Dipen N. Sinha et al.

Patent Trials and Appeals Board

Aug 30, 2019

13225787 - (D) (P.T.A.B. Aug. 30, 2019)

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.
13/225,787 09/06/2011 Dipen N. Sinha 068177/532064 2317
826 7590 08/30/2019
ALSTON & BIRD LLP
BANK OF AMERICA PLAZA
101 SOUTH TRYON STREET, SUITE 4000
CHARLOTTE, NC 28280-4000
EXAMINER
MERCADO, ALEXANDER A
ART UNIT PAPER NUMBER
2856
NOTIFICATION DATE DELIVERY MODE
08/30/2019 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):
usptomail@alston.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte DIPEN N. SINHA, CURTIS F. OSTERHOUDT, and
CRISTIAN PANTEA
____________________

Appeal 2018-008855
Application 13/225,787
Technology Center 2800
____________________

Before JEFFREY T. SMITH, BRIAN D. RANGE, and JANE E. INGLESE,
Administrative Patent Judges.

RANGE, Administrative Patent Judge.

DECISION ON APPEAL
SUMMARY
Appellants1 appeal under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 1–30. We have jurisdiction. 35 U.S.C. § 6(b).
We REVERSE.

1 According to Appellants, the real party in interest is Los Alamos National
Security, LLC. Appeal Br. 2.
Appeal 2018-008855
Application 13/225,787

2
STATEMENT OF THE CASE2
Appellants describe the invention as relating to detecting fluids in
particles and, more particularly, measuring size, concentration, and size
distribution of particles in fluids and determining fluid flow patterns. Spec.
¶ 3. The method makes use of ultrasonic energy which can be used to detect
particles where a liquid or pipe is optically opaque so that optical detection
techniques do not work. Id. ¶¶ 4, 12. Claim 1, reproduced below with
emphases added to certain key recitations, is illustrative of the claimed
subject matter:
1. A method for visualizing particles suspended in a first
static or flowing fluid in a container having an axis, comprising:
directing a beam of pulsed ultrasonic energy from a first
transducer through a coupler containing a second fluid for transmitting
the ultrasonic energy into the first fluid;
sweeping the first transducer over a chosen angle relative to the
axis at a selected rate such that the beam of ultrasonic energy is moved
through the first fluid through the chosen angle at the selected rate; and
detecting pulse-echo return signals reflected from the particles in
the first fluid during the sweep of the transducer;
whereby, the particles are visualized.
Appeal Br. 17 (Claims App.).
REFERENCES
The Examiner relies upon the prior art below in rejecting the claims
on appeal:

2 In this Decision, we refer to the Final Office Action dated May 1, 2017
(“Final Act.”), the Appeal Brief filed December 13, 2017 (“Appeal Br.”), the
Examiner’s Answer dated July 11, 2018 (“Ans.”), and the Reply Brief filed
September 11, 2018 (“Reply Br.”).
Appeal 2018-008855
Application 13/225,787

3
Dory
Robinson
Nikoonahad
Leffert et al.
(“Leffert”)
Sinha
Pagoulatos et al.
(“Pagoulatos”)
US 4,418,698
US 4,693,120
US 4,852,575
US 4,882,934

US 2004/0144175 A1
US 2006/0020207 A1
Dec. 6, 1983
Sept. 15, 1987
Aug. 1, 1989
Nov. 28, 1989

