Ex Parte Pelissier et alDownload PDFPatent Trial and Appeal BoardAug 22, 201813345623 (P.T.A.B. Aug. 22, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/345,623 01/06/2012 23266 7590 09/18/2018 DAUGHERTY & DEL ZOPPO CO., LP.A. 38500 CHARDON ROAD WILLOUGBY HILLS, OH 44094 FIRST NAMED INVENTOR Laurent Pelissier 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. ANA1195-US (UTL-10-7515) CONFIRMATION NO. 2435 EXAMINER COOK, CHRISTOPHER L ART UNIT PAPER NUMBER 3737 NOTIFICATION DATE DELIVERY MODE 09/18/2018 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): adelzoppo@dd-iplaw.com carole@dd-iplaw.com mwheeler@dd-iplaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte LAURENT PELISSIER, TOMAS BOBOVSKY, and TREVOR HANSEN Appeal2017-000002 Application 13/345,623 Technology Center 3700 Before ERIC B. GRIMES, DEBORAH KATZ, and JOHN E. SCHNEIDER, Administrative Patent Judges. KATZ, Administrative Patent Judge. DECISION ON APPEAL Appeal2017-000002 Application 13/345,623 Appellants 1 seek our review, under 35 U.S.C. § 134(a), of the Examiner's decision to reject claims 1-30 as being obvious over the prior art under 35 U.S.C. § 103(a).2 (See Appeal Brief filed February 15, 2016 ("App. Br.") 1.) We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. Appellants' Specification reports that there can be a need to record use of an ultrasound machine, for example to show the angle that the operator held the probe when creating an image. (Specification ("Spec.") ,r,r 5-7.) To address that need, Appellants claim methods of and systems for producing a video record of an ultrasound that includes a video of the ultrasound image and a subset of the different types of "synthetic display element signals," and a video depicting the use of the medical ultrasound system. Appellants provide Figure 1 to demonstrate an embodiment of their invention. We reproduce Figure 1 below. 1 Appellants report that Analogic Corporation is the real party-in-interest. (App. Br. 2.) 2 Appellants provide an argument against a rejection under 35 U.S.C. § 112, second paragraph (see App. Br. 4), but according to the Examiner there is no longer an outstanding rejection on that basis (see Examiner's Answer, 2). We consider the rejection under 35 U.S.C. § 112, second paragraph, made in the Office Action issued April 29, 2015, to be withdrawn and Appellants' arguments on appeal to be moot. 2 Appeal2017-000002 Application 13/345,623 :;·~--- f~uul ¥~--, ~-'~ ~- : -~~-1 < \ "¥-cc-.-·-· .. ,, i ··· .·. ,<· r -,~, \ i )j~J t "~>1 FIGURE 1 Figure 1 depicts an ultrasound examination environment, wherein a technician (T) controls an ultrasound system (12) having a display (16) and a processing apparatus (22). (See Spec. ,r 24.) Figure 1 includes a camera (24), which provides a subject image video signal to processing unit 22. (See Spec. ,r 65.) Figure 2 of Appellants' Specification provides a hypothetical image on the display (16) of Figure 1. We reproduce Figure 2 below. DEPTH" 4 cm ADJUST DEPTH 6 v,:,;m MEASUREMENT FIGURE 2 3 Appeal2017-000002 Application 13/345,623 Figure 2 shows a display image (40) with an ultrasound image (42), including the image of the item of interest (42A). (See Spec. ,r 29.) The display image ( 40) also has several "synthetic display elements" ( 44), including an image of the scale (46), an image of a dual-cursor measure (48), and images of the ultrasound imaging parameter panel (50), user-interface menu panel (52), and measurement panel (54). (See id.) Appellants explain that the appearance of one or more of these synthetic display elements ( 44) may change during an ultrasound. (See Spec. ,r 31.) Appellants' claim 1 recites 3: A method for producing a video record of a use of a medical ultrasound system, the medical ultrasound system operable to produce an ultrasound image video signal, a synthetic display element signal including a plurality of different types of synthetic display elements, and a subject image video signal depicting the use of the medical ultrasound system in generating the ultrasound image video signal, the subject image video signal acquired concurrently with the ultrasound image video by a video camera that is a separate device from the medical ultrasound system, the method comprising: combining the ultrasound image video signal and the synthetic display element signal, producing a display copy video signal; visually displaying the display copy video signal, but not the subject image video signal; 3 Claims 1 has been modified by adding indentations to separate elements of the medical ultrasound system recited in the method. See 37 C.F.R. § 1.75(i). 