Ex Parte Rafter et al

Patent Trial and Appeal Board

Oct 26, 2016

12594906 (P.T.A.B. Oct. 26, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/594,906 10/06/2009 Patrick G. Rafter
24737 7590 10/28/2016
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
465 Columbus A venue
Suite 340
Valhalla, NY 10595
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.
2007P00982WOUS 7907
EXAMINER
AKAR, SERKAN
ART UNIT PAPER NUMBER
3737
NOTIFICATION DATE DELIVERY MODE
10/28/2016 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):
marianne.fox@philips.com
debbie.henn@philips.com
patti. demichele@Philips.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Exparte PATRICKG. RAFTER, KARL THIELE, and
ROBERT L. BURNHAM 1
Appeal2014-005017
Application 12/594,906
Technology Center 3700
Before DONALD E. ADAMS, JEFFREY N. FREDMAN, and
JACQUELINE T. HARLOW, Administrative Patent Judges.
PERCURIAM
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) involving claims to an
ultrasonic diagnostic imaging system. The claims are rejected as failing to
comply with the written description requirement, indefinite, and obvious.
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 According to Appellants, the Real Party in Interest is Koninklijke Philips
Electronics N.V. (App. Br. 3).
Appeal2014-005017
Application 12/594,906
STATEMENT OF THE CASE
The Specification describes medical diagnostic ultrasound systems
that "enable the performance of perfusion display and quantification with
ultrasonic thick slice images" (Spec. 1 :4--8). Claims 1-18 are on appeal.
Claim 1 is illustrative and reads as follows (emphasis added):
1. An ultrasonic diagnostic imaging system for the
qualitative or quantitative analysis of tissue perfusion
compnsmg:
an array transducer configured to transmit and receive
scanlines over a volumetric region containing tissue which may
have a perfusion defect;
a beamformer, coupled to the array transducer, which acts
to produce image data of a plurality of elevationally distinct,
parallel slices of the volumetric region;
a slice memory, coupled to the beamformer, which stores
slice image data;
a combiner, coitpled to the slice memory', vvhich combines
slice image data in the elevation direction;
a perfusion detector which operates on the combined slice
image data to qualitatively depict perfusion by the concentration
of micro bubbles in tissue or to produce a quantified perfusion
parameter for a region of tissue; and
a display responsive to the perfusion detector for
displaying at least one of a tissue image with perfusion depicted
by color or brightness, or a quantified perfusion parameter for a
region of tissue.
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The claims stand rejected as follows:
I. Claims 1-18 stand rejected under 35 U.S.C. § l 12(a) as failing
to comply with the written description requirement.
II. Claims 1-18 stand rejected under 35 U.S.C. § l 12(b) as being
indefinite.
III. Claims 1-10 stand rejected under 35 U.S.C. § 103(a) as being
obvious over Ramamurthy, 2 Entrekin, 3 and Brandl. 4
IV. Claims 11-18 stand rejected under 35 U.S.C. § 103(a) as being
obvious over Ramamurthy, Entrekin, Brandl, and Powers. 5
I.
The Examiner has rejected claims 1-18 under 35 U.S.C. § l 12(a) as
failing to comply with the written description requirement.
We agree with Appellants that the Examiner erred in interpreting the
claim terms "beamformer" and "combiner" as means-plus-function
limitations.
The Examiner asserts that these claim terms are interpreted as means-
plus-function limitations because the terms are coupled with functional
language without reciting sufficient structure to achieve the function (Final
Act. 4). The Examiner asserts that while the claims recite means-plus-
function limitations, the written description fails to disclose corresponding
structures for the functions (id. at 6).
