Ex Parte HIROTA et al

Patent Trial and Appeal Board

Feb 13, 2019

14017411 (P.T.A.B. Feb. 13, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/017,411 09/04/2013
23373 7590 02/15/2019
SUGHRUE MION, PLLC
2100 PENNSYLVANIA A VENUE, N.W.
SUITE 800
WASHINGTON, DC 20037
FIRST NAMED INVENTOR
Kazuhiro HIROTA
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.
Q206532 1640
EXAMINER
CWERN, JONATHAN
ART UNIT PAPER NUMBER
3793
NOTIFICATION DATE DELIVERY MODE
02/15/2019 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):
PPROCESSING@SUGHRUE.COM
sughrue@sughrue.com
USPTO@sughrue.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KAZUHIRO HIROTA,
KAZUHIRO TSUJIT A, and KAKU IRISA WA 1
Appeal2018-004766
Application 14/017,411
Technology Center 3700
Before MICHAEL L. HOELTER, JAMES P. CAL VE, and
RICHARD H. MARSCHALL, Administrative Patent Judges.
CAL VE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Office Action
finally rejecting claims 2, 4, 6-12, and 14--24. Appeal Br. 4, 17. We have
jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
1 Fujifilm Corporation, the Appellant, is identified as the real party in
interest (Appeal Br. 2) and also is the Applicant pursuant to 37 C.F.R.
§ 1.46.
Appeal 2018-004 7 66
Application 14/017 ,411
CLAIMED SUBJECT MATTER
Claims 15, 21, and 24 are independent, with claim 21 shown below.
21. A photoacoustic measuring apparatus, comprising:
a light source;
an acoustic wave transmitting section that transmits
acoustic waves toward a subject;
a probe including a light irradiating section that irradiates
a light beam guided from the light source toward the subject,
and an acoustic wave detecting section that detects
photoacoustic waves generated within the subject due to
irradiation of the light beam onto the subject and detects
reflected acoustic waves of the acoustic waves transmitted into
the subject;
a mode switching switch provided on the probe;
an image generating section that generates photoacoustic
images and acoustic images based on detected signals from the
acoustic wave detecting section; and
a control section that controls the light source to switch
among an operating mode in which the light is irradiated by the
light irradiating section to the subject and the acoustic wave
detecting section detects at least the photoacoustic waves and
the image generating section generates at least a photoacoustic
image, and another operating mode in which the light
irradiating section does not irradiate the light and acoustic wave
detecting section only detects the reflected acoustic waves and
the image generating section only generates a plurality of
acoustic images, in response to operation of the mode switching
switch;
wherein the control section sets the operating mode to the
other operating mode in which the acoustic wave detecting
section only detects the reflected acoustic waves and the image
generating section only generates a plurality of acoustic images
in an initial state prior to a first operation of the mode switching
switch, and sets the operating mode to an operating mode in
which the acoustic wave detection section detects at least the
photoacoustic waves in the case that the mode switching switch
is operated.
2
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Application 14/017 ,411
REJECTI0NS 2
Claims 2, 4, 6-9, 14--17, and 21-24 are rejected under 35 U.S.C.
§ I03(a) as being unpatentable over Kanayama (US 2005/0187471 Al, pub.
Aug. 25, 2005), Li (US 2011/0144496 Al, pub. June 16, 2011), and Cohen
(US 2003/0144582 Al, pub. July 31, 2003).
Claims 10 and 20 are rejected under 35 U.S.C. § I03(a) as being
unpatentable over Kanayama, Cohen, Li, and Jaunakais (US 2006/0066858
Al, pub. Mar. 30, 2006).
Claims 11 and 12 are rejected under 35 U.S.C. § I03(a) as being
unpatentable over Kanayama, Cohen, Li, and Hirota (US 5,718,228, iss. Feb.
17,1998).
Claims 18 and 19 are rejected under 35 U.S.C. § I03(a) as being
unpatentable over Kanayama, Cohen, Li, and Doguchi (US 2004/0257438
Al, pub. Dec. 23, 2004).
ANALYSIS
Claims 2, 4, 6-9, 14-17, and 21-24
Unpatentable Over Kanayama, Li, and Cohen
Appellants argue claims 2, 4, 6-9, 14--17, and 21-24 as a group.
Appeal Br. 10-16. We select claim 21 as representative. Claims 2, 4, 6-9,
14--17, and 21-23 stand or fall with claim 24. 37 C.F.R. § 4I.37(c)(l)(iv).
