Ex Parte Koskela et al

Patent Trial and Appeal Board

Jan 29, 2018

14366508 (P.T.A.B. Jan. 29, 2018)

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.
14/366,508 06/18/2014 Iipo Asko Julius Koskela 2011P02362WOUS 4682
24737 7590 01/31/2018
PTTTT TPS TNTFT T FfTTTAT PROPFRTY fr STANDARDS
EXAMINER
465 Columbus Avenue NGUYEN, HIEN NGOC
Suite 340
Valhalla, NY 10595 ART UNIT PAPER NUMBER
3777
NOTIFICATION DATE DELIVERY MODE
01/31/2018 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 IIPO ASKO JULIUS KOSKELA,
CHARLES MOUGENOT, and MARKO TAPANI HAKKINEN
Appeal 2017-000570
Application 14/366,5081
Technology Center 3700
Before DEMETRA J. MILLS, FRANCISCO C. PRATS, and
DEBORAH KATZ, Administrative Patent Judges.
PRATS, Administrative Patent Judge.
DECISION ON APPEAL
This appeal under 35 U.S.C. § 134(a) involves claims to processes of
delivering therapeutic ultrasound energy to patients in a manner that avoids
damaging tissue in a protected zone. The Examiner rejected the claims as
being ineligible for patenting, and also for obviousness.
We have jurisdiction under 35 U.S.C. § 6(b).
We affirm the rejection for patent ineligibility, but reverse the
obviousness rejection.
1 Appellants identify Koninklijke Philips Electronics N. V. as the real party
in interest. Appeal Br. 2.
Appeal 2017-000570
Application 14/366,508
STATEMENT OF THE CASE
The Specification discloses, as background to Appellants’ invention,
that “the use of high intensity focused ultrasound is currently being used as
an approach for thermal therapeutic intervention for uterine fibroids and has
been examined for possible uses in the treatment of the liver, the brain, and
the prostate.” Spec. 1.
The Specification explains that, in high intensity focused ultrasound,
“an array of transducer elements are used to form an ultrasonic transducer
.... By controlling the phase of alternating current electrical power
supplied to each of the transducer elements[,] the focal point or target
volume into which the ultrasound power is focused may be controlled.” Id.
The Specification discloses, however, that “the ultrasound from
individual transducer elements to the focal point the ultrasound can also add
constructively and destructively. This can lead to hot spots or regions which
are unintentionally heated or sonicated. There is therefore the risk that
sensitive anatomical regions can be unintentionally injured during a
sonication.” Id.
In that regard, the Specification notes that United States Patent
7,699,780 B2 describes a method of delivering ultrasound energy in which
the tissue targeted for treatment receives ultrasound energy at or above a
prescribed intensity level, whereas “the energy intensity in a tissue region to
be protected within the ultrasound energy path is at or below a prescribed
safety level.” Id. at 1—2.
In describing Appellants’ invention, the Specification states:
This invention describes an algorithm for choosing the active
[transducer] elements in a tightly controlled way, without
compromises on the safety of the patient. According to the
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invention, the sensitive regions are identified and marked, and a
safety level is associated with each sensitive region. The
intensity exposure on each sensitive region is estimated based
on the incoherent and maximally coherent sum of the estimated
intensities from transducer elements. Elements are turned off
until the estimated ultrasound exposure is below safety level on
all sensitive regions.
Id. at 18—19.
As to the “incoherent sum,” the Specification states:
As used herein an incoherent sum of the ultrasonic
pressure generated by each of the multiple transducer elements
encompasses calculating the ultrasonic pressure generated by
each of the multiple transducer elements and squaring it then
adding the values together. This sum is labeled the incoherent
sum because the phases are not taken into consideration.
Id. at 6.
The Specification states that certain advantages may be obtained when
using the incoherent sum to determine which transducers elements should be
employed during treatment:
[The incoherent sum] has the benefit of producing a good
estimate of the maximum ultrasonic intensity which can be
generated within the protected zone. It is however much
computationally less intensive than calculating a value which
takes into account the coherent sum or the phases. Also there
may be insufficient knowledge of the internal anatomy of the
subject or the ultrasonic properties of the internal anatomy.
Using the incoherent sum eliminates the possibility that a hot
spot would be generated by the ultrasound and incorrectly
calculated as being a point of low ultrasonic intensity. Using
the incoherent sum may produce an estimate of the ultrasonic
intensity which can be reasonably relied upon in a clinical
setting.
