Ex Parte Eggers et al

Patent Trial and Appeal Board

Sep 22, 2016

13854800 (P.T.A.B. Sep. 22, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/854,800 04/01/2013
66854 7590
SHAY GLENN LLP
2755 CAMPUS DRIVE
SUITE 210
SAN MATEO, CA 94403
09/26/2016
FIRST NAMED INVENTOR
Philip E. Eggers
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.
12460-702.300 5748
EXAMINER
PARK, PATRICIA JOO YOUNG
ART UNIT PAPER NUMBER
3777
NOTIFICATION DATE DELIVERY MODE
09/26/2016 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):
info@shayglenn.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PHILIP E. EGGERS, SCOTT P. HUNTLEY,
ERIC A. EGGERS, and BRUCE A. ROBINSON
Appeal2014-009961
Application 13/854,8001
Technology Center 3700
Before HUBERT C. LORIN, ANTON W. PETTING, and
KENNETH G. SCHOPPER, Administrative Patent Judges.
SCHOPPER, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the rejection of claims
1-5, 7-14, 16-19, 21-24, 29, and 31-38. We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM.
BACKGROUND
According to Appellants, "[ e ]mbodiments described [in the
Specification] relate generally to medical imaging and methods and devices
1 According to Appellants, the real party in interest is Tractus Corporation.
Appeal Br. 2.
Appeal2014-009961
Application 13/854,800
for ensuring adequate quality and coverage of scanned and recorded images.
In another aspect, embodiments described relate to reducing review time of
scanned and recorded images from an imaging session or procedure." Spec.
iT 3.
CLAIMS
Claims 1-5, 7-14, 16-19, 21-24, 29, and 31-38 are on appeal. Claim
1 is illustrative of the appealed claims and recites:
1. A scan completeness auditing system for use with an
ultrasound imaging console in screening a volume of tissue
compnsmg:
a position tracking system configured to track and record
the position of a manual ultrasonic imaging probe, the position
tracking system comprising:
a plurality of position sensors adapted to couple to
a manual ultrasonic imaging probe, the position sensors
configured to provide position data for the manual
ultrasonic imaging probe; and
a receiver comprising a controller configured to
electronically receive position data for the manual ultrasonic
imaging probe from the position tracking system and to
electronically receive and record a first scan sequence
comprising a first set of scanned images representing cross-
sections of the tissue from the manual imaging probe, wherein
the controller is further configured to assign a replay dwell time
to each image in the first scan sequence, wherein the dwell time
for each image is based on a relative spacing for that image in
the first scan sequence computed from the position data.
Appeal Br. 13.
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Application 13/854,800
REJECTIONS
1. The Examiner rejects claims 1, 16, 21, 31, and 38 under 35 U.S.C.
§ 103(a) as unpatentable over Glukhovsky2 in view of Lachaine. 3
2. The Examiner rejects claims 2 and 12 under 35 U.S.C. § 103(a) as
unpatentable over Glukhovsky in view ofLachaine and Levanon.4
3. The Examiner rejects claims 7-9, 19, 21, 35, and 37 under 35
U.S.C. § 103(a) as unpatentable over Glukhovsky in view of
Lachaine and Hossack. 5
4. The Examiner rejects claims 13, 32, 33, and 36 under 35 U.S.C.
§ 103(a) as unpatentable over Glukhovsky in view of Lachaine and
Willsie. 6
5. The Examiner rejects claims 3, 4, 14, 17, 22-24, 29, and 34 under
35 U.S.C. § 103(a) as unpatentable over Glukhovsky in view of
Lachaine, Hossack, and Sumanaweera. 7
6. The Examiner rejects claims 5, 10, and 18 under 35 U.S.C.
§ 103(a) as unpatentable over Glukhovsky in view of Lachaine,
Hossack, and Pelissier. 8
7. The Examiner rejects claim 11under35 U.S.C. § 103(a) as
unpatentable over Glukhovsky in view of Lachaine, Hossack,
Pelissier, and Levanon.
2 Glukhovsky et al., US 2005/0110881 Al, pub. May 26, 2005.
3 Lachaine et al., US 2009/0041323 Al, pub. Feb. 12, 2009.
4 Levanon et al., US 7,940,970 B2, iss. May 10, 2011.
5 Hossack et al., US 6,201,900 Bl, iss. Mar. 13, 2001.
6 Willsie et al., US 2009/0018441 Al, pub. Jan 15, 2009.
7 Sumanaweera, US 2008/0021317 Al, pub. Jan 24, 2008.
8 Pelissier et al., US 2010/0298705 Al, pub. Nov. 25, 2010.
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Application 13/854,800
Rejection 1
DISCUSSION
Appellants raise arguments with respect to both independent claims 1
and 16. See Appeal Br. 5-10. However, because Appellants' arguments are
substantially the same with respect to both of these claims, we address only
claim 1 below, and our analysis with respect to claim 1 is equally applicable
to claim 16. Further, Appellants do not raise arguments with respect to
dependent claims 21, 31, and 38, and thus, those claims fall with claims 1
and 16.
With respect to claim 1, the Examiner finds that G lukhovsky teaches a
video imaging device with a plurality of sensors measuring properties of the
frame capture rate; varying the rate of data display by a processor; and
changing the display frame rate based on the similarity or difference
between successive frames. Final Act. 2 (citing Glukhovsky i-fi-19, 11-13,
45--48, 53, 54, 65, 69, 70). The Examiner acknowledges that Glukhovsky
does not teach an ultrasound system, a position tracking system, or
computing relative spacing between two images based on the position data.
Id. For these claim requirements, the Examiner relies on Lachaine and finds
that Lachaine teaches a system including a position tracking system; a
plurality of position sensors coupled to a manual ultrasound imaging probe;
and a receiver that receives position data and a first scan sequence including
scanned images representing a cross-section of tissue from the imaging
probe. Id. at 3 (citing Lachaine Fig. 4; i-fi-120, 33-38). The Examiner
concludes that it would have been obvious to one of ordinary skill in the art
to substitute Glukhovsky's image spacing teachings based on similarities or
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Application 13/854,800
differences between frames for Lachaine' s use of positional data to arrive at
the claimed system. Id. at 3--4.
Appellants raise three arguments9 with respect to the rejection of
claim 1. See Appeal Br. 6-7. As discussed below, we are not persuaded of
error by these arguments.
First, Appellants argue that neither Glukhovsky nor Lachaine includes
a controller configured to assign a dwell time to each image for playback.
Appeal Br. 6. We disagree.
Appellants assert that the Examiner is improperly equating dwell time
with display rate. Reply Br. 2. Appellants argue that "dwell time is the time
spent displaying each frame, and it can be calculated by dividing the
distance between frames by the desired spatial representation rate of those
frames." Id. (citing Spec. i-fi-163, 189). However, we fail to see a meaningful
distinction between display rate and dwell time in the context of the claims
before us beyond the fact that one is the inverse of the other. Specifically,
the claim only requires that the dwell time is "based on a relative spacing for
that image in the first scan sequence computed from position data." Thus,
the claim is not limited to the specific calculation cited by Appellants, and
9 We also note that Appellants raise a number of new issues in their Reply
Brief, which we find are not responsive to any new arguments or issues
raised by the Examiner in the Answer and for which Appellants have not
established any good cause for raising them for the first time in their
Reply. For example, Appellants raise specific arguments for the first time
that the Examiner's rationale for the proposed combination is not
sufficient. See Reply Br. 4---6. However, the Examiner's rationale doesn't
change in any significant way between the rejection and the Answer. See
Final Act. 3--4; Ans. 11. Thus, we decline to address these arguments here.
See 37 CPR§ 41.41(b)(2).
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Application 13/854,800
we decline to read that specific limitation into the claim. We find that
Appellants' more limited interpretation of dwell time is not commensurate
with the scope of the claim.
Further, we agree with the Examiner that Glukhovsky teaches, or at
least suggests, assigning dwell times to each image. Specifically,
Glukhovsky teaches varying the display rate for images based on how fast
the imaging device is moving or the similarities or differences between
successive frames. See Glukhovsky i-f 53. For example, Glukhosvky
discloses "[ w ]hen the analysis of the pixels in consecutive frames indicates
that the capsule is at rest or moving slowly, the images are displayed at a fast
display rate. If the analysis indicates that the capsule is moving rapidly
through the GI tract, the images are displayed more slowly." Id. Changing
the display rate for each image based on the relative speed of movement of
the capsule is effectively the same as assigning a dwell time to the images
based on the capsule's movement.
Second, Appellants argue:
Moreover, it would make absolutely no sense to use
Lachaine's position sensors on the Glukhovsky capsule;
Lachaine's camera-based tracking system would not be able to
image through the optically opaque abdominal wall to see the
position sensors on Glukhovsky's capsule as it travels through
the GI tract. The combination suggested by the Examiner would
therefore be inoperable, and a skilled artisan would not be
motivated to try it. The Examiner's analysis does not address this
point.
