Ex Parte Fokkenrood et alDownload PDFPatent Trial and Appeal BoardMay 2, 201813885403 (P.T.A.B. May. 2, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/885,403 05/15/2013 Steven Antonie Willem Fokkenrood 24737 7590 05/04/2018 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. 2010P01324WO 7831 EXAMINER HOFFA, ANGELA MARIE ART UNIT PAPER NUMBER 3768 NOTIFICATION DATE DELIVERY MODE 05/04/2018 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): patti. demichele@Philips.com marianne.fox@philips.com katelyn.mulroy@philips.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte STEVEN ANTONIE WILLEM FOKKENROOD, FRANCISCUS PAUL US MARIA BUDZELAAR, NANAD MIHAJLOVIC, ERIK GODEFRIDUS ANTONIUS HARKS, and SZABOLCS DELADI Appeal2017-003450 Application 13/885,403 1 Technology Center 3700 Before DONALD E. ADAMS, JOHN G. NEW, and TIMOTHY G. MAJORS, Administrative Patent Judges. ADAMS, Administrative Patent Judge. DECISION ON APPEAL This Appeal under 35 U.S.C. § 134(a) involves claims 1-12, 14, and 15 (App. Br. 2). Examiner entered rejections for lack of written descriptive support, indefiniteness, anticipation and obviousness. We have jurisdiction under 35 U.S.C. § 6(b ). We REVERSE. 1 Appellants identify "KONINKLIJKE PHILIPS NV" as the real party in interest (App. Br. 2). Appeal2017-003450 Application 13/885,403 STATEMENT OF THE CASE Appellants' disclosure "relates to a filtering apparatus, a filtering method and a filtering computer program for filtering an ultrasound signal" (Spec. 1: 2-3). Appellants' claim 1 is representative and reproduced below: 1. A filtering apparatus for filtering an ultrasound signal, the ultrasound signal (19) being influenced by an electrical unit and comprising a first part (A) comprising information about an object (4) from which the ultrasound signal (19) has been received and a second part (B) not receiving the ultrasound signal from the object and not comprising information about the object (4), characterized in that the filtering apparatus (15) comprises: a correction signal determination unit (17) configured to determine a correction signal being indicative of the influence of the electrical unit on the ultrasound signal (19) from the second part (B) of the ultrasound signal (19), a correction unit (18) configured to correct the first part (A) of the ultrasound signal (19) based on the determined correction signal for filtering the influence of the electrical unit (31) out of the ultrasound signal ( 19). (App. Br. 18.) The claims stand rejected as follows: Claims 1-12, 14, and 15 stand rejected under 35 U.S.C. § 112(a) Claims 1-12, 14, and 15 stand rejected under 35 U.S.C. § 112(b). Claims 1-6, 8, 10-12, 14, and 15 stand rejected under 35 U.S.C. § 102(b) as anticipated by Harks. 2 2 Harks et al., WO 2010/082146 Al, published July 22, 2010. 2 Appeal2017-003450 Application 13/885,403 Claim 7 stand rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Harks and van den Eden. 3 Claim 9 stand rejected under 35 U.S.C. § 103(a) as upatentable over Harks. CLAIM INTERPRETATION: "It is axiomatic that, in proceedings before the PTO, claims in an application are to be given their broadest reasonable interpretation consistent with the specification and that claim language should be read in light of the specification as it would be interpreted by one of ordinary skill in the art." In re Sneed, 710 F.2d 1544, 1548 (Fed. Cir. 1983) (citation omitted). For clarity, Appellants' Fig. 1 is reproduced below: 3 A.W.M. van den Enden, EFFICIENCY IN MULTIRATE AND COMPLEX DIGITAL SIGNAL PROCESSING, 7.1(dissertation),1-2 (2001), http://repository.tue.nl/548857 last visited April 2018 (hereinafter "van den Eden"). 3 Appeal2017-003450 Application 13/885,403 Appellants' "Fig. 1 shows schematically and exemplarily an ultrasound sensing apparatus 1 for sensing an object 4. In this embodiment, the object 4 is a heart of a person 13 located on a table 60. In particular, the object is cardiac tissue of a wall of the heart 4. The ultrasound 30 sensing apparatus 1 comprises a catheter 12 with a catheter tip 40" (Spec. 7: 27-30; see generally id. at 6: 8-9 ("Fig. 1 shows schematically and exemplarily an embodiment of an ultrasound sensing apparatus for sensing an object")). Appellants' "catheter tip 40 comprises an ultrasound unit [] for generating an ultrasound signal depending on ultrasound waves received from[] object 4" and "an electrical unit ... adapted to apply electrical energy to the cardiac tissue" (id. at 6: 32 - 7: 2; see also id. at 7: 9-12 ("The electrical ... unit is an ablation electrode for applying electrical RF energy to the cardiac tissue")). The ultrasound unit[] is controlled by an ultrasound control unit 5, wherein the ultrasound