2 Ramamurthy et al., US 6,015,384, issued Jan. 18, 2000.
3 Entrekin et al., US 6,530,885 Bl, issued Mar. 11, 2003.
4 Brandl et al., US 2005/0049479 Al, published Mar. 3, 2005.
5 Powers et al., US 2002/0045827 Al, published Apr. 18, 2002.
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Application 12/594,906
We are not persuaded. The absence of the words "means" or "step
for" from the disputed claim elements creates a rebuttable presumption that
§ 112, paragraph 6, does not apply. Williamson v. Citrix Online, LLC, 792
F.3d 1339, 1348 (Fed. Cir. 2015). To overcome this presumption, the
Examiner must demonstrate that the disputed claim terms either fail to
"recite sufficiently definite structure," or else recite "function without
reciting sufficient structure for performing that function." Id. (quoting Watts
v. XL Sys., Inc., 232 F.3d 877, 880 (Fed.Cir.2000)).
As Appellants point out, and the Examiner acknowledges,
beamformers and combiners are well-known in the ultrasound art (App.
Br. 9--10; Ans. 3-5). Moreover, the Specification characterizes the recited
"beamformer" and "combiner" at length, and in a manner consistent with
how those terms would be understood by an artisan of ordinary skill
(Spec. 7:33-8:20, 9: 13-10:7, Fig. 5). Accordingly, because we agree with
Appellants that the claim terms "beamformer" and "combiner" would be
understood by ordinarily skilled artisans to have a sufficiently definite
meaning as the name for structure, we reverse this rejection.
II.
The Examiner has rejected claims 1-18 under 3 5 U.S. C. § 112 (b) as
being indefinite. The Examiner states that it is unclear "what range of
thickness is encompassed by the relative term 'thick' as recited in the
claims[,] and the metes and bounds of the slice thickness as recited in the
claims is rendered indefinite by the use of the relative term 'thick"' (Ans. 7).
We observe, however, that although the Specification discusses the
term "thick slice," the claims themselves include neither the term "thick,"
"thick slice," nor any variation of thereof (see Appellants' Claims
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Application 12/594,906
A rl" ) R h h 1 . . " 1· "" 1· . r1 " r1" ~ ~ppen_ixr ~-aLer, Le c~aims recite s~ices, s~ice image _ata, an_ a
combiner, ... which combines slice image data in the elevation direction."
The Examiner does not reject these, or any other recited claim elements, as
indefinite. Accordingly, because this indefiniteness rejection is directed to
terms not appearing in the claims, we must reverse it.
III.
We have considered Appellants' arguments, but are not persuaded that
the Examiner erred in rejecting claims 1-10 under 35 U.S.C. § 103(a) as
being unpatentable over Ramamurthy, Entrekin, and Brandl. Because the
claims are not separately argued, we focus our discussion on independent
claim 1, which is representative.
We adopt the Examiner's findings of fact and reasoning regarding the
scope and content of the prior art (Final Rej. 8-16, 19-20; Ans. 7-10), and
agree that claim 1 is rendered obvious by Ramamurthy, Entrekin, and
Brandl. We address Appellants' arguments below.
Findings of Fact
FF 1. Ramamurthy discloses that
A method of imaging to aid tissue viability determinations is
provided. Tissue motion is detected for at least [a] region of
tissue. Perfusion is estimated as a function of intensity data and
time for the region of tissue. An image responsive to the detected
tissue motion and the estimated perfusion is displayed. A
combination of tissue motion imaging and perfusion estimation
provides an assessment of tissue viability.
(Ramamurthy Abstract; see also Final Act. 9, 13-15.)
FF 2. Ramamurthy discloses a "system 10 [that] includes a transmit
beamformer 12, a transducer 14, a receive beamformer 16" and a "display
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Application 12/594,906
36 [that] connects to the scan converter" (Ramamurthy 2:33--47; see also
Final Act. 9, 13-15).
FF 3. Ramamurthy discloses that
Intensities or perfusion estimate information is encoded along
the x-axis, either by a separate color or a brightness of the colors
associated with velocity. Other encoding techniques may be
used. Preferably, the brightness of the color increases along the
x-axis. In a preferred embodiment, strong signals from the
contrast agent or high perfusion estimates are encoded by colors
to the right of a primary memory map, such as represented by
map 52 and weak signals or estimates are encoded by colors to
the left of the map 52.
