Bo Martins

Patent Trials and Appeals Board

Jan 24, 2020

13812883 - (D) (P.T.A.B. Jan. 24, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/812,883 01/29/2013 Bo Martins ANA1077-US
(BKM106979)
7046
23266 7590 01/24/2020
Dept. GEN
DAUGHERTY & DEL ZOPPO CO., L.P.A.
38500 CHARDON ROAD
WILLOUGBY HILLS, OH 44094
EXAMINER
HULKA, JAMES R
ART UNIT PAPER NUMBER
3645
NOTIFICATION DATE DELIVERY MODE
01/24/2020 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
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BO MARTINS
Appeal 2018-006384
Application 13/812,883
Technology Center 3600
Before JOHN C. KERINS, MICHAEL L. WOODS, and
ERIC C. JESCHKE, Administrative Patent Judges.
WOODS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–13, 15–21, 23, and 24. Appeal Br.
3–7.2 We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the real party in interest as Analogic
Corporation. Appeal Br. 2.
2 A supplemental appeal brief was filed on March 19, 2018, to place the
“Summary of Claimed Subject Matter” in compliance with our Rules.
Throughout this Decision, our references to “Appeal Br.” will be to the
original appeal brief filed on March 1, 2018.
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Application 13/812,883
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CLAIMED SUBJECT MATTER
The technology “generally relates to motion-compensated processing
with particular application to ultrasound imaging.” Spec. 1 (Technical
Field). Claims 1 and 13 are independent. Appeal Br. 8–12 (Claims App.).
Claim 1, reproduced below and with emphasis added to two limitations
central to our analysis, is illustrative of the claimed subject matter:
1. An echo processor for an ultrasound imaging
device, the echo processor comprising:
a frame processor, including:
a frame buffer and scan converter/ sampler
configured to sequentially receive one or more sets of
frames, each set including a most aged frame of a region
of a tissue of interest acquired with a transducer array at a
fixed position with a first beam having a first
transmission angle, at least one next frame of the region
of interest acquired with the transducer array at the fixed
position with a second beam having a second
transmission angle which is different from the first
transmission angle, and a most recent frame of the region
of interest acquired with the transducer array at the fixed
position with a third beam having the first transmission
angle;
a frame identifier configured to identify a set of the
one or more sets of frames, including the most aged
frame, the at least one next frame, and the most recent
frame of the identified set;
a displacement field determiner configured to
determine a displacement field between the most aged
frame and the most recent frame in terms of sample or
pixel shifts;
a motion compensator configured to motion
compensate the at least one next frame with at least the
determined displacement field to correct for incorrect
alignment;
a combiner configured to spatially compound the
most recent frame and the motion compensated at least
one next frame to produce a compounded frame.
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Application 13/812,883
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Appeal Br. 8 (Claims App., emphasis added).
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Jago US 6,416,477 B1 July 9, 2002
Konofagou US 2008/0285819 A1 Nov. 20, 2008
Jeong US 2008/0064956 A1 Mar. 13, 2008

REJECTIONS
(1) The Examiner rejects claims 1, 2, 4–10, and 13 as anticipated
under 35 U.S.C. § 102(b) by Jago or, in the alternative, as obvious
under 35 U.S.C. § 103(a) over Jago. Final Act. 2.
(2) The Examiner rejects claims 1–13, 14–21, 23, and 24 as
unpatentable under 35 U.S.C. § 103(a) over Jago in view of
Konofagou and Jeong. Final Act. 5.
OPINION
I. Intended Use Limitations
As an initial matter, we address the Examiner’s position that the
“limitations [of independent claims 1 and 13] are mostly intended use of
ultrasound image processors well-known in the art, and capable of
performing the functions described.” See Final Act. 3 (emphasis added).
We disagree with the Examiner’s position that these limitations are
merely statements of intended use.
“It is well settled that the recitation of a new intended use for an old
product does not make a claim to that old product patentable.” In re
Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997) (internal citations omitted).
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Application 13/812,883
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Independent claim 13, however, is a method claim (Appeal Br. 8
(Claims App.)), not a product claim, and Schreiber’s holding as to intended
use of old products does not apply to claim 13.
As to independent claim 1, this claim recites a processor comprising a
“frame buffer and scan converter/sampler,” a “frame identifier,” a
“displacement field determiner,” a “motion compensator,” and a “combiner”
each “configured to” perform certain functions. See id. We interpret these
limitations to mean that the processor is programmed to perform the
functions stated in the claim. Typhoon Touch Techs., Inc. v. Dell, Inc., 659
F.3d 1376, 1380–81 (Fed. Cir. 2011) (discussing Fantasy Sports Props., Inc.
v. Sportsline.com, Inc., 287 F.3d 1108, 1117–18 (Fed. Cir. 2002)). A
computer programmed to perform particular functions is regarded as
structurally different from a computer without that program. In re Noll, 545
F.2d 141, 148 (CCPA 1976). Thus, claim 1’s recitation of a processor
configured to perform certain functions is not merely a statement of intended
use, but connotes structure. Accordingly, the Examiner erred in construing
these limitations as mere intended use.

