Ex Parte Jiang et al

Patent Trial and Appeal Board

Dec 16, 2015

11155950 (P.T.A.B. Dec. 16, 2015)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
111155,950 06/17/2005
23598 7590 12/18/2015
BOYLE FREDRICKSON S.C.
840 North Plankinton A venue
MILWAUKEE, WI 53203
FIRST NAMED INVENTOR
Jingfeng Jiang
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.
1512.157 4389
EXAMINER
BRUTUS, JOEL F
ART UNIT PAPER NUMBER
3777
NOTIFICATION DATE DELIVERY MODE
12/18/2015 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):
docketing@boylefred.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JINGFENG JIANG, TIMOTHY JON HALL, and
AMY MARIE SOMMER
Appeal2013-004926
Application 11/155,950
Technology Center 3700
Before JOHN C. KERINS, WILLIAM A. CAPP, and
GEORGE R. HOSKINS, Administrative Patent Judges.
HOSKINS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Jingfeng Jiang et al. ("Appellants") 1 appeal under 35 U.S.C. § 134
from the Examiner's decision rejecting claims 1, 3, 5-12, and 15-29 in this
application. The Board has jurisdiction over the appeal under 35 U.S.C.
§ 6(b ).
We REVERSE.
1 The Appeal Brief identifies Wisconsin Alumni Research Foundation as the
real party in interest. Br. 3.
Appeal2013-004926
Application 11/155,950
CLAIMED SUBJECT MATTER
Claims 1, 23, 24, 25, 26, 28, and 29 are independent. Claims 1 and 28
illustrate the subject matter on appeal. Claim 1 recites:
1. An E-mode imaging apparatus comprising:
a compressor adapted to apply a varying deformation to a
material to be imaged;
an image acquisition system collecting a series of images
of the material to be imaged during different stages of
deformation by the compressor;
an electronic computer receiving the series of images to
calculate E-mode images indicating a stiffness of the material
with a quality value indicating a quality of E-mode data
obtainable from a currently acquired subset of the series of
images; and
an output of the quality value for adjusting the varying
deformation to improve the quality of E-mode data;
wherein the compressor is manipulable by an operator
and the output is an operator interface providing a real-time
representation of the quality value selected from the group
consisting of: a displayed number, a displayed visual gauge, a
displayed indicator light, an audio signal; and
wherein the quality value is a combination of at least two
different types of measurements of information obtainable from
the subset including:
( 1) a comparison that compares a correlation of the
images corrected for relative compression of the images; and
(2) a comparison that compares at least one of:
(a) similarity among derived E-mode images; and
(b) information content of at least one derived
E-mode image.
Br. 14 (Claims App.). Claim 28 is similar to claim 1, with the "wherein the
quality value ... " limitation of claim 1 replaced by:
wherein the quality value combines different evaluations
of the changes of deformation of the tissue between images
including at least one evaluation that can indicate high quality
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Application 11/155,950
during periods of low change in compression and one
evaluation that can indicate high quality during periods of high
change in compression;
wherein the combination of different evaluations
provides a more uniform quality value during a cyclic
compress10n.
Id. at 18-19.
REJECTIONS ON APPEAL
Claims 15-21, 23, 25, and 28 are rejected under 35 U.S.C. § 112, first
paragraph, as failing to comply with the written description requirement.
Claims 1, 3, 5-12, 22,2 26, 27, and 29 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Hall (US 6,508,768 Bl, iss. Jan. 21, 2003) and
Von Behren (US 6,558,324 Bl, iss. May 6, 2003).
Pending claim 24 is not the subject of any rejection on appeal.
ANALYSIS
A. Written Description Rejection
The written description rejection of independent claims 23, 25, and
28, and of claims 15-21 depending directly or indirectly from claim 23, is
based on the premise that the independent claims include (a) a first
evaluation that "can indicate high quality during periods of low change in
compression," and (b) a second evaluation that "can indicate high quality
during periods of high change in compression." Final Act. 2, 8. According
to the Examiner, that subject matter is not described in the Specification in
such a way as to reasonably convey to a person of ordinary skill in the art
2 The statement of rejection does not include claim 22 in this group of claims
(Final Act. 3), but the underlying analysis discusses claim 22 (id. at 6), so
we include it here.
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Application 11/155,950
that the inventors had possession of the claimed invention at the time the
application was filed. Id. at 2.