(Ramamurthy 7:9-18; see also Final Act. 9, 13-15.)
FF 4. Ramamurthy discloses that "log compressed or scan converted
data is input to the computer and memory 66" (Ramamurthy 7 :48--49; see
also Final Act. 9, 13-15).
FF 5. Entrekin discloses
An ultrasonic probe [that] is moved to scan a volumetric region
of the body. As it is moved, targets within the region are
interrogated from multiple look directions. The echo data from
the multiple look directions are compounded to form spatially
compounded image data, which is processed for display in a
three dimensional display format.
(Entrekin Abstract; see also Final Act. 10, 13, 15.)
FF 6. Entrekin discloses that "[ m ]ultiple scans can be performed and
compounded, which increase the speckle reduction as a function of the
product of the number of scans and look directions" (Entrekin 2: 10-13; see
also Final Act. 10, 13, 15).
FF 7. Entrekin discloses that
The transmitter 14 and beamformer 16 are operated under control
of a system controller 18, which in tum is responsive to the
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settings of controls of a user interface ... When imaging
harmonic contrast agents or performing tissue harmonic imaging
the passband of the filter 22 is set to pass harmonics of the
transmit band. . .. The filtered signals are detected by a detector
24 for B mode imaging ...
(Entrekin 3:1-22; see also Final Act. 10, 13, 15.)
FF 8. Entrekin discloses that "[a]fter resampling the image frames are
compounded by a combiner 36," and "[t]he compound images may be stored
in a Cineloop® memory 42 in either estimate or display pixel form"
(Entrekin 4:5---6, 24--26; see also Final Act. 10, 13, 15).
FF 9. Entrekin discloses that
The digital signal processors 60 can [weigh] the received image
data and can resample the image data to spatially align pixels
from look direction to look direction or frame to frame, for
instance. The digital signal processors 60 direct the processed
image frames to a plurality of frame memories 62 which buffer
the individual image frames. The number of image frames
capable of being stored by the frame memories 62 . . . The fully
processed compounded image is then transmitted to the volume
image rendering processor for rendering in a three dimensional
display format.
(Entrekin 5:14--37; see also Final Act. 10, 13, 15.)
FF 10. Entrekin depicts in Figure 6 "a series of image slices 120i---
120n, which have been acquired from a volumetric region of the body"
(Entrekin 7:55-57). Figure 6 is reproduced below.
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130
FIG. 6
1201A 12018 1201c
(Id. at Fig. 6.) Figure 6 shows that
140
'
120n
The volume image rendering processor 40 can operate to develop
a 3D presentation of the spatially compounded volumetric image
data in a variety of ways. . . . The volume of data can be
presented as a series of slices or a volumetric block of image data.
Images can be formed of arbitrary planes passing through the
volumetric image data to produce synthesized slice images, a
three dimensional technique known as multi-planar reformatting.
One preferred way to present the volumetric data is in a rendered
form known as kinetic parallax.
(Id. at 7:44--55; see also Final Act. 10, 13, 15.)
FF 11. Entrekin depicts in Figure 7 "one technique for acquiring
spatially compounded volumetric image data" (Entrekin 8: 18-20). Figure 7
is reproduced below.
FIG .. 7
,.---------------------------------'·\ _____________________________ ,
(Id. at Fig. 7.) Figure 7 shows that "[a] probe including an array transducer
12 is moved above the volumetric region in the z direction as indicated by
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the arrow 150" and "the use of steered linear component frames in which the
scanlines in each component frame are parallel and at differing angles from
frame to frame" (Id. at 8:20-22, 32-35; see also Final Act. 10, 13, 15).
