which are perpendicular to each other; wherein the orientation of the position marker in the two degrees of rotational freedom determined by the recess and the 2 Claims 18 and 19 are also pending in the application but have been withdrawn from consideration. Final Act. 1. 2 Appeal 2017-001290 Application 12/703,706 location of the position marker along the two degrees of translational freedom determined by the recess correspond to a pre-determined reference relationship relative to the transducer element array; wherein the position marker rotates along a free degree of the rotational freedom about a third axis, which is different from the first axis and the second axis, to an orientation in the recess, with respect to the transducer element array, based on the pre determined reference relationship; and wherein the position marker translates along a free degree of the translational freedom about a fourth axis, which is different from the first axis and the second axis, to a location in the recess, with respect to the transducer element array, based on the pre-determined reference relationship. 10. A trackable ultrasound probe for use in acquiring ultrasound data, the probe comprising: a housing; a transducer element array for acquiring ultrasound data, the transducer element array supported at a fixed location and orientation in the housing; a fixture including a recess having an end at a pre determined distance from the transducer element array; and a position marker, the entirety of which is translatable and rotatable in the recess of the fixture with respect to the transducer array, wherein a position of the marker is trackable relative to a reference coordinate system by a position sensing system, and the position marker is snugly fitted in the recess, whereby an axis by which the orientation of the position marker is measured is aligned with a longitudinal axis of the recess; and wherein the housing encloses the position marker. 20. A trackable ultrasound probe for use in acquiring ultrasound data, the probe comprising: a housing; 3 Appeal 2017-001290 Application 12/703,706 a transducer element array for acquiring ultrasound data, the transducer element array supported at a fixed location and orientation in the housing; a fixture supported at a fixed location and orientation in the housing, the fixture comprising a bore having an end at a pre-determined distance from the transducer element array; and a movable position marker entirely moveable within the bore, wherein a position of the moveable position marker in the bore, with respect to the transducer element array, is trackable relative to a reference coordinate system by a position sensing system, wherein the movable position marker is snugly fitted in the bore, wherein an axis by which the orientation of the position marker is measured is aligned with an axis of the bore. The claims have been rejected under 35 U.S.C. § 103(a) as unpatentable over Sliwa3 in view of Dunki-Jacobs.4 DISCUSSION Issue The issue with respect to this rejection is whether a preponderance of the evidence supports the Examiner’s conclusion that claims 1—17 and 20 would have been obvious over Sliwa combined with Dunki-Jacobs. The Examiner finds that Sliwa discloses a trackable ultrasound probe comprising a transducer array for acquiring an ultrasound image; a mount for supporting the transducer array in a fixed location and orientation relative to the housing and a position marker located within the housing of 3 Sliwa Jr. et al., US 6,122,538, issued Sept. 19, 2000 (“Sliwa”). 4 Dunki-Jacobs et al., US 2008/0159653 Al, published July, 3, 2008 (“Dunki-Jacobs”). 4 Appeal 2017-001290 Application 12/703,706 the probe such that the position marker is trackable relative to a reference coordinate system by a position sensing system. Final Act. 3. The Examiner finds that Sliwa Jr. et al do not explicitly disclose a fixture rigidly connected to the mount, the fixture including: a recess, supporting the position marker and configured to substantially constrain a rotation of the position marker in at least two degrees of rotational freedom about a first axis and a second axis, wherein the first axis and the second axis are perpendicular to each other, and configured to substantially constrain a translational displacement of the position marker along the at least two degrees of translational freedom about the first axis and the second axis, which are perpendicular to each other; wherein the orientation of the position marker in the two degrees of rotational freedom determined by the recess and the location of the position marker along the two degrees of translational freedom determined by the recess correspond to a pre-determined reference relationship relative to the transducer element; wherein the position marker rotates along a free degree of the rotational freedom about a third axis, which is different from the first axis and the second axis, to an orientation in the recess, with respect to the transducer element array, based on the predetermined reference relationship; and wherein the position marker translates along a free degrees of the translational freedom about a fourth axis, which is different from the first axis and the second axis, to a location in the recess, with respect to the transducer element array, based on the pre-determined reference relationship. Final Act. 3^4. The Examiner goes on to find that Dunki-Jacobs teaches an imaging probe, equipped with a sensor which may be a gyroscope, an inertial measurement device or a bubble sensor. Final Act. 4. The Examiner concludes that “it would have been obvious to one of ordinary skill in the art at the time the invention was made to apply the gyroscope of Dunki-Jacobs 5 Appeal 2017-001290 Application 12/703,706 et al to the probe of Sliwa et al, as to provide a means of determining an orientation of a probe.” Appellants contend that neither of the references teach or suggest the claimed fixture which allows both rotational and translational movement of the position marker. Appeal Br. 5. Appellants argue that neither of the references teach a fixture with a recess or a bore where the position marker can be rotated within the recess or bore. Id. Principles of Law [T]he examiner bears the initial burden, on review of the prior art or on any other ground, of presenting a prima facie case of unpatentability. If that burden is met, the burden of coming forward with evidence or argument shifts to the applicant. 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. In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). A proper § 103 analysis requires “a searching comparison of the claimed invention—including all its limitations—with the teaching of the prior art.” In re Ochiai, 71 F.3d 1565, 1572 (Fed. Cir. 1995). Analysis Appellants have the better position. The Examiner has failed to establish a prima facie case of obviousness as the Examiner cited references that do not teach or suggest all the limitations of the claims. As the Examiner points out, Sliwa fails to teach or suggest a fixture as defined by the present claims. Final Act. 3^4. The Examiner has not pointed to any teaching or suggestion in Dunki-Jacobs which cures this deficiency. The 6 Appeal 2017-001290 Application 12/703,706 Examiner only refers to Dunki-Jacobs for the teaching of a motion sensor such as a gyroscope. Final Act. 4. The Examiner has not pointed to, nor have we found, any teaching in Dunki-Jacobs that describes or suggests the fixture defined by the claims. The Examiner contends that Figure 2A of Sliwa teaches the position marker occupying a bore within the housing. Ans. 8. We are not persuaded. Figure 2A is reproduced below. V Figure 2a from Sliwa showing a medical ultrasound probe. While Sliwa teaches that the sensor, 15, is housed within the probe, there is nothing in Figure 2 A or in the accompanying text that teaches a fixture having either a recess or a bore into which the sensor is fitted, wherein the fixture limits the movement of the sensor along at least two axes. See Sliwa, col. 9,11. 5 40. The Examiner concedes this point in the Answer, where the Examiner states that Sliwa does not teach a movable position marker entirely moveable within the bore, wherein a position of the moveable position marker, with respect to the transducer element array, is trackable relative to a 7 Appeal 2017-001290 Application 12/703,706 reference coordinate system by a position sensing system, wherein the moveable position marker is snugly fitted in the bore, wherein an axis by which the orientation of the position marker is measured is aligned with an axis of the bore. Ans. 8. The Examiner contends that one skilled in the art would know how to modify the device of Sliwa to incorporate the sensor of Dunki-Jacobs to create the claimed device. Ans. 10. We are unpersuaded. As the Examiner points out, positional sensors can be fixed or configured in countless ways. Ans. 10. The Examiner has not explained why one skilled in the art would use the specific structure recited in the claims to limit the movement of the sensor as described in the claims. CONCLUSION We conclude that a preponderance of the evidence does not support the Examiner’s conclusion that the claims would have been obvious over Sliwa combined with Dunki-Jacobs. SUMMARY We reverse the rejection under 35 U.S.C. § 103(a). REVERSED 8 Copy with citationCopy as parenthetical citation