Id.
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Claim 15 is representative of the appealed subject matter and reads as
follows:
15. A method of operating a medical instrument comprising a
high intensity focused ultrasound system, the high intensity
focused ultrasound system comprising:
an ultrasonic transducer, the ultrasonic transducer
comprising a plurality of transducer elements; and
an electrical power supply connected to each of the
plurality of transducer elements, wherein the electrical power
supply provides electrical power,
wherein the high intensity focused ultrasound system is
arranged for connecting and disconnecting the electrical power
supply to each of the plurality of transducer elements,
wherein the method comprises acts of:
receiving a treatment plan specifying a protected
zone within a subject;
calculating a set of transducer control parameters
using the treatment plan such that an ultrasonic intensity
estimate in the protected zone is below a predetermined
threshold,
wherein the set of transducer element states
specify the connecting and disconnecting the electrical
power supply to each of the plurality of transducer
elements,
wherein the ultrasonic intensity estimate is
calculated using an incoherent sum of the ultrasonic
pressure generated by each of the plurality of
transducer elements', and
output control signals to selectively connect and
disconnect the electrical power supply to each of the
plurality of transducer elements based on the set of
transducer control parameters.
Appeal Br. 23—24 (emphasis added).
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The following rejections are before us for review:
(1) Claims 1—20, as being directed to subject matter ineligible for
patenting (Ans. 2-4); and
(2) Claims 1—20, under 35 U.S.C. § 103(a), as being unpatentable over
Vitek2 and Liu3 (id. at 4—8).
PATENT ELIGIBILITY
The Examiner’s Position
The Examiner determines that claims 1—20 are “directed to calculating
ultrasound intensity using coherent [sic, incoherent] sum multiplied by a
coherence factor which is an algorithm/mathematical relationship
fundamental in the ultrasound field for some intended use [i.e. adjusting or
planning treatment].” Ans. 2—3 (second pair of brackets in original). The
Examiner determines, moreover, that the additional claimed elements,
beyond the calculation of ultrasound energy, “do not provide meaningful
limitations to transform the abstract idea into a patent eligible application of
the abstract idea such that the claims amount to significantly more than the
abstract idea itself.” Id. at 3
In particular, the Examiner reasons that the “abstract idea of
calculating ultrasound intensity can be considered to be a fundamental
algorithm/mathematical concept that allow[s] adjustment and determination
of different elements for various intended use,” and the additional elements,
“such as the generically cited ultrasonic transducer, processor, power supply,
memory ... do not add a meaningful limitation as they are used
2 US 2006/0058671 A1 (published Mar. 16, 2006).
3 US 2006/0173313 A1 (published Aug. 3, 2006).
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conventionally and routinely for transmitting, processing and storing data
during ultrasound procedures.” Id.
The Examiner further reasons as follows:
Essentially, the claimed invention, not requiring a
particular machine, applies the abstract idea on a generic
control unit/processor - i.e., reads on mental activity — to
perform well-understood, routine and conventional acts in the
art [e.g., calculating a quantity (intensity) of natural
phenomenon to distinguish elements that are related to the
natural phenomenon (ultrasound pressure and ultrasound
intensity are natural phenomenon)]. The claims also do not
recite any means/steps of improvements to a technological field
with the generic recitations; and/or improvements to the
functioning of the computer. All of the aforementioned weigh
against patentability.
Id. (brackets in original).
Analysis
As stated in In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992):
[T]he examiner bears the initial burden ... of presenting a
prima facie case of unpatentability. . . .
After evidence or argument is submitted by the applicant
in response, patentability is determined on the totality of the
record, by a preponderance of evidence with due consideration
to persuasiveness of argument.
Having carefully considered the arguments and evidence advanced by
Appellants and the Examiner, we are not persuaded that a preponderance of
the evidence fails to support the Examiner’s conclusion that the rejected
claims recite subject matter ineligible for patenting.
35 U.S.C. § 101 states that “[wjhoever invents or discovers any new
and useful process, machine, manufacture, or composition of matter, or any
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new and useful improvement thereof, may obtain a patent therefor, subject to
the conditions and requirements of this title.”