FF 12. Entrekin discloses that
spatial compounding is performed in two dimensions as the
probe is swept over the volumetric region. This technique uses
a two dimensional array transducer 212 which is capable of
electronically steering beams in both the azimuth (AZ) direction
and the elevation (EL) direction. As the probe containing
transducer 212 is moved in the z direction as indicated by arrow
250, component frames are acquired for spatial compounding in
two or more planar orientations. In the illustrated example, a
series of compound images are produced in parallel x-y planes
and in planar orientations inclined with respect to the x-y
orientation. . . . The beams are then elevationally steered to the
+81 orientation to acquire a third set of component frames for
production of a spatially compounded image in the +8
orientation.
(Entrekin 9:10-32; see also Final Act. 10, 13, 15.)
FF 13. Brandl discloses a
Method and apparatus for displaying an enhanced image based
on an image plane of data. A volume data set is acquired, and a
plane is defined on an image based on the volume data set. The
plane may be a C-plane. Data within the volume data set which
is defined by the plane is processed with an image enhancing
technique and the resultant enhanced image is displayed.
(Brandl Abstract; see also Final Act. 11-13, 15.)
FF 14. Brandl discloses that "[t]he ultrasound system 100 also
includes a signal processor 116 to process the acquired ultrasound
information (i.e., RF signal data or IQ data pairs) and prepare frames
of ultrasound information for display on display system 118" (Brandl i-f 17;
see also Final Act. 11-13, 15).
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FF 15. Rrandl discloses that
The transducer 10 is moved, such as along a linear or arcuate
path, while scanning a region of interest (ROI). At each linear
or arcuate position, the transducer 10 obtains scan planes 18. The
scan planes 18 are collected for a thickness, such as from a group
or set of adjacent scan planes 18. The scan planes 18 are stored
in the memory 20, and then passed to a volume scan converter
42 . ... The volume scan converter 42 creates a data slice from
multiple adjacent scan planes 18. The number of adjacent scan
planes 18 that are obtained to form each data slice is dependent
upon the thickness selected by slice thickness control input 40.
The data slice is stored in slice memory 44 and is accessed by a
volume rendering processor 46. The volume rendering processor
46 performs volume rendering upon the data slice. The output
of the volume rendering processor 46 is passed to the video
processor 50 and display 67.
(Brandl i-f 20; see also Final Act. 11-13, 15.)
Analysis
Appellants contend that the Examiner's reliance on Ramamurthy is
misplaced, because even though it is the only reference in the cited
combination that describes perfusion imaging, Ramamurthy nevertheless
fails contemplate thick slice imaging or recognize the loss of sensitivity
issues addressed by the claimed invention (App. Br. 13; Reply Br. 9)
We do not find Appellants' position persuasive. As an initial matter,
we observe that Appellants' attacks on Ramamurthy in isolation are
misplaced. See In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir.
1986) ("Non-obviousness cannot be established by attacking references
individually where the rejection is based upon the teachings of a
combination of references .... [The reference] must be read, not in isolation,
but for what it fairly teaches in combination with the prior art as a whole.").
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We further note, as discussed above, that the claims require neither
thick slice imaging, nor recognizing loss of sensitivity. "[L ]imitations are
not to be read into the claims from the specification." In re Van Geuns, 988
F.2d 1181, 1184 (Fed. Cir. 1993). See also In re Self, 671 F.2d 1344, 1348
(CCPA 1982) ("[A]ppellant's arguments fail from the outset because ...
they are not based on limitations appearing in the claims.").
Moreover, we agree with the Examiner that Entrekin teaches imaging
harmonic contrast agents, as well as combining image slices, and Brandl
teaches thick slice imaging (Ans. 9-10; FF 5-15).
Appellants additionally assert that Entrekin and Brandl disclose
volumetric imaging, rather than thick slice imaging (App. Br. 13-15; Reply
Br. 9-10), and that neither reference teaches "a combiner as recited in the
present claims" (App. Br. 14).
We are not persuaded. Claim 1 recites "a combiner, coupled to the
slice memory, which combines slice image data in the elevation direction."
Entrekin explicitly discloses the claimed combiner, teaching that "[ m ]ultiple
scans can be performed and compounded" (FF 6; see also FF 10-12) and
that "[a ]fter resampling the image frames are compounded by a combiner
36" (FF 8).
