Ex Parte Harks et al

Patent Trials and Appeals Board

Jan 31, 2019

13643116 - (D) (P.T.A.B. Jan. 31, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/643,116 10/24/2012 Godefridus Antonius Harks
24737 7590 02/04/2019
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.
201 OP00569WOUS 1169
EXAMINER
GILLMAN, AMELIE R
ART UNIT PAPER NUMBER
3793
NOTIFICATION DATE DELIVERY MODE
02/04/2019 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):
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 GODEFRIDUS ANTONIUS HARKS, PEI ZUO,
SZABOLCS DELADI, STEVEN ANTONIE WILLEM
FOKKENROOD, and NENAD MIHAJLOVIC
Appeal2018-002909
Application 13/643,116
Technology Center 3700
Before LINDA E. HORNER, BRETT C. MARTIN, and
PAUL J. KORNICZKY, Administrative Patent Judges.
MARTIN, Administrative Patent Judge.
DECISION ON APPEAL
Appeal2018-002909
Application 13/643,116
STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134 from the Examiner's
rejection of claims 1---6, 8-13, and 16. Claims 7, 14, and 15 were canceled
during prosecution. App. Br. 2. We have jurisdiction under 35 U.S.C.
§ 6(b).
We REVERSE.
THE INVENTION
Appellants' claims are directed generally "to a property determining
apparatus, method, and computer program for determining a property of an
object." Spec. 1, 11. 2-3. Claim 1, reproduced below, is illustrative of the
claimed subject matter:
1. Property determining apparatus for determining a property
of an object, wherein the property determining apparatus
compnses:
an ultrasound signal providing unit ( 18) for providing an
ultrasound signal produced by
sending an ultrasound pulse out to the object,
receiving echo series from the object, and
generating the ultrasound signal depending on the
received echo series,
a scatter determination unit (8) for determining at least one
scatter value being indicative of a scatter of the ultrasound pulse
by a fluid perfusing the object,
wherein the scatter determination unit (8) is adapted to
determine the at least one scatter value based on a histogram of
ultrasound intensities of the ultrasound signal,
a property determination unit (15) for determining a
property of the object depending on the at least one scatter value.
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Appeal2018-002909
Application 13/643,116
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Rosemberg
Marrouche
Cloutier
US 2007 /0208327 Al
US 2010/0160768 Al
US 2011/0092817 Al
Sept. 6, 2007
June 24, 2010
Apr. 21, 2011
Linker, David T. et al., Analysis of backscattered ultrasound from
normal and diseased arterial wall, 4 Int'l Journal of Cardiac Imaging 177
(1989).
REJECTIONS
The Examiner made the following rejections:
Claim 16 stands rejected under 35 U.S.C. § 112, first paragraph, as
failing to comply with the written description requirement. Final Act. 2.
Claim 16 stands rejected under 35 U.S.C. § 112, second paragraph, as
being indefinite. Final Act. 4.
Claims 1-5, 10-13, and 16 stand rejected under 35 U.S.C § I03(a) as
being unpatentable over Rosemberg and Linker. Final Act. 5.
Claim 6 stands rejected under 35 U.S.C. § I03(a) as being
unpatentable over Rosemberg, Linker, and Marrouche. Final Act. 11.
Claims 8 and 9 stand rejected under 35 U.S.C. § I03(a) as being
unpatentable over Rosemberg, Linker, and Cloutier. Final Act. 13.
ANALYSIS
Written Description
The Examiner asserts that Appellants' Specification fails to support
that a scatter value is determined independently of heating the object as
claimed in claim 16, and, thus, this claim recitation is new matter. Final Act.
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Appeal2018-002909
Application 13/643,116
3. Appellants point to page 26 of the Specification which discusses an
alternative to an ablation (heating) example, wherein "the property
determining apparatus can also be integrated into another object influencing
apparatus" other than an ablation apparatus. Appeal Br. 9-10 ( arguing that
the claim limitation means that the object "does not need to be heated to
determine a scatter value"); Reply Br. 6. We agree that this discussion
sufficiently describes determination of a scatter value that is independent of
heating as recited in claim 16. Accordingly, we do not sustain the
Examiner's rejection.
Indefiniteness
The Examiner asserts that the recitation "wherein said scatter value is
determined independently of heating the object" is indefinite because it is
unclear whether this recitation entirely precludes any heating of the object or
requires that the scatter value occurs while heating is temporarily stopped.
Final Act. 4. Appellants assert that the ordinary meaning of "independently"
is "not requiring or relying on something else: not contingent." Appeal
Br. 10 ( quoting "Merriam-Webster"). Thus, Appellants assert that the
recitation is unambiguous and means that "the scatter value can be
determined whether the object is being heated or the object is not being
heated." Id. at 11. We agree with Appellants that the recitation is clear in
light of the ordinary definition of "independently" and means that
determination of the scatter value is not contingent on heating the object.
Accordingly, we do not sustain the Examiner's rejection.
Obviousness
Appellants argue that the Examiner erred in interpreting "scatter
value" and that it "should not be interpreted so broadly as to include a value
indicative of reflection ( as opposed to scattering) of an ultrasound signal by
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Appeal2018-002909
Application 13/643,116
bubbles formed in blood." Appeal Br. 11; Reply Br. 7; see also Appeal
Br. 12 (arguing "the term 'scatter value' should be interpreted as an absolute
measurement indicative of a scatter of the ultrasound probe"). As
Appellants correctly point out, "Rosemmberg [sic] repeatedly discusses
echogenicity" and it is this echogenicity that the Examiner relies upon for
meeting the claimed backscattering. Reply Br. 8 ( citing Rosemberg ,r,r 3 8-
46, 55-58, 84, 92-95, 122, 125-128, 137); see also Ans. 6 (finding that
Rosemberg's determination of a value indicative of the absence or presence
of a fluid is interpreted broadly as a "scatter value."). Given that "[t]he term
'echogenic' is defined as 'reflected waves' ... the echogenicity referred to
throughout Rosemberg is a measure of uniformity of reflected waves." Id.
Appellants concede that "diffuse reflection can include a scattering
mechanism as well as reflection," but we agree that such "does not make a
diffuse reflection a scatter value" as claimed. Id. Although Rosemberg may
include some scattering mechanism in its reflection value, we do not agree
that Rosemberg is measuring a scatter value. Rosemberg is actually directed
to measuring a reflection value, which as noted above is not the same as
measuring a scatter value as claimed. Accordingly, we do not sustain the
Examiner's rejection.
DECISION
For the above reasons, we REVERSE the Examiner's decision to
reject claims 1---6, 8-13, and 16.
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).
REVERSED
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