The Supreme Court has “long held that this provision contains an
important implicit exception: Laws of nature, natural phenomena, and
abstract ideas are not patentable.” Alice Corp. Pty. Ltd. v. CLS Bank Intern.,
134 S.Ct. 2347, 2354 (2014).
Our reviewing court has summarized the Supreme Court’s two-part
test for distinguishing between claims to patent-ineligible exceptions, and
claims to patent-eligible applications of those exceptions, as follows:
Step one asks whether the claim is “directed to one of
[the] patent-ineligible concepts.” [Alice, 134 S.Ct. at 2354], If
the answer is no, the inquiry is over: the claim falls within the
ambit of § 101. If the answer is yes, the inquiry moves to step
two, which asks whether, considered both individually and as
an ordered combination, “the additional elements ‘transform the
nature of the claim’ into a patent-eligible application.” Id.
(quoting Mayo [Collaborative Services v. Prometheus Labs,
Inc., 132 S.Ct. 1289, 1297 (2012)]).
Step two is described “as a search for an ‘inventive
concept.’” Id. (quoting Mayo, 132 S.Ct. at 1294). At step two,
more is required than “well-understood, routine, conventional
activity already engaged in by the scientific community,” which
fails to transform the claim into “significantly more than a
patent upon the” ineligible concept itself. Mayo, 132 S.Ct. at
1298, 1294.
Rapid Litigation Mgmt. Ltd. v. CellzDirect, Inc., 827 F.3d 1042, 1047 (Fed.
Cir. 2016) (paragraphing added).
As to step one, our reviewing court has explained that “the ‘directed
to’ inquiry applies a stage-one filter to claims, considered in light of the
specification, based on whether ‘their character as a whole is directed to
excluded subject matter.’” Enfish, LLC v. Microsoft Corp., 822 F.3d 1327,
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1335 (Fed. Cir. 2016) (citing Internet Patents Corp. v. Active Network, Inc.,
790 F.3d 1343, 1346 (Fed. Cir. 2015)). Thus, the step one analysis required
by Alice “inquires] into ‘the focus of the claimed advance over the prior
art.’” Id. (citing Genetic Techs. Ltd. v. MerialL.L.C., 818 F.3d 1369, 1375
(Fed. Cir. 2016)).
In the present case, as seen from the summary of Appellants’
Specification presented above, Appellants’ invention is not directed to
improving the components of prior art ultrasound systems. Rather, as
explained in the Specification, Appellants’ invention is directed to methods
for calculating the amount of energy that the ultrasound system applies to a
patient, in order to avoid damaging tissue that requires protection during
treatment. See Spec. 18—19 (“This invention describes an algorithm for
choosing the active [transducer] elements in a tightly controlled way,
without compromises on the safety of the patient.”); id. at 19 (“The intensity
exposure on each sensitive region is estimated based on the incoherent and
maximally coherent sum of the estimated intensities from transducer
elements.”).
In claiming that invention, representative claim 15 recites the steps of
(a) “receiving a treatment plan specifying a protected zone within a subject,”
and (b) “calculating a set of transducer control parameters using the
treatment plan such that an ultrasonic intensity estimate in the protected zone
is below a predetermined threshold.” Appeal Br. 24.
Claim 15 specifies that “the ultrasonic intensity estimate is calculated
using an incoherent sum of the ultrasonic pressure generated by each of the
plurality of transducer elements.” Id. Claim 15 recites that the calculated
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treatment plan may be executed by connecting and disconnecting the
individual ultrasound elements according to the plan. Id.
Accordingly, viewing claim 15 in light of the Specification, we agree
with the Examiner that the claimed invention is directed to the abstract idea
of using the incoherent sum of the ultrasonic pressure generated by each of
the plurality of transducer elements to calculate the amount of energy that
the ultrasound system applies to a patient, in order to avoid damaging tissue
that requires protection during treatment.
We acknowledge, as Appellants contend (Appeal Br. 11—12), that
claim 15 recites the use of an ultrasound system, i.e., a specific machine.
We acknowledge also that ultrasound systems kill, i.e., transform, targeted
cells. Id. at 12; Reply Br. 6—7.
As our reviewing court has explained, however, “not every claim that
recites concrete, tangible components escapes the reach of the abstract-idea
inquiry.” In re TLI Communications LLC Patent Litigation, 823 F.3d 607,
611 (Fed. Cir. 2016). In particular, in TLI Communications, the court noted
that claims that reciting general-purpose computer components, a “scanner,”
an “interface,” “network,” and a “database” were nevertheless “directed to”
an abstract idea. Id. (citing Alice, 134 S.Ct. at 2360; Content Extraction &
Transmission LLC v. Wells Fargo Bank, Nat’l Assn, 776 F.3d 1343, 1347
(Fed. Cir. 2014); Mortg. Grader, Inc. v. First Choice Loan Serv. Inc., 811
F.3d 1314, 1324—25 (Fed. Cir. 2016)).
As discussed above, when viewed in light of the Specification, it is
evident that claim 15 is directed to the abstract idea of using the incoherent
sum of the ultrasonic pressure generated by each of the plurality of
transducer elements to calculate the amount of energy that the ultrasound
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system applies to a patient. That is, claim 15 is directed to the abstract idea
of determining, through mathematical calculation, how to use the ultrasound
system, rather than an improvement in the components of the actual system.
Accordingly, that claim 15 recites the use of an ultrasound system that
may be used to kill target cells does not persuade us that claim 15 is not
directed to an abstract idea, under the step one inquiry required by Alice.
See TLI Communications, 823 F.3d at 613 (“[Although the claims limit the
abstract idea to a particular environment—a mobile telephone system—that
does not make the claims any less abstract for the step 1 analysis.”); see also
Bilski v. Kappos, 561 U.S. 593, 605—606 (2010) (machine-or-transformation
test not dispositive as to patent eligibility).
Turning to step two of the Alice inquiry, Appellants do not persuade
us that claim 15, outside of the ineligible abstract idea, recites an inventive
concept which is more than “well-understood, routine, conventional activity
previously engaged in by researchers in the field.” Mayo, 132 S.Ct. at 1294.
As noted above, Appellants’ Specification discloses that ultrasound
systems having multiple transducers as recited in claim 15 were known in
the art. See Spec. 1. As noted above, the Specification also discloses, as
recited in claim 15, that it was known in the art to formulate treatment plans
for those ultrasound systems which avoided harming tissue for which
protection was desired. See id. at 1—2 (citing U.S. Patent No. 7,699,780 B2
(“the ’780 patent”)). We note in particular that the Vitek patent applied in
the obviousness rejection discussed below is the initial publication of the
application upon which the ’780 patent is based. Compare the ’780 patent
cover page (application no. 10/916,998) to Vitek cover page (application no.
10/916,998). Accordingly, on the current record, as underscored below in
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the discussion regarding the obviousness rejection, the elements of the
apparatus recited in claim 15, as well as how those elements are used in the
claim to protect tissue during operation, were known activities already
engaged in by skilled artisans.
Moreover, because claim 15’s process involves receiving and then
mathematically manipulating information for subsequent use by a
conventional prior art apparatus, the claimed process is analogous to that at
issue in Electric Power Group, LLC v. Alstom S.A., 830 F.3d 1350, 1351—52
(Fed. Cir. 2016). As the court in Electric Power Group explained in relation
to step two of the Alice inquiry, “limiting the claims to the particular
technological environment [at issue] is, without more, insufficient to
transform them into patent-eligible applications of the abstract idea at their
core.” Id. at 1354. Thus, because claim 15’s process, outside of the
ineligible abstract idea of using the incoherent sum for calculating
ultrasound intensity, only employs known elements involved in the specific
technological environment of therapeutic ultrasound, Appellants do not
persuade us that claim 15 contains something more, outside of the ineligible
concept, that renders the claim patent eligible.
Appellants contend that using the incoherent sum improves the
process by making it safer. Appeal Br. 10-11; Reply Br. 5—6. In that
regard, we acknowledge the Specification’s prophetic disclosure that using
the incoherent sum “may be safer than a system which uses a coherent sum
of the pressures to predict the location of unintentional heating zones.”
Spec. 2 (emphasis added).
We note again, however, that ultrasound methods that protect
untreated tissue from damage were known in the art. See, e.g., Spec. 1—2
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(citing the ’780 patent); see also Vitek, abstract. Appellants do not identify
on the current record any specific evidence, comparative or otherwise,
persuasively demonstrating that using the incoherent sum when calculating
an ultrasound treatment plan is any safer than the prior art methods of
record, which, like claim 15 protect untreated tissue from undesired damage.
Appellants contend that using the incoherent sum improves the
performance of the ultrasound system, because the incoherent sum is easier
to calculate than the coherent sum. Reply Br. 3. Representative claim 15,
however, does not include a processor, and therefore encompasses
performing the calculation mentally. Appellants do not explain persuasively
how performing a calculation mentally will improve, or even change, how
the claimed ultrasound system functions.