July 29, 2004
Jan. 26, 2006
Needles et al., Interframe Clutter Filtering For High Frequency Flow
Imaging, Ultrasound in Med. & Biol., Vol. 33, No. 4, 591–600, 2007
(“Needles”).
REJECTIONS
On appeal, the Examiner maintains (Ans. 2–3) the following
rejections:
Rejection 1. Claims 1, 2, 4, 5, 20, 21, and 24 under 35 U.S.C. § 102
as anticipated by Needles. Final Act. 3.
Rejection 2. Claims 3 and 22 under 35 U.S.C. § 103 as unpatentable
over Needles in view of Nikoonahad. Id. at 4.
Rejection 3. Claims 6–8 and 25–27 under 35 U.S.C. § 103 as
unpatentable over Needles in view of Pagoulatos. Id. at 5.
Rejection 4. Claims 9, 10, 28, and 29 under 35 U.S.C. § 103 as
unpatentable over Needles in view of Sinha. Id. at 6.
Rejection 5. Claims 11 and 30 under 35 U.S.C. § 103 as unpatentable
over Needles in view of Robinson. Id.
Rejection 6. Claims 12 and 14–16 under 35 U.S.C. § 103 as
unpatentable over Needles in view of Dory. Id. at 7.
Rejection 7. Claim 13 under 35 U.S.C. § 103 as unpatentable over
Needles in view of Dory and Nikoonahad. Id. at 8.
Appeal 2018-008855
Application 13/225,787

4
Rejection 8. Claims 17 and 18 under 35 U.S.C. § 103 as unpatentable
over Needles in view of Dory and Pagoulatos. Id.
Rejection 9. Claim 19 under 35 U.S.C. § 103 as unpatentable over
Needles in view of Dory and Robinson. Id. at 9.
Rejection 10. Claim 23 under 35 U.S.C. § 103 as unpatentable over
Needles in view of Dory and Leffert. Id. at 10.
ANALYSIS
To resolve this appeal, we focus on the Appellants’ arguments that
identify error and on the Examiner’s determinations that relate to the error.
The Examiner rejects independent claims 1 and 20 (among other
claims) under 35 U.S.C. § 102 as anticipated by Needles and rejects
independent claim 12 as obvious over Needles in view of Dory. Final Act.
3, 7. The Examiner finds that Needles teaches “whereby, the particles are
visualized.” Final Act. 3 (citing Needles). In the Answer, the Examiner
interprets visualization broadly and determines that Needles’s particles “are
visualized via the visualization of their mean flow velocities (Figures 4, 5).”
Ans. 4.
Appellants persuasively argue that the independent claims require
visualization of particles rather than merely calculating mean flow velocity
of particles within a fluid stream. Appeal Br. 10, 12; Reply Br. 4–7. We
begin our analysis of Appellants’ argument with claim construction. In
particular, we agree with Appellants that, in view of the Specification’s
context, each independent claim (claims 1, 12, and 20) requires visualization
of individual particles. Reply Br. 7. The Specification consistently indicates
that visualization means imaging individual particles. For example,
Appeal 2018-008855
Application 13/225,787

5
paragraph 31 of the Specification states that Figures 4A-4D show
visualization of nano-sized particles using the invention. In particular,
Figures 4C and 4D show ultrasound pictures. See also, Spec. ¶¶ 6 (referring
to prior art use of ultrasonic imaging to “visualize various internal organs in
humans or animals”), 15 (explaining that the invention permits detecting,
identifying, and imaging small particles in optically opaque fluids), 30
(indicating that “visualize the dynamics of the particle separation process”
means taking a sequence of images of particles). We also agree with
Appellants that the “visualization” recitation of claim 12 bears patentable
weight. Reply Br. 2–4.
In view of this claim construction, we agree with Appellants that the
Examiner has not adequately established that Needles teaches the
“visualizing particles” and “particles are visualized” recitations of the
independent claims. Appeal Br. 10–12; Reply Br. 4–7. Rather, the
Examiner errs by relying on Needles’s teachings regarding determination of
mean flow velocities as being a visualization. Ans. 4.
We, therefore, do not sustain the Examiner’s rejection of claims 1, 12,
and 20. Because the remaining claims on appeal depend from claims 1, 12,
and 20 and because the Examiner’s treatment of those claims do not
establish “visualizing particles” or that “particles are visualized,” we also do
not sustain the Examiner’s rejection of those claims.
DECISION
For the above reasons, we reverse the Examiner’s rejections of
claims 1–30.
REVERSED