unit[] and the ultrasound control unit 5 are adapted to send out ultrasound pulses into the cardiac tissue, to receive dynamic echo series after the ultrasound pulses have been reflected by the cardiac tissue and to generate an ultrasound signal depending on the received dynamic echo series. The ultrasound unit [] is connected with the ultrasound control unit 5 via an electrical connection []. [C]ontrol unit 7 is adapted to operate the ultrasound unit [] and the electrical unit [] simultaneously, wherein the generated ultrasound signal is influenced by the electrical unit [], i.e., .. RF energy. The generated ultrasound signal 19 is schematically and exemplarily shown in Fig. 3 [reproduced below]. (id. at 7: 3-8 and 22-25 (emphasis added).) 4 Appeal2017-003450 Application 13/885,403 . i -tr. -~9-----~s i Appellants disclose: tl FIG.3 Fig. 3 shows in the upper part schematically and exemplarily the ultrasound energy E depending on [cardiac] tissue depth d. The lower part of Fig. 3 shows the generated ultrasound signal 19. In particular, the ultrasound signal 19 shown in the lower part of Fig. 3 is an A-line, wherein the amplitude is shown depending on the tissue depth d. The ultrasound energy E decreases with increasing tissue depth d because of the absorption and scattering by the cardiac tissue. The first part A of the ultrasound signal 19 corresponds to an ultrasound energy E, which is larger than 0. The first part A comprises therefore information about the cardiac tissue from which the ultrasound signal 19 has been received. The second part B of the ultrasound signal 19 corresponds to an ultrasound energy E being substantially 0. The second part B of the ultrasound signal 19 does therefore not comprise information about the object. In this example, the first part A comprises tissue information, which is shadowed by RF interference, and the second part B does not comprise tissue information due to absorption and scattering of ultrasound energy, and only RF interference is visible in the second part B. To both parts of the ultrasound signal 19 a time-dependent amplification has been 5 Appeal2017-003450 Application 13/885,403 applied (TGC). The first part 43 of the ultrasound signal 19 is caused by transducer ring down. (Spec. 7: 26 - 8: 7; see generally id. at 6: 12-13 ("Fig. 3 shows schematically and exemplarily a dependence of ultrasound energy depending on tissue depth and a corresponding ultrasound signal")). The apparatus, method, and computer program set forth in Appellants' independent claims involve the correction of an ultrasound signal (19) that has been influenced by an electrical unit (i.e., a unit that applies RF energy to tissue) (see App. Br. 18; see also Spec. 7: 9-12 and 20-25). The apparatus, method, and computer program set forth in Appellants' independent claims comprise, inter alia, "a first part (A) comprising information about an object (4) from which the ultrasound signal (19) has been received and a second part (B) not receiving the ultrasound signal from the object and not comprising information about the object ( 4)" and "a correction signal determination unit (17) configured to determine a correction signal being indicative of the influence of the electrical unit on the ultrasound signal (19) from the second part (B) of the ultrasound signal (19)" (App. Br. 18; see also id. at 20-22). As Appellants explain, [a]s would be understood by a person of ordinary skill in the art, an ultrasound energy of 0 means that no ultrasound signal [ 19] is received from the object [ 4] (because it is scattered and/or absorbed). Thus, the second part B of the ultrasound signal [ 19] corresponds to a depth at which there is no ultrasound energy E reflected from the object, and does not comprise information about the object [ 4], but rather comprises only noise primarily from the electrical unit. (App. Br. 12.) In addition, Examiner finds, and Appellants do not dispute that the term "'electrical unit' =a radiofrequency ablation electrode, par. 6 Appeal2017-003450 Application 13/885,403 0009," "'correction signal determination unit"'= algorithm, par. 0056- 0057," "'correction unit' =subtraction algorithm, par. 0062-0064," "'fundamental frequency providing unit' =algorithm, par. 0049-0055," and "'ultrasound unit' =ultrasound transducer, par. 0081" (Ans. 5 (citing Non- Final Office Action mailed July 16, 2015 5---6) ). WRITTEN DESCRIPTION: ISSUE Does the preponderance of evidence on this record support Examiner's finding that Appellants' Specification fails to provide written descriptive support for the claimed invention? ANALYSIS As discussed above, the apparatus, method, and computer program set forth in Appellants' claims require, inter alia, "second part (B) [of an ultrasound signal (19) that does] not receiv[e] the ultrasound signal [19] from the object [4] and not compris[e] information about the object (4)" (see App. Br. 18; see also id. at 20-22; Ans. 10). Examiner finds that Appellants' Specification provides written descriptive support for the phrase "'not comprising information about the object"' (Ans. 10 (citing Appellants' Fig. 3 and Spec. 7: 26- 8: 7)). Examiner finds that Appellants' Specification does not, however, provide written descriptive support for the phrase "not receiving the ultrasound signal from the object" (Ans. 10). We are not persuaded. To the contrary, we agree with Appellants that their Specification provides written descriptive support for the phrase "not receiving the ultrasound signal from 7 Appeal2017-003450 Application 13/885,403 the object" (see App. Br. 12). As Appellants further explain, notwithstanding Examiner's assertion to the contrary, The limitations (1) not receiving the ultrasound signal from the object and ... (2) "not comprising information about the object" are related in that the ultrasound signal does not contain information about the object because no reflected signal from the object is received by the ultrasound unit. It is the ultrasound reflected from the object that provides information about the object as would be understood by one of ordinary skill in the art. (Reply Br. 8.) We agree. CONCLUSION The preponderance of evidence on this record fails to support Examiner's finding that Appellants' Specification fails to provide written descriptive support for the claimed invention. The rejection of claims 1-12, 14, and 15 under 35 U.S.C. § 112(a) is reversed. DEFINITENESS: ISSUE Does the preponderance of evidence support Examiner's conclusion that the phrases "not comprising information about the object" and "not receiving the ultrasound signal from the object," as set forth in Appellants' claims, are indefinite? ANALYSIS According to Examiner "[a] signal 'not comprising information about the object' or 'not receiving the ultrasound signal from the object' is open- ended and has not been defined" (Ans. 4). In this regard, Examiner finds that "[i]t cannot be determined what is further meant by 'not receiving the ultrasound signal from the object' in addition to 'not comprising information 8 Appeal2017-003450 Application 13/885,403 about the object[.]' Appellant[s] appears to be arguing that these claim limitations are equivalent (and therefore redundant)" (id. at 11). We are not persuaded. Instead, we agree with Appellants: In the context of the written description, not receiving the ultrasound signal from the object means that the tissue depth d corresponds to the reflected ultrasound energy E being 0 because of absorption and scattering. Thus, the second part of the signal does not include reflected ultrasound energy, and only comprises noise[, or in the words of Appellants' claims "influence of the electrical unit on the ultrasound signal (19) from the second part (b) of the ultrasound signal (19)"]. (See Reply Br. 10; App. Br. 18; see also App. Br. 20-22.) Examiner further finds that "the negative limitation is unbounded and is not limited to 'only noise from the electrical unit' as Appellant[ s] argue[]" (Ans. 11). We are not persuaded. Notwithstanding Examiner's assertion to the contrary, each of Appellants' independent claims relates to the influence, i.e., noise, of the electrical unit on the ultrasound signal. In addition, we agree with Appellants' explanation: The limitation "not receiving the ultrasound signal from the object" is bounded by an echo time corresponding to a depth at which the reflected ultrasound energy is 0, as shown in Fig. 3 and described at page 7, lines 3-8 as an echo series is a series of reflected ultrasound energy over time, and at page 7, line 26 - page 8, line 7, describing a depth where the reflected energy E 1s zero. (Reply Br. 10.) CONCLUSION The preponderance of evidence fails to support Examiner's conclusion that the phrases "not comprising information about the object" and "not receiving the ultrasound signal from the object," as set forth in Appellants' 9 Appeal2017-003450 Application 13/885,403 claims, are indefinite. The rejection of Claims 1-12, 14, and 15 under 35 U.S.C. § 112(b) is reversed. ANTICIPATION: ISSUE Does the preponderance of evidence on this record support Examiner's finding that Harks teaches Appellants' claimed invention? ANALYSIS Examiner finds that Harks teaches the subject matter set forth in Appellants' claims 1-6, 8, 10-12, 14, and 15 (see Ans. 6). In this regard, Examiner finds that Harks teaches, inter alia, a correction signal determination unit for determining a correction