Brandl likewise suggests a combiner, disclosing that
At each linear or arcuate position, the transducer 10 obtains scan
planes 18. The scan planes 18 are collected for a thickness, such
as from a group or set of adjacent scan planes 18. The scan
planes 18 are stored in the memory 20, and then passed to a
volume scan converter 42. . . . The volume scan converter 42
creates a data slice from multiple adjacent scan planes 18. The
number of adjacent scan planes 18 that are obtained to form each
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data slice is dependent upon the thick,.ness selected by slice
thickness control input 40.
(FF 15.)
Appellants further argue that if the planes of Entrekin or Brandl "were
combined in the sense of the present invention, the result would not be the
desired volume image but a planar image" (App. Br. 14). More particularly,
Appellants contend that the references do not combine parallel slice image
data in the elevation direction (id. at 14--15).
We are not persuaded. Entrekin teaches that "[ t ]he echo data from the
multiple look directions are compounded to form spatially compounded
image data, which is processed for display in a three dimensional display
format" (FF 5), "[ t ]he fully processed compounded image is then transmitted
to the volume image rendering processor for rendering in a three
dimensional display format" (FF 9), "[ t ]he volume image rendering
processor 40 can operate to develop a 3D presentation of the spatially
compounded volumetric image data" (FF 10), "the use of steered linear
component frames in which the scanlines in each component frame are
parallel and at differing angles from frame to frame" (FF 11 ), and "[ t ]his
technique uses a two dimensional array transducer 212 which is capable of
electronically steering beams in both the azimuth (AZ) direction and the
elevation (EL) direction" (FF 12). Brandl teaches "[t]he transducer 10 is
moved, such as along a linear or arcuate path, while scanning a region of
interest (ROI)" (FF 15). Therefore, we are not persuaded by Appellants'
contentions to the contrary. See also In re Geisler, 116 F.3d 1465, 1470
(Fed. Cir. 1997) ("[A]ttomey argument [is] not the kind of factual evidence
that is required to rebut a prima facie case of obviousness").
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Lastly, Appellants contend that Entrekin does not perform contrast
imaging, perfusion studies, or harmonic imaging, and further assert that
Entrekin fails recognize problems with low sensitivity (App. Br. 15).
We do not find these arguments persuasive. As noted above, Entrekin
teaches "imaging harmonic contrast agents" (FF 7). Moreover, Appellants'
arguments fail to account for Ramamurthy's contributions to the
combination (FF 1--4). See In re Keller, 642 F.2d at 425 (CCPA 1981). See
also In re Van Geuns, 988 F.2d at 1184 andin re Self, 671 F.2d at 1348.
Accordingly, we affirm the rejection of claim 1. Because the claims
were not separately argued, claims 2-10 fall with claim 1.
IV.
The Examiner has rejected claims 11-18 under 35 U.S.C. § 103(a) as
being obvious over Ramamurthy, Entrekin, Brandl, and Powers. Appellants
present no additional argument based on the teachings of Powers, and rely
on the same arguments addressed above with regard to Ramamurthy,
Entrekin, and Brandl (see App. Br. 16-19). Therefore, we affirm the
rejection of claim 11. Because the claims were not separately argued, claims
12-18 fall with claim 11.
SUMMARY
We reverse the rejection of claims 1-18 under 35 U.S.C. § 112(a) as
failing to comply with the written description requirement.
We reverse the rejection of claims 1-18 under 35 U.S.C. § 112(b) as
being indefinite.
We affirm the rejection of claim 1 under 35 U.S.C. § 103(a) based on
Ramamurthy, Entrekin, and Brandl. Claims 2-10 fall with claim 1.
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We affirm the rejection of claim 11 under 35 U.S.C. § 103(a) based on
Ramamurthy, Entrekin, Brandl, and Powers. Claims 12-18 fall with
claim 11.
TIME PERIOD FOR RESPONSE
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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