Appeal Br. 6. We are not persuaded. The Examiner relies on Lachaine as
disclosing a position tracking system for an ultrasound probe. Final Act. 3.
Appellants' argument is unpersuasive to the extent it relies on physically
incorporating Lachaine's sensors into Glukhovsky's capsule. "The test for
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Application 13/854,800
obviousness is not whether the features of a secondary reference may be
bodily incorporated into the structure of the primary reference . . . . Rather,
the test is what the combined teachings of those references would have
suggested to those of ordinary skill in the art." In re Keller, 642 F.2d 413,
425 (CCPA 1981). Further, Appellants' argument fails to address the fact
that Lachaine discloses other methods of position tracking beyond a camera-
based tracking system, as noted by the Examiner. See Ans. 11 (citing
Lachaine i-fi-13, 5, 34, 35). Specifically, Lachaine discloses "magnetic
tracking systems or mechanical systems, such as articulated arms or robots,
can be used to acquire position information" in lieu of positional tracking
using cameras. Lachaine i134.
Third, Appellants argue:
Finally, even if Lachaine's position sensors could be
added to the Glukhovsky capsule (despite the fact that the
swallowable capsule is much smaller than a manual ultrasound
probe, smaller than Lachaine' s sensors themselves), the capsule's
camera images only the surface of the tissue and lacks any ability
to obtain cross-sectional ultrasound images. This proposed
combination of the two devices would therefore not satisfy the
claim limitations of a controller configured to electronically
receive and record scanned cross-sectional images of the tissue
from a manual imaging probe and to electronically assign a
replay dwell time to each image in the scan sequence based on a
relative spacing for that image in the scan sequence computed
from the position data. The Examiner's analysis ignores this
difference as well.
Appeal Br. 7. We are not persuaded. This argument does not address the
fact that the rejection relies on Lachaine as disclosing a receiver to
electronically receive position data and to record a scan sequence of cross-
sectional images. Final Act. 3. Appellants have not sufficiently explained
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why the proposed combination would not satisfy the claim limitation
regarding obtaining cross-sectional images.
Based on the foregoing, we are not persuaded of error with respect to
the rejection of claim 1, and thus, we sustain the rejection of claim 1. We
also sustain the rejection of claims 16, 21, 31, and 38 for the same reasons.
Rejections 2-7
With respect to the remaining rejections, Appellants only present
additional arguments with respect to claim 13, as discussed below.
Regarding claims 2-5, 7-12, 14, 17-19, 22-24, 29, and 32-37, Appellants
assert only that the art of record fails to cure the deficiencies in the rejection
of independent claims 1and16. See, e.g., Appeal Br. 10. As discussed
above, we find no deficiencies in the rejection of independent claims 1 and
16, and thus, we sustain the rejections of claims 2-5, 7-12, 14, 17-19, 22-
24, 29, and 32-37 for the same reasons.
With respect to claim 13, Appellants argue:
Claim 13 is patentable over this combination of references
for an additional reason. Claim 13 depends from claim 1 and
recites the controller as configured to change an image display
rate of a recorded scan sequence to provide a substantially
uniform spatial-temporal display of the recorded scan sequence.
While the Examiner contends that Willsie "teaches adjusting
scan frame rate and display frame rate in a constant or variable
rate in an ultrasound imaging system ([0041 ]-[0049])," the
Examiner never actually addresses the language of claim 13.
(Final Office Action, p. 7). The Examiner has therefore not set
forth a primafacie case for the obviousness of claim 13 for this
reason as well. Moreover, Willsie does not in fact disclose the
subject matter of claim 13. Claim 13 is patentable over
Glukhovsky, Lachaine and Willsie under§ 103(a).
Appeal Br. 11.
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We are not persuaded of error by this argument. In the rejection, the
Examiner makes findings regarding Willsie, as noted by Appellants, which
appear to be related to the subject matter of claim 13. Final Act. 7. Further,
the Examiner finds that "Willsie teaches that same image can be displayed
two or more times to provide sufficient time to scan the entire region to be
imaged in later displayed images ([0049]), which indicates that it provides a
substantially uniform spatial-temporal display of the scan sequence." Ans.
12. Appellants do not provide an explanation as to why Willsie does not
disclose the subject matter of claim 13, and Appellants do not address the
Examiner's findings provided in the Answer. For these reasons, we sustain
the rejection of claim 13.
CONCLUSION
For the reasons set forth above, we AFFIRM the rejections of claims
1-5, 7-14, 16-19, 21-24, 29, and 31-38.
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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