II. Anticipated and/or Obvious over Jago
The Examiner rejected claims 1, 2, 4–10, and 13 “as anticipated by or,
in the alternative, . . . as obvious over Jago.” Final Act. 2.

a. Examiner’s Rejection
In rejecting the claims, the Examiner finds that Jago discloses the
claimed echo processor comprising a “frame processor,” a “frame
identifier,” a “displacement field determiner,” a “motion compensator,” and
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a “combiner.” Final Act. 2–3 (citations omitted). The Examiner cites to
Jago’s Figure 2 (Ans. 13), a copy of which we reproduce, below:

Figure 2 illustrates an ultrasonic diagnostic imaging system. Jago, 2:40–42.
In particular, Figure 2 depicts scanhead 10 with array transducer 12 that
transmits beams (shown in dashed lines) over an image field. Id. at 4:5–10.
The echoes returned from the scanlines are received by the elements of the
array, digitized by analog-to-digital conversion, and coupled to digital
beamformer 16. Id. at 4:17–20. Digital beamformer 16 sums the echoes
from the array elements to form a sequence of focused, coherent, digital
echo samples along each scanline. Id. at 4:20–23. Transmitter 14 and
beamformer 16 are operated under control of controller 18, which responds
to the user via settings on user interface 20. Id. at 4:23–26.
The Examiner finds that “Figure 2 of Jago explicitly shows the
elements of the combiner (36, 74), scan converter (40), resampler (34),
various processors (32, 38, 44 and 70) — which perform the identifying,
displacement and motion compensation functions.” Ans. 13.
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Application 13/812,883
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b. Analysis
Appellant contends that Jago does not disclose the claimed
displacement field determiner. Appeal Br. 5.
We agree.
Having established that the “configured to” limitations connote
structure, we address whether the Examiner has adequately established that
Jago discloses the limitations of the properly construed claims.
In addressing the claimed “displacement field determiner configured
to determine the displacement field between the most aged frame and the
most recent frame,” the Examiner cites to Jago’s column 5, lines 10–30, and
column 6, lines 10–40. Final Act. 3.
Upon reviewing the passages, we agree with Appellant’s position that
the disclosure in column 5 “is about storing and displaying compounding
images,” and that the disclosure in column 6 is about “comput[ing]
displacement between overlapping regions of neighboring compounding
images.” Appeal Br. 5. We do not find this as disclosing “a displacement
field determiner configured to determine a displacement field between the
most aged frame and the most recent frame.” Id. at 8 (Claims App.,
emphasis added). Importantly, the claim requires the displacement field to
be determined between a “most aged frame” and a “most recent frame,”
which are frames taken at different times. Id. We find nothing in the
passages cited by the Examiner that support a finding that Jago’s
“determiner”—whatever that may be—determines a displacement field with
frames taken at different times.
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Finally, although the Examiner rejects the claims as anticipated and or
obvious over Jago, the rejection does not set forth what limitation, if any,
would have been obvious over Jago. See Final Act. 2–4.
For the foregoing reasons, we do not sustain the rejection of claims 1,
2, 4–10, and 13 as anticipated or obvious over Jago.

III. Obvious over Jago, Konofagou, and Jeong
The Examiner rejects claims 1–13, 15–21, 23, and 24 as unpatentable
under 35 U.S.C. § 103(a) over Jago, Konofagou, and Jeong. Final Act. 5.

a. Examiner’s Rejection
The Examiner relies on Jago for teaching an echo processor
comprising, inter alia, “a displacement field determiner (image registration)
that determines the displacement field.” Final Act. 5 (citing Jago, 5:10–30,
6:10–40). Unlike the prior rejection, however, the Examiner submits that
Jago implies, but does not explicitly teach . . . with a second
beam having a second transmission angle which is different
than the first transmission angle and a most recent frame of the
region of interest acquired with the transducer array at the fixed
position with a third beam having the first transmission angle or
. . . displacement field determiner configured to determine the
displacement field between the most aged frame and the most
recent frame . . . , a motion compensator . . . to correct for
incorrect alignment.
Id. at 5–6 (ellipses from the final office action, italicized emphases added).
The Examiner also submits that Jeong teaches a “displacement field
determiner configured to determine the displacement field between the most
aged frame and most recent frame . . . , a motion compensator . . . to correct
for incorrect alignment.” Id. (citing Jeong ¶¶ 26, 27, 38). In further
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combining the cited art with Jeong, the Examiner reasons, “It would have
been obvious to modify the system of Jago to determine the displacement
field based on similarities and shifts to decrease artifacts, simplify the set of
calculations to be determined, and to provide a faster refresh rate with
higher resolution image to the users.” Id. (emphases added).