Moreover, even assuming that the incoherent sum is easier to
calculate for a system that uses a processor to perform the calculation, the
alleged improvement still ultimately remains in the ineligible abstract idea.
That the calculation might be different does not demonstrate a difference in
how the processor functions, or how the ultrasound system ultimately
delivers ablative therapy while protecting untreated tissue. Thus, although
the claimed abstract calculation might be better than other abstract
calculations known in the art for controlling the claimed set of conventional
elements, that fact does not persuade us that, taking the claim elements as a
whole, the claimed invention includes an inventive concept beyond the
claimed ineligible abstract idea, as required under step two of Alice.
In sum, for the reasons discussed, Appellants do not persuade us that,
under the two-step inquiry set forth in Alice, the preponderance of the
evidence fails to the support the Examiner’s determination that the process
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recited in claim 15 is directed to subject matter ineligible for patenting. We,
therefore, affirm the Examiner’s rejection of claim 15 on that ground.
Claims 1—14 and 16—20 fall with claim 1. 37 C.F.R. § 41.37(c)(l)(iv).
OBVIOUSNESS
The Examiner’s Prima Facie Case
In rejecting claims 1—20, the Examiner cited Vitek as teaching or
suggesting instruments, computer readable media, and processes having
nearly all of the steps and features recited in the rejected claims, but found
that Vitek differed from the rejected claims in that “Vitek does not explicitly
disclose wherein the ultrasonic intensity estimate is calculated using an
incoherent sum of the ultrasonic pressure generated by each of the plurality
of transducer elements” as recited in each of independent claims 1,14, and
15. Ans. 5.
The Examiner found, however, that “Vitek’s instrument is capable of
estimating ultrasonic intensity by using an incoherent sum of the ultrasonic
pressure generated by each of the multiple transducer elements. Vitek
discloses calculating intensity of multiple transducer elements (see [0037-
0038] and [0043]).” Id. at 5—6. The Examiner determined, moreover, that
“[t]here are different ways of estimating/calculating ultrasound intensity and
it only require[s] routine skill in the art to estimate/calculate ultrasound
intensity.” Id. at 6.
As to using the incoherent sum when calculating the ultrasound
intensity generated in Vitek’s system, the Examiner found that “Liu
explicitly discloses estimating] ultrasound intensity by incoherent sum (see
[0036]; the incoherent data is summing the intensity).” Id.
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Based on the references’ combined teachings, the Examiner
concluded that an ordinary artisan would have considered it obvious “to
calculate ultrasound intensity by incoherent sum of the ultrasonic pressure
generated by each of the multiple transducer elements as taught by Liu
because this is one of many effective ways to calculate] the ultrasound
intensity of the multiple transducer elements and only require routine skill in
the art.” Id.
Analysis
It is well settled that, “[i]n proceedings before the Patent and
Trademark Office, the Examiner bears the burden of establishing a prima
facie case of obviousness based upon the prior art.” In re Fritch, 972 F.2d
1260, 1265 (Fed. Cir. 1992).
In KSR Inti Co. v. Teleflex Inc., 550 U.S. 398 (2007), although the
Supreme Court emphasized “an expansive and flexible approach” to the
obviousness question {id. at 415), it also reaffirmed the importance of
determining “whether there was an apparent reason to combine the known
elements in the fashion claimed by the patent at issue.” Id. at 418 (emphasis
added).
Thus, “[ojbviousness requires more than a mere showing that the prior
art includes separate references covering each separate limitation in a claim
under examination.” Unigene Laboratories, Inc. v. Apotex, Inc., 655 F.3d
1352, 1360 (Fed. Cir. 2011).
Instead, “[i]n determining whether obviousness is established by
combining the teachings of the prior art, the test is what the combined
teachings of the references would have suggested to those of ordinary skill
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in the art.” In re GPACInc., 57 F.3d 1573, 1581 (Fed. Cir. 1995) (internal
quotations omitted).
Having carefully considered the arguments and evidence advanced by
Appellants and the Examiner, Appellants persuade us that a preponderance
of the evidence does not support the Examiner’s conclusion of obviousness.
In particular, we agree with Appellants (see, e.g., Appeal Br. 17) that the
Examiner has not persuasively shown that the combination of Vitek and Liu
would have suggested using the incoherent sum of the ultrasonic pressures
of each of Vitek’s transducer elements when formulating a treatment plan, as
recited in each of independent claims 1,14, and 15 (see id. at 20, 23, 24).
