Ex Parte Hope Simpson et al

Patent Trial and Appeal Board

Mar 25, 2016

13320233 (P.T.A.B. Mar. 25, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/320,233 1111112011 David Hope Simpson
24737 7590 03/29/2016
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
P.O. BOX 3001
BRIARCLIFF MANOR, NY 10510
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.
2009P00900WOUS 4872
EXAMINER
IP,JASONM
ART UNIT PAPER NUMBER
3777
NOTIFICATION DATE DELIVERY MODE
03/29/2016 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):
debbie.henn@philips.com
marianne.fox@philips.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID HOPE SIMPSON,
DAVID CLARK, and ANUP AGARWAL
Appeal2014-004300
Application 13/320,233
Technology Center 3700
Before DONALD E. ADAMS, JEFFREY N. FREDMAN, and
JACQUELINE T. HARLOW, Administrative Patent Judges.
PER CURIAM
DECISION ON APPEAL
This is an appeal 1 under 35 U.S.C. § 134 involving claims to
ultrasonic blood flow Doppler audio with pitch shifting. The Examiner
rejected the claims on the grounds of anticipation and obviousness. We have
jurisdiction under 35 U.S.C. § 6(b). We affirm.
1 Appellants identify the Real Party in Interest as Koninklijke Philips
Electronics N.V. (see App. Br. 3).
Appeal2014-004300
Application 13/320,233
Statement of the Case
Background
Appellants' invention "relates to medical diagnostic ultrasound
systems and, in particular, to ultrasound systems which produce Doppler
audio which can be controlled in pitch" (Spec. 1 :4--7).
The Claims
Claims 1--4 and 6-12 are on appeal. Independent claim 1 is
representative, and reads as follows:
1. An ultrasonic diagnostic imaging system which
produces a Doppler audio signal of blood flow comprising:
an ultrasound probe, operating at an ultrasonic Doppler
transmit frequency fo, which acquires Doppler ultrasound
signals referenced to the Doppler transmit frequency from a
location of blood flow;
a Doppler demodulator, responsive to the Doppler
ultrasound signals, which produces Doppler shift signals from
the velocity of blood flow in an audio frequency band;
a Doppler information display, responsive to Doppler
shift signals, which displays blood flow velocity information
based upon the Doppler shift;
an audio Doppler system, responsive to the Doppler
shift signals, which produces pitch-shifted audio Doppler
without changing the displayed blood flow velocity,
wherein the audio Doppler system is responsive to the
user control to shift the pitch of the Doppler-shifted signals
by a fractional or integer number of octaves so as to preserve
the timbre of audio Doppler sounds.
The Issues
A. The Examiner rejected claims 1--4 and 6-10 under 35 U.S.C. § 102(b)
as being anticipated by Clark2 (Ans. 3-5).
2 Clark, WO 2007/023438 A2, published Mar. 1, 2007.
Appeal2014-004300
Application 13/320,233
B. The Examiner rejected claims 11 and 12 under 35 U.S.C. § 103(a) as
obvious over Clark and Micco3 (Ans. 5---6).
A. 35 U.S. C. § 102(b) over Clark
The Examiner finds that Clark teaches "wherein the audio Doppler
system is responsive to the user control to shift the pitch of the Doppler-
shifted signals by a fractional or integer number of octaves so as to preserve
the timbre of audio Doppler sounds" (Ans. 3--4).
The issue with respect to this rejection is: Does the evidence of record
support the Examiner's conclusion that Clark anticipates claim 1?
Findings of Fact
1. Clark teaches
[a] spectral tissue Doppler processor for an ultrasound system
[that] produces Doppler phase shift estimates of sequences of
signal samples from a sample volume[]. . . . The angle
estimates, which are proportional to the tissue motion
velocity, are plotted, smoothed, and displayed as a spectral
tissue Doppler display. The angle estimates are also used to
produce the audio Doppler signal which is frequency-
adjustable by a user. The spectral Doppler display exhibits
good time and velocity resolution for motion which is less
than that of blood flow such as myocardial motion.
(Clark Abstract; see also Ans. 3--4.)
2. Clark teaches "[a] transducer probe [that] transmits ultrasonic
beams and receives echoes in response from an image region [] of a subject
which contains organs and blood vessels" and that the "echo signals are
demodulated by a quadrature demodulator" (Clark 6:26-29, 7: 1-2; see also
Ans. 3--4).
