Ex Parte Takimoto et al

Patent Trials and Appeals Board

Apr 16, 2019

11944546 - (D) (P.T.A.B. Apr. 16, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
11/944,546 11/23/2007 Masao Takimoto
22850 7590 04/18/2019
OBLON, MCCLELLAND, MAIER & NEUSTADT, L.L.P.
1940 DUKE STREET
ALEXANDRIA, VA 22314
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.
318713US2X 5586
EXAMINER
COOK, CHRISTOPHER L
ART UNIT PAPER NUMBER
3793
NOTIFICATION DATE DELIVERY MODE
04/18/2019 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):
patentdocket@oblon.com
OBLONPAT@OBLON.COM
iahmadi@oblon.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Exparte MASAO TAKIMOTO, MUNEKI KATAGUCHI,
FUMIYASU SAKAGUCHI, AKIHIRO KAKEE, ATSUSHI SUMI,
and SHIGEMITSU NAKA YA
Appeal2018-000103
Application 11/944,546
Technology Center 3700
Before JOSEPH A. FISCHETTI, AMEE A. SHAH, and
ROBERT J. SILVERMAN, Administrative Patent Judges.
SHAH, Administrative Patent Judge.
DECISION ON APPEAL 1
The Appellants2 appeal under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 1, 3-9, and 11-16, which are all of the pending
claims. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Throughout this decision, we refer to the Appellants' Appeal Brief
("Appeal Br.," filed May 1, 2017), Reply Brief ("Reply Br.," filed Oct. 4,
2017), and Specification ("Spec.," filed Nov. 23, 2007, as amended Oct. 13,
2011), and to the Examiner's Answer ("Ans.," mailed Aug. 4, 2017) and
Non-Final Office Action ("Non-Final Act.," mailed Sept. 1, 2016).
2 According to the Appellants, the real party of interest is "Toshiba Medical
Systems Corporation." Appeal Br. 1.
Appeal2018-000103
Application 11/944,546
STATEMENT OF THE CASE
The Appellants' "invention relates to an ultrasonic imaging apparatus
configured to transmit ultrasonic waves to a subject body and acquire the
movement state of fluid inside the subject body by the Doppler effect, and a
method for acquiring an ultrasonic image." Spec. 1.
Claims 1 and 9 are the independent claims on appeal. Claim 1
(Claims App. (i)) is illustrative of the subject matter on appeal and is
reproduced below ( with added bracketing for reference):
1. An ultrasonic imaging apparatus, comprising:
[(a)] a scanner configured to ultrasonically scan an inside
of a subject body;
[ (b)] an image generator configured to generate a 3-
dimensional B-mode image showing a shape of the inside of the
subject body and a 3-dimensional colored Doppler image
showing blood flow, based on data acquired through scanning
by the scanner;
[ ( c)] a marker generator configured to generate a first
planar marker, a second planar marker, and a third planar
marker that cross each other; and
[ ( d)] a display controller configured to cause a display to
display the first planar marker, the second planar marker, and
the third planar marker so as to be superimposed on the 3-
dimensional B-mode image and the 3-dimensional colored
Doppler image,
[ ( e)] wherein the scanner receives coordinate information
of an intersection of the first planar marker, the second planar
marker, and the third planar marker from the marker generator,
and executes Doppler scan on a site corresponding to the
intersection directly within the 3-dimensional B-mode image
and 3-dimensional colored Doppler image,
[(f)] wherein the image generator generates only the 3-
dimensional colored Doppler image data in an attention region,
the attention region being a region of a preset viewpoint of
2
Appeal2018-000103
Application 11/944,546
regions sectioned by the first planar marker, the second planar
marker, and the third planar marker and generates Doppler data
showing blood-flow information at the intersection, based on
data acquired through the Doppler scan, and
[(g)] wherein the display controller causes the display of
the 3-dimensional colored Doppler image in the attention
reg10n.
REJECTIONS 3
Claims 1, 3-6, 9, and 11-14 stand rejected under pre-AIA 35 U.S.C.
§ I03(a) as being unpatentable over Criton et al. (US 2003/0100832 Al,
pub. May 29, 2003) ("Criton"), Shirai (US 5,855,556, iss. Jan. 5, 1999),
Gering et al., "An Integrated Visualization System for Surgical Planning and
Guidance Using Image Fusion and an Open MR," Journal of Magnetic
Resonance Imaging, Vol. 13, pages 967-75 (2001) ("Gering"), Poland et al.
(US 6,692,441 Bl, iss. Feb. 17, 2004) ("Poland"), and Knittel et al.
(US 6,297,799 B 1, iss. Oct. 2, 2001) ("Knittel"), Xiang et al., "A Tri-plane
Cursor," Journal f Graphic Tools, vol. 2, no. 3, pages 37--43 (1998)
("Xiang"), or Blender, "The basics of the UI, and how to quickly use it,"
www.wiki.blender.org (Aug, 16, 2006, retrieved June 22, 2015) ("Blender").
Claims 7 and 15 stand rejected under pre-AIA 35 U.S.C. § I03(a) as
being unpatentable over Criton, Shirai, Gering, Poland, Knittel/Xiang/
Blender, and Deane, "Doppler ultrasound: principles and practice,"
www.centrus.com (2002, retrieved June 29, 2011) ("Deane").
Claims 7, 8, 15, and 16 stand rejected under pre-AIA 35 U.S.C.
§ I03(a) as being unpatentable over Criton, Shirai, Gering, Poland, Knittel/
3 The rejection of claims 1 and 9 under 35 U.S.C. § 112 has been
withdrawn. Ans. 2.
3
Appeal2018-000103
Application 11/944,546
Xiang/Blender, and Banjanin et al. (US 5,454,372, iss. Oct. 3, 1995)
("Banjanin").
Claims 8 and 16 stand rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over Criton, Shirai, Gering, Poland, Knittel/Xiang/
Blender, Deane, and Banjanin.
ANALYSIS
The Appellants argue all of the claims as a group. See Appeal Br. 12.
We select claim 1 from the group with the remaining claims standing or
falling therewith. See 37 C.F.R. § 4I.37(c)(l)(iv).
The Appellants contend that the Examiner's rejection is in error
because "the applied references fail to disclose and would not have rendered
obvious at least the following features of independent claim 1 ( and similarly
recited features in independent claim 9)," as recited in limitations ( c)
through (g) of generating markers, displaying the markers, receiving
coordinate information and executing Doppler scan, generating the 3-
dimensional ("3D") colored image data in an attention region, and causing
the display of the 3D image in the attention region. Appeal Br. 9. After
careful review of the Appellants' arguments as presented in the Appeal and
Reply Briefs, we are not persuaded of Examiner error in the rejection.
The Appellants argue generally that Shirai and Gering "merely
describe general knowledge. The features of the prior art are greatly
different from the presently claimed subject matter." Appeal Br. 9.
However, the Appellants do not provide argument, technical reasoning, or
evidence to show how or explain in what way(s) the combination of the prior
art does not meet the claimed limitations for which the Examiner relies on
4
Appeal2018-000103
Application 11/944,546
the art to teach. The Appellants argue that Gering's "technology is not
appropriate for displaying the backflow jet of the blood-flow, as provided
for by virtue of the presently claimed subject matter" (id. at 10), but provides
no further reasoning or evidence to support this contention. The Appellants
argue that "[ c ]onsidering the display method of Gering for removing a
portion around a characteristic point to display only the characteristic point,
probably, the other portions are just removed to display only the
characteristic point, and the display mode of the characteristic point is the
same as that of other portions." Id. But this statement does not address how
or in what way the Examiner's findings regarding Gering are in error.
We are not persuaded of Examiner error by the Appellants' argument
that, based on the above, "[t]he prior art references are thus unlikely to
provide any motivation for their combination." Appeal Br. 9; see also id.
at 10 ("Thus, there is no motivation to combine the teachings of Criton,
Shirai, and Gering."); Reply Br. 4. We note that the Examiner is not
required to find the "motivation" to combine the art in the references
themselves. See KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,419 (rejecting
this rigid requirement). Rather, the Examiner must provide "some
articulated reasoning with some rational underpinning" to support a rejection
of obviousness. Id. at 418. Here, the Examiner determines that one of
ordinary skill in the art would modify Criton with the teachings of Shirai and
Gering "in order to visually distinguish Doppler flow data (e.g.[,] functional)
in the ROI [region of interest]." Ans. 5. The Appellants do not provide
argument or reasoning why the Examiner's stated articulated reasoning is in
error.
5
Appeal2018-000103
Application 11/944,546
The Appellants further argue that "[ n Jone of the cited references
teaches or suggests these claimed features [ regarding the first, second, and
third planar markers], and therefore could not achieve the same resultant
display of the same as claimed." Appeal Br. 11; see also id. at 10; Reply
Br. 5. Specifically, the Appellants "disagree[]" with the Examiner's findings
regarding Poland because "a 3D cursor cannot be used like the three planar
markers as [ the Appellants] ha[ ve] claimed ( and as supported by [ the
Appellants'] original disclosure) if displayed in a wire-frame form" and
contend that
with the 3D cursor as shown in Poland, it is not possible to
achieve the same effects as those achieved by the presently
claimed subject matter by the use of the 3D cursor, i.e., a
different image can be displayed in each of regions by dividing
the area with the 3D cursor, blood flow information can be
acquired easily by acquiring Doppler information with the
intersection of the 3D cursor as the setting position of the sample
marker, and the like.
Appeal Br. 11. However, the Appellants provide no support in the form of
technical reasoning or evidence why Poland's cursor does not meet the
claimed limitations for which Poland is relied upon, i.e., why it is "not
possible" to achieve the results. Moreover, the Examiner relies on the
combination of Poland and Knittel, Xiang, or Blender to teach the
limitations regarding the markers. See Final Act. 6-8; Ans. 6-7. The
Appellants' arguments against Poland and that the remaining art, Knittel,
Xiang, and Blender, "only teach the 3D cursor, and do not suggest at least
the usage of the three planar markers as in the present invention" (Appeal
Br. 11) are arguments against the art individually. One cannot show non-
obviousness by attacking references individually when the rejection is based
on a combination of references. In re Keller, 642 F.2d 413,425 (CCPA
6
Appeal2018-000103
Application 11/944,546
1981 ). Each reference cited by the Examiner must be read, not in isolation,
but for what it fairly teaches in combination with the prior art as a whole. In
re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). The Appellants
do not adequately explain why the combination relied on by the Examiner
does not teach the limitations.
Thus, we are not persuaded of error in the Examiner's rejection under
35 U.S.C. § 103 of claim 1, and we sustain the rejections of claim 1 and of
claims 3-9 and 11-16, which fall with claim 1.
DECISION
The Examiner's rejections of claims 1, 3-9, and 11-16 under pre-AIA
35 U.S.C. § 103(a) are 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)(l)(iv).
AFFIRMED
7