Regarding claim 21, the Examiner finds that Kanayama teaches a
photoacoustic and ultrasonic imaging apparatus with light source, irradiation
unit, probe, and control unit that performs modes of photoacoustic scanning,
ultrasound scanning, or both types of scanning simultaneously. Final Act. 3.
2 The Examiner withdrew the rejection of claim 24 under 35 U.S.C. § 112,
second paragraph, for indefiniteness. Final Act. 2; Ans. 8.
3
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Application 14/017 ,411
The Examiner finds that Kanayama can acquire photoacoustic or
ultrasound data first but does not state explicitly that the ultrasound mode is
set as the initial setting, and Kanayama also lacks a mode switching switch.
Id. at 4. The Examiner finds that Li teaches an integrated system that
captures photoacoustic and ultrasound imaging modes sequentially or
simultaneously, and Li acquires ultrasound images first in an initial state. Id.
The Examiner relies on Cohen to teach the use of push buttons on a device
for selecting between different modes or wavelengths. Id.
The Examiner determines it would have been obvious to modify the
device of Kanayama to be able to switch between different imaging modes
during operation as taught by Li to improve flexibility for an operator to
acquire different images depending on a patient's condition or the operator's
preference. Id. at 5. The Examiner determines it would have been obvious
to modify Kanayama further to include operator controls for selecting modes
or wavelengths directly on the probe as taught by Cohen so the operator can
control the device more easily while holding it. Id.
Appellants argue that none of Kanayama, Li, or Dacquay3 discloses a
control section that sets "an initial state prior to a first operation of the mode
switching switch" that detects acoustic waves and generates only acoustic
images and then sets the operating mode to detect photoacoustic waves when
the mode switching switch is operated. Appeal Br. 11-15. These arguments
are not persuasive because the Examiner relies on the combined teachings of
Kanayama, Li, and Cohen and three separate rationales to render this feature
obvious, including evidence (Dacquay) that unwanted laser irradiation is a
known problem in medical devices using lasers. Final Act. 3-7; Ans. 10.
3 Dacquay, US 2008/0004608 Al, pub. Jan. 3, 2008.
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Application 14/017 ,411
Appellants are correct that no single reference teaches an initial state
of an ultrasound machine prior to operation of a mode switching switch.
Appeal Br. 15. However, the Examiner is correct that Li teaches a control
mode that acquires ultrasound images first in an initial state before switching
to collect photoacoustic images. Final Act. 4--5. First, Li teaches to obtain
an ultrasound image of a region of interest (steps S 11, S 12). Li ,r,r 24, 25.
Then, Li switches modes to obtain a photoacoustic image ( steps S 13, S 14 ).
Id. ,r,r 28, 34. Li can switch modes to obtain another ultrasound image so
that a frame of the first photoacoustic image is formed between frames of the
first and the second ultrasound image. Id. ,r 37. Thus, Li discloses that an
ultrasound image is obtained first in an initial state of the integrated system.
The fact that Li's system also may switch between the ultrasound and
photoacoustic imaging modes sequentially or simultaneously (Appeal Br. 13
(citing Li ,r 35)) does not alter the fact that Li teaches an initial operating
mode, before any such switching occurs, in which ultrasound images are
obtained first as claimed. Li ,r,r 24, 25.
Contrary to Appellant's argument that Li discloses "a single mode as
a whole" (Reply Br. 5), Li's system switches between a photoacoustic mode
and ultrasound imaging mode. Li ,r 35. Li switches between an initial state
that generates ultrasound images, a second mode to generate photoacoustic
images, and a third mode to generate ultrasound images as discussed above.
Li does not use a mode switching switch to switch between an initial
state of ultrasound imaging and a photoacoustic imaging operating mode.
The Examiner relies on Cohen to teach the use of a mode switching switch
on a device to allow an operator to select different modes of operation more
easily while handling the device, as discussed above. Final Act. 4--5.
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Application 14/017 ,411
Appellant's argument that Kanayama and Li disclose a single mode
(Reply Br. 5) is not persuasive for other reasons. First, the argument is not
commensurate with claim 21, which requires the control section to switch
between different operating modes, i.e., between ultrasound imaging and
photoacoustic imaging starting with ultrasound imaging. Appeal Br. 20-25
(Claims App.). As discussed above, Li discloses such a control section.