3 Micco, US 4,819,652, issued Apr. 11, 1989 .
. ,
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Appeal2014-004300
Application 13/320,233
3. Clark teaches that "[t]he resultant phase shift or intensity
estimates are mapped to corresponding colors or hues by a color map" and
that "[t]his processing produces a two or three dimensional color overlay of
the tissue motion which can be aligned with and overlay the structural B
mode image" (Clark 7:18-23; see also Ans. 3--4).
4. Clark teaches that "[t]he images produced by the scan converter
are coupled to a video processor[] for display on an image display," the
"phase shift values are multiplied by the selected scaling factor to obtain the
audio output frequency, which is a phase shift from one audio output sample
to the next," and "[t]he audio processor drives stereo speakers[] on the
ultrasound system with signals dependent on the sign of the phase shift"
(Clark 9:9-31; see also Ans. 3--4).
5. Clark teaches that
[t]he clinician will listen to the audio Doppler signal for
changes in the pitch of the tone. Since the absolute value of
the tone is not important but only changes in the tone, the
clinician can adjust the user control to adjust the audio
Doppler scaling value to produce a range of pitches best
suited to his or her ear.
(Clark 10:2-8; see also Ans. 3--4, 7-8.)
6. Clark teaches that
[ s ]ince the audio is simply a sinusoid produced from the series
of frequency numbers, the frequency (pitch) can be easily
scaled by an arbitrary factor. This greatly alleviates the
problem of low-pitch insensitivity of speakers and ears.
Clinicians do not depend on the absolute pitch of the audio,
but rather the variations in pitch. The pitch scaling [] that this
Appeal2014-004300
Application 13/320,233
technique offers is limited only by what sounds pleasing. It
is easily set by a user-controlled adjustment.
(Clark 12: 12-21; see also Ans. 3--4.)
7. The Specification teaches that the "frequency scale factor is not
constrained to an integer, because the complex spectra can be resampled to
any rate. . . . So there is essentially no constraint on the quantization of
frequency scale factor" (Spec. 20, 11. 9-20).
Principles of Law
Where, as here, the claimed and prior art products are
identical or substantially identical, or are produced by
identical or substantially identical processes, the PTO can
require an applicant to prove that the prior art products do not
necessarily or inherently possess the characteristics of his
claimed product. . . . Whether the rejection is based on
"inherency" under 35 U.S.C. § 102, on "prima facie
obviousness" under 35 U.S.C. § 103, jointly or alternatively,
the burden of proof is the same, and its fairness is evidenced
by the PTO' s inability to manufacture products or to obtain
and compare prior art products.
In re Best, 562 F.2d 1252, 1255 (CCPA 1977).
Analysis
We adopt the Examiner's findings of fact and reasoning regarding the
scope and content of the prior art (FF 1---6) and agree that the claims are
anticipated by Clark. We address Appellants' arguments below.
We begin with claim interpretation, since before a claim is properly
interpreted, its scope cannot be compared to the prior art. The limitation at
issue is "wherein the audio Doppler system is responsive to the user control
to shift the pitch of the Doppler-shifted signals by a fractional or integer
Appeal2014-004300
Application 13/320,233
number of octaves so as to preserve the timbre of audio Doppler sounds" in
claim 1.
During prosecution, claim terms are given their broadest reasonable
interpretation as they would be understood by persons of ordinary skill in the
art in the light of the Specification. Therefore, we first tum to the
Specification to interpret the claimed limitation.
The Specification teaches that the "frequency scale factor is not
constrained to an integer ... So there is essentially no constraint on the
quantization of frequency scale factor" (FF 7). Reading the limitation
"fractional or integer number" in light of the Specification, we interpret this
as encompassing any change to the signal pitch whatsoever. Indeed, the
phrase "fractional or integer number" reasonably encompasses every
possible number of octave(s) that could be changed,4 resulting in the
necessary anticipation by Clark's teaching of a user-controlled adjustment
(FF 6) because Clark's adjustment is either a fractional or an integer change.
Appellants contend that "simply shifting the pitch arbitrarily to a
higher frequency band will not accurately reproduce the full spectrum of
harmonic relationships and will cause the system to produce a monotonic,
artificial sound that is unfamiliar to a trained sonographer" (Br. 10).
We are not persuaded. There is no limitation in claim 1 that requires
reproduction of the "full spectrum of harmonic relationships", only a
requirement to "preserve the timbre". See In re Self, 671 F.2d 1344, 1348
(CCPA 1982) ("[A]ppellant's arguments fail from the outset because ... they
4 We recognize the existence of irrational numbers that do not terminate or
repeat, but a discrete change by a user will necessarily result in a fixed value
that is not irrational, but either fractional or integer.