signal being indicative of the influence of the electrical unit on the ultrasound signal from the second part of the ultrasound signal (frequencies being larger than half the frequency of the ultrasound pulse, noise signal arising from power influence, page 5, lines 4-16), and a correction unit for correcting the first part of the ultrasound signal based on the determined correction signal for filtering the influence of the electrical unit out of the ultrasound signal (the determine noise signal is filtered out by subtracting the noise signal, page 5, lines 4-16). (Ans. 6.) Harks "relates to a monitoring apparatus, a monitoring method and a monitoring computer program for monitoring an ablation procedure" (Harks 1: 3--4). Harks' apparatus comprises a "noise reduction filter [that] is preferentially a Hilbert filter" (id. at 5: 6). Harks' noise reduction filter filters preferentially high frequencies out of the ultrasound signal, in particular, frequencies being larger than the half of the frequency of the ultrasound pulse. In an 10 Appeal2017-003450 Application 13/885,403 embodiment, frequencies larger [than] 10 MHz are filtered out of the ultrasound signal. The noise reduction filter is preferentially adapted to allow reducing noise and other artifacts in the ultrasound signal. High frequency signal variations are filtered out by, for example, envelope detection. The high frequency components of the ultrasound signal are typically fluctuating due to small changes in temperature, alignment, power, composition of the object, in particular, of the cardiac tissue, et cetera. (Id. at 5: 8-16; see also Ans. 11 ("Harks provides a filter designed to remove the noise signal based on the frequencies being generated in the signal (i.e. high frequencies based on the ultrasound transmit power/pulses)")). According to Examiner, "Harks teaches removing a noise signal arising from electrical device power, []which does not include information about the scanned object. The determined signal of Harks is the noise signal and the correction signal is the noise signal that is filtered or removed" (Ans. 11 ). Thus, Examiner finds that "Harks teaches an equivalent means of filtering a noise signal as that disclosed by Appellant" (Ans. 12). Stated differently, Examiner finds that Harks inherently teaches Appellants' claimed invention. We are not persuaded. As Appellants explain, "[ t ]he filters of Harks filter an ultrasound signal by blocking signals based on predefined characteristics such as frequency or phase. For example, the filters of Harks can filter out high frequencies larger than half of the frequency of the ultrasound pulse" (App. Br. 14 ). "The filters of Harks do not determine a correction signal being indicative of the influence (noise) of the electrical unit on the ultrasound signal (19) from the second part (B) (having no reflected energy from the object) of the ultrasound signal (19)," as required by Appellants' claimed invention (id. at 15). To the contrary, Harks' filter "is not determined from a 11 Appeal2017-003450 Application 13/885,403 part of the signal, but rather is based on predetermined limits for signal characteristics such as frequency ad phase," thus, "Harks blocks all elements of an ultrasound signal above a specific frequency such as half of the ultrasound pulse," wherein "the blocked elements of the ultrasound signal are applied indiscriminately and may include ultrasound signals from the object" (id.; see also Reply Br. 14 (Harks discloses the use of "an envelope of the signal which is an approximation of the signal bounds derived from a composite signal (including reflected ultrasound and noise). The filters of Harks then cut off a portion of the signal exceeding the phase or frequency of the envelope")). "Thus, [as Appellants explain,] Harks performs a different function in a different way" (Reply Br. 14 ). For the foregoing reasons, we are not persuaded by Examiner's assertion that because "Harks teaches a filtering mechanism for removing at least a portion of the noise arising from electrical power from an ultrasound signal," Harks necessarily "reads on [or inherently teaches Appellants'] claimed invention" (Ans. 12). "Inherency ... may not be established by probabilities or possibilities. The mere fact that a certain thing may result from a given set of circumstances is not sufficient." In re Robertson, 169 F.3d 743, 745 (Fed. Cir. 1999) (citations omitted). On this record, Examiner failed to establish an evidentiary basis to support a finding that Harks' filter necessarily functions in accordance with Appellants' claimed invention. In this regard, we are not persuaded by Examiner's assertions that Appellants' "claim does not define what