Kanayama' s control switches operating modes between photoacoustic
and ultrasound imaging. Kanayama's control uses photoacoustic scanning
to scan a volume and then switches to ultrasonic scanning for that volume.
Kanayama ,r,r 94--97. Photoacoustic scanning may be performed before or
after or simultaneously with ultrasonic wave scanning. Id. ,r,r 98, 102 (no
limitation to acquisition order of these image data). Kanayama also controls
scanning sequences for the photoacoustic scanning. Id. ,r,r 77-91, Fig. 8A.
Switches 53 control photoacoustic scanning. Id. ,r,r 83, 84. Kanayama thus
teaches different operating modes (photoacoustic, ultrasound, photoacoustic
and ultrasound simultaneously or alternately in any order). Ans. 9; see Spec.
8:4--9 (modes detect photoacoustic, acoustic, or both).
The Examiner determines that it would have been obvious to modify
the control section of Kanayama to switch between these operating modes as
Li teaches to do "in order to provide improved flexibility for the operator to
acquire different images depending on the patient's condition or operator's
preference." Final Act. 5. The Examiner's determination is supported by a
rational underpinning based on teachings of the references to perform the
photoacoustic and ultrasound imaging sequentially, simultaneously, and/or
alternately as discussed above. Appellants do not apprise us of error in this
determination. See Appeal Br. 11-15; Reply Br. 4--5.
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Application 14/017 ,411
The Examiner also reasonably concludes that setting the initial state to
ultrasound scanning and then switching modes would have been obvious in
view of Li's teachings to do so. See Final Act. 5. Appellant's arguments
regarding individual teachings of Kanayama and Li (Reply Br. 4--5) do not
apprise us of error in the Examiner's findings or reasoning in this regard.
The Examiner also reasons that it would have been obvious to set an
initial state for ultrasonic scanning by choosing among a finite number of
predictable solutions (initial setting can be ultrasound, photoacoustic, or
both) with a reasonable expectation of success. Final Act. 5; Ans. 10. This
reasoning is supported by teachings in the references to start with an initial
state/mode and then switch to, and between, other modes of operation, i.e.,
photoacoustic, ultrasound, or both photoacoustic and ultrasound imaging
modes. Appellant's argument that there is no teaching to set an initial mode
where the light irradiating section does not irradiate light (Reply Br. 5---6)
does not address Li's teachings discussed above, or the finite options
rationale, and thus does not apprise us of Examiner error in these regards.
The Examiner relies on Dacquay, paragraph 32, as evidence that
preventing the unintended discharge of laser irradiation is a known problem
in medical devices with lasers, and a need exists to control and prevent such
unintended discharge. Final Act. 5---6; Ans. 10-11. In response, Appellants
argue that Dacquay mentions an interlock switch that prevents accidental
laser emission but does not set the initial mode to detect acoustic waves
before switching the mode to detect photoacoustic waves as claimed. Reply
Br. 6; Appeal Br. 14. This argument is not persuasive because Dacquay is
not relied on to teach an initial mode detection of acoustic waves. Thus, this
argument does not address the rejection or apprise us of Examiner error.
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Application 14/017 ,411
The Examiner sets forth three reasons for setting an initial state to an
ultrasound imaging mode ( teachings of Li, finite options based on prior art
teachings, and evidence in Dacquay that unintended laser irradiation is a
problem in the art). Each reason is supported by a rational underpinning
based on the prior art teachings discussed above. Appellants do not apprise
us of error in the Examiner's reasons for combining the teachings of
Kanayama, Li, and Cohen to render obvious an initial mode of operation of
ultrasonic scanning and operation of a mode switching switch to detect
photoacoustic waves as claimed. Kanayama and Li both teach different
modes of operation and switching between those modes. Li teaches to start
with ultrasound imaging and then switch to photoacoustic imaging. Cohen
teaches to place a mode switching switch on a probe held by an operator to
facilitate changes in the mode of operation. Thus, we affirm the rejection of
claims 2, 4, 6-9, 14--17, and 21-24.
Claims 10-12 and 18-20
Unpatentable Over Kanayama, Cohen, Li, and Jaunakais/Hiruta/Doguchi
The Examiner relies on Jaunakais, Hirota, and Doguchi to teach the
features recited in dependent claims 10-12 and 18-20. See Final Act. 6-8.
Appellants do not present arguments for these rejections. Appeal Br. 10-16.
Therefore, we summarily sustain the rejections of these claims.
DECISION
We affirm the rejections of claims 2, 4, 6-12, and 14--24.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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