Appellants assert the Specification provides support for limitation (a)
via correlator 46, and submit the Jiang Declaration 3 as stating the
understanding of a person of ordinary skill in the art to that effect. Br. 9-10;
Jiang Deel. i-fi-14---6 (citing Spec. i-fi-155-59, Fig. 2). 4 For limitation (b), the
Jiang Declaration states a person of ordinary skill in the art would
understand the Specification provides support via comparison block 52.
Jiang Deel. i-fi-17-9 (citing Spec. i164, Fig. 2).
We determine the Examiner errs in not according the Jiang
Declaration sufficient weight. As to limitation (a), Mr. Jiang testifies a
person of ordinary skill in the art at the time of the present application would
understand "that the correlator [ 46] will produce a high value when there is
little change in compression because these two images will be similar and
thus little error will be made in the warping process." Jiang Deel. i-f 5
(emphasis added). The Examiner's rebuttal to Mr. Jiang's testimony-that
correlator 46 does not inherently have to provide an output value indicating
high quality in periods of low changing compression-is not persuasive,
because it fails to indicate in what other manner(s) a correlator would
operate. Ans. 9. Thus, based on Mr. Jiang's testimony, we determine the
Specification's correlator 46 provides descriptive support for limitation (a).
3 See "Inventor Affidavit" of Jingfeng Jiang, dated August 10, 2010. While
captioned as an Affidavit, the statement is in fact a Declaration (37 C.F.R.
§ 1.68), and we refer to it as such.
4 The Jiang Declaration cites to the paragraph numbering of the "application
as published" in 2006 (Jiang Deel. i1 4), but the Specification as filed
contains the same paragraph numbering, and no changes were made to the
cited disclosure between filing and publication.
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Application 11/155,950
As to limitation (b), Mr. Jiang testifies a person of ordinary skill in the
art at the time of the present application would understand comparison
block 52 "evaluates the similarity of at least two elasticity images," which
"infers signal-to-noise ratio," so that minimum similarity occurs when the
images are corrupted with significant random noise, and maximum
similarity occurs when the images have minimally detectable noise and
therefore represent underlying material elastic information. Jiang Deel. i-f 7.
Mr. Jiang further testifies "the comparison block [52] will produce a high
value when there is great change in compression such as produces
reasonably large displacement in successive ultrasonic images." Id. i-f 8
(emphasis added). The Examiner does not offer any rebuttal of this
testimony. See Final Act. 2, 8; Ans. 9. Thus, based on Mr. Jiang's
testimony, we determine the Specification's comparison block 52 provides
descriptive support for limitation (b ).
For the foregoing reasons, we do not sustain the written description
rejection as to claim 28, which contains limitations (a) and (b ), or as to
claims 15-21 and 23, which contain limitation (a). We further do not sustain
the written description rejection of claim 25, because it does not contain
either limitation (a) or (b), which are the only bases for the rejection.
B. Obviousness Rejection
Claims 1, 3, 5-12, and 22
In rejecting claim 1 and its dependent claims 3, 5-12, and 22, the
Examiner finds Hall discloses, as recited in claim 1, calculating "a quality
value" that "is a combination of at least two different types of measurements
of information," including the comparisons recited in sub-paragraphs (1) and
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Application 11/155,950
(2). Final Act. 3--4. Appellants argue the Examiner errs in so finding.
Br. 10. For the following reasons, we agree with Appellants' argument.
In support of the finding, the Examiner initially cites the Hall
disclosure at column 9, line 65, through column 10, line 24. Final Act. 3--4,
9. According to the Examiner, the cited disclosure reflects "evaluating pairs
of images having different time separations and generat[ing] for each pair
and each time separation a quality value." Id. at 3--4. In response to
Appellants' argument in opposition, the Examiner additionally states "the
quality value represent[ s] the quality of E-mode images obtainable from
combinations of images (fig 1) [see column 20 lines 65---68]." Ans. 10.
We have reviewed the cited disclosures of Hall. We determine they
may reflect calculating "a quality value indicating a quality of E-mode data,"
as those terms are used in claim 1, via comparing images to generate "a
measure of reliability of the estimated displacement vector," such as a
"frame-to-frame displacement difference value" to be compared against a
predetermined maximum value. Hall, 10:5-23. However, a preponderance
of the evidence does not establish that Hall's measure of reliability is a
"combination" of at least two different types of measurements of
information, including comparisons (1) and (2) of claim 1.