4 Appeal2017-000002 Application 13/345,623 obtaining an identification of a subset of the plurality of different types of display elements to store, wherein the subset includes a subset of the different types of synthetic display elements combined with the ultrasound image video signal producing the display copy video signal; encoding the ultrasound image video signal, the subset of the plurality of different types of display elements, and the subject image video signal as a single video data stream; and storing the at least one video data stream in a multimedia container file for synchronous playback of the ultrasound image video signal and the subject image video signal. (App. Br. 9, Claims App'x (emphasis added).) The Examiner rejected claims 1-27, 29, and 30 as being obvious over the combination of McDonald4, Goede5, Denoue6, Hwang 7, and Huang8. (Final Act. 2-11.) The record supports the Examiner's finding that McDonald teaches a system and method for recording, storing and displaying ultrasound images so that the images can be annotated by the sonographer, stored, and retrieved. (See McDonald, abstract and 1 :5-10; Final Act. 3.) McDonald teaches that annotations to an ultrasound include, among others, measurements between two points using a ruler icon and "voice" annotations to record comments while performing the ultrasound. (See McDonald 7:46- 8: 10; Final Act 3--4.) 4 McDonald, U.S. Patent 5,920,317, issued July 6, 1999. 5 Goede et al., U.S. Patent 7,453,472 B2, issued November 18, 2008. 6 Denoue et al., U.S. Patent Application Publication 2010/0123908 Al, published May 20, 2010. 7 Hwang, U.S. Patent 7,549,961 Bl, issued June 23, 2009. 8 Huang and Kazoun, U.S. Patent Application Publication 2008/0145830 Al, published June 19, 2008. 5 Appeal2017-000002 Application 13/345,623 The record also supports that Goede teaches annotations to digital medical images that are visually displayed as icons to be saved and linked to images. (See Goede abstract.) Goede teaches that information for an image can be saved with the image file itself or as a separate file. (See id. 8:30- 3 5.) Goede teaches further that not all of the annotations need to be displayed at the option of the presenter, but that a user can selectively choose which annotations to display on the image (See id. 11 :9--20, citing Figs. 5A and 5B.) According to the Examiner, the teaching in Goede that only selected annotations can be chosen for the saved image is a teaching of the limitation in Appellants' claim 1: "obtaining an identification of a subset of the plurality of different types of display elements to store, wherein the subset includes a subset of the different types of synthetic display elements combined with the ultrasound image video signal producing the display copy video signal." (Final Act. 5.) The Examiner explains that when a medical professional adds four annotations to a medical image, deletes two, and saves the remaining two annotations, he or she has saved a "subset" of all the annotations. (Id. at 13-14.) The Examiner also determines that it would have been obvious to those skilled in the art to modify an ultrasound system and method as described by McDonald, particularly the ultrasound capture and annotation station, with the software functionality and instructions described by Goede, and in Denoue as well, to store various types of data streams ( e.g. video, audio, text, etc.) in a multimedia container file for easy and intuitive review. (Final Act. 6.) 6 Appeal2017-000002 Application 13/345,623 The record shows, and Appellants do not dispute, that Hwang teaches producing a video feed for remote viewing of images. (See Hwang 2:25--43; Final Act. 6-7.) This feed can include images of, for instance, the placement of a patient's body when obtaining ultrasound images. (See id. at 10:40-65.) Similarly, Huang teaches video feed of performing and reviewing a medical procedure, for example training personnel. (See Huang ,r 1.) Huang also teaches that the system can provide synchronous multimedia recording and playback. (See id. ,r 9.) According to the Examiner, at the time of the invention, one skilled in the art would have been motived to have modified the "voice" annotation tool of McDonald to be a video annotation tool with a separate video camera as taught by Hwang and Huang in order to record the sonographer's actions. (See Final Act. 8-9.) Appellants argue that the Examiner has not shown that the element of "obtaining an identification of a subset of the plurality of different types of [display elements9] to store" in claim 1 is taught in the prior art. (App. Br. 5---6.) Appellants argue that the Examiner's hypothetical situation, wherein a medical professional adds four annotations to a medical image and deletes two, thus saving the remaining two annotations, does not disclose or suggest the element. (See id.) 9 Appellants used the term "displacements" in the Appeal Brief. (See App. Br. 5.) The Examiner noted that it appears Appellants' argument should have read a plurality of different types of "display elements" not "displacements." (See Ans. 2.) Because Appellants did not argue to the contrary in the Reply Brief, we use the term "display elements," which is recited in the claim element at issue. 