the second part of the ultrasound signal is" and that Appellants' "claims do not limit the 'second part' of the signal to only noise from the electrical unit" (Ans. 11-12; see also id. at 12 ("The correction signal is not limited to only being indicative of the noise 12 Appeal2017-003450 Application 13/885,403 signal from the electrical unit" and "may include additional noise")). Notwithstanding Examiner's assertion to the contrary, Appellants' claimed invention expressly requires that the correction signal is indicative of the influence of the electrical unit on the ultrasound signal from the second part of the ultrasound signal, which, according to Appellants' claimed invention, is that part of the ultrasound signal that is neither received from the object nor comprised of information about the object (see e.g., App. Br. 18; see also id. at 20-22). Thus, even if, as Examiner asserts, the correction signal is not limited to "noise from the electrical unit," Appellants' claimed invention expressly requires that the correction signal does not comprise information about the object (see e.g., App. Br. 18; see also id. at 20-22). As Appellants explain, this is different from Harks' filter, which indiscriminately filters out part of the signal and, thus, may filter out part of the object signal. Examiner failed to address this issue and, thereby, failed to establish an evidentiary basis on this record to support a finding that Hark' s filter is necessarily equivalent to that required by Appellants' claimed invention. See In re Robertson, 169 F.3d at 745. CONCLUSION The preponderance of evidence on this record fails to support Examiner's finding that Harks teaches Appellants' claimed invention. The rejection of claims 1---6, 8, 10-12, 14, and 15 under 35 U.S.C. § 102(b) as being anticipated by Harks is reversed. 13 Appeal2017-003450 Application 13/885,403 OBVIOUSNESS: ISSUE Does the preponderance of evidence relied upon by Examiner support a conclusion of obviousness? ANALYSIS Claim 7: The filtering apparatus of Appellants' claim 7 depends ultimately from and further limits the filtering apparatus of Appellants' claim 1 to require, inter alia, that "the correction signal determination unit (17) is configured to apply a bi-reciprocal infinite impulse response[](IIR) filter to the sub-part of the second part (B)" (App. Br. 19). Examiner finds that Harks fails to teach the requirements of Appellants' claim 7 and relies on van den Enden to teach "that bi-reciprocal IIR filters are textbook knowledge when it comes to filtering interpolating and decimating structures wherein it is desirable to increase the sampling frequency ([citing van den Enden] page 178, first paragraph of Chapter 7 .1 )" (Ans. 8). Thus, based on the combination of Harks and van den Enden, Examiner concludes that, at the time Appellants' invention was made, it would have been prima facie "obvious to provide a bi-reciprocal IIR (i.e. half-band recursive) type filter in the method of Harks in order to filter out the signal noise and provide a more robust signal" (Ans. 8). We are not persuaded. Examiner failed to establish an evidentiary basis on this record to support a conclusion that van den Enden makes up for the deficiency in Harks discussed with respect to the anticipation rejection above (see generally App. Br. 16). 14 Appeal2017-003450 Application 13/885,403 Claim 9: The filtering apparatus of Appellants' claim 9 depends from and further limits the filtering apparatus of Appellants' claim 1 to require that "a time dependent amplification has been applied to the ultrasound signal and wherein the correction signal determination unit ( 1 7) is configured to [also] apply the time dependent amplification []to the correction signal" (App. Br. 19--20). Examiner recognizes that Harks does not teach the requirements of Appellants' claim 9, but, nonetheless concludes based on Harks, that at the time Appellants' invention was made, it would have been prima facie obvious to "routine[ly] [] amplify the desired signal for display in order to enhance the display, and only anticipated results would occur" (Ans. 9). Assuming arguendo that Examiner's finding and conclusion are correct, Examiner's rejection fails for the reasons set forth above with respect to the anticipation rejection over Harks (see generally App. Br. 16). CONCLUSION The preponderance of evidence relied upon by Examiner fails to support a conclusion of obviousness. The rejection of claim 7 under 35 U.S.C. § 103(a) as unpatentable over the combination of Harks and van den Eden is reversed. The rejection of claim 9 under 35 U.S.C. § 103(a) as upatentable over Harks is reversed. REVERSED 15 Copy with citationCopy as parenthetical citation