The Examiner further finds Hall includes comparison (2) of claim 1,
in that Hall discloses estimating object strain and elastic constants by
comparing pre- and post-compression scans, and repeatedly stretching the
post-compression echo signal segments to find a "best match" with a pre-
compression echo signal segment. Final Act. 10 (citing Hall, 1:57---61, 3:5-
10, Abstract, 6:50-54). Even ifthe Examiner is correct that Hall thereby
discloses comparison (2) of claim 1 (an issue upon which we express no
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Application 11/155,950
opinion), this does not establish the further requirement in claim 1 for
calculating a quality value that is a combination of at least two different
types of measurements of information, including both comparisons (1) and
(2).
For the foregoing reasons, we determine the Examiner's finding that
Hall discloses calculating a quality value that is a combination of at least two
different types of measurements of information, including comparisons (1)
and (2) of claim 1, is not supported by a preponderance of the evidence. The
Examiner's reliance on Von Behren as disclosing "a displayed visual gauge"
and "a displayed indicator light" as recited in claim 1 does not cure this
deficiency in Hall. Final Act. 4, 10. Therefore, we do not sustain the
rejection of claim 1 and its dependent claims 3, 5-12, and 22 as unpatentable
over Hall and Von Behren.
Claims 2 6 and 2 7
In rejecting claim 26 and its dependent claim 27, the Examiner finds
Hall discloses, as recited in claim 26, "evaluating corresponding quality
values indicating a quality of E-mode data obtainable from possible
combinations of elements of ... two sets of E-mode images," and "selecting
E-mode images with the highest quality values." Final Act. 5---6. Appellants
argue the Examiner errs in so finding. Br. 11. For the following reasons, we
agree with Appellants' argument.
In support of the finding, the Examiner initially cites the Hall
disclosure at column 29, lines 5-15. Final Act. 5---6. The cited disclosure
reflects calculating strain estimates, such as by using a difference method,
and then scaling and converting the estimates into a form suitable for display
on a computer screen. Hall, 29:5-15. We determine this disclosure does not
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correspond to evaluating quality values indicating a quality of E-mode data,
and selecting E-mode images with the highest quality values, as recited in
claim 26.
The Examiner further relies on the Hall disclosure at column 9,
line 65 through column 10, line 24, discussed above in connection with
claim 1. Ans. 10. That disclosure reflects comparing images to generate a
"measure of reliability of the estimated displacement vector." Hall, 10: 5-23
(emphasis added). Claim 26, however, requires evaluating quality values
from possible combinations of paired "E-mode images," not evaluating
quality values based on displacement vectors (which are used to calculate
the E-mode images recited in claim 26).
For the foregoing reasons, we determine the Examiner's finding that
Hall discloses evaluating quality values indicating a quality of E-mode data
obtainable from possible combinations of elements of two sets of E-mode
images, and selecting E-mode images with the highest quality values, is not
supported by a preponderance of the evidence. The Examiner's reliance on
Von Behren does not relate to this deficiency in Hall. Final Act. 4.
Therefore, we do not sustain the rejection of claim 26 and its dependent
claim 27 as unpatentable over Hall and Von Behren.
Claim 29
In rejecting claim 29, the Examiner finds Hall discloses the claimed
quality value that "combines at least two different evaluations of the changes
of deformation of the tissue between images." Final Act. 6-8. Appellants
argue the Examiner errs in so finding. Br. 11-12. For the following reason,
we agree with Appellants' argument.
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Application 11/155,950
In support of the finding, the Examiner cites the Hall disclosure at
column 9, line 65 through column 10, line 24, discussed above in connection
with claim 1. Final Act. 7; Ans. 11. That disclosure reflects generating "a
measure of reliability of the estimated displacement vector," such as a
"frame-to-frame displacement difference value" to be compared against a
predetermined maximum value. Hall, 10:5-23. However, at best Hall
discloses only a single evaluation of deformation changes (i.e. a frame-to-
frame displacement difference value), not a quality value that combines at
least two different evaluations of the changes of deformation of the tissue
between images, as recited in claim 29.
For the foregoing reason, we determine the Examiner's finding that
Hall discloses a quality value that combines at least two different evaluations
of the changes of deformation of the tissue between images, as recited in
claim 29, is not supported by a preponderance of the evidence. The
Examiner's reliance on Von Behren as disclosing "a displayed visual gauge"
and "a displayed indicator light" as recited in claim 29 does not cure this
deficiency in Hall. Final Act. 8. Therefore, we do not sustain the rejection
of claim 29 as unpatentable over Hall and Von Behren.
DECISION
The Examiner's decision rejecting claims 1, 3, 5-12, and 15-29 is
reversed.
REVERSED
Ssc
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