b. Analysis
Appellant argues that the combination of Jago, Konofagou, and Jeong
does not “disclose or suggest determining a displacement field between the
most aged frame and the most recent frame” or “motion compensating . . .
with this displacement field.” Appeal Br. 6.
Appellant’s argument is persuasive.
The Examiner relies on Jago and Jeong for each teaching the claimed
“displacement field determiner” and “motion compensator,” yet the cited
disclosures do not support the Examiner’s position.
As to Jago, the Examiner posits that Jago “implies . . . [a]
displacement field determiner configured to determine the displacement
field between the most aged frame and the most recent frame” and “a motion
compensator . . . to correct for alignment.” Final Act. 5–6 (citing Jago,
5:10–30, 6:10–40). The Examiner relies on the same disclosure relied upon
in the prior rejection, namely, Jago’s columns 5 and 6. Id.
We are not persuaded that Jago implicitly teaches these limitations.
Rather, we agree with Appellant’s position that the disclosure in
column 5 “is about storing and displaying compounding images” and that
the disclosure in column 6 is about “comput[ing] displacement between
overlapping regions of neighboring compounding images.” Appeal Br. 5.
As such, we are not persuaded that Jago implicitly teaches “a displacement
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Application 13/812,883
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field determiner configured to determine a displacement field between the
most aged frame and the most recent frame.” Id. at 8 (Claims App.,
emphasis added). As discussed above, we find nothing in the passages cited
by the Examiner that supports a finding that Jago determines a displacement
field with frames taken at different times.
Turning to Jeong, the Examiner finds that “Jeong teaches
displacement field determiner configured to determine the displacement
field between the most aged frame and the most recent frame” and “a motion
compensator . . . to correct for incorrect alignment.” Final Act. 6 (citing
Jeong ¶¶ 26, 27, 38).
Appellant asserts that Jeong does not teach the claimed limitations.
Appeal Br. 6. In particular, Appellant asserts that “Jeong is drawn to
displaying an elastic/strain image . . . [that] is acquired by performing an
acquisition with no external pressure applied by the user.” Id. (citing Jeong,
Abstr., ¶¶ 22–26, 38).
We agree with Appellant.
Jeong, titled, “Method of Displaying an Elastic Image,” describes
transmitting and receiving an ultrasound signal to and from a target of tissue,
before and after a stress is applied, to obtain first and second ultrasound data,
respectively. Jeong, codes (54), (57); id. ¶ 22. Jeong further discloses,
“After obtaining a displacement function for the deformed stress, the
displacement function may be differentiated to obtain a gradient representing
a strain of deformed tissues.” Id. ¶ 25.
Paragraphs 26 and 27 of Jeong—which the Examiner specifically
cites to (Final Act. 6)—describe improving the accuracy of calculating the
displacement of tissue strain (Jeong ¶ 26) and determining the “total
displacement . . . by summing the coarse displacement and the fine
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Application 13/812,883
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displacement according to the stress applied” (id. ¶ 27). Paragraph 38,
which the Examiner also cites to (Final Act. 6), discloses, “The first and
second ultrasound receive data are compared to calculate first and second
displacements.” Jeong ¶ 38.
Although we find that Jeong discloses determining a displacement
field with frames taken at different times (that is, before and after a stress is
applied to tissue), the displacement described in Jeong relates to deformed
tissue, and the Examiner has not adequately explained how this disclosure
supports the rejection. The claim further requires a motion compensator and
that the displacement field is used for motion compensation and correcting
alignment. See Appeal Br. 8 (“a motion compensator configured to motion
compensate the at least one next frame with at least the determined
displacement field to correct for incorrect alignment.”). We do not find
Jeong as disclosing a motion compensator for correcting alignment, and
Jeong’s tissue displacement disclosure is seemingly unrelated to the
Examiner’s reason for combining Jeong—to decrease artifacts, simplify
calculations, and a provide for a faster refresh rate. Final Act. 6. Absent
further explanation in the record, we cannot support the Examiner’s position
that the claimed limitations would have been obvious based on Jeong’s
paragraphs 26, 27, and 38. Id.
For the foregoing reasons, we do not sustain the rejection of claims 1–
13, 15–21, 23, and 24 as unpatentable over Jago, Konofagou, and Jeong.

CONCLUSION
The Examiner’s rejections are reversed.

Appeal 2018-006384
Application 13/812,883
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DECISION SUMMARY
In summary:
Claims
Rejected
35
U.S.C. §
Reference(s) Affirmed Reversed
1, 2, 4–10, 13 102 Jago 1, 2, 4–10, 13
1, 2, 4–10, 13 103 Jago 1, 2, 4–10, 13
1–13, 15–21,
23, 24
103 Jago, Konofagou,
Jeong
1–13, 15–21,
23, 24
Overall
Outcome
1–13, 15–21,
23, 24