7 Appeal2017-000002 Application 13/345,623 Appellants also argue that the Examiner interpreted the limitation of "obtaining an identification step" too broadly, wherein not all actions by a user of an ultrasound device read on the limitation. (See Reply Br. 4.) Although we agree with Appellants that actions such as moving the ultrasound device across the room would not read on the claim limitation, Appellants do not persuade us that Goede' s teaching of selecting only the first two limitations does not read on the Appellants' claim limitation. We note that Appellants' Specification provides that "an identification of select synthetic display elements" includes selecting "different display elements than were displayed during an ultrasound examination (e.g., less than all display elements displayed during an ultrasound examination, display elements not displayed during an ultrasound examination, etc.)." (Spec., ,r 44.) Because this selection is very similar to the selection described in Goede ( wherein less than all of the annotations or elements re selected), we are not persuaded that the Examiner erred. To the extent that the Examiner's Answer refers to the teachings of McDonald regarding storage of icons by placing them on a video frame time line, Appellants do not persuade us that the Examiner erred. (See Reply Brief filed September 22, 2016 ("Reply Br.") 2-6.) Instead of relying on McDonald for the limitation of combining ultrasound images and annotations to produce a display copy video signal, as recited in claim 1, the Examiner relied on Goede. (See Final Act. 5 ("Goede makes it clear that once the image has been annotated, the next step is to save the annotations and metadata linked to the image such that 'The term linking, in addition to its normal meaning, also means for the purposes of this application to save the vector information inside the image file itself or as a separate file. Some 8 Appeal2017-000002 Application 13/345,623 image formats, such as PNG, allow vector information to be saved inside of the image file itself' (Column 8, Lines 25-35)." (also citing Goede Figs. 3A and 3B as depict an annotated image and annotations without the image)).) As explained above, the Examiner cited to Goede for the teaching to display and store a subset of the icon annotations chosen by the user. Contrary to Appellants' argument, this teaching need not be incorporated into the specific invention of McDonald, which uses annotation time lines, for the Appellants' claimed inventions to have been obvious. (See Reply Br. 3.) See In re Keller, 642 F.2d 413,425 (C.C.P.A. 1981) ("The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art."). Instead, we agree with Examiner's reasoning that it would have been obvious to those of ordinary skill in the art to use the software functionality and instructions described in Goede with an ultrasound system and method similar to one taught in McDonald. (See Final Act. 6.) Appellants argue separately for the patentability of dependent claims 2-11, but raise the same arguments raised against the rejection of claim 1. (See App. Br. 6.) For the reasons provided above, we are not persuaded that the Examiner erred in rejecting these dependent claims. Similarly, Appellants present the same arguments against the rejection of independent claim 12. (See App. Br. 6 ("The final Office Action states 'a broadest reasonable interpretation of the claim limitation "obtaining an identification of a subset of the plurality of different types of displacements 9 Appeal2017-000002 Application 13/345,623 to store ... ' is met if and when a medical professional adds four annotations to a medical image, deletes two, and saves the remaining two annotations.' However, this action by a user does not require, disclose or suggest obtaining an identification of the two annotations, as recited in claim 12.").) For the reasons provided above, we are not persuaded that the Examiner erred in rejecting claim 12. We are also not persuaded that the Examiner erred in rejecting claims 13, 20, 24, 26, and 27, which depend on claim 12, because Appellants argue only that they "contain[] further distinguishing patentable features," without providing any specific explanation. (App. Br. 6) Appellants argue against the rejection of independent claim 29 with the same argument raised against claim 1, regarding a set of two or more different types of display elements, which for the reasons provided above, we find unpersuasive. (See App. Br. 7 .) The Examiner also rejected claims 26-28 under 35 U.S.C. § I03(a) over McDonald, Goede, Denoue, Hwang, Huang, and Matsui 10 and claim 28 under 35 U.S.C. § I03(a) over McDonald, Goede, Denoue, Hwang, Huang, and Aden 11 . (See Final Act. 11-13). Appellants argue only that these rejections should be reversed for the same reasons argued in regard to claim 1. We are not persuaded by these arguments and, accordingly, are not persuaded that the Examiner erred in maintaining these rejections. 10 Matsui et al., U.S. Patent 6,458,081 Bl, issued October 1, 2002. 11 Aden, U.S. Patent 6,273,857 Bl, issued August 14, 2001. 10 Appeal2017-000002 Application 13/345,623 Conclusion Upon consideration of the record and for the reasons given, we sustain the rejection of claims 1-30 under 35 U.S.C. § 103(a). Therefore, we affirm the decision of the Examiner. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136. AFFIRMED 11 Copy with citationCopy as parenthetical citation