We acknowledge, as the Examiner found, and as required by
Appellants’ claims, that Vitek discloses using ultrasound to treat target
tissue, while protecting sensitive untreated tissue from damage. Vitek,
abstract. Vitek explains that “ultrasound systems have been used for treating
tissue, e.g., by directing acoustic energy towards a target tissue region within
a patient, such as a cancerous or benign tumor, to coagulate, necrose,
generate mechanical damage (by cavitation) or otherwise heat the tissue
region.” Id. 12.
As the Examiner found, Vitek explains that a treatment plan that
ablates target tissue, but protects other tissue, determines the ultrasound
energy intensity that will be applied to the various locations of the tissue,
“preferably includ[ing] operational parameter(s), e.g., phase, amplitude, etc.,
for each of the transducer elements” (id. 135), as well as the relative
positions of the transducers and the target and non-target/protected tissues
(id. 36—38). In certain embodiments, as Appellants’ claims require, Vitek
discloses that individual transducers can be turned off. See id. 138
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(describing a “scenario in which the corresponding transducer element(s) 12
will not be activated by the controller 18 during an execution of the
treatment plan”); see also id. 148 (protecting ribs from undesired ultrasound
application by “tum[ing] off transducer elements directed at ribs, while
activating transducer elements that are directed between ribs”).
In contrast to Vitek’s tissue-ablating methods, Liu is directed to using
ultrasound for imaging, as Appellants contend. See Liu 11 (“This present
invention relates to adapting ultrasound imaging as a function of coherence.
In particular, imaging is performed as a function of the coherence of
acquired data.”).
Liu describes generating a “coherence factor” for an ultrasound
imaging system which can be used to modify attributes of images generated
by the system:
A coherence factor is computed as a ratio of the energy of the
coherent sum to the energy of the at-least-partially incoherent
sum of these signals [from the transducer elements]. ... In one
embodiment coherence factor is used to modulate the gray level
or color of the image synthesized using the component images.
Id. 113; see also id. 140 (“The coherence factor is calculated as a function
of the coherent and incoherent sums. For example, the coherence factor is a
ratio of energy of a coherent sum to energy of an incoherent sum.”).
As to the use of the incoherent sum in determining its coherence
factor, Liu explains:
Incoherent summation (compounding) may suppress
speckle and improve boundary depiction. The component
images are formed using different transmit steering with possibly
different receive aperture selection schemes, such as partially
overlapping sub-apertures. Coherent factor information is
computed using the component images corresponding to each
transmit/receive aperture scheme. This coherence factor image
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can then be used to modulate the compounded image in
brightness or color.
Id. 144 (emphasis added); see also id. 145 (“Adding images incoherently
helps reduce speckle.”).
Thus, Liu’s coherence factor, which uses the incoherent sum, is
employed, essentially, to enhance image quality. See id. f 44 (using
coherence factor image to “modulate the compounded image in brightness or
color”); 146 (registering coherence factor image on gray-scale image “helps
identify which part of tissue is introducing more inhomogeneity in wave
propagation”); 147 (using coherence factor when blending images together
to produce an output).
We agree with Appellants that the Examiner has not explained
adequately how using the incoherent sum to generate a mathematical
function that enhances ultrasound image quality, as taught in Liu, would
have prompted an ordinary artisan to use the incoherent sum when
formulating a treatment plan for applying ablative ultrasound, as taught in
Vitek. On the current record, the Examiner at best has shown that the
individual elements of the claimed invention were known in the art. See
Ans. 11—13. As discussed above, however, that is insufficient to establish
prima facie obviousness. See Unigene v. Apotex, 655 F.3d at 1360.
In sum, we are not persuaded that the Examiner has advanced a
sufficient reason that explains why Vitek and Liu would have suggested
using the incoherent sum of the ultrasonic pressures of each of Vitek’s
transducer elements when formulating a treatment plan, as recited in each of
independent claims 1, 14, and 15. We, therefore, reverse the Examiner’s
rejection of those claims, and their dependent claims, over those references.
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SUMMARY
For the reasons discussed, we affirm the Examiner’s rejection of
claims 1—20, as being directed to subject matter ineligible for patenting.
However, for the reasons discussed, we reverse the Examiner’s
rejection of claims 1—20, under 35 U.S.C. § 103(a), as being unpatentable
over Vitek and Liu.
TIME PERIOD
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
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