Appeal2014-004300
Application 13/320,233
are not based on limitations appearing in the claims.") Also, Appellants do
not provide any evidentiary basis on this record to support the conclusion
that shifting the pitch to a higher frequency band will not accurately
"preserve the timbre". See In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir.
1997) ("[A]ttomey argument [is] not the kind of factual evidence that is
required to rebut a prima facie case of obviousness
Appellants contend that "[ t ]here is no mention or suggestion of
controlling the pitch-shifting to be in increments of a fractional or integer
number of octaves in the earlier Clark application" (Br. 11 ). Appellants
argue that the Examiner takes a comparable approach to "result-claiming" in
order to reject the claims (id. at 12).
We do not find this argument persuasive. Claim 1 is drawn to a
system not a method. The claimed system is responsive to the user control
to shift the pitch by a fractional or integer number of octaves so as to
preserve the timbre of audio Doppler sounds. Clark teaches that "[t]he
clinician will listen to the audio Doppler signal for changes in the pitch of
the tone" and that "the clinician can adjust the user control to adjust the
audio Doppler scaling value to produce a range of pitches best suited to his
or her ear" (FF 5). Clark teaches that "[t]he pitch scaling []that this
technique offers is limited only by what sounds pleasing" and that "[i]t is
easily set by a user-controlled adjustment" (FF 6). Therefore, Clark teaches
a system that is responsive to the user control to shift the pitch to one that
the user desires. By shifting the pitch to a slight degree to the user's desire,
Clark's system is inherently responsive to the user's control to shift the pitch
by either a fractional or an integer number of octaves, or both, so as to
Appeal2014-004300
Application 13/320,233
preserve the timbre of audio Doppler sounds (see also Ans. 7-8). See In re
Best, 562 F.2d at 1255.
Conclusion of Law
The evidence of record supports the Examiner's conclusion that Clark
anticipates claim 1.
B. 35U.S.C.§103(a) over Clark and Micco
The Examiner acknowledges that "Clark does not explicitly disclose
that the imaging system is operable with a selected one of a plurality of
ultrasound probes, each exhibiting a different nominal Doppler transmit
frequency, and each of which is operable to acquire Doppler ultrasound
signals from a location of blood flow" (id. at 5). The Examiner concludes
that at the time of Appellants' invention, it would have been prima facie
obvious to "apply a plurality of tuned probes as taught by Micco to the
Doppler measurement of Clark, [so] as to provide minimization of Johnson
noise and maximization of SNR" (id.; citing Micco 3 :7-8).
The issue with respect to this rejection is: Does the evidence of record
support the Examiner's conclusion that the combination of Clark and Micco
renders the claims obvious?
Findings of Fact
7. Micco teaches that "separate probes are provided for separate
measurement frequencies, []preferably in the range of 1-7 MHz," and that
"[t]he separate probes each have narrow band amplifiers with their
impedances critically tuned to the probe crystal to minimize Johnson noise
and to provide the maximal signal-to-noise ratio obtainable at the specific
frequency" (Micco 3: 1-8; see also Ans. 5---6).
8
Appeal2014-004300
Application 13/320,233
Principles ofLaw
"The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results."
KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). "If a person of
ordinary skill can implement a predictable variation, § 103 likely bars its
patentability." Id. at 41 7.
Analysis
Appellants contend that Micco "says nothing about producing audio
Doppler at a common frequency for a family of probes, and nothing about
pitch-shifting" (Br. 13).
We are not persuaded. Micco teaches probes that measure
frequencies in the range of 1-7 MHz in which each probe has a narrow band
of amplifiers and impedances (FF 7). Therefore, Micco teaches a family of
probes having a common frequency. Further, this argument fails to account
for Clark's contribution to the combination of Clark and Micco, in which Clark
teaches producing audio Doppler with pitch-shifting (FF 1---6). See In re Merck
& Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986) ("Non-obviousness cannot
be established by attacking references individually where the rejection is based
upon the teachings of a combination of references .... [The reference] must be
read, not in isolation, but for what it fairly teaches in combination with the
prior art as a whole.").
Conclusion of Law
The evidence of record supports the Examiner's conclusion that the
combination of Clark and Micco renders the claims obvious.
Appeal2014-004300
Application 13/320,233
SUMMARY
In summary, we affirm the rejection of claim 1 under 35 U.S.C.
§ 102(b) as being anticipated by Clark. Claims 2--4 and 6-10 fall with claim
1. 37 C.F.R. § 41.37(c)(l)(iv).
We affirm the rejection of claims 11 and 12 under 35 U.S.C. § 103(a)
as obvious over Clark and Micco.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED