10725431 (B.P.A.I. Aug. 21, 2012)

Ex Parte Brabrand

Board of Patent Appeals and InterferencesAug 21, 2012

10725431 (B.P.A.I. Aug. 21, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE 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. 10/725,431 12/03/2003 Knut Brabrand 09032.0001 5321 22852 7590 08/22/2012 FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER LLP 901 NEW YORK AVENUE, NW WASHINGTON, DC 20001-4413 EXAMINER RAMIREZ, JOHN FERNANDO ART UNIT PAPER NUMBER 3777 MAIL DATE DELIVERY MODE 08/22/2012 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte KNUT BRABRAND ____________ Appeal 2010-000316 Application 10/725,431 Technology Center 3700 ____________ Before JOHN C. KERINS, MICHAEL L. HOELTER and HYUN J. JUNG, Administrative Patent Judges. KERINS, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-000316 Application 10/725,431 2 STATEMENT OF THE CASE Knut Brabrand (Appellant) seeks our review under 35 U.S.C. § 134 of the final rejection of claims 1-3, 6, 7, 9-14 and 17-21. Claims 4, 5, 8, 15, and 16 are cancelled. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. THE INVENTION Appellant’s invention is directed to a method of determining the degree of lung inspiration in a patient using an array of ultrasound transducer elements, and an apparatus for monitoring the position of a patient’s diaphragm. Independent claim 1 is illustrative: 1. A method of determining the degree of lung inspiration in a patient comprising the step of non-invasively detecting the position of the patient’s diaphragm by means of an array of at least two ultrasound transducer elements on the patient extending in the direction of the longitudinal (z) axis of the patient over the lung sinus, wherein the position of the diaphragm is determined based upon the difference between the signals received by the individual transducer elements. THE REJECTIONS The Examiner rejected: (i) claims 1, 6, 7, 14, 20, and 21 under 35 U.S.C. § 103(a) as being unpatentable over Prince (US 6,937,883 B2, iss. Aug. 30, 2005) in view of Iizuka (US 5,355,887, iss. Oct. 18, 1994); (ii) claims 2 and 3 under 35 U.S.C. § 103(a) as being unpatentable over Prince in view of Iizuka and Riederer (US 5,363,844, iss. Nov. 15, 1994); Appeal 2010-000316 Application 10/725,431 3 (iii) claim 9 under 35 U.S.C. § 103(a) as being unpatentable over Prince in view of Iizuka, Riederer and Amazeen (US 4,431,007, iss. Feb. 14, 1984); (iv) claim 10 under 35 U.S.C. § 103(a) as being unpatentable over Prince in view of Iizuka and Wessels (US 6,314,312 B1, iss. Nov. 6, 2001); (v) claims 11, 12 and 17-19 under 35 U.S.C. § 103(a) as being unpatentable over Prince in view of Iizuka and Hernandez-Guerra (EP 0 940 158 A1, pub. Sep. 8, 1999); and (ii) claims 1, 12 and 13 under 35 U.S.C. § 103(a) as being unpatentable over Hernandez-Guerra in view of Prince and Iizuka. ANALYSIS Claims 1, 6, 7, 14, 20, and 21--Obviousness--Prince/Iizuka The Examiner relies principally on the Prince patent as disclosing the claimed method, but apparently finds that the method in Prince does not determine a position of a diaphragm based upon the difference between signals received by the individual transducer elements of the array of transducer elements. Ans. 3. The Examiner takes the position that: Iizuka et al merely evidences that [a] scanning line transducer such as placed to cross the diaphragm in ensonation will detect the diaphragm by a reflectivity or impedance difference between received signals and so can be used to track displacement for any point along that line (see figs. 7A, 11A, 10e,f,g; see col. 11, line 62 - col. 12, line 12). It would have been obvious to supplement the linear array transducer of Prince in view of Iizuka et al’s teaching of using a scanning line transducer that would function to provide signal difference information as evidenced by Iizuka et al. Appeal 2010-000316 Application 10/725,431 4 Ans. 3-4. Appellant argues that “[t]he Examiner’s characterization of Iizuka is confusing and unclear.” Reply Br. 3. We agree. Neither the drawing figures nor the portions of the text of Iizuka identified by the Examiner in the above-quoted passage appear to disclose a determination of the difference between signals received by at least two individual transducer elements. It further appears that Iizuka is particularly directed to a technique for displaying information relative to the displacement of vital tissue, using well-known ultrasound techniques referred to as a cross-correlation method and a pulse Doppler method. Iizuka, col. 1, ll. 11-17, ll. 58-63. The Examiner has not demonstrated that either of these techniques operates on the basis of comparing signals from two individual transducer elements to determine a difference between the signals. To the extent that the Examiner is maintaining that Iizuka compares different signals from a single transducer, it is further unclear how the Examiner is proposing to implement those teachings into the Prince apparatus. The Examiner states that it would have been obvious to “supplement” the linear array transducer of Prince, but does not describe the nature of the proposed supplementation or modification. Further, since the Prince apparatus without modification is capable of being used as a respiratory monitor which can detect the diaphragm-lung boundary, it is additionally unclear what the reason would be to modify the Prince apparatus in some manner, in view of Iizuka. The Examiner’s rejection presents no such reason. In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)(obviousness rejections may not be supported by mere conclusory statements; must instead be supported by articulated reasoning with some Appeal 2010-000316 Application 10/725,431 5 rational underpinning), cited with approval in KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). The rejection of claims 1, 6, 7, 14, 20, and 21 as being unpatentable over the combination of Prince and Iizuka is not sustained. Remaining Obviousness Rejections Each of the remaining rejections is based upon the same combination of teachings of Prince and Iizuka, and the deficiencies of that combination do not appear to be remedied by any of the additional references cited in the various grounds of rejection. Thus, the rejections of all remaining claims on appeal are not sustained. CONCLUSION The Examiner erred in concluding that the subject matter of the claims would have been obvious over a combination of the teachings of Prince and Iizuka. DECISION The rejections of claims 1-3, 6, 7, 9-14 and 17-21 are reversed. REVERSED MP