10525132 (B.P.A.I. Jan. 13, 2012)

Ex Parte Lagrange et al

Board of Patent Appeals and InterferencesJan 13, 2012

10525132 (B.P.A.I. Jan. 13, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE ________________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ________________ Ex parte JEAN-MICHEL LAGRANGE, CLAUDE COHEN-BACRIE, CLAIRE LEVRIER, NICOLAS VILLAIN, and ROBERT R. ENTREKIN ________________ Appeal 2009-012377 Application 10/525,132 Technology Center 2600 ________________ Before THOMAS S. HAHN, BRADLEY W. BAUMEISTER, and DENISE M. POTHIER, Administrative Patent Judges. BAUMEISTER, Administrative Patent Judge. DECISION ON APPEAL Appeal 2009-012377 Application 10/525,132 2 SUMMARY Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s rejections of claims 1-4: (1) Claims 1-4 stand rejected under 35 U.S.C. § 101 for being directed to non-statutory subject matter. (2) Claims 1-3 stand rejected under 35 U.S.C. § 103(a) as obvious over Murthy (US 6,101,238; issued Aug. 8, 2000) in view of Entrekin (WO 01/69282 A2; published Sep. 20, 2001). (3) Claim 4 stands rejected under 35 U.S.C. § 103(a) as obvious over Murthy in view of Entrekin and Bender et al. (US 5,920,657; issued July 6, 1999). We affirm. THE INVENTION Appellants describe their invention as follows: The invention relates to an ultrasonic imaging apparatus using a method for combining CMB images of the same object including a step of seeking representative contours CNT of an interface on the images to be combined IM[I], IM[J], said step being intended to define interest areas IA[I], IA[J] in the vicinity of said representative contours, a step ANA of analyzing the interest areas IA[I], IA[J], said analysis step ANA being intended to allocate weights W[I], W[J] to the points on said interest areas IA[I], A[J] and to the points corresponding to said interest areas IA[I], IA[J] on the various images, a step CC of constructing a combination image IMC, a point on the combination image IMC corresponding to a point on at least one interest area IA being obtained from a weighting of the corresponding points on the images to be combined IM[I], IM[J] according to the weights W[I], W[J] allocated in said analysis step ANA. Appeal 2009-012377 Application 10/525,132 3 (Abstract). THE § 101 REJECTION The Examiner newly rejects claims 1-4 under 35 U.S.C. § 101 for being directed towards non-statutory subject matter (Ans. 9). Appellants were advised that to avoid dismissal of the appeal as to the new 35 U.S.C. § 101 rejection, they must either reopen prosecution or maintain the appeal by filing a reply brief that addresses the new ground of rejection (Ans. 15-16 (citing 37 C.F.R. § 41.39(b))). Appellants have done neither. We therefore pro forma sustain the appeal of the § 101 rejection of claims 1-4. THE § 103 REJECTIONS Independent claim 1 is representative of claims 1-4:1 1. A method for combining ultrasonic images of the same object including the steps of: seeking contours representing an interface on the ultrasonic images to be combined, said search step being intended to define interest areas close to said representative contours, analyzing interest areas, said analysis step being intended to allocate weights to the points in said interest areas and to the points corresponding to said interest areas on the various ultrasonic images, constructing a combination image, a point on the combination image corresponding to a point on at least one interest area being obtained from a weighting of the corresponding points on the ultrasonic images to be combined according to the weights allocated in said analysis step. 1 Appellants argue claims 1-4 together as a single group (App. Br. 3-7). We therefore select claim 1 as representative of claims 2-4. See 37 C.F.R. § 41.37(c)(1)(vii). Appeal 2009-012377 Application 10/525,132 4 Appellants contend that the combination of Murthy and Entrekin is improper for lack of “objective evidence . . . to support the transplanting of the teachings of Murthy, et al. to ultrasonic imaging . . . .” (App. Br. 6). Appellants additionally argue that Murthy fails to teach “seeking contours representing an interface on the ultrasonic images to be combined, said search step being intended to define interest areas close to said representative contours” (id.). The Examiner finds that one of ordinary skill in the art would have been motivated to apply Murthy’s x-ray image compositing method to the ultrasonic images of Entrekin due to Murthy’s “substantially improved accuracy and efficiency of image compositing” (Ans. 14 (citing Murthy, col. 2, ll. 12-20)). As such, Appellants are incorrect in asserting that the Examiner has failed to provide any objective evidence to combine the teachings of Murthy and Entrekin (App. Br. 6). Furthermore, Appellants do not explain why the Examiner’s articulated reasoning and underpinning rationale are deficient. The Examiner also finds that Murthy in combination with Entrekin teaches or suggests the contour search step of the claim (Ans. 4-6, 10-11). Specifically, the Examiner finds that the foreground object of each x-ray image is equivalent to the claimed representative contours (Ans. 10). Similarly the Examiner finds that Murthy’s step of masking out background objects corresponds to the claim language requiring the defining of interest areas close to the contours (Ans. 10-11 (citing Murthy, col. 7, ll. 10-17)). Moreover, as stated above, the Examiner has articulated a reason with some rational underpinning for combining Murthy’s technique with Entrekin so as to visualize ultrasonic images with improved accuracy. Appeal 2009-012377 Application 10/525,132 5 For the reasons above, Appellants’ arguments concerning the teachings of the cited references and the lack of proper motivation to combine them are not persuasive. Accordingly, we sustain the Examiner’s rejection of claim 1 as well as claims 2-4, which are not separately argued. DECISION The Examiner’s decision rejecting claims 1-4 under 35 U.S.C. § 101 is affirmed. The Examiner’s decision rejecting claims 1-4 under 35 U.S.C. § 103 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R. § 1.136(a)(1)(